Commission Structure and Operations
STRUCTURE, AUTHORITY AND OPERATIONS OF THE LEGISLATIVE ETHICS COMMISSION
LEGISLATIVE HISTORY AND STRUCTURE
The Legislative Ethics Commission (LEC) was created by the Public Employees Ethics Reform Act of 2007 that was signed into law on March 26, 2007. This legislation replaced the Legislative Ethics Committee (which consisted entirely of legislators) with the LEC and revised the provisions of the Legislative Law and Public Officers Law relating to the Commission's powers, duties and jurisdiction. Pursuant to Legislative Law §80, the Commission is comprised of nine members. Each of the four legislative leaders appoints one legislative and one non-legislative member. Legislative Law §80 provides for the fifth non-legislative member to be appointed jointly by the Assembly Speaker and the Senate Majority Leader.
There are currently eight members of the LEC:
Senator Neil D. Breslin, co-chair
Assemblymember Jo Anne Simon, co-chair
Senator Andrew J. Lanza
Assemblymember Michael Montesano
John M. Brickman, Esq.
Peter V. Coffey, Esq.
Ellen B. Holtzman, Esq.
The LEC’s jurisdiction is Public Officers Law §§ 73, 73-a and 74 and the applicability of those statutes to members and employees of the legislature, and the provisions of § 73-a to candidates for state legislative office. The duties of the LEC prior to 2012 included the issuance of advisory opinions; review of Annual Statements of Financial Disclosure filed by legislative members, legislative employees and candidates for legislative office; providing those statements to the public upon request; and ethics training at the request of the legislature. The LEC was also responsible for the receipt of sworn complaints filed against legislators and legislative staff, the investigation of violations and the assessment of penalties for violations of Public Officers Law Sections 73, 73-a or 74. When the Legislative Ethics Commission was created, the Commission on Public Integrity (COPI) was also established with similar oversight and investigative powers over the Executive Branch, state employees and lobbyists.
The powers and duties of the LEC were significantly amended by Chapter 399 of the Laws of 2011, which was signed into law on August 15, 2011. Chapter 399 (also known as the Public Integrity Reform Act) eliminated the Commission on Public Integrity and replaced it with the Joint Commission on Public Ethics (JCOPE) which was required to be fully operational by December 13, 2011 (120 days after the effective date of Chapter 399).
JCOPE retained all of the powers and duties of COPI and, in addition, Chapter 399 provided that investigations of violations of Public Officers Law §§ 73, 73-a and 74 by legislators and legislative employees would be conducted by the Joint Commission on Public Ethics. An additional change under Chapter 399 of the Laws of 2011 made financial disclosure statements of legislators, legislative staff and candidates for legislative office be filed with JCOPE after they have been received and reviewed by the Legislative Ethics Commission.
Current Statutory Provisions Governing the Filing and Investigation of Complaints Against Legislators and Legislative Employees
The LEC’s authority is now limited to the Public Officers Law as it pertains to the Legislative branch and does not enforce ethics laws or rules in connection with alleged violations by the Executive or Judicial branches. The LEC does not have authority to investigate complaints for violations of the Public Officers Law. In the event that a complaint against a member of the Legislative branch is misdirected to the LEC, it is referred to the appropriate investigatory body.
If a complaint is filed against a legislator or legislative staff member, the current process, enacted into law in 2011 is as follows:
All complaints alleging violations of Public Officers Law sections 73, 73-a and 74 by legislative members or staff must be filed with the Joint Commission on Public Ethics. As noted above, if a complaint against a member of the Legislative branch is misdirected to the LEC, it is referred to the appropriate investigatory body; which may be JCOPE.
If JCOPE receives a complaint or decides upon its own initiative to investigate a possible violation, JCOPE must vote, within 60 days, on whether to commence a full investigation of the matter to determine whether a substantial basis exists to conclude that a violation of law has occurred.
If JCOPE concludes that a substantial basis exists to conclude that a legislator or legislative staff member has violated any provisions of Public Officers Law, it must present a written report to the LEC. (Executive Law § 94(14-a.))
Once the LEC has received a written Substantial Basis Investigation Report (SBIR) from JCOPE, it must make public the entire report within 45 calendar days of receipt. That time period may be extended if a law enforcement agency asks for a delay due to a criminal investigation, or if the LEC sends the report back to JCOPE for additional investigation or an additional 45 days is required for disposition to be completed. (Legislative Law §80(9)(b)).
Within 90 days of receiving a Substantial Basis Investigation Report, the LEC, must dispose of the matter by concurring or disagreeing with JCOPE’s conclusions of law and the reasons therefor; stating whether any penalties have been assessed and the reasons therefor and whether further actions have been taken by the LEC to punish or deter the misconduct at issue. (Legislative Law §80(10))
The LEC’s written disposition must be posted on its website within ten days after it is made.
All of the LEC’s dispositions of SBIRs received from JCOPE and settlement agreements reached between legislators, legislative employees or candidates and the LEC with JCOPE are published on the LEC’s website: legethics.ny.gov.
RESPONSIBILITIES AND OPERATIONS
Review of Substantial Basis Investigation Reports and Penalty Assessments
As noted above, if the LEC receives a Substantial Basis Investigation Report from JCOPE one of the following actions must be taken:
- The report may be sent back to JCOPE once for additional investigation;
- The LEC may concur with the findings of the report and assess appropriate penalties;
- The LEC may disagree with the report and publically state its reasons for disagreement.
