N.Y. Legislative Law § 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;

review of financial disclosure statements; advisory opinions; imposition

of penalties or other enforcement actions. 1. There is established a

legislative ethics commission which shall consist of nine members. Four

members shall be members of the legislature and shall be appointed as

follows: one by the temporary president of the senate, one by the

speaker of the assembly, one by the minority leader of the senate and

one by the minority leader of the assembly. The remaining five members

shall not be present or former members of the legislature, candidates

for member of the legislature, employees of the legislature, political

party chairmen as defined in paragraph (k) of subdivision one of section

seventy-three of the public officers law, or lobbyists, as defined in

section one-c of this chapter, or persons who have been employees of the

legislature, political party chairmen as defined in paragraph (k) of

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

lobbyists, as defined in section one-c of this chapter in the previous

five years, and shall be appointed as follows: one by the temporary

president of the senate, one by the speaker of the assembly, one by the

minority leader of the senate, one by the minority leader of the

assembly, and one jointly by the speaker of the assembly and majority

leader of the senate. The commission shall serve as described in this

section and have and exercise the powers and duties set forth in this

section only with respect to members of the legislature, legislative

employees as defined in section seventy-three of the public officers

law, candidates for member of the legislature and individuals who have

formerly held such positions or who have formerly been such candidates.

2. Members of the legislature who serve on the commission shall each

have a two year term concurrent with their legislative terms of office.

The members of the commission who are not members of the legislature and

who are first appointed by the temporary president of the senate,

speaker of the assembly, minority leader of the senate, and minority

leader of the assembly shall serve one, two, three and four year terms,

respectively. The member of the commission first appointed jointly by

the temporary president of the senate and speaker of the assembly shall

serve a four year term. Each member of the commission who is not a

member of the legislature shall be appointed thereafter for a term of

four years.

3. The temporary president of the senate and the speaker of the

assembly shall each designate one member of the commission as a

co-chairperson thereof. The commission shall meet at least bi-monthly

and at such additional times as may be called for by the co-chairpersons

jointly or any five members of the commission.

4. Any vacancy occurring on the commission shall be filled within

thirty days by the appointing authority.

5. Five members of the commission shall constitute a quorum, and the

commission shall have power to act by majority vote of the total number

of members of the commission without vacancy.

6. The members of the commission who are not members of the

legislature shall be reimbursed for reasonable expenses and receive a

per diem allowance in the sum of three hundred dollars for each day

spent in the performance of their official duties.

7. The commission shall:

a. Appoint an executive director who shall act in accordance with the

policies of the commission, provided that the commission may remove the

executive director for neglect of duty, misconduct in office, or

inability or failure to discharge the powers or duties of office;

b. Appoint such other staff as are necessary to assist it to carry out

its duties under this section;

c. Adopt, amend, and rescind policies, rules and regulations

consistent with this section to govern procedures of the commission

which shall not be subject to the promulgation and hearing requirements

of the state administrative procedure act;

d. Administer the provisions of this section;

e. Specify the procedures 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, due to

justifiable cause or undue hardship; such rules or regulations shall

provide for a date beyond which in all cases of justifiable cause or

undue hardship no further extension of time will be granted;

f. Promulgate guidelines to assist appointing authorities in

determining which persons hold policy-making positions for purposes of

section seventy-three-a of the public officers law and may promulgate

guidelines to assist firms, associations and corporations in separating

affected persons from net revenues for purposes of subdivision ten of

section seventy-three of the public officers law, and promulgate

guidelines to assist any firm, association or corporation in which any

present or former statewide elected official, state officer or employee,

member of the legislature or legislative employee, or political party

chair is a member, associate, retired member, of counsel or shareholder,

in complying with the provisions of subdivision ten of section

seventy-three of the public officers law with respect to the separation

of such present or former statewide elected official, state officer or

employee, member of the legislature or legislative employee, or

political party chair from the net revenues of the firm, association or

corporation. Such firm, association or corporation shall not be required

to adopt the procedures contained in the guidelines to establish

compliance with subdivision ten of section seventy-three of the public

officers law, but if such firm, association or corporation does adopt

such procedures, it shall be deemed to be in compliance with such

subdivision ten;

g. Make available forms for financial disclosure statements required

to be filed pursuant to subdivision six of section seventy-three and

section seventy-three-a of the public officers law as provided by the

commission on ethics and lobbying in government;

