Senate Bill S1325

2009-2010 Legislative Session

Provides that the state board of elections may institute an adjudicatory proceeding for the purpose of determining whether a violation has taken place

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Archive: Last Bill Status - In Senate Committee Elections Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to elections
Jan 28, 2009	referred to elections

2009-S1325 (ACTIVE) - Details

Current Committee:: Senate Elections
Law Section:: Election Law
Laws Affected:: Amd §§3-104, 14-116, 14-118, 14-126 & 16-114, add §3-109, El L
Versions Introduced in 2011-2012 Legislative Session:: S2103

2009-S1325 (ACTIVE) - Summary

Provides that the state board of elections may impose civil penalties after an adjudicatory proceeding for the purpose of determining whether a violation of the election law has occurred, and expands upon the enforcement power of the state board of elections; authorizes village clerk to enforce requirements of article 14 of the election law; clarifies that corporate contribution limit of $5,000 per calendar year does not apply to contributions for the purpose of promoting or defeating a ballot issue.

2009-S1325 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER : S1229

 TITLE OF BILL :
An act to amend the election law, in relation to campaign finance
enforcement


 PURPOSE :
This is an omnibus bill designed to enhance enforcement of New York
State's campaign finance law by authorizing the state board of
elections to impose civil penalties for violations of that law,
creating a mechanism for notifying corporations of the $5,000
aggregate annual limit on their political contributions, and
establishing the village clerk's authority to enforce the campaign
finance filing requirements imposed upon village candidates.

 SUMMARY OF PROVISIONS :
 A. CIVIL ENFORCEMENT

This bill adds to the enforcement powers of the state board of
elections, enumerated in section 3-104 of the election law, by
allowing the board to proceed administratively when it determines that
a violation of article 14 has occurred. The board is authorized to
assess a civil penalty, as set forth in section 14-126 of the election
law, following the hearing.

Section 14-126 of the election law is amended to increase the civil
penalty provision from a maximum of one hundred dollars to ten
thousand dollars and to make clear that it is applicable to  ALL
violations of article 14, rather than just failures to file. The power
of the State Board and other boards to proceed judicially for civil
penalties under section 3-104 is amended to conform with the change in
section 14-126.

A new section 3-105 is created in the election law to set forth the
procedures to be followed in conducting an administrative proceeding,
issuing a determination, and assessing a civil penalty. Except as
specifically provided, the hearing shall be conducted pursuant to
article 3 of the state administrative procedure act. The board is
required to randomly select hearing officers from an active list of at
least six qualified attorneys. Such hearing officers must meet the
qualifications established by the board pursuant to regulations
designed to ensure objectivity and independence, and are to be paid as
independent contractors on a  PER DIEM  basis at a rate fixed by the
board.

Following the hearing, the hearing officer shall submit a report to
the board and, after reviewing that report, the Board shall make a
determination as to whether a violation has occurred and, when
appropriate, shall impose a civil penalty. The board shall promulgate
regulations setting forth factors to be considered in setting such
penalty amounts.

 B. ENFORCEMENT BY VILLAGE CLERK

Sections two, six and seven of the bill extend to the village clerk
the powers to enforce the requirements of article 14 of the election
law which powers are currently possessed by the state board and local
boards of elections. Section six amends subdivision five of section
3-104 to empower the village clerk to institute a civil proceeding for
civil penalties against a village candidate or committee which
violates the campaign finance requirements set forth in article 14.
Section eight of the bill amends subdivision one of section 14-126 to
include village clerks in the list of petitioners who can seek civil
penalties in a judicial proceeding. Section seven amends section
16-114 of the bill to extend to village clerks the power to institute
a judicial proceeding seeking an order that a candidate or committee
required to file with the village make that filing.

 C. ENFORCEMENT OF CORPORATE CONTRIBUTION LIMITS

Section five of the bill adds a new subdivision four to section 14-118
to affirmatively state that treasurers of political committees are
obligated to ensure that they do not accept more than $5,000 from any
corporate contributor. The bill specifically requires that excess
corporate contributions be returned within 10 days of receipt.
Moreover, the bill requires treasurers who receive contributions of
$1,000 or more from a corporation to notify that corporation of the
statutory limit of $5,000 per year.

 D. MISCELLANEOUS PROVISIONS

Section four of the bill amends subdivision two of section 14-116 to
clarify that the corporate contribution limit of $5,000 per calendar
year does not apply to contributions for the purpose of promoting or
defeating a ballot issue.

