N.Y. Executive Law § 94: Commission on ethics and lobbying in government

§ 94. Commission on ethics and lobbying in government. 1. (a)

Commission established. There is hereby established within the

department of state, a commission on ethics and lobbying in government,

an agency responsible for administering, enforcing, and interpreting New

York state's ethics and lobbying laws. The commission shall have and

exercise the powers and duties set forth in this section with respect to

statewide elected officials, members of the legislature and employees of

the legislature, and state officers and employees as defined in sections

seventy-three, seventy-three-a, and seventy-four of the public officers

law, candidates for statewide elected office and for the senate or

assembly, and the political party chair as is defined in section

seventy-three of the public officers law, lobbyists and the clients of

lobbyists as defined in section one-c of the legislative law, and

individuals who have formerly held such positions, were lobbyists or

clients of lobbyists as defined in section one-c of the legislative law,

or who have formerly been such candidates.

(b) The commission shall provide for the transfer, assumption or other

disposition of the records, property, and personnel affected by this

section, and it is further provided, should any employees be transferred

from the joint commission on public ethics ("JCOPE"), the predecessor

ethics agency, to the commission, that such transfer will be without

further examination or qualification and such employees shall retain

their respective civil service classifications, status and collective

bargaining agreements.

(c) The commission shall review any pending inquiries or matters

affected by this section and shall establish policies to address them.

(d) The commission shall undertake a comprehensive review of all

regulations in effect upon the effective date of this section; and

review of all advisory opinions of predecessor ethics agencies,

including JCOPE, the legislative ethics commission, the commission on

public integrity, the state ethics commission, and the temporary

lobbying commission, which will address the consistency of such

regulations and advisory opinions among each other and with the new

statutory language, and of the effectiveness of the existing laws,

regulations, guidance and ethics enforcement structure.

(e) This section shall not be deemed to have revoked or rescinded any

regulations or advisory opinions in effect on the effective date of this

section that were issued by predecessor ethics and lobbying bodies. The

commission shall cooperate, consult, and coordinate with the legislative

ethics commission, to the extent possible, to administer and enforce the

laws under its jurisdiction.

(f) The annual budget submitted by the governor shall separately state

the recommended appropriations for the commission on ethics and lobbying

in government. Upon enactment, these separately stated appropriations

for the commission on ethics and lobbying in government shall not be

decreased by interchange with any other appropriation, notwithstanding

section fifty-one of the state finance law.

2. Definitions. For the purposes of this section, the following terms

shall have the following meanings:

(a) "commission" means the commission on ethics and lobbying in

government established pursuant to subdivision one of this section.

(b) "selection members" means the governor, speaker of the assembly,

temporary president of the senate, minority leader of the senate,

minority leader of the assembly, comptroller, and the attorney general.

(c) "independent review committee" means the committee of the American

Bar Association accredited New York state law school deans or interim

deans, or their designee who is an associate dean of their respective

law school, tasked with reviewing, approving, or denying the members of

the commission as nominated by the selection members and other tasks

pursuant to this section.

(d) "respondent" means the individual or individuals or organization

or organizations subject to an inquiry, investigation, or enforcement

action.

(e) "victim" means any individual that has suffered or alleged to have

suffered direct harm from any violation of law that is subject to

investigation under the jurisdiction of the commission.

3. Nomination and appointment of the commission. (a) The commission

shall consist of eleven members, to be nominated by the selection

members as follows: three members by the governor; two members by the

temporary president of the senate; one member by the minority leader of

the senate; two members by the speaker of the assembly; one member by

the minority leader of the assembly; one member by the attorney general;

and one member by the comptroller.

(b) The independent review committee shall within thirty days review

the qualifications of the nominated candidates and approve or deny each

candidate nominated by their respective selection member.

(c) The independent review committee shall publish on its website a

procedure by which it will review the qualifications of the nominated

candidate and approve or deny each candidate.

(d) Those candidates that the independent review committee deems to

meet the qualifications necessary for the services required based on

their background and expertise that relate to the candidate's potential

service on the commission shall be appointed as a commission member. The

nominating selection member shall nominate a new candidate for those

that are denied by the independent review committee.

(e) No individual shall be eligible for nomination and appointment as

a member of the commission who is currently, or has within the last two

years:

(i) been registered as a lobbyist in New York state;

(ii) been a member or employee of the New York state legislature, a

statewide elected official, or a commissioner of an executive agency

appointed by the governor;

(iii) been a political party chair, as defined in section

seventy-three of the public officers law; or

(iv) been a state officer or employee as defined in section

seventy-three of the public officers law.

