NY State Senate Bill S855

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
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Actions

view actions (5)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 01, 2022	opinion referred to judiciary
Jan 28, 2022	to attorney-general for opinion
Jan 05, 2022	referred to judiciary
Jan 08, 2021	to attorney-general for opinion
Jan 06, 2021	referred to judiciary

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S855 (ACTIVE) - Details

See Assembly Version of this Bill:: A1929
Current Committee:: Senate Judiciary
Law Section:: Constitution, Concurrent Resolutions to Amend
Laws Affected:: Add Art V-A §§1 - 8, Constn
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8309, A10651
2019-2020: S594, A1282

S855 (ACTIVE) - Summary

Relates to state government integrity including the creation of a New York state government integrity commission.

S855 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S855

SPONSOR: KRUEGER
 
TITLE OF BILL:

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing that the
constitution be amended by adding a new article V-A; in relation to
state government integrity

 
PURPOSE:

Proposed Constitutional Amendment to replace JCOPE and the LEC with a
single, truly independent, enforcement agency, similar to the Commission
on Judicial Conduct established in Article VI of the State Constitution,
to deter corruption in the legislative and executive branches of state
government.

 
SUMMARY OF PROVISIONS:

SECTION 1. DECLARATIONS OF THE PEOPLE

This section has no counterpart in current law and is possible because a
constitutional amendment, must be approved by the people.

Section 1.a. sets forth the overarching purpose of this amendment: to
ensure that the New York State government and those that do business
with it conduct themselves with the highest levels of integrity, fideli-
ty and accountability to the people of New York. Maintaining ethical
standards as a means of preventing governmental corruption is a prereq-
uisite to the legitimacy of the functions of our state government. The
section also emphasizes that preventing the appearance of corruption can
often be as important as preventing corruption itself-the people of New
York must be confident that their government is working for them, and
only for them.

Section 1.b. declares that this anti-corruption goal requires a single,
truly independent and non-partisan enforcement agency in order to make
enforcement credible, uniform, fair and efficacious.  The proposed agen-
cy is designed to create a level playing field on which a person's
influence, status or role neither renders him or her above the law nor
frustrates his or her ability to receive fair and equal treatment.

SECTION 2. NEW YORK STATE GOVERNMENT INTEGRITY COMMISSION

This section replaces JCOPE and LEC with a constitutionally established
New York State Government Integrity Commission modeled in large part on
the constitutionally established Commission on Judicial Conduct.

If proposed by the legislature and adopted by the people, the Commission
would be one of the strongest ethics enforcement agencies in the coun-
try. New York's reputation as overly indifferent to ethics and prone to
corruption would be well on the way to transformation.

Section 2.a. establishes the Commission and delineates the Commission's
authority to, on an independent basis, receive or initiate and resolve
ethics and integrity complaints. This section makes clear that this
Commission authority should in no way impede or diminish the anti-cor-
ruption work of any other agency or law enforcement authority or those
entities' right to seek relief in the courts. Indeed, the Commission can
defer to proceedings by these other authorities and could choose to do
so in order to make the best use of its own resources.

Section 2.b. sets forth the Commission's power to enforce the laws with-
in its jurisdiction. Rather than merely possessing the ability to fine
violators of the ethics laws, the Commission's authority includes the
ability to admonish, censure, suspend, demote or remove a state employee
in the legislative or executive branches. In the case of an elected
official, the Commission could order censure of the official.

Granting the Commission power to admonish, censure or, in egregious
cases, remove a violator is a crucial step toward achieving the goal of
deterring corruption in New York State government. Any sanction imposed
by the Commission is subject to judicial review, helping ensure that the
Commission's decision-making power comports with due process.

Section 2.c. sets forth the composition of the Commission and the proce-
dures for appointing and removing Commission members, with a focus on
preserving the independent and non-partisan nature of the Commission.
Like the Commission on Judicial Conduct, members of the Commission would
be appointed by all three branches of government - two by the governor,
one by each of the leaders of the each major political party in the two
houses of the legislature, and seven jointly by Chief Judge of the State
of New York and the Presiding Justices of the Appellate Divisions. This
helps ensure the Commission's independence and impartiality. This inde-
pendence is reinforced by the fact that a majority of the Commissioners
would be appointed by persons who are not subject to regulation by the
Commission but rather to regulation by the Commission on Judicial
Conduct.

The appointment process is also designed to be non-partisan. Three of
the six members appointed by the Governor and the Legislative Leaders
will not be of the same political party as the Governor and no more than
three of the persons appointed by the Presiding Justices will be of the
same political party.

To be eligible for appointment, a person may not have been a state offi-
cer or employee, a lobbyist or a political party officer within the
previous three years.

Commissioners would be compensated on a per diem basis pro rata to the
basic compensation of a member of the legislature.

Unlike JCOPE, where the person appointing a member can remove that
member for cause, members of the Commission could be removed for cause
only through a process by which a majority of the Commission votes to
make an application for removal to the Court of Appeals. This protective
removal process provides additional assurance of independence.

Section 2.d. provides for staggered four-year appointments.

Section 2.e. delineates the Commission's organization and procedure.
Unlike JCOPE, which has a complex and partisan voting system under which
two of its 14 members can block an investigation or adverse finding - a
system that is not comparable to any other state's ethics commission
voting system the Commission would act by majority vote.  Violations
would be determined based on a preponderance of the evidence, but orders
of censure or removal would have to be based on clear and convincing
evidence, a standard that recognizes the weightiness of the decision to
censure or remove any state official or employee. The evidentiary stand-
ard of clear and convincing evidence is also the standard used to
censure or disbar an attorney under Rule 1.3 of the American Bar Associ-
ation's Standards for Imposing Lawyer Sanctions. The section grants the
Commission the power to create its own rules and procedures that conform
with law and due process. It requires the Commission to establish rules
prohibiting ex parte communications between Commission members and their
appointing authorities (along with certain affiliates), another feature
designed to foster the independence of Commission members.