h. Review financial disclosure statements in accordance with the

provisions of this section, provided however, that the commission may

delegate all or part of the review function relating to financial

disclosure statements filed by legislative employees pursuant to

sections seventy-three and seventy-three-a of the public officers law to

the executive director who shall be responsible for completing staff

review of such statements in a manner consistent with the terms of the

commission's delegation;

i. Upon written request from any person who is subject to the

jurisdiction of the commission and the requirements of sections

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

law, and section five-b of this chapter render formal advisory opinions

on the requirements of said provisions. A formal written opinion

rendered by the commission, until and unless amended or revoked, shall

be binding on the legislative ethics commission in any subsequent

proceeding concerning the person who requested the opinion and who acted

in good faith, unless material facts were omitted or misstated by the

person in the request for an opinion. Such opinion may also be relied

upon by such person, and may be introduced and shall be a defense in any

criminal or civil action. The commission on ethics and lobbying in

government shall not investigate an individual for potential violations

of law based upon conduct approved and covered in its entirety by such

an opinion, except that such opinion shall not prevent or preclude an

investigation of and report to the legislative ethics commission

concerning the conduct of the person who obtained it by the commission

on ethics and lobbying in government for violations of section

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

law and section 5-b of this chapter to determine whether the person

accurately and fully represented to the legislative ethics commission

the facts relevant to the formal advisory opinion and whether the

person's conduct conformed to those factual representations. The

commission on ethics and lobbying in government shall be authorized and

shall have jurisdiction to investigate potential violations of the law

arising from conduct outside of the scope of the terms of the advisory

opinion; and

j. Issue and publish generic advisory opinions covering questions

frequently posed to the commission, or questions common to a class or

defined category of persons, or that will tend to prevent undue

repetition of requests or undue complication, and which are intended to

provide general guidance and information to persons subject to the

commission's jurisdiction;

k. Develop educational materials and training with regard to

legislative ethics for members of the legislature and legislative

employees including an online ethics orientation course for newly-hired

employees and, as requested by the senate or the assembly, materials and

training in relation to a comprehensive ethics training program; and

l. Prepare an annual report to the governor and legislature

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: (i) a listing by assigned number of each complaint

and report received from the commission on ethics and lobbying in

government which alleged a possible violation within its jurisdiction,

including the current status of each complaint, and (ii) where a matter

has been resolved, the date and nature of the disposition and any

sanction imposed, subject to the confidentiality requirements of this

section. Such annual report shall not contain any information for which

disclosure is not permitted pursuant to subdivision twelve of this

section.

8. The jurisdiction of the commission to impose penalties when acting

pursuant to this section shall continue notwithstanding that a member of

the legislature or a legislative employee separates from state service,

or a candidate for member of the legislature ceases to be a candidate,

provided that such individual has been notified of the alleged violation

of law within one year from his or her separation from state service or

the termination of his or her candidacy.

9. (a) An individual subject to the jurisdiction of the commission

with respect to the imposition of penalties who knowingly and

intentionally violates the provisions of subdivisions two through

five-a, seven, eight, twelve, fourteen or fifteen of section

seventy-three of the public officers law or section five-b of this

chapter or a reporting individual who knowingly and wilfully fails to

file an annual statement of financial disclosure or who knowingly and

wilfully with intent to deceive makes a false statement 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. Any such 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. Assessment of a civil

penalty hereunder shall be made by the commission with respect to

persons subject to its jurisdiction. 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. For a violation of this section, other than for

conduct which constitutes a violation of subdivision twelve, fourteen or

fifteen of section seventy-three or section seventy-four of the public

officers law, the legislative ethics commission may, in lieu of or in

addition to a civil penalty, refer a violation to the appropriate

prosecutor and upon such conviction, but only after such referral, such

violation shall be punishable as a class A misdemeanor. Where the

commission finds sufficient cause, it shall refer such matter to the

appropriate prosecutor. A civil penalty for false filing may not be

imposed hereunder in the event a category of "value" or "amount"

reported hereunder is incorrect unless such reported information is

falsely understated. 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, except that the appointing authority may impose

disciplinary action as otherwise provided by law. The legislative ethics

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 herein authorized. Such rules, which shall not be subject to

the promulgation and hearing requirements of the state administrative

procedure act, shall provide for due process procedural mechanisms

substantially similar to those set forth in such article three but such

mechanisms need not be identical in terms or scope. Assessment of a

civil penalty shall be final unless modified, suspended or vacated

within thirty days of imposition, with respect to the assessment of such

penalty, or unless such denial of request is reversed within such time

period, and upon becoming final shall be subject to review at the

instance of the affected reporting individuals in a proceeding commenced

against the legislative ethics commission, pursuant to article

seventy-eight of the civil practice law and rules.

