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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