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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
04/18/2018amend and recommit to governmental operations
04/18/2018print number 1632a
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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,
          ZEBROWSKI, RAIA, PICHARDO, CAHILL -- Multi-Sponsored by --  M.  of  A.
          CROUCH,  LAWRENCE, SIMON -- read once and referred to the Committee on
          Governmental Operations -- recommitted to  the  Committee  on  Govern-
          mental  Operations  in  accordance  with  Assembly  Rule  3, sec. 2 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
        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

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

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

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

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

        A. 1632--A                          5
     1  sealed  or inspected on such terms as the court deems fair and appropri-
     2  ate, during the appeal. The committee shall  have  standing  to  defend,
     3  prosecute or otherwise participate in any appeal of any of its decisions
     4  and  to take an appeal from any judicial decision overturning or modify-
     5  ing a decision of the committee.    If  agreement  is  a  jurisdictional
     6  prerequisite  to  the  committee  taking  any such appeal, the committee
     7  shall be deemed to be aggrieved. Legal counsel employed or  retained  by
     8  said committee shall represent said committee in all such appeals and in
     9  any  other litigation affecting said committee.  Any appeal taken pursu-
    10  ant to this section shall be privileged in respect to its assignment for
    11  trial over all other actions except writs of habeas corpus  and  actions
    12  brought  by  or  on  behalf  of  the state, including information on the
    13  relation of private individuals. If the  court  finds  that  any  appeal
    14  taken  pursuant  to  this  section  is frivolous or taken solely for the
    15  purpose of delay, it shall order the party responsible therefor  to  pay
    16  to  the  party  injured  by  such  frivolous or dilatory appeal costs or
    17  attorney's fees of not more than one thousand dollars. Such order  shall
    18  be  in  addition  to any other remedy or disciplinary action required or
    19  permitted by statute or by rules of court.
    20    § 3. Paragraphs (b) and (c) of subdivision 4  of  section  89  of  the
    21  public  officers law, paragraph (b) as amended by chapter 22 of the laws
    22  of 2005 and paragraph (c) as amended by chapter 453 of the laws of 2017,
    23  are amended to read as follows:
    24    (b) Except as provided in subdivision five of this section,  a  person
    25  denied  access  to  a  record  in  an  appeal  determination  under  the
    26  provisions of paragraph (a) of this subdivision may [bring a  proceeding
    27  for review of such denial pursuant to article seventy-eight of the civil
    28  practice law and rules. In the event that access to any record is denied
    29  pursuant to the provisions of subdivision two of section eighty-seven of
    30  this  article, the agency involved shall have the burden of proving that
    31  such record falls within the provisions of such subdivision two. Failure
    32  by an agency to conform to the  provisions  of  paragraph  (a)  of  this
    33  subdivision shall constitute a denial.
    34    (c) The court in such a proceeding: (i) may assess, against such agen-
    35  cy  involved,  reasonable  attorney's  fees  and  other litigation costs
    36  reasonably incurred by such person in any case under the  provisions  of
    37  this  section in which such person has substantially prevailed, and when
    38  the agency failed to respond to a request or appeal within the statutory
    39  time; and (ii) shall assess, against such  agency  involved,  reasonable
    40  attorney's  fees  and other litigation costs reasonably incurred by such
    41  person in any case under the provisions of this section  in  which  such
    42  person  has  substantially prevailed and the court finds that the agency
    43  had no reasonable basis for denying access] appeal to the  committee  on
    44  open government pursuant to subdivision one of this section.
    45    §  4.  Section 107 of the public officers law, as added by chapter 511
    46  of the laws of 1976, subdivision 1 as amended by chapter 44 of the  laws
    47  of  2010 and subdivision 2 as amended by chapter 397 of the laws of 2008
    48  and such section as renumbered by chapter 652 of the laws  of  1983,  is
    49  amended to read as follows:
    50    §  107.  Enforcement. [1.] Any aggrieved person shall have standing to
    51  enforce the provisions of this article against  a  public  body  by  the
    52  commencement  of  [a proceeding pursuant to article seventy-eight of the
    53  civil practice law and rules, or an action for declaratory judgment  and
    54  injunctive  relief.  In any such action or proceeding, if a court deter-
    55  mines that a public body failed to comply with this article,  the  court
    56  shall  have  the  power,  in  its  discretion, upon good cause shown, to