SECTION 3. ADDITIONAL POWERS OF THE COMMISSION

Section 3.a. provides that the Commission will appoint an executive
director and may appoint deputy directors. The executive director must
meet the same eligibility requirements as a Commissioner except that the
executive director may be promoted from within the Commission.  The
executive director may hire staff.

Section 3.b. grants the Commission and its designated hearing officers
the power to administer oaths, compel the attendance of witnesses and
issue subpoenas.

Section 3.c. makes it the Commission's power and duty to effectively
administer and enforce the state's ethics, lobbying and campaign finance
laws. The major change is to move the administration and enforcement of
campaign finance laws from the state and local Boards of Election to the
Commission. Campaign finance laws serve to manage the conflicts of
interest that can arise from campaign contributions so as to avoid any
appearance of corruption. Because these laws are enforced through
disclosure and investigation, they can be managed centrally to ensure
uniformity and take advantage of economies of scale.

This campaign finance responsibility is an important part of the Commis-
sion's broader purpose of avoiding the reality or appearance of
corruption, and close to half of the states that have independent ethics
commissions place the enforcement of campaign finance laws within the
jurisdiction of the ethics commission.

The section also requires the Commission to uphold laws prohibiting
misconduct related to the procurement of goods and services (e.g.,
related-party transactions and "kickbacks") and laws prohibiting work-
place misconduct such as harassment and retaliation. While many ethics
commissions throughout the country regulate conflicts of interest,
lobbying and procurement misconduct, New York's Commission would be
among the first in the nation to regulate workplace misconduct.  Delete-
rious workplace misconduct such as harassment and retaliation is strict-
ly prohibited in the private sector and not infrequently results in
termination of employment. Independent oversight of the administration
and enforcement of workplace conduct laws and regulations will help hold
state government to a high standard.

Finally, the section grants the Commission the power and duty to inter-
pret the laws within its jurisdiction, provide training to help secure
compliance with these laws and promulgate and interpret its own rules
and regulations that are not in conflict with these laws.


Section 3.d. bestows on the Commission the power to refer matters to
state or federal prosecutors or to the Attorney General for criminal
prosecution.

Section 3.e. grants the Commission the ability to issue advisory opin-
ions regarding any law that it has the power to administer and enforce
or any law whose administration and enforcement it has the power to
oversee. Before adopting an advisory opinion, the Commission would have
to provide notice and an opportunity for public comment.  Such opinions
would be subject to judicial review in accordance with law. The Commis-
sion would also be empowered to issue informal advice which would be
protected as an attorney-client communication.

SECTION 4. FUNDING OF THE COMMISSION

Section 4 authorizes the commission to submit a budget to the governor
for inclusion in his or her executive budget without revision. The
legislature will have the ability to reduce that appropriation, subject
to veto and override provisions.

SECTION 5. STATE CODE OF ETHICS

Section 5.a. requires the Commission to monitor the adequacy of the
state code of ethics and propose revisions and amendments as it sees
fit. The state code of ethics shall aim to eliminate any appearance of
corruption or impropriety relating to state government, eliminate
conflicts of interest that frustrate officials' abilities to impartially
discharge their duties and bar breaches of the public trust, including
the misuse of official position. These objectives are crucial to govern-
mental integrity, and it is thus incumbent on the Commission to monitor
the state code of ethics.

Section 5.b. makes it the ethical duty of persons within the Commis-
sion's jurisdiction to report to the Commission any conduct such persons
know to be in violation of any law within the jurisdiction of the
Commission. In other words, it will itself be an ethical violation for
persons within the Commission's jurisdiction to not report the miscon-
duct of others. This provision is crucial to the Commission's ability to
learn of misconduct. The section's provision for a retaliation cause of
action for aggrieved reporting persons protects those who in good faith
report on the basis of information and belief. Thus, the standard for
protection against retaliation is broader that the standard for mandato-
ry reporting.

SECTION 6. RECOMMENDING REVISIONS OF CAMPAIGN CONTRIBUTION LIMITS

Section 6 requires the Commission to recommend to the legislature limits
for all categories of campaign contributions to candidates and political
organizations. The standard to be applied by the Commission is intended
to prevent an elected official from being so beholden to a contributor
such that the official's ability to impartially make independent policy
judgments in the public interest is materially impaired. This objective
standard related to the management of conflict of interest is intended
to equate the reasonable inference of a candidate being materially
beholden to a contributor with the appearance of quid pro quo corruption
between the candidate and contributor that justifies restriction under
Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny. This standard
would not depend on coordination between the candidate and the contribu-
tor but rather on the objective likelihood that the candidate would know
of the contribution and become materially beholden. Cf. Citizens United
v.  Fed. Election Comm'n, 558 U.S. 310 (2010).

SECTION 7. TRANSPARENCY

Section 7 provides that the Commission shall be subject to all transpar-
ency and public access laws applicable to state government agencies or
instrumentalities. This provision helps hold the Commission, like any
agency, accountable to the public and reinforces the public's confidence
in the Commission's purpose and its commitment to that purpose. The
section, however, also recognizes the necessity of confidentiality
during pending investigations, and therefore allows for reasonable
confidentiality provisions as provided by law.

To further promote transparency, Section 7 requires that transparency
laws such as the freedom of information law and the open meetings law
apply equally to the legislative and executive branches. Currently the
"sunlight" duties of the legislature are much more circumscribed than
those of the executive.

SECTION 8 IMPLEMENTATION

Section 8 provides that the legislature and governor shall approve
necessary changes in law to transfer functions to the Commission within
90 days of the effective date of the article.

 
JUSTIFICATION:

It is widely recognized that New York has a corruption problem.  Polling
shows that over 80 percent of registered voters think corruption in
Albany is a "serious problem." Numerous former high-ranking New York
State government officials are on trial this Spring. One has just been
convicted. In the past 15 years, according to the Syracuse Post-Stan-
dard, at least 21 state legislators, former legislators and other
elected state officials have been sentenced to prison or house arrest.

