§ 94 — Commission on ethics and lobbying in government

New York § 94

• Jurisdiction: New York
• Law EXC: Executive
• Art. 6: Department of State

Text

§ 94. Commission on ethics and lobbying in government. 1. (a)\nCommission established. There is hereby established within the\ndepartment of state, a commission on ethics and lobbying in government,\nan agency responsible for administering, enforcing, and interpreting New\nYork state's ethics and lobbying laws. The commission shall have and\nexercise the powers and duties set forth in this section with respect to\nstatewide elected officials, members of the legislature and employees of\nthe legislature, and state officers and employees as defined in sections\nseventy-three, seventy-three-a, and seventy-four of the public officers\nlaw, candidates for statewide elected office and for the senate or\nassembly, and the political party chair as is defined in section\nseventy-three of the public officers law, lobbyists and the clients of\nlobbyists as defined in section one-c of the legislative law, and\nindividuals who have formerly held such positions, were lobbyists or\nclients of lobbyists as defined in section one-c of the legislative law,\nor who have formerly been such candidates.\n (b) The commission shall provide for the transfer, assumption or other\ndisposition of the records, property, and personnel affected by this\nsection, and it is further provided, should any employees be transferred\nfrom the joint commission on public ethics ("JCOPE"), the predecessor\nethics agency, to the commission, that such transfer will be without\nfurther examination or qualification and such employees shall retain\ntheir respective civil service classifications, status and collective\nbargaining agreements.\n (c) The commission shall review any pending inquiries or matters\naffected by this section and shall establish policies to address them.\n (d) The commission shall undertake a comprehensive review of all\nregulations in effect upon the effective date of this section; and\nreview of all advisory opinions of predecessor ethics agencies,\nincluding JCOPE, the legislative ethics commission, the commission on\npublic integrity, the state ethics commission, and the temporary\nlobbying commission, which will address the consistency of such\nregulations and advisory opinions among each other and with the new\nstatutory language, and of the effectiveness of the existing laws,\nregulations, guidance and ethics enforcement structure.\n (e) This section shall not be deemed to have revoked or rescinded any\nregulations or advisory opinions in effect on the effective date of this\nsection that were issued by predecessor ethics and lobbying bodies. The\ncommission shall cooperate, consult, and coordinate with the legislative\nethics commission, to the extent possible, to administer and enforce the\nlaws under its jurisdiction.\n (f) The annual budget submitted by the governor shall separately state\nthe recommended appropriations for the commission on ethics and lobbying\nin government. Upon enactment, these separately stated appropriations\nfor the commission on ethics and lobbying in government shall not be\ndecreased by interchange with any other appropriation, notwithstanding\nsection fifty-one of the state finance law.\n 2. Definitions. For the purposes of this section, the following terms\nshall have the following meanings:\n (a) "commission" means the commission on ethics and lobbying in\ngovernment established pursuant to subdivision one of this section.\n (b) "selection members" means the governor, speaker of the assembly,\ntemporary president of the senate, minority leader of the senate,\nminority leader of the assembly, comptroller, and the attorney general.\n (c) "independent review committee" means the committee of the American\nBar Association accredited New York state law school deans or interim\ndeans, or their designee who is an associate dean of their respective\nlaw school, tasked with reviewing, approving, or denying the members of\nthe commission as nominated by the selection members and other tasks\npursuant to this section.\n (d) "respondent" means the individual or individuals or organization\nor organizations subject to an inquiry, investigation, or enforcement\naction.\n (e) "victim" means any individual that has suffered or alleged to have\nsuffered direct harm from any violation of law that is subject to\ninvestigation under the jurisdiction of the commission.\n 3. Nomination and appointment of the commission. (a) The commission\nshall consist of eleven members, to be nominated by the selection\nmembers as follows: three members by the governor; two members by the\ntemporary president of the senate; one member by the minority leader of\nthe senate; two members by the speaker of the assembly; one member by\nthe minority leader of the assembly; one member by the attorney general;\nand one member by the comptroller.\n (b) The independent review committee shall within thirty days review\nthe qualifications of the nominated candidates and approve or deny each\ncandidate nominated by their respective selection member.\n (c) The independent review committee shall publish on its website a\nprocedure by which it will review the qualifications of the nominated\ncandidate and approve or deny each candidate.\n (d) Those candidates that the independent review committee deems to\nmeet the qualifications necessary for the services required based on\ntheir background and expertise that relate to the candidate's potential\nservice on the commission shall be appointed as a commission member. The\nnominating selection member shall nominate a new candidate for those\nthat are denied by the independent review committee.\n (e) No individual shall be eligible for nomination and appointment as\na member of the commission who is currently, or has within the last two\nyears:\n (i) been registered as a lobbyist in New York state;\n (ii) been a member or employee of the New York state legislature, a\nstatewide elected official, or a commissioner of an executive agency\nappointed by the governor;\n (iii) been a political party chair, as defined in section\nseventy-three of the public officers law; or\n (iv) been a state officer or employee as defined in section\nseventy-three of the public officers law.