Bill Text: NY S00855 | 2021-2022 | General Assembly | Introduced


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

Spectrum: Strong Partisan Bill (Democrat 37-4)

Status: (Introduced - Dead) 2022-03-01 - OPINION REFERRED TO JUDICIARY [S00855 Detail]

Download: New_York-2021-S00855-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                           855

                               2021-2022 Regular Sessions

                    IN SENATE

                                       (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

     1    Section 1. Resolved (if the Assembly concur), That the constitution be
     2  amended by adding a new article V-A to read as follows:
     3                                 ARTICLE V-A
     4                         STATE GOVERNMENT INTEGRITY
     5    Section 1. a. The people of New York expect officers and employees  of
     6  the state to observe laws, rules and regulations that specify high stan-
     7  dards of ethical conduct designed to avoid the reality and appearance of
     8  corruption,  conflict of interest, self-dealing and breach of the public
     9  trust. Equally they expect that candidates for state office  and  others
    10  seeking  to  influence  state elections to observe laws, rules and regu-
    11  lations  designed  to  regulate  actual  and  potential  corruption  and
    12  conflicts  of  interest by regulating the influence of money in politics
    13  and making transparent the financing  and  expenditures  of  efforts  to
    14  influence  voters.  To protect the integrity and freedom from corruption
    15  of the use of state power to  enact  laws,  establish  rules  and  regu-
    16  lations,  and contract for goods and services funded in whole or in part
    17  with state taxes and other revenues,  the  people  of  New  York  expect
    18  observance of laws, rules and regulations that regulate lobbying, lobby-
    19  ists  and  government  procurement.  To ensure the appropriate workplace
    20  conduct of state officers and employees and those who interact with such
    21  officers and employees while dealing with the state and  its  instrumen-
    22  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

     1  observe laws, rules and regulations setting standards of appropriate and
     2  non-discriminatory workplace behavior.
     3    b. Achieving this goal requires an independent and non-partisan agency
     4  with  jurisdiction  over  matters pertaining to both the legislative and
     5  executive branches of government and  that  has  the  needed  powers  to
     6  train,  advise,  interpret,  adopt  rules  and regulations, investigate,
     7  conduct fair hearings that afford due  process  and  impose  appropriate
     8  sanctions on a consistent basis so that, with fair and equal application
     9  of  the law, no person or entity, no matter what their status, influence
    10  or role in government, can place themselves  above  the  law  or  suffer
    11  detriment due to any lack of such status, influence or role.
    12    §  2.  a. There shall be a New York state government integrity commis-
    13  sion.  The commission shall, on an independent and  non-partisan  basis:
    14  (i) receive, initiate, investigate and determine complaints with respect
    15  to  laws,  rules and regulations prohibiting unethical behavior, includ-
    16  ing, conflict of interest, self-dealing and breach of the public  trust;
    17  (ii)  administer  and  enforce laws, rules and regulations providing for
    18  the disclosure of financial and  other  interests  by  state  government
    19  officers  and  employees;  (iii)  administer and enforce laws, rules and
    20  regulations relating to abuse of official  position,  including  through
    21  discrimination  and  discriminatory and retaliatory harassment, by state
    22  government officers and employees; (iv)  administer  and  enforce  laws,
    23  rules  and  regulations  regulating  the  influence of money in politics
    24  including those providing for the disclosure of  receipts  and  expendi-
    25  tures  by  candidates  and political parties; (v) administer and enforce
    26  laws, rules and regulations relating to public  financing  of  political
    27  campaigns;  (vi) administer and enforce laws, rules and regulations that
    28  regulate lobbying and lobbyists; and (vii) receive,  initiate,  investi-
    29  gate  and  determine complaints that laws, rules and regulations related
    30  to government procurement are  not  being  faithfully  executed.    This
    31  jurisdiction shall be in addition to and not in derogation of the inves-
    32  tigatory, disciplinary, vendor qualification or law enforcement authori-
    33  ty of any other person or entity and of the right of an aggrieved person
    34  to  seek civil redress in accordance with law. The commission may in its
    35  discretion decline to initiate, or suspend initiation of proceedings, or
    36  otherwise adjust its procedures,  in  view  of  such  other  proceedings
    37  undertaken or able to be undertaken by such other person or entity.
    38    b.  When,  after  hearing,  the  commission  has  determined  that the
    39  respondent has violated a law, rule or  regulation  within  the  commis-
    40  sion's  jurisdiction  to  enforce,  the  commission may impose any civil
    41  sanction authorized by law and/or refer the matter for  criminal  prose-
    42  cution.  The  commission  may  also  caution,  admonish  or censure such
    43  respondent or, in the case of a non-elected state officer  or  employee,
    44  suspend,  demote  or  remove  such  respondent from office or employment
    45  after such adjudicatory process that  substantially  complies  with  the
    46  terms  of  any relevant collective bargaining agreement. In deciding the
    47  severity of the sanction, the commission shall consider to  what  extent
    48  the  violation  is  inadvertent, isolated and/or of insubstantial conse-
    49  quence on the one hand or willful, repeated, causing actual public  harm
    50  or risk of public harm and/or otherwise egregious on the other. Determi-
    51  nations,  other  than a determination to refer for criminal prosecution,
    52  shall be subject to judicial review in accordance with law. If it  finds
    53  such  a  violation  it  may also issue a cease and desist order and seek
    54  judicial enforcement of that order in accordance with law.
    55    c. The commission shall consist  of  thirteen  members,  appointed  as
    56  follows:  (i)  two  shall  be appointed by the governor, at least one of

