New York State Commission on Public Integrity Legislative Initiatives for 2009
Executive Summary
The New York State Commission on Public Integrity (“Commission”) is charged with interpreting, administering, and enforcing the State's ethics laws for more than 250,000 officers and employees of the Executive branch of State government including public benefit corporations, public authorities, employees of the State University of New York and City University of New York and certain closely affiliated not-for-profit corporations. In addition, the Commission is responsible for administering the State's lobbying laws. Currently, the Commission receives filings from approximately 6,000 lobbyists and 4,000 clients annually.
Since the enactment of the Public Employee Ethics Reform Act of 2007 (“PEERA”), the Commission has accomplished a great deal, including the merger of two separate agencies into a single, cohesive organization and re-educating thousands of State officers and employees as well as clients and lobbyists regarding legislative changes to the State's ethics and lobbying laws under PEERA. The Commission has also conducted over 85 investigations and assessed approximately $285,000 in fees and penalties. The work of the Commission continues, as it constantly strives to improve the laws it is charged with enforcing, while also recognizing the need to carry out its mandate in a fiscally responsible manner during these challenging economic times.
This year, the Commission is urging support for its legislative program which builds upon the work already accomplished by the PEERA legislation. This legislative program recommends changes to identified weaknesses in the State's ethics and lobbying laws and seeks to strengthen the Commission's enforcement capabilities. Passage of these measures will enable the Commission to re-direct its financial resources so that they may be utilized in a more effective and efficient manner.
Problem:
Under the State's current “whistle blower law,” a public employee is required to make a good faith effort to first disclose to his or her appointing authority or designee, information concerning an alleged violation of law or an activity which constitutes improper government action, and allow a reasonable period of time for appropriate remediation. This requirement, however, fails to address those instances in which the employee's supervisor or a senior level administrator may be involved in unethical conduct and reporting is impractical or ill-advised.
Answer:
Amend the State's whistle blower law to eliminate the “early disclosure” requirement for alleged violations of the State's ethics laws.
Over the years, there have been numerous instances in which State employees have come forward to report unethical conduct in their agencies but have asked for anonymity for fear of reprisal. Many more individuals have refused to cooperate voluntarily with Commission investigations for similar reasons. And, in at least one case of which the Commission is aware, several State employees who worked for an agency in which unethical conduct was pervasive at the highest levels, were summarily fired for cooperating with a Commission investigation.
The Commission believes that State officers and employees would be more likely to come forward with information concerning unethical conduct if they were afforded whistle blower protection. This legislative proposal would extend the whistle blower law to individuals who come directly to the Commission with information of alleged wrongdoing and provide for a more effective accounting of the ethical climate of State government.
Problem:
There is little disincentive for individuals or entities subject to the Commission's jurisdiction to comply with Commission subpoenas or other directives issued in conjunction with an on-going Commission investigation.
Answer:
Authorize the Commission to impose a penalty of up to $10,000 for acting with intent to obstruct a Commission investigation.
In the Commission's Notice of Reasonable Cause issued in the Investigation into the Alleged Misuse of Resources of the Division of State Police, the Commission noted that the Executive Chamber . . . substantially delayed the Commission's investigation
when, over a ten month period, it routinely produced documents on a piecemeal basis, after claiming it had complied with the Commission's subpoena. While judicial intervention is a remedy in such instances, the ability of the Commission to assess a penalty for a willful failure to comply with a properly issued subpoena prior to a motion to compel, may serve as a significant incentive to comply and obviate the need for court action.
Problem:
A State agency may not contract with a former employee, now rendering services as a consultant to a federal agency, to work on a matter on behalf of the agency, despite the individual's unique knowledge and experience in the matter and the potential cost savings to the State.
Answer:
Amend the Public Officers Law sec. 73 (8-b) certification process to enable State agencies to hire former employees under contract or subcontract with the federal government.
