Creates the Public Corruption Prevention and Enforcement Act of 2010

Summary of provisions

Section 1 Title of act "Public Corruption Prevention and Enforcement Act of 2010."

Section 2 Amends PL § 10.00 to define "scheme" for PL .. 195.18 and 195.20 and "faithful public services" and "self-dealing."

Section 3 Amends PL § 195.20 to create the crime of scheme to defraud the government in the first degree, a D felony.

Section 4 Adds new PL § 195,18, to create the crime of scheme to defraud the government in the first degree, an E felony.

Sections 5, 6 and 7 Amend PL §5 200.00, 200.03 and 200.04 to make chang- es to address a common law issue involving burden of proof.

Section 8 Adds new PL § 200.28 to create a duty to provide faithful services for public servants.

Section 9 Amends POL §73-a(3) to add new question 20 to the annual statements of financial disclosure related to non-profits and reporting individuals and their spouse or domestic partner and their relatives.

Section 10 Amends POL g 74(1) to define "faithful public services" and "self-dealing" for officers, and employees of a state agency, members of the legislature and legislative employees.

Section 11 Amends POL § 74(3) to add the duty of faithful services to the Code of Ethics.

Section 12 Amends POL §74(4) to add a penalty for violation for scheme to defraud and the duty of faithful public services, an E felony.

Section 13 Adds new POL § 80 to create guidelines and prohibitions for members items, enforced by the attorney general and penalties for violations, enforced by the attorney general and any district attorney.

Section 14 Amends Leg. Law § 80(14)(1) to require the disclosure of the value categories on annual statements of financial disclosure filed by members of the legislature, candidates for member of the legislature and legislative employees when statements are released to the public.

Section 15 Amends Exec. Law § 94(17)(a)(1) to require the disclosure of the value categories on annual statements of financial disclosure filed by statewide elected officials, candidates for statewide elected offi- cials, executive branch officers and employees and political party chairs when statements are released to the public.

Section 16 Amends State Finance Law § 99-d to rename the section "Legis- lative community projects fund."

Section 17 Adds State Finance Law § 99-u to create the "Executive commu- nity projects fund."

Section 18 Amends Jud. Law § 211 (4) to require the disclosure of the value categories on annual statements of financial disclosure filed by judges, candidates for judge and employees of the unified court system when statements are released to the public.

Section 19 Amends § EL 14-100 to make technical changes related to gifts.

Section 20 Amends § EL 14-104(1) to make changes related to filing of statements and to require separate disclosure by candidates and their spouse or domestic partner for gifts and loans, not issued by an finan- cial institution, in excess of $1,000 for one year prior to designation and at other regular filing times.

Section 21 Amends § EL 14-108 to make technical changes related to disclosure of gifts.

Section 22 Amends § EL 14-120 to make technical changes related to contribution and loans.

Section 23 is the severability clause.

Section 24 is the effective dates, immediately, except for sections nine through twenty-two which shall take effect on the 60th day after becom- ing law.

Justification

The recent corruption scandals in Albany and elsewhere that have resulted in felony convictions and guilty pleas are reminders

of the urgent need for reform. The bill combines in one place measures that are designed to prevent corrupt activity by strengthening ethics and campaign finance disclosure requirements with measures designed to strengthen enforcement against those who violate the public trust. Public servants hold a public trust and they have a duty to perform faithful services to the state or municipality and their constituents. This bill creates a defined duty for public servants to provide faithful services in the Penal Law and the Public Officers Law. The duty, which applies to public servants at all levels of government within the state, elected officials, employees and appointees, is defined as conduct that is free of undisclosed self-dealing and free of the unauthorized or unlawful conferral of benefits. Under the bill, knowing and intentional violations of the duty to provide faithful public services may be prose- cuted by any district attorney or an enforcement action may be brought by a state commissions with ethics oversight.

The bill also expands the limited existing crime of Defrauding the Government and creates the crimes of Scheme to Defraud the Government in the First and Second Degrees. Currently, that law is limited to schemes to defraud government agencies of money or property. This bill would include corrupt schemes involving public servants and others who seek to corrupt the operation of government. Violation is punishable as either a class U or E felony, depending on the nature of the offense.

The duty of faithful services is similar to federal law , known as honest services fraud under 18 U.S.C. 5§ 1341, 1346. Earlier this year, the Supreme Court heard arguments on combined challenges to the law and a decision is expected soon. Unlike the federal law, and to address the concerns raised in the Supreme Court, the state duty to provide faithful services is well defined and only applies to public servants and party officers or anybody who acts with a public servant or party officer.

In addition, three sections of bribery involving public servants in the Penal Law are amended to reflect the proper standard of proof and to ensure that offers to bribe are punished as seriously as the Legislature has intended. The Court of Appeals has interpreted an existing bribery statute to require either a mutual agreement between the parties of a bribe or that the person giving the bribe believe that public servant will be influenced, thereby effectively reading important language out of existing law. (People v. Tran, 80 N.Y.2d 170, 176 (1992)). The bill amends bribery in the first, second and third degrees to eliminate this anomaly and make the public bribery statutes consistent with commercial bribery, sports bribery, and labor bribery statutes in the Penal Law, all of which require an intent to influence a public servant.

The bill creates new standards and prohibitions for community projects grants, which are commonly known as "member items." The community projects fund in the State Finance Law is renamed the Legislative Commu- nity Projects Fund. A similar fund is added to the State Finance Law for the executive for grants made by the governor.

Under the standards for the community project funds, grantees are barred from receiving grant if the grantee: was barred by a government agency in any jurisdiction within the last five years; failed to file a tax return or to pay taxes in the last five years; or used a third-party or agent to secure the grant. If the standards are violated, the attorney general may recover the grant through an action under the Executive Law 63-c.

In addition, the bill creates prohibitions for the sponsors of grants, members of the Legislature or the governor. Sponsors are barred from requesting grants if the sponsor or a relative of the sponsor is a director, officer or trustee of the grantee. Sponsors and their rela- tives are barred from having a financial interest in or receiving a benefit from a grant. The attorney general and any district attorney have concurrent authority to investigate and prosecute the prohibitions.

The bill also increases disclosure in both the Public Officers and the Election Law as a prophylactic measure to reduce public corruption. The categories of value or amounts on the annual statements of financial disclosure filed in all three branches of state government are disclosed to the public upon release. Current provisions in law and rules allow this information to be redacted. A question is added to the annual statement of financial disclosure requiring the reporting individual to disclose relationships with non-profits. Finally, candidates for public office and their spouse or domestic partner are required to report gifts or loans for the twelve months preceding a candidate designation.

Legislative history

None.

Fiscal implications

None.

Effective date

Immediately, provided that sections 9-22 are effective 60 days after becoming law.