S T A T E O F N E W Y O R K
________________________________________________________________________
586
2019-2020 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2019
___________
Introduced by M. of A. ROZIC, WILLIAMS, SEAWRIGHT, GUNTHER, ENGLEBRIGHT,
CAHILL, HYNDMAN, LAVINE, WEPRIN, DICKENS, MOSLEY, D'URSO, NIOU,
BARRON, DE LA ROSA, GIGLIO, RIVERA, LUPARDO, ARROYO, LAWRENCE --
Multi-Sponsored by -- M. of A. ABBATE, DAVILA, NOLAN, SIMON, THIELE --
read once and referred to the Committee on Governmental Operations
AN ACT to amend the public officers law, in relation to establishing a
joint commission on public transparency and sexual harassment
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The public officers law is amended by adding a new section
75-b to read as follows:
§ 75-B. COMMISSION ON PUBLIC TRANSPARENCY AND SEXUAL HARASSMENT. 1.
WHEN USED IN THIS SECTION THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS:
(A) "STATEWIDE ELECTED OFFICIAL" SHALL MEAN THE GOVERNOR, LIEUTENANT
GOVERNOR, COMPTROLLER, OR ATTORNEY GENERAL;
(B) "STATE OFFICER OR EMPLOYEE" SHALL MEAN:
(I) HEADS OF STATE DEPARTMENTS AND THEIR DEPUTIES AND ASSISTANTS WHO
SERVE AT THE DISCRETION OF THE STATEWIDE ELECTED OFFICIAL; AND
(II) OFFICERS AND EMPLOYEES OF STATEWIDE ELECTED OFFICIALS WHO SERVE
AT THE DISCRETION OF THE STATEWIDE ELECTED OFFICIAL;
(C) "LEGISLATIVE EMPLOYEE" SHALL MEAN ANY OFFICER OR EMPLOYEE OF THE
LEGISLATURE; AND
(D) "LEGISLATIVE MEMBER" SHALL MEAN A SENATOR OR MEMBER OF THE ASSEM-
BLY.
2. THERE IS HEREBY ESTABLISHED WITHIN THE DEPARTMENT OF STATE A
COMMISSION ON PUBLIC TRANSPARENCY AND SEXUAL HARASSMENT WHICH SHALL
CONSIST OF ELEVEN MEMBERS AND SHALL HAVE AND EXERCISE THE POWERS AND THE
DUTIES SET FORTH IN THIS SECTION WITH RESPECT TO STATEWIDE ELECTED OFFI-
CIALS, STATE OFFICERS AND EMPLOYEES, LEGISLATIVE EMPLOYEES, AND LEGISLA-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01315-01-9
A. 586 2
TIVE MEMBERS. THIS SECTION SHALL NOT BE DEEMED TO HAVE REVOKED OR
RESCINDED ANY REGULATIONS OR ADVISORY OPINIONS ISSUED BY THE LEGISLATIVE
ETHICS COMMISSION, THE COMMISSION ON PUBLIC INTEGRITY, THE STATE ETHICS
COMMISSION, OR THE STATE OFFICE FOR HUMAN RIGHTS IN EFFECT UPON THE
EFFECTIVE DATE OF THIS SECTION TO THE EXTENT THAT SUCH REGULATIONS OR
OPINIONS ARE NOT INCONSISTENT WITH ANY LAW OF THIS STATE, BUT SUCH REGU-
LATIONS AND OPINIONS SHALL APPLY ONLY TO MATTERS OVER WHICH SUCH COMMIS-
SIONS HAD JURISDICTION AT THE TIME SUCH REGULATIONS AND OPINIONS WERE
PROMULGATED OR ISSUED. THE COMMISSION SHALL UNDERTAKE A COMPREHENSIVE
REVIEW OF THE CURRENT SEXUAL HARASSMENT POLICIES IN THE LEGISLATURE AND
EXECUTIVE AGENCIES. THE COMMISSION SHALL, BEFORE FEBRUARY FIRST, TWO
THOUSAND TWENTY, REPORT TO THE GOVERNOR AND THE LEGISLATURE REGARDING
THIS REVIEW AND RECOMMENDATIONS FOR ANY REGULATORY OR STATUTORY GUIDANCE
FOR CONSISTENCY AND TRANSPARENCY.