(b) Not later than twenty calendar days after receipt from the

commission on ethics and lobbying in government of a written substantial

basis investigation report and any supporting documentation or other

materials regarding a matter before the commission pursuant to section

ninety-four of the executive law, unless requested by a law enforcement

agency to suspend the commission's action because of an ongoing criminal

investigation, the legislative ethics commission shall make public such

report in its entirety; provided, however, that the commission may

withhold such information for not more than one additional period of the

same duration or refer the matter back to the commission on ethics and

lobbying in government once for additional investigation, in which case

the legislative ethics commission shall, upon the termination of such

additional period or upon receipt of a new report by the commission on

ethics and lobbying in government after such additional investigation,

make public the written report and publish it on the commission's

website. If the legislative ethics commission fails to make public the

written report received from the commission on ethics and lobbying in

government in accordance with this paragraph, the commission on ethics

and lobbying in government shall release such report publicly promptly

and in any event no later than ten days after the legislative ethics

commission is required to release such report. The legislative ethics

commission shall not refer the matter back to the commission on ethics

and lobbying in government for additional investigation more than once.

If the commission refers the matter back to the commission on ethics and

lobbying in government for additional fact-finding, the commission on

ethics and lobbying in government's original report shall remain

confidential.

10. Upon receipt of a written report from the commission on ethics and

lobbying in government pursuant to subdivision fourteen-a of section

seventy-three of the public officers law, the legislative ethics

commission shall commence its review of the matter addressed in such

report. No later than ninety days after receipt of such report, the

legislative ethics commission shall dispose of the matter by making one

or more of the following determinations:

a. whether the legislative ethics commission concurs with the

commission on ethics and lobbying in government's conclusions of law and

the reasons therefor;

b. whether and which penalties have been assessed pursuant to

applicable law or rule and the reasons therefor; and

c. whether further actions have been taken by the commission to punish

or deter the misconduct at issue and the reasons therefor.

The commission's disposition shall be reported in writing and

published on its website no later than ten days after such disposition

unless requested by a law enforcement agency to suspend the commission's

action because of an ongoing criminal investigation.

11. If the commission has a reasonable basis to believe that any

person subject to the jurisdiction of another state oversight body may

have violated section seventy-three or seventy-four of the public

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

article one-A of this chapter, it shall refer such violation to such

oversight body unless the commission determines that such a referral

would compromise the prosecution or confidentiality of its proceedings

and, if so, shall make such a referral as soon as practicable. The

referral by the commission shall include any information relating

thereto coming into the custody or under the control of the commission

at any time prior or subsequent to the time of the referral.

12. a. Notwithstanding the provisions of article six of the public

officers law, the only records of the commission which shall be

available for public inspection and copying are:

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

referral or report which includes a fine, penalty or other remedy

reached after the commission has received a report from the commission

on ethics and lobbying in government pursuant to section ninety-four of

the executive law;

(2) generic advisory opinions;

(3) all reports required by this section; and

(4) all reports received from the commission on ethics and lobbying in

government pursuant to section ninety-four of the executive law and in

conformance with paragraph (b) of subdivision nine of this section.

b. Notwithstanding the provisions of article seven of the public

officers law, no meeting or proceeding of the commission shall be open

to the public, except if expressly provided otherwise by this section or

the commission.

13. Within one hundred twenty days of the effective date of this

subdivision, the commission shall create and thereafter maintain a

publicly accessible website which shall set forth the procedure for

filing a complaint with the commission on ethics and lobbying in

government, and which shall contain any other records or information

which the commission determines to be appropriate.

14. This section shall not revoke or rescind any policies, rules,

regulations or advisory opinions issued by the legislative ethics

committee in effect upon the effective date of this subdivision, to the

extent that such regulations or opinions are not inconsistent with any

laws of the state of New York. The legislative ethics commission shall

undertake a comprehensive review of all such policies, rules,

regulations or advisory opinions which will address the consistency of

such policies, rules, regulations or advisory opinions with the laws of

the state of New York. The legislative ethics commission shall, before

April first, two thousand eight, report to the governor and legislature

regarding such review and shall propose any regulatory changes and issue

any advisory opinions necessitated by such review.

15. Separability clause. If any part or provision of this section or

the application thereof to any person 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, but shall be confined to such

part or provision.