NY Legis L § 80 (2021)
2021 New York Laws LEG - Legislative Article 5 - Legislative Ethics 80 - Legislative Ethics Commission; Functions, Powers and Duties; Review of Financial Disclosure Statements; Advisory Opinions; Imposition of Penalties or Other Enforcement Actions.

§  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 chairman   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  chairman  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 joint commission on public ethics;   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, 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 joint commission on public ethics 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  joint  commission  on  public  ethics for violations of section seventy-three,  seventy-three-a  or  seventy-four of the public officers law 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  joint commission 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 joint commission on public ethics 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 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 forty-five calendar days  after  receipt  from  the joint  commission  on  public  ethics  of  a  written  substantial basis investigation report and any supporting documentation or other materials regarding  a  matter  before  the  commission  pursuant  to  subdivision fourteen-a of 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 joint commission on public ethics 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 joint commission on public ethics 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  joint  commission  in  accordance  with  this paragraph,  the  joint  commission  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  joint commission on public ethics for additional investigation more than once. If  the  commission  refers  the matter back to the joint commission for additional fact-finding, the joint commission's  original  report  shall remain confidential.   10.  Upon  receipt  of  a  written report from the joint commission on public  ethics   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 joint commission'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 joint commission on  public  ethics  pursuant  to  subdivision  fourteen-a  of 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 joint commission on public ethics pursuant  to  subdivision  fourteen-a  of  section  ninety-four  of  the executive  law  and  in  conformance  with  paragraph (b) of subdivision nine-b 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 joint commission on public ethics, 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.