\n (f) The independent review committee shall convene as needed or as\nrequested by the selection members. The chair of the independent review\ncommittee shall be elected from the members of the independent review\ncommittee.\n (g) Appropriate staffing and other resources shall be provided for in\nthe commission's budget for the independent review committee to carry\nout its powers, functions, and duties. The independent review committee\nshall publish on the commission's website a procedure by which it will\nreview and select the commission members and other processes to\neffectuate its responsibilities under this section.\n (h) The majority of the independent review committee shall constitute\na quorum to hold a meeting and conduct official business.\n (i) During the pendency of the review and approval or denial of the\ncandidates, the independent review committee shall be subject to and\nmaintain confidentiality in all independent review committee processes,\nreviews, analyses, approvals, and denials. A member of the independent\nreview committee may be removed by majority vote of the committee for\nsubstantial neglect of duty, misconduct, violation of the\nconfidentiality restrictions set forth in this section, inability to\ndischarge the powers or duties of the committee or violation of this\nsection, after written notice and opportunity for a reply.\n (j) Upon the receipt of the selection members' appointments, members\nof the independent review committee shall disclose to the independent\nreview committee any personal, professional, financial, or other direct\nor indirect relationships a member of the independent review committee\nmay have with an appointee. If the independent review committee\ndetermines a conflict of interest exists, such independent review\ncommittee member shall, in writing, notify the other members of the\nindependent review committee of the possible conflict. The member may\nrecuse themself from all subsequent involvement in the consideration of\nand action upon the appointment. If, after disclosure, the member does\nnot recuse themself from the matter, the independent review committee,\nby majority vote finding the disclosed information creates a substantial\nconflict of interest, may remove the conflicted member from further\nconsideration of and action upon the appointment.\n (k) Notwithstanding the provisions of article seven of the public\nofficers law, no meeting or proceeding of the independent review\ncommittee shall be open to the public, except the applicable records\npertaining to the review and selection process for a member's seat shall\nbe subject to disclosure pursuant to article six of the public officers\nlaw only after an individual member is appointed to the commission.\nRequests for such records shall be made to, and processed by, the\ncommission's records access officer.\n (l) The independent review committee shall neither be public officers\nnor be subject to the requirements of the public officers law.\n (m) Notwithstanding subdivision (l) of this section, the independent\nreview committee members shall be entitled to representation,\nindemnification, and to be held harmless to the same extent as any other\nperson employed in service of the state and entitled to such coverage\nunder sections seventeen and nineteen of the public officers law,\nprovided however, that any independent review committee member removed\ndue to a violation of paragraph (i) of this subdivision shall not\nqualify for such entitlements.\n 4. Commission. (a) The first class of members of the commission shall\nserve staggered terms to ensure continuity. For the first class of the\ncommission, the governor's first appointee shall serve an initial term\nof four years, their second appointee shall serve an initial term of two\nyears, and their third appointee shall serve an initial term of one\nyear; the attorney general's appointee shall serve an initial term of\nfour years; the comptroller's appointee shall serve an initial term of\nfour years; the temporary president of the senate's first appointee\nshall serve an initial term of four years and their second appointee\nshall serve a term of two years; the minority leader of the senate's\nappointee shall serve an initial term of four years; the speaker of the\nassembly's first appointee shall serve initial terms of four years and\ntheir second appointee shall serve a term of two years; and the minority\nleader of the assembly's appointee shall serve a term of four years. All\nsubsequent members shall serve a term of four years. No member shall be\nselected to the commission for more than two full consecutive terms,\nexcept that a member who has held the position by filling a vacancy can\nonly be selected to the commission for an additional two full\nconsecutive terms.\n (b) The commission by majority vote shall elect a chairperson from\namong its members for a term of two years. A chairperson may be elected\nto no more than two terms for such office.\n (c) Members of the commission may be removed by majority vote of the\ncommission for substantial neglect of duty, misconduct in office,\nviolation of the confidentiality restrictions set forth in this section,\ninability to discharge the powers or duties of office or violation of\nthis section, after written notice and opportunity for a reply.\n (d) Any vacancy occurring on the commission shall be filled within\nthirty days of its occurrence in the same manner as a member is\ninitially selected to complete the vacant term.\n (e) During the period of a member's service as a member of the\ncommission, the member shall refrain from making, or soliciting from\nother persons, any contributions to candidates, political action\ncommittees, political parties or committees, newsletter funds, or\npolitical advertisements for election to the offices of governor,\nlieutenant governor, member of the assembly or the senate, attorney\ngeneral or state comptroller.\n (f) Members of the commission shall receive a per diem allowance equal\nto the salary of a justice of the supreme court divided by two hundred\ntwenty for each day or each pro-rated day actually spent in the\nperformance of the member's duties under this section, and, in addition\nthereto, shall be reimbursed for all reasonable expenses actually and\nnecessarily incurred by the member in the performance of the member's\nduties under this section. For the purposes of this subdivision, a day\nshall consist of at least seven and one-half hours spent in the\nperformance of the member's duties under this section.