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A01929 Summary:

BILL NOA01929
 
SAME ASSAME AS S00855
 
SPONSORCarroll
 
COSPNSRStirpe, Woerner, Epstein, Thiele, Santabarbara, Pheffer Amato, Montesano, Fahy, Buttenschon, Rosenthal L, Salka, Lupardo, McMahon, Seawright, Frontus, Galef, Richardson, Tague, Quart, Cruz, Jacobson, Reyes, Otis, Stern, Cusick, Barron, Wallace, Griffin, Ashby, Barrett, Mamdani, Simpson, Gallagher, Burdick, Burke, Gonzalez-Rojas, Jean-Pierre, Anderson, Clark, Lunsford, Kelles, Sillitti, Hunter, Ra, Jensen, Niou, Steck, McDonald
 
MLTSPNSRBrabenec, Bronson, Cook, Dinowitz, Giglio JM, Gottfried, Paulin
 
Add Art V-A 1 - 8, Constn
 
Relates to state government integrity including the creation of a New York state government integrity commission.
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A01929 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1929
 
SPONSOR: Carroll
  TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing that the constitution be amended by adding a new article V-A; in relation to state government integrity   PURPOSE: Proposed Constitutional Amendment to replace JCOPE and the LEC with a single, truly independent, enforcement agency, similar to the Commission on Judicial Conduct established in Article VI of the State Constitution, to deter corruption in the legislative and executive branches of state government.   SUMMARY OF PROVISIONS: SECTION 1. DECLARATIONS OF THE PEOPLE This section has no counterpart in current law and is possible because a constitutional amendment must be approved by the people. Section 1.a. sets forth the overarching purpose of this amendment: to ensure that the New York State government and those that do business with it conduct themselves with the highest levels of integrity, fideli- ty and accountability to the people of New York. Maintaining ethical standards as a means of preventing governmental corruption is a prereq- uisite to the legitimacy of the functions of our state government. The section also emphasizes that preventing the appearance of corruption can often be as important as preventing corruption itself-the people of New York must be confident that their government is working for them, and only for them. Section 1.b. declares that this anti-corruption goal requires a single, truly independent and non-partisan enforcement agency in order to make enforcement credible, uniform, fair and efficacious. The proposed agency is designed to create a level playing field on which a person's influence, status or role neither renders him or her above the law nor frustrates his or her ability to receive fair and equal treatment. SECTION 2. NEW YORK STATE GOVERNMENT INTEGRITY COMMISSION This section replaces JCOPE and LEC with a constitutionally established New York State Government Integrity Commission modeled in large part on the constitutionally established Commission on Judicial Conduct. If proposed by the legislature and adopted by the people, the Commission would be one of the strongest ethics enforcement agencies in the coun- try. New York's reputation as overly indifferent to ethics and prone to corruption would be well on the way to transformation. Section 2.a. establishes the Commission and delineates the Commission's authority to, on an independent basis, receive or initiate and resolve ethics and integrity complaints. This section makes clear that this Commission authority should in no way impede or diminish the anti-cor- ruption work of any other agency or law enforcement authority or those entities' right to seek relief in the courts. Indeed, the Commission can defer to proceedings by these other authorities and could choose to do so in order to make the best use of its own resources. Section 2.b. sets forth the Commission's power to enforce the laws with- in its jurisdiction. Rather than merely possessing the ability to fine violators of the ethics laws, the Commission's authority includes the ability to admonish, censure, suspend, demote or remove a state employee in the legislative or executive branches. In the case of an elected official, the Commission could order censure of the official. Granting the Commission power to admonish, censure or, in egregious cases, remove a violator is a crucial step toward achieving the goal of deterring corruption in New York State government. Any sanction imposed by the Commission is subject to judicial review, helping ensure that the Commission's decision-making power comports with due process. Section 2.c. sets forth the composition of the Commission and the proce- dures for appointing and removing Commission members, with a focus on preserving the independent and non-partisan nature of the Commission. Like the Commission on Judicial Conduct, members of the Commission would be appointed by all three branches of government - two by the governor, one by each of the leaders of the each major political party in the two houses of the legislature, and seven jointly by