Establishes a joint commission on public transparency and sexual harassment to adopt, amend and rescind rules and regulations defining sexual harassment for state agencies, offices, and branches of government and develop recommendations for the uniform distribution of such definitions and policies, and to receive complaints and referrals alleging violations by certain state officials.
STATE OF NEW YORK
________________________________________________________________________
10113
IN ASSEMBLY
March 15, 2018
___________
Introduced by M. of A. ROZIC -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the public officers law, in relation to establishing a
joint commission on public transparency and sexual harassment
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public officers law is amended by adding a new section
2 75-b to read as follows:
3 § 75-b. Commission on public transparency and sexual harassment. 1.
4 When used in this section the following terms shall have the following
5 meanings:
6 (a) "statewide elected official" shall mean the governor, lieutenant
7 governor, comptroller, or attorney general;
8 (b) "state officer or employee" shall mean:
9 (i) heads of state departments and their deputies and assistants who
10 serve at the discretion of the statewide elected official; and
11 (ii) officers and employees of statewide elected officials who serve
12 at the discretion of the statewide elected official;
13 (c) "legislative employee" shall mean any officer or employee of the
14 legislature; and
15 (d) "legislative member" shall mean a senator or member of the assem-
16 bly.
17 2. There is hereby established within the department of state a
18 commission on public transparency and sexual harassment which shall
19 consist of eleven members and shall have and exercise the powers and the
20 duties set forth in this section with respect to statewide elected offi-
21 cials, state officers and employees, legislative employees, and legisla-
22 tive members. This section shall not be deemed to have revoked or
23 rescinded any regulations or advisory opinions issued by the legislative
24 ethics commission, the commission on public integrity, the state ethics
25 commission, or the state office for human rights in effect upon the
26 effective date of this section to the extent that such regulations or
27 opinions are not inconsistent with any law of this state, but such regu-
28 lations and opinions shall apply only to matters over which such commis-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14132-01-8
A. 10113 2
1 sions had jurisdiction at the time such regulations and opinions were
2 promulgated or issued. The commission shall undertake a comprehensive
3 review of the current sexual harassment policies in the legislature and
4 executive agencies. The commission shall, before February first, two
5 thousand nineteen, report to the governor and the legislature regarding
6 this review and recommendations for any regulatory or statutory guidance
7 for consistency and transparency.
8 3. The commission shall consist of eleven members of whom three shall
9 be appointed by the governor, four by the chief judge of the court of
10 appeals, and one each by the speaker of the assembly, the temporary
11 president of the senate, the minority leader of the senate, and the
12 minority leader of the assembly. Of the three members appointed by the
13 governor, no more than two shall be enrolled in the same political
14 party, and two shall be attorneys admitted to practice law in this
15 state. Of the four members appointed by the chief judge of the court of
16 appeals, no more than two shall be enrolled in the same political party,
17 two shall be attorneys licensed to practice law in this state, and two
18 shall not be attorneys. No member of the commission shall hold any
19 office in any political party. Members of the commission shall be
20 appointed based on their actual experience in the establishment of
21 institutional policies, sexual harassment claims, and legal matters
22 regarding sexual harassment issues, sex crimes, and reporting. Appoint-
23 ing authorities shall coordinate appointments to include, but not be
24 limited to, an attorney actually employed in the area of sexual harass-
25 ment litigation and similar legal matters who has demonstrated outstand-
26 ing service and contributions to this legal area, a human resources or
27 labor relations representative who has demonstrated actual service in
28 the establishment of effective sexual harassment policies in the work-
29 place, a member of law enforcement who has work experience in relation
30 to sex crimes and harassment, and a member of the judicial branch who
31 has had experience in the consideration of civil claims related to sexu-
32 al harassment and sex discrimination. In the event that a vacancy arises
33 with respect to a member of the commission first appointed pursuant to
34 this section by a legislative leader, the legislative leaders of the
35 same political party in the same house shall appoint a member to fill
36 such vacancy irrespective of whether that legislative leader's political
37 party is in the majority or minority. No individual shall be eligible
38 for appointment as a member of the commission who currently or within
39 the last three years is or has been a member of the New York state
40 legislature or has been a legislative employee, or a statewide officer
41 or elected official or a commissioner of an executive agency appointed
42 by the governor, or has held judicial office. Members of the commission
43 shall be residents of the state.
44 4. Members of the commission shall serve for terms of five years;
45 provided, however, that of the members first appointed by the governor,
46 one shall serve for one year, one shall serve for two years, and one
47 shall serve for three years, as designated by the governor; the members
48 first appointed by the temporary president of the senate and by the
49 speaker of the assembly shall serve for four years and the members first
50 appointed by the minority leaders of the senate and the assembly shall
51 serve for two years.
52 5. Members of the commission shall designate a chair from the member-
53 ship thereof for a term of two years or until his or her term expires,
54 whichever period is shorter. The chair or a member of the commission may
55 call a meeting.
A. 10113 3
1 6. Any vacancy occurring on the commission shall be filled within
2 thirty days of its occurrence in the same manner as the member whose
3 vacancy is being filled was appointed. A person appointed to fill a
4 vacancy occurring other than by expiration of a term of office shall be
5 appointed for the unexpired term of the member he or she succeeds.
6 7. Members of the commission may be removed by the appointing authori-
7 ty solely for substantial neglect of duty, gross misconduct in office,
8 violation of the confidentiality, inability to discharge the powers or
9 duties of office or a violation of this section, after written notice
10 and opportunity for a reply.
