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.
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.