If the NY Employment Relations Board chairman takes an unpaid leave from his law firm partnership during his term, does he satisfy the 'devote his entire time' rule?

Subject

Chairman of the Employment Relations Board may remain a law-firm partner on unpaid leave during his board service

Plain-English summary

Anthony C. Imbarrato was appointed Chairman of the Employment Relations Board for a term expiring December 31, 1998. He was a partner in a Long Island law firm. He planned not to participate in his private practice or to engage in any other business during his Board service, and asked whether an uncompensated leave of absence would satisfy Labor Law § 702(4) or whether he had to dissolve the partnership entirely.

The AG said unpaid leave was enough.

Labor Law § 702(4) reads: "Each member of the board shall devote his entire time to the duties of his office and shall not engage in any other business, vocation or employment." This language has been in the statute since the Board was created in 1937 (L 1937, ch 443). The AG read it as a plain-meaning provision barring actual participation in other business or employment, not as a bar on mere passive affiliation with an outside firm.

The reasoning had three threads.

First, the text. "Engage in" suggests actively participating, not passively belonging. A partner on an unpaid leave of absence is not engaging in the partnership's business; he is simply maintaining the formal affiliation. The Legislature could have written the statute to prohibit any affiliation with an outside firm (and did so in other statutes), but it did not.

Second, the policy. A reading requiring dissolution would create a harsh result for the appointee. He would have to wind up his partnership, give up the practice he built, and end his career path. The Legislature, the AG inferred, did not intend to make Board membership so personally costly that qualified candidates would refuse to serve. Public service should not require career suicide.

Third, the legislative purpose. The "entire time" requirement is about avoiding divided loyalties: Board members should not be moonlighting at another job that competes for their attention or creates conflicts. An unpaid leave with no firm work performed satisfies that concern in substance. The appointee earns nothing from the firm, performs no firm work, and devotes his entire working time to Board duties. The formal partnership status, with no active role, does not divide his loyalties.

The footnote covers a related ethics question that the State Ethics Commission had already resolved. Under the ethics laws (separate from the Labor Law), the firm could continue to use the appointee's name on its letterhead during his leave, but the firm could not appear before the Board during his service. That kept the substantive conflict-of-interest concerns addressed through a different mechanism: any firm matter that came before the Board would be barred because of the appointee's affiliation, even though that affiliation was permitted.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why doesn't "shall not engage in any other business" mean "shall not be a partner"?

Because "engage in" requires active participation. A partner on an unpaid leave who does no firm work and receives no firm income is not engaging in the partnership's business. The Legislature knows how to write tighter prohibitions when it wants them; the statutory text here does not impose them.

Could the appointee keep getting his partnership share of profits?

No. The AG opinion is built on "unpaid leave of absence." Continuing to draw partnership income would compromise the "devote his entire time" requirement: the appointee would still be receiving the financial benefit of the partnership, which suggests ongoing participation in the firm's economic enterprise.

What about the firm's continued use of his name?

The State Ethics Commission separately approved that. The opinion notes (in a footnote) that the firm may keep the name on its letterhead but cannot appear before the Board during the appointee's term.

Does this analysis extend to other state boards with "devote entire time" language?

Probably yes for boards with similar statutory language, but the analysis depends on the specific statute and the practical realities of the position. Each board's enabling statute should be read carefully. The AG's emphasis on the policy concern (not making board service punitive) likely applies broadly.

What if the leave is paid?

The opinion does not address paid leave. The "devote his entire time" plus "shall not engage in any other business" language probably forbids paid leave because the appointee would be receiving employment income from a source other than the Board. The AG specifically emphasized "unpaid" throughout the opinion, suggesting that distinction matters.

Statutory framework

Labor Law § 702(4) requires each Employment Relations Board member to "devote his entire time to the duties of his office" and bars engaging in "any other business, vocation or employment."

The statute traces to the original 1937 creation of the Board (L 1937, ch 443) and has not been materially amended on this point since.

The ethics analysis is handled separately by the State Ethics Commission under the Public Officers Law and related ethics statutes.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/95-F4_pw.pdf

Original opinion text

LABOR LAW § 702(4); L 1937, CH 443.

A person appointed to the position of Chairman of the Employment Relations Board may take an unpaid leave of absence from the law firm of which he is a partner.

June 15, 1995

Anthony C. Imbarrato, Esq.
Chairman, Employment
Relations Board
3000 Hempstead Turnpike
Levittown, NY 11756-1396

Formal Opinion
No. 95-F4

Dear Mr. Imbaratto:

You have requested an opinion concerning the application of Labor Law § 702(4). You have advised us that you have been appointed Chairman of the Employment Relations Board (the "Board") for a term expiring December 31, 1998. Currently you are a partner in a law firm based on Long Island. You state that it is your intention not to participate in your private law practice or to engage in any other business or profession during your term as Chairman. You ask whether, under the provisions of the Labor Law, it is sufficient that you take an uncompensated leave of absence or whether you must divest yourself completely of any interest in the firm and file a certificate of dissolution.[1]

Labor Law § 702(4) provides that "[e]ach member of the board shall devote his entire time to the duties of his office and shall not engage in any other business, vocation or employment". This language has appeared in the governing statute since the creation of the Board in 1937. See, L 1937, ch 443. You have stated your intention to comply with this provision. In effect, you ask whether, if you continue as a partner, but have no involvement with the law firm and receive no compensation from the firm during your service on the Board, you have complied with section 702(4) of the Labor Law. We conclude that such an unpaid leave of absence meets the requirements of the Labor Law.

We are aware of no authority that construes section 702(4) to require dissolution of Board members' partnerships. The statute, which requires Board members to devote their entire time to the work of the Board and prohibits them from engaging in other business or employment, should be given its plain meaning, barring actual participation in business or employment other than a member's duties with the Board. Had the Legislature intended to bar Board members from maintaining any affiliation or connection with outside business entities, it would have plainly stated that proscription. Further, that interpretation could produce a harsh result by requiring a board member to relinquish any opportunity to return to his firm at the end of his public service. There is no evidence that the Legislature intended such a restrictive provision which would impede the recruitment of qualified individuals to serve temporarily on the Board.

We conclude that a person appointed to the position of Chairman of the Employment Relations Board may take an unpaid leave of absence from the law firm of which he is a partner.

Very truly yours,

DENNIS C. VACCO
Attorney General

[1] You also have advised us that you have raised similar questions with the State Ethics Commission. Construing only the ethics laws, they have informed you that your firm may continue to use your name on its letterhead during a leave of absence while you serve on the Board. The Commission has advised us that they also informed you that under the ethics laws your firm may not appear before the Board during your service as Chairman.