NY State Senate Bill 2009-S6792

Senate Bill S6792

2009-2010 Legislative Session

Makes technical corrections to provisions of the legislative, executive and civil service laws relating to governmental ethics and compliance

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Archive: Last Bill Status - In Senate Committee Rules 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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Feb 05, 2010	referred to rules

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2009-S6792 (ACTIVE) - Details

See Assembly Version of this Bill:: A9886
Current Committee:: Senate Rules
Law Section:: Executive Law
Laws Affected:: Amd §94, Exec L (as proposed in S.6457 & A.9544); amd §§1-d, 80 & 81, Leg L (as proposed in S.6457 & A.9544); amd §107, Civ Serv L; amd §§3-100 & 3-104, El L (as proposed in S.6457 & A.9544)

2009-S6792 (ACTIVE) - Summary

Makes technical corrections to provisions of the legislative, executive and civil service laws relating to governmental ethics and compliance; relates to the state board of elections and the state board of elections enforcement counsel.

2009-S6792 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6792

 TITLE OF BILL :
An act to amend the executive law, the legislative law and the civil
service law, in relation to making technical corrections to such
provisions relating to governmental ethics and compliance; and to
amend the election law, in relation to the state board of elections
and the state board of elections enforcement counsel


 PURPOSE OR GENERAL IDEA OF BILL :
This bill would make certain technical and substantive improvements to
the chapter of the laws of 2010 as proposed in A.9544, which provides
more independence for the governmental structures that address issues
of ethics in state government and promotes compliance with and
enforcement of laws governing elections in New York.

 SUMMARY OF SPECIFIC PROVISIONS :
This bill would:

* provide technical Corrections relating to the bodies overseeing
governmental ethics and compliance, including clarifying the
jurisdiction of the Executive Ethics and compliance commission and the
Legislative commission on Ethics Standards over former state officers,
allowing those commissions to impose penalties on individuals employed
by those commissions who violate the confidentiality of

investigations;

* clarify that the Lobbying commission has the authority to initiate
its own investigations as well as commence investigations upon
referral from another body or receipt of sworn compliant;

* provide that where the governing board of the legislative office
ethics investigations is unable to recommend action because of a vote,
a statement indicating any findings of fact agreed upon by members
shall be included in the written report;

*. add clarifying language to ensure that t.he membership. of the
joint legislative commission on ethics standards will be bipartisan
and that no official will have a greater number of appointees to the
commission than the other appointing officials;

* update a reference to the former commission on Public Integrity in
the civil Service Law;

* codify the exiting unit heads and deputies at the State Board of
Elections (a director of election operations, a deputy director of
election operations, a director of public information and a deputy
director of public information) in addition to the enforcement counsel
and deputy and the special counsel and deputy;

* provide that the deputy in each unit shall be a member of a
different major political party than the unit head and that unit heads
and deputies will be appointed by the commissioners of the political
party;

* require the enforcement counsel to notify the deputy enforcement
counsel and the state board of elections if he or she intends to
dismiss a complaint because it does not meet the two prong test (does
not allege a violation and/or is not supported by credible evidence
and that the state board of elections may vote to override the
enforcement counsel and order an investigation; and

* provide that the deputy enforcement counsel will be given notice and
a chance to review the relevant enforcement file at least ten days
before the board meeting and have the opportunity to submit a public
written concurrence with or dissent from the enforcement counsel's
intent to commence an investigation or recommendation that a penalty
be pursued.

 EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER :

This act amends subdivision 1, and paragraph (c) of subdivision 16-b,
of Section 94 of the Executive Law, subdivision (h) of Section 1-d,
clause (D) of subparagraph (iii) of paragraph (b) and subparagraph
(iii) of paragraph (a) of Section 80, and subdivisions a, b, and d of
Section 81 of the Legislative Law, Subdivision 5 of Section 107 of the
Civil Service Law, and Subdivision 1 of Section 3-100 and subdivisions
4, 5, 6, 7, and 9 of Section 3-104 of the Election Law, all as would
be amended by A.9544/S.6457 if it were to become law.