 JUSTIFICATION :


 A. CIVIL ENFORCEMENT

The state board of elections investigates approximately 50 matters
each year, with about 30 to 40 percent of those matters relating to
violations of the campaign finance law, as set forth in article 14 of
the election law. In many instances, the board concludes that while a
violation has occurred, criminal prosecution is not warranted because
of the inability to establish criminal intent, the existence of
extenuating circumstances, or the insignificance of the offense.

Under current law, when such a conclusion is reached, the board often
has no choice but to refer it to the district attorney regardless of
merit or drop the matter altogether. While the former solution places
an unnecessary burden on prosecutors and threatens a minor violator
with a disproportionate sanction, the latter solution sends a message
of indifference to candidates and their committees and eliminates the
chance that similar violations will be deterred in the future. By
providing the board with an additional, alternative enforcement tool
-- the power to impose civil penalties following an administrative
hearing -- compliance with campaign finance requirements should
substantially improved.

Further, by making clear that these penalties are available for  ALL
article 14 violations, an impediment to effective enforcement by the
board will be removed -- and by establishing an administrative review
procedure, a more appropriate forum to litigate these matters will be
provided. However, such reforms would prove meaningless without an
increase in the amount of the maximum civil penalty allowed by law.
Given the cost of litigating these matters in any forum and the
nominal deterrent effect of $100 civil penalty, it would be difficult
to justify civil enforcement absent a change in the penalty amount.
Consequently, to insure effective enforcement of New York State's
campaign finance law, this bill increases the maximum civil penalty
amount the state board may assess to $10,000.

 B. ENFORCEMENT BY VILLAGE CLERK

Existing law provides for state board and local board-initiated
lawsuits to enforce the filing requirements of article 14 of the
election law. The practice has been for the state board to institute
proceedings in those instances in which the filing should have been
made at its office and to refer to local boards of elections
violations involving local filings. In addition, there are numerous
instances brought to the attention of the state board each year where
the violation involved a village election; however, the law makes no
reference to lawsuits initiated by village clerks. This provision
corrects that oversight, and would therefore enhance enforcement at
the village level.

 C. ENFORCEMENT OF CORPORATE CONTRIBUTION LIMITS

One of the most difficult compliance issues this board encounters
relates to the $5,000 annual limit on political contributions by
corporations. The board currently uses a manual system to tabulate
corporate contributions and its computerization plans will increase
the board's detection capacity. However, once they are identified as
exceeding the limit, many corporations claim they were unaware of the
limit and that sanctioning them would be unfair. The bill recognizes
that notification to politically active corporations of the limit will
improve compliance and, if ignored, will facilitate the board's
enforcement efforts. Those most able to reach politically active
corporations are obviously the treasurers of the political committees
to which the corporations contribute. Because it is reasonable to
expect that significant contributions ($1,000 or more) will be
acknowledged in writing anyway, this requirement will pose no extra
burden on treasurers.

 D. MISCELLANEOUS PROVISIONS

Existing law which prohibits corporations from contributing more than
$5,000 in a calendar year makes no distinction between contributions
in support or opposition of candidates and contributions to promote
the success or defeat of a ballot issue.  The United States Supreme
Court, in  FIRST NATIONAL BANK OF BOSTON V. BELLOTTI , 435 U.S. 716
(1978) ruled that there could be no limits on the latter. This bill
conforms New York law to the  BELLOTTI  case.

 FISCAL IMPACT :
This bill will have no fiscal impact on the state this year.

 EFFECTIVE DATE :
The first April after which the bill shall have become law, except
that the state board of elections shall immediately promulgate rules
and regulations to implement adjudicatory hearings.

2009-S1325 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1325

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 28, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Elections

AN ACT to amend the  election  law,  in  relation  to  campaign  finance
  enforcement

