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2006 New York Code - Temporary State Commission On Local Government Ethics; Functions, Powers And Duties; Review Of Financial Disclosure Statements; Advisory Opinions; Inv
* § 813. Temporary state commission on local government ethics;
functions, powers and duties; review of financial disclosure statements;
advisory opinions; investigation and enforcement. 1. There is
established a temporary state commission on local government ethics
which shall consist of nine members and shall have and exercise the
powers and duties set forth in this section.
2. The members of the commission shall be appointed by the governor,
provided, however, that one member shall be appointed on the nomination
of the temporary president of the senate; one on the nomination of the
minority leader of the senate; one on the nomination of the speaker of
the assembly; and one on the nomination of the minority leader of the
assembly. Of the five members appointed by the governor without prior
nomination, no more than three members shall belong to the same
political party and at least three members shall not be public officers
or employees or hold any public office, elected or appointed. No member
shall hold office in any political party or be employed as a lobbyist.
3. Members of the commission shall serve for terms of four years.
4. The governor shall designate the chairman of the commission from
among the members thereof, who shall serve as chairman at the pleasure
of the governor. The chairman or any five members of the commission may
call a meeting.
5. Any vacancy occurring on the commission shall be filled within
sixty days of its occurrence, by the governor, in the same manner as the
member whose vacancy is being filled was appointed. A person appointed
to fill a vacancy shall be appointed for the unexpired term of the
member he succeeds.
6. Five members of the commission shall constitute a quorum, and the
commission shall have power to act by majority vote of the total number
of members of the commission without vacancy.
7. Members of the commission may be removed by the governor for
substantial neglect of duty, gross misconduct in office, inability to
discharge the powers or duties of office or violation of this section,
after written notice and opportunity for a reply.
8. The members of the commission shall not receive compensation but
shall be reimbursed for reasonable expenses incurred in the performance
of their official duties.
9. The commission shall:
a. Appoint an executive director who shall act in accordance with the
policies of the commission. The commission may delegate authority to the
executive director to act in the name of the commission between meetings
of the commission provided such delegation is in writing and the
specific powers to be delegated are enumerated;
b. Appoint such other staff as are necessary to carry out its duties
under this section;
c. Adopt, amend, and rescind rules and regulations to govern
procedures of the commission, which shall include, but not be limited
to, the procedure whereby a person who is required to file an annual
financial disclosure statement with the commission may request an
additional period of time within which to file such statement, due to
justifiable cause or undue hardship; such rules or regulations shall
provide for a date beyond which in all cases of justifiable cause or
undue hardship no further extension of time will be granted. The
commission may utilize or modify such rules or regulations or adopt
separate rules or regulations for the purposes of paragraph (d) of
subdivision one of section eight hundred eleven of this article;
d. Promulgate guidelines to assist appointing authorities in
determining which persons hold policy-making positions for purposes of
sections eight hundred eleven and eight hundred twelve of this article;
e. Make available forms for annual statements of financial disclosure
required to be filed pursuant to section eight hundred twelve of this
article;
f. Review completed financial disclosure statements in accordance with
the provisions of sections eight hundred eleven, eight hundred twelve
and this section, and in the case of a political subdivision which has
elected to require the filing of completed statements with the
commission, in accordance with the criteria established by duly adopted
code of ethics, local law, ordinance or resolution, provided however,
that the commission may delegate all or part of this review function to
the executive director who shall be responsible for completing staff
review of such statements in a manner consistent with the terms of the
commission's delegation;
g. Receive complaints alleging a violation of section eight hundred
eleven or eight hundred twelve of this article or a violation of the
criteria for reporting requirements established by duly adopted code of
ethics, local law, ordinance or resolution with respect to political
subdivisions which have elected to require the filing of completed
statements with the commission;
h. Permit any person required to file a financial disclosure statement
to request the commission to delete from the copy thereof made available
for public inspection one or more items of information, which may be
deleted by the commission, after denial of a request for deletion made
to the local government advisory council as provided in subdivision
seventeen of this section, upon a finding by a majority of the total
number of members of the commission without vacancy that the information
which would otherwise be required to be disclosed will have no material
bearing on the discharge of the reporting person's official duties. If
such request for deletion is denied, the commission, in its notification
of denial, shall inform the person of his or her right to appeal the
commission's determination pursuant to its rules governing adjudicatory
proceedings and appeals adopted pursuant to subdivision twelve of this
section. The commission shall promulgate rules and regulations governing
the issuance of written decisions in connection with appeals from the
advisory council;
i. Permit any person required to file a financial disclosure statement
to request an exemption from any requirement to report one or more items
of information which pertain to such person's spouse or unemancipated
children which item or items may be exempted by the commission, after
denial of a request for exemption made to the local government advisory
council as provided in subdivision seventeen of this section, upon a
finding by a majority of the total number of members of the commission
without vacancy that the reporting individual's spouse, on his or her