History teaches that corruption is a breeding ground for authoritarian
governments. A government free of corruption not only protects the
people as taxpayers against waste and misuse of funds, but also helps to
secure their liberties against all forms of abuse of power and self-ag-
grandizing behavior that occur in defiance of the rights of the people.

For reasons explained below, vigorous ethics enforcement is an excellent
way to deter corruption.

The current mechanisms in the executive and legislative branches to
enforce rules that proscribe breaches of the public trust and other
ethical violations are the Joint Commission on Public Ethics

("JCOPE") and the Legislative Ethics Commission ("LEC"). JCOPE investi-
gates all ethics complaints and can impose a civil penalty on executive
branch officers and employees. LEC can disagree with JCOPE's interpreta-
tions of the State's ethical commands and has exclusive authority to
impose civil fines on legislative branch officers and employees. Neither
has the power to censure, suspend, demote or remove an egregious viola-
tor.

As the Committee on Government Ethics and State Affairs of the New York
City Bar Association has observed, this ethics enforcement structure
suffers from an extreme lack of credibility. And for good reason - the
structure is highly flawed.

The flaws are manifold. Unlike the Commission on Judicial Conduct, an
ethics enforcement agency for the judiciary that has worked well, JCOPE
is not made up of appointees from all branches of state government.
Ethics agencies in other states foster independence by including members
appointed by the judicial branch, but New York's JCOPE structure does
not.

Also unlike the Commission on Judicial Conduct, JCOPE does not operate
by majority vote. As few as two members of the 14 member Commission can
veto an investigation or a finding of violation. This obvious flaw is
unique to New York.

The flaws in the JCOPE/LEC structure are exacerbated by the fact that
JCOPE and LEC have no rule barring ex parte contact by an appointee with
that appointee's appointing authority. Also problematic is the fact that
the appointing authority can remove its appointees for (what it claims
to be) cause, and the chair serves expressly at the pleasure of the
Governor. The ability for an appointing authority to appoint currently
serving state officials to JCOPE as commissioners and senior staff and
up to four members of the legislature to LEC adds to the reality and
appearance of political control.

As noted above, JCOPE has no power to censure, suspend, demote or termi-
nate any state official or employee and has no power to impose any form
of sanction on a member of the legislature or a legislative employee. In
contrast, the Commission on Judicial Conduct does have the power to
censure or remove a judge. LEC also lacks sanction power beyond the
imposition of a civil fine. Additionally, the existence of two bodies
independently interpreting the State Code of Ethics allows for incon-
sistent results.

Finally, JCOPE is not guaranteed adequate funding, which is necessary to
secure its independence. If JCOPE is doing its job it will never be
beloved by those with appropriations power, and its funding will be at
risk without a sufficient guarantee.

There are those who seek to justify the convoluted JCOPE/LEC structure
found nowhere else in the nation on the ground that the JCOPE voting
structure prevents political witch hunts. The problem with this argument
is that any politician charged with wrongdoing will always claim that it
is a witch hunt. Giving the political allies of that politician an
effective veto power, as the current structure does, means that nothing
will ever happen.

It is time to beef up ethics enforcement through an agency with strong
powers similar to those possessed by the Commission on Judicial Conduct.

We know that vigorous and independent ethics enforcement deters
corruption. This is largely because an ethics violation is much easier
to prove than a criminal violation, yet can still have serious conse-
quences for the offender. Criminal bribery and extortion are hard to
prove not only because criminal liability must be established beyond a
reasonable doubt and the bribe must be shown to be in exchange for a
specific "official act," but also because the likely witnesses to the
corrupt transaction are themselves corrupt. This problem was starkly
illustrated by the difficulties for the Percoco prosecution presented by
their star witness, Todd Howe.

Ethics laws, on the other hand, do not require proof beyond a reasonable
doubt. These laws apply a "fiduciary breach of the public trust" stand-
ard of candor, freedom from conflict of interest and avoidance of self-
dealing, and can be established based on conduct alone without the need
for witnesses or documents establishing criminal intent.

Another important role of ethics enforcement is that ethical misconduct
investigations are likely to uncover related criminal activity, which
must then be referred to criminal prosecutors. Mr.  Percoco, for exam-
ple, in his 2014 disclosure form filed with JCOPE, listed consulting
payments from a developer and payments to his wife from a fictitious
source. With independent and vigorous enforcement, these disclosures
would have led to referral for prosecution.

The proposed constitutional amendment ("Amendment") is designed to cure
the fundamental flaws in New York's current ethics enforcement structure
by providing credible independence, ample powers and secure funding. The
result would produce a New York State Government Integrity Commission
("Commission") which can't be ignored or dismissed as paper tiger.

The Amendment would also strengthen the State Code of Ethics. It would
recognize that the regulation of the role of money in politics goes hand
in hand with the regulation of other activities that create conflicts of
interest, and it would improve the level of transparency in state
government by mandating that transparency laws apply equally to the
legislative and executive branches. The principal features of the Amend-
ment include:

*The current bifurcated JCOPE/LEC structure would be eliminated and
replaced with a single Commission, ensuring consistent enforcement in
both the legislative and executive branches. Most states have a single
ethics enforcement agency with jurisdiction over both those branches.

*Like the Commission on Judicial Conduct, Commissioners would be
appointed by all three branches of government. A majority of the members
would be appointed by persons whose conduct is not being regulated by
the Commission.

*The Commission would have the power to sanction serious misconduct
through censure, suspension, demotion or removal of a non-elected public
official and through the power to censure or remove an elected official,
unless overruled by a majority vote in either house of the legislature.

*Unlike JCOPE, where two of its 14 members can block an investigation or
adverse finding, the Commission would act by majority vote.

*Because of its mandate to avoid the reality or appearance of corruption
and conflicts of interest, the Commission would be responsible for the
administration and enforcement of the campaign finance laws. Its duties
in this area would include recommending contribution limits to the
legislature that are low enough to prevent a public official from becom-
ing beholden to a large contributor to such an extent that a reasonable
person would find real impairment of policy judgment.
*Unlike JCOPE, where the person appointing a member can remove that
member for what the appointing authority deems to be substantial neglect
of duty, members of the Commission could be removed for cause only
through a process by which a majority of the Commission votes to make an
application for removal to the Court of Appeals.