Chief Judge of the State of New York and the Presiding Justices of the Appellate Divisions. This helps ensure the Commission's independence and impartiality. This inde- pendence is reinforced by the fact that a majority of the Commissioners would be appointed by persons who are not subject to regulation by the Commission but rather to regulation by the Commission on Judicial Conduct. The appointment process is also designed to be non-partisan. Three of the six members appointed by the Governor and the Legislative Leaders will not be of the same political party as the Governor and no more than three of the persons appointed by the Presiding Justices will be of the same political party. To be eligible for appointment, a person may not have been a state offi- cer or employee, a lobbyist or a political party officer within the previous three years. Commissioners would be compensated on a per diem basis pro rata to the basic compensation of a member of the legislature. Unlike JCOPE, where the person appointing a member can remove that member for cause, members of the Commission could be removed for cause only through a process by which a majority of the Commission votes to make an application for removal to the Court of Appeals. This protective removal process provides additional assurance of independence. Section 2.d. provides for staggered four-year appointments. Section 2.e. delineates the Commission's organization and procedure. Unlike JCOPE, which has a complex and partisan voting system under which two of its 14 members can block an investigation or adverse finding - a system that is not comparable to any other state's ethics commission voting system the Commission would act by majority vote. Violations would be determined based on a preponderance of the evidence, but orders of censure or removal would have to be based on clear and convincing evidence, a standard that recognizes the weightiness of the decision to censure or remove any state official or employee. The evidentiary stand- ard of clear and convincing evidence is also the standard used to censure or disbar an attorney under Rule 1.3 of the American Bar Associ- ation's Standards for Imposing Lawyer Sanctions. The section grants the Commission the power to create its own rules and procedures that conform with law and due process. It requires the Commission to establish rules prohibiting ex parte communications between Commission members and their appointing authorities (along with certain affiliates), another feature designed to foster the independence of Commission members. SECTION 3. ADDITIONAL POWERS OF THE COMMISSION Section 3.a. provides that the Commission will appoint an executive director and may appoint deputy directors. The executive director must meet the same eligibility requirements as a Commissioner except that the executive director may be promoted from within the Commission. The exec- utive director may hire staff. Section 3.b. grants the Commission and its designated hearing officers the power to administer oaths, compel the attendance of witnesses and issue subpoenas. Section 3.c. makes it the Commission's power and duty to effectively administer and enforce the state's ethics, lobbying and campaign finance laws. The major change is to move the administration and enforcement of campaign finance laws from the state and local Boards of Election to the Commission. Campaign finance laws serve to manage the conflicts of interest that can arise from campaign contributions so as to avoid any appearance of corruption. Because these laws are enforced through disclosure and investigation, they can be managed centrally to ensure uniformity and take advantage of economies of scale. This campaign finance responsibility is an important part of the Commission's broader purpose of avoiding the reality or appearance of corruption, and close to half of the states that have independent ethics commissions place the enforcement of campaign finance laws within the jurisdiction of the ethics commission. The section also requires the Commission to uphold laws prohibiting misconduct related to the procurement of goods and services (e.g., related-party transactions and "kickbacks") and laws prohibiting work- place misconduct such as harassment and retaliation. While many ethics commissions throughout the country regulate conflicts of interest, lobbying and procurement misconduct, New York's Commission would be among the first in the nation to regulate workplace misconduct. Delete- rious workplace misconduct such as harassment and retaliation is strict- ly prohibited in the private sector and not infrequently results in termination of employment. Independent oversight of the administration and enforcement of workplace conduct laws and regulations will help hold state government to a high standard. Finally, the section grants the Commission the power and duty to inter- pret the laws within its jurisdiction, provide training to help secure compliance with