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 4 and 5 of section 3-104 of the election  law,
as  redesignated by chapter 9 of the laws of 1978, are renumbered subdi-
visions 5 and 6 and a new subdivision 4 is added to read as follows:
  4. IF, AFTER AN INVESTIGATION, THE  STATE  BOARD  OF  ELECTIONS  FINDS
REASONABLE  CAUSE  TO  BELIEVE  A  VIOLATION OF ARTICLE FOURTEEN OF THIS
CHAPTER HAS TAKEN PLACE, IT MAY INSTITUTE AN ADJUDICATORY PROCEEDING  IN
ACCORDANCE WITH SECTION 3-109 OF THIS TITLE FOR THE PURPOSE OF DETERMIN-
ING  WHETHER  A  VIOLATION HAS TAKEN PLACE AND ASSESSING A CIVIL PENALTY
PURSUANT TO SECTION 14-126 OF THIS CHAPTER.
  S 2. Subdivision 5 of section 3-104 of the election law, as renumbered
by section one of this act, is amended to read as follows:
   5.  The state or other board of  elections  OR  VILLAGE  CLERK  IN  A
VILLAGE ELECTION WHERE THE CLERK IS THE FILING OFFICER may, where appro-
priate,  commence  a  judicial proceeding [with respect to the filing or
failure to file any statement of  receipts,  expenditures,  or  contrib-
utions, under the provisions] SEEKING CIVIL PENALTIES PURSUANT TO SUBDI-
VISION  ONE  OF  SECTION  14-126 of this chapter, and the state board of
elections may direct the appropriate other board of elections OR VILLAGE
CLERK IN A VILLAGE ELECTION WHERE THE CLERK IS  THE  FILING  OFFICER  to
commence such proceeding.
  S 3. The election law is amended by adding a new section 3-109 to read
as follows:
  S  3-109.  ADJUDICATORY PROCEEDING. 1. EXCEPT AS OTHERWISE PROVIDED IN
THIS  SECTION,  AN  ADJUDICATORY  PROCEEDING  TO  DETERMINE  WHETHER   A
VIOLATION  OF  ARTICLE  FOURTEEN  OF THIS CHAPTER HAS TAKEN PLACE AND TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06794-01-9

S. 1325                             2

ASSESS A CIVIL PENALTY PURSUANT TO SECTION 14-126 OF THIS CHAPTER  SHALL
BE  CONDUCTED  IN ACCORDANCE WITH ARTICLE THREE OF THE STATE ADMINISTRA-
TIVE PROCEDURE ACT.
  2. SUCH PROCEEDING SHALL BE CONDUCTED BY A HEARING OFFICER SELECTED ON
A RANDOM BASIS BY THE STATE BOARD OF ELECTIONS FROM AN ACTIVE LIST OF AT
LEAST  SIX ATTORNEYS WHO HAVE APPLIED FOR AND BEEN APPROVED BY THE BOARD
AS HEARING OFFICERS. SUCH HEARING OFFICER SHALL  BE  A  STATE  BOARD  OF
ELECTIONS COMMISSIONER OR AN INDEPENDENT CONTRACTOR WHO SHALL BE COMPEN-
SATED  ON  A  PER  DIEM BASIS AT A RATE FIXED BY THIS BOARD IN ITS REGU-
LATIONS PROMULGATED PURSUANT TO THIS SECTION.
  3. THE HEARING OFFICER SHALL PREPARE AND SUBMIT TO THE STATE BOARD  OF
ELECTIONS,  TOGETHER WITH THE ENTIRE RECORD OF THE PROCEEDING, A WRITTEN
REPORT CONTAINING FINDINGS OF FACT, CONCLUSIONS OF LAW  AND  RECOMMENDA-
TIONS CONCERNING THE IMPOSITION OF A CIVIL PENALTY.
  4.  AFTER  REVIEWING  THE  RECORD, FINDINGS AND RECOMMENDATIONS OF THE
