Bill Text: NY S07245 | 2017-2018 | General Assembly | Introduced

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

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-01-05 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S07245 Detail]

Download: New_York-2017-S07245-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          7245
                    IN SENATE
                                     January 5, 2018
                                       ___________
        Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
          printed to be committed to the Committee on Investigations and Govern-
          ment Operations
        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
    25  shall  continue to serve until the expiration of their respective terms.
    26  Thereafter, their respective successors shall be appointed for terms  of
    27  four  years. The member representing local government shall be appointed
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01142-02-8
        S. 7245                             2
     1  for a term of four years, so long as such member  shall  remain  a  duly
     2  elected  officer of a local government. The committee shall hold no less
     3  than two meetings annually, but may meet at any time. The members of the
     4  committee  shall  be  entitled  to  reimbursement  for  actual  expenses
     5  incurred in the discharge of their duties.   The executive  director  of
     6  the  committee shall maintain a permanent office in Albany in such suit-
     7  able space as the commissioner of the department of state provides.  All
     8  papers  required  to be filed with or served upon the committee shall be
     9  delivered to such office. Each member shall receive two hundred  dollars
    10  per  day  for  each day such member is present at a committee hearing or
    11  meeting, and shall be entitled to reimbursement for actual and necessary
    12  expenses incurred in connection therewith.
    13    (c) The committee shall, subject to the civil service law, employ such
    14  employees as may be necessary  to  carry  out  the  provisions  of  this
    15  section. The committee may enter into such contractual agreements as may
    16  be  necessary  for the discharge of its duties, within the limits of its
    17  appropriated funds and in accordance with established procedures.
    18    (d) i. Any person denied the right to inspect or copy records,  denied
    19  the  right  to attend any meeting of a public agency or denied any other
    20  right conferred by this article and article seven of  this  chapter  may
    21  appeal  therefrom to the committee by filing a notice of appeal with the
    22  committee. A notice of appeal shall be filed not later than thirty  days
    23  after such denial, except in the case of an unnoticed or secret meeting,
    24  in which case the appeal shall be filed not later than thirty days after
    25  the  person  filing the appeal receives notice in fact that such meeting
    26  was held. For purposes of this paragraph, such notice of appeal shall be
    27  deemed to be filed on the date it is received by said  committee  or  on
    28  the  date  it is postmarked, if received more than thirty days after the
    29  date of the denial from which such appeal is taken.
    30    ii. Upon receipt of such notice, the committee shall  serve  upon  all
    31  parties, by certified or registered mail, a copy of such notice together
    32  with  any  other  notice  or order of such committee. In the case of the
    33  denial of a request to inspect or copy records  contained  in  a  public
    34  employee's  personnel  or medical file, the committee shall include with
    35  its notice or order an order requiring the public agency to  notify  any
    36  employee  whose  records  are  subject  of an appeal, and the employee's
    37  collective  bargaining  representative,  if  any,  of  the   committee's
    38  proceedings and, if any such employee or collective bargaining represen-
    39  tative  has  filed  an  objection, the agency shall provide the required
    40  notice to such employee  and  collective  bargaining  representative  by
    41  certified  mail,  return  receipt  requested  or by hand delivery with a
    42  signed receipt. A public employee whose personnel or medical file is the
    43  subject of an appeal may intervene as a party in the proceedings on  the
    44  matter before the committee.
    45    (e)  i.  The  committee  shall,  after  due  notice to the parties and
    46  subject to the provisions of this article  and  article  seven  of  this
    47  chapter,  promptly  review  the  alleged violation of said articles. The
    48  committee shall have the power to investigate all alleged violations  of
    49  this  article  and article seven of this chapter and may for the purpose
    50  of investigating any violation hold a hearing, administer oaths, examine
    51  witnesses, receive oral and documentary  evidence,  have  the  power  to
    52  subpoena  witnesses  under  procedural rules adopted by the committee to
    53  compel attendance and to require the production for examination  of  any
    54  books  and papers which the committee deems relevant in any matter under
    55  investigation or in question. In case of a refusal to  comply  with  any
    56  such  subpoena  or to testify with respect to any matter upon which that
        S. 7245                             3
     1  person may be lawfully interrogated, a court of competent  jurisdiction,
     2  on  application  of  the  committee,  may  issue an order requiring such
     3  person to comply with such subpoena and to testify; failure to obey  any
     4  such order of the court may be punished by the court as a contempt ther-
     5  eof.
     6    ii.  The committee shall hear and decide each appeal within six months
     7  after the filing of the notice of  appeal.  The  committee  shall  adopt
     8  regulations establishing criteria for those appeals which shall be priv-
     9  ileged in their assignment for hearing. Any such privileged appeal shall
    10  be  heard not later than thirty days after receipt of a notice of appeal
    11  and decided not later than sixty days after a hearing.