*Ex parte communications between Commission members and their appointing
authorities and related staff would be barred, and no member could have
held office, employment in state government or any political party or
been engaged as a lobbyist in the three years prior to his or her
appointment or during his or her term.

*Transparency laws would apply equally to the executive and legislative
branches.

*All state officers and employees would have an ethical duty to report
known misconduct to the Commission and would be protected against retal-
iation.

Establishing the Commission in the Constitution is necessary to make
clear that its mandate does not violate any constitutional principle of
separation of powers or legislative immunity. Rather, the Commission,
like the constitutional Commission on Judicial Conduct, would function
as an integral part of New York State's constitutional system of checks
and balances. It also makes clear that no constitutional objection can
be raised about the judicial branch making appointments to the Commis-
sion.  Finally, in the past, legislative leaders have advanced an exag-
gerated view of the legislature's constitutional prerogatives, arguing
for example that the Constitution allows them to pay committee chair
stipends to fictional committee chairs. Amending the Constitution will
make clear that the Rule of Law applies to the legislature.

 
LEGISLATIVE HISTORY:

2019-20- S594A/A1282A
2017-18- S8309/A10651

 
FISCAL IMPLICATIONS:

To be determined

 
EFFECTIVE DATE:
Resolved (if the Assembly concur), That the foregoing amendments be
referred to the first regular legislative session convening after the
next succeeding general election of members of the Assembly, and, in
conformity with section 1 of article 19 of the constitution; be
published for three months previous to the time of such election.

S855 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    855
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens.  KRUEGER,  BIAGGI,  JACKSON, GAUGHRAN, MAYER, MAY,
   SKOUFIS, RAMOS, MYRIE, LIU, KAPLAN, KAMINSKY, BROOKS, SAVINO, HOYLMAN,
   KENNEDY, JORDAN, BOYLE, ADDABBO, AKSHAR, BAILEY, BENJAMIN,  GOUNARDES,
   HARCKHAM, KAVANAGH, O'MARA, RIVERA, SALAZAR, SERRANO, STAVISKY, THOMAS
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Judiciary
 
             CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
 
 proposing  that the constitution be amended by adding a new article V-A;
   in relation to state government integrity
 
   Section 1. Resolved (if the Assembly concur), That the constitution be
 amended by adding a new article V-A to read as follows:
                                ARTICLE V-A
                        STATE GOVERNMENT INTEGRITY
   SECTION 1. A. THE PEOPLE OF NEW YORK EXPECT OFFICERS AND EMPLOYEES  OF
 THE STATE TO OBSERVE LAWS, RULES AND REGULATIONS THAT SPECIFY HIGH STAN-
 DARDS OF ETHICAL CONDUCT DESIGNED TO AVOID THE REALITY AND APPEARANCE OF
 CORRUPTION,  CONFLICT OF INTEREST, SELF-DEALING AND BREACH OF THE PUBLIC
 TRUST. EQUALLY THEY EXPECT THAT CANDIDATES FOR STATE OFFICE  AND  OTHERS
 SEEKING  TO  INFLUENCE  STATE ELECTIONS TO OBSERVE LAWS, RULES AND REGU-
 LATIONS  DESIGNED  TO  REGULATE  ACTUAL  AND  POTENTIAL  CORRUPTION  AND
 CONFLICTS  OF  INTEREST BY REGULATING THE INFLUENCE OF MONEY IN POLITICS
 AND MAKING TRANSPARENT THE FINANCING  AND  EXPENDITURES  OF  EFFORTS  TO
 INFLUENCE  VOTERS.  TO PROTECT THE INTEGRITY AND FREEDOM FROM CORRUPTION
 OF THE USE OF STATE POWER TO  ENACT  LAWS,  ESTABLISH  RULES  AND  REGU-
 LATIONS,  AND CONTRACT FOR GOODS AND SERVICES FUNDED IN WHOLE OR IN PART
 WITH STATE TAXES AND OTHER REVENUES,  THE  PEOPLE  OF  NEW  YORK  EXPECT
 OBSERVANCE OF LAWS, RULES AND REGULATIONS THAT REGULATE LOBBYING, LOBBY-
 ISTS  AND  GOVERNMENT  PROCUREMENT.  TO ENSURE THE APPROPRIATE WORKPLACE
 CONDUCT OF STATE OFFICERS AND EMPLOYEES AND THOSE WHO INTERACT WITH SUCH
 OFFICERS AND EMPLOYEES WHILE DEALING WITH THE STATE AND  ITS  INSTRUMEN-
 TALITIES,  THE  PEOPLE  OF  NEW  YORK  EXPECT THAT ALL SUCH PERSONS WILL