HEARING OFFICER, THE STATE BOARD SHALL MAKE A DETERMINATION AS TO WHETH-
ER A VIOLATION HAS OCCURRED, AND, WHENEVER APPROPRIATE, IMPOSE A PENALTY
CONSISTENT WITH SECTION 14-126 OF THIS CHAPTER. REGARDLESS OF WHETHER  A
PENALTY  IS ASSESSED, THE STATE BOARD OF ELECTIONS SHALL ISSUE A WRITTEN
DETERMINATION SETTING FORTH ITS FINDINGS AND CONCLUSIONS.
  5. THE STATE BOARD OF ELECTIONS SHALL PROMULGATE RULES AND REGULATIONS
TO IMPLEMENT THE PROVISIONS OF THIS  SECTION  AND  SUBDIVISION  FOUR  OF
SECTION  3-104  OF  THIS TITLE, INCLUDING, BUT NOT LIMITED TO PROCEDURAL
RULES AS PROVIDED FOR IN SUBDIVISION THREE OF SECTION THREE HUNDRED  ONE
OF  THE  STATE ADMINISTRATIVE PROCEDURE ACT, FACTORS TO BE CONSIDERED IN
SETTING A PENALTY AMOUNT PURSUANT TO SUBDIVISION ONE OF  SECTION  14-126
OF  THIS CHAPTER, A PER DIEM COMPENSATION RATE FOR HEARING OFFICERS, AND
ANY QUALIFICATIONS FOR HEARING OFFICERS WHICH THE BOARD DEEMS  NECESSARY
IN  ORDER TO INSURE THEIR OBJECTIVITY AND INDEPENDENCE.  CONCERNING SUCH
QUALIFICATIONS, THE RULES AND REGULATIONS SHALL PROVIDE, AT  A  MINIMUM,
THAT  HEARING  OFFICERS  BE  MEMBERS IN GOOD STANDING OF THE BAR OF THIS
STATE, THAT THEY REFRAIN  FROM  APPEARING  BEFORE  THE  STATE  BOARD  OF
ELECTIONS  OR  FROM  ANY ACTIVITIES AS A LOBBYIST, AND THAT THEY HOLD NO
PUBLIC OFFICE OR PARTY POSITION.
  6. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS LIMITING ANY EXISTING
POWERS OF THE STATE BOARD OF ELECTIONS, INCLUDING, BUT NOT  LIMITED  TO,
ITS  INVESTIGATIVE POWERS, AND ITS POWERS TO REFER VIOLATIONS WARRANTING
CRIMINAL PROSECUTION TO THE APPROPRIATE DISTRICT ATTORNEY.
  S 4. Subdivision 2 of section 14-116 of the election law,  as  amended
by chapter 260 of the laws of 1981, is amended to read as follows:
   2.    Notwithstanding  the  provisions  of  subdivision  one  of this
section, any corporation or an  organization  financially  supported  in
whole  or  in part, by such corporation may make expenditures, including
contributions, not otherwise prohibited by law, [for political purposes]
IN SUPPORT OR OPPOSITION OF CANDIDATES, in an amount not to exceed  five
thousand dollars in the aggregate in any calendar year OR TO PROMOTE THE
SUCCESS OR DEFEAT OF A BALLOT ISSUE WITHOUT LIMITATION; provided that no
public  utility shall use revenues received from the rendition of public
service within the state for contributions for political purposes unless
such cost is charged to the shareholders of such a public service corpo-
ration.
  S 5. Section 14-118 of the election law is amended  by  adding  a  new
subdivision 4 to read as follows:
  4.  A. THE TREASURER OF A POLITICAL COMMITTEE SHALL BE RESPONSIBLE FOR
EXAMINING ALL CONTRIBUTIONS RECEIVED FOR  THE  PURPOSE  OF  ASCERTAINING
WHETHER CONTRIBUTIONS RECEIVED, WHEN AGGREGATED WITH OTHER CONTRIBUTIONS