(f) The independent review committee shall convene as needed or as

requested by the selection members. The chair of the independent review

committee shall be elected from the members of the independent review

committee.

(g) Appropriate staffing and other resources shall be provided for in

the commission's budget for the independent review committee to carry

out its powers, functions, and duties. The independent review committee

shall publish on the commission's website a procedure by which it will

review and select the commission members and other processes to

effectuate its responsibilities under this section.

(h) The majority of the independent review committee shall constitute

a quorum to hold a meeting and conduct official business.

(i) During the pendency of the review and approval or denial of the

candidates, the independent review committee shall be subject to and

maintain confidentiality in all independent review committee processes,

reviews, analyses, approvals, and denials. A member of the independent

review committee may be removed by majority vote of the committee for

substantial neglect of duty, misconduct, violation of the

confidentiality restrictions set forth in this section, inability to

discharge the powers or duties of the committee or violation of this

section, after written notice and opportunity for a reply.

(j) Upon the receipt of the selection members' appointments, members

of the independent review committee shall disclose to the independent

review committee any personal, professional, financial, or other direct

or indirect relationships a member of the independent review committee

may have with an appointee. If the independent review committee

determines a conflict of interest exists, such independent review

committee member shall, in writing, notify the other members of the

independent review committee of the possible conflict. The member may

recuse themself from all subsequent involvement in the consideration of

and action upon the appointment. If, after disclosure, the member does

not recuse themself from the matter, the independent review committee,

by majority vote finding the disclosed information creates a substantial

conflict of interest, may remove the conflicted member from further

consideration of and action upon the appointment.

(k) Notwithstanding the provisions of article seven of the public

officers law, no meeting or proceeding of the independent review

committee shall be open to the public, except the applicable records

pertaining to the review and selection process for a member's seat shall

be subject to disclosure pursuant to article six of the public officers

law only after an individual member is appointed to the commission.

Requests for such records shall be made to, and processed by, the

commission's records access officer.

(l) The independent review committee shall neither be public officers

nor be subject to the requirements of the public officers law.

(m) Notwithstanding subdivision (l) of this section, the independent

review committee members shall be entitled to representation,

indemnification, and to be held harmless to the same extent as any other

person employed in service of the state and entitled to such coverage

under sections seventeen and nineteen of the public officers law,

provided however, that any independent review committee member removed

due to a violation of paragraph (i) of this subdivision shall not

qualify for such entitlements.

4. Commission. (a) The first class of members of the commission shall

serve staggered terms to ensure continuity. For the first class of the

commission, the governor's first appointee shall serve an initial term

of four years, their second appointee shall serve an initial term of two

years, and their third appointee shall serve an initial term of one

year; the attorney general's appointee shall serve an initial term of

four years; the comptroller's appointee shall serve an initial term of

four years; the temporary president of the senate's first appointee

shall serve an initial term of four years and their second appointee

shall serve a term of two years; the minority leader of the senate's

appointee shall serve an initial term of four years; the speaker of the

assembly's first appointee shall serve initial terms of four years and

their second appointee shall serve a term of two years; and the minority

leader of the assembly's appointee shall serve a term of four years. All

subsequent members shall serve a term of four years. No member shall be

selected to the commission for more than two full consecutive terms,

except that a member who has held the position by filling a vacancy can

only be selected to the commission for an additional two full

consecutive terms.

(b) The commission by majority vote shall elect a chairperson from

among its members for a term of two years. A chairperson may be elected

to no more than two terms for such office.

(c) Members of the commission may be removed by majority vote of the

commission for substantial neglect of duty, misconduct in office,

violation of the confidentiality restrictions set forth in this section,

inability to discharge the powers or duties of office or violation of

this section, after written notice and opportunity for a reply.

(d) Any vacancy occurring on the commission shall be filled within

thirty days of its occurrence in the same manner as a member is

initially selected to complete the vacant term.

(e) During the period of a member's service as a member of the

commission, the member shall refrain from making, or soliciting from

other persons, any contributions to candidates, political action

committees, political parties or committees, newsletter funds, or

political advertisements for election to the offices of governor,

lieutenant governor, member of the assembly or the senate, attorney

general or state comptroller.

(f) Members of the commission shall receive a per diem allowance equal

to the salary of a justice of the supreme court divided by two hundred

twenty for each day or each pro-rated day actually spent in the

performance of the member's duties under this section, and, in addition

thereto, shall be reimbursed for all reasonable expenses actually and

necessarily incurred by the member in the performance of the member's

duties under this section. For the purposes of this subdivision, a day

shall consist of at least seven and one-half hours spent in the

performance of the member's duties under this section.