own behalf or on behalf of an unemancipated child, objects to providing
the information necessary to make such disclosure and that the
information which would otherwise be required to be reported will have
no material bearing on the discharge of the reporting person's official
duties. If such request for exemption is denied, the commission, in its
notification of denial, shall inform the person of his or her right to
appeal the commission's determination pursuant to its rules governing
adjudicatory proceedings and appeals adopted pursuant to subdivision
twelve of this section. The commission shall promulgate rules and
regulations governing the issuance of written decisions in connection
with appeals from the advisory council;
j. Advise and assist any local agency in establishing rules and
regulations relating to possible conflicts between private interests and
official duties of present or former local elected officials, local
political party officials and local officers and employees;
k. Permit any person who has not been determined by his or her
appointing authority to hold a policy-making position but who is
otherwise required to file a financial disclosure statement to request
an exemption from such requirement in accordance with rules and
regulations governing such exemptions. Such rules and regulations shall
provide for exemptions to be granted either on the application of an
individual or on behalf of persons who share the same job title or
employment classification which the commission deems to be comparable
for purposes of this section. Such rules and regulations may permit the
granting of an exemption where, in the discretion of the commission, the
public interest does not require disclosure and the applicant's duties
do not involve the negotiation, authorization or approval of:
(i) contracts, leases, franchises, revocable consents, concessions,
variances, special permits, or licenses as defined in section
seventy-three of the public officers law;
(ii) the purchase, sale, rental or lease of real property, goods or
services, or a contract therefor;
(iii) the obtaining of grants of money or loans; or
(iv) the adoption or repeal of any rule or regulation having the force
and effect of law;
l. Prepare an annual report to the governor and the legislature
summarizing the activities of the commission and recommending changes in
the laws governing the conduct of local elected officials, local
political party officials and local officers and employees. In addition,
such report shall list the names of political subdivisions which have
created boards of ethics, adopted codes of ethics and adopted forms of
annual statements of financial disclosure;
m. Act as a repository for completed financial disclosure forms filed
pursuant to section eight hundred eleven or eight hundred twelve of this
article;
n. Upon certification of a question by the public advisory council to
the commission, as provided in paragraph (k) of subdivision seventeen of
this section, the commission may determine a question common to a class
or defined category of persons or items of information required to be
disclosed, where determination of the question will prevent undue
repetition of requests for exemption or deletion or prevent undue
complication in complying with the requirements of such section.
10. The commission, or the executive director and staff of the
commission if responsibility therefor has been delegated, shall inspect
all financial disclosure statements filed with the commission to
ascertain whether any person subject to the reporting requirements of
section eight hundred eleven or eight hundred twelve of this article,
and in the case of a political subdivision which has elected to require
the filing of completed annual financial statements with the commission,
subject to the reporting requirements contained in duly adopted code of
ethics, local law, ordinance or resolution, has failed to file such a
statement, has filed a deficient statement or has filed a statement
which reveals a possible violation of section eight hundred eleven or
eight hundred twelve of this article, or of duly adopted code of ethics,
local law, ordinance or resolution, as the case may be.
11. If a person required to file a financial disclosure statement with
the commission has failed to file a disclosure statement or has filed a
deficient statement, the commission shall notify the reporting person in
writing, state the failure to file or detail the deficiency, provide the
person with a fifteen day period to cure the deficiency, and advise the
person of the penalties for failure to comply with the reporting
requirements. Such notice shall be confidential. If the person fails to
make such filing or fails to cure the deficiency within the specified
time period, the commission shall send a notice of delinquency: (a) to
the reporting person; and (b) in the case of a local officer or
employee, to the appointing authority for such person.
12. a. If a reporting person has filed a statement which reveals a
possible violation of duly adopted code of ethics, local law, ordinance
or resolution or of section eight hundred eleven or eight hundred twelve
of this article, or the commission receives a sworn complaint alleging
such a violation, or if the commission determines on its own initiative
to investigate a possible violation, the commission shall notify the
reporting person in writing, describe the possible or alleged violation
of such code of ethics, local law, ordinance or resolution or of such
section eight hundred eleven or eight hundred twelve of this article and
provide the person with a fifteen day period in which to submit a
written response setting forth information relating to the activities
cited as a possible or alleged violation of law. If the commission
thereafter makes a determination that further inquiry is justified, it
shall give the reporting person an opportunity to be heard. The
commission shall also inform the reporting individual of its rules
regarding the conduct of adjudicatory proceedings and appeals and the
due process procedural mechanisms available to such individual. If the
commission determines at any stage of the proceeding, that there is no
violation or that any potential conflict of interest violation has been
rectified, it shall so advise the reporting person and the complainant,
if any. All of the foregoing proceedings shall be confidential.
b. If the commission determines that there is reasonable cause to
believe that a violation has occurred, it shall send a notice of
reasonable cause: (i) to the reporting person; (ii) to the complainant
if any; and (iii) in the case of a local officer or employee, to the
appointing authority for such person.
