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A01632 Summary:

COSPNSRGottfried, Blake, Thiele, Mosley, Zebrowski, Raia, Pichardo, Cahill
MLTSPNSRCrouch, Lawrence, Simon
Amd 89, 107 & 87, Pub Off L
Enacts the integrity in government act; expands the powers and duties of the committee on open government.
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A01632 Actions:

01/12/2017referred to governmental operations
01/03/2018referred to governmental operations
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A01632 Text:

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    January 12, 2017
        Introduced  by  M.  of  A.  SKOUFIS,  GOTTFRIED,  BLAKE, THIELE, MOSLEY,
          by -- M. of A.  CROUCH, LAWRENCE, SIMON -- read once and  referred  to
          the Committee on Governmental Operations
        AN  ACT  to  amend  the public officers law, in relation to enacting the
          integrity in government act
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. This act shall be known and may be cited as the "integrity
     2  in government act".
     3    § 2. Paragraph (a) of subdivision 1 of section 89 of the public  offi-
     4  cers  law,  as amended by chapter 33 of the laws of 1984, is amended and
     5  six new paragraphs (c), (d), (e), (f), (g) and (h) are added to read  as
     6  follows:
     7    (a) The committee on open government is continued and shall consist of
     8  the  lieutenant  governor or the delegate of such officer, the secretary
     9  of state or the delegate of such officer,  whose  office  shall  act  as
    10  secretariat for the committee, the commissioner of the office of general
    11  services  or the delegate of such officer, the director of the budget or
    12  the delegate of such officer, and seven  other  persons,  none  of  whom
    13  shall  hold  any other state or local public office except the represen-
    14  tative of local governments as set forth  herein,  to  be  appointed  as
    15  follows:  five  by  the  governor, at least two of whom are or have been
    16  representatives of the news media, one of whom shall be a representative
    17  of local government who, at the time of appointment,  is  serving  as  a
    18  duly  elected officer of a local government, one by the temporary presi-
    19  dent of the senate, and one by the speaker of the assembly. The  persons
    20  appointed  by  the  temporary president of the senate and the speaker of
    21  the assembly shall be appointed to serve, respectively, until the  expi-
    22  ration of the terms of office of the temporary president and the speaker
    23  to  which  the  temporary  president  and speaker were elected. The four

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 1632                             2
     1  persons presently serving by appointment of the governor for fixed terms
     2  shall continue to serve until the expiration of their respective  terms.
     3  Thereafter,  their respective successors shall be appointed for terms of
     4  four  years. The member representing local government shall be appointed
     5  for a term of four years, so long as such member  shall  remain  a  duly
     6  elected  officer of a local government. The committee shall hold no less
     7  than two meetings annually, but may meet at any time. The members of the
     8  committee  shall  be  entitled  to  reimbursement  for  actual  expenses
     9  incurred  in  the  discharge of their duties.  The executive director of
    10  the committee shall maintain a permanent office in Albany in such  suit-
    11  able  space as the commissioner of the department of state provides. All
    12  papers required to be filed with or served upon the committee  shall  be
    13  delivered  to such office. Each member shall receive two hundred dollars
    14  per day for each day such member is present at a  committee  hearing  or
    15  meeting, and shall be entitled to reimbursement for actual and necessary
    16  expenses incurred in connection therewith.
    17    (c) The committee shall, subject to the civil service law, employ such
    18  employees  as  may  be  necessary  to  carry  out the provisions of this
    19  section. The committee may enter into such contractual agreements as may
    20  be necessary for the discharge of its duties, within the limits  of  its
    21  appropriated funds and in accordance with established procedures.
    22    (d)  i. Any person denied the right to inspect or copy records, denied
    23  the right to attend any meeting of a public agency or denied  any  other
    24  right  conferred  by  this article and article seven of this chapter may
    25  appeal therefrom to the committee by filing a notice of appeal with  the
    26  committee.  A notice of appeal shall be filed not later than thirty days
    27  after such denial, except in the case of an unnoticed or secret meeting,
    28  in which case the appeal shall be filed not later than thirty days after
    29  the person filing the appeal receives notice in fact that  such  meeting
    30  was held. For purposes of this paragraph, such notice of appeal shall be
    31  deemed  to  be  filed on the date it is received by said committee or on
    32  the date it is postmarked, if received more than thirty days  after  the
    33  date of the denial from which such appeal is taken.
    34    ii.  Upon  receipt  of such notice, the committee shall serve upon all
    35  parties, by certified or registered mail, a copy of such notice together
    36  with any other notice or order of such committee. In  the  case  of  the
    37  denial  of  a  request  to inspect or copy records contained in a public
    38  employee's personnel or medical file, the committee shall  include  with
    39  its  notice  or order an order requiring the public agency to notify any
    40  employee whose records are subject of  an  appeal,  and  the  employee's
    41  collective   bargaining  representative,  if  any,  of  the  committee's
    42  proceedings and, if any such employee or collective bargaining represen-
    43  tative has filed an objection, the agency  shall  provide  the  required
    44  notice  to  such  employee  and  collective bargaining representative by
    45  certified mail, return receipt requested or  by  hand  delivery  with  a
    46  signed receipt. A public employee whose personnel or medical file is the
    47  subject  of an appeal may intervene as a party in the proceedings on the
    48  matter before the committee.
    49    (e) i. The committee shall,  after  due  notice  to  the  parties  and
    50  subject  to  the  provisions  of  this article and article seven of this
    51  chapter, promptly review the alleged violation  of  said  articles.  The
    52  committee  shall have the power to investigate all alleged violations of
    53  this article and article seven of this chapter and may for  the  purpose
    54  of investigating any violation hold a hearing, administer oaths, examine
    55  witnesses,  receive  oral  and  documentary  evidence, have the power to
    56  subpoena witnesses under procedural rules adopted by  the  committee  to

