Albany's Decade of Corruption: Public Integrity Enforcement after Skilling V. United States, New York's Dormant Honest Services Fraud Statute, and Remedial Criminal Law Reform
Stengel, Andrew M., Albany Law Review
IV. NEW YORK HONEST SERVICES APPLIED TO STATE PUBLIC SERVANTS
A. N.Y. Penal Law Section 200.25 and the Public Officer's Law Code of Ethics Harmonized
Prosecutions of an officer or employees of a state agency, a member of the legislature, or legislative employee (201) based on section 200.25 are not farfetched. A possible violation would result from outside employment by a member of the State Assembly or Senate that violates the Code of Ethics. Unlike Congress, the state legislature is considered part-time employment; members are allowed to have unlimited non-state income. (202) The relevant duties that may be violated in the case of outside employment are Dewey's basic tenet, (203) the prohibitions against securing "unwarranted privileges," (204) and any transactions where there is a "direct or indirect financial interest." (205) Albany's "decade of corruption" offers several examples. (206)
In such cases, the benefit arrives as purported bona fide income for a state public officer, which follows an act that is a violation of a duty conducted within the scope of the public official's outside employment. (207) This would likely occur when the outside employment involves acts or transactions with those who have business before the state, as lobbyists, clients of lobbyists, or recipients of state aid or a grant. To reiterate, the intent of the payer of the compensation may be irrelevant because he or she may believe that the state public servant is performing legitimate services.
The key elements in the "basic tenet" are first, a "professional activity" and, second "in substantial conflict with the proper discharge of  duties in the public interest." (208) This sets a relatively high bar for the nature of the conflict because it is qualified by the term "substantial," which is defined as "significantly great." (209) For example, state legislator L receives income from an outside employer and L's duties involve acts with persons or entities that have business or interests before the state or even before L. A substantial conflict of interest would result if L has the authority of power to influence decisions that are beneficial to the outside employer or if L's income were dependent in any degree upon acts with those who have business before the state.
The definition of a "privilege" is "a right ... granted as a peculiar benefit, advantage, or favor." (210) Therefore, an "unwarranted privilege" is a privilege that a state public servant would not be entitled to but for his or her position. The simple test to distinguish between a warranted and unwarranted privilege is if a state public servant would receive different treatment than an average citizen in the same situation. In order to apply a criminal penalty to violations of this duty, the difference in treatment would likely need to be substantial or gross. (211) The duty against securing unwarranted privileges has a broad application. (212)
For example, state legislator L receives an income from an outside employer, who has direct or indirect business or interests before the state, for stated employment responsibilities. If the average citizen would receive income that is grossly less than L for the same responsibilities, then the state public servant's income is an unwarranted privilege.
The final duty noted above is similar to a "substantial conflict;" a derivative of a duty of loyalty violation or literal self-dealing, where one who stands on both sides of a transaction receives a benefit. (213) Here, a state public servant is barred from "engag[ing] in any transaction" in an official position with "any business entity in which [such state public servant] has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties." (214)
The definition of "transaction" is "[s]omething performed or carried out" or "[a]ny activity involving two or more persons. …