§ 3-104 — State board of elections; enforcement powers

New York § 3-104

• Jurisdiction: New York
• Law ELN: Election
• Title 1: Statewide Provisions
• Art. 3: Election Officials

Text

§ 3-104. State board of elections; enforcement powers.\n 1. (a) There shall be a unit known as the division of election law\nenforcement established within the state board of elections. The head of\nsuch unit shall be the chief enforcement counsel.\n (b) The state board of elections shall have jurisdiction of, and be\nresponsible for, the execution and enforcement of the provisions of\narticle fourteen of this chapter and other statutes governing campaigns,\nelections and related procedures; provided however that the chief\nenforcement counsel shall have sole authority within the state board of\nelections to investigate on his or her own initiative or upon complaint\nalleged violations of such statutes and all complaints alleging\nviolations shall be forwarded to the division of election law\nenforcement.\n 2. (a) Whenever a local board of elections shall determine, on its own\ninitiative or upon complaint, or otherwise, that there is substantial\nreason to believe a violation of this chapter or any code or regulation\npromulgated thereunder has been committed by a candidate or political\ncommittee or other person or entity that files statements required by\narticle fourteen of this chapter solely with such local board, it shall\nexpeditiously make an investigation which shall also include\ninvestigation of reports and statements made or failed to be made by the\ncomplainant and any political committee supporting his candidacy if the\ncomplainant is a candidate or, if the complaint was made by an officer\nor member of a political committee, of reports and statements made or\nfailed to be made by such political committee and any candidates\nsupported by it. The local board shall report the results of its\ninvestigation to the division of election law enforcement chief\nenforcement counsel within ninety days of the start of such\ninvestigation. The chief enforcement counsel may direct the local board\nof elections at any time to suspend its investigation so that the\ndivision of election law enforcement can investigate the matter.\n (b) The chief enforcement counsel may request, and shall receive, the\nassistance of the state police in any investigation it shall conduct.\n 3. Upon receipt of a complaint and supporting information alleging any\nviolation of this chapter, or upon his or her own initiative, the chief\nenforcement counsel shall determine if an investigation should be\nundertaken. The chief enforcement counsel shall, if necessary, obtain\nadditional information from the complainant or from other sources to\nassist such counsel in making this determination. Such analysis shall\ninclude the following: first, whether the allegations, if true, would\nconstitute a violation of this chapter and, second, whether the\nallegations are supported by credible evidence. The chief enforcement\ncounsel may at any time ask that the board authorize him or her to\nexercise the powers which the board is otherwise authorized to exercise\npursuant to subdivisions five and six of section 3-102 of this title.\nThe board shall vote on whether to grant or refuse to grant such\nauthority no later than twenty days after the chief enforcement counsel\nmakes such request. For purposes of considering and voting on such\nrequest, the chief enforcement counsel shall be entitled to participate\nin all matters related thereto and shall vote on the board's granting or\nrefusal to grant such request only when there is a tie. Should the board\nnot vote on such request within twenty days of its submission, or grant\nthe chief enforcement counsel's request, the chief enforcement counsel\nshall be so empowered to act pursuant to subdivisions five and six of\nsection 3-102 of this title.\n 4. If the chief enforcement counsel determines that the allegations,\nif true, would not constitute a violation of this chapter or that the\nallegations are not supported by credible evidence, he or she shall\nissue a letter forthwith to the complainant dismissing the complaint and\nnotice to the board.\n 5. (a) If, an individual has failed to cure pursuant to section\n3-104-a of this title, or the chief enforcement counsel determines that\nsubstantial reason exists to believe that a person, acting as or on\nbehalf of a candidate or political committee under circumstances\nevincing an intent to violate such law that does not otherwise warrant\ncriminal prosecution, or has unlawfully violated any provision of this\nchapter, the board shall assign a hearing officer, randomly from a list\nof prospective hearing officers each of whom shall have been approved by\na majority vote of the board. The chief enforcement counsel shall\nprovide a written report to such hearing officer as to: (1) whether\nsubstantial reason exists to believe a violation of this chapter has\noccurred and, if so, the nature of the violation and any applicable\npenalty, based on the nature of the violation; (2) whether the matter\nshould be resolved extra-judicially; and (3) whether a special\nproceeding should be commenced in the supreme court to recover a civil\npenalty. The hearing officer shall make findings of fact and conclusions\nof law based on a preponderance of the evidence as to whether a\nviolation has been established and, if so, who is guilty of such\nviolation on notice to and with an opportunity for the individual or\nentity accused of any violations to be heard. However, if the hearing\nofficer finds that on balance, the equities favor a dismissal of the\ncomplaint, the hearing officer shall dismiss the charges. In determining\nwhether the equities favor a dismissal, the hearing officer shall\nconsider the following factors: (1) whether the complaint alleges a de\nminimis violation of article fourteen of this chapter; (2) whether the\nsubject of the complaint has made a good faith effort to correct the\nviolation; and (3) whether the subject of the complaint has a history of\nsimilar violations. For purposes of making any such findings under this\nsubdivision, proceedings before the hearing officer shall be governed by\narticle three of the state administrative procedure act. The chief\nenforcement counsel shall adopt the report of the hearing officer and\nmay, in his or her discretion, commence a special proceeding in the\nsupreme court pursuant to sections 16-100, 16-114 and 16-116 of this\nchapter should the findings of fact and conclusions of law support the\ncommencement of such proceeding or enter into an agreement to settle\nsuch matter with the subject of the complaint. In the event the chief\nenforcement counsel commences a special proceeding, the court shall\nafford the subject of the compliant an opportunity to be heard and shall\nbe empowered to accept, reject or modify the findings of fact and\nconclusions of law made by the hearing officer. If the board fails to\nproduce a list of eligible hearing officers, the chief enforcement\ncounsel may commence a special proceeding as provided herein in\naccordance with recommendations made in his or her report.\n (b) If the chief enforcement counsel determines that reasonable cause\nexists to believe a violation warranting criminal prosecution has taken\nplace, the chief enforcement counsel shall present such findings to the\nboard. Within thirty days of such submission, the board shall vote on\nwhether to accept or reject such findings. For purposes of voting on\nacceptance or rejection of findings by the chief enforcement counsel,\nthe chief enforcement counsel shall be entitled to participate in all\nmatters related to the review of his or her report and shall vote on its\nacceptance or rejection only when there is a tie. Should the board fail\nto vote to either accept or reject the findings within thirty days of\nsubmission of such findings, or should the board accept the findings by\nthe chief enforcement counsel that there is reasonable cause to believe\nthat a violation warranting criminal prosecution has taken place, the\nchief enforcement counsel shall, forthwith, and in any event no later\nthan seven calendar days of such failure to accept or reject the\nfindings by the board, refer such matter to the attorney general or\ndistrict attorney with jurisdiction over such matter to commence a\ncriminal action as such term is defined in the criminal procedure law.\n 6. Upon notification that a special proceeding has been commenced by a\nparty other than the state board of elections, pursuant to section\n16-114 of this chapter, the chief enforcement counsel shall investigate\nthe alleged violations unless otherwise directed by the court.\n 7. The chief enforcement counsel shall prepare a report to be included\nin the annual report of the board to the governor, the state board of\nelections and legislature, summarizing the activities of the unit during\nthe previous year.\n 8. The state board of elections may promulgate rules and regulations\nconsistent with law to effectuate the provisions of this section.\n