these laws and promulgate and interpret its own rules and regulations that are not in conflict with these laws. Section 3.d. bestows on the Commission the power to refer matters to state or federal prosecutors or to the Attorney General for criminal prosecution. Section 3.e. grants the Commission the ability to issue advisory opin- ions regarding any law that it has the power to administer and enforce or any law whose administration and enforcement it has the power to oversee. Before adopting an advisory opinion, the Commission would have to provide notice and an opportunity for public comment. Such opinions would be subject to judicial review in accordance with law. The Commis- sion would also be empowered to issue informal advice which would be protected as an attorney-client communication. SECTION 4. FUNDING OF THE COMMISSION Section 4 authorizes the commission to submit a budget to the governor for inclusion in his or her executive budget without revision. The legislature will have the ability to reduce that appropriation, subject to veto and override provisions. SECTION 5. STATE CODE OF ETHICS Section 5.a. requires the Commission to monitor the adequacy of the state code of ethics and propose revisions and amendments as it sees fit. The state code of ethics shall aim to eliminate any appearance of corruption or impropriety relating to state government, eliminate conflicts of interest that frustrate officials' abilities to impartially discharge their duties and bar breaches of the public trust, including the misuse of official position. These objectives are, crucial to governmental integrity, and it is thus incumbent on the Commission to monitor the state code of ethics. Section 5.b. makes it the ethical duty of persons within the Commis- sion's jurisdiction to report to the Commission any conduct such persons know to be in violation of any law within the jurisdiction of the Commission. In other words, it will itself be an ethical violation for persons within the Commission's jurisdiction to not report the miscon- duct of others. This provision is crucial to the Commission's ability to learn of misconduct. The section's provision for a retaliation cause of action for aggrieved reporting persons protects those who in good faith report on the basis of information and belief. Thus, the standard for protection against retaliation is broader that the standard for mandato- ry reporting. SECTION 6. RECOMMENDING REVISIONS OF CAMPAIGN CONTRIBUTION LIMITS Section 6 requires the Commission to recommend to the legislature limits for all categories of campaign contributions to candidates and political organizations. The standard to be applied by the Commission is intended to prevent an elected official from being so beholden to a contributor such that the official's ability to impartially make independent policy judgments in the public interest is materially impaired. This objective standard related to the management of conflict of interest is intended to equate the reasonable inference of a candidate being materially beholden to a contributor with the appearance of quid pro quo corruption between the candidate and contributor that justifies restriction under Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny. This standard would not depend on coordination between the candidate and the contribu- tor but rather on the objective likelihood that the candidate would know of the contribution and become materially beholden. Cf. Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010). SECTION 7. TRANSPARENCY Section 7 provides that the Commission shall be subject to all transpar- ency and public access laws applicable to state government agencies or instrumentalities. This provision helps hold the Commission, like any agency, accountable to the public and reinforces the public's confidence in the Commission's purpose and its commitment to that purpose. The section, however, also recognizes the necessity of confidentiality during pending investigations, and therefore allows for reasonable confidentiality provisions as provided by law. To further promote transparency, Section 7 requires that transparency laws such as the freedom of information law and the open meetings law apply equally to the legislative and executive branches. Currently the "sunlight" duties of the legislature are much more circumscribed than those of the executive. SECTION 8 IMPLEMENTATION Section 8 provides that the legislature and governor shall approve necessary changes in law to transfer functions to the Commission within 90 days of the effective date of the article.   