Creates an executive ethics and compliance commission and the NY state commission on lobbying ethics and compliance; repealer

Summary of provisions

This bill would establish a new independent State Commission on Lobbying to be known as the "New York State Commission on Lobbying Ethics and Compliance." This Commission would consist of six members; two of the members would be appointed by the Governor, and 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.

Members would serve four year terms commencing on the thirty-first day of July, two thousand ten, and could not have served as a public officer, legislator, or lobbyist for five years prior to their appointment. The Chair and vice Chair would be elected by the majority of members of the Commission to serve a one year term and the chair and vice chair must be members of different political parties. Members of the Commission would receive a per diem allowance for their services in the sum of one hundred dollars for each day spent in the performance of their duties to a maximum of $5,000. An

Executive Director would be appointed by a majority vote of the commission and would serve a three year term. The Executive Director could only be removed for cause by a majority vote of the Commission.

This bill also would add new language to clarify the definition of "widely attended event. Such event must be attended by at least 25 people who are not associated with the government entity for which the attendee in question works and be related to the attendee's duties or responsibilities, or an event at which the attendee is to perform ceremonial duties. Whether or not the event is related to the attendee's ceremonial duties shall be determined in accordance with standards and guidance issued by the relevant ethics oversight body.

The bill also would:

* define "nominal food and beverage" to be of an amount worth less than ten dollars, and allow otherwise permissible transportation for local tours to be provided by an entity that does not own the facility being toured,

* establish the "Executive Ethics and Compliance commission" to oversee ethics compliance by the executive branch, to replace the current commission on Public Integrity. The Commission would consist of six members, who could not have served as a public officer, legislator, or lobbyist for five years prior to their appointment; two each would be appointed by the Governor, the comptroller, and the Attorney General. The commission would appoint an Executive Director to a three year term who could only be removed for cause by a majority vote of the Board;

* establish a "Joint Legislative commission on Ethics Standards" consisting of eight members to replace the current Legislative Ethics commission. Four members would be members of the Legislature, one appointed by each of the legislative leaders. The remaining four members would also be appointed, one each by the legislative leaders, and could not be present or former members of the Legislature, candidates for member of the Legislature or employees of the Legislature. No member may have served as a public officer or lobbyist for five years prior to their appointment. The commission would be responsible for advisory opinions, financial disclosures, ethics training and education, and the imposition of penalties for violations of section 73, 73-a and 74 of the public officers law;

* establish a new "Legislative Office of Ethics Investigations" responsible for assisting the Legislature to carry out its investigatory and enforcement responsibilities with regard to ethical standards. It would receive referrals of complaints for investigations from the Joint Legislative commission on Ethics standards, and the Standing committees on Ethics in the Senate and Assembly and complaints from the public. The Legislative Office of Ethics Investigations would conduct investigations pursuant to procedures and timelines set forth in the legislation;

* provide appropriate funds for the establishment of the "New york state commission on Lobbying Ethics and compliance," the "Executive Ethics and compliance commission," the "Joint Legislative commission

on Ethics standards," and the "Legislative Office of Ethics Investigations";

* expand financial disclosure to make categories of value public, add an additional category of value, increase disclosure by public officials regarding business and appearances before state agencies and consulting services, require lobbying disclosure regarding business relationships with state public officials, increase scrutiny of financial disclosure statements, and require financial disclosure forms to be posted on ethics commission web sites;

* require the Committee on Open Government to prepare an annual report summarizing the public actions of the Joint Legislative commission on Ethics Standards, the Legislative Office of Ethics Investigations, the State Commission on Lobbying, the Senate and Assembly Standing Committees on Ethics, and the Executive Ethics and Compliance Commission.

* codify an enforcement unit within the State Board of Elections (SBOE) with a mandate that at least 35 percent of the SBOE's annual budget be dedicated to the unit to promote increased enforcement of campaign finance laws.

* expand the jurisdiction of the enforcement unit and promote the independence of the enforcement counsel by making the office a 4 year term, and the office of special counsel, the other legal unit at the SBOE, a 4 year term and codifies the requirement that the deputy in each unit be a member of the opposite political party than the counsel.

* change the way that campaign finance enforcement matters are processed at the SBOE by requiring three of the four SBOE commissioners to vote to stop an investigation by the enforcement counsel, rather than requiring, as current law does, 3 votes to begin an investigation.

* mandate that all votes to stop an investigation, or to act on the recommendation of the enforcement counsel after an investigation, occur in public, as currently all discussion and all determinations made regarding campaign finance enforcement matters occur in executive session and not in public.

The bill would also promote compliance with campaign finance laws by:

* increasing the penalty for failure to file from $500 to $1,000;

* creating a substantial new penalty of up to $10,000 for the failure to file required statements three or more times in an election cycle; and

* creating a new penalty for accepting an excess contribution. In addition to returning the excess, a candidate or committee could be fined an amount equal to 2 times the excess plus face a civil penalty up to $10,000.

The bill would also promote the legal and appropriate use of campaign funds by requiring the State Board of Elections to issue formal

opinions on the use of such funds. Such opinions would be published without identifying the person making the request, would be binding on the board in any subsequent proceeding and could be used as a defense in any civil or criminal action alleging personal use of campaign funds.

