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Legislation

The Commission on Public Integrity held a public hearing on its staff legislative proposals to amend the Lobbying Act in September 2009. Four people testified at the hearing and written testimony was received from fourteen others.

The proposals, made by Commission staff, would change the Lobbying Act's definition of "lobbying," "expense" and "expenses;" and "gift;" impose a penalty on any lobbyist or client who fails to comply with a Commission audit; establish a civil penalty for use of illegal lobbying contingent retainer agreements; increase the time period for which lobbyists and clients must retain their records; and increase the monetary threshold that triggers filings by lobbyists and clients.

The proposed definition of lobbying - essentially, any paid effort to influence governmental action -- would include matters currently not covered, such as discussions of possible new legislative actions prior to the drafting of legislation.

The proposal to amend the definition of "expense" and "expenses" would include political contributions made by registered lobbyists and their clients. Since campaign contributions are the most common and effective tool that lobbyists and clients have to secure access to elected officials, requiring their disclosure would enhance transparency, a central objective of the Lobbying Act.

The Commission also has six legislative proposals dealing with ethics. Topping that list are increased protection for whistle blowers and a $10,000 penalty for those who act to obstruct a Commission investigation.

Under the State's current "whistle blower law," a public employee is required to make a good faith effort to disclose first 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.

The Commission proposes to amend the State's whistle blower law to eliminate the requirement that alleged violations of the State's ethics laws first be disclosed to one's agency before being brought to the Commission on Public Integrity.

The second proposal stems from the Commission's investigation into the Troopergate matter. At that time, 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 would be a significant incentive to comply and avoid the need for court action. The Commission is proposing it be given the authority to impose a penalty of up to $10,000 for acting with intent to obstruct a Commission investigation.

Lobbying Records

The Lobbying Act requires the Commission to retain records for three biennial filing periods (six years) but only requires filers to maintain their records for three years. To address this disparity, the Commission recommends that the Lobbying Act be amended 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. 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.

Contracting with a former employee

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 State agency, despite the individual's unique knowledge and experience in the matter and the potential cost savings to the State. The Commission is recommending an amendment that will 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 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 savings to the State of New York.

Nepotism

The nepotism statute enacted in 2007 prohibits participation by a relative in the decision to promote, discipline or discharge a relative, but does not prohibit a State employee from supervising a relative.

The Commission is proposing an amendment to prohibit such 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.

Definition of “Relative”

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.

The Commission's proposal would 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 and step relationships that fall within its plain meaning, and domestic partner relationships.

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