        A. 1632                             3
     1  compel  attendance  and to require the production for examination of any
     2  books and papers which the committee deems relevant in any matter  under
     3  investigation  or  in  question. In case of a refusal to comply with any
     4  such  subpoena  or to testify with respect to any matter upon which that
     5  person may be lawfully interrogated, a court of competent  jurisdiction,
     6  on  application  of  the  committee,  may  issue an order requiring such
     7  person to comply with such subpoena and to testify; failure to obey  any
     8  such order of the court may be punished by the court as a contempt ther-
     9  eof.
    10    ii.  The committee shall hear and decide each appeal within six months
    11  after the filing of the notice of  appeal.  The  committee  shall  adopt
    12  regulations establishing criteria for those appeals which shall be priv-
    13  ileged in their assignment for hearing. Any such privileged appeal shall
    14  be  heard not later than thirty days after receipt of a notice of appeal
    15  and decided not later than sixty days after a hearing.
    16    iii. If a notice of appeal concerns an announced  agency  decision  to
    17  meet  in  executive  session or an ongoing agency practice of meeting in
    18  executive sessions, for a stated purpose, the committee or a  member  or
    19  members  of  the  committee  designated  by  its chairperson shall serve
    20  notice upon the parties and hold a preliminary hearing on the appeal not
    21  later than seventy-two hours after receipt of the notice, provided  such
    22  notice shall be given to the parties at least forty-eight hours prior to
    23  such  hearing. During such preliminary hearing, the committee shall take
    24  evidence and receive testimony from the parties. If after  the  prelimi-
    25  nary  hearing  the  committee  finds  probable cause to believe that the
    26  agency decision or practice is in violation of  article  seven  of  this
    27  chapter, the agency shall not meet in executive session for such purpose
    28  until  the  committee  decides the appeal. If probable cause is found by
    29  the committee, it shall conduct a final hearing on the appeal and render
    30  its decision not later than  five  days  after  the  completion  of  the
    31  preliminary  hearing.  Such decision shall specify the committee's find-
    32  ings of fact and conclusions of law.
    33    iv. The committee, at its discretion, may issue an order to discontin-
    34  ue all work resulting from an alleged  violation  of  this  article  and
    35  article  seven  of  this chapter if irreparable harm is deemed to poten-
    36  tially occur. This order will hold until a decision is rendered  by  the
    37  committee on the alleged violation.
    38    (f)  i.  In any appeal to the committee, the committee may confirm the
    39  action of the agency or order the agency  to  provide  relief  that  the
    40  committee, in its discretion, believes appropriate to rectify the denial
    41  of  any  right conferred by this article and article seven of this chap-
    42  ter.  The committee may declare null and void any action  taken  at  any
    43  meeting  which  a  person was denied the right to attend and may require
    44  the production or copying of any public record. In addition, upon  find-
    45  ing that a denial of any right created by this article and article seven
    46  of  this  chapter was without reasonable grounds and after the custodian
    47  or other official directly responsible for the denial has been given  an
    48  opportunity  to be heard at a hearing conducted in accordance with arti-
    49  cle seven of this chapter the committee may, in its  discretion,  impose
    50  against the custodian or other official a civil penalty of not less than
    51  twenty dollars nor more than one thousand dollars.
    52    ii.  If  the  committee finds that a person has taken an appeal frivo-
    53  lously, without reasonable grounds, after such person has been given  an
    54  opportunity  to be heard at a hearing conducted in accordance with arti-
    55  cle seven of this chapter, the committee may, in its discretion,  impose