The bill would also require greater disclosure and transparency of campaign finance information. Specifically, it would:

* define the term "independent expenditures"and require that such political communications that use such expenditures identify the source of such funds. Violators would be penalized by a civil fine of up to $1,000 or the cost of the independent expenditure, whichever is greater; mandate that independent expenditures on communications opposing or supporting a candidate or ballot initiative in excess of $1,000 be Subject to the same filing requirements currently in place for candidates and political committees; prohibit a person, campaign committee or political party from falsely identifying the source of a political communication;

* require itemization of candidate and political committee credit card payments and other like payments; and

* add an additional campaign finance filing for candidates and political committees during the legislative session.

Existing law

This act amends section 94 of the executive law. Sections 1-b, 1-c, 1-d, 1-e, 1-h, 1-i, and 1-j of the legislative law are amended. Section 80 of the legislative law is repealed and two new sections 80 and 81 are added to the legislative law. A new section 89 is added to the public officers law. Additionally, sections 73 and 73-a of the public officers law are amended.

This act amends the following sections of the election law: 3-100, 3-102, 3104, 14-100, 14-102, 14-104, 14-106,14-108,14_126 and 16-100. It also adds three new sections to the election law: 3-111, 14-107 and 16-120.

Justification

On May 13, 2009, the New York State Inspector General issued a report detailing alleged ethics violations by certain members of the Commission on Public Integrity and former Governor Spitzer's staff. The alleged violations arose from the Commission's investigation into the so-called "Troopergate" scandal. In addition, ethics violations by executive officers and legislators have been discovered that might have been addressed at an earlier point if there had been greater financial disclosure. Such recent events have created a desire in the public and within the Legislature to ensure that the ethics oversight over public officials is independent, transparent, and accountable to the public. In addition, it has become clear that the structure established in 2007 that joined the lobbying commission with the body that oversees ethics compliance by executive branch employees and

gave control of that new entity to the appointees of one office (the Governor) was not as effective as the former independent commission on lobbying.

In response, this bill seeks to create multiple bodies able to develop expertise in the fields on which they focus and that will function independently from the branches of government and lobbying industry that they seek to regulate. These bodies would be charged with different responsibilities, including compliance and oversight of the public officers law, issuing advisory opinions to prevent ethical lapses before they occur, investigatory powers for alleged violations of the public officers law, enforcement of the public officers law, and compliance and enforcement of the lobbying law.

These ethics bodies will help to ensure that public officials carry on their duties free from impropriety and undue external influence. When public officials allegedly fail to behave ethically, the structure established by this bill will ensure that the public has access to accurate and fair information to evaluate the allegation. The legislative ethics entities are separated into a compliance body and an investigative body in order to remove any real or perceived conflict for members of a body investigating the same members to whom it is supposed to be providing advice.

The lobbying compliance body would work to ensure the continued disclosure of various lobbying practices and information and compliance with the existing lobbying law. The New York State Constitution mandates that all boards of elections be bipartisan. pursuant to the constitution, the Election Law established the state Board of Elections and requires that it be comprised of two commissioners from each of the two major political parties. The Election Law further provides that any act of the board be taken only upon a vote of at least 3 of the 4 commissioners. As a result, some issues come before the board and result in a tie vote, rendering the board unable to act. The enforcement of campaign violations has been limited due to this structure, resulting in flagrant campaign finance abuses that are not prosecuted. This bill would empower the enforcement unit at the SBOE to allow independent investigations of campaign finance violations.

The bill would promote compliance with campaign finance laws by increasing current penalties and creating new penalties for violations of campaign finance laws and by requiring that the SBOE issue formal opinions on the use of campaign funds.

It would also promote transparency and accountability by requiring the disclosure of additional information regarding political committee activities and, for the first time, requiring the identification of the source of, and the filing of statements about, independent expenditures made in an election. The bill would require the SBOE to vote on campaign finance matters in public for the first time to allow the public to evaluate the

effectiveness of campaign finance laws and increase the public's confidence in our electoral system.

Passage of the bill is needed to help strengthen our current ethics and campaign finance laws, and by so doing help to improve compliance with the standards of conduct, legal and ethical, to which all of New York's public servants should be held.

Legislative history

2010: S.6457/A.9544 (Schneiderman/Silver)

Fiscal implications

The state of New York shall appropriate during each fiscal year to the New York state commission on Lobbying Ethics and compliance an amount equivalent to seven and one-half per centum of the appropriation available from the General Fund to pay for the expenses of the Department of State~ it shall appropriate during each fiscal year to the Executive Ethics and compliance Commission an amount equivalent to seven and one half per centum of the appropriation available to pay for the expenses of the Department of state; it shall appropriate to the Joint Legislative commission on Ethics Standards and the Legislative Office of Ethics Investigations an amount equivalent to one per centum of the appropriation available to the State Senate.

The State of New York shall appropriate at least 35 percent of the State Board of Elections' annual budget to the enforcement unit charged with enforcement of state campaign finance laws.

Effective date

July 31, 2011; provided, however, sections five-a, five-b and fourteen of this act shall take effect January 1, 2012; provided further, that sections one, two, three-a, four, five, six through eight and nine through eleven of this act shall expire and be deemed repealed 4 years after such effective date; provided further that sections twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-three, thirty-four, and thirty-five of this act shall take effect on the sixtieth day after it shall have become a law; and provided further that section thirty-two of this act shall take effect on January 1, 2012.