JUSTIFICATION: It is widely recognized that New York has a corruption problem. Polling shows that over 80 percent of registered voters think corruption in Albany is a "serious problem." Numerous former high-ranking New York State government officials are on trial this Spring. One has just been convicted. In the past 15 years, according to the Syracuse Post-Stan- dard, at least 21 state legislators, former legislators and other elected state officials have been sentenced to prison or house arrest. History teaches that corruption is a breeding ground for authoritarian governments. A government free of corruption not only protects the people as taxpayers against waste and misuse of funds, but also helps to secure their liberties against all forms of abuse of power and self-ag- grandizing behavior that occur in defiance of the rights of the people. For reasons explained below, vigorous ethics enforcement is an excellent way to deter corruption. The current mechanisms in the executive and legislative branches to enforce rules that proscribe breaches of the public trust and other ethical violations are the Joint Commission on Public Ethics ("JCOPE") and the Legislative Ethics Commission ("LEC"). JCOPE investigates all ethics complaints and can impose a civil penalty on executive branch officers and employees. LEC can disagree with JCOPE's interpretations of the State's ethical commands and has exclusive authority to impose civil fines on legislative branch officers and employees. Neither has the power to censure, suspend, demote or remove an egregious violator. As the Committee on Government Ethics and State Affairs of the New York City Bar Association has observed, this ethics enforcement structure suffers from an extreme lack of credibility. And for good reason - the structure is highly flawed. The flaws are manifold. Unlike the Commission on Judicial Conduct, an ethics enforcement agency for the judiciary that has worked well, JCOPE is not made up of appointees from all branches of state government. Ethics agencies in other states foster independence by including members appointed by the judicial branch, but New York's JCOPE structure does not. Also unlike the Commission on Judicial Conduct, JCOPE does not operate by majority vote. As few as two members of the 14 member Commission can veto an investigation or a finding of violation. This obvious flaw is unique to New York. The flaws in the JCOPE/LEC structure are exacerbated by the fact that JCOPE and LEC have no rule barring ex parte contact by an appointee with that appointee's appointing authority. Also problematic is the fact that the appointing authority can remove its appointees for (what it claims to be) cause, and the chair serves expressly at the pleasure of the Governor. The ability for an appointing authority to appoint currently serving state officials to JCOPE as commissioners and senior staff and up to four members of the legislature to LEC adds to the reality and appearance of political control. As noted above, JCOPE has no power to censure, suspend, demote or termi- nate any state official or employee and has no power to impose any form of sanction on a member of the legislature or a legislative employee. In contrast, the Commission on Judicial Conduct does have the power to censure or remove a judge. LEC also lacks sanction power beyond the imposition of a civil fine. Additionally, the existence of two bodies independently interpreting the State Code of Ethics allows for incon- sistent results. Finally, JCOPE is not guaranteed adequate funding, which is necessary to secure its independence. If JCOPE is doing its job it will never be beloved by those with appropriations power, and its funding will be at risk without a sufficient guarantee. There are those who seek to justify the convoluted JCOPE/LEC structure found nowhere else in the nation on the ground that the JCOPE voting structure prevents political witch hunts. The problem with this argument is that any politician charged with wrongdoing will always claim that it is a witch hunt. Giving the political allies of that politician an effective veto power, as the current structure does, means that nothing will ever happen. It is time to beef up ethics enforcement through an agency with strong powers similar to those possessed by the Commission on Judicial Conduct. We know that vigorous and independent ethics enforcement deters corruption. This is largely because an ethics violation is much easier to prove than a criminal violation, yet can still have serious conse- quences for the offender. Criminal bribery and extortion are hard to prove not only because criminal liability must be established beyond a reasonable doubt and the bribe must be shown to be in exchange for a specific "official act," but also because the likely witnesses to the corrupt transaction are themselves corrupt. This problem was starkly illustrated by the difficulties for the Percoco prosecution presented by their star witness, Todd Howe. Ethics laws, on the other hand, do not require proof beyond a reasonable doubt. These laws apply a "fiduciary breach of the public trust" stand- ard of candor, freedom from conflict of interest and avoidance of self- dealing, and can be established based on conduct alone without the need for witnesses or documents establishing criminal intent. Another