        A. 1632                             4
     1  against  that person a civil penalty of not less than twenty dollars nor
     2  more than one thousand dollars.
     3    iii.  The  committee shall notify a person of a penalty levied against
     4  him pursuant to this subdivision by written notice sent by certified  or
     5  registered mail. If a person fails to pay the penalty within thirty days
     6  of  receiving  such  notice, a court of competent jurisdiction shall, on
     7  application of the committee, issue an order requiring the person to pay
     8  the penalty imposed.
     9    iv. The committee shall provide due notice to the parties  and  review
    10  affidavits  and  written arguments that the parties may submit and grant
    11  or deny such leave summarily at its next regular meeting. The  committee
    12  shall  grant  such  leave  unless it finds that the appeal: (A) does not
    13  present a claim within the committee's jurisdiction;  (B)  would  perpe-
    14  trate  an injustice; or (C) would constitute an abuse of the committee's
    15  administrative process. Any party aggrieved by the committee's denial of
    16  such leave may apply  to  a  court  of  competent  jurisdiction,  within
    17  fifteen  days  of  the committee meeting at which such leave was denied,
    18  for an order requiring the committee to hear such appeal.
    19    v. In making the  findings  and  determination,  the  committee  shall
    20  consider  the  nature of any justice or abuse of administrative process,
    21  including but not limited to:  (A)  the  nature,  content,  language  or
    22  subject  matter  of  the request or the appeal; (B) the nature, content,
    23  language or subject matter  to  prior  or  contemporaneous  requests  or
    24  appeals  by  the person making the request or taking the appeal; and (C)
    25  the nature, content, language or subject  matter  of  other  verbal  and
    26  written  communications to any agency or any official of any agency from
    27  the person making the request or taking the appeal.
    28    vi. Notwithstanding any provision of this section to the contrary,  in
    29  the  case  of an appeal to the committee of a denial by a public agency,
    30  the committee may, upon motion of such agency, confirm the action of the
    31  agency and dismiss the appeal without a hearing if it finds, after exam-
    32  ining the notice of appeal and construing all allegations most favorably
    33  to the appellant, that (A) the agency has not violated this article  and
    34  article  seven of this chapter or (B) the agency has committed a techni-
    35  cal violation that constitutes a harmless error that does  not  infringe
    36  the appellant's rights.
    37    (g)  i.  If in the judgment of the committee circumstances so warrant,
    38  it may at any time after the filing of a notice of  appeal  endeavor  to
    39  resolve  the  appeal  by  any method of dispute resolution prescribed by
    40  rule of the committee including, but not limited to, mediation.
    41    ii. The terms of any mediation agreement may contain  such  provisions
    42  as  may  be agreed upon by the committee, the appellant and the respond-
    43  ent.
    44    iii. The members of the committee and its  staff  shall  not  publicly
    45  disclose what transpired in the course of mediation efforts.
    46    iv.  If  a  mediation  agreement  is entered into, the committee shall
    47  embody such agreement in an order and serve a copy of  such  order  upon
    48  all  parties  to the agreement. Violation of such an order may cause the
    49  imposition of civil penalties.
    50    (h) Any party aggrieved by the decision of said committee  may  appeal
    51  to the judiciary therefrom, the court may conduct an in camera review of
    52  the  original  or  a certified copy of the records which are at issue in
    53  the appeal but were not  included  in  the  record  of  the  committee's
    54  proceedings, admit the records into evidence and order the records to be
    55  sealed  or inspected on such terms as the court deems fair and appropri-
    56  ate, during the appeal. The committee shall  have  standing  to  defend,