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD89032-01-1

 S. 855                              2
 
 OBSERVE LAWS, RULES AND REGULATIONS SETTING STANDARDS OF APPROPRIATE AND
 NON-DISCRIMINATORY WORKPLACE BEHAVIOR.
   B. ACHIEVING THIS GOAL REQUIRES AN INDEPENDENT AND NON-PARTISAN AGENCY
 WITH  JURISDICTION  OVER  MATTERS PERTAINING TO BOTH THE LEGISLATIVE AND
 EXECUTIVE BRANCHES OF GOVERNMENT AND  THAT  HAS  THE  NEEDED  POWERS  TO
 TRAIN,  ADVISE,  INTERPRET,  ADOPT  RULES  AND REGULATIONS, INVESTIGATE,
 CONDUCT FAIR HEARINGS THAT AFFORD DUE  PROCESS  AND  IMPOSE  APPROPRIATE
 SANCTIONS ON A CONSISTENT BASIS SO THAT, WITH FAIR AND EQUAL APPLICATION
 OF  THE LAW, NO PERSON OR ENTITY, NO MATTER WHAT THEIR STATUS, INFLUENCE
 OR ROLE IN GOVERNMENT, CAN PLACE THEMSELVES  ABOVE  THE  LAW  OR  SUFFER
 DETRIMENT DUE TO ANY LACK OF SUCH STATUS, INFLUENCE OR ROLE.
   §  2.  A. THERE SHALL BE A NEW YORK STATE GOVERNMENT INTEGRITY COMMIS-
 SION.  THE COMMISSION SHALL, ON AN INDEPENDENT AND  NON-PARTISAN  BASIS:
 (I) RECEIVE, INITIATE, INVESTIGATE AND DETERMINE COMPLAINTS WITH RESPECT
 TO  LAWS,  RULES AND REGULATIONS PROHIBITING UNETHICAL BEHAVIOR, INCLUD-
 ING, CONFLICT OF INTEREST, SELF-DEALING AND BREACH OF THE PUBLIC  TRUST;
 (II)  ADMINISTER  AND  ENFORCE LAWS, RULES AND REGULATIONS PROVIDING FOR
 THE DISCLOSURE OF FINANCIAL AND  OTHER  INTERESTS  BY  STATE  GOVERNMENT
 OFFICERS  AND  EMPLOYEES;  (III)  ADMINISTER AND ENFORCE LAWS, RULES AND
 REGULATIONS RELATING TO ABUSE OF OFFICIAL  POSITION,  INCLUDING  THROUGH
 DISCRIMINATION  AND  DISCRIMINATORY AND RETALIATORY HARASSMENT, BY STATE
 GOVERNMENT OFFICERS AND EMPLOYEES; (IV)  ADMINISTER  AND  ENFORCE  LAWS,
 RULES  AND  REGULATIONS  REGULATING  THE  INFLUENCE OF MONEY IN POLITICS
 INCLUDING THOSE PROVIDING FOR THE DISCLOSURE OF  RECEIPTS  AND  EXPENDI-
 TURES  BY  CANDIDATES  AND POLITICAL PARTIES; (V) ADMINISTER AND ENFORCE
 LAWS, RULES AND REGULATIONS RELATING TO PUBLIC  FINANCING  OF  POLITICAL
 CAMPAIGNS;  (VI) ADMINISTER AND ENFORCE LAWS, RULES AND REGULATIONS THAT
 REGULATE LOBBYING AND LOBBYISTS; AND (VII) RECEIVE,  INITIATE,  INVESTI-
 GATE  AND  DETERMINE COMPLAINTS THAT LAWS, RULES AND REGULATIONS RELATED
 TO GOVERNMENT PROCUREMENT ARE  NOT  BEING  FAITHFULLY  EXECUTED.    THIS
 JURISDICTION SHALL BE IN ADDITION TO AND NOT IN DEROGATION OF THE INVES-
 TIGATORY, DISCIPLINARY, VENDOR QUALIFICATION OR LAW ENFORCEMENT AUTHORI-
 TY OF ANY OTHER PERSON OR ENTITY AND OF THE RIGHT OF AN AGGRIEVED PERSON
 TO  SEEK CIVIL REDRESS IN ACCORDANCE WITH LAW. THE COMMISSION MAY IN ITS
 DISCRETION DECLINE TO INITIATE, OR SUSPEND INITIATION OF PROCEEDINGS, OR
 OTHERWISE ADJUST ITS PROCEDURES,  IN  VIEW  OF  SUCH  OTHER  PROCEEDINGS
 UNDERTAKEN OR ABLE TO BE UNDERTAKEN BY SUCH OTHER PERSON OR ENTITY.
   B.  WHEN,  AFTER  HEARING,  THE  COMMISSION  HAS  DETERMINED  THAT THE
 RESPONDENT HAS VIOLATED A LAW, RULE OR  REGULATION  WITHIN  THE  COMMIS-
 SION'S  JURISDICTION  TO  ENFORCE,  THE  COMMISSION MAY IMPOSE ANY CIVIL
 SANCTION AUTHORIZED BY LAW AND/OR REFER THE MATTER FOR  CRIMINAL  PROSE-
 CUTION.  THE  COMMISSION  MAY  ALSO  CAUTION,  ADMONISH  OR CENSURE SUCH
 RESPONDENT OR, IN THE CASE OF A NON-ELECTED STATE OFFICER  OR  EMPLOYEE,
 SUSPEND,  DEMOTE  OR  REMOVE  SUCH  RESPONDENT FROM OFFICE OR EMPLOYMENT
 AFTER SUCH ADJUDICATORY PROCESS THAT  SUBSTANTIALLY  COMPLIES  WITH  THE
 TERMS  OF  ANY RELEVANT COLLECTIVE BARGAINING AGREEMENT. IN DECIDING THE
 SEVERITY OF THE SANCTION, THE COMMISSION SHALL CONSIDER TO  WHAT  EXTENT
 THE  VIOLATION  IS  INADVERTENT, ISOLATED AND/OR OF INSUBSTANTIAL CONSE-
 QUENCE ON THE ONE HAND OR WILLFUL, REPEATED, CAUSING ACTUAL PUBLIC  HARM
 OR RISK OF PUBLIC HARM AND/OR OTHERWISE EGREGIOUS ON THE OTHER. DETERMI-
 NATIONS,  OTHER  THAN A DETERMINATION TO REFER FOR CRIMINAL PROSECUTION,
 SHALL BE SUBJECT TO JUDICIAL REVIEW IN ACCORDANCE WITH LAW. IF IT  FINDS
 SUCH  A  VIOLATION  IT  MAY ALSO ISSUE A CEASE AND DESIST ORDER AND SEEK
 JUDICIAL ENFORCEMENT OF THAT ORDER IN ACCORDANCE WITH LAW.
   C. THE COMMISSION SHALL CONSIST  OF  THIRTEEN  MEMBERS,  APPOINTED  AS
 FOLLOWS:  (I)  TWO  SHALL  BE APPOINTED BY THE GOVERNOR, AT LEAST ONE OF

