Wednesday, April 10, 2013

New York State Governor Cuomo proposes new legislation addressing public corruption crimes


New York State Governor Cuomo proposes new legislation addressing public corruption crimes

The new Act, designated the Public Trust Act, would establish a new class of public corruption crimes, tough new penalties on offenders, require public officials to report bribery

Calling the current State laws defining public corruption in New York obsolete and far less effective than federal statutes for prosecuting individuals who commit public corruption crimes, the Governor said that the Public Trust Act would establish a new class of public corruption crimes and expand the current definitions of public corruption offenses to enable prosecutors to hold accountable those who violate public trust. 

The Governor said that the proposed new law would also impose tougher jail sentences on individuals that misuse public funds and permanently bar those convicted of public corruption offenses from holding any elected or civil office, lobbying, contracting, receiving state funding, or doing business with the state, directly or through an organization.

The proposed new class of Public Corruption Crimes would include the following crimes: bribing a public servant, corrupting the government, and failing to report a bribe or a bribe attempt.

I. New Crimes for Violating Public Trust

Bribery of a Public Servant: The proposed legislation would expand the current state bribery statute to give prosecutors additional tools to convict offenders. Under current state law, a prosecutor has to prove that there was a corrupt agreement or understanding between the person paying the bribe and the person receiving the bribe. This is not required under federal law and is an unduly heavy burden. Under the new Public Servant Bribery provision, a prosecutor would only have to prove that the person paying the bribe “intended” to influence the public official or that the person receiving it intended to be so influenced, bringing state law in line with the federal standard. Bribery penalties would be increased, lowering the threshold for a Class C felony from $10,000 to $5,000, the amount of money used to bribe, and to $10,000 and above for a Class B felony.

Corrupting the Government: The proposed legislation would hold accountable anyone – whether or not they are a public official – who is found to have engaged in defrauding the government. The proposed legislation also enhances penalties for all offenders convicted of defrauding the government through the crime of Corrupting the Government. 

Under the proposed new law, anybody, whether acting in concert with a public servant or not, who engages in a course of conduct to defraud a state or local government would be guilty of a crime ranging from the fourth degree (class E felony) to the first degree (class B felony), depending on the amount defrauded.

Failure to Report Public Corruption: The proposed legislation would for the first time make it a misdemeanor for any public official or employee to fail to report bribery.

II. Tough New Penalties for Misuse of Taxpayer Dollars

New Penalties for Public Corruption: The proposed legislation would create new penalties for offenses such as any kind of fraud, theft, or money laundering offense involving state or local government property. This means an offender would face a higher penalty if the act was committed against the government. The sentence would be one level higher than for the underlying offense. For example, if the underlying offense (e.g. larceny) was a class D felony, then the involvement of state or local government property would increase the sentence to the class C felony. The specific existing crimes affected are those defined by the following provisions of the Penal Law:

· petit larceny
· grand larceny
· unauthorized use of a computer
· unauthorized use of a vehicle
· money laundering

Increased Penalties for Official Misconduct: Under current law, Official Misconduct is a misdemeanor. The proposed legislation creates three new degrees of Official Misconduct: a Class E felony (maximum penalty 4 years), Class D felony (maximum penalty 7 years) and Class C felony (maximum penalty 15 years).

III. Lifetime Ban from Government

The new class of felony public corruption crimes would impose additional penalties, apart from jail sentences and criminal fines, including:

· Permanently barring all those convicted of public corruption felonies from holding any elected or civil office, serving as a registered lobbyist, or doing business with the state, including through any organization they run

· Barring individuals from bidding on or obtaining state contracts

· Barring individuals from receiving numerous tax credits

· Prohibiting individuals from serving as a Medicaid, employment insurance or workers’ compensation provider

· Gives Judges the option of requiring payment of up to three times the amount of the profit or gain made from an illegal transaction

· Creating an automatic set off for any fines or other penalties imposed against any State tax refund

IV. Fixing the Statute of Limitations: 

Under the proposed legislation, the same tolling or suspension of the statute of limitations of five years after leaving office will apply to both public servants and those persons acting in concert with a public servant to commit misconduct in public office. Currently, the statute of limitations for public officials is in effect for five years after they have left office, but not those acting in concert who are not themselves public officials.

V. Additional Tools for Prosecutors: 

For the first time, a witness who testifies before a grand jury investigating fraud on the government or official misconduct will receive only “use” immunity, not “transactional” immunity for statements that witness may give under oath. Under the proposed legislation a witness, who may or may not also be part of the criminal transaction under investigation, may still be prosecuted for his or her role if the prosecutor develops evidence other than, and independent of, the evidence given by the witness. This important tool in fighting crime conforms New York practice with federal practice in this area.


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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