important role of ethics enforcement is that ethical misconduct investigations are likely to uncover related criminal activity, which must then be referred to criminal prosecutors. Mr. listed consulting payments from a developer and payments to his wife from a fictitious source. With independent and vigorous enforcement, these disclosures would have led to referral for prosecution. The proposed constitutional amendment ("Amendment") is designed to cure the fundamental flaws in New York's current ethics enforcement structure by providing credible independence, ample powers and secure funding. The result would produce a New York State Government Integrity Commission ("Commission") which can't be ignored or dismissed as paper tiger. The Amendment would also strengthen the State Code of Ethics. It would recognize that the regulation of the role of money in politics goes hand in hand with the regulation of other activities that create conflicts of interest, and it would improve the level of transparency in state government by mandating that transparency laws apply equally to the legislative and executive branches. The principal features of the Amendment include: *The current bifurcated JCOPE/LEC structure would be eliminated and replaced with a single Commission, ensuring consistent enforcement in both the legislative and executive branches. Most states have a single ethics enforcement agency with jurisdiction over both those branches. *Like the Commission on Judicial Conduct, Commissioners would be appointed by all three branches of government. A majority of the members would be appointed by persons whose conduct is not being regulated by the Commission. *The Commission would have the power to sanction serious misconduct through censure, suspension, demotion or removal of a non-elected public official and through the power to censure or remove an elected official, unless overruled by a majority vote in either house of the legislature. *Unlike JCOPE, where two of its 14 members can block an investigation or adverse finding, the Commission would act by majority vote. *Because of its mandate to avoid the reality or appearance of corruption and conflicts of interest, the Commission would be responsible for the administration and enforcement of the campaign finance laws. Its duties in this area would include recommending contribution limits to the legislature that are low enough to prevent a public official from becom- ing beholden to a large contributor to such an extent that a reasonable person would find real impairment of policy judgment. *Unlike JCOPE, where the person appointing a member can remove that member for what the appointing authority deems to be substantial neglect of duty, members of the Commission could be removed for cause only through a process by which a majority of the Commission votes to make an application for removal to the Court of Appeals. *Ex parte communications between Commission members and their appointing authorities and related staff would be barred, and no member could have held office, employment in state government or any political party or been engaged as a lobbyist in the three years prior to his or her appointment or during his or her term. *Transparency laws would apply equally to the executive and legislative branches. *All state officers and employees would have an ethical duty to report known misconduct to the Commission and would be protected against retal- iation. Establishing the Commission in the Constitution is necessary to make clear that its mandate does not violate any constitutional principle of separation of powers or legislative immunity. Rather, the Commission, like the constitutional Commission on Judicial Conduct, would function as an integral part of New York State's constitutional system of checks and balances. It also makes clear that no, constitutional objection can be raised about the judicial branch making appointments to the Commis- sion. Finally, in the past, legislative leaders have advanced an exag- gerated view of the legislature's constitutional prerogatives, arguing for example that the Constitution allows them to pay committee chair stipends to fictional committee chairs. Amending the Constitution will make clear that the Rule of Law applies to the legislature.   LEGISLATIVE HISTORY: A1282/S4594A of 2020 58309/A10651 of 2018   FISCAL IMPLICATIONS: To be determined   EFFECTIVE DATE: Resolved (if the Assembly concur), That the foregoing amendments be referred to the first regular legislative session convening after the next succeeding general election of members of the Assembly, and, in conformity with section 1 of article 19 of the constitution; be published for three months previous to the time of such election.
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A01929 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1929
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2021
                                       ___________
 