\n (g) The commission shall meet at least quarterly and additionally as\ncalled by the chairperson, or upon the call of a majority of the members\nof the commission. The commission shall be subject to articles six and\nseven of the public officers law.\n (h) A majority of the members of the commission shall constitute a\nquorum, and the commission shall have the power to act by majority vote\nof the total number of members of the commission without vacancy.\n (i) The commission shall hold a public hearing at least once each\ncalendar year to take testimony regarding the operation of the\ncommission and solicit public input regarding potential or proposed\nchanges in the laws under its jurisdiction.\n 5. Powers. (a) The commission has the authority to: (i) adopt, amend,\nand rescind any rules and regulations pertaining to section\nseventy-three, seventy-three-a or seventy-four of the public officers\nlaw, article one-A of the legislative law, or section one hundred seven\nof the civil service law; (ii) adopt, amend, and rescind any procedures\nof the commission, including but not limited to, procedures for advice\nand guidance, training, filing, review, and enforcement of financial\ndisclosure statements, investigations, enforcement, and due process\nhearings; and (iii) develop and promulgate any programs for reviews,\ntraining, and guidance to carry out the commission's mission.\n (b) The commission shall adopt and post on its website guidance\ndocuments detailing the processes and procedures of an investigation,\nincluding the stages of an investigation; timelines, including the\nreasons for any potential delays in an investigation; the hearing and\nadjudication process; outcomes of an investigation; and, anything else\nthe commission deems necessary to inform the public as well as relevant\nparties to an investigation including complainants, respondents,\nvictims, if any, and witnesses as to such processes and procedures. The\nguidance documents shall delineate the processes and procedures that\napply to the relevant parties, including, where applicable, the due\nprocess and any other rights or remedies that the relevant party may\nhave under the commission's procedures or any other area of law. The\nguidance documents shall be provided to the relevant party of an\ninvestigation upon such party's involvement in such investigation.\n (c) The commission has the authority to compel the testimony of\nwitnesses, and may administer oaths or affirmations, subpoena witnesses,\ncompel their attendance and require the production of any books or\nrecords which it may deem relevant or material.\n 6. Executive director and commission staff. The commission shall:\n (a) (i) Appoint an executive director through a majority vote of the\nmembers of the commission, who shall act in accordance with the policies\nof the commission. The executive director shall be appointed without\nregard to political affiliation and solely on the basis of fitness to\nperform the duties assigned by this section, and meet the qualifications\nnecessary for the services required based on their background and\nexpertise that relate to the candidate's potential service to the\ncommission. No individual shall be eligible to be appointed as an\nexecutive director if the individual is currently, or within the last\ntwo years has been:\n (1) registered as a lobbyist in New York state;\n (2) a member or employee of the New York state legislature or a\nstatewide elected official, or a commissioner of an executive agency\nappointed by the governor; or\n (3) a political party chair, as defined in section seventy-three of\nthe public officers law.\n (ii) The appointment and removal of the executive director shall be\nmade by a majority vote of the commission.\n (iii) The term of office of the executive director shall be four years\nfrom the date of appointment. The salary of the executive director shall\nbe determined by the members of the commission based on experience.\n (iv) The commission may remove the executive director for neglect of\nduty, misconduct in office, violation of the confidentiality\nrestrictions in this section, or inability or failure to discharge the\npowers or duties of office, including the failure to follow the lawful\ninstructions of the commission.\n (b) The commission may delegate authority to the executive director to\nact in the name of the commission between meetings of the commission\nprovided such delegation is in writing, the specific powers to be\ndelegated are enumerated, and the commission shall not delegate any\ndecisions specified in this section that require a vote of the\ncommission.\n (c) The commission, through the executive director, shall establish\nunits within the commission to carry out it duties, including, but not\nlimited to, (i) an advice and guidance unit, (ii) a training unit, (iii)\na financial disclosure unit, (iv) a lobbying unit, and (v) an\ninvestigations and enforcement unit.\n (d) The commission, through the executive director, shall appoint such\nother staff as are necessary to carry out its duties under this section,\nincluding, but not limited to, a deputy director of an advice and\nguidance unit to provide timely confidential advice to persons subject\nto the commission's jurisdiction, a deputy director for training, a\ndeputy director for investigations and enforcement, and a deputy\ndirector for lobbying.\n (e) In addition to meeting the qualifications necessary for the\nservices required for the position, the deputy director for\ninvestigations and enforcement shall have completed substantial training\nand have experience in trauma-informed approaches to investigations and\nenforcement. The deputy director for investigations and enforcement\nshall complete a minimum of four hours of training annually in\ntrauma-informed approaches to investigations and enforcement. Such\ntrainings may include, but not be limited to, the impact of trauma,\nfirst impression matters, victim interviews, investigative strategies,\nand alcohol and drug facilitated cases.