3. THE COMMISSION SHALL CONSIST OF ELEVEN MEMBERS OF WHOM THREE SHALL
BE APPOINTED BY THE GOVERNOR, FOUR BY THE CHIEF JUDGE OF THE COURT OF
APPEALS, AND ONE EACH BY THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY
PRESIDENT OF THE SENATE, THE MINORITY LEADER OF THE SENATE, AND THE
MINORITY LEADER OF THE ASSEMBLY. OF THE THREE MEMBERS APPOINTED BY THE
GOVERNOR, NO MORE THAN TWO SHALL BE ENROLLED IN THE SAME POLITICAL
PARTY, AND TWO SHALL BE ATTORNEYS ADMITTED TO PRACTICE LAW IN THIS
STATE. OF THE FOUR MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF
APPEALS, NO MORE THAN TWO SHALL BE ENROLLED IN THE SAME POLITICAL PARTY,
TWO SHALL BE ATTORNEYS LICENSED TO PRACTICE LAW IN THIS STATE, AND TWO
SHALL NOT BE ATTORNEYS. NO MEMBER OF THE COMMISSION SHALL HOLD ANY
OFFICE IN ANY POLITICAL PARTY. MEMBERS OF THE COMMISSION SHALL BE
APPOINTED BASED ON THEIR ACTUAL EXPERIENCE IN THE ESTABLISHMENT OF
INSTITUTIONAL POLICIES, SEXUAL HARASSMENT CLAIMS, AND LEGAL MATTERS
REGARDING SEXUAL HARASSMENT ISSUES, SEX CRIMES, AND REPORTING. APPOINT-
ING AUTHORITIES SHALL COORDINATE APPOINTMENTS TO INCLUDE, BUT NOT BE
LIMITED TO, AN ATTORNEY ACTUALLY EMPLOYED IN THE AREA OF SEXUAL HARASS-
MENT LITIGATION AND SIMILAR LEGAL MATTERS WHO HAS DEMONSTRATED OUTSTAND-
ING SERVICE AND CONTRIBUTIONS TO THIS LEGAL AREA, A HUMAN RESOURCES OR
LABOR RELATIONS REPRESENTATIVE WHO HAS DEMONSTRATED ACTUAL SERVICE IN
THE ESTABLISHMENT OF EFFECTIVE SEXUAL HARASSMENT POLICIES IN THE WORK-
PLACE, A MEMBER OF LAW ENFORCEMENT WHO HAS WORK EXPERIENCE IN RELATION
TO SEX CRIMES AND HARASSMENT, AND A MEMBER OF THE JUDICIAL BRANCH WHO
HAS HAD EXPERIENCE IN THE CONSIDERATION OF CIVIL CLAIMS RELATED TO SEXU-
AL HARASSMENT AND SEX DISCRIMINATION. IN THE EVENT THAT A VACANCY ARISES
WITH RESPECT TO A MEMBER OF THE COMMISSION FIRST APPOINTED PURSUANT TO
THIS SECTION BY A LEGISLATIVE LEADER, THE LEGISLATIVE LEADERS OF THE
SAME POLITICAL PARTY IN THE SAME HOUSE SHALL APPOINT A MEMBER TO FILL
SUCH VACANCY IRRESPECTIVE OF WHETHER THAT LEGISLATIVE LEADER'S POLITICAL
PARTY IS IN THE MAJORITY OR MINORITY. NO INDIVIDUAL SHALL BE ELIGIBLE
FOR APPOINTMENT AS A MEMBER OF THE COMMISSION WHO CURRENTLY OR WITHIN
THE LAST THREE YEARS IS OR HAS BEEN A MEMBER OF THE NEW YORK STATE
LEGISLATURE OR HAS BEEN A LEGISLATIVE EMPLOYEE, OR A STATEWIDE OFFICER
OR ELECTED OFFICIAL OR A COMMISSIONER OF AN EXECUTIVE AGENCY APPOINTED
BY THE GOVERNOR, OR HAS HELD JUDICIAL OFFICE. MEMBERS OF THE COMMISSION
SHALL BE RESIDENTS OF THE STATE.