All dispositions of SBIRs are public and must be posted on the LEC website.
If a settlement agreement is reached between an individual and JCOPE/LEC, the LEC commissioners must vote to approve any penalty and the settlement agreement must be posted on the LEC website.
The LEC is responsible for sending filing materials and collecting Annual Statements of Financial Disclosure (“long form”), from legislators, legislative employees and candidates for legislative office (Public Officers Law §73-a). In addition, the LEC receives all Statements of Financial and Other Interests (“short form”) filed by legislative employees (Public Officers Law §73(6). Forms are reviewed by the LEC and forwarded to JCOPE where they are public information and available upon request to JCOPE. Legislators’ Annual Statements of Financial Disclosure are posted online. (https://jcope.ny.gov/financial-disclosure-statements-elected-officials)
In 2020 the number of Annual Statements of Financial Disclosure (long forms) filed with the LEC was:
Legislative members: 209*
File rate Employees: 242
Policymaker Employees: 238
Candidates (non-incumbents): 325
*All members timely filed; 4 less than total number of legislators were received due to vacancies.
Approximately 25% to 33% of legislators file amendments every year. Amendment forms are attached to the back of the original, initially filed statements and posted by JCOPE.
In 2020, the number of Statements of Financial and Other Interests (short forms) filed was 2,872.
The legislature is required to provide training pursuant to statute and the LEC provides that training with, and at the direction of, the legislature. Legislative Law § 80(7)(k) directs the LEC to develop educational materials, an online ethics orientation course and training materials in relation to a comprehensive ethics training as requested by the senate or the assembly.
Executive Law §94(10) requires comprehensive training of individuals required to file an Annual Statement of Financial Disclosure (long form filers) within two years of employment and additional ethics training seminars every three years. The statute further directs that an ethics orientation course is required for all individuals newly subject to the long form filer requirements within three months of becoming subject to those requirements. The legislature has chosen stricter training requirements. All employees (both long form and short form filers) are required to take the online orientation course. In addition, comprehensive training is required at least every two years for legislators and all employees.
In addition to training legislators and legislative employees (including the Legislative Bill Drafting Commission and the Independent Redistricting Commission), the LEC also trains interns and fellows and provides training or seminars on specific topics to individual offices.
In 2020, over 300 employees completed the online ethics orientation. Even with COVID restrictions, LEC staff participated in or conducted 22 training sessions. Thus far, in 2021 the LEC has completed 19 training sessions.
Training required by the legislature and assisted by the LEC, has resulted in all legislators being current on their ethics training and between ninety and ninety five percent of legislative employees being in compliance with the legislative training requirements over the last two years.
Advice and Guidance
The LEC Commissioners and staff spend the most time, by far, in providing advice and guidance to members of the legislature, legislative staff and candidates for state legislative office (regarding financial disclosure).
The LEC provides advice and guidance regarding compliance with:
Public Officers Law § 73
- Section 73 sets forth guidelines and restrictions on business and professional activities, including gifts, relationships with state agencies, state contracts, honoraria, post-employment restrictions, and the hiring of relatives.
Public Officers Law §73-a
- Section 73-a sets out the Annual Statement of Financial Disclosure and filing requirements for legislators, candidates for legislative office and certain legislative employees.
Public Officers Law §74
- Section 74, entitled “Code of Ethics” establishes the rule with respect to conflicts of interest and related standards.
Advice and Guidance is provided in a number of ways.
The Commission approves generic advice on questions that are raised frequently and lend themselves to general advice. These opinions are posted on the LEC website, legethics.ny.gov.
Formal Advisory Opinions
Formal advisory opinions may be requested by legislators or legislative staff regarding the applicability to particular, specific facts of any statutes within the jurisdiction of the Commission. Pursuant to Joint Rule V of the Legislature, members must request a formal advisory opinion from the LEC regarding any outside employment for which they will earn $5,000 or more per calendar year.
Formal advisory opinions are reviewed and voted upon by the Commission and are confidential. Individuals who have received formal opinions may release those opinions if they choose to do so.
Pursuant to Legislative Law §80(7)(i), a formal written opinion rendered by the Legislative Ethics Commission , provided that no material facts were omitted or misstated by the person requesting the opinion, may be relied upon by the person requesting the opinion and it may be introduced and shall be a defense in any criminal or civil action. Additionally, JCOPE may not investigate an individual for violations of law based upon conduct approved and covered in its entirety by an approved formal opinion other than to ascertain whether the person accurately and fully represented to the LEC the relevant facts and followed the advice given.
The Commission, on average, issues approximately thirty formal advisory opinions annually.
LEC staff will provide informal advice regarding compliance with statutes within the jurisdiction of the Commission on a regular basis. Although advice will sometimes be given verbally, it is most frequently given and requested in writing via e-mail.
If a question is raised that is unique or not well settled, staff will not respond informally. The requestor will be advised to request a formal opinion from the Commission. Additionally, if someone disagrees with the advice given to them by staff they may always ask for advice or a determination from the Commission as a whole.
Although the volume of requests for informal advice varies, we estimate that in most years it is approximately 1,000 annually, including questions regarding financial disclosure.