11 8. Members of the commission shall be reimbursed for all reasonable
12 expenses actually and necessarily incurred by him or her in the perform-
13 ance of his or her duties under this section.
14 9. Eight members shall constitute a quorum.
15 10. The commission shall:
16 (a) adopt, amend and rescind rules and regulations defining sexual
17 harassment for state agencies, offices, and branches of government and
18 develop recommendations for the uniform distribution of the definitions
19 and policies developed pursuant to this section;
20 (b) make available forms for complaints of sexual harassment and sex
21 discrimination involving statewide elected officials, state officers or
22 employees, legislative members and employees;
23 (c) review sexual harassment filing procedures in accordance with the
24 provisions of this section;
25 (d) receive complaints and referrals alleging violations of section
26 two hundred ninety-six of the executive law, or provisions of article
27 one hundred thirty of the penal law by a statewide elected official, a
28 state officer or employee, legislative employee or legislative member;
29 (e) immediately report any allegations that, if true, would constitute
30 a crime, to law enforcement for investigation;
31 (f) for all other matters the commission shall determine whether a
32 complaint is "founded" or "unfounded" and shall issue a recommendation,
33 in accordance with the confidentiality provisions contained in this
34 section and consistent with all other laws, including awards to crime
35 victims under article twenty-two of the executive law, to the appointing
36 authority as to the basis of the claims, recommendations for appropriate
37 resolution, and whether the commission approves of the use of public
38 monies, including funds of the legislature, to resolve specific claims
39 raised by the claimant. The recommendations of the commission shall be
40 fully and properly considered by the appointing authority but shall not
41 be binding. There shall be a rebuttable presumption assumed by the
42 commission that any statewide elected official, state officer or employ-
43 ee, or legislative member or employee who makes a good faith effort at
44 reporting or addressing sexual harassment shall not be held individually
45 liable under any claim or settlement;
46 (g) prepare an annual report to the governor and the legislature
47 summarizing the activities of the commission during the previous year
48 including, but not limited to, (i) an accounting of founded and
49 unfounded claims of sexual harassment organized by legislative branch
50 and executive office or agency, and (ii) where a matter has been
51 resolved, the date and nature of the disposition and any sanctions or
52 recommendations of the commission, subject to the confidentiality
53 requirements of this section;
54 (h) provide notification to any person who has filed a sexual harass-
55 ment claim of the determination of the commission's review as well as
A. 10113 4
1 the individual's right to appeal the commission's determination pursuant
2 to subdivision twelve of this section;
3 (i) appoint an executive director who shall act in accordance with the
4 policies of the commission. The appointment and removal of the executive
5 director shall be made solely by a vote of a majority of the commission,
6 which majority shall include at least one member appointed by the gover-
7 nor from each of the two major political parties, and one member
8 appointed by a legislative leader from each of the two major political
9 parties. The commission may delegate authority to the executive director
10 to act in the name of the commission between meetings of the commission
11 provided such delegation is in writing, the specific powers to be deleg-
12 ated are enumerated, and the commission shall not delegate any decisions
13 specified in this section that require a vote of the commission. The
14 executive director shall be appointed without regard to political affil-
15 iation and solely on the basis of fitness to perform the duties assigned
16 by this article, and shall be a qualified, independent professional. The
17 commission may remove the executive director for neglect of duty,
18 misconduct in office, violation of the confidentiality, or inability or
19 failure to discharge the powers or duties of office, including the fail-
20 ure to follow the lawful instructions of the commission;
21 (j) review and approve a staffing plan provided and prepared by the
22 executive director which shall contain, at a minimum, a list of the
23 various units and divisions as well as the number of positions in each
24 unit, titles and their duties, and salaries, as well as the various
25 qualifications for each position including, but not limited to, educa-
26 tion and prior experience for each position;
27 (k) appoint such other staff as are necessary to carry out its duties
28 under this section; and
29 (l) develop and administer an online sexual harassment orientation
30 course to be made available across the legislative and executive branch-
31 es for the purposes of a uniform and consistent policy across govern-
32 ment.
33 11. (a) When an individual becomes a member or staff of the commis-
34 sion, that individual shall be required to sign a non-disclosure state-
35 ment.
36 (b) Except as otherwise required or provided by law, testimony
37 received or any other information obtained by a commissioner or staff of
38 the commission shall not be disclosed by any such individual to any
39 person or entity outside the commission during the pendency of any
40 matter. Any confidential communication to any person or entity outside
41 the commission related to the matters before the commission may occur
42 only as authorized by the commission.
43 (c) The commission shall establish procedures necessary to prevent the
44 unauthorized disclosure of any information received by any member of the
45 commission or staff of the commission. Any breaches of confidentiality
46 shall be investigated by the inspector general and appropriate action
47 shall be taken. Any commissioner or person employed by the commission
48 who intentionally and without authorization releases confidential infor-
49 mation received by the commission shall be guilty of a class A misdemea-
50 nor.
51 12. The commission shall be deemed to be an agency of the state within
52 the meaning of article three of the state administrative procedure act
53 and shall adopt rules governing the conduct of adjudicatory proceedings
54 and appeals taken pursuant to a proceeding commenced under article
55 seventy-eight of the civil practice law and rules relating to the
56 assessment of penalties or findings authorized in this section. Such
A. 10113 5
1 rules, which shall not be subject to the approval requirements of the
2 state administrative procedure act, shall provide for due process proce-
3 dural mechanisms substantially similar to those set forth in article
4 three of the state administrative procedure act but such mechanisms need
5 not be identical in terms of scope.
6 § 2. This act shall take effect immediately and shall apply to settle-
7 ments entered into on and after such date.