 JUSTIFICATION :
This legislation amends the language of A.9544/S.6457, which passed
both houses of the Legislature in January of 2010 and was vetoed by
Governor Paterson on February 1, 2010. It improves that bill by adding
the following:

* technical improvements to the law governing the ethics oversight
bodies to clarify their continuing jurisdiction, the proper
enforcement of confidentiality, and ability to conduct investigations;

* provisions to ensure partisan balance at the Board of Elections by
mandating that statutory appointments for Directors and Deputy
Directors are of different political parties; and

* new mandates to ensure that the actions of the Enforcement counsel
at the Board of Elections are reviewed by the Deputy Enforcement
Counsel and the Board at large, as well as a new provision directing
the Board of Elections to order an investigation if they find a
complaint should not be dismissed by the Enforcement Counsel.

Together with the underlying ethics and campaign finance enforcement
reform provisions that A.9544/S.6457 accomplished, these changes would
further improve the efficacy and fairness of our ethics and election
laws and build a strong foundation on which to rebuild the public's
confidence in the institutions of its Government.

 PRIOR LEGISLATIVE HISTORY :
This is new legislation. A.9544/S.6457 was vetoed on February 1, 2010.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
There is no fiscal impact from this legislation separate from that
which would occur by A.9544/S.6457 becoming law.

 EFFECTIVE DATE :
On the same date and in the same manner as the chapter of law proposed
in A.9544/S.6457.

2009-S6792 (ACTIVE) - Bill Text download pdf

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

    S. 6792                                                  A. 9886

                      S E N A T E - A S S E M B L Y

                            February 5, 2010
                               ___________

IN SENATE -- Introduced by Sens. SCHNEIDERMAN, SQUADRON, SAMPSON -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Rules

IN ASSEMBLY -- Introduced by M. of A. SILVER, KOLB, MAGNARELLI, DESTITO,
  MILLMAN, BARCLAY, FARRELL, CANESTRARI, MOLINARO, DUPREY --  read  once
  and referred to the Committee on Governmental Operations

AN  ACT  to  amend  the executive law, the legislative law and the civil
  service law, in relation  to  making  technical  corrections  to  such
  provisions  relating  to  governmental  ethics  and compliance; and to
  amend the election law, in relation to the state  board  of  elections
  and the state board of elections enforcement counsel

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

  Section 1. Subdivision 1 and paragraph  (c)  of  subdivision  16-b  of
section  94 of the executive law, subdivision 1 as amended and paragraph
(c) of subdivision 16-b as added by a chapter of the laws of 2010 amend-
ing the executive law and other laws relating to governmental ethics and
compliance, as proposed in legislative bill numbers S.6457  and  A.9544,
are amended to read as follows:
  1.  There  is  established within the department of state an executive
ethics and compliance commission which shall consist of six members  and
shall  have and exercise the powers and duties set forth in this section
only with respect to statewide elected  officials,  state  officers  and
employees,  as  defined in sections seventy-three and seventy-three-a of
the public officers law, candidates  for  statewide  elected  office,  a
political  party chairman as defined in paragraph (k) of subdivision one
of section seventy-three of the public officers law, [,] and individuals
who have formerly held such positions, or who have  formerly  been  such
candidates  EXCEPT AS PROVIDED IN PARAGRAPH (C) OF SUBDIVISION TWELVE OF
THIS SECTION.  This section shall not revoke or rescind any  regulations
or  advisory  opinions issued by the state ethics commission, the tempo-
rary lobbying commission and  the  commission  on  public  integrity  in
effect  upon  the effective date of the chapter of the laws of two thou-

