N.Y. Election Law § 3-104: State board of elections; enforcement powers

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

1. (a) There shall be a unit known as the division of election law

enforcement established within the state board of elections. The head of

such unit shall be the chief enforcement counsel.

(b) The state board of elections shall have jurisdiction of, and be

responsible for, the execution and enforcement of the provisions of

article fourteen of this chapter and other statutes governing campaigns,

elections and related procedures; provided however that the chief

enforcement counsel shall have sole authority within the state board of

elections to investigate on his or her own initiative or upon complaint

alleged violations of such statutes and all complaints alleging

violations shall be forwarded to the division of election law

enforcement.

2. (a) Whenever a local board of elections shall determine, on its own

initiative or upon complaint, or otherwise, that there is substantial

reason to believe a violation of this chapter or any code or regulation

promulgated thereunder has been committed by a candidate or political

committee or other person or entity that files statements required by

article fourteen of this chapter solely with such local board, it shall

expeditiously make an investigation which shall also include

investigation of reports and statements made or failed to be made by the

complainant and any political committee supporting his candidacy if the

complainant is a candidate or, if the complaint was made by an officer

or member of a political committee, of reports and statements made or

failed to be made by such political committee and any candidates

supported by it. The local board shall report the results of its

investigation to the division of election law enforcement chief

enforcement counsel within ninety days of the start of such

investigation. The chief enforcement counsel may direct the local board

of elections at any time to suspend its investigation so that the

division of election law enforcement can investigate the matter.

(b) The chief enforcement counsel may request, and shall receive, the

assistance of the state police in any investigation it shall conduct.

3. Upon receipt of a complaint and supporting information alleging any

violation of this chapter, or upon his or her own initiative, the chief

enforcement counsel shall determine if an investigation should be

undertaken. The chief enforcement counsel shall, if necessary, obtain

additional information from the complainant or from other sources to

assist such counsel in making this determination. Such analysis shall

include the following: first, whether the allegations, if true, would

constitute a violation of this chapter and, second, whether the

allegations are supported by credible evidence. The chief enforcement

counsel may at any time ask that the board authorize him or her to

exercise the powers which the board is otherwise authorized to exercise

pursuant to subdivisions five and six of section 3-102 of this title.

The board shall vote on whether to grant or refuse to grant such

authority no later than twenty days after the chief enforcement counsel

makes such request. For purposes of considering and voting on such

request, the chief enforcement counsel shall be entitled to participate

in all matters related thereto and shall vote on the board's granting or

refusal to grant such request only when there is a tie. Should the board

not vote on such request within twenty days of its submission, or grant

the chief enforcement counsel's request, the chief enforcement counsel

shall be so empowered to act pursuant to subdivisions five and six of

section 3-102 of this title.

4. If the chief enforcement counsel determines that the allegations,

if true, would not constitute a violation of this chapter or that the

allegations are not supported by credible evidence, he or she shall

issue a letter forthwith to the complainant dismissing the complaint and

notice to the board.

5. (a) If, an individual has failed to cure pursuant to section

3-104-a of this title, or the chief enforcement counsel determines that

substantial reason exists to believe that a person, acting as or on

behalf of a candidate or political committee under circumstances

evincing an intent to violate such law that does not otherwise warrant

criminal prosecution, or has unlawfully violated any provision of this

chapter, the board shall assign a hearing officer, randomly from a list

of prospective hearing officers each of whom shall have been approved by

a majority vote of the board. The chief enforcement counsel shall

provide a written report to such hearing officer as to: (1) whether

substantial reason exists to believe a violation of this chapter has

occurred and, if so, the nature of the violation and any applicable

penalty, based on the nature of the violation; (2) whether the matter

should be resolved extra-judicially; and (3) whether a special

proceeding should be commenced in the supreme court to recover a civil

penalty. The hearing officer shall make findings of fact and conclusions

of law based on a preponderance of the evidence as to whether a

violation has been established and, if so, who is guilty of such

violation on notice to and with an opportunity for the individual or

entity accused of any violations to be heard. However, if the hearing

officer finds that on balance, the equities favor a dismissal of the

complaint, the hearing officer shall dismiss the charges. In determining

whether the equities favor a dismissal, the hearing officer shall

consider the following factors: (1) whether the complaint alleges a de

minimis violation of article fourteen of this chapter; (2) whether the

subject of the complaint has made a good faith effort to correct the

violation; and (3) whether the subject of the complaint has a history of

similar violations. For purposes of making any such findings under this

subdivision, proceedings before the hearing officer shall be governed by

article three of the state administrative procedure act. The chief

enforcement counsel shall adopt the report of the hearing officer and

may, in his or her discretion, commence a special proceeding in the

supreme court pursuant to sections 16-100, 16-114 and 16-116 of this

chapter should the findings of fact and conclusions of law support the

commencement of such proceeding or enter into an agreement to settle

such matter with the subject of the complaint. In the event the chief

enforcement counsel commences a special proceeding, the court shall

afford the subject of the compliant an opportunity to be heard and shall

be empowered to accept, reject or modify the findings of fact and

conclusions of law made by the hearing officer. If the board fails to

produce a list of eligible hearing officers, the chief enforcement

counsel may commence a special proceeding as provided herein in

accordance with recommendations made in his or her report.

(b) If the chief enforcement counsel determines that reasonable cause

exists to believe a violation warranting criminal prosecution has taken

place, the chief enforcement counsel shall present such findings to the

board. Within thirty days of such submission, the board shall vote on

whether to accept or reject such findings. For purposes of voting on

acceptance or rejection of findings by the chief enforcement counsel,

the chief enforcement counsel shall be entitled to participate in all

matters related to the review of his or her report and shall vote on its

acceptance or rejection only when there is a tie. Should the board fail

to vote to either accept or reject the findings within thirty days of

submission of such findings, or should the board accept the findings by

the chief enforcement counsel that there is reasonable cause to believe

that a violation warranting criminal prosecution has taken place, the

chief enforcement counsel shall, forthwith, and in any event no later

than seven calendar days of such failure to accept or reject the

findings by the board, refer such matter to the attorney general or

district attorney with jurisdiction over such matter to commence a

criminal action as such term is defined in the criminal procedure law.

6. Upon notification that a special proceeding has been commenced by a

party other than the state board of elections, pursuant to section

16-114 of this chapter, the chief enforcement counsel shall investigate

the alleged violations unless otherwise directed by the court.

7. The chief enforcement counsel shall prepare a report to be included

in the annual report of the board to the governor, the state board of

elections and legislature, summarizing the activities of the unit during

the previous year.

8. The state board of elections may promulgate rules and regulations

consistent with law to effectuate the provisions of this section.