        Introduced by M. of A. CARROLL, STIRPE, WOERNER, EPSTEIN, THIELE, SANTA-
          BARBARA,  PHEFFER AMATO,  MONTESANO,  FAHY, BUTTENSCHON, L. ROSENTHAL,
          SALKA, LUPARDO, McMAHON, SEAWRIGHT, FRONTUS, GALEF, RICHARDSON, TAGUE,
          QUART, CRUZ, JACOBSON, REYES, OTIS, STERN,  CUSICK,  BARRON,  WALLACE,
          GRIFFIN,  ASHBY,  BARRETT  -- Multi-Sponsored by -- M. of A. BRABENEC,
          BRONSON, COOK, DINOWITZ, GOTTFRIED, PAULIN -- read once  and  referred
          to the Committee on Governmental Operations
 
                    CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
 
        proposing  that the constitution be amended by adding a new article V-A;
          in relation to state government integrity
 
     1    Section 1. Resolved (if the Senate concur), That the  constitution  be
     2  amended by adding a new article V-A to read as follows:
     3                                 ARTICLE V-A
     4                         STATE GOVERNMENT INTEGRITY
     5    Section  1. a. The people of New York expect officers and employees of
     6  the state to observe laws, rules and regulations that specify high stan-
     7  dards of ethical conduct designed to avoid the reality and appearance of
     8  corruption, conflict of interest, self-dealing and breach of the  public
     9  trust.  Equally  they expect that candidates for state office and others
    10  seeking to influence state elections to observe laws,  rules  and  regu-
    11  lations  designed  to  regulate  actual  and  potential  corruption  and
    12  conflicts of interest by regulating the influence of money  in  politics
    13  and  making  transparent  the  financing  and expenditures of efforts to
    14  influence voters. To protect the integrity and freedom  from  corruption
    15  of  the  use  of  state  power  to enact laws, establish rules and regu-
    16  lations, and contract for goods and services funded in whole or in  part
    17  with  state  taxes  and  other  revenues,  the people of New York expect
    18  observance of laws, rules and regulations that regulate lobbying, lobby-
    19  ists and government procurement. To  ensure  the  appropriate  workplace
    20  conduct of state officers and employees and those who interact with such
    21  officers  and  employees while dealing with the state and its instrumen-
    22  talities, the people of New York  expect  that  all  such  persons  will
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD89032-01-1

        A. 1929                             2
 
     1  observe laws, rules and regulations setting standards of appropriate and
     2  non-discriminatory workplace behavior.
     3    b. Achieving this goal requires an independent and non-partisan agency
     4  with  jurisdiction  over  matters pertaining to both the legislative and
     5  executive branches of government and  that  has  the  needed  powers  to
     6  train,  advise,  interpret,  adopt  rules  and regulations, investigate,
     7  conduct fair hearings that afford due  process  and  impose  appropriate
     8  sanctions on a consistent basis so that, with fair and equal application
     9  of  the law, no person or entity, no matter what their status, influence
    10  or role in government, can place themselves  above  the  law  or  suffer
    11  detriment due to any lack of such status, influence or role.
    12    §  2.  a. There shall be a New York state government integrity commis-
    13  sion.  The commission shall, on an independent and  non-partisan  basis:
    14  (i) receive, initiate, investigate and determine complaints with respect
    15  to  laws,  rules and regulations prohibiting unethical behavior, includ-
    16  ing, conflict of interest, self-dealing and breach of the public  trust;
    17  (ii)  administer  and  enforce laws, rules and regulations providing for
    18  the disclosure of financial and  other  interests  by  state  government
    19  officers  and  employees;  (iii)  administer and enforce laws, rules and
    20  regulations relating to abuse of official  position,  including  through
    21  discrimination  and  discriminatory and retaliatory harassment, by state
    22  government officers and employees; (iv)  administer  and  enforce  laws,
    23  rules  and  regulations  regulating  the  influence of money in politics
    24  including those providing for the disclosure of  receipts  and  expendi-
    25  tures  by  candidates  and political parties; (v) administer and enforce
    26  laws, rules and regulations relating to public  financing  of  political
    27  campaigns;  (vi) administer and enforce laws, rules and regulations that
    28  regulate lobbying and lobbyists; and (vii) receive,  initiate,  investi-
    29  gate  and  determine complaints that laws, rules and regulations related
    30  to government procurement are  not  being  faithfully  executed.    This
    31  jurisdiction shall be in addition to and not in derogation of the inves-
    32  tigatory, disciplinary, vendor qualification or law enforcement authori-
    33  ty of any other person or entity and of the right of an aggrieved person
    34  to  seek civil redress in accordance with law. The commission may in its
    35  discretion decline to initiate, or suspend initiation of proceedings, or
    36  otherwise adjust its procedures,  in  view  of  such  other  proceedings
    37  undertaken or able to be undertaken by such other person or entity.
    38    b.  When,  after  hearing,  the  commission  has  determined  that the
    39  respondent has violated a law, rule or  regulation  within  the  commis-
    40  sion's  jurisdiction  to  enforce,  the  commission may impose any civil
    41  sanction authorized by law and/or refer the matter for  criminal  prose-
    42  cution.  The  commission  may  also  caution,  admonish  or censure such
    43  respondent or, in the case of a non-elected state officer  or  employee,
    44  suspend,  demote  or  remove  such  respondent from office or employment
    45  after such adjudicatory process that  substantially  complies  with  the
    46  terms  of  any relevant collective bargaining agreement. In deciding the
    47  severity of the sanction, the commission shall consider to  what  extent
    48  the  violation  is  inadvertent, isolated and/or of insubstantial conse-
    49  quence on the one hand or willful, repeated, causing actual public  harm
    50  or risk of public harm and/or otherwise egregious on the other. Determi-
    51  nations,  other  than a determination to refer for criminal prosecution,
    52  shall be subject to judicial review in accordance with law. If it  finds
    53  such  a  violation  it  may also issue a cease and desist order and seek
    54  judicial enforcement of that order in accordance with law.
    55    c. The commission shall consist  of  thirteen  members,  appointed  as
    56  follows:  (i)  two  shall  be appointed by the governor, at least one of