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

                                                           LBD15708-05-0

S. 6792                             2                            A. 9886

sand ten which amended this section to the extent that such  regulations
or  opinions are not inconsistent with any law of the state of New York,
but such regulations and opinions shall apply only to matters over which
such commissions had jurisdiction at the time such regulations and opin-
ions  were  promulgated  or  issued.  The  commission  shall undertake a
comprehensive review of all such regulations and  opinions,  which  will
address  the  consistency  of  such  regulations and opinions among each
other and with the statutory  language.  The  commission  shall,  before
April first, two thousand eleven, report to the governor and legislature
regarding such review and shall propose any regulatory changes and issue
any advisory opinions necessitated by such review.
  (c) The commission shall establish procedures necessary to prevent the
unauthorized disclosure of any information received by any member of the
commission  or  staff of the commission. Any breaches of confidentiality
shall be investigated by the commission and appropriate action shall  be
taken IN ACCORDANCE WITH SUBDIVISION THIRTEEN OF THIS SECTION.
  S  2.    Subdivision  (h)  of  section  1-d of the legislative law, as
amended by a chapter of the laws of 2010 amending the executive law  and
other  laws  relating to governmental ethics and compliance, as proposed
in legislative bill numbers S.6457 and A.9544, is  amended  to  read  as
follows:
  (h) Structure of the commission:
  (i)  The  chief  administrative officer of the commission shall be the
executive director, who shall be appointed by a  majority  vote  of  the
commission  and  shall  serve  a  three year term, except that he or she
shall be dismissed only for cause by a majority vote of the commission.
  (ii) The commission shall have the power and duty to:
  (1) administer and enforce all the provisions of this article;
  (2) CONDUCT ANY INVESTIGATION NECESSARY TO CARRY OUT THE PROVISIONS OF
THIS ARTICLE UPON ITS OWN INITIATIVE, UPON REFERRAL FROM  ANOTHER  OVER-
SIGHT  BODY OR UPON RECEIPT OF A SWORN COMPLAINT. PURSUANT TO THIS POWER
AND DUTY, THE COMMISSION MAY ADMINISTER OATHS OR AFFIRMATIONS,  SUBPOENA
WITNESSES,  COMPEL  THEIR  ATTENDANCE  AND REQUIRE THE PRODUCTION OF ANY
BOOKS OR RECORDS WHICH IT MAY DEEM RELEVANT OR MATERIAL;
  (3) conduct a program of random audits subject to the terms and condi-
tions of this section. Any such program shall  be  carried  out  in  the
following manner:
  A.   The commission may randomly select reports or registration state-
ments required to be filed by lobbyists  or  clients  pursuant  to  this
article for audit. Any such selection shall be done in a manner pursuant
to  which the identity of any particular lobbyist or client whose state-
ment or report is selected for audit is unknown to the  commission,  its
staff or any of their agents prior to selection.
  B.    The  commission  shall develop protocols for the conduct of such
random audits. Such random audits may require the production  of  books,
papers, records or memoranda relevant and material to the preparation of
the  selected  statements or reports, for examination by the commission.
Any such protocols shall ensure that similarly  situated  statements  or
reports are audited in a uniform manner.
  C.    The commission shall contract with an outside accounting entity,
which shall monitor the process pursuant to which the commission selects
statements or reports for audit and carries out the provisions of claus-
es A and B of this subparagraph and certify that such  process  complies
with the provisions of such clauses.
  D.  Upon completion of a random audit conducted in accordance with the
provisions  of  clauses  A, B and C of this subparagraph, the commission