        S. 855                              3

     1  whom shall be, or within the prior five years shall have been,  enrolled
     2  in  a  different major political party than the governor; (ii) one shall
     3  be appointed by each of the leaders in each house of the legislature  of
     4  the  party  conferences  whose candidate for governor in the most recent
     5  gubernatorial election received the largest and second largest number of
     6  votes; and (iii) seven jointly by the chief judge of the  state  of  New
     7  York  and  the  presiding  justices  of each of the appellate divisions,
     8  three of whom shall be, and within the prior five years shall have been,
     9  enrolled in each of the two majority political parties and one  of  whom
    10  shall  not  be,  and  shall  not  within  the  past five years have been
    11  enrolled in any political party. The chief judge shall request the pres-
    12  ident and immediate past president of the state bar jointly  to  propose
    13  seven  persons  for  each of two appointments to the commission who as a
    14  group of seven would be eligible for such appointment and two  of  those
    15  appointed jointly by the chief judge and the presiding justices shall be
    16  drawn  from these two lists. No member of the commission shall have held
    17  office in any political party organization, have been a state officer or
    18  employee or have been engaged  as  a  lobbyist  within  three  years  of
    19  appointment or at any time during their term. The chair shall be elected
    20  by  the  commission  members from among its members.  Commission members
    21  shall be reimbursed for their actual expenses and paid a per diem salary
    22  to be fixed by law but at least a per diem amount equal  to  the  annual
    23  salary  paid  to  a  justice of the supreme court divided by two hundred
    24  twenty. A member may be removed for cause on application to the court of
    25  appeals made by a majority vote of the full membership  of  the  commis-
    26  sion.
    27    d. The persons first appointed by the governor shall have respectively
    28  three  and  four-year terms as the governor shall designate. The persons
    29  first appointed jointly by the chief judge of the state of New York  and
    30  the presiding justices of the appellate divisions shall have respective-
    31  ly  one, two, two, three, three, four, and four-year terms as that judge
    32  and those justices shall designate. The person first  appointed  by  the
    33  legislative  leaders  in  each  house  of  the  legislature of the party
    34  conferences whose candidate for governor received the largest number  of
    35  votes shall have a four-year term in the case of the Senate and a three-
    36  year term in the case of the Assembly. The person first appointed by the
    37  legislative  leaders  in  each  house  of  the  legislature of the party
    38  conferences whose candidate for governor  received  the  second  largest
    39  number of votes shall have a two-year term in the case of the Senate and
    40  a  one-year term in the case of the Assembly. Each member of the commis-
    41  sion shall be appointed thereafter for a term of four years and shall be
    42  appointed in the same manner with a person of the same political  affil-
    43  iation as his or her predecessor.
    44    e.  The  organization  and  procedure  of  the  commission shall be as
    45  provided by law provided that the commission shall act by majority  vote
    46  of  its  membership and determine violations based on a preponderance of
    47  the evidence except that any order of censure or removal shall be  based
    48  on  clear and convincing evidence.  The commission may establish its own
    49  rules and procedures not inconsistent with law and  due  process.  Those
    50  rules shall bar ex parte communications regarding a potential or ongoing
    51  investigation or other matter before the commission, direct or indirect,
    52  between  members  of  the  commission and their appointing authority and
    53  such rule shall bind both the member, the commission staff, the appoint-
    54  ing authority and the staff, agents and representatives of the  appoint-
    55  ing  authority.  The  commission  shall be empowered to designate one or

