§ 80 — Legislative ethics commission; functions, powers and duties; review of financial disclosure statements; advisory opinions; imposition of ...

§ 80. Legislative ethics commission; functions, powers and duties;\nreview of financial disclosure statements; advisory opinions; imposition\nof penalties or other enforcement actions. 1. There is established a\nlegislative ethics commission which shall consist of nine members. Four\nmembers shall be members of the legislature and shall be appointed as\nfollows: one by the temporary president of the senate, one by the\nspeaker of the assembly, one by the minority leader of the senate and\none by the minority leader of the assembly. The remaining five members\nshall not be present or former members of the legislature, candidates\nfor member of the legislature, employees of the legislature, political\nparty chairmen as defined in paragraph (k) of subdivision one of section\nseventy-three of the public officers law, or lobbyists, as defined in\nsection one-c of this chapter, or persons who have been employees of the\nlegislature, political party chairmen as defined in paragraph (k) of\nsubdivision one of section seventy-three of the public officers law, or\nlobbyists, as defined in section one-c of this chapter in the previous\nfive years, and shall be appointed as follows: one by the temporary\npresident of the senate, one by the speaker of the assembly, one by the\nminority leader of the senate, one by the minority leader of the\nassembly, and one jointly by the speaker of the assembly and majority\nleader of the senate. The commission shall serve as described in this\nsection and have and exercise the powers and duties set forth in this\nsection only with respect to members of the legislature, legislative\nemployees as defined in section seventy-three of the public officers\nlaw, candidates for member of the legislature and individuals who have\nformerly held such positions or who have formerly been such candidates.\n 2. Members of the legislature who serve on the commission shall each\nhave a two year term concurrent with their legislative terms of office.\nThe members of the commission who are not members of the legislature and\nwho are first appointed by the temporary president of the senate,\nspeaker of the assembly, minority leader of the senate, and minority\nleader of the assembly shall serve one, two, three and four year terms,\nrespectively. The member of the commission first appointed jointly by\nthe temporary president of the senate and speaker of the assembly shall\nserve a four year term. Each member of the commission who is not a\nmember of the legislature shall be appointed thereafter for a term of\nfour years.\n 3. The temporary president of the senate and the speaker of the\nassembly shall each designate one member of the commission as a\nco-chairperson thereof. The commission shall meet at least bi-monthly\nand at such additional times as may be called for by the co-chairpersons\njointly or any five members of the commission.\n 4. Any vacancy occurring on the commission shall be filled within\nthirty days by the appointing authority.\n 5. Five members of the commission shall constitute a quorum, and the\ncommission shall have power to act by majority vote of the total number\nof members of the commission without vacancy.\n 6. The members of the commission who are not members of the\nlegislature shall be reimbursed for reasonable expenses and receive a\nper diem allowance in the sum of three hundred dollars for each day\nspent in the performance of their official duties.\n 7. The commission shall:\n a. Appoint an executive director who shall act in accordance with the\npolicies of the commission, provided that the commission may remove the\nexecutive director for neglect of duty, misconduct in office, or\ninability or failure to discharge the powers or duties of office;\n b. Appoint such other staff as are necessary to assist it to carry out\nits duties under this section;\n c. Adopt, amend, and rescind policies, rules and regulations\nconsistent with this section to govern procedures of the commission\nwhich shall not be subject to the promulgation and hearing requirements\nof the state administrative procedure act;\n d. Administer the provisions of this section;\n e. Specify the procedures whereby a person who is required to file an\nannual financial disclosure statement with the commission may request an\nadditional period of time within which to file such statement, due to\njustifiable cause or undue hardship; such rules or regulations shall\nprovide for a date beyond which in all cases of justifiable cause or\nundue hardship no further extension of time will be granted;\n f. Promulgate guidelines to assist appointing authorities in\ndetermining which persons hold policy-making positions for purposes of\nsection seventy-three-a of the public officers law and may promulgate\nguidelines to assist firms, associations and corporations in separating\naffected persons from net revenues for purposes of subdivision ten of\nsection seventy-three of the public officers law, and promulgate\nguidelines to assist any firm, association or corporation in which any\npresent or former statewide elected official, state officer or