 S. 855                              3
 
 WHOM SHALL BE, OR WITHIN THE PRIOR FIVE YEARS SHALL HAVE BEEN,  ENROLLED
 IN  A  DIFFERENT MAJOR POLITICAL PARTY THAN THE GOVERNOR; (II) ONE SHALL
 BE APPOINTED BY EACH OF THE LEADERS IN EACH HOUSE OF THE LEGISLATURE  OF
 THE  PARTY  CONFERENCES  WHOSE CANDIDATE FOR GOVERNOR IN THE MOST RECENT
 GUBERNATORIAL ELECTION RECEIVED THE LARGEST AND SECOND LARGEST NUMBER OF
 VOTES; AND (III) SEVEN JOINTLY BY THE CHIEF JUDGE OF THE  STATE  OF  NEW
 YORK  AND  THE  PRESIDING  JUSTICES  OF EACH OF THE APPELLATE DIVISIONS,
 THREE OF WHOM SHALL BE, AND WITHIN THE PRIOR FIVE YEARS SHALL HAVE BEEN,
 ENROLLED IN EACH OF THE TWO MAJORITY POLITICAL PARTIES AND ONE  OF  WHOM
 SHALL  NOT  BE,  AND  SHALL  NOT  WITHIN  THE  PAST FIVE YEARS HAVE BEEN
 ENROLLED IN ANY POLITICAL PARTY. THE CHIEF JUDGE SHALL REQUEST THE PRES-
 IDENT AND IMMEDIATE PAST PRESIDENT OF THE STATE BAR JOINTLY  TO  PROPOSE
 SEVEN  PERSONS  FOR  EACH OF TWO APPOINTMENTS TO THE COMMISSION WHO AS A
 GROUP OF SEVEN WOULD BE ELIGIBLE FOR SUCH APPOINTMENT AND TWO  OF  THOSE
 APPOINTED JOINTLY BY THE CHIEF JUDGE AND THE PRESIDING JUSTICES SHALL BE
 DRAWN  FROM THESE TWO LISTS. NO MEMBER OF THE COMMISSION SHALL HAVE HELD
 OFFICE IN ANY POLITICAL PARTY ORGANIZATION, HAVE BEEN A STATE OFFICER OR
 EMPLOYEE OR HAVE BEEN ENGAGED  AS  A  LOBBYIST  WITHIN  THREE  YEARS  OF
 APPOINTMENT OR AT ANY TIME DURING THEIR TERM. THE CHAIR SHALL BE ELECTED
 BY  THE  COMMISSION  MEMBERS FROM AMONG ITS MEMBERS.  COMMISSION MEMBERS
 SHALL BE REIMBURSED FOR THEIR ACTUAL EXPENSES AND PAID A PER DIEM SALARY
 TO BE FIXED BY LAW BUT AT LEAST A PER DIEM AMOUNT EQUAL  TO  THE  ANNUAL
 SALARY  PAID  TO  A  JUSTICE OF THE SUPREME COURT DIVIDED BY TWO HUNDRED
 TWENTY. A MEMBER MAY BE REMOVED FOR CAUSE ON APPLICATION TO THE COURT OF
 APPEALS MADE BY A MAJORITY VOTE OF THE FULL MEMBERSHIP  OF  THE  COMMIS-
 SION.
   D. THE PERSONS FIRST APPOINTED BY THE GOVERNOR SHALL HAVE RESPECTIVELY
 THREE  AND  FOUR-YEAR TERMS AS THE GOVERNOR SHALL DESIGNATE. THE PERSONS
 FIRST APPOINTED JOINTLY BY THE CHIEF JUDGE OF THE STATE OF NEW YORK  AND
 THE PRESIDING JUSTICES OF THE APPELLATE DIVISIONS SHALL HAVE RESPECTIVE-
 LY  ONE, TWO, TWO, THREE, THREE, FOUR, AND FOUR-YEAR TERMS AS THAT JUDGE
 AND THOSE JUSTICES SHALL DESIGNATE. THE PERSON FIRST  APPOINTED  BY  THE
 LEGISLATIVE  LEADERS  IN  EACH  HOUSE  OF  THE  LEGISLATURE OF THE PARTY
 CONFERENCES WHOSE CANDIDATE FOR GOVERNOR RECEIVED THE LARGEST NUMBER  OF
 VOTES SHALL HAVE A FOUR-YEAR TERM IN THE CASE OF THE SENATE AND A THREE-
 YEAR TERM IN THE CASE OF THE ASSEMBLY. THE PERSON FIRST APPOINTED BY THE
 LEGISLATIVE  LEADERS  IN  EACH  HOUSE  OF  THE  LEGISLATURE OF THE PARTY
 CONFERENCES WHOSE CANDIDATE FOR GOVERNOR  RECEIVED  THE  SECOND  LARGEST
 NUMBER OF VOTES SHALL HAVE A TWO-YEAR TERM IN THE CASE OF THE SENATE AND
 A  ONE-YEAR TERM IN THE CASE OF THE ASSEMBLY. EACH MEMBER OF THE COMMIS-
 SION SHALL BE APPOINTED THEREAFTER FOR A TERM OF FOUR YEARS AND SHALL BE
 APPOINTED IN THE SAME MANNER WITH A PERSON OF THE SAME POLITICAL  AFFIL-
 IATION AS HIS OR HER PREDECESSOR.
   E.  THE  ORGANIZATION  AND  PROCEDURE  OF  THE  COMMISSION SHALL BE AS
 PROVIDED BY LAW PROVIDED THAT THE COMMISSION SHALL ACT BY MAJORITY  VOTE
 OF  ITS  MEMBERSHIP AND DETERMINE VIOLATIONS BASED ON A PREPONDERANCE OF
 THE EVIDENCE EXCEPT THAT ANY ORDER OF CENSURE OR REMOVAL SHALL BE  BASED
 ON  CLEAR AND CONVINCING EVIDENCE.  THE COMMISSION MAY ESTABLISH ITS OWN
 RULES AND PROCEDURES NOT INCONSISTENT WITH LAW AND  DUE  PROCESS.  THOSE
 RULES SHALL BAR EX PARTE COMMUNICATIONS REGARDING A POTENTIAL OR ONGOING
 INVESTIGATION OR OTHER MATTER BEFORE THE COMMISSION, DIRECT OR INDIRECT,
 BETWEEN  MEMBERS  OF  THE  COMMISSION AND THEIR APPOINTING AUTHORITY AND
 SUCH RULE SHALL BIND BOTH THE MEMBER, THE COMMISSION STAFF, THE APPOINT-
 ING AUTHORITY AND THE STAFF, AGENTS AND REPRESENTATIVES OF THE  APPOINT-
 ING  AUTHORITY.  THE  COMMISSION  SHALL BE EMPOWERED TO DESIGNATE ONE OR