\n (f) The commission, through the executive director, shall review and\napprove a staffing plan provided and prepared by the executive director\nwhich shall contain, at a minimum, a list of the various units and\ndivisions as well as the number of positions in each unit, titles and\ntheir duties, and salaries, as well as the various qualifications for\neach position.\n 7. Advice and guidance. (a) The commission shall establish a unit or\nunits solely for ethics and lobbying guidance, and give such prompt,\ninformal advice to persons whose conduct it oversees, except with\nrespect to members of the legislature and legislative staff, who shall\nseek advice from the legislative ethics commission in the first\ninstance.\n (b) Persons receiving such informal advice may rely on that advice\nabsent misrepresentation or omission of material facts to the commission\nand such communications with the commission shall be treated as\nconfidential, except as disclosure is needed to prevent or rectify a\ncrime or fraud, or prevent a substantial threat to public health or\nsafety or if required by court order.\n (c) The commission may also render, on written request or on its own\ninitiative, advisory opinions, and may allow for public comment before\nissuance of an advisory opinion. Such an opinion rendered by the\ncommission shall be relied on by those subject to the commission's\njurisdiction and until, or unless, amended, superseded, or revoked. Such\nopinion may also be relied upon by any such person, and may be\nintroduced and shall be a defense, in any criminal or civil action.\n 8. Training. The commission shall establish a training unit and shall\ndevelop and administer an on-going program for the education and\ntraining in ethics and lobbying for those subject to the provisions of\nthis section, as follows:\n (a) The commission shall develop and administer a comprehensive and\ninteractive live-in person or live-online ethics training course and\nshall designate and train instructors to conduct such training. Such\nlive course shall be designed to include practical application of the\nmaterial covered and a question-and-answer participatory segment. Unless\nthe commission grants an extension or waiver for good cause shown,\nstatewide elected officials, members of the legislature and employees of\nthe legislature, and state officers and employees as defined in sections\nseventy-three, seventy-three-a, and seventy-four of the public officers\nlaw, and the political party chair as is defined in section\nseventy-three of the public officers law, shall complete the live course\nwithin ninety days of appointment or employment and shall complete the\nlive course every two years subsequently.\n (b) The commission shall develop and administer an online ethics\nrefresher course for all individuals listed under subparagraph (i) of\nthis paragraph who have previously completed the live course. Such\nrefresher course shall be designed to include any changes in law,\nregulation, or policy or in the interpretation thereof, and practical\napplication of the material covered. Unless the commission grants an\nextension or waiver for good cause shown, such individuals shall take\nsuch refresher course once every year after having completed the live\ncourse under paragraph (a) of this subdivision.\n (c) The commission shall develop and administer an online live\nquestion and answer course for agency ethics officers.\n (d) The commission shall develop and administer training courses for\nlobbyists and clients of lobbyists.\n (e) The provisions of this subdivision shall be applicable to the\nlegislature except to the extent that an ethics training program is\notherwise established by the assembly and/or senate for their respective\nmembers and employees and such program meets or exceeds each of the\nrequirements set forth in this subdivision.\n (f) On an annual basis, the commission, in coordination with the\nlegislative ethics commission, shall determine the status of compliance\nwith the training requirements under this subdivision by each state\nagency and by the senate and the assembly. Such determination shall\ninclude aggregate statistics regarding participation in such training\nand shall be reported on a quarterly basis to the governor and the\nlegislature in writing.\n 9. Financial disclosure statements. (a) The commission may delegate\nall or part of review, inquiry and advice in this section to the staff\nunder the supervision of the executive director.\n (b) The commission shall make available forms for annual statements of\nfinancial disclosure required to be filed pursuant to section\nseventy-three-a of the public officers law.\n (c) The commission shall review the financial disclosure statements of\nthe statewide elected officials and members of the legislature within\nsixty days of their filings to determine, among other things,\ndeficiencies and conflicts.\n (d) The commission shall review on a random basis the financial\ndisclosure statements for filers who are not statewide elected officials\nand members of the legislature.\n (e) The commission shall review financial disclosure statements filed\nin accordance with the provisions of this section and (i) inquire into\nany disclosed conflict to recommend how best to address such conflict;\nand\n (ii) ascertain whether any person subject to the reporting\nrequirements of section seventy-three-a of the public officers law has\nfailed to file such a statement, has filed a deficient statement or has\nfiled a statement which reveals a possible violation of section\nseventy-three, seventy-three-a or seventy-four of the public officers\nlaw.\n (f) If a person required to file a financial disclosure statement with\nthe commission has failed to file a disclosure statement or has filed a\ndeficient statement, the commission shall notify the reporting person in\nwriting, state the failure to file or detail the deficiency, provide the\nperson with a fifteen-day period to cure the deficiency, and advise the\nperson of the penalties for failure to comply with the reporting\nrequirements. This first notice of deficiency shall be confidential. If\nthe person fails to make such filing or fails to cure the deficiency\nwithin the specified time period, the commission shall send a notice of\ndelinquency (i) to the reporting person; (ii) in the case of a statewide\nelected official, to the chief of staff or counsel to the statewide\nelected official; (iii) in the case of a member of the legislature or a\nlegislative employee, to the temporary president of the senate and the\nspeaker of the assembly; and (iv) in the case of a state officer,\nemployee or board member, to the appointing authority for such person.