        S. 855                              4

     1  more of its members or any other persons as hearing officers to hear and
     2  report concerning any matter before the commission.
     3    §  3.  a.  The  commission many appoint an executive director, who may
     4  appoint staff, and one or more deputy directors  with  such  duties  and
     5  powers  as  the  commission may fix. No person who would be disqualified
     6  from being a member of the commission  may  be  appointed  as  executive
     7  director  except  that  a person employed at the commission shall not be
     8  disqualified by reason of that employment.
     9    b. The commission and its designated hearing officers shall  have  the
    10  power  to administer oaths, compel the attendance of witnesses and issue
    11  subpoenas.
    12    c. The commission, shall have the duty to train all persons within the
    13  commission's jurisdiction in compliance with the laws, rules  and  regu-
    14  lations  with  respect  to  which the commission has jurisdiction and to
    15  otherwise encourage persons subject to the commission's jurisdiction  to
    16  fulfill  their  duties under such laws and shall have the power to issue
    17  and interpret rules and regulations  subject  to  judiciary  review  for
    18  conformance with law.
    19    d.  The  commission  may  make  a  criminal  prosecution referral to a
    20  district attorney, the attorney general or a United States attorney.
    21    e. The commission, after notice and opportunity  for  public  comment,
    22  may issue advisory opinions or bulletins which will have such protective
    23  effect  on  those who act in compliance therewith as is specified in the
    24  opinion or bulletin. It shall also establish an  office  of  ethics  and
    25  lobbying  guidance  to  give  prompt, non-precedental informal advice to
    26  persons whose conduct it oversees.    Persons  receiving  such  informal
    27  advice  may  rely  on  that  advice absent misrepresentation of material
    28  facts to the office of ethics and lobbying guidance  and  such  communi-
    29  cations  with  the  office  of  ethics  and lobbying shall be treated as
    30  confidential except as disclosure is needed  to  prevent  or  rectify  a
    31  crime or fraud or prevent a substantial threat to public safety.
    32    §  4. The commission shall annually submit a budget which the governor
    33  shall include  in  his  executive  budget  and  financial  plan  without
    34  revision.    The  legislature may reduce the commission's budget and the
    35  governor may veto that reduction and replace it with an amount not  less
    36  than  that determined by the legislature. If such veto shall be overrid-
    37  den by a two-thirds vote of both houses of the legislature,  the  amount
    38  determined by the legislature shall become binding.
    39    §  5. a. The commission shall administer and enforce the state code of
    40  ethics established by law. The state code of ethics shall be  construed,
    41  and any revision or amendment thereto, shall be drafted and construed to
    42  proscribe  conduct  that  creates  in the mind of a reasonable person an
    43  appearance of corruption, conflicts of interest that  materially  impair
    44  the  performance  of  official  duties  and breaches of the public trust
    45  including the misuse of official  position  or  the  abuse  of  official
    46  authority  for  personal  gain. The commission shall periodically review
    47  the state code of ethics and may propose to  the  legislature  revisions
    48  and amendments to the code.
    49    b.  The  state  code  of  ethics  shall,  by virtue of this provision,
    50  provide that it shall be the ethical duty of any person or entity within
    51  the jurisdiction of the commission to promptly report to the  commission
    52  information not protected by the attorney-client or prosecutorial inves-
    53  tigative  privilege about activity known to be in violation of the state
    54  code of ethics or other law which any person or entity  has  engaged  in
    55  with  respect to activity that is within the jurisdiction of the commis-
    56  sion.  There shall be no retaliation against a person or  entity  making

        S. 855                              5

     1  such  a  report  in good faith on information and belief, and any person
     2  aggrieved by such retaliation may bring a civil action for  compensatory
     3  and exemplary damages.
     4    c.  The  state  code  of  ethics  shall,  by virtue of this provision,
     5  provide that no person within the jurisdiction of the  commission  shall
     6  commit  an act of discriminatory or retaliatory harassment while serving
     7  in his or her official capacity and no such person serving in a supervi-
     8  sory capacity shall suffer an act of such harassment  to  occur  without
     9  taking  care  that there be due consequences in accordance with law. The
    10  commission may by rule define the conduct that  constitutes  an  act  of
    11  discriminatory  or  retaliatory  harassment  and  shall establish a unit
    12  responsible for harassment complaints and investigations.
    13    § 6. The commission may recommend to the legislature  limits  for  all
    14  categories  of campaign contributions to candidates and political organ-
    15  izations that in its judgment are low enough to prevent an elected offi-
    16  cial from being so beholden to a campaign contributor as  to  materially
    17  impair  such  official's  exercise of independent policy judgment in the
    18  interests of the public and his or her constituents.
    19    § 7. The commission shall be subject to all  transparency  and  public
    20  access  laws subject to such reasonable exceptions for pending confiden-
    21  tial investigations as shall be provided by law. The legislative  branch
    22  shall  be  subject to laws providing for transparency to the same extent
    23  as is the executive branch.
    24    § 8. Any commission appointment not made within sixty  days  following
    25  the  effective  date of this article, or within sixty days of the occur-
    26  rence of any vacancy, shall be filled by the president and  president-e-
    27  lect  of  the  state  bar  acting  jointly. For no more than ninety days
    28  following the initial appointment all  the  members  of  the  commission
    29  shall  prepare  to commence operation, including the hiring of an execu-
    30  tive director and managerial staff, and on such ninetieth day the  joint
    31  commission  on public ethics and the legislative ethics commission shall
    32  no longer exist, and the  authority  of  the  board  of  elections  over
    33  campaign  finance  shall  cease all their powers, duties, non-managerial
    34  employees and matters having been transferred to the commission.
    35    § 2. Resolved (if the Assembly concur), That the  foregoing  amendment
    36  be referred to the first regular legislative session convening after the
    37  next  succeeding  general  election  of members of the assembly, and, in
    38  conformity with  section  1  of  article  19  of  the  constitution,  be
    39  published for 3 months previous to the time of such election.
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