S. 6792                             3                            A. 9886

shall determine whether there is reasonable cause to  believe  that  any
such  statement  or  report is inaccurate or incomplete. Upon a determi-
nation that such reasonable cause exists, the commission may require the
production  of  further books, records or memoranda, subpoena witnesses,
compel their attendance and testimony and administer oaths  or  affirma-
tions,  to  the extent the commission determines such actions are neces-
sary to obtain information relevant and material to  investigating  such
inaccuracies or omissions;
  [(3)]  (4)  conduct  hearings  pursuant to article seven of the public
officers law. Any hearing may be conducted  as  a  video  conference  in
accordance  with  the  provisions  of  subdivision  four  of section one
hundred four of the public officers law;
  [(4)] (5)  prepare  uniform  forms  for  the  statements  and  reports
required by this article;
  [(5)]  (6)  meet at least once during each bi-monthly reporting period
of the year as established by subdivision (a) of section one-h  of  this
article and may meet at such other times as the commission, or the chair
and vice-chair jointly, shall determine;
  [(6)]  (7)  issue  advisory  opinions to those under its jurisdiction.
Such advisory opinions, which shall be published and made  available  to
the  public,  shall  not  be  binding  upon  such commission except with
respect to the person to whom such opinion is rendered, provided, howev-
er, that a subsequent modification by such commission of such  an  advi-
sory opinion shall operate prospectively only; and
  [(7)] (8) submit by the first day of March next following the year for
which  such report is made to the governor and the members of the legis-
lature an annual report summarizing the commission's work,  listing  the
lobbyists  and clients required to register pursuant to this article and
the expenses and compensation reported  pursuant  to  this  article  and
making  recommendations  with  respect  to  this article. The commission
shall make this report available free of charge to the public.
  S 3. Clause (D) of subparagraph (iii) of paragraph (b) of  subdivision
4  of  section  80  of the legislative law, as added by a chapter of the
laws of 2010 amending the executive  law  and  other  laws  relating  to
governmental  ethics  and  compliance,  as  proposed in legislative bill
numbers S.6457 and A.9544, is amended to read as follows:
  (D) a summary of the governing board's findings of fact.    WHERE  THE
GOVERNING  BOARD  IS  UNABLE  TO  RECOMMEND ACTION BECAUSE OF A TIE VOTE
PURSUANT TO CLAUSE (C) OF THIS SUBPARAGRAPH, IT SHALL INCLUDE, IN  ADDI-
TION TO ANY FINDINGS OF FACT UPON WHICH A MAJORITY OF THE MEMBERS AGREE,
A  STATEMENT  INDICATING  ANY  FINDINGS  OF FACT AGREED UPON BY ANY FOUR
MEMBERS OF THE COMMISSION.
  S 4. Subparagraph (iii) of paragraph (a) of subdivision 7  of  section
80  of  the  legislative  law, as added by a chapter of the laws of 2010
amending the executive law  and  other  laws  relating  to  governmental
ethics  and  compliance,  as proposed in legislative bill numbers S.6457
and A.9544, is amended to read as follows:
  (iii) The office shall establish procedures necessary to  prevent  the
unauthorized disclosure of any information received by any member of the
board  or staff of the office.  Any breaches of confidentiality shall be
investigated by the GOVERNING board  and  appropriate  action  shall  be
taken BY THE JOINT LEGISLATIVE COMMISSION ON ETHICS STANDARDS IN ACCORD-
ANCE WITH SUBDIVISION K OF SECTION EIGHTY-ONE OF THIS ARTICLE.
  S  5. Subdivisions a, b and d of section 81 of the legislative law, as
added by a chapter of the laws of 2010 amending the  executive  law  and
other  laws  relating to governmental ethics and compliance, as proposed

