Bill Text: NY S01816 | 2021-2022 | General Assembly | Introduced

---

Bill Title: Enacts the integrity in government act; expands the powers and duties of the committee on open government.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2022-01-05 - REFERRED TO FINANCE [S01816 Detail]

Download: New_York-2021-S01816-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          1816

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 16, 2021
                                       ___________

        Introduced  by  Sens. SKOUFIS, BIAGGI, KRUEGER, PARKER -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Finance

        AN  ACT  to  amend  the public officers law, in relation to enacting the
          integrity in government act

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. This act shall be known and may be cited as the "integrity
     2  in government act".
     3    § 2. Paragraph (a) of subdivision 1 of section 89 of the public  offi-
     4  cers  law,  as amended by chapter 33 of the laws of 1984, is amended and
     5  six new paragraphs (c), (d), (e), (f), (g) and (h) are added to read  as
     6  follows:
     7    (a) The committee on open government is continued and shall consist of
     8  the  lieutenant  governor or the delegate of such officer, the secretary
     9  of state or the delegate of such officer,  whose  office  shall  act  as
    10  secretariat for the committee, the commissioner of the office of general
    11  services  or the delegate of such officer, the director of the budget or
    12  the delegate of such officer, and seven  other  persons,  none  of  whom
    13  shall  hold  any other state or local public office except the represen-
    14  tative of local governments as set forth  herein,  to  be  appointed  as
    15  follows:  five  by  the  governor, at least two of whom are or have been
    16  representatives of the news media, one of whom shall be a representative
    17  of local government who, at the time of appointment,  is  serving  as  a
    18  duly  elected officer of a local government, one by the temporary presi-
    19  dent of the senate, and one by the speaker of the assembly. The  persons
    20  appointed  by  the  temporary president of the senate and the speaker of
    21  the assembly shall be appointed to serve, respectively, until the  expi-
    22  ration of the terms of office of the temporary president and the speaker
    23  to  which  the  temporary  president  and speaker were elected. The four
    24  persons presently serving by appointment of the governor for fixed terms

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05628-01-1
        S. 1816                             2

     1  shall continue to serve until the expiration of their respective  terms.
     2  Thereafter,  their respective successors shall be appointed for terms of
     3  four years. The member representing local government shall be  appointed
     4  for  a  term  of  four years, so long as such member shall remain a duly
     5  elected officer of a local government. The committee shall hold no  less
     6  than two meetings annually, but may meet at any time. The members of the
     7  committee  shall  be  entitled  to  reimbursement  for  actual  expenses
     8  incurred in the discharge of their duties.   The executive  director  of
     9  the  committee shall maintain a permanent office in Albany in such suit-
    10  able space as the commissioner of the department of state provides.  All
    11  papers  required  to be filed with or served upon the committee shall be
    12  delivered to such office. Each member shall receive two hundred  dollars
    13  per  day  for  each day such member is present at a committee hearing or
    14  meeting, and shall be entitled to reimbursement for actual and necessary
    15  expenses incurred in connection therewith.
    16    (c) The committee shall, subject to the civil service law, employ such
    17  employees as may be necessary  to  carry  out  the  provisions  of  this
    18  section. The committee may enter into such contractual agreements as may
    19  be  necessary  for the discharge of its duties, within the limits of its
    20  appropriated funds and in accordance with established procedures.
    21    (d) i. Any person denied the right to inspect or copy records,  denied
    22  the  right  to attend any meeting of a public agency or denied any other
    23  right conferred by this article and article seven of  this  chapter  may
    24  appeal  therefrom to the committee by filing a notice of appeal with the
    25  committee. A notice of appeal shall be filed not later than thirty  days
    26  after such denial, except in the case of an unnoticed or secret meeting,
    27  in which case the appeal shall be filed not later than thirty days after
    28  the  person  filing the appeal receives notice in fact that such meeting
    29  was held. For purposes of this paragraph, such notice of appeal shall be
    30  deemed to be filed on the date it is received by said  committee  or  on
    31  the  date  it is postmarked, if received more than thirty days after the
    32  date of the denial from which such appeal is taken.
    33    ii. Upon receipt of such notice, the committee shall  serve  upon  all
    34  parties, by certified or registered mail, a copy of such notice together
    35  with  any  other  notice  or order of such committee. In the case of the
    36  denial of a request to inspect or copy records  contained  in  a  public
    37  employee's  personnel  or medical file, the committee shall include with
    38  its notice or order an order requiring the public agency to  notify  any
    39  employee  whose  records  are  subject  of an appeal, and the employee's
    40  collective  bargaining  representative,  if  any,  of  the   committee's
    41  proceedings and, if any such employee or collective bargaining represen-
    42  tative  has  filed  an  objection, the agency shall provide the required
    43  notice to such employee  and  collective  bargaining  representative  by
    44  certified  mail,  return  receipt  requested  or by hand delivery with a
    45  signed receipt. A public employee whose personnel or medical file is the
    46  subject of an appeal may intervene as a party in the proceedings on  the
    47  matter before the committee.
    48    (e)  i.  The  committee  shall,  after  due  notice to the parties and
    49  subject to the provisions of this article  and  article  seven  of  this
    50  chapter,  promptly  review  the  alleged violation of said articles. The
    51  committee shall have the power to investigate all alleged violations  of
    52  this  article  and article seven of this chapter and may for the purpose
    53  of investigating any violation hold a hearing, administer oaths, examine
    54  witnesses, receive oral and documentary  evidence,  have  the  power  to
    55  subpoena  witnesses  under  procedural rules adopted by the committee to
    56  compel attendance and to require the production for examination  of  any
        S. 1816                             3