(g) The commission shall meet at least quarterly and additionally as

called by the chairperson, or upon the call of a majority of the members

of the commission. The commission shall be subject to articles six and

seven of the public officers law.

(h) A majority of the members of the commission shall constitute a

quorum, and the commission shall have the power to act by majority vote

of the total number of members of the commission without vacancy.

(i) The commission shall hold a public hearing at least once each

calendar year to take testimony regarding the operation of the

commission and solicit public input regarding potential or proposed

changes in the laws under its jurisdiction.

5. Powers. (a) The commission has the authority to: (i) adopt, amend,

and rescind any rules and regulations pertaining to section

seventy-three, seventy-three-a or seventy-four of the public officers

law, article one-A of the legislative law, or section one hundred seven

of the civil service law; (ii) adopt, amend, and rescind any procedures

of the commission, including but not limited to, procedures for advice

and guidance, training, filing, review, and enforcement of financial

disclosure statements, investigations, enforcement, and due process

hearings; and (iii) develop and promulgate any programs for reviews,

training, and guidance to carry out the commission's mission.

(b) The commission shall adopt and post on its website guidance

documents detailing the processes and procedures of an investigation,

including the stages of an investigation; timelines, including the

reasons for any potential delays in an investigation; the hearing and

adjudication process; outcomes of an investigation; and, anything else

the commission deems necessary to inform the public as well as relevant

parties to an investigation including complainants, respondents,

victims, if any, and witnesses as to such processes and procedures. The

guidance documents shall delineate the processes and procedures that

apply to the relevant parties, including, where applicable, the due

process and any other rights or remedies that the relevant party may

have under the commission's procedures or any other area of law. The

guidance documents shall be provided to the relevant party of an

investigation upon such party's involvement in such investigation.

(c) The commission has the authority to compel the testimony of

witnesses, and may administer oaths or affirmations, subpoena witnesses,

compel their attendance and require the production of any books or

records which it may deem relevant or material.

6. Executive director and commission staff. The commission shall:

(a) (i) Appoint an executive director through a majority vote of the

members of the commission, who shall act in accordance with the policies

of the commission. The executive director shall be appointed without

regard to political affiliation and solely on the basis of fitness to

perform the duties assigned by this section, and meet the qualifications

necessary for the services required based on their background and

expertise that relate to the candidate's potential service to the

commission. No individual shall be eligible to be appointed as an

executive director if the individual is currently, or within the last

two years has been:

(1) registered as a lobbyist in New York state;

(2) a member or employee of the New York state legislature or a

statewide elected official, or a commissioner of an executive agency

appointed by the governor; or

(3) a political party chair, as defined in section seventy-three of

the public officers law.

(ii) The appointment and removal of the executive director shall be

made by a majority vote of the commission.

(iii) The term of office of the executive director shall be four years

from the date of appointment. The salary of the executive director shall

be determined by the members of the commission based on experience.

(iv) The commission may remove the executive director for neglect of

duty, misconduct in office, violation of the confidentiality

restrictions in this section, or inability or failure to discharge the

powers or duties of office, including the failure to follow the lawful

instructions of the commission.

(b) The commission may delegate authority to the executive director to

act in the name of the commission between meetings of the commission

provided such delegation is in writing, the specific powers to be

delegated are enumerated, and the commission shall not delegate any

decisions specified in this section that require a vote of the

commission.

(c) The commission, through the executive director, shall establish

units within the commission to carry out it duties, including, but not

limited to, (i) an advice and guidance unit, (ii) a training unit, (iii)

a financial disclosure unit, (iv) a lobbying unit, and (v) an

investigations and enforcement unit.

(d) The commission, through the executive director, shall appoint such

other staff as are necessary to carry out its duties under this section,

including, but not limited to, a deputy director of an advice and

guidance unit to provide timely confidential advice to persons subject

to the commission's jurisdiction, a deputy director for training, a

deputy director for investigations and enforcement, and a deputy

director for lobbying.

(e) In addition to meeting the qualifications necessary for the

services required for the position, the deputy director for

investigations and enforcement shall have completed substantial training

and have experience in trauma-informed approaches to investigations and

enforcement. The deputy director for investigations and enforcement

shall complete a minimum of four hours of training annually in

trauma-informed approaches to investigations and enforcement. Such

trainings may include, but not be limited to, the impact of trauma,

first impression matters, victim interviews, investigative strategies,

and alcohol and drug facilitated cases.