4. MEMBERS OF THE COMMISSION SHALL SERVE FOR TERMS OF FIVE YEARS;
PROVIDED, HOWEVER, THAT OF THE MEMBERS FIRST APPOINTED BY THE GOVERNOR,
ONE SHALL SERVE FOR ONE YEAR, ONE SHALL SERVE FOR TWO YEARS, AND ONE
SHALL SERVE FOR THREE YEARS, AS DESIGNATED BY THE GOVERNOR; THE MEMBERS
FIRST APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE AND BY THE
SPEAKER OF THE ASSEMBLY SHALL SERVE FOR FOUR YEARS AND THE MEMBERS FIRST
A. 586 3
APPOINTED BY THE MINORITY LEADERS OF THE SENATE AND THE ASSEMBLY SHALL
SERVE FOR TWO YEARS.
5. MEMBERS OF THE COMMISSION SHALL DESIGNATE A CHAIR FROM THE MEMBER-
SHIP THEREOF FOR A TERM OF TWO YEARS OR UNTIL HIS OR HER TERM EXPIRES,
WHICHEVER PERIOD IS SHORTER. THE CHAIR OR A MEMBER OF THE COMMISSION MAY
CALL A MEETING.
6. ANY VACANCY OCCURRING ON THE COMMISSION SHALL BE FILLED WITHIN
THIRTY DAYS OF ITS OCCURRENCE IN THE SAME MANNER AS THE MEMBER WHOSE
VACANCY IS BEING FILLED WAS APPOINTED. A PERSON APPOINTED TO FILL A
VACANCY OCCURRING OTHER THAN BY EXPIRATION OF A TERM OF OFFICE SHALL BE
APPOINTED FOR THE UNEXPIRED TERM OF THE MEMBER HE OR SHE SUCCEEDS.
7. MEMBERS OF THE COMMISSION MAY BE REMOVED BY THE APPOINTING AUTHORI-
TY SOLELY FOR SUBSTANTIAL NEGLECT OF DUTY, GROSS MISCONDUCT IN OFFICE,
VIOLATION OF THE CONFIDENTIALITY, INABILITY TO DISCHARGE THE POWERS OR
DUTIES OF OFFICE OR A VIOLATION OF THIS SECTION, AFTER WRITTEN NOTICE
AND OPPORTUNITY FOR A REPLY.
8. MEMBERS OF THE COMMISSION SHALL BE REIMBURSED FOR ALL REASONABLE
EXPENSES ACTUALLY AND NECESSARILY INCURRED BY HIM OR HER IN THE PERFORM-
ANCE OF HIS OR HER DUTIES UNDER THIS SECTION.
9. EIGHT MEMBERS SHALL CONSTITUTE A QUORUM.
10. THE COMMISSION SHALL:
(A) ADOPT, AMEND AND RESCIND RULES AND REGULATIONS DEFINING SEXUAL
HARASSMENT FOR STATE AGENCIES, OFFICES, AND BRANCHES OF GOVERNMENT AND
DEVELOP RECOMMENDATIONS FOR THE UNIFORM DISTRIBUTION OF THE DEFINITIONS
AND POLICIES DEVELOPED PURSUANT TO THIS SECTION;
(B) MAKE AVAILABLE FORMS FOR COMPLAINTS OF SEXUAL HARASSMENT AND SEX
DISCRIMINATION INVOLVING STATEWIDE ELECTED OFFICIALS, STATE OFFICERS OR
EMPLOYEES, LEGISLATIVE MEMBERS AND EMPLOYEES;
(C) REVIEW SEXUAL HARASSMENT FILING PROCEDURES IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION;
(D) RECEIVE COMPLAINTS AND REFERRALS ALLEGING VIOLATIONS OF SECTION
TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OR PROVISIONS OF ARTICLE
ONE HUNDRED THIRTY OF THE PENAL LAW BY A STATEWIDE ELECTED OFFICIAL, A
STATE OFFICER OR EMPLOYEE, LEGISLATIVE EMPLOYEE OR LEGISLATIVE MEMBER;
(E) IMMEDIATELY REPORT ANY ALLEGATIONS THAT, IF TRUE, WOULD CONSTITUTE
A CRIME, TO LAW ENFORCEMENT FOR INVESTIGATION;