 S. 855                              4
 
 MORE OF ITS MEMBERS OR ANY OTHER PERSONS AS HEARING OFFICERS TO HEAR AND
 REPORT CONCERNING ANY MATTER BEFORE THE COMMISSION.
   §  3.  A.  THE  COMMISSION MANY APPOINT AN EXECUTIVE DIRECTOR, WHO MAY
 APPOINT STAFF, AND ONE OR MORE DEPUTY DIRECTORS  WITH  SUCH  DUTIES  AND
 POWERS  AS  THE  COMMISSION MAY FIX. NO PERSON WHO WOULD BE DISQUALIFIED
 FROM BEING A MEMBER OF THE COMMISSION  MAY  BE  APPOINTED  AS  EXECUTIVE
 DIRECTOR  EXCEPT  THAT  A PERSON EMPLOYED AT THE COMMISSION SHALL NOT BE
 DISQUALIFIED BY REASON OF THAT EMPLOYMENT.
   B. THE COMMISSION AND ITS DESIGNATED HEARING OFFICERS SHALL  HAVE  THE
 POWER  TO ADMINISTER OATHS, COMPEL THE ATTENDANCE OF WITNESSES AND ISSUE
 SUBPOENAS.
   C. THE COMMISSION, SHALL HAVE THE DUTY TO TRAIN ALL PERSONS WITHIN THE
 COMMISSION'S JURISDICTION IN COMPLIANCE WITH THE LAWS, RULES  AND  REGU-
 LATIONS  WITH  RESPECT  TO  WHICH THE COMMISSION HAS JURISDICTION AND TO
 OTHERWISE ENCOURAGE PERSONS SUBJECT TO THE COMMISSION'S JURISDICTION  TO
 FULFILL  THEIR  DUTIES UNDER SUCH LAWS AND SHALL HAVE THE POWER TO ISSUE
 AND INTERPRET RULES AND REGULATIONS  SUBJECT  TO  JUDICIARY  REVIEW  FOR
 CONFORMANCE WITH LAW.
   D.  THE  COMMISSION  MAY  MAKE  A  CRIMINAL  PROSECUTION REFERRAL TO A
 DISTRICT ATTORNEY, THE ATTORNEY GENERAL OR A UNITED STATES ATTORNEY.
   E. THE COMMISSION, AFTER NOTICE AND OPPORTUNITY  FOR  PUBLIC  COMMENT,
 MAY ISSUE ADVISORY OPINIONS OR BULLETINS WHICH WILL HAVE SUCH PROTECTIVE
 EFFECT  ON  THOSE WHO ACT IN COMPLIANCE THEREWITH AS IS SPECIFIED IN THE
 OPINION OR BULLETIN. IT SHALL ALSO ESTABLISH AN  OFFICE  OF  ETHICS  AND
 LOBBYING  GUIDANCE  TO  GIVE  PROMPT, NON-PRECEDENTAL INFORMAL ADVICE TO
 PERSONS WHOSE CONDUCT IT OVERSEES.    PERSONS  RECEIVING  SUCH  INFORMAL
 ADVICE  MAY  RELY  ON  THAT  ADVICE ABSENT MISREPRESENTATION OF MATERIAL
 FACTS TO THE OFFICE OF ETHICS AND LOBBYING GUIDANCE  AND  SUCH  COMMUNI-
 CATIONS  WITH  THE  OFFICE  OF  ETHICS  AND LOBBYING SHALL BE TREATED AS
 CONFIDENTIAL EXCEPT AS DISCLOSURE IS NEEDED  TO  PREVENT  OR  RECTIFY  A
 CRIME OR FRAUD OR PREVENT A SUBSTANTIAL THREAT TO PUBLIC SAFETY.
   §  4. THE COMMISSION SHALL ANNUALLY SUBMIT A BUDGET WHICH THE GOVERNOR
 SHALL INCLUDE  IN  HIS  EXECUTIVE  BUDGET  AND  FINANCIAL  PLAN  WITHOUT
 REVISION.    THE  LEGISLATURE MAY REDUCE THE COMMISSION'S BUDGET AND THE
 GOVERNOR MAY VETO THAT REDUCTION AND REPLACE IT WITH AN AMOUNT NOT  LESS
 THAN  THAT DETERMINED BY THE LEGISLATURE. IF SUCH VETO SHALL BE OVERRID-
 DEN BY A TWO-THIRDS VOTE OF BOTH HOUSES OF THE LEGISLATURE,  THE  AMOUNT
 DETERMINED BY THE LEGISLATURE SHALL BECOME BINDING.
   §  5. A. THE COMMISSION SHALL ADMINISTER AND ENFORCE THE STATE CODE OF
 ETHICS ESTABLISHED BY LAW. THE STATE CODE OF ETHICS SHALL BE  CONSTRUED,
 AND ANY REVISION OR AMENDMENT THERETO, SHALL BE DRAFTED AND CONSTRUED TO
 PROSCRIBE  CONDUCT  THAT  CREATES  IN THE MIND OF A REASONABLE PERSON AN
 APPEARANCE OF CORRUPTION, CONFLICTS OF INTEREST THAT  MATERIALLY  IMPAIR
 THE  PERFORMANCE  OF  OFFICIAL  DUTIES  AND BREACHES OF THE PUBLIC TRUST
 INCLUDING THE MISUSE OF OFFICIAL  POSITION  OR  THE  ABUSE  OF  OFFICIAL
 AUTHORITY  FOR  PERSONAL  GAIN. THE COMMISSION SHALL PERIODICALLY REVIEW
 THE STATE CODE OF ETHICS AND MAY PROPOSE TO  THE  LEGISLATURE  REVISIONS
 AND AMENDMENTS TO THE CODE.
   B.  THE  STATE  CODE  OF  ETHICS  SHALL,  BY VIRTUE OF THIS PROVISION,
 PROVIDE THAT IT SHALL BE THE ETHICAL DUTY OF ANY PERSON OR ENTITY WITHIN
 THE JURISDICTION OF THE COMMISSION TO PROMPTLY REPORT TO THE  COMMISSION
 INFORMATION NOT PROTECTED BY THE ATTORNEY-CLIENT OR PROSECUTORIAL INVES-
 TIGATIVE  PRIVILEGE ABOUT ACTIVITY KNOWN TO BE IN VIOLATION OF THE STATE
 CODE OF ETHICS OR OTHER LAW WHICH ANY PERSON OR ENTITY  HAS  ENGAGED  IN
 WITH  RESPECT TO ACTIVITY THAT IS WITHIN THE JURISDICTION OF THE COMMIS-
 SION.  THERE SHALL BE NO RETALIATION AGAINST A PERSON OR  ENTITY  MAKING