\nSuch notice of delinquency may be sent at any time during the reporting\nperson's service as a statewide elected official, state officer or\nemployee, member of the assembly or the senate, or a legislative\nemployee or a political party chair or while a candidate for statewide\noffice, or within one year after termination of such service or\ncandidacy. A copy of any notice of delinquency or report shall be\nincluded in the reporting person's file and be available for public\ninspection and copying pursuant to the provisions of this section. The\njurisdiction of the commission, when acting pursuant to this subdivision\nwith respect to financial disclosure, shall continue for two years\nnotwithstanding that the reporting person separates from state service,\nor ceases to hold public or political party office, or ceases to be a\ncandidate, provided the commission notifies such person of the alleged\nfailure to file or deficient filing pursuant to this subdivision.\n (g) The commission shall adopt a procedure whereby a person who is\nrequired to file an annual financial disclosure statement with the\ncommission may request an additional period of time within which to file\nsuch statement, other than members of the legislature, candidates for\nmembers of the legislature and legislative employees, due to justifiable\ncause or undue hardship.\n (h) The commission may permit any person who is required to file a\nfinancial disclosure statement with the commission to request that the\ncommission delete from the copy thereof made available for public\ninspection and copying one or more items of information which may be\ndeleted by the commission upon a finding by the commission that the\ninformation which would otherwise be required to be made available for\npublic inspection and copying will have no material bearing on the\ndischarge of the reporting person's official duties. If such request for\ndeletion is denied, the commission, in its notification of denial, shall\ninform the person of their right to appeal the commission's\ndetermination in a proceeding commenced against the commission, pursuant\nto article seventy-eight of the civil practice law and rules.\n (i) The commission may permit any person who is required to file a\nfinancial disclosure statement with the commission to request an\nexemption from any requirement to report one or more items of\ninformation which pertain to such person's spouse, domestic partner, or\nunemancipated children which item or items may be exempted by the\ncommission upon a finding by the commission that the reporting\nindividual's spouse, domestic partner, on their own behalf, or on behalf\nof an unemancipated child, objects to providing the information\nnecessary to make such disclosure and that the information which would\notherwise be required to be reported shall have no material bearing on\nthe discharge of the reporting person's official duties. If such request\nfor exemption is denied, the commission, in its notification of denial,\nshall inform the person of their right to appeal the commission's\ndetermination, pursuant to article seventy-eight of the civil practice\nlaw and rules.\n (j) The commission may permit any person required to file a financial\ndisclosure statement to request an exemption from any requirement to\nreport the identity of a client pursuant to the question under\nsubparagraph (b) of paragraph eight of subdivision three of section\nseventy-three-a of the public officers law in such statement based upon\nan exemption set forth in such question. The reporting individual need\nnot seek an exemption to refrain from disclosing the identity of any\nclient with respect to any matter where they or their firm provided\nlegal representation to the client in connection with an investigation\nor prosecution by law enforcement authorities, bankruptcy, or domestic\nrelations matters. In addition, clients or customers receiving medical\nor dental services, mental health services, residential real estate\nbrokering services, or insurance brokering services need not be\ndisclosed. Pending any application for deletion or exemption to the\ncommission relating to the filing of a financial disclosure statement,\nall information which is the subject or part of the application shall\nremain confidential. Upon an adverse determination by the commission,\nthe reporting individual may request, and upon such request the\ncommission shall provide, that any information that is the subject or\npart of the application remain confidential for a period of thirty days\nfollowing notice of such determination. In the event that the reporting\nindividual resigns their office and holds no other office subject to the\njurisdiction of the commission, the information shall not be made public\nand shall be expunged in its entirety.\n (k) The commission shall permit any person who has not been determined\nby the person's appointing authority to hold a policy-making position,\nbut who is otherwise required to file a financial disclosure statement\nto request an exemption from such requirement in accordance with rules\nand regulations governing such exemptions. Such rules and regulations\nshall provide for exemptions to be granted either on the application of\nan individual or on behalf of persons who share the same job title or\nemployment classification which the commission deems to be comparable\nfor purposes of this section. Such rules and regulations may permit the\ngranting of an exemption where, in the discretion of the commission, the\npublic interest does not require disclosure and the applicant's duties\ndo not involve the negotiation, authorization or approval of:\n (i) contracts, leases, franchises, revocable consents, concessions,\nvariances, special permits, or licenses as such terms are defined in\nsection seventy-three of the public officers law;\n (ii) the purchase, sale, rental or lease of real property, goods or\nservices, or a contract therefor;\n (iii) the obtaining of grants of money or loans; or\n (iv) the adoption or repeal of any rule or regulation having the force\nand effect of law.