(F) FOR ALL OTHER MATTERS THE COMMISSION SHALL DETERMINE WHETHER A
COMPLAINT IS "FOUNDED" OR "UNFOUNDED" AND SHALL ISSUE A RECOMMENDATION,
IN ACCORDANCE WITH THE CONFIDENTIALITY PROVISIONS CONTAINED IN THIS
SECTION AND CONSISTENT WITH ALL OTHER LAWS, INCLUDING AWARDS TO CRIME
VICTIMS UNDER ARTICLE TWENTY-TWO OF THE EXECUTIVE LAW, TO THE APPOINTING
AUTHORITY AS TO THE BASIS OF THE CLAIMS, RECOMMENDATIONS FOR APPROPRIATE
RESOLUTION, AND WHETHER THE COMMISSION APPROVES OF THE USE OF PUBLIC
MONIES, INCLUDING FUNDS OF THE LEGISLATURE, TO RESOLVE SPECIFIC CLAIMS
RAISED BY THE CLAIMANT. THE RECOMMENDATIONS OF THE COMMISSION SHALL BE
FULLY AND PROPERLY CONSIDERED BY THE APPOINTING AUTHORITY BUT SHALL NOT
BE BINDING. THERE SHALL BE A REBUTTABLE PRESUMPTION ASSUMED BY THE
COMMISSION THAT ANY STATEWIDE ELECTED OFFICIAL, STATE OFFICER OR EMPLOY-
EE, OR LEGISLATIVE MEMBER OR EMPLOYEE WHO MAKES A GOOD FAITH EFFORT AT
REPORTING OR ADDRESSING SEXUAL HARASSMENT SHALL NOT BE HELD INDIVIDUALLY
LIABLE UNDER ANY CLAIM OR SETTLEMENT;
(G) PREPARE AN ANNUAL REPORT TO THE GOVERNOR AND THE LEGISLATURE
SUMMARIZING THE ACTIVITIES OF THE COMMISSION DURING THE PREVIOUS YEAR
INCLUDING, BUT NOT LIMITED TO, (I) AN ACCOUNTING OF FOUNDED AND
UNFOUNDED CLAIMS OF SEXUAL HARASSMENT ORGANIZED BY LEGISLATIVE BRANCH
AND EXECUTIVE OFFICE OR AGENCY, AND (II) WHERE A MATTER HAS BEEN
A. 586 4
RESOLVED, THE DATE AND NATURE OF THE DISPOSITION AND ANY SANCTIONS OR
RECOMMENDATIONS OF THE COMMISSION, SUBJECT TO THE CONFIDENTIALITY
REQUIREMENTS OF THIS SECTION;
(H) PROVIDE NOTIFICATION TO ANY PERSON WHO HAS FILED A SEXUAL HARASS-
MENT CLAIM OF THE DETERMINATION OF THE COMMISSION'S REVIEW AS WELL AS
THE INDIVIDUAL'S RIGHT TO APPEAL THE COMMISSION'S DETERMINATION PURSUANT
TO SUBDIVISION TWELVE OF THIS SECTION;
(I) APPOINT AN EXECUTIVE DIRECTOR WHO SHALL ACT IN ACCORDANCE WITH THE
POLICIES OF THE COMMISSION. THE APPOINTMENT AND REMOVAL OF THE EXECUTIVE
DIRECTOR SHALL BE MADE SOLELY BY A VOTE OF A MAJORITY OF THE COMMISSION,
WHICH MAJORITY SHALL INCLUDE AT LEAST ONE MEMBER APPOINTED BY THE GOVER-
NOR FROM EACH OF THE TWO MAJOR POLITICAL PARTIES, AND ONE MEMBER
APPOINTED BY A LEGISLATIVE LEADER FROM EACH OF THE TWO MAJOR POLITICAL
PARTIES. THE COMMISSION MAY DELEGATE AUTHORITY TO THE EXECUTIVE DIRECTOR
TO ACT IN THE NAME OF THE COMMISSION BETWEEN MEETINGS OF THE COMMISSION
PROVIDED SUCH DELEGATION IS IN WRITING, THE SPECIFIC POWERS TO BE DELEG-
ATED ARE ENUMERATED, AND THE COMMISSION SHALL NOT DELEGATE ANY DECISIONS
SPECIFIED IN THIS SECTION THAT REQUIRE A VOTE OF THE COMMISSION. THE
EXECUTIVE DIRECTOR SHALL BE APPOINTED WITHOUT REGARD TO POLITICAL AFFIL-