    12    iii. If a notice of appeal concerns an announced  agency  decision  to
    13  meet  in  executive  session or an ongoing agency practice of meeting in
    14  executive sessions, for a stated purpose, the committee or a  member  or
    15  members  of  the  committee  designated  by  its chairperson shall serve
    16  notice upon the parties and hold a preliminary hearing on the appeal not
    17  later than seventy-two hours after receipt of the notice, provided  such
    18  notice shall be given to the parties at least forty-eight hours prior to
    19  such  hearing. During such preliminary hearing, the committee shall take
    20  evidence and receive testimony from the parties. If after  the  prelimi-
    21  nary  hearing  the  committee  finds  probable cause to believe that the
    22  agency decision or practice is in violation of  article  seven  of  this
    23  chapter, the agency shall not meet in executive session for such purpose
    24  until  the  committee  decides the appeal. If probable cause is found by
    25  the committee, it shall conduct a final hearing on the appeal and render
    26  its decision not later than  five  days  after  the  completion  of  the
    27  preliminary  hearing.  Such decision shall specify the committee's find-
    28  ings of fact and conclusions of law.
    29    iv. The committee, at its discretion, may issue an order to discontin-
    30  ue all work resulting from an alleged  violation  of  this  article  and
    31  article  seven  of  this chapter if irreparable harm is deemed to poten-
    32  tially occur. This order will hold until a decision is rendered  by  the
    33  committee on the alleged violation.
    34    (f)  i.  In any appeal to the committee, the committee may confirm the
    35  action of the agency or order the agency  to  provide  relief  that  the
    36  committee, in its discretion, believes appropriate to rectify the denial
    37  of  any  right conferred by this article and article seven of this chap-
    38  ter.  The committee may declare null and void any action  taken  at  any
    39  meeting  which  a  person was denied the right to attend and may require
    40  the production or copying of any public record. In addition, upon  find-
    41  ing that a denial of any right created by this article and article seven
    42  of  this  chapter was without reasonable grounds and after the custodian
    43  or other official directly responsible for the denial has been given  an
    44  opportunity  to be heard at a hearing conducted in accordance with arti-
    45  cle seven of this chapter the committee may, in its  discretion,  impose
    46  against the custodian or other official a civil penalty of not less than
    47  twenty dollars nor more than one thousand dollars.
    48    ii.  If  the  committee finds that a person has taken an appeal frivo-
    49  lously, without reasonable grounds, after such person has been given  an
    50  opportunity  to be heard at a hearing conducted in accordance with arti-
    51  cle seven of this chapter, the committee may, in its discretion,  impose
    52  against  that person a civil penalty of not less than twenty dollars nor
    53  more than one thousand dollars.
    54    iii. The committee shall notify a person of a penalty  levied  against
    55  him  pursuant to this subdivision by written notice sent by certified or
    56  registered mail. If a person fails to pay the penalty within thirty days
        S. 7245                             4
     1  of receiving such notice, a court of competent  jurisdiction  shall,  on
     2  application of the committee, issue an order requiring the person to pay
     3  the penalty imposed.
     4    iv.  The  committee shall provide due notice to the parties and review
     5  affidavits and written arguments that the parties may submit  and  grant
     6  or  deny such leave summarily at its next regular meeting. The committee
     7  shall grant such leave unless it finds that the  appeal:  (A)  does  not
     8  present  a  claim  within the committee's jurisdiction; (B) would perpe-
     9  trate an injustice; or (C) would constitute an abuse of the  committee's
    10  administrative process. Any party aggrieved by the committee's denial of
    11  such  leave  may  apply  to  a  court  of competent jurisdiction, within
    12  fifteen days of the committee meeting at which such  leave  was  denied,
    13  for an order requiring the committee to hear such appeal.
    14    v.  In  making  the  findings  and  determination, the committee shall
    15  consider the nature of any justice or abuse of  administrative  process,
    16  including  but  not  limited  to:  (A)  the nature, content, language or
    17  subject matter of the request or the appeal; (B)  the  nature,  content,
    18  language  or  subject  matter  to  prior  or contemporaneous requests or
    19  appeals by the person making the request or taking the appeal;  and  (C)
    20  the  nature,  content,  language  or  subject matter of other verbal and
    21  written communications to any agency or any official of any agency  from
    22  the person making the request or taking the appeal.
    23    vi.  Notwithstanding any provision of this section to the contrary, in
    24  the case of an appeal to the committee of a denial by a  public  agency,
    25  the committee may, upon motion of such agency, confirm the action of the
    26  agency and dismiss the appeal without a hearing if it finds, after exam-
    27  ining the notice of appeal and construing all allegations most favorably
    28  to  the appellant, that (A) the agency has not violated this article and
    29  article seven of this chapter or (B) the agency has committed a  techni-
    30  cal  violation  that constitutes a harmless error that does not infringe
    31  the appellant's rights.