\n 10. Investigation and enforcement. (a) The commission shall receive\ncomplaints and referrals alleging violations of section seventy-three,\nseventy-three-a or seventy-four of the public officers law, article\none-A and section five-b of the legislative law, or section one hundred\nseven of the civil service law.\n (b) Upon the receipt of a complaint, referral, or the commencement of\nan investigation, members of the commission shall disclose to the\ncommission any personal, professional, financial, or other direct or\nindirect relationships a member of the commission may have with a\ncomplainant or respondent. If any commissioner determines a conflict of\ninterest may exist, the commissioner shall, in writing, notify the other\nmembers of the commission setting forth the possible conflict of\ninterest. The commissioner may recuse themself from all subsequent\ninvolvement in the consideration and determination of the matter. If,\nafter the disclosure, the commissioner does not recuse themself from the\nmatter, the commission, by a majority vote finding that the disclosed\ninformation creates a substantial conflict of interest, shall remove the\nconflicted commissioner from all subsequent involvement in the\nconsideration and determination of the matter, provided the reason for\nthe decision is clearly stated in the determination of the commission.\n (c) The commission shall conduct any investigation necessary to carry\nout the provisions of this section. Pursuant to this power and duty, the\ncommission may administer oaths or affirmations, subpoena witnesses,\ncompel their attendance and testimony, and require the production of any\nbooks or records which it may deem relevant or material. The commission\nmay, by a majority vote and pursuant to regulations adopted pursuant to\nthe state administrative procedure act, delegate to the executive\ndirector the authority to issue subpoenas, provided that the executive\ndirector first notify the chair of the commission.\n (d) The commission staff shall review and investigate, as appropriate,\nany information in the nature of a complaint or referral received by the\ncommission or initiated by the commission, including through its review\nof media reports and other information, where there is specific and\ncredible evidence that a violation of section seventy-three,\nseventy-three-a, or seventy-four of the public officers law, section one\nhundred seven of the civil service law or article one-A of the\nlegislative law by a person or entity subject to the jurisdiction of the\ncommission including members of the legislature and legislative\nemployees and candidates for members of the legislature.\n (e) The commission shall notify the complainant, if any, that the\ncommission has received their complaint.\n (f) If, following a preliminary review of any complaint or referral,\nthe commission or commission staff decides to elevate such preliminary\nreview into an investigation, written notice shall be provided to the\nrespondent setting forth, to the extent the commission is able to, the\npossible or alleged violation or violations of such law and a\ndescription of the allegations against the respondent and the evidence,\nif any, already gathered pertaining to such allegations, provided\nhowever that any information that may, in the judgment of the commission\nor staff, either be prejudicial to the complainant or compromise the\ninvestigation shall be redacted. The respondent shall have fifteen days\nfrom receipt of the written notice to provide any preliminary response\nor information the respondent determines may benefit the commission or\ncommission staff in its work. After the review and investigation, the\nstaff shall prepare a report to the commission setting forth the\nallegation or allegations made, the evidence gathered in the review and\ninvestigation tending to support and disprove, if any, the allegation or\nallegations, the relevant law, and a recommendation for the closing of\nthe matter as unfounded or unsubstantiated, for settlement, for\nguidance, or moving the matter to a confidential due process hearing.\nThe commission shall, by majority vote, return the matter to the staff\nfor further investigation or accept or reject the staff recommendation.\n (g) In an investigation involving a victim the commission shall ensure\nthat any interview of such victim is upon such victim's consent and that\nthe investigator or investigators interviewing such victim have adequate\ntrauma informed and victim centered investigative training. If a victim\nis requested to testify at a hearing, the commission shall provide\nsufficient notice to the victim of such request. Regardless of whether a\nvictim is requested to or testifies at a hearing, the victim shall be\ninformed as to how any statements made or information provided will be\nused in an investigation.\n (h) Upon the conclusion of an investigation, if the commission, after\nconsideration of a staff report, determines by majority vote that there\nis credible evidence of a violation of the laws under its jurisdiction,\nit shall provide the respondent timely notice for a due process hearing.\nThe commission shall also inform the respondent of its rules regarding\nthe conduct of adjudicatory proceedings and appeals and the other due\nprocess procedural mechanisms available to the respondent. If after a\nhearing the complaint is unsubstantiated or unfounded, the commission\nshall provide written notice to the respondent, complainant, if any, and\nvictim, if any, provided that such notice shall not include any\npersonally identifying information or information tending to identify\nany party involved in an investigation.\n (i) The hearing shall be conducted before an independent arbitrator.\nSuch hearing shall afford the respondent with a reasonable opportunity\nto appear in person, and by attorney, give sworn testimony, present\nevidence, and cross-examine witnesses.