employee,\nmember of the legislature or legislative employee, or political party\nchair is a member, associate, retired member, of counsel or shareholder,\nin complying with the provisions of subdivision ten of section\nseventy-three of the public officers law with respect to the separation\nof such present or former statewide elected official, state officer or\nemployee, member of the legislature or legislative employee, or\npolitical party chair from the net revenues of the firm, association or\ncorporation. Such firm, association or corporation shall not be required\nto adopt the procedures contained in the guidelines to establish\ncompliance with subdivision ten of section seventy-three of the public\nofficers law, but if such firm, association or corporation does adopt\nsuch procedures, it shall be deemed to be in compliance with such\nsubdivision ten;\n g. Make available forms for financial disclosure statements required\nto be filed pursuant to subdivision six of section seventy-three and\nsection seventy-three-a of the public officers law as provided by the\ncommission on ethics and lobbying in government;\n h. Review financial disclosure statements in accordance with the\nprovisions of this section, provided however, that the commission may\ndelegate all or part of the review function relating to financial\ndisclosure statements filed by legislative employees pursuant to\nsections seventy-three and seventy-three-a of the public officers law to\nthe executive director who shall be responsible for completing staff\nreview of such statements in a manner consistent with the terms of the\ncommission's delegation;\n i. Upon written request from any person who is subject to the\njurisdiction of the commission and the requirements of sections\nseventy-three, seventy-three-a and seventy-four of the public officers\nlaw, and section five-b of this chapter render formal advisory opinions\non the requirements of said provisions. A formal written opinion\nrendered by the commission, until and unless amended or revoked, shall\nbe binding on the legislative ethics commission in any subsequent\nproceeding concerning the person who requested the opinion and who acted\nin good faith, unless material facts were omitted or misstated by the\nperson in the request for an opinion. Such opinion may also be relied\nupon by such person, and may be introduced and shall be a defense in any\ncriminal or civil action. The commission on ethics and lobbying in\ngovernment shall not investigate an individual for potential violations\nof law based upon conduct approved and covered in its entirety by such\nan opinion, except that such opinion shall not prevent or preclude an\ninvestigation of and report to the legislative ethics commission\nconcerning the conduct of the person who obtained it by the commission\non ethics and lobbying in government for violations of section\nseventy-three, seventy-three-a or seventy-four of the public officers\nlaw and section 5-b of this chapter to determine whether the person\naccurately and fully represented to the legislative ethics commission\nthe facts relevant to the formal advisory opinion and whether the\nperson's conduct conformed to those factual representations. The\ncommission on ethics and lobbying in government shall be authorized and\nshall have jurisdiction to investigate potential violations of the law\narising from conduct outside of the scope of the terms of the advisory\nopinion; and\n j. Issue and publish generic advisory opinions covering questions\nfrequently posed to the commission, or questions common to a class or\ndefined category of persons, or that will tend to prevent undue\nrepetition of requests or undue complication, and which are intended to\nprovide general guidance and information to persons subject to the\ncommission's jurisdiction;\n k. Develop educational materials and training with regard to\nlegislative ethics for members of the legislature and legislative\nemployees including an online ethics orientation course for newly-hired\nemployees and, as requested by the senate or the assembly, materials and\ntraining in relation to a comprehensive ethics training program; and\n l. Prepare an annual report to the governor and legislature\nsummarizing the activities of the commission during the previous year\nand 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: (i) a listing by assigned number of each complaint\nand report received from the commission on ethics and lobbying in\ngovernment which alleged a possible violation within its jurisdiction,\nincluding the current status of each complaint, and (ii) where a matter\nhas been resolved, the date and nature of the disposition and any\nsanction imposed, subject to the confidentiality requirements of this\nsection. Such annual report shall not contain any information for which\ndisclosure is not permitted pursuant to subdivision twelve of this\nsection.\n 8. The jurisdiction of the commission to impose penalties when acting\npursuant to this section shall continue notwithstanding that a member of\nthe legislature or a legislative employee separates from state service,\nor a candidate for member of the legislature ceases to be a candidate,\nprovided that such individual has been notified of the alleged violation\nof law within one year from his or her separation from state service or\nthe termination of his or her candidacy.