Commission on Ethics and Lobbying in Government - Adjudicatory Proceedings and Appeals Procedures for "Matters Under the Commission’s Jurisdiction"

Commission on Ethics and Lobbying in Government

I.D. No. ELG-45-22-00024-E
Filing No. 66; Filing Date: 2023-01-23; Effective Date: 2023-01-23

An Emergency Rule amending Part 941 of Title 19 NYCRR was published in the State Register on February 8, 2023 [Vol. XLV, Issue 6] based on a fin of the State Register.
Statutory authority: Executive Law, section 94(1)(a), (5)(a), (10) and (11)

Finding of necessity for emergency rule: Preservation of general welfare.

Specific reasons underlying the finding of necessity: The regulatory
amendments are necessary to conform to the Ethics Commission Reform
Act of 2022, L 2022, ch 56, § 1, Part QQ (“ECRA”) which established the
Commission on Ethics and Lobbying in Government (“Commission”) as
the agency responsible for administering, enforcing, and interpreting New
York State’s ethics and lobbying laws. The regulatory amendments are
necessary to facilitate the expeditious and efficient performance of the
Commission’s investigative and enforcement duties as set forth in Section
94 of the Executive Law, the Commission’s enabling statute.

The emergency rule is necessary for the general welfare to enforce eth-
ics laws that are critical matters of public interest. Therefore, upon Emer-
gency Adoption, these amendments will take effect immediately.
Subject: Adjudicatory proceedings and appeals procedures for matters
under the Commission’s jurisdiction.

Purpose: To conform Part 941 to the new Executive Law section 94
established by the Ethics Commission Reform Act of 2022.

Substance of emergency rule (Full text is posted at the following State
website: https://ethics.ny.gov/proposed-regulations-and-guidance): The
Emergency Re-Adoption amends 19 NYCRR Part 941 to conform the
regulations governing the investigative and enforcement adjudicatory pro-
cess to the new Section 94 of the Executive Law, as established by the
Ethics Commission Reform Act of 2022.

Key changes in the law, as set forth in these amendments, provide that a
Commission vote is no longer required to initiate an investigation. Instead,
Commission staff or the Commission can decide to elevate a preliminary
review into an investigation, and staff will present the matter to the Com-
mission for a vote after it has investigated a potential violation(s) of the
laws under the Commission’s jurisdiction. At that time, the Commission
may vote to proceed to hearing, return the matter to staff for further
investigation, close the matter or authorize resolution of the matter through
guidance.

The regulatory amendments further conform to and clarify statutory
changes relating to the various notices the Commission may send, which
include a Notice of Allegations, Notice of Hearing, and Notice of Closure,
Continued Investigation or Guidance, and the requirements of such
notices.

Furthermore, this rulemaking clarifies provisions relating to the conduct
of hearings and authority of hearing officers and the attorneys for the par-
ties to issue hearing subpoenas.

This notice is intended to serve only as a notice of emergency adoption.
This agency intends to adopt the provisions of this emergency rule as a
permanent rule, having previously submitted to the Department of State a
notice of proposed rule making, I.D. No. ELG-45-22-00024-EP, Issue of
November 9, 2022. The emergency rule will expire March 23, 2023.

Text of rule and any required statements and analyses may be obtained
from: Megan Mutolo, Commission on Ethics and Lobbying in Govern-
ment, 540 Broadway, Albany NY 12207, (518) 408-3976, email:
megan.mutolo@ethics.ny.gov

Regulatory Impact Statement

1. Statutory Authority: Executive Law § 94(1)(a) provides the Commis-
sion on Ethics and Lobbying in Government (“Commission”) with the
responsibility to administer, enforce and interpret New York State’s ethics
and lobbying laws, and Subsection 94(5)(a)(i) and (ii) authorize the Com-
mission to adopt, amend and rescind any rules and regulations pertaining
to the statutes within its jurisdiction and to adopt, amend and rescind any
procedures of the Commission, including procedures for investigations
and enforcement. Section 94(10) further authorizes the Commission to
adopt rules governing the conduct of adjudicatory proceedings and
appeals,. In addition, Part 941 sets forth rules for adjudicatory proceedings
and appeals relating to potential violations of the laws that fall within the
Commission’s jurisdiction, including investigatory matters conducted pur-
suant to and in accordance with Executive Law § 94(10) and (11).

2. Legislative Objectives: To set forth procedures regarding the conduct
of preliminary reviews and investigations in conjunction with adjudica-
tory proceedings and appeals for matters arising under the Commission’s
jurisdiction, as set forth in Section 94 of the Executive Law.