     1  books  and papers which the committee deems relevant in any matter under
     2  investigation or in question. In case of a refusal to  comply  with  any
     3  such  subpoena  or to testify with respect to any matter upon which that
     4  person  may be lawfully interrogated, a court of competent jurisdiction,
     5  on application of the committee,  may  issue  an  order  requiring  such
     6  person  to comply with such subpoena and to testify; failure to obey any
     7  such order of the court may be punished by the court as a contempt ther-
     8  eof.
     9    ii. The committee shall hear and decide each appeal within six  months
    10  after  the  filing  of  the  notice of appeal. The committee shall adopt
    11  regulations establishing criteria for those appeals which shall be priv-
    12  ileged in their assignment for hearing. Any such privileged appeal shall
    13  be heard not later than thirty days after receipt of a notice of  appeal
    14  and decided not later than sixty days after a hearing.
    15    iii.  If  a  notice of appeal concerns an announced agency decision to
    16  meet in executive session or an ongoing agency practice  of  meeting  in
    17  executive  sessions,  for a stated purpose, the committee or a member or
    18  members of the committee  designated  by  its  chairperson  shall  serve
    19  notice upon the parties and hold a preliminary hearing on the appeal not
    20  later  than seventy-two hours after receipt of the notice, provided such
    21  notice shall be given to the parties at least forty-eight hours prior to
    22  such hearing. During such preliminary hearing, the committee shall  take
    23  evidence  and  receive testimony from the parties. If after the prelimi-
    24  nary hearing the committee finds probable  cause  to  believe  that  the
    25  agency  decision  or  practice  is in violation of article seven of this
    26  chapter, the agency shall not meet in executive session for such purpose
    27  until the committee decides the appeal. If probable cause  is  found  by
    28  the committee, it shall conduct a final hearing on the appeal and render
    29  its  decision  not  later  than  five  days  after the completion of the
    30  preliminary hearing. Such decision shall specify the  committee's  find-
    31  ings of fact and conclusions of law.
    32    iv. The committee, at its discretion, may issue an order to discontin-
    33  ue  all  work  resulting  from  an alleged violation of this article and
    34  article seven of this chapter if irreparable harm is  deemed  to  poten-
    35  tially  occur.  This order will hold until a decision is rendered by the
    36  committee on the alleged violation.
    37    (f) i. In any appeal to the committee, the committee may  confirm  the
    38  action  of  the  agency  or  order the agency to provide relief that the
    39  committee, in its discretion, believes appropriate to rectify the denial
    40  of any right conferred by this article and article seven of  this  chap-
    41  ter.    The  committee may declare null and void any action taken at any
    42  meeting which a person was denied the right to attend  and  may  require
    43  the  production or copying of any public record. In addition, upon find-
    44  ing that a denial of any right created by this article and article seven
    45  of this chapter was without reasonable grounds and after  the  custodian
    46  or  other official directly responsible for the denial has been given an
    47  opportunity to be heard at a hearing conducted in accordance with  arti-
    48  cle  seven  of this chapter the committee may, in its discretion, impose
    49  against the custodian or other official a civil penalty of not less than
    50  twenty dollars nor more than one thousand dollars.
    51    ii. If the committee finds that a person has taken  an  appeal  frivo-
    52  lously,  without reasonable grounds, after such person has been given an
    53  opportunity to be heard at a hearing conducted in accordance with  arti-
    54  cle  seven of this chapter, the committee may, in its discretion, impose
    55  against that person a civil penalty of not less than twenty dollars  nor
    56  more than one thousand dollars.
        S. 1816                             4