(f) The commission, through the executive director, shall review and

approve a staffing plan provided and prepared by the executive director

which shall contain, at a minimum, a list of the various units and

divisions as well as the number of positions in each unit, titles and

their duties, and salaries, as well as the various qualifications for

each position.

7. Advice and guidance. (a) The commission shall establish a unit or

units solely for ethics and lobbying guidance, and give such prompt,

informal advice to persons whose conduct it oversees, except with

respect to members of the legislature and legislative staff, who shall

seek advice from the legislative ethics commission in the first

instance.

(b) Persons receiving such informal advice may rely on that advice

absent misrepresentation or omission of material facts to the commission

and such communications with the commission shall be treated as

confidential, except as disclosure is needed to prevent or rectify a

crime or fraud, or prevent a substantial threat to public health or

safety or if required by court order.

(c) The commission may also render, on written request or on its own

initiative, advisory opinions, and may allow for public comment before

issuance of an advisory opinion. Such an opinion rendered by the

commission shall be relied on by those subject to the commission's

jurisdiction and until, or unless, amended, superseded, or revoked. Such

opinion may also be relied upon by any such person, and may be

introduced and shall be a defense, in any criminal or civil action.

8. Training. The commission shall establish a training unit and shall

develop and administer an on-going program for the education and

training in ethics and lobbying for those subject to the provisions of

this section, as follows:

(a) The commission shall develop and administer a comprehensive and

interactive live-in person or live-online ethics training course and

shall designate and train instructors to conduct such training. Such

live course shall be designed to include practical application of the

material covered and a question-and-answer participatory segment. Unless

the commission grants an extension or waiver for good cause shown,

statewide elected officials, members of the legislature and employees of

the legislature, and state officers and employees as defined in sections

seventy-three, seventy-three-a, and seventy-four of the public officers

law, and the political party chair as is defined in section

seventy-three of the public officers law, shall complete the live course

within ninety days of appointment or employment and shall complete the

live course every two years subsequently.

(b) The commission shall develop and administer an online ethics

refresher course for all individuals listed under subparagraph (i) of

this paragraph who have previously completed the live course. Such

refresher course shall be designed to include any changes in law,

regulation, or policy or in the interpretation thereof, and practical

application of the material covered. Unless the commission grants an

extension or waiver for good cause shown, such individuals shall take

such refresher course once every year after having completed the live

course under paragraph (a) of this subdivision.

(c) The commission shall develop and administer an online live

question and answer course for agency ethics officers.

(d) The commission shall develop and administer training courses for

lobbyists and clients of lobbyists and adopt regulations and procedures

related to such training courses including, but not limited to,

establishing deadlines for training course completion.

(d-1) The commission may impose a fee upon lobbyists and clients of

lobbyists for late completion of the training course required by this

subdivision, as set forth in section one-d of the legislative law.

(e) The provisions of this subdivision shall be applicable to the

legislature except to the extent that an ethics training program is

otherwise established by the assembly and/or senate for their respective

members and employees and such program meets or exceeds each of the

requirements set forth in this subdivision.

(f) On an annual basis, the commission, in coordination with the

legislative ethics commission, shall determine the status of compliance

with the training requirements under this subdivision by each state

agency and by the senate and the assembly. Such determination shall

include aggregate statistics regarding participation in such training

and shall be reported on a quarterly basis to the governor and the

legislature in writing.

9. Financial disclosure statements. (a) The commission may delegate

all or part of review, inquiry and advice in this section to the staff

under the supervision of the executive director.

(b) The commission shall make available forms for annual statements of

financial disclosure required to be filed pursuant to section

seventy-three-a of the public officers law.

(c) The commission shall review the financial disclosure statements of

the statewide elected officials and members of the legislature within

sixty days of their filings to determine, among other things,

deficiencies and conflicts.

(d) The commission shall review on a random basis the financial

disclosure statements for filers who are not statewide elected officials

and members of the legislature.

(e) The commission shall review financial disclosure statements filed

in accordance with the provisions of this section and (i) inquire into

any disclosed conflict to recommend how best to address such conflict;

and

(ii) ascertain whether any person subject to the reporting

requirements of section seventy-three-a of the public officers law has

failed to file such a statement, has filed a deficient statement or has

filed a statement which reveals a possible violation of section

seventy-three, seventy-three-a or seventy-four of the public officers

law.

