813 - 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  specifiedtime  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  thissection.  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.  Aperson 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