The Legislature and the Governor previously have recognized that in some limited cases, the post-employment restrictions worked to the detriment of the State by precluding an agency from retaining the services of a former employee where the former employee has a special knowledge or expertise and could perform the services in a more cost effective manner than others. Most recently, in 2004, the Public Officers Law was amended to enable an agency to contract with a former employee or their employer, upon agency head certification to the Commission that the former employee possessed a unique expertise that could not be obtained elsewhere at comparable cost. These requirements, in addition to a review by the State Comptroller under State Finance Law sec. 112, have diminished any potential for abuse of this provision. Indeed, since its enactment, the Commission has authorized only 35 such certifications. These certifications, however, have resulted in significant cost saving to the State of New York.
The Commission recently became aware of a situation in which the Department of Environmental Conservation sought to retain a former State employee now under contract with the federal government. The former employee is an expert in nuclear waste management. The certification process was not available to the agency since it could not “contract individually” with the former employee and because the former employee was not a “member or employee of a firm, corporation or association.” Since the individual was a contractor to the federal government, the State was unable to obtain his services. This legislative proposal would correct this oversight, thereby enabling the State to obtain the services of former employees, under limited circumstances, when it benefits the State to do so.
Problem:
The recently enacted nepotism statute does not prohibit a State employee from supervising a relative, but prohibits participation by a relative in the decision to promote, discipline or discharge a relative.
Answer:
Amend Public Officers Law sec. 14(a) to prohibit supervision of a relative. This will serve to insure that the information gleaned from regular observations of an employee, and the proper use of such information for purposes of promotion, discipline or discharge will be fair and unbiased.
The new nepotism law fails to recognize that supervision of an employee plays an important role in the decision to promote, discipline or discharge an employee. Clearly, the assignment of tasks, observations and assessments concerning how an individual performs his/her duties, interpersonal skills, timeliness and the desire to take on additional responsibilities all derive from the supervisory relationship. Leaving the decision to promote, discipline or discharge an individual to someone who has not had first hand knowledge of the employee's performance puts both the employee and the decision-maker at a significant disadvantage. Moreover, allowing one relative to supervise another can create animosity and resentment among co-workers and call into question a supervisor's objectivity when dispensing work assignments, performance evaluations, and the like.
This legislative proposal eliminates questions of objectivity on the part of the supervisor and results in employment actions that are fair and based on observed and recorded performance.
Problem:
The current definition of the term “relative” for purposes of the nepotism statute is confusing and fails to recognize significant relationships that should appropriately be included within the definition.
Answer:
Amend Public Officers Law sec. 73(1)(m) to clarify the term “relative” to include blood relatives as well as persons living in the same household that may not share a blood relation.
As currently written, the following relationships are not captured by the statute unless such individuals live in the same household: foster children, adopted children, step children, “in-law” relatives, and step-relatives. Conversely, the statute defines “any person living in the same household as the individual” to constitute a relative, including foreign exchange students, friends and roommates.
The trend in many states is to define the term “relative” by identifying the actual relationship the term is intended to capture. This legislative proposal would similarly re-define the term “relative” by specifically identifying the blood relationships, and step relationships that fall within its plain meaning, and domestic partner relationships.
Problem:
The Lobbying Act requires the Commission to retain records for three biennial filing periods but only requires filers to maintain their records for three years.
Answer:
Amend the Lobbying Act to require all lobbyists and clients to retain their records for a period of three biennial filing periods, subject to monetary penalties for any violation.
Maintaining business records for six to seven years is a common and, in many cases, legally-required practice in today's business world. Presently, the law requires the Commission to maintain filing records for clients and lobbyists for three biennial periods for the purpose of making such records available for public inspection. Conversely, lobbyists and clients are only required to maintain records for a three year period. In addition, the Commission's statutory random audit program requires the Commission to conduct audits of lobbyist and client filings. While the Commission could pool from a potential database of three biennial reporting periods, effectively it is only able to draw from the two most recent biennial periods since lobbyists and clients are not required to maintain the earlier records. Even this reduced database could result in an audit of a four year old record which the client/lobbyist is not required to maintain. Accordingly, in some cases, it is impossible for the Commission to meet its statutory obligation for conducting certain audits.
This legislative proposal would coordinate the record retention periods and thereby enable the Commission to fully execute its statutory obligation and insure the integrity of the information being filed.