     1    iii.  The  committee shall notify a person of a penalty levied against
     2  him pursuant to this subdivision by written notice sent by certified  or
     3  registered mail. If a person fails to pay the penalty within thirty days
     4  of  receiving  such  notice, a court of competent jurisdiction shall, on
     5  application of the committee, issue an order requiring the person to pay
     6  the penalty imposed.
     7    iv.  The  committee shall provide due notice to the parties and review
     8  affidavits and written arguments that the parties may submit  and  grant
     9  or  deny such leave summarily at its next regular meeting. The committee
    10  shall grant such leave unless it finds that the  appeal:  (A)  does  not
    11  present  a  claim  within the committee's jurisdiction; (B) would perpe-
    12  trate an injustice; or (C) would constitute an abuse of the  committee's
    13  administrative process. Any party aggrieved by the committee's denial of
    14  such  leave  may  apply  to  a  court  of competent jurisdiction, within
    15  fifteen days of the committee meeting at which such  leave  was  denied,
    16  for an order requiring the committee to hear such appeal.
    17    v.  In  making  the  findings  and  determination, the committee shall
    18  consider the nature of any justice or abuse of  administrative  process,
    19  including  but  not  limited  to:  (A)  the nature, content, language or
    20  subject matter of the request or the appeal; (B)  the  nature,  content,
    21  language  or  subject  matter  to  prior  or contemporaneous requests or
    22  appeals by the person making the request or taking the appeal;  and  (C)
    23  the  nature,  content,  language  or  subject matter of other verbal and
    24  written communications to any agency or any official of any agency  from
    25  the person making the request or taking the appeal.
    26    vi.  Notwithstanding any provision of this section to the contrary, in
    27  the case of an appeal to the committee of a denial by a  public  agency,
    28  the committee may, upon motion of such agency, confirm the action of the
    29  agency and dismiss the appeal without a hearing if it finds, after exam-
    30  ining the notice of appeal and construing all allegations most favorably
    31  to  the appellant, that (A) the agency has not violated this article and
    32  article seven of this chapter or (B) the agency has committed a  techni-
    33  cal  violation  that constitutes a harmless error that does not infringe
    34  the appellant's rights.
    35    (g) i. If in the judgment of the committee circumstances  so  warrant,
    36  it  may  at  any time after the filing of a notice of appeal endeavor to
    37  resolve the appeal by any method of  dispute  resolution  prescribed  by
    38  rule of the committee including, but not limited to, mediation.
    39    ii.  The  terms of any mediation agreement may contain such provisions
    40  as may be agreed upon by the committee, the appellant and  the  respond-
    41  ent.
    42    iii.  The  members  of  the committee and its staff shall not publicly
    43  disclose what transpired in the course of mediation efforts.
    44    iv. If a mediation agreement is  entered  into,  the  committee  shall
    45  embody  such  agreement  in an order and serve a copy of such order upon
    46  all parties to the agreement. Violation of such an order may  cause  the
    47  imposition of civil penalties.
    48    (h)  Any  party aggrieved by the decision of said committee may appeal
    49  to the judiciary therefrom, the court may conduct an in camera review of
    50  the original or a certified copy of the records which are  at  issue  in
    51  the  appeal  but  were  not  included  in  the record of the committee's
    52  proceedings, admit the records into evidence and order the records to be
    53  sealed or inspected on such terms as the court deems fair and  appropri-
    54  ate,  during  the  appeal.  The committee shall have standing to defend,
    55  prosecute or otherwise participate in any appeal of any of its decisions
    56  and to take an appeal from any judicial decision overturning or  modify-
        S. 1816                             5