        A. 1929                             3
 
     1  whom shall be, or within the prior five years shall have been,  enrolled
     2  in  a  different major political party than the governor; (ii) one shall
     3  be appointed by each of the leaders in each house of the legislature  of
     4  the  party  conferences  whose candidate for governor in the most recent
     5  gubernatorial election received the largest and second largest number of
     6  votes; and (iii) seven jointly by the chief judge of the  state  of  New
     7  York  and  the  presiding  justices  of each of the appellate divisions,
     8  three of whom shall be, and within the prior five years shall have been,
     9  enrolled in each of the two majority political parties and one  of  whom
    10  shall  not  be,  and  shall  not  within  the  past five years have been
    11  enrolled in any political party. The chief judge shall request the pres-
    12  ident and immediate past president of the state bar jointly  to  propose
    13  seven  persons  for  each of two appointments to the commission who as a
    14  group of seven would be eligible for such appointment and two  of  those
    15  appointed jointly by the chief judge and the presiding justices shall be
    16  drawn  from these two lists. No member of the commission shall have held
    17  office in any political party organization, have been a state officer or
    18  employee or have been engaged  as  a  lobbyist  within  three  years  of
    19  appointment or at any time during their term. The chair shall be elected
    20  by  the  commission  members from among its members.  Commission members
    21  shall be reimbursed for their actual expenses and paid a per diem salary
    22  to be fixed by law but at least a per diem amount equal  to  the  annual
    23  salary  paid  to  a  justice of the supreme court divided by two hundred
    24  twenty. A member may be removed for cause on application to the court of
    25  appeals made by a majority vote of the full membership  of  the  commis-
    26  sion.
    27    d. The persons first appointed by the governor shall have respectively
    28  three  and  four-year terms as the governor shall designate. The persons
    29  first appointed jointly by the chief judge of the state of New York  and
    30  the presiding justices of the appellate divisions shall have respective-
    31  ly  one, two, two, three, three, four, and four-year terms as that judge
    32  and those justices shall designate. The person first  appointed  by  the
    33  legislative  leaders  in  each  house  of  the  legislature of the party
    34  conferences whose candidate for governor received the largest number  of
    35  votes shall have a four-year term in the case of the Senate and a three-
    36  year term in the case of the Assembly. The person first appointed by the
    37  legislative  leaders  in  each  house  of  the  legislature of the party
    38  conferences whose candidate for governor  received  the  second  largest
    39  number of votes shall have a two-year term in the case of the Senate and
    40  a  one-year term in the case of the Assembly. Each member of the commis-
    41  sion shall be appointed thereafter for a term of four years and shall be
    42  appointed in the same manner with a person of the same political  affil-
    43  iation as his or her predecessor.
    44    e.  The  organization  and  procedure  of  the  commission shall be as
    45  provided by law provided that the commission shall act by majority  vote
    46  of  its  membership and determine violations based on a preponderance of
    47  the evidence except that any order of censure or removal shall be  based
    48  on  clear and convincing evidence.  The commission may establish its own
    49  rules and procedures not inconsistent with law and  due  process.  Those
    50  rules shall bar ex parte communications regarding a potential or ongoing
    51  investigation or other matter before the commission, direct or indirect,
    52  between  members  of  the  commission and their appointing authority and
    53  such rule shall bind both the member, the commission staff, the appoint-
    54  ing authority and the staff, agents and representatives of the  appoint-
    55  ing  authority.  The  commission  shall be empowered to designate one or