S. 6792                             4                            A. 9886

in legislative bill numbers S.6457 and A.9544, are amended  to  read  as
follows:
  a.    There  is  established  a joint legislative commission on ethics
standards which shall consist  of  eight  members  and  which  shall  be
responsible  for  training,  education,  and  advice  regarding sections
seventy-three, seventy-three-a and seventy-four of the  public  officers
law  and review the enforcement of such sections.  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 four members  shall  not  be  present  or
former  members  of  the legislature and shall not be and shall not have
been in the previous five years, candidates for member of  the  legisla-
ture,  employees  of the legislature, 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 required to register in New York state or any other juris-
diction. The four members who are not legislators shall be appointed  as
follows: one by the temporary president of the senate, one by the speak-
er of the assembly, one by the minority leader of the senate, and one by
the  minority  leader  of  the assembly.   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 legisla-
ture, legislative employees as defined in section seventy-three  of  the
public  officers law, candidates for member of the legislature and indi-
viduals who have formerly held such positions or who have formerly  been
such  candidates  EXCEPT AS PROVIDED IN PARAGRAPH THREE OF SUBDIVISION J
OF THIS SECTION.
  b. 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]  AND  THE  MEMBERS  OF THE COMMISSION WHO ARE NOT
MEMBERS OF THE LEGISLATURE AND WHO ARE FIRST APPOINTED BY THE  TEMPORARY
PRESIDENT  OF  THE  SENATE AND MINORITY LEADER OF THE SENATE SHALL SERVE
THREE YEAR TERMS.  Each member of the commission who is not a member  of
the  legislature  shall be appointed thereafter for a term of four years
and may be removed by the appointing authority for  substantial  neglect
of  duty,  misconduct  in  office,  inability to discharge the powers or
duties of the office or violations of this section after written  notice
and opportunity for a reply.
  d.  Any  vacancy  occurring  on  the commission shall be filled within
sixty days by the appointing  authority,  PROVIDED,  HOWEVER  THAT  THIS
SUBDIVISION  SHALL  BE CONSTRUED TO ENSURE THAT EACH LEGISLATIVE CONFER-
ENCE HAS ONE APPOINTEE TO THE COMMISSION WHO IS A MEMBER OF THE LEGISLA-
TURE AND ONE APPOINTEE TO THE COMMISSION WHO IS  NOT  A  MEMBER  OF  THE
LEGISLATURE.
  S 6. Subdivision 5 of section 107 of the civil service law, as amended
by chapter 14 of the laws of 2007, is amended to read as follows:
  5.  Violation of this section. Complaints alleging a violation of this
section by a statewide elected official or a state officer or  employee,
as  defined  in section seventy-three of the public officers law, may be
directed to the [commission on public integrity]  EXECUTIVE  ETHICS  AND
COMPLIANCE COMMISSION.

S. 6792                             5                            A. 9886

  S  7.   Subdivision 3 of section 3-100 of the election law, as amended
by a chapter of the laws of 2010 amending the executive  law  and  other
laws  relating  to  governmental  ethics  and compliance, as proposed in
legislative bill numbers S.6457  and  A.9544,  is  amended  to  read  as
follows:
  3.  The  commissioners  of  the state board of elections shall have no
other public employment. The commissioners shall receive an annual sala-