\n (j) The commission may, at any time, develop procedures and rules for\nresolution of de minimus or minor violations that can be resolved\noutside of the enforcement process, including the sending of a\nconfidential guidance or educational letter.\n (k) The jurisdiction of the commission when acting pursuant to this\nsection shall continue notwithstanding that a statewide elected official\nor a state officer or employee or member of the legislature or\nlegislative employee separates from state service, or a political party\nchair ceases to hold such office, or a candidate ceases to be a\ncandidate, or a lobbyist or client of a lobbyist ceases to act as such,\nprovided that the commission notifies such individual or entity of the\nalleged violation of law within two years from the individual's\nseparation from state service or termination of party service or\ncandidacy, or from the last report filed pursuant to article one-A of\nthe legislative law. Nothing in this section shall serve to limit the\njurisdiction of the commission in enforcement of subdivision eight of\nsection seventy-three of the public officers law.\n (l) If the commission's vote to proceed to a due process hearing after\nthe completion of an investigation does not carry, the commission shall\nprovide written notice of the decision to the respondent, complainant,\nif any, and victim, if any, provided that such notice shall not include\nany personally identifying information or information tending to\nidentify any party involved in an investigation.\n (m) If the commission determines a complaint or referral lacks\nspecific and credible evidence of a violation of the laws under its\njurisdiction, or a matter is closed due to the allegations being\nunsubstantiated prior to a vote by the commission, such records and all\nrelated material shall be exempt from public disclosure under article\nsix of the public officers law, except the commission's vote shall be\npublicly disclosed in accordance with articles six and seven of the\npublic officers law. The commission shall provide written notice of\nsuch closure to the respondent, complainant, if any, or victim, if any,\nprovided that such notice shall not include any personally identifying\ninformation or information tending to identify any party involved in an\ninvestigation.\n (n) (i) An individual subject to the jurisdiction of the commission\nwho knowingly and intentionally violates the provisions of subdivisions\ntwo through five-a, seven, eight, twelve or fourteen through seventeen\nof section seventy-three of the public officers law, section one hundred\nseven of the civil service law, or a reporting individual who knowingly\nand willfully fails to file an annual statement of financial disclosure\nor who knowingly and willfully with intent to deceive makes a false\nstatement or fraudulent omission or gives information which such\nindividual knows to be false on such statement of financial disclosure\nfiled pursuant to section seventy-three-a of the public officers law,\nshall be subject to a civil penalty in an amount not to exceed forty\nthousand dollars and the value of any gift, compensation or benefit\nreceived as a result of such violation.\n (ii) An individual who knowingly and intentionally violates the\nprovisions of paragraph a, b, c, d, e, g, or i of subdivision three of\nsection seventy-four of the public officers law, shall be subject to a\ncivil penalty in an amount not to exceed ten thousand dollars and the\nvalue of any gift, compensation or benefit received as a result of such\nviolation.\n (iii) An individual subject to the jurisdiction of the commission who\nknowingly and willfully violates article one-A of the legislative law\nshall be subject to civil penalty as provided for in that article.\n (iv) With respect to a potential violation of any criminal law where\nthe commission finds sufficient cause by a majority vote, it shall refer\nsuch matter to the appropriate law enforcement authority for further\ninvestigation.\n (v) In assessing the amount of the civil penalties to be imposed, the\ncommission shall consider the seriousness of the violation, the amount\nof gain to the individual and whether the individual previously had any\ncivil or criminal penalties imposed pursuant to this section, and any\nother factors the commission deems appropriate.\n (vi) A civil penalty for false filing shall not be imposed under this\nsubdivision in the event a category of "value" or "amount" reported\nhereunder is incorrect unless such reported information is falsely\nunderstated.\n (vii) Notwithstanding any other provision of law to the contrary, no\nother penalty, civil or criminal may be imposed for a failure to file,\nor for a false filing, of such statement, or a violation of subdivision\nsix of section seventy-three of the public officers law or section one\nhundred seven of the civil service law, except that the commission may\nrecommend that the individual in violation of such subdivision or\nsection be disciplined.\n (o) The commission shall be deemed to be an agency within the meaning\nof article three of the state administrative procedure act and shall\nadopt rules governing the conduct of adjudicatory proceedings and\nappeals taken pursuant to a proceeding commenced under article\nseventy-eight of the civil practice law and rules relating to the\nassessment of the civil penalties or the recommendation of employee\ndiscipline herein authorized. Such rule shall provide for due process\nprocedural mechanisms substantially similar to those set forth in\narticle three of the state administrative procedure act but such\nmechanisms need not be identical in terms or scope.\n (p) (i) The commission shall have jurisdiction to investigate, but\nshall have no jurisdiction to impose penalties or discipline upon\nmembers of or candidates for member of the legislature or legislative\nemployees for any violation of the public officers law or section one\nhundred seven of the civil service law. If, after investigation and a\ndue process hearing, the commission has found, by a majority vote, a\nsubstantial basis to conclude that a member of the legislature or a\nlegislative employee or candidate for member of the legislature has\nviolated any provisions of such laws, it shall prepare a written report\nof its findings and provide a copy of that report to the legislative\nethics commission, and to such individual in violation of such law. The\ncommission shall provide to the legislative ethics commission copies of\nthe full investigative file and hearing record.