\n 9. (a) An individual subject to the jurisdiction of the commission\nwith respect to the imposition of penalties who knowingly and\nintentionally violates the provisions of subdivisions two through\nfive-a, seven, eight, twelve, fourteen or fifteen of section\nseventy-three of the public officers law or section five-b of this\nchapter or a reporting individual who knowingly and wilfully fails to\nfile an annual statement of financial disclosure or who knowingly and\nwilfully with intent to deceive makes a false statement or gives\ninformation which such individual knows to be false on such statement of\nfinancial disclosure filed pursuant to section seventy-three-a of the\npublic officers law shall be subject to a civil penalty in an amount not\nto exceed forty thousand dollars and the value of any gift, compensation\nor benefit received as a result of such violation. Any such individual\nwho knowingly and intentionally violates the provisions of paragraph a,\nb, c, d, e, g, or i of subdivision three of section seventy-four of the\npublic officers law shall be subject to a civil penalty in an amount not\nto exceed ten thousand dollars and the value of any gift, compensation\nor benefit received as a result of such violation. Assessment of a civil\npenalty hereunder shall be made by the commission with respect to\npersons subject to its jurisdiction. In assessing the amount of the\ncivil penalties to be imposed, the commission shall consider the\nseriousness of the violation, the amount of gain to the individual and\nwhether the individual previously had any civil or criminal penalties\nimposed pursuant to this section, and any other factors the commission\ndeems appropriate. For a violation of this section, other than for\nconduct which constitutes a violation of subdivision twelve, fourteen or\nfifteen of section seventy-three or section seventy-four of the public\nofficers law, the legislative ethics commission may, in lieu of or in\naddition to a civil penalty, refer a violation to the appropriate\nprosecutor and upon such conviction, but only after such referral, such\nviolation shall be punishable as a class A misdemeanor. Where the\ncommission finds sufficient cause, it shall refer such matter to the\nappropriate prosecutor. A civil penalty for false filing may not be\nimposed hereunder in the event a category of "value" or "amount"\nreported hereunder is incorrect unless such reported information is\nfalsely understated. Notwithstanding any other provision of law to the\ncontrary, no other penalty, civil or criminal may be imposed for a\nfailure to file, or for a false filing, of such statement, or a\nviolation of subdivision six of section seventy-three of the public\nofficers law, except that the appointing authority may impose\ndisciplinary action as otherwise provided by law. The legislative ethics\ncommission shall be deemed to be an agency within the meaning of article\nthree of the state administrative procedure act and shall adopt rules\ngoverning the conduct of adjudicatory proceedings and appeals taken\npursuant to a proceeding commenced under article seventy-eight of the\ncivil practice law and rules relating to the assessment of the civil\npenalties herein authorized. Such rules, which shall not be subject to\nthe promulgation and hearing requirements of the state administrative\nprocedure act, shall provide for due process procedural mechanisms\nsubstantially similar to those set forth in such article three but such\nmechanisms need not be identical in terms or scope. Assessment of a\ncivil penalty shall be final unless modified, suspended or vacated\nwithin thirty days of imposition, with respect to the assessment of such\npenalty, or unless such denial of request is reversed within such time\nperiod, and upon becoming final shall be subject to review at the\ninstance of the affected reporting individuals in a proceeding commenced\nagainst the legislative ethics commission, pursuant to article\nseventy-eight of the civil practice law and rules.\n (b) Not later than twenty calendar days after receipt from the\ncommission on ethics and lobbying in government of a written substantial\nbasis investigation report and any supporting documentation or other\nmaterials regarding a matter before the commission pursuant to section\nninety-four of the executive law, unless requested by a law enforcement\nagency to suspend the commission's action because of an ongoing criminal\ninvestigation, the legislative ethics commission shall make public such\nreport in its entirety; provided, however, that the commission may\nwithhold such information for not more than one additional period of the\nsame duration or refer the matter back to the commission on ethics and\nlobbying in government once for additional investigation, in which case\nthe legislative ethics commission shall, upon the termination of such\nadditional period or upon receipt of a new report by the commission on\nethics and lobbying in government after such additional investigation,\nmake public the written report and publish it on the commission's\nwebsite. If the legislative ethics commission fails to make public the\nwritten report received from the commission on ethics and lobbying in\ngovernment in accordance with this paragraph, the commission on ethics\nand lobbying in government shall release such report publicly promptly\nand in any event no later than ten days after the legislative ethics\ncommission is required to release such report. The legislative ethics\ncommission shall not refer the matter back to the commission on ethics\nand lobbying in government for additional investigation more than once.