3. Needs and Benefits: This Emergency Re-Adoption amends 19
NYCRR Part 941 to conform to new Section 94 of the Executive Law,
established by the Ethics Commission Reform Act of 2022, relating to the
Commission’s investigative and enforcement process.

4. Costs:

a. Costs to regulated parties for implementation and compliance:
Minimal.

b. Costs to the agency, State and local governments for the implementa-
tion and continuation of the rule: No costs to such entities.

c. Cost information is based on the fact that there will be minimal costs
to regulated parties and state and local government for training staff on
changes to the requirements. The cost to the agency is based on the
estimated slight increase in staff resources to implement the regulations.

5. Local Government Mandates: 

The Emergency Re-Adoption and Proposed Rule does not impose new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This regulation may require the preparation of additional
forms or paperwork. Such additional paperwork is expected to be minimal.

7. Duplication: This regulation does not duplicate any existing federal,
state or local regulations.

8. Alternatives: Section 94(10)(o) of the Executive law imposes an af-
firmative duty on the Commission to adopt rules governing the conduct of
adjudicatory proceedings and appeals. Therefore, there is no alternative to
amending the Commission’s existing regulation if the Commission
changes its procedures.

9. Federal Standards: This regulation does not exceed any minimum
standards of the federal government with regard to a similar subject area.

10. Compliance Schedule: Compliance with the emergency regulation
will take effect on the date it is filed with the Department of State. The
Proposed Rulemaking will take effect upon adoption.

 

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Govern-
ments is not submitted with this Notice of Emergency Re-Adoption
because the rulemaking will not impose any adverse economic impact on
small businesses or local governments, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of these
entities for compliance purposes. The Commission on Ethics and Lobby-
ing in Government makes this finding based on the fact that the rule imple-
ments current law and, therefore, imposes no new requirements on such
entities.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this Notice of
Emergency Re-Adoption because the rulemaking will not impose any
adverse economic impact on rural areas, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of rural
areas. The Commission on Ethics and Lobbying in Government makes
this finding based on the fact that the rule implements current law and,
therefore, imposes no new requirements on such entities. Rural areas are
not affected.

Job Impact Statement

A Job Impact Statement is not submitted with this Notice of Emergency
Re-Adoption because the proposed rulemaking will have limited, if any,
impact on jobs or employment opportunities. This regulation implements
current law and, therefore, imposes no new requirements. This regulation
does not relate to job or employment opportunities.

Assessment of Public Comment

The agency received no public comment since publication of the last as-
sessment of public comment.

 

Removing a tenured State or municipal employee alleged to have abandonment the position from service

New York State Civil Service Rule 4 NYCRR 5.3(d), since repealed, permitted the appointing authority of a State department or agency employee to terminate a tenured employee in the Classified Service absent for a period of ten or more days without an explanation by deeming the employee to have resigned from his or her position. Many local commissions had adopted a similar rule or regulation. In Bernstein v Industrial Commissioner, 59 AD2d 678, the Appellate Division held that so terminating such a tenured employee under color of 4 NYCRR 5.3(d) violated the employee's right to administrative due process. 

Notwithstanding the Bernstein decision, such a provision has survived in collective bargaining agreements negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law", with respect to tenured employees in the Classified Service. For example, in Schacht v City of New York, 39 NY2d 28, the Court of Appeals noted that the relevant collective bargaining agreement expressly provided that the unauthorized absence of a tenured employee in the Classified Service for 10 consecutive workdays could be deemed to constitute a resignation by the appointing authority.

In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a tenured teacher* challenged a Board of Education’s resolution terminating her from her position based on its finding that she had abandoned her position. Tracking Bernstein, the Appellate Division the court explained that the burden of proving that the educator had abandoned her tenured teaching position was upon the appointing authority and must be supported  "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, opined the court, a tenured teacher may be terminated only in accordance with the disciplinary procedures set out in §3020-a of the Education Law.

* Teachers serve in positions in the Unclassified Service.

The finding of an unwarranted invasion of privacy an exception to disclosure of medical records pursuant to New York State's Freedom of Information Law

In this appeal the Appellate Division held that Supreme Court had properly determined that an exception to New York State's Freedom of Information Law [FOIL] disclosure requirements for "an unwarranted invasion of privacy", applied to the medical records of Petitioner's murder victim, citing Public Officers Law §87[2][b] and Newton v District Attorney of Bronx County, 186 AD2d 57,

In addition, the Appellate Division held that "Autopsy records concerning the Petitioner's victim were also exempt from disclosure," citing Public Officers Law §87[2][a]; the New York City Charter §557[g]; and Mitchell v Borakove, 225 AD2d 435, [appeal dismissed 88 NY2d 