Update Complainants on Investigations

Section 1. Subdivision 9-a and paragraphs (a) and (b) of subdivision 13 of section 94 of the executive law, subdivision 9-a as added by section 6 of part A of chapter 399 of the laws of 2011, paragraph (a) of subdivision 13 as amended by section 1 and paragraph (b) of subdivision 13 as amended by section 2 of part J of chapter 286 of the laws of 2016, are amended to read as follows:

9-a. (a) When an individual becomes a commissioner or staff of the commission, that individual shall be required to sign a non-disclosure statement.

(b) Except as otherwise required or provided by law, or when necessary to inform the complainant or target of the alleged violation of law, if any of the status of an investigation, 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-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD13483-01-9

S. 6737 2

mation received by the commission shall be guilty of a class A misdemeanor.

(d) Notwithstanding paragraph (b) of this subdivision and subdivision thirteen of this section, the commission may, in the public interest or under extraordinary circumstances, if the public is otherwise aware of the existence of such actual or potential investigative matter, authorize the chairman or designated staff to publicly disclose that: (1) such matter is pending before the commission; (2) such matter has been closed by the commission; or (3) the commission has deferred action on the matter at the request of a prosecutor, other law enforcement agency, or due to another pending proceeding. Before authorizing such disclosure, the commission shall provide the subject of such investigation and the complainant or target of alleged violation of law, if any the opportunity to be heard regarding the public release of such information.

(a) Investigations. If the commission receives a sworn complaint alleging a violation of section seventy-three, seventy-three-a, or seventy-four of the public officers law, section one hundred seven of the civil service law or article one-A of the legislative law by a person or entity subject to the jurisdiction of the commission including members of the legislature and legislative employees and candidates for member of the legislature, or if a reporting individual has filed a statement which reveals a possible violation of these provisions, or if the commission determines on its own initiative to investigate a possible violation, the commission shall notify the individual in writing, describe the possible or alleged violation of such laws, provide a description of the allegations against him or her and the evidence, if any, supporting such allegations, provided however that the joint commission shall redact any information that might, in the judgment of the commission, be prejudicial to either the complainant or the investigation; the letter also shall set forth the sections of law alleged to have been violated and provide the person with a fifteen day period in which to submit a written response, including any evidence, statements, and proposed witnesses, setting forth information relating to the activities cited as a possible or alleged violation of law. The commission shall provide a copy of such letter to the complainant or the target of the alleged violation of law, if any. The commission shall, within sixty calendar days after a complaint or a referral is received or an investigation is initiated on the commission's own initiative, vote on whether to commence a full investigation of the matter under consideration to determine whether a substantial basis exists to conclude that a violation of law has occurred. The staff of the joint commission shall provide to the members prior to such vote information regarding the likely scope and content of the investigation, and a subpoena plan, to the extent such information is available. Such investigation shall be conducted if at least eight members of the commission vote to authorize it. Where the subject of such investigation is a member of the legislature or a legislative employee or a candidate for member of the legislature, at least two of the eight or more members who so vote to authorize such an investigation must have been appointed by a legislative leader or leaders from the major political party in which the subject of the proposed investigation is enrolled if such person is enrolled in a major political party. Where the subject of such investigation is a state officer or state employee, at least two of the eight or more members who so vote to authorize such an investigation must have been appointed by the governor and lieutenant governor. Where the subject of such investigation is a statewide elected official or a direct appointee of such an

S. 6737 3

official, at least two of the eight or more members who so vote to authorize such an investigation must have been appointed by the governor and lieutenant governor and be enrolled in the major political party in which the subject of the proposed investigation is enrolled, if such person is enrolled in a major political party. If the commission does not vote to authorize a full investigation, the commission shall provide written notice of the decision to the complainant or target of the alleged violation of law.

(b) Substantial basis investigation. Upon the affirmative vote of not less than eight commission members to commence a substantial basis investigation, written notice of the commission's decision shall be provided to the individual who is the subject of such substantial basis investigation and the complainant or target of the alleged violation of law, if any. Such written notice shall include a copy of the commission's rules and procedures and shall also include notification of [such individual's] the subject of the investigation's right to be heard within thirty calendar days of the date of the commission's written notice. If the commission votes to commence a substantial basis investigation, the commission shall provide to the [individual] subject of the investigation and the complainant or target of the alleged violation of law, if any a notice setting forth the alleged violations of law and the factual basis for those allegations. The commission shall provide to the [individual] subject of the investigation any additional evidence supporting the allegations not set forth in the letter sent pursuant to paragraph (a) of this subdivision in sufficient detail to enable the [individual] subject of the investigation to respond, at least seven days before the hearing. Such hearing shall afford the [individual] subject of the investigation with a reasonable opportunity to appear in person, and by attorney, give sworn testimony and present evidence. Such hearing shall occur before the commission votes on whether or not to issue a substantial basis report. The commission shall also inform the [individual] subject of the investigation of its rules regarding the conduct of adjudicatory proceedings and appeals and the other due process procedural mechanisms available to such [individual] subject of the investigation. If the commission determines at any stage that there is no violation, that any potential violation has been rectified, or if the investigation is closed for any other reason, it shall so advise the [individual] subject of the investigation and the complainant or target of the alleged violation of law, if any in writing within fifteen days of such decision. All of the foregoing proceedings shall be confidential.

§ 2. This act shall take effect on the ninetieth day after it shall have become a law. Effective immediately the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed on or before such date.