(f) If a person required to file a financial disclosure statement with

the commission has failed to file a disclosure statement or has filed a

deficient statement, the commission shall notify the reporting person in

writing, state the failure to file or detail the deficiency, provide the

person with a fifteen-day period to cure the deficiency, and advise the

person of the penalties for failure to comply with the reporting

requirements. This first notice of deficiency shall be confidential. If

the person fails to make such filing or fails to cure the deficiency

within the specified time period, the commission shall send a notice of

delinquency (i) to the reporting person; (ii) in the case of a statewide

elected official, to the chief of staff or counsel to the statewide

elected official; (iii) in the case of a member of the legislature or a

legislative employee, to the temporary president of the senate and the

speaker of the assembly; and (iv) in the case of a state officer,

employee or board member, to the appointing authority for such person.

Such notice of delinquency may be sent at any time during the reporting

person's service as a statewide elected official, state officer or

employee, member of the assembly or the senate, or a legislative

employee or a political party chair or while a candidate for statewide

office, or within one year after termination of such service or

candidacy. A copy of any notice of delinquency or report shall be

included in the reporting person's file and be available for public

inspection and copying pursuant to the provisions of this section. The

jurisdiction of the commission, when acting pursuant to this subdivision

with respect to financial disclosure, shall continue for two years

notwithstanding that the reporting person separates from state service,

or ceases to hold public or political party office, or ceases to be a

candidate, provided the commission notifies such person of the alleged

failure to file or deficient filing pursuant to this subdivision.

(g) The commission shall adopt a procedure whereby a person who is

required to file an annual financial disclosure statement with the

commission may request an additional period of time within which to file

such statement, other than members of the legislature, candidates for

members of the legislature and legislative employees, due to justifiable

cause or undue hardship.

(h) The commission may permit any person who is required to file a

financial disclosure statement with the commission to request that the

commission delete from the copy thereof made available for public

inspection and copying one or more items of information which may be

deleted by the commission upon a finding by the commission that the

information which would otherwise be required to be made available for

public inspection and copying will have no material bearing on the

discharge of the reporting person's official duties. If such request for

deletion is denied, the commission, in its notification of denial, shall

inform the person of their right to appeal the commission's

determination in a proceeding commenced against the commission, pursuant

to article seventy-eight of the civil practice law and rules.

(i) The commission may permit any person who is required to file a

financial disclosure statement with the commission to request an

exemption from any requirement to report one or more items of

information which pertain to such person's spouse, domestic partner, or

unemancipated children which item or items may be exempted by the

commission upon a finding by the commission that the reporting

individual's spouse, domestic partner, on their own behalf, or on behalf

of an unemancipated child, objects to providing the information

necessary to make such disclosure and that the information which would

otherwise be required to be reported shall have no material bearing on

the discharge of the reporting person's official duties. If such request

for exemption is denied, the commission, in its notification of denial,

shall inform the person of their right to appeal the commission's

determination, pursuant to article seventy-eight of the civil practice

law and rules.

(j) The commission may permit any person required to file a financial

disclosure statement to request an exemption from any requirement to

report the identity of a client pursuant to the question under

subparagraph (b) of paragraph eight of subdivision three of section

seventy-three-a of the public officers law in such statement based upon

an exemption set forth in such question. The reporting individual need

not seek an exemption to refrain from disclosing the identity of any

client with respect to any matter where they or their firm provided

legal representation to the client in connection with an investigation

or prosecution by law enforcement authorities, bankruptcy, or domestic

relations matters. In addition, clients or customers receiving medical

or dental services, mental health services, residential real estate

brokering services, or insurance brokering services need not be

disclosed. Pending any application for deletion or exemption to the

commission relating to the filing of a financial disclosure statement,

all information which is the subject or part of the application shall

remain confidential. Upon an adverse determination by the commission,

the reporting individual may request, and upon such request the

commission shall provide, that any information that is the subject or

part of the application remain confidential for a period of thirty days

following notice of such determination. In the event that the reporting

individual resigns their office and holds no other office subject to the

jurisdiction of the commission, the information shall not be made public

and shall be expunged in its entirety.

(k) The commission shall permit any person who has not been determined

by the person's appointing authority to hold a policy-making position,

but who is otherwise required to file a financial disclosure statement

to request an exemption from such requirement in accordance with rules

and regulations governing such exemptions. Such rules and regulations

shall provide for exemptions to be granted either on the application of

an individual or on behalf of persons who share the same job title or

employment classification which the commission deems to be comparable

for purposes of this section. Such rules and regulations may permit the

granting of an exemption where, in the discretion of the commission, the

public interest does not require disclosure and the applicant's duties

do not involve the negotiation, authorization or approval of:

(i) contracts, leases, franchises, revocable consents, concessions,

variances, special permits, or licenses as such terms are defined in

section seventy-three of the public officers law;

(ii) the purchase, sale, rental or lease of real property, goods or

services, or a contract therefor;

(iii) the obtaining of grants of money or loans; or

(iv) the adoption or repeal of any rule or regulation having the force

and effect of law.

