2023 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.