     1  ing  a  decision  of  the  committee.   If agreement is a jurisdictional
     2  prerequisite to the committee taking  any  such  appeal,  the  committee
     3  shall  be  deemed to be aggrieved. Legal counsel employed or retained by
     4  said committee shall represent said committee in all such appeals and in
     5  any  other litigation affecting said committee.  Any appeal taken pursu-
     6  ant to this section shall be privileged in respect to its assignment for
     7  trial over all other actions except writs of habeas corpus  and  actions
     8  brought  by  or  on  behalf  of  the state, including information on the
     9  relation of private individuals. If the  court  finds  that  any  appeal
    10  taken  pursuant  to  this  section  is frivolous or taken solely for the
    11  purpose of delay, it shall order the party responsible therefor  to  pay
    12  to  the  party  injured  by  such  frivolous or dilatory appeal costs or
    13  attorney's fees of not more than one thousand dollars. Such order  shall
    14  be  in  addition  to any other remedy or disciplinary action required or
    15  permitted by statute or by rules of court.
    16    § 3. Paragraphs (b) and (c) of subdivision 4  of  section  89  of  the
    17  public  officers law, paragraph (b) as amended by chapter 22 of the laws
    18  of 2005 and paragraph (c) as amended by chapter 453 of the laws of 2017,
    19  are amended to read as follows:
    20    (b) Except as provided in subdivision five of this section,  a  person
    21  denied  access  to  a  record  in  an  appeal  determination  under  the
    22  provisions of paragraph (a) of this subdivision may [bring a  proceeding
    23  for review of such denial pursuant to article seventy-eight of the civil
    24  practice law and rules. In the event that access to any record is denied
    25  pursuant to the provisions of subdivision two of section eighty-seven of
    26  this  article, the agency involved shall have the burden of proving that
    27  such record falls within the provisions of such subdivision two. Failure
    28  by an agency to conform to the  provisions  of  paragraph  (a)  of  this
    29  subdivision shall constitute a denial.
    30    (c) The court in such a proceeding: (i) may assess, against such agen-
    31  cy  involved,  reasonable  attorney's  fees  and  other litigation costs
    32  reasonably incurred by such person in any case under the  provisions  of
    33  this  section in which such person has substantially prevailed, and when
    34  the agency failed to respond to a request or appeal within the statutory
    35  time; and (ii) shall assess, against such  agency  involved,  reasonable
    36  attorney's  fees  and other litigation costs reasonably incurred by such
    37  person in any case under the provisions of this section  in  which  such
    38  person  has  substantially prevailed and the court finds that the agency
    39  had no reasonable basis for denying access] appeal to the  committee  on
    40  open government pursuant to subdivision one of this section.
    41    §  4.  Section 107 of the public officers law, as added by chapter 511
    42  of the laws of 1976, subdivision 1 as amended by chapter 44 of the  laws
    43  of  2010 and subdivision 2 as amended by chapter 397 of the laws of 2008
    44  and such section as renumbered by chapter 652 of the laws  of  1983,  is
    45  amended to read as follows:
    46    §  107.  Enforcement. [1.] Any aggrieved person shall have standing to
    47  enforce the provisions of this article against  a  public  body  by  the
    48  commencement  of  [a proceeding pursuant to article seventy-eight of the
    49  civil practice law and rules, or an action for declaratory judgment  and
    50  injunctive  relief.  In any such action or proceeding, if a court deter-
    51  mines that a public body failed to comply with this article,  the  court
    52  shall  have  the  power,  in  its  discretion, upon good cause shown, to
    53  declare that the public body violated this article  and/or  declare  the
    54  action  taken  in  relation to such violation void, in whole or in part,
    55  without prejudice to reconsideration in compliance with this article. If
    56  the court determines that a public body has violated this  article,  the
        S. 1816                             6