10. Investigation and enforcement. (a) The commission shall receive

complaints and referrals alleging violations of section seventy-three,

seventy-three-a or seventy-four of the public officers law, article

one-A and section five-b of the legislative law, or section one hundred

seven of the civil service law.

(b) Upon the receipt of a complaint, referral, or the commencement of

an investigation, members of the commission shall disclose to the

commission any personal, professional, financial, or other direct or

indirect relationships a member of the commission may have with a

complainant or respondent. If any commissioner determines a conflict of

interest may exist, the commissioner shall, in writing, notify the other

members of the commission setting forth the possible conflict of

interest. The commissioner may recuse themself from all subsequent

involvement in the consideration and determination of the matter. If,

after the disclosure, the commissioner does not recuse themself from the

matter, the commission, by a majority vote finding that the disclosed

information creates a substantial conflict of interest, shall remove the

conflicted commissioner from all subsequent involvement in the

consideration and determination of the matter, provided the reason for

the decision is clearly stated in the determination of the commission.

(c) The commission shall conduct any investigation necessary to carry

out the provisions of this section. Pursuant to this power and duty, the

commission may administer oaths or affirmations, subpoena witnesses,

compel their attendance and testimony, and require the production of any

books or records which it may deem relevant or material. The commission

may, by a majority vote and pursuant to regulations adopted pursuant to

the state administrative procedure act, delegate to the executive

director the authority to issue subpoenas, provided that the executive

director first notify the chair of the commission.

(d) The commission staff shall review and investigate, as appropriate,

any information in the nature of a complaint or referral received by the

commission or initiated by the commission, including through its review

of media reports and other information, where there is specific and

credible evidence that a violation of section seventy-three,

seventy-three-a, or seventy-four of the public officers law, section one

hundred seven of the civil service law or article one-A of the

legislative law by a person or entity subject to the jurisdiction of the

commission including members of the legislature and legislative

employees and candidates for members of the legislature.

(e) The commission shall notify the complainant, if any, that the

commission has received their complaint.

(f) If, following a preliminary review of any complaint or referral,

the commission or commission staff decides to elevate such preliminary

review into an investigation, written notice shall be provided to the

respondent setting forth, to the extent the commission is able to, the

possible or alleged violation or violations of such law and a

description of the allegations against the respondent and the evidence,

if any, already gathered pertaining to such allegations, provided

however that any information that may, in the judgment of the commission

or staff, either be prejudicial to the complainant or compromise the

investigation shall be redacted. The respondent shall have fifteen days

from receipt of the written notice to provide any preliminary response

or information the respondent determines may benefit the commission or

commission staff in its work. After the review and investigation, the

staff shall prepare a report to the commission setting forth the

allegation or allegations made, the evidence gathered in the review and

investigation tending to support and disprove, if any, the allegation or

allegations, the relevant law, and a recommendation for the closing of

the matter as unfounded or unsubstantiated, for settlement, for

guidance, or moving the matter to a confidential due process hearing.

The commission shall, by majority vote, return the matter to the staff

for further investigation or accept or reject the staff recommendation.

(g) In an investigation involving a victim the commission shall ensure

that any interview of such victim is upon such victim's consent and that

the investigator or investigators interviewing such victim have adequate

trauma informed and victim centered investigative training. If a victim

is requested to testify at a hearing, the commission shall provide

sufficient notice to the victim of such request. Regardless of whether a

victim is requested to or testifies at a hearing, the victim shall be

informed as to how any statements made or information provided will be

used in an investigation.

(h) Upon the conclusion of an investigation, if the commission, after

consideration of a staff report, determines by majority vote that there

is credible evidence of a violation of the laws under its jurisdiction,

it shall provide the respondent timely notice for a due process hearing.

The commission shall also inform the respondent of its rules regarding

the conduct of adjudicatory proceedings and appeals and the other due

process procedural mechanisms available to the respondent. If after a

hearing the complaint is unsubstantiated or unfounded, the commission

shall provide written notice to the respondent, complainant, if any, and

victim, if any, provided that such notice shall not include any

personally identifying information or information tending to identify

any party involved in an investigation.

(i) The hearing shall be conducted before an independent arbitrator.

Such hearing shall afford the respondent with a reasonable opportunity

to appear in person, and by attorney, give sworn testimony, present

evidence, and cross-examine witnesses.

(j) The commission may, at any time, develop procedures and rules for

resolution of de minimus or minor violations that can be resolved

outside of the enforcement process, including the sending of a

confidential guidance or educational letter.