        A. 1929                             4

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

        A. 1929                             5
 
     1  such  a  report  in good faith on information and belief, and any person
     2  aggrieved by such retaliation may bring a civil action for  compensatory
     3  and exemplary damages.
     4    c.  The  state  code  of  ethics  shall,  by virtue of this provision,
     5  provide that no person within the jurisdiction of the  commission  shall
     6  commit  an act of discriminatory or retaliatory harassment while serving
     7  in his or her official capacity and no such person serving in a supervi-
     8  sory capacity shall suffer an act of such harassment  to  occur  without
     9  taking  care  that there be due consequences in accordance with law. The
    10  commission may by rule define the conduct that  constitutes  an  act  of
    11  discriminatory  or  retaliatory  harassment  and  shall establish a unit
    12  responsible for harassment complaints and investigations.
    13    § 6. The commission may recommend to the legislature  limits  for  all
    14  categories  of campaign contributions to candidates and political organ-
    15  izations that in its judgment are low enough to prevent an elected offi-
    16  cial from being so beholden to a campaign contributor as  to  materially
    17  impair  such  official's  exercise of independent policy judgment in the
    18  interests of the public and his or her constituents.
    19    § 7. The commission shall be subject to all  transparency  and  public
    20  access  laws subject to such reasonable exceptions for pending confiden-
    21  tial investigations as shall be provided by law. The legislative  branch
    22  shall  be  subject to laws providing for transparency to the same extent
    23  as is the executive branch.
    24    § 8. Any commission appointment not made within sixty  days  following
    25  the  effective  date of this article, or within sixty days of the occur-
    26  rence of any vacancy, shall be filled by the president and  president-e-
    27  lect  of  the  state  bar  acting  jointly. For no more than ninety days
    28  following the initial appointment all  the  members  of  the  commission
    29  shall  prepare  to commence operation, including the hiring of an execu-
    30  tive director and managerial staff, and on such ninetieth day the  joint
    31  commission  on public ethics and the legislative ethics commission shall
    32  no longer exist, and the  authority  of  the  board  of  elections  over
    33  campaign  finance  shall  cease all their powers, duties, non-managerial
    34  employees and matters having been transferred to the commission.
    35    § 2. Resolved (if the Senate concur), That the foregoing amendment  be
    36  referred  to  the  first regular legislative session convening after the
    37  next succeeding general election of members of  the  assembly,  and,  in
    38  conformity  with  section  1  of  article  19  of  the  constitution, be
    39  published for 3 months previous to the time of such election.
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