        A. 1632                             5
     1  prosecute or otherwise participate in any appeal of any of its decisions
     2  and  to take an appeal from any judicial decision overturning or modify-
     3  ing a decision of the committee.    If  agreement  is  a  jurisdictional
     4  prerequisite  to  the  committee  taking  any such appeal, the committee
     5  shall be deemed to be aggrieved. Legal counsel employed or  retained  by
     6  said committee shall represent said committee in all such appeals and in
     7  any  other litigation affecting said committee.  Any appeal taken pursu-
     8  ant to this section shall be privileged in respect to its assignment for
     9  trial over all other actions except writs of habeas corpus  and  actions
    10  brought  by  or  on  behalf  of  the state, including information on the
    11  relation of private individuals. If the  court  finds  that  any  appeal
    12  taken  pursuant  to  this  section  is frivolous or taken solely for the
    13  purpose of delay, it shall order the party responsible therefor  to  pay
    14  to  the  party  injured  by  such  frivolous or dilatory appeal costs or
    15  attorney's fees of not more than one thousand dollars. Such order  shall
    16  be  in  addition  to any other remedy or disciplinary action required or
    17  permitted by statute or by rules of court.
    18    § 3. Paragraphs (b) and (c) of subdivision 4  of  section  89  of  the
    19  public  officers law, paragraph (b) as amended by chapter 22 of the laws
    20  of 2005 and paragraph (c) as amended by chapter 492 of the laws of 2006,
    21  are amended to read as follows:
    22    (b) Except as provided in subdivision five of this section,  a  person
    23  denied  access  to  a  record  in  an  appeal  determination  under  the
    24  provisions of paragraph (a) of this subdivision may [bring a  proceeding
    25  for review of such denial pursuant to article seventy-eight of the civil
    26  practice law and rules. In the event that access to any record is denied
    27  pursuant to the provisions of subdivision two of section eighty-seven of
    28  this  article, the agency involved shall have the burden of proving that
    29  such record falls within the provisions of such subdivision two. Failure
    30  by an agency to conform to the  provisions  of  paragraph  (a)  of  this
    31  subdivision shall constitute a denial.
    32    (c)  The  court  in  such a proceeding may assess, against such agency
    33  involved, reasonable attorney's fees and other litigation costs  reason-
    34  ably  incurred  by  such person in any case under the provisions of this
    35  section in which such person has substantially prevailed, when:
    36    i. the agency had no reasonable basis for denying access; or
    37    ii. the agency failed to respond to a request  or  appeal  within  the
    38  statutory  time]  appeal to the committee on open government pursuant to
    39  subdivision one of this section.
    40    § 4. Section 107 of the public officers law, as added by  chapter  511
    41  of  the laws of 1976, subdivision 1 as amended by chapter 44 of the laws
    42  of 2010 and subdivision 2 as amended by chapter 397 of the laws of  2008
    43  and  such  section  as renumbered by chapter 652 of the laws of 1983, is
    44  amended to read as follows:
    45    § 107. Enforcement. [1.] Any aggrieved person shall have  standing  to
    46  enforce  the  provisions  of  this  article against a public body by the
    47  commencement of [a proceeding pursuant to article seventy-eight  of  the
    48  civil  practice law and rules, or an action for declaratory judgment and
    49  injunctive relief. In any such action or proceeding, if a  court  deter-
    50  mines  that  a public body failed to comply with this article, the court
    51  shall have the power, in its  discretion,  upon  good  cause  shown,  to
    52  declare  that  the  public body violated this article and/or declare the
    53  action taken in relation to such violation void, in whole  or  in  part,
    54  without prejudice to reconsideration in compliance with this article. If
    55  the  court  determines that a public body has violated this article, the
    56  court may require the members of the public body  to  participate  in  a