    32    (g) i. If in the judgment of the committee circumstances  so  warrant,
    33  it  may  at  any time after the filing of a notice of appeal endeavor to
    34  resolve the appeal by any method of  dispute  resolution  prescribed  by
    35  rule of the committee including, but not limited to, mediation.
    36    ii.  The  terms of any mediation agreement may contain such provisions
    37  as may be agreed upon by the committee, the appellant and  the  respond-
    38  ent.
    39    iii.  The  members  of  the committee and its staff shall not publicly
    40  disclose what transpired in the course of mediation efforts.
    41    iv. If a mediation agreement is  entered  into,  the  committee  shall
    42  embody  such  agreement  in an order and serve a copy of such order upon
    43  all parties to the agreement. Violation of such an order may  cause  the
    44  imposition of civil penalties.
    45    (h)  Any  party aggrieved by the decision of said committee may appeal
    46  to the judiciary therefrom, the court may conduct an in camera review of
    47  the original or a certified copy of the records which are  at  issue  in
    48  the  appeal  but  were  not  included  in  the record of the committee's
    49  proceedings, admit the records into evidence and order the records to be
    50  sealed or inspected on such terms as the court deems fair and  appropri-
    51  ate,  during  the  appeal.  The committee shall have standing to defend,
    52  prosecute or otherwise participate in any appeal of any of its decisions
    53  and to take an appeal from any judicial decision overturning or  modify-
    54  ing  a  decision  of  the  committee.   If agreement is a jurisdictional
    55  prerequisite to the committee taking  any  such  appeal,  the  committee
    56  shall  be  deemed to be aggrieved. Legal counsel employed or retained by
        S. 7245                             5
     1  said committee shall represent said committee in all such appeals and in
     2  any other litigation affecting said committee.  Any appeal taken  pursu-
     3  ant to this section shall be privileged in respect to its assignment for
     4  trial  over  all other actions except writs of habeas corpus and actions
     5  brought by or on behalf of  the  state,  including  information  on  the
     6  relation  of  private  individuals.  If  the court finds that any appeal
     7  taken pursuant to this section is frivolous  or  taken  solely  for  the
     8  purpose  of  delay, it shall order the party responsible therefor to pay
     9  to the party injured by such  frivolous  or  dilatory  appeal  costs  or
    10  attorney's  fees of not more than one thousand dollars. Such order shall
    11  be in addition to any other remedy or disciplinary  action  required  or
    12  permitted by statute or by rules of court.
    13    §  3.  Paragraphs  (b)  and  (c) of subdivision 4 of section 89 of the
    14  public officers law, paragraph (b) as amended by chapter 22 of the  laws
    15  of 2005 and paragraph (c) as amended by chapter 453 of the laws of 2017,
    16  are amended to read as follows:
    17    (b)  Except  as provided in subdivision five of this section, a person
    18  denied  access  to  a  record  in  an  appeal  determination  under  the
    19  provisions  of paragraph (a) of this subdivision may [bring a proceeding
    20  for review of such denial pursuant to article seventy-eight of the civil
    21  practice law and rules. In the event that access to any record is denied
    22  pursuant to the provisions of subdivision two of section eighty-seven of
    23  this article, the agency involved shall have the burden of proving  that
    24  such record falls within the provisions of such subdivision two. Failure
    25  by  an  agency  to  conform  to  the provisions of paragraph (a) of this
    26  subdivision shall constitute a denial.
    27    (c) The court in such a proceeding: (i) may assess, against such agen-
    28  cy involved, reasonable  attorney's  fees  and  other  litigation  costs
    29  reasonably  incurred  by such person in any case under the provisions of
    30  this section in which such person has substantially prevailed, and  when
    31  the agency failed to respond to a request or appeal within the statutory
    32  time;  and  (ii)  shall assess, against such agency involved, reasonable
    33  attorney's fees and other litigation costs reasonably incurred  by  such
    34  person  in  any  case under the provisions of this section in which such
    35  person has substantially prevailed and the court finds that  the  agency
    36  had  no  reasonable basis for denying access] appeal to the committee on
    37  open government pursuant to subdivision one of this section.