ry of twenty-five thousand dollars, within the  amounts  made  available
therefor by appropriation. The board shall, for the purposes of sections
seventy-three  and  seventy-four of the public officers law, be a "state
agency", and such commissioners shall be "officers" of the  state  board
of  elections for the purposes of such sections. Within the amounts made
available by appropriation therefor, the state board of elections  shall
appoint  two  co-executive directors, an enforcement counsel, [a special
counsel,] a deputy enforcement counsel, who  shall  be  a  member  of  a
different  major political party than the enforcement counsel, A SPECIAL
COUNSEL, a deputy special counsel, who shall be a member of a  different
major  political  party than the special counsel, A DIRECTOR OF ELECTION
OPERATIONS, A DEPUTY DIRECTOR OF ELECTION OPERATIONS, WHO SHALL    BE  A
MEMBER  OF  A  DIFFERENT  MAJOR  POLITICAL  PARTY  THAN  THE DIRECTOR OF
ELECTION OPERATIONS, A DIRECTOR OF PUBLIC INFORMATION, A DEPUTY DIRECTOR
OF PUBLIC INFORMATION, WHO SHALL BE A MEMBER OF A DIFFERENT MAJOR  POLI-
TICAL PARTY THAN THE DIRECTOR OF PUBLIC INFORMATION and such other staff
members  as  are necessary in the exercise of its functions, and may fix
their compensation.  The commissioners or, in the case of a  vacancy  on
the  board,  the  commissioner,  of  each of the major political parties
shall appoint one  co-executive  director.  Each  co-executive  director
shall  serve  a  term  of  four  years.  The enforcement counsel and the
special counsel shall each serve a term of four years and  may  only  be
removed  for  cause. Any time after the effective date of the chapter of
the laws of two thousand ten which amended this subdivision, the commis-
sioners[,] or, in the case of a vacancy on the board, the  commissioner,
of  each  of the same major political party as the incumbent enforcement
[and special  counsels  shall  appoint  such  counsel]  COUNSEL,  DEPUTY
ENFORCEMENT  COUNSEL,  SPECIAL COUNSEL, DEPUTY SPECIAL COUNSEL, DIRECTOR
OF ELECTION OPERATIONS, DEPUTY DIRECTOR OF ELECTION OPERATIONS, DIRECTOR
OF PUBLIC INFORMATION AND DEPUTY DIRECTOR OF PUBLIC  INFORMATION,  SHALL
APPOINT  SUCH  COUNSELS,  DIRECTORS  AND  DEPUTIES.   Any vacancy in the
office  of  co-executive  director,  enforcement  counsel  [or],  DEPUTY
ENFORCEMENT  COUNSEL,  special counsel, DEPUTY SPECIAL COUNSEL, DIRECTOR
OF ELECTION OPERATIONS, DEPUTY DIRECTOR OF ELECTION OPERATIONS,   DIREC-
TOR  OF  PUBLIC  INFORMATION  AND DEPUTY DIRECTOR OF PUBLIC INFORMATION,
shall be filled by the commissioners or, in the case of a vacancy on the
board, the commissioner, of the same major political party as the vacat-
ing incumbent, for the remaining period of the  term  of  such  vacating
incumbent.
  S  8.  Subdivisions  4, 5, 6, 7 and 9 of section 3-104 of the election
law, as added by a chapter of the laws of 2010  amending  the  executive
law  and  other  laws relating to governmental ethics and compliance, as
proposed in legislative bill numbers S.6457 and A.9544, are  amended  to
read as follows:
  4.    Upon  receipt  of  a  complaint and supporting information OR AN
INTERNAL REFERRAL FROM THE ENFORCEMENT UNIT alleging any other violation
of article fourteen of  this  chapter,  the  enforcement  counsel  shall
analyze  the [complaint] FACTS AND THE LAW RELEVANT TO SUCH COMPLAINT OR
REFERRAL to determine if an  investigation  should  be  undertaken.  The