        A. 1632--A                          6

     1  declare that the public body violated this article  and/or  declare  the
     2  action  taken  in  relation to such violation void, in whole or in part,
     3  without prejudice to reconsideration in compliance with this article. If
     4  the  court  determines that a public body has violated this article, the
     5  court may require the members of the public body  to  participate  in  a
     6  training  session  concerning  the  obligations  imposed by this article
     7  conducted by the staff of the committee on open government.
     8    An unintentional failure to fully comply with  the  notice  provisions
     9  required by this article shall not alone be grounds for invalidating any
    10  action taken at a meeting of a public body. The provisions of this arti-
    11  cle  shall  not  affect  the validity of the authorization, acquisition,
    12  execution or disposition of a bond issue or notes.
    13    2. In any proceeding brought  pursuant  to  this  section,  costs  and
    14  reasonable attorney fees may be awarded by the court, in its discretion,
    15  to  the successful party. If a court determines that a vote was taken in
    16  material violation of this article, or  that  substantial  deliberations
    17  relating thereto occurred in private prior to such vote, the court shall
    18  award costs and reasonable attorney's fees to the successful petitioner,
    19  unless  there was a reasonable basis for a public body to believe that a
    20  closed session could properly have been held.
    21    3. The statute of limitations in an article  seventy-eight  proceeding
    22  with  respect  to an action taken at executive session shall commence to
    23  run from the date the minutes of such executive session have  been  made
    24  available  to  the public] an appeal to the committee on open government
    25  pursuant to section eighty-nine of this chapter.
    26    § 5. Paragraph (a) and the  opening  paragraph  of  paragraph  (b)  of
    27  subdivision  1,  paragraph  (c)  of  subdivision 3, and paragraph (c) of
    28  subdivision 4 of section 87 of the public officers  law,  paragraph  (a)
    29  and  the  opening paragraph of paragraph (b) of subdivision 1 as amended
    30  by chapter 80 of the laws of 1983, paragraph (c)  of  subdivision  3  as
    31  amended  by chapter 499 of the laws of 2008, and paragraph (c) of subdi-
    32  vision 4 as added by chapter 102 of the laws of  2007,  are  amended  to
    33  read as follows:
    34    (a)  Within  sixty  days after the effective date of this article, the
    35  governing body of each public corporation shall promulgate uniform rules
    36  and regulations for all agencies in such public corporation pursuant  to
    37  such  general rules and regulations as may be promulgated by the commit-
    38  tee on open government pursuant to section eighty-nine of  this  article
    39  in  conformity  with  the  provisions of this article, pertaining to the
    40  administration of this article.
    41    Each agency shall promulgate rules and regulations, in conformity with
    42  this article and applicable rules and regulations  promulgated  pursuant
    43  to  the provisions of paragraph (a) of this subdivision, and pursuant to
    44  such general rules and regulations as may be promulgated by the  commit-
    45  tee  on open government  pursuant to section eighty-nine of this article
    46  in conformity with the provisions of this  article,  pertaining  to  the
    47  availability  of  records  and procedures to be followed, including, but
    48  not limited to:
    49    (c) a reasonably detailed  current  list  by  subject  matter  of  all
    50  records  in the possession of the agency, whether or not available under
    51  this article. Each agency shall update its subject matter list annually,
    52  and the date of the most recent update shall be conspicuously  indicated
    53  on  the  list.  Each state agency as defined in subdivision four of this
    54  section that maintains a website shall post  its  current  list  on  its
    55  website and such posting shall be linked to the website of the committee
    56  on  open government pursuant to section eighty-nine of this article. Any

        A. 1632--A                          7
     1  such agency that does not maintain a website shall arrange to  have  its
     2  list  posted on the website of the committee on open government pursuant
     3  to section eighty-nine of this article.
     4    (c)  Each state agency that maintains a website shall post information
     5  related to this article  and  article  six-A  of  this  chapter  on  its
     6  website.  Such information shall include, at a minimum, contact informa-
     7  tion for the persons from whom records of the agency  may  be  obtained,
     8  the times and places such records are available for inspection and copy-
     9  ing,  and information on how to request records in person, by mail, and,
    10  if the agency accepts requests for records  electronically,  by  e-mail.
    11  This  posting  shall  be  linked to the website of the committee on open
    12  government pursuant to section eighty-nine of this article.
    13    § 6. This act shall take effect on the first of April next  succeeding
    14  the date on which it shall have become a law.
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