     1  court  may  require  the  members of the public body to participate in a
     2  training session concerning the  obligations  imposed  by  this  article
     3  conducted by the staff of the committee on open government.
     4    An  unintentional  failure  to fully comply with the notice provisions
     5  required by this article shall not alone be grounds for invalidating any
     6  action taken at a meeting of a public body. The provisions of this arti-
     7  cle shall not affect the validity  of  the  authorization,  acquisition,
     8  execution or disposition of a bond issue or notes.
     9    2.  In  any  proceeding  brought  pursuant  to this section, costs and
    10  reasonable attorney fees may be awarded by the court, in its discretion,
    11  to the successful party. If a court determines that a vote was taken  in
    12  material  violation  of  this article, or that substantial deliberations
    13  relating thereto occurred in private prior to such vote, the court shall
    14  award costs and reasonable attorney's fees to the successful petitioner,
    15  unless there was a reasonable basis for a public body to believe that  a
    16  closed session could properly have been held.
    17    3.  The  statute of limitations in an article seventy-eight proceeding
    18  with respect to an action taken at executive session shall  commence  to
    19  run  from  the date the minutes of such executive session have been made
    20  available to the public] an appeal to the committee on  open  government
    21  pursuant to section eighty-nine of this chapter.
    22    §  5.  Paragraph  (a)  and  the  opening paragraph of paragraph (b) of
    23  subdivision 1, paragraph (c) of subdivision  3,  and  paragraph  (c)  of
    24  subdivision  4  of  section 87 of the public officers law, paragraph (a)
    25  and the opening paragraph of paragraph (b) of subdivision 1  as  amended
    26  by  chapter  80  of  the laws of 1983, paragraph (c) of subdivision 3 as
    27  amended by chapter 499 of the laws of 2008, and paragraph (c) of  subdi-
    28  vision  4  as  added  by chapter 102 of the laws of 2007, are amended to
    29  read as follows:
    30    (a) Within sixty days after the effective date of  this  article,  the
    31  governing body of each public corporation shall promulgate uniform rules
    32  and  regulations for all agencies in such public corporation pursuant to
    33  such general rules and regulations as may be promulgated by the  commit-
    34  tee  on  open government pursuant to section eighty-nine of this article
    35  in conformity with the provisions of this  article,  pertaining  to  the
    36  administration of this article.
    37    Each agency shall promulgate rules and regulations, in conformity with
    38  this  article  and applicable rules and regulations promulgated pursuant
    39  to the provisions of paragraph (a) of this subdivision, and pursuant  to
    40  such  general rules and regulations as may be promulgated by the commit-
    41  tee on open government  pursuant to section eighty-nine of this  article
    42  in  conformity  with  the  provisions of this article, pertaining to the
    43  availability of records and procedures to be  followed,  including,  but
    44  not limited to:
    45    (c)  a  reasonably  detailed  current  list  by  subject matter of all
    46  records in the possession of the agency, whether or not available  under
    47  this article. Each agency shall update its subject matter list annually,
    48  and  the date of the most recent update shall be conspicuously indicated
    49  on the list. Each state agency as defined in subdivision  four  of  this
    50  section  that  maintains  a  website  shall post its current list on its
    51  website and such posting shall be linked to the website of the committee
    52  on open government pursuant to section eighty-nine of this article.  Any
    53  such  agency  that does not maintain a website shall arrange to have its
    54  list posted on the website of the committee on open government  pursuant
    55  to section eighty-nine of this article.
        S. 1816                             7

     1    (c)  Each state agency that maintains a website shall post information
     2  related to this article  and  article  six-A  of  this  chapter  on  its
     3  website.  Such information shall include, at a minimum, contact informa-
     4  tion for the persons from whom records of the agency  may  be  obtained,
     5  the times and places such records are available for inspection and copy-
     6  ing,  and information on how to request records in person, by mail, and,
     7  if the agency accepts requests for records  electronically,  by  e-mail.
     8  This  posting  shall  be  linked to the website of the committee on open
     9  government pursuant to section eighty-nine of this article.
    10    § 6. This act shall take effect on the first of April next  succeeding
    11  the date on which it shall have become a law.