    38    § 4. Section 107 of the public officers law, as added by  chapter  511
    39  of  the laws of 1976, subdivision 1 as amended by chapter 44 of the laws
    40  of 2010 and subdivision 2 as amended by chapter 397 of the laws of  2008
    41  and  such  section  as renumbered by chapter 652 of the laws of 1983, is
    42  amended to read as follows:
    43    § 107. Enforcement. [1.] Any aggrieved person shall have  standing  to
    44  enforce  the  provisions  of  this  article against a public body by the
    45  commencement of [a proceeding pursuant to article seventy-eight  of  the
    46  civil  practice law and rules, or an action for declaratory judgment and
    47  injunctive relief. In any such action or proceeding, if a  court  deter-
    48  mines  that  a public body failed to comply with this article, the court
    49  shall have the power, in its  discretion,  upon  good  cause  shown,  to
    50  declare  that  the  public body violated this article and/or declare the
    51  action taken in relation to such violation void, in whole  or  in  part,
    52  without prejudice to reconsideration in compliance with this article. If
    53  the  court  determines that a public body has violated this article, the
    54  court may require the members of the public body  to  participate  in  a
    55  training  session  concerning  the  obligations  imposed by this article
    56  conducted by the staff of the committee on open government.
        S. 7245                             6

     1    An unintentional failure to fully comply with  the  notice  provisions
     2  required by this article shall not alone be grounds for invalidating any
     3  action taken at a meeting of a public body. The provisions of this arti-
     4  cle  shall  not  affect  the validity of the authorization, acquisition,
     5  execution or disposition of a bond issue or notes.
     6    2.  In  any  proceeding  brought  pursuant  to this section, costs and
     7  reasonable attorney fees may be awarded by the court, in its discretion,
     8  to the successful party. If a court determines that a vote was taken  in
     9  material  violation  of  this article, or that substantial deliberations
    10  relating thereto occurred in private prior to such vote, the court shall
    11  award costs and reasonable attorney's fees to the successful petitioner,
    12  unless there was a reasonable basis for a public body to believe that  a
    13  closed session could properly have been held.
    14    3.  The  statute of limitations in an article seventy-eight proceeding
    15  with respect to an action taken at executive session shall  commence  to
    16  run  from  the date the minutes of such executive session have been made
    17  available to the public] an appeal to the committee on  open  government
    18  pursuant to section eighty-nine of this chapter.
    19    §  5.  Paragraph  (a)  and  the  opening paragraph of paragraph (b) of
    20  subdivision 1, paragraph (c) of subdivision  3,  and  paragraph  (c)  of
    21  subdivision  4  of  section 87 of the public officers law, paragraph (a)
    22  and the opening paragraph of paragraph (b) of subdivision 1  as  amended
    23  by  chapter  80  of  the laws of 1983, paragraph (c) of subdivision 3 as
    24  amended by chapter 499 of the laws of 2008, and paragraph (c) of  subdi-
    25  vision  4  as  added  by chapter 102 of the laws of 2007, are amended to
    26  read as follows:
    27    (a) Within sixty days after the effective date of  this  article,  the
    28  governing body of each public corporation shall promulgate uniform rules
    29  and  regulations for all agencies in such public corporation pursuant to
    30  such general rules and regulations as may be promulgated by the  commit-
    31  tee  on  open government pursuant to section eighty-nine of this article
    32  in conformity with the provisions of this  article,  pertaining  to  the
    33  administration of this article.
    34    Each agency shall promulgate rules and regulations, in conformity with
    35  this  article  and applicable rules and regulations promulgated pursuant
    36  to the provisions of paragraph (a) of this subdivision, and pursuant  to
    37  such  general rules and regulations as may be promulgated by the commit-
    38  tee on open government  pursuant to section eighty-nine of this  article
    39  in  conformity  with  the  provisions of this article, pertaining to the
    40  availability of records and procedures to be  followed,  including,  but
    41  not limited to:
    42    (c)  a  reasonably  detailed  current  list  by  subject matter of all
    43  records in the possession of the agency, whether or not available  under
    44  this article. Each agency shall update its subject matter list annually,
    45  and  the date of the most recent update shall be conspicuously indicated
    46  on the list. Each state agency as defined in subdivision  four  of  this
    47  section  that  maintains  a  website  shall post its current list on its
    48  website and such posting shall be linked to the website of the committee
    49  on open government pursuant to section eighty-nine of this article.  Any
    50  such  agency  that does not maintain a website shall arrange to have its
    51  list posted on the website of the committee on open government  pursuant
    52  to section eighty-nine of this article.
    53    (c)  Each state agency that maintains a website shall post information
    54  related to this article  and  article  six-A  of  this  chapter  on  its
    55  website.  Such information shall include, at a minimum, contact informa-
    56  tion for the persons from whom records of the agency  may  be  obtained,
        S. 7245                             7
     1  the times and places such records are available for inspection and copy-
     2  ing,  and information on how to request records in person, by mail, and,
     3  if the agency accepts requests for records  electronically,  by  e-mail.
     4  This  posting  shall  be  linked to the website of the committee on open
     5  government pursuant to section eighty-nine of this article.
     6    § 6. This act shall take effect on the first of April next  succeeding
     7  the date on which it shall have become a law.