(k) The jurisdiction of the commission when acting pursuant to this

section shall continue notwithstanding that a statewide elected official

or a state officer or employee or member of the legislature or

legislative employee separates from state service, or a political party

chair ceases to hold such office, or a candidate ceases to be a

candidate, or a lobbyist or client of a lobbyist ceases to act as such,

provided that the commission notifies such individual or entity of the

alleged violation of law within two years from the individual's

separation from state service or termination of party service or

candidacy, or from the last report filed pursuant to article one-A of

the legislative law. Nothing in this section shall serve to limit the

jurisdiction of the commission in enforcement of subdivision eight of

section seventy-three of the public officers law.

(l) If the commission's vote to proceed to a due process hearing after

the completion of an investigation does not carry, the commission shall

provide written notice of the decision to the respondent, complainant,

if any, and victim, if any, provided that such notice shall not include

any personally identifying information or information tending to

identify any party involved in an investigation.

(m) If the commission determines a complaint or referral lacks

specific and credible evidence of a violation of the laws under its

jurisdiction, or a matter is closed due to the allegations being

unsubstantiated prior to a vote by the commission, such records and all

related material shall be exempt from public disclosure under article

six of the public officers law, except the commission's vote shall be

publicly disclosed in accordance with articles six and seven of the

public officers law. The commission shall provide written notice of

such closure to the respondent, complainant, if any, or victim, if any,

provided that such notice shall not include any personally identifying

information or information tending to identify any party involved in an

investigation.

(n) (i) An individual subject to the jurisdiction of the commission

who knowingly and intentionally violates the provisions of subdivisions

two through five-a, seven, eight, twelve or fourteen through seventeen

of section seventy-three of the public officers law, section one hundred

seven of the civil service law, or a reporting individual who knowingly

and willfully fails to file an annual statement of financial disclosure

or who knowingly and willfully with intent to deceive makes a false

statement or fraudulent omission or gives information which such

individual knows to be false on such statement of financial disclosure

filed pursuant to section seventy-three-a of the public officers law,

shall be subject to a civil penalty in an amount not to exceed forty

thousand dollars and the value of any gift, compensation or benefit

received as a result of such violation.

(ii) An individual who knowingly and intentionally violates the

provisions of paragraph a, b, c, d, e, g, or i of subdivision three of

section seventy-four of the public officers law, shall be subject to a

civil penalty in an amount not to exceed ten thousand dollars and the

value of any gift, compensation or benefit received as a result of such

violation.

(iii) An individual subject to the jurisdiction of the commission who

knowingly and willfully violates article one-A of the legislative law

shall be subject to civil penalty as provided for in that article.

(iv) With respect to a potential violation of any criminal law where

the commission finds sufficient cause by a majority vote, it shall refer

such matter to the appropriate law enforcement authority for further

investigation.

(v) In assessing the amount of the civil penalties to be imposed, the

commission shall consider the seriousness of the violation, the amount

of gain to the individual and whether the individual previously had any

civil or criminal penalties imposed pursuant to this section, and any

other factors the commission deems appropriate.

(vi) A civil penalty for false filing shall not be imposed under this

subdivision in the event a category of "value" or "amount" reported

hereunder is incorrect unless such reported information is falsely

understated.

(vii) Notwithstanding any other provision of law to the contrary, no

other penalty, civil or criminal may be imposed for a failure to file,

or for a false filing, of such statement, or a violation of subdivision

six of section seventy-three of the public officers law or section one

hundred seven of the civil service law, except that the commission may

recommend that the individual in violation of such subdivision or

section be disciplined.

(o) The commission shall be deemed to be an agency within the meaning

of article three of the state administrative procedure act and shall

adopt rules governing the conduct of adjudicatory proceedings and

appeals taken pursuant to a proceeding commenced under article

seventy-eight of the civil practice law and rules relating to the

assessment of the civil penalties or the recommendation of employee

discipline herein authorized. Such rule shall provide for due process

procedural mechanisms substantially similar to those set forth in

article three of the state administrative procedure act but such

mechanisms need not be identical in terms or scope.

(p) (i) The commission shall have jurisdiction to investigate, but

shall have no jurisdiction to impose penalties or discipline upon

members of or candidates for member of the legislature or legislative

employees for any violation of the public officers law or section one

hundred seven of the civil service law. If, after investigation and a

due process hearing, the commission has found, by a majority vote, a

substantial basis to conclude that a member of the legislature or a

legislative employee or candidate for member of the legislature has

violated any provisions of such laws, it shall prepare a written report

of its findings and provide a copy of that report to the legislative

ethics commission, and to such individual in violation of such law. The

commission shall provide to the legislative ethics commission copies of

the full investigative file and hearing record.

