NY Elec L § 3-104 (2021)
2021 New York Laws ELN - Election Article 3 - Election Officials Title 1 - Statewide Provisions 3-104 - State Board of Elections; Enforcement Powers.

§ 3-104. State board of elections; enforcement powers.   1.  (a)  There  shall  be a unit known as the division of election law enforcement established within the state board of elections. The head of such unit shall be the chief enforcement counsel.  (b) The state board of elections shall have jurisdiction  of,  and  be responsible  for,  the  execution  and  enforcement of the provisions of article fourteen of this chapter and other statutes governing campaigns, elections and  related  procedures;  provided  however  that  the  chief enforcement  counsel shall have sole authority within the state board of elections to investigate on his or her own initiative or upon  complaint alleged   violations  of  such  statutes  and  all  complaints  alleging violations  shall  be  forwarded  to  the  division  of   election   law enforcement.   2. (a) Whenever a local board of elections shall determine, on its own initiative  or  upon  complaint, or otherwise, that there is substantial reason to believe a violation of this chapter or any code or  regulation promulgated  thereunder  has  been committed by a candidate or political committee or other person or entity that files  statements  required  by article  fourteen of this chapter solely with such local board, it shall expeditiously  make  an   investigation   which   shall   also   include investigation of reports and statements made or failed to be made by the complainant  and any political committee supporting his candidacy if the complainant is a candidate or, if the complaint was made by  an  officer or  member  of  a political committee, of reports and statements made or failed to be  made  by  such  political  committee  and  any  candidates supported  by  it.  The  local  board  shall  report  the results of its investigation  to  the  division  of  election  law  enforcement   chief enforcement   counsel   within   ninety   days  of  the  start  of  such investigation. The chief enforcement counsel may direct the local  board of  elections  at  any  time  to  suspend  its investigation so that the division of election law enforcement can investigate the matter.  (b) The chief enforcement counsel may request, and shall receive,  the assistance of the state police in any investigation it shall conduct.   3. Upon receipt of a complaint and supporting information alleging any violation  of this chapter, or upon his or her own initiative, the chief enforcement counsel  shall  determine  if  an  investigation  should  be undertaken.  The  chief  enforcement counsel shall, if necessary, obtain additional information from the complainant or  from  other  sources  to assist  such  counsel  in making this determination. Such analysis shall include the following: first, whether the allegations,  if  true,  would constitute  a  violation  of  this  chapter  and,  second,  whether  the allegations are supported by credible evidence.  The  chief  enforcement counsel  may  at  any  time  ask  that the board authorize him or her to exercise the powers which the board is otherwise authorized to  exercise pursuant  to  subdivisions  five and six of section 3-102 of this title. The board shall vote on  whether  to  grant  or  refuse  to  grant  such authority  no later than twenty days after the chief enforcement counsel makes such request. For purposes  of  considering  and  voting  on  such request,  the chief enforcement counsel shall be entitled to participate in all matters related thereto and shall vote on the board's granting or refusal to grant such request only when there is a tie. Should the board not vote on such request within twenty days of its submission, or  grant the  chief  enforcement counsel's request, the chief enforcement counsel shall be so empowered to act pursuant to subdivisions five  and  six  of section 3-102 of this title.   4.  If  the chief enforcement counsel determines that the allegations, if true, would not constitute a violation of this chapter  or  that  the allegations  are  not  supported  by  credible evidence, he or she shall  issue a letter forthwith to the complainant dismissing the complaint and notice to the board.   5.  (a)  If,  an  individual  has  failed  to cure pursuant to section 3-104-a of this title, or the chief enforcement counsel determines  that substantial  reason  exists  to  believe  that a person, acting as or on behalf  of  a  candidate  or  political  committee  under  circumstances evincing  an  intent to violate such law that does not otherwise warrant criminal prosecution, or has unlawfully violated any provision  of  this chapter,  the board shall assign a hearing officer, randomly from a list of prospective hearing officers each of whom shall have been approved by a majority vote of  the  board.  The  chief  enforcement  counsel  shall provide  a  written  report  to  such hearing officer as to: (1) whether substantial reason exists to believe a violation  of  this  chapter  has occurred  and,  if  so,  the  nature of the violation and any applicable penalty, based on the nature of the violation; (2)  whether  the  matter should   be   resolved  extra-judicially;  and  (3)  whether  a  special proceeding should be commenced in the supreme court to recover  a  civil penalty. The hearing officer shall make findings of fact and conclusions of  law  based  on  a  preponderance  of  the  evidence  as to whether a violation has been established  and,  if  so,  who  is  guilty  of  such violation  on  notice  to  and with an opportunity for the individual or entity accused of any violations to be heard. However,  if  the  hearing officer  finds  that  on  balance, the equities favor a dismissal of the complaint, the hearing officer shall dismiss the charges. In determining whether the equities  favor  a  dismissal,  the  hearing  officer  shall consider  the  following factors: (1) whether the complaint alleges a de minimis violation of article fourteen of this chapter; (2)  whether  the subject  of  the  complaint  has made a good faith effort to correct the violation; and (3) whether the subject of the complaint has a history of similar violations. For purposes of making any such findings under  this subdivision, proceedings before the hearing officer shall be governed by article  three  of  the  state  administrative  procedure act. The chief enforcement counsel shall adopt the report of the  hearing  officer  and may,  in  his  or  her  discretion, commence a special proceeding in the supreme court pursuant to sections 16-100, 16-114  and  16-116  of  this chapter  should  the findings of fact and conclusions of law support the commencement of such proceeding or enter into  an  agreement  to  settle such  matter  with  the subject of the complaint. In the event the chief enforcement counsel commences a  special  proceeding,  the  court  shall afford the subject of the compliant an opportunity to be heard and shall be  empowered  to  accept,  reject  or  modify  the findings of fact and conclusions of law made by the hearing officer. If the  board  fails  to produce  a  list  of  eligible  hearing  officers, the chief enforcement counsel  may  commence  a  special  proceeding  as  provided  herein  in accordance with recommendations made in his or her report.  (b)  If the chief enforcement counsel determines that reasonable cause exists to believe a violation warranting criminal prosecution has  taken place,  the chief enforcement counsel shall present such findings to the board. Within thirty days of such submission, the board  shall  vote  on whether  to  accept  or  reject such findings. For purposes of voting on acceptance or rejection of findings by the  chief  enforcement  counsel, the  chief  enforcement  counsel shall be entitled to participate in all matters related to the review of his or her report and shall vote on its acceptance or rejection only when there is a tie. Should the board  fail to  vote  to  either accept or reject the findings within thirty days of submission of such findings, or should the board accept the findings  by the  chief enforcement counsel that there is reasonable cause to believe that a violation warranting criminal prosecution has  taken  place,  the  chief  enforcement  counsel  shall, forthwith, and in any event no later than seven calendar days  of  such  failure  to  accept  or  reject  the findings  by  the  board,  refer  such matter to the attorney general or district  attorney  with  jurisdiction  over  such  matter to commence a criminal action as such term is defined in the criminal procedure law.   6. Upon notification that a special proceeding has been commenced by a party other than the state  board  of  elections,  pursuant  to  section 16-114  of this chapter, the chief enforcement counsel shall investigate the alleged violations unless otherwise directed by the court.   7. The chief enforcement counsel shall prepare a report to be included in the annual report of the board to the governor, the  state  board  of elections and legislature, summarizing the activities of the unit during the previous year.   8.  The  state board of elections may promulgate rules and regulations consistent with law to effectuate the provisions of this section.