        A. 1632                             6

     1  training  session  concerning  the  obligations  imposed by this article
     2  conducted by the staff of the committee on open government.
     3    An  unintentional  failure  to fully comply with the notice provisions
     4  required by this article shall not alone be grounds for invalidating any
     5  action taken at a meeting of a public body. The provisions of this arti-
     6  cle shall not affect the validity  of  the  authorization,  acquisition,
     7  execution or disposition of a bond issue or notes.
     8    2.  In  any  proceeding  brought  pursuant  to this section, costs and
     9  reasonable attorney fees may be awarded by the court, in its discretion,
    10  to the successful party. If a court determines that a vote was taken  in
    11  material  violation  of  this article, or that substantial deliberations
    12  relating thereto occurred in private prior to such vote, the court shall
    13  award costs and reasonable attorney's fees to the successful petitioner,
    14  unless there was a reasonable basis for a public body to believe that  a
    15  closed session could properly have been held.
    16    3.  The  statute of limitations in an article seventy-eight proceeding
    17  with respect to an action taken at executive session shall  commence  to
    18  run  from  the date the minutes of such executive session have been made
    19  available to the public] an appeal to the committee on  open  government
    20  pursuant to section eighty-nine of this chapter.
    21    §  5.  Paragraph  (a)  and  the  opening paragraph of paragraph (b) of
    22  subdivision 1, paragraph (c) of subdivision  3,  and  paragraph  (c)  of
    23  subdivision  4  of  section 87 of the public officers law, paragraph (a)
    24  and the opening paragraph of paragraph (b) of subdivision 1  as  amended
    25  by  chapter  80  of  the laws of 1983, paragraph (c) of subdivision 3 as
    26  amended by chapter 499 of the laws of 2008, and paragraph (c) of  subdi-
    27  vision  4  as  added  by chapter 102 of the laws of 2007, are amended to
    28  read as follows:
    29    (a) Within sixty days after the effective date of  this  article,  the
    30  governing body of each public corporation shall promulgate uniform rules
    31  and  regulations for all agencies in such public corporation pursuant to
    32  such general rules and regulations as may be promulgated by the  commit-
    33  tee  on  open government pursuant to section eighty-nine of this article
    34  in conformity with the provisions of this  article,  pertaining  to  the
    35  administration of this article.
    36    Each agency shall promulgate rules and regulations, in conformity with
    37  this  article  and applicable rules and regulations promulgated pursuant
    38  to the provisions of paragraph (a) of this subdivision, and pursuant  to
    39  such  general rules and regulations as may be promulgated by the commit-
    40  tee on open government  pursuant to section eighty-nine of this  article
    41  in  conformity  with  the  provisions of this article, pertaining to the
    42  availability of records and procedures to be  followed,  including,  but
    43  not limited to:
    44    (c)  a  reasonably  detailed  current  list  by  subject matter of all
    45  records in the possession of the agency, whether or not available  under
    46  this article. Each agency shall update its subject matter list annually,
    47  and  the date of the most recent update shall be conspicuously indicated
    48  on the list. Each state agency as defined in subdivision  four  of  this
    49  section  that  maintains  a  website  shall post its current list on its
    50  website and such posting shall be linked to the website of the committee
    51  on open government pursuant to section eighty-nine of this article.  Any
    52  such  agency  that does not maintain a website shall arrange to have its
    53  list posted on the website of the committee on open government  pursuant
    54  to section eighty-nine of this article.
    55    (c)  Each state agency that maintains a website shall post information
    56  related to this article  and  article  six-A  of  this  chapter  on  its

        A. 1632                             7
     1  website.  Such information shall include, at a minimum, contact informa-
     2  tion for the persons from whom records of the agency  may  be  obtained,
     3  the times and places such records are available for inspection and copy-
     4  ing,  and information on how to request records in person, by mail, and,
     5  if the agency accepts requests for records  electronically,  by  e-mail.
     6  This  posting  shall  be  linked to the website of the committee on open
     7  government pursuant to section eighty-nine of this article.
     8    § 6. This act shall take effect on the first of April next  succeeding
     9  the date on which it shall have become a law.
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