S. 1325                             3

FROM THE SAME CONTRIBUTOR, EXCEED THE APPLICABLE CONTRIBUTION LIMITS SET
FORTH  IN  SECTIONS  14-114  AND 14-116 OF THIS ARTICLE.   CONTRIBUTIONS
WHICH ON THEIR FACE  EXCEED  THE  APPLICABLE  CONTRIBUTION  LIMITS,  AND
CONTRIBUTIONS  WHICH  DO  NOT  APPEAR  TO BE EXCESSIVE ON THEIR FACE BUT
WHICH EXCEED THE APPLICABLE CONTRIBUTION  LIMITS  WHEN  AGGREGATED  WITH
OTHER  CONTRIBUTIONS  FROM THE SAME CONTRIBUTOR, MUST BE RETURNED TO THE
CONTRIBUTOR WITHIN TEN DAYS OF RECEIPT.
  B. IN ADDITION, WITHIN TEN DAYS OF RECEIPT, THE TREASURER SHALL NOTIFY
EACH CORPORATE CONTRIBUTOR WHICH CONTRIBUTED  ONE  THOUSAND  DOLLARS  OR
MORE  AT  A TIME, BUT FOR WHICH THE TREASURER'S ACCOUNTS DO NOT INDICATE
AN EXCESS CONTRIBUTION, THAT SECTION 14-116 OF THIS ARTICLE  LIMITS  THE
AGGREGATE  AMOUNT CORPORATIONS CAN CONTRIBUTE TO OR EXPEND IN SUPPORT OR
OPPOSITION OF CANDIDATES TO FIVE THOUSAND DOLLARS IN ANY CALENDAR YEAR.
  S 6. Subdivision 1 of section 14-126 of the election law,  as  amended
by chapter 128 of the laws of 1994, is amended to read as follows:
  1.   Any person who [fails to file a statement required to be filed by
this article] VIOLATES ANY OF THE PROVISIONS OF THIS  ARTICLE  shall  be
subject to a civil penalty, not in excess of [five hundred] TEN THOUSAND
dollars,  to  be  recoverable IN AN ADMINISTRATIVE PROCEEDING BROUGHT BY
THE STATE BOARD OF ELECTIONS PURSUANT TO  SUBDIVISION  FOUR  OF  SECTION
3-104  OF  THIS CHAPTER OR in a special proceeding or civil action to be
brought by the state board of elections [or], other board  of  elections
OR  VILLAGE  CLERK PURSUANT TO SUBDIVISION FIVE OF SECTION 3-104 OF THIS
CHAPTER.
  S 7. Section 16-114 of the election law, subdivisions 1, 2, 3 and 4 as
redesignated by chapter 9 of the laws of 1978, is  amended  to  read  as
follows:
  S  16-114.    Proceedings  to compel filing of statements or corrected
statements of campaign receipts, expenditures  and  contributions.    1.
The  supreme  court  or a justice thereof, in a proceeding instituted by
any candidate voted for at the election or primary or by any five quali-
fied voters or by the state or other board of elections OR VILLAGE CLERK
IN A VILLAGE ELECTION WHERE THE VILLAGE CLERK IS THE FILING OFFICER  may
compel  by  order,  any person required to file a statement of receipts,
expenditures or contributions for campaign purposes, who has  not  filed
any  such  statement  within  the time prescribed by ARTICLE FOURTEEN OF
this chapter, to file such statement within five days  after  notice  of
the order.
   2.    The  supreme court or a justice thereof, in a proceeding insti-
tuted by any candidate voted for at the election or primary  or  by  any
five  qualified  voters,  or by the state or other board of elections OR
VILLAGE CLERK IN A VILLAGE ELECTION WHERE THE CLERK IS THE FILING  OFFI-
CER  in  accordance  with the provision of ARTICLE THREE OF this chapter
may compel by order any person required under the provisions of  ARTICLE
FOURTEEN  OF  this chapter to file a statement of receipts, expenditures
or contributions for campaign purposes, who has filed a statement  which
does not conform to the requirements of ARTICLE FOURTEEN OF this chapter
in  respect  to its truth, sufficiency in detail or otherwise, to file a
new or supplemental statement which shall make the statement  or  state-
ments true and complete within five days after notice of the order.  The
state board of elections shall be a necessary party in any such proceed-
ing.
   3.    The  supreme court or a justice thereof, in a proceeding insti-
tuted by any candidate voted for at the election or primary  or  by  any
five  qualified  voters,  or by the state or other board of elections OR
VILLAGE CLERK IN A VILLAGE ELECTION WHERE THE CLERK IS THE FILING  OFFI-

S. 1325                             4

CER  may  compel  by  order  any person who has failed to comply, or the
members of any committee which has failed to comply,  with  any  of  the
provisions of ARTICLE FOURTEEN OF this chapter, to comply therewith.
   4.    In  every  proceeding  instituted  under this section, except a
proceeding to compel the filing of a statement by a candidate for  nomi-
nation to a public office at a primary election or for election thereto,
or by the treasurer of a political committee, who has failed to file any
statement,  the  petitioner  or petitioners, upon the institution of the
proceeding shall file with the county clerk an undertaking in a  sum  to
be  determined  and  with  sureties  to  be approved by a justice of the
supreme court conditioned to pay any costs imposed against him or  them;
provided,  however,  that  no  such  undertaking  shall be required in a
proceeding instituted by the  state  or  other  board  of  elections  OR
VILLAGE CLERK.
  S 8.  This act shall take effect on the first of April next succeeding
the  date on which it shall have become a law, except that the rules and
regulations promulgated  by  subdivision  5  of  section  3-109  of  the
election  law,  as added by section three of this act, shall take effect
immediately.

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Senate Bill S1325

Sponsored By

Archive: Last Bill Status - In Senate Committee Elections Committee

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2009-S1325 (ACTIVE) - Details

2009-S1325 (ACTIVE) - Summary

2009-S1325 (ACTIVE) - Sponsor Memo

2009-S1325 (ACTIVE) - Bill Text download pdf

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Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Elections Committee

Actions

2009-S1325 (ACTIVE) - Details

2009-S1325 (ACTIVE) - Summary

2009-S1325 (ACTIVE) - Sponsor Memo

2009-S1325 (ACTIVE) - Bill Text download pdf

Comments