 S. 855                              5
 
 SUCH  A  REPORT  IN GOOD FAITH ON INFORMATION AND BELIEF, AND ANY PERSON
 AGGRIEVED BY SUCH RETALIATION MAY BRING A CIVIL ACTION FOR  COMPENSATORY
 AND EXEMPLARY DAMAGES.
   C.  THE  STATE  CODE  OF  ETHICS  SHALL,  BY VIRTUE OF THIS PROVISION,
 PROVIDE THAT NO PERSON WITHIN THE JURISDICTION OF THE  COMMISSION  SHALL
 COMMIT  AN ACT OF DISCRIMINATORY OR RETALIATORY HARASSMENT WHILE SERVING
 IN HIS OR HER OFFICIAL CAPACITY AND NO SUCH PERSON SERVING IN A SUPERVI-
 SORY CAPACITY SHALL SUFFER AN ACT OF SUCH HARASSMENT  TO  OCCUR  WITHOUT
 TAKING  CARE  THAT THERE BE DUE CONSEQUENCES IN ACCORDANCE WITH LAW. THE
 COMMISSION MAY BY RULE DEFINE THE CONDUCT THAT  CONSTITUTES  AN  ACT  OF
 DISCRIMINATORY  OR  RETALIATORY  HARASSMENT  AND  SHALL ESTABLISH A UNIT
 RESPONSIBLE FOR HARASSMENT COMPLAINTS AND INVESTIGATIONS.
   § 6. THE COMMISSION MAY RECOMMEND TO THE LEGISLATURE  LIMITS  FOR  ALL
 CATEGORIES  OF CAMPAIGN CONTRIBUTIONS TO CANDIDATES AND POLITICAL ORGAN-
 IZATIONS THAT IN ITS JUDGMENT ARE LOW ENOUGH TO PREVENT AN ELECTED OFFI-
 CIAL FROM BEING SO BEHOLDEN TO A CAMPAIGN CONTRIBUTOR AS  TO  MATERIALLY
 IMPAIR  SUCH  OFFICIAL'S  EXERCISE OF INDEPENDENT POLICY JUDGMENT IN THE
 INTERESTS OF THE PUBLIC AND HIS OR HER CONSTITUENTS.
   § 7. THE COMMISSION SHALL BE SUBJECT TO ALL  TRANSPARENCY  AND  PUBLIC
 ACCESS  LAWS SUBJECT TO SUCH REASONABLE EXCEPTIONS FOR PENDING CONFIDEN-
 TIAL INVESTIGATIONS AS SHALL BE PROVIDED BY LAW. THE LEGISLATIVE  BRANCH
 SHALL  BE  SUBJECT TO LAWS PROVIDING FOR TRANSPARENCY TO THE SAME EXTENT
 AS IS THE EXECUTIVE BRANCH.
   § 8. ANY COMMISSION APPOINTMENT NOT MADE WITHIN SIXTY  DAYS  FOLLOWING
 THE  EFFECTIVE  DATE OF THIS ARTICLE, OR WITHIN SIXTY DAYS OF THE OCCUR-
 RENCE OF ANY VACANCY, SHALL BE FILLED BY THE PRESIDENT AND  PRESIDENT-E-
 LECT  OF  THE  STATE  BAR  ACTING  JOINTLY. FOR NO MORE THAN NINETY DAYS
 FOLLOWING THE INITIAL APPOINTMENT ALL  THE  MEMBERS  OF  THE  COMMISSION
 SHALL  PREPARE  TO COMMENCE OPERATION, INCLUDING THE HIRING OF AN EXECU-
 TIVE DIRECTOR AND MANAGERIAL STAFF, AND ON SUCH NINETIETH DAY THE  JOINT
 COMMISSION  ON PUBLIC ETHICS AND THE LEGISLATIVE ETHICS COMMISSION SHALL
 NO LONGER EXIST, AND THE  AUTHORITY  OF  THE  BOARD  OF  ELECTIONS  OVER
 CAMPAIGN  FINANCE  SHALL  CEASE ALL THEIR POWERS, DUTIES, NON-MANAGERIAL
 EMPLOYEES AND MATTERS HAVING BEEN TRANSFERRED TO THE COMMISSION.
   § 2. Resolved (if the Assembly concur), That the  foregoing  amendment
 be referred to the first regular legislative session convening after the
 next  succeeding  general  election  of members of the assembly, and, in
 conformity with  section  1  of  article  19  of  the  constitution,  be
 published for 3 months previous to the time of such election.

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The New York State Senate

senate Bill S855

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senate Bill S855

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

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S855 (ACTIVE) - Details

S855 (ACTIVE) - Summary

S855 (ACTIVE) - Sponsor Memo

S855 (ACTIVE) - Bill Text download pdf

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