(ii) With respect to the investigation of any individual who is not a

member of the legislature or a legislative employee or candidate for

member of the legislature, if after its investigation and due process

hearing, the commission has found, by a majority vote, a substantial

basis to conclude that the individual or entity has violated the public

officers law, section one hundred seven of the civil service law, or the

legislative law, the commission shall determine whether, in addition to

or in lieu of any fine authorized by this article, the matter should be

referred to their employer for discipline with a warning, admonition,

censure, suspension or termination or other appropriate discipline. With

regard to statewide elected officials, the commission may not order

suspension or termination but may recommend impeachment. The commission

shall then issue a report containing its determinations including its

findings of fact and conclusions of law to the complainant and

respondent. The commission shall publish such report on its website

within twenty days of its delivery to the complainant and respondent.

11. Confidentiality. (a) When an individual becomes a commissioner or

staff of the commission, such individual shall be required to sign a

non-disclosure statement.

(b) Except as otherwise required or provided by law, or when necessary

to inform the complainant or respondent of the alleged violation of law,

if any, of the status of an investigation, testimony received, or any

other information obtained by a commissioner or staff of the commission,

shall not be disclosed by any such individual to any person or entity

outside of the commission during the pendency of any matter. Any

confidential communication to any person or entity outside the

commission related to the matters before the commission shall occur only

as authorized by the commission. For the purposes of this paragraph,

"matter" shall mean any complaint, review, inquiry, or investigation

into alleged violations of this chapter.

(c) The commission shall establish procedures necessary to prevent the

unauthorized disclosure of any information received by any member of the

commission or staff of the commission. Any breaches of confidentiality

may be investigated by the New York state office of the inspector

general, attorney general, or other appropriate law enforcement

authority upon a majority vote of the commission to refer, and

appropriate action shall be taken.

(d) Any commission member or person employed by the commission who

intentionally and without authorization releases confidential

information received or generated by the commission shall be guilty of a

class A misdemeanor.

12. Annual report. (a) The commission shall make an annual public

report summarizing the activities of the commission during the previous

year and recommending any changes in the laws governing the conduct of

persons subject to the jurisdiction of the commission, or the rules,

regulations and procedures governing the commission's conduct. Such

report shall include, but is not limited to:

(i) information on the number and type of complaints received by the

commission and the status of such complaints;

(ii) information on the number of investigations pending and nature of

such investigations;

(iii) where a matter has been resolved, the date and nature of the

disposition and any sanction imposed; provided, however, that such

annual report shall not contain any information for which disclosure is

not permitted pursuant to this section or other laws;

(iv) information regarding financial disclosure compliance for the

preceding year; and

(v) information regarding lobbying law filing compliance for the

preceding year.

(b) Such a report shall be filed in the office of the governor and

with the legislature on or before the first day of April for the

preceding year.

13. Website. (a) Within one hundred twenty days of the effective date

of this section, the commission shall update JCOPE's publicly accessible

website which shall set forth the procedure for filing a complaint with

the commission, the filing of financial disclosure statements filed by

state officers or employees or legislative employees, the filing of

statements required by article one-A of the legislative law, and any

other records or information which the commission determines to be

appropriate.

(b) The commission shall post on its website the following documents:

(i) the information set forth in an annual statement of financial

disclosure filed pursuant to section seventy-three-a of the public

officers law except information deleted pursuant to paragraph (g) of

subdivision nine of this section of statewide elected officials and

members of the legislature;

(ii) notices of delinquency sent under subdivision nine of this

section;

(iii) notices of civil assessments imposed under this section which

shall include a description of the nature of the alleged wrongdoing, the

procedural history of the complaint, the findings and determinations

made by the commission, and any sanction imposed;

(iv) the terms of any settlement or compromise of a complaint or

referral which includes a fine, penalty or other remedy;

(v) those required to be held or maintained publicly available

pursuant to article one-A of the legislative law; and

(vi) reports issued by the commission pursuant to this section.

14. Additional powers. In addition to any other powers and duties

specified by law, the commission shall have the power and duty to

administer and enforce all the provisions of this section.

15. Severability. If any part or provision of this section or the

application thereof to any person or organization is adjudged by a court

of competent jurisdiction to be unconstitutional or otherwise invalid,

such judgment shall not affect or impair any other part or provision or

the application thereof to any other person or organization, but shall

be confined in its operation to such part or provision.