S. 6792                             6                            A. 9886

enforcement  counsel shall, if necessary, request additional information
from the complainant to assist such  counsel  in  making  this  determi-
nation.  Such  analysis  shall include the following: first, whether the
allegations,  if  true, would constitute a violation of article fourteen
of this chapter and, second, whether the allegations  are  supported  by
credible evidence.
  5.   If  the  enforcement  counsel  determines  that  the  allegations
CONTAINED IN A COMPLAINT, if true, would not constitute a  violation  of
article  fourteen  of  this  chapter  or  that  the  allegations are not
supported by credible evidence, he or she shall: (A) NOTIFY  THE  DEPUTY
ENFORCEMENT  COUNSEL  OF  SUCH DETERMINATION AND (B) PUBLICLY NOTIFY THE
STATE BOARD OF ELECTIONS OF SUCH DETERMINATION.  IF THE STATE  BOARD  OF
ELECTIONS  PUBLICLY  DETERMINES,  AS  PROVIDED  IN  SUBDIVISION  FOUR OF
SECTION 3-100 OF THIS  TITLE,  THAT  THE  ALLEGATIONS,  IF  TRUE,  WOULD
CONSTITUTE  A VIOLATION OF ARTICLE FOURTEEN OF THIS CHAPTER AND THAT THE
ALLEGATIONS APPEAR TO BE SUPPORTED BY CREDIBLE EVIDENCE, IT SHALL DIRECT
THAT THE ENFORCEMENT COUNSEL CONDUCT AN INVESTIGATION.   LACKING SUCH  A
DETERMINATION,  THE  ENFORCEMENT  COUNSEL  SHALL  issue  a letter to the
complainant dismissing the complaint.
  6. If the enforcement counsel  determines  that  the  allegations,  if
true,  would  constitute a violation of article fourteen of this chapter
and that the allegations appear to be supported by credible evidence, he
or she shall: (A) notify the [state board of elections  of  (a)]  DEPUTY
ENFORCEMENT  COUNSEL  OF  (I)  his  or  her intent to resolve the matter
extra-judicially due to the de minimus nature of the violation; or [(b)]
(II) his or her intent to commence an investigation,  AND  (B)  PUBLICLY
NOTIFY  THE  STATE  BOARD  OF ELECTIONS OF SUCH INTENT no later than the
board's next regularly scheduled meeting.  Notification shall  summarize
the  relevant  facts  and  the  applicable  law and shall, to the extent
possible, protect from public disclosure the identity of the complainant
and the individual subject to  the  complaint.  THE  DEPUTY  ENFORCEMENT
COUNSEL  SHALL  HAVE  THE  OPPORTUNITY  TO REVIEW THE ENTIRE FILE OF ANY
PRELIMINARY INVESTIGATION CONDUCTED BY THE ENFORCEMENT COUNSEL A MINIMUM
OF TEN DAYS PRIOR TO SAID REGULARLY SCHEDULED MEETING OF THE  BOARD  AND
TO  SUBMIT  A  PUBLIC,  WRITTEN  CONCURRENCE  WITH  OR  DISSENT FROM THE
ENFORCEMENT COUNSEL'S PROPOSAL.
  7. If, upon considering the enforcement counsel's notice of intent  to
commence an investigation AND THE DEPUTY ENFORCEMENT COUNSEL'S RECOMMEN-
DATION,  the  state board of elections believes that the allegations, if
true, would not constitute a violation of article fourteen of this chap-
ter, or the allegations are not supported by credible evidence or,  that
on  balance,  the equities favor a dismissal of the complaint, the board
shall publicly direct that an investigation not be undertaken  no  later
than  sixty  days after the receipt of notification from the enforcement
counsel of his or her intent to commence an investigation.  In determin-
ing whether the equities favor a dismissal of the complaint,  the  state
board of elections shall consider the following factors: (a) whether the
complaint  alleges  a  de  minimus violation of article fourteen of this
chapter; (b) whether the subject of the complaint has made a good  faith
effort  to  correct  the  violation;  and (c) whether the subject of the
complaint has a history of similar violations.   Determinations  of  the
state  board  of elections to dismiss a complaint and not proceed with a
formal investigation shall be voted upon as provided in subdivision four
of section 3-100 of this title at an open meeting  pursuant  to  article
seven  of the public officers law, and shall be made on a fair and equi-

S. 6792                             7                            A. 9886

table basis and without regard to the  status  of  the  subject  of  the
complaint.
  9.  At  the  conclusion  of its investigation, the enforcement counsel
shall provide the DEPUTY ENFORCEMENT COUNSEL  AND  THE  state  board  of
elections  with  a written recommendation as to: (a) whether substantial
reason exists to believe a violation of article fourteen of this chapter
has occurred and, if so, the nature of the violation and any  applicable
penalty,  as  defined  in  section  14-126 of this chapter, based on the
nature of the violation; (b)  whether  the  matter  should  be  resolved
extra-judicially;  (c)  whether a special proceeding should be commenced
in the supreme court to recover a  civil  penalty;  and  (d)  whether  a
referral  should  be made to a district attorney pursuant to subdivision
eleven of this section because reasonable  cause  exists  to  believe  a
violation  warranting  criminal prosecution has taken place.  THE DEPUTY
ENFORCEMENT COUNSEL SHALL HAVE THE OPPORTUNITY TO REVIEW THE ENTIRE FILE
OF ANY INVESTIGATION CONDUCTED BY THE ENFORCEMENT COUNSEL A  MINIMUM  OF
TEN  DAYS  PRIOR TO SAID REGULARLY SCHEDULED MEETING OF THE BOARD AND TO
SUBMIT A PUBLIC, WRITTEN CONCURRENCE WITH OR DISSENT FROM  THE  ENFORCE-
MENT COUNSEL'S RECOMMENDATION.
  S  9.  This  act  shall  take  effect on the same date and in the same
manner as a chapter of the laws of 2010 amending the executive  law  and
other  laws  relating to governmental ethics and compliance, as proposed
in legislative bill numbers S.6457 and A.9544, takes effect.

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Senate Bill S6792

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Sponsored By

Eric T. Schneiderman