13. A reporting individual who knowingly and wilfully fails to file an
annual statement of financial disclosure or who knowingly and wilfully
with intent to deceive makes a false statement or gives information
which such individual knows to be false on such statement of financial
disclosure filed pursuant to this section shall be assessed a civil
penalty in an amount not to exceed ten thousand dollars. Assessment of a
civil penalty hereunder shall be made by the commission with respect to
persons subject to its jurisdiction. For a violation of this
subdivision, other than for conduct which constitutes a violation of
subdivision twelve of section seventy-three of the public officers law,
the temporary state commission on local government ethics may, in lieu
of a civil penalty, refer a violation to the appropriate prosecutor and
upon such conviction, but only after such referral, such violation shall
be punishable as a class A misdemeanor. A civil penalty for false filing
may not be imposed hereunder in the event a category of "value" or
"amount" reported hereunder is incorrect unless such reported
information is falsely understated. Notwithstanding any other provision
of law to the contrary, no other penalty, civil or criminal may be
imposed for a failure to file, or for a false filing, of such statement,
except that the appointing authority may impose disciplinary action as
otherwise provided by law. The commission shall be deemed to be an
agency within the meaning of article three of the state administrative
procedure act and shall adopt rules governing the conduct of
adjudicatory proceedings and appeals taken pursuant to a proceeding
commenced under article seventy-eight of the civil practice law and
rules relating to the assessment of the civil penalties herein
authorized and commission denials of requests for certain deletions or
exemptions to be made from a financial disclosure statement as
authorized in paragraph h or paragraph i of subdivision nine of this
section. Such rules, which shall not be subject to the approval
requirements of the state administrative procedure act, shall provide
for due process procedural mechanisms substantially similar to those set
forth in such article three but such mechanisms need not be identical in
terms or scope. Assessment of a civil penalty or commission denial of
such a request shall be final unless modified, suspended or vacated
within thirty days of imposition, with respect to the assessment of such
penalty, or unless such denial of request is reversed within such time
period, and upon becoming final shall be subject to review at the
instance of the affected reporting individuals in a proceeding commenced
against the temporary state commission on local government ethics,
pursuant to article seventy-eight of the civil practice law and rules.
14. A copy of any notice of delinquency or notice of reasonable cause
sent pursuant to subdivisions eleven and twelve of this section shall be
included in the reporting person's file and be available for public
inspection.
15. Upon written request from any person who is subject to the
jurisdiction of the commission, the commission shall render advisory
opinions on the requirements of said provisions. An opinion rendered by
the commission, until and unless amended or revoked, shall be binding on
the commission in any subsequent proceeding concerning the person who
requested the opinion and who acted in good faith, unless material facts
were omitted or misstated by the person in the request for an opinion.
Such opinion may also be relied upon by such person, and may be
introduced and shall be a defense, in any criminal or civil action. Such
requests shall be confidential, but the commission may publish such
opinions provided that the name of the requesting person and other
identifying details shall not be included in the publication.
16. In addition to any other powers and duties specified by law, the
commission shall have the power and duty to:
a. Administer and enforce all the provisions of this section;
b. Conduct any investigation necessary to carry out the provisions of
this section. Pursuant to this power and duty, the commission may
administer oaths or affirmations, subpoena witnesses, compel their
attendance and require the production of any books or records which it
may deem relevant or material.
17. (a) There is established within the temporary state commission on
local government ethics a public advisory council which shall consist of
five members and shall have and exercise the powers and duties set forth
in this subdivision.
(b) The members of the public advisory council shall be appointed by
the governor provided, however, that one member shall be appointed on
the nomination of the temporary president of the senate and one member
shall be appointed on the nomination of the speaker of the assembly. Of
the three members appointed by the governor without prior nomination, no
more than two members shall belong to the same political party and at
least two members shall not be public officers or employees or hold any
public office, elected or appointed. No member shall hold office in any
political party or be employed as a lobbyist.
(c) Members of the public advisory council shall serve for terms of
four years concurrent with the term of office of the governor.