IATION AND SOLELY ON THE BASIS OF FITNESS TO PERFORM THE DUTIES ASSIGNED
BY THIS ARTICLE, AND SHALL BE A QUALIFIED, INDEPENDENT PROFESSIONAL. THE
COMMISSION MAY REMOVE THE EXECUTIVE DIRECTOR FOR NEGLECT OF DUTY,
MISCONDUCT IN OFFICE, VIOLATION OF THE CONFIDENTIALITY, OR INABILITY OR
FAILURE TO DISCHARGE THE POWERS OR DUTIES OF OFFICE, INCLUDING THE FAIL-
URE TO FOLLOW THE LAWFUL INSTRUCTIONS OF THE COMMISSION;
(J) REVIEW AND APPROVE A STAFFING PLAN PROVIDED AND PREPARED BY THE
EXECUTIVE DIRECTOR WHICH SHALL CONTAIN, AT A MINIMUM, A LIST OF THE
VARIOUS UNITS AND DIVISIONS AS WELL AS THE NUMBER OF POSITIONS IN EACH
UNIT, TITLES AND THEIR DUTIES, AND SALARIES, AS WELL AS THE VARIOUS
QUALIFICATIONS FOR EACH POSITION INCLUDING, BUT NOT LIMITED TO, EDUCA-
TION AND PRIOR EXPERIENCE FOR EACH POSITION;
(K) APPOINT SUCH OTHER STAFF AS ARE NECESSARY TO CARRY OUT ITS DUTIES
UNDER THIS SECTION; AND
(L) DEVELOP AND ADMINISTER AN ONLINE SEXUAL HARASSMENT ORIENTATION
COURSE TO BE MADE AVAILABLE ACROSS THE LEGISLATIVE AND EXECUTIVE BRANCH-
ES FOR THE PURPOSES OF A UNIFORM AND CONSISTENT POLICY ACROSS GOVERN-
MENT.
11. (A) WHEN AN INDIVIDUAL BECOMES A MEMBER OR STAFF OF THE COMMIS-
SION, THAT INDIVIDUAL SHALL BE REQUIRED TO SIGN A NON-DISCLOSURE STATE-
MENT.
(B) EXCEPT AS OTHERWISE REQUIRED OR PROVIDED BY LAW, TESTIMONY
RECEIVED OR ANY OTHER INFORMATION OBTAINED BY A COMMISSIONER OR STAFF OF
THE COMMISSION SHALL NOT BE DISCLOSED BY ANY SUCH INDIVIDUAL TO ANY
PERSON OR ENTITY OUTSIDE THE COMMISSION DURING THE PENDENCY OF ANY
MATTER. ANY CONFIDENTIAL COMMUNICATION TO ANY PERSON OR ENTITY OUTSIDE
THE COMMISSION RELATED TO THE MATTERS BEFORE THE COMMISSION MAY OCCUR
ONLY AS AUTHORIZED BY THE COMMISSION.
(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 INSPECTOR GENERAL AND APPROPRIATE ACTION
SHALL BE TAKEN. ANY COMMISSIONER OR PERSON EMPLOYED BY THE COMMISSION
WHO INTENTIONALLY AND WITHOUT AUTHORIZATION RELEASES CONFIDENTIAL INFOR-
MATION RECEIVED BY THE COMMISSION SHALL BE GUILTY OF A CLASS A MISDEMEA-
NOR.
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12. THE COMMISSION SHALL BE DEEMED TO BE AN AGENCY OF THE STATE 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 PENALTIES OR FINDINGS AUTHORIZED IN THIS SECTION. SUCH
RULES, WHICH SHALL NOT BE SUBJECT TO THE APPROVAL REQUIREMENTS OF THE
STATE ADMINISTRATIVE PROCEDURE ACT, SHALL PROVIDE FOR DUE PROCESS PROCE-
DURAL MECHANISMS SUBSTANTIALLY SIMILAR TO THOSE SET FORTH IN ARTICLE
THREE OF THE STATE ADMINISTRATIVE PROCEDURE ACT BUT SUCH MECHANISMS NEED
NOT BE IDENTICAL IN TERMS OF SCOPE.
§ 2. This act shall take effect immediately and shall apply to settle-
ments entered into on and after such date.