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