(d) The governor shall designate the chairman of the public advisory
council from among the members thereof, who shall serve as chairman at
the pleasure of the governor. The chairman or any three members of the
public advisory council may call a meeting.
(e) Any vacancy occurring on the public advisory council shall be
filled within sixty days of its occurrence, by the governor, in the same
manner as the member whose vacancy is being filled was appointed. A
person appointed to fill a vacancy occurring other than by expiration of
a term of office shall be appointed for the unexpired term of the member
he succeeds.
(f) Three members of the public advisory council shall constitute a
quorum, and the public advisory council shall have power to act by
majority vote of the total number of members of the public advisory
council without vacancy. Members of the council may be removed by the
governor for substantial neglect of duty, gross misconduct in office,
inability to discharge the powers or duties of office or violation of
this section after written notice and opportunity for reply.
(g) The members of the public advisory council shall not receive
compensation but shall be reimbursed for reasonable expenses incurred in
the performance of their official duties.
(h) The public advisory council shall: (1) Permit any person required
to file a financial disclosure statement to request the public advisory
council to delete from the copy thereof made available for public
inspection one or more items of information which may be deleted upon a
finding by a majority of the total number of members of the public
advisory council without vacancy that the information which would
otherwise be available for public inspection will have no material
bearing on the discharge of the reporting person's official duties. If
such request for deletion is denied, the public advisory council, in its
notification of denial, shall inform the person of his or her right to
appeal the public advisory council's determination to the commission
pursuant to the commission's rules governing adjudicatory proceedings
and appeals adopted pursuant to subdivision thirteen of this section;
and
(2) Permit any person required to file a financial disclosure
statement to request an exemption from any requirement to report one or
more items of information which pertain to such person's spouse or
unemancipated children which item or items may be exempted upon a
finding by a majority of the total number of members of the public
advisory council without vacancy that the reporting individual's spouse,
on his or her own behalf or on behalf of an unemancipated child, objects
to providing the information necessary to make such disclosure and that
the information which would otherwise be required to be reported will
have no material bearing on the discharge of the reporting person's
official duties. If such request for exemption is denied, the public
advisory council, in its notification of denial, shall inform the person
of his or her right to appeal the public advisory council's
determination to the commission pursuant to the commission's rules
governing adjudicatory proceedings and appeals adopted pursuant to
subdivision thirteen of this section.
(i) Pending any application for deletion or exemption either to the
public advisory council or to the commission upon appeal of an adverse
determination by the public advisory council, all information which is
the subject or a part of the application shall remain confidential. Upon
an adverse determination by the commission, the reporting individual may
request, and upon such request the commission shall provide, that any
information which is the subject or part of the application remain
confidential for a period of thirty days following notice of such
determination. In the event that the reporting individual resigns his
office and holds no other office subject to the jurisdiction of the
commission, the information shall not be made public and shall be
expunged in its entirety.
(j) Notwithstanding the provisions of article seven of the public
officers law, no meeting or proceeding, including any such proceeding
contemplated under paragraph h or i of subdivision nine of this section,
of the commission shall be open to the public, except if expressly
provided otherwise by the public advisory council.
(k) Where the council is of the opinion that a determination of a
question common to a class or defined category of persons or items of
information with respect to requests for deletion or exemption will
prevent undue repetition of such requests or undue complication, the
council may certify the question to the commission for resolution and
disposition in accordance with paragraph (n) of subdivision nine of this
section.
18. a. Notwithstanding the provisions of article six of the public
officers law, the only records of the commission which shall be
available for public inspection are:
(1) the information set forth in an annual statement of financial
disclosure filed pursuant to local law, ordinance or resolution or filed
pursuant to section eight hundred eleven or eight hundred twelve of this
article except the categories of value or amount which shall remain
confidential and any other item of information deleted pursuant to
paragraph h of subdivision nine of this section, as the case may be;
(2) notices of delinquency sent under subdivision eleven of this
section;
(3) notices of reasonable cause sent under paragraph b of subdivision
twelve of this section; and
(4) notices of civil assessments imposed under this section.
b. Notwithstanding the provisions of article seven of the public
officers law, no meeting or proceeding of the commission shall be open
to the public, except if expressly provided otherwise by the commission.
19. There is hereby established a local government advisory board to
assist the commission in the performance of its powers and duties. Such
board shall consist of twelve members to be appointed by the governor;
four shall be appointed on the nomination of the state conference of
mayors; four shall be appointed on the nomination of the state
association of towns; and four shall be appointed on the nomination of
the state association of counties. The board shall inform the commission
of policies and concerns of local governments with respect to the
administration of the provisions of this article and disseminate
information to local governments with respect to the operations of the
commission.
* NB Expired December 31, 1992
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