\n (ii) With respect to the investigation of any individual who is not a\nmember of the legislature or a legislative employee or candidate for\nmember of the legislature, if after its investigation and due process\nhearing, the commission has found, by a majority vote, a substantial\nbasis to conclude that the individual or entity has violated the public\nofficers law, section one hundred seven of the civil service law, or the\nlegislative law, the commission shall determine whether, in addition to\nor in lieu of any fine authorized by this article, the matter should be\nreferred to their employer for discipline with a warning, admonition,\ncensure, suspension or termination or other appropriate discipline. With\nregard to statewide elected officials, the commission may not order\nsuspension or termination but may recommend impeachment. The commission\nshall then issue a report containing its determinations including its\nfindings of fact and conclusions of law to the complainant and\nrespondent. The commission shall publish such report on its website\nwithin twenty days of its delivery to the complainant and respondent.\n 11. Confidentiality. (a) When an individual becomes a commissioner or\nstaff of the commission, such individual shall be required to sign a\nnon-disclosure statement.\n (b) Except as otherwise required or provided by law, or when necessary\nto inform the complainant or respondent of the alleged violation of law,\nif any, of the status of an investigation, testimony received, or any\nother information obtained by a commissioner or staff of the commission,\nshall not be disclosed by any such individual to any person or entity\noutside of the commission during the pendency of any matter. Any\nconfidential communication to any person or entity outside the\ncommission related to the matters before the commission shall occur only\nas authorized by the commission. For the purposes of this paragraph,\n"matter" shall mean any complaint, review, inquiry, or investigation\ninto alleged violations of this chapter.\n (c) The commission shall establish procedures necessary to prevent the\nunauthorized disclosure of any information received by any member of the\ncommission or staff of the commission. Any breaches of confidentiality\nmay be investigated by the New York state office of the inspector\ngeneral, attorney general, or other appropriate law enforcement\nauthority upon a majority vote of the commission to refer, and\nappropriate action shall be taken.\n (d) Any commission member or person employed by the commission who\nintentionally and without authorization releases confidential\ninformation received or generated by the commission shall be guilty of a\nclass A misdemeanor.\n 12. Annual report. (a) The commission shall make an annual public\nreport summarizing the activities of the commission during the previous\nyear and recommending any changes in the laws governing the conduct of\npersons subject to the jurisdiction of the commission, or the rules,\nregulations and procedures governing the commission's conduct. Such\nreport shall include, but is not limited to:\n (i) information on the number and type of complaints received by the\ncommission and the status of such complaints;\n (ii) information on the number of investigations pending and nature of\nsuch investigations;\n (iii) where a matter has been resolved, the date and nature of the\ndisposition and any sanction imposed; provided, however, that such\nannual report shall not contain any information for which disclosure is\nnot permitted pursuant to this section or other laws;\n (iv) information regarding financial disclosure compliance for the\npreceding year; and\n (v) information regarding lobbying law filing compliance for the\npreceding year.\n (b) Such a report shall be filed in the office of the governor and\nwith the legislature on or before the first day of April for the\npreceding year.\n 13. Website. (a) Within one hundred twenty days of the effective date\nof this section, the commission shall update JCOPE's publicly accessible\nwebsite which shall set forth the procedure for filing a complaint with\nthe commission, the filing of financial disclosure statements filed by\nstate officers or employees or legislative employees, the filing of\nstatements required by article one-A of the legislative law, and any\nother records or information which the commission determines to be\nappropriate.\n (b) The commission shall post on its website the following documents:\n (i) the information set forth in an annual statement of financial\ndisclosure filed pursuant to section seventy-three-a of the public\nofficers law except information deleted pursuant to paragraph (g) of\nsubdivision nine of this section of statewide elected officials and\nmembers of the legislature;\n (ii) notices of delinquency sent under subdivision nine of this\nsection;\n (iii) notices of civil assessments imposed under this section which\nshall include a description of the nature of the alleged wrongdoing, the\nprocedural history of the complaint, the findings and determinations\nmade by the commission, and any sanction imposed;\n (iv) the terms of any settlement or compromise of a complaint or\nreferral which includes a fine, penalty or other remedy;\n (v) those required to be held or maintained publicly available\npursuant to article one-A of the legislative law; and\n (vi) reports issued by the commission pursuant to this section.\n 14. Additional powers. In addition to any other powers and duties\nspecified by law, the commission shall have the power and duty to\nadminister and enforce all the provisions of this section.\n 15. Severability. If any part or provision of this section or the\napplication thereof to any person or organization is adjudged by a court\nof competent jurisdiction to be unconstitutional or otherwise invalid,\nsuch judgment shall not affect or impair any other part or provision or\nthe application thereof to any other person or organization, but shall\nbe confined in its operation to such part or provision.\n