\nIf the commission refers the matter back to the commission on ethics and\nlobbying in government for additional fact-finding, the commission on\nethics and lobbying in government's original report shall remain\nconfidential.\n 10. Upon receipt of a written report from the commission on ethics and\nlobbying in government pursuant to subdivision fourteen-a of section\nseventy-three of the public officers law, the legislative ethics\ncommission shall commence its review of the matter addressed in such\nreport. No later than ninety days after receipt of such report, the\nlegislative ethics commission shall dispose of the matter by making one\nor more of the following determinations:\n a. whether the legislative ethics commission concurs with the\ncommission on ethics and lobbying in government's conclusions of law and\nthe reasons therefor;\n b. whether and which penalties have been assessed pursuant to\napplicable law or rule and the reasons therefor; and\n c. whether further actions have been taken by the commission to punish\nor deter the misconduct at issue and the reasons therefor.\n The commission's disposition shall be reported in writing and\npublished on its website no later than ten days after such disposition\nunless requested by a law enforcement agency to suspend the commission's\naction because of an ongoing criminal investigation.\n 11. If the commission has a reasonable basis to believe that any\nperson subject to the jurisdiction of another state oversight body may\nhave violated section seventy-three or seventy-four of the public\nofficers law, section one hundred seven of the civil service law, or\narticle one-A of this chapter, it shall refer such violation to such\noversight body unless the commission determines that such a referral\nwould compromise the prosecution or confidentiality of its proceedings\nand, if so, shall make such a referral as soon as practicable. The\nreferral by the commission shall include any information relating\nthereto coming into the custody or under the control of the commission\nat any time prior or subsequent to the time of the referral.\n 12. a. Notwithstanding the provisions of article six of the public\nofficers law, the only records of the commission which shall be\navailable for public inspection and copying are:\n (1) the terms of any settlement or compromise of a complaint or\nreferral or report which includes a fine, penalty or other remedy\nreached after the commission has received a report from the commission\non ethics and lobbying in government pursuant to section ninety-four of\nthe executive law;\n (2) generic advisory opinions;\n (3) all reports required by this section; and\n (4) all reports received from the commission on ethics and lobbying in\ngovernment pursuant to section ninety-four of the executive law and in\nconformance with paragraph (b) of subdivision nine of this section.\n b. Notwithstanding the provisions of article seven of the public\nofficers law, no meeting or proceeding of the commission shall be open\nto the public, except if expressly provided otherwise by this section or\nthe commission.\n 13. Within one hundred twenty days of the effective date of this\nsubdivision, the commission shall create and thereafter maintain a\npublicly accessible website which shall set forth the procedure for\nfiling a complaint with the commission on ethics and lobbying in\ngovernment, and which shall contain any other records or information\nwhich the commission determines to be appropriate.\n 14. This section shall not revoke or rescind any policies, rules,\nregulations or advisory opinions issued by the legislative ethics\ncommittee in effect upon the effective date of this subdivision, to the\nextent that such regulations or opinions are not inconsistent with any\nlaws of the state of New York. The legislative ethics commission shall\nundertake a comprehensive review of all such policies, rules,\nregulations or advisory opinions which will address the consistency of\nsuch policies, rules, regulations or advisory opinions with the laws of\nthe state of New York. The legislative ethics commission shall, before\nApril first, two thousand eight, report to the governor and legislature\nregarding such review and shall propose any regulatory changes and issue\nany advisory opinions necessitated by such review.\n 15. Separability clause. If any part or provision of this section or\nthe application thereof to any person is adjudged by a court of\ncompetent jurisdiction to be unconstitutional or otherwise invalid, such\njudgment shall not affect or impair any other part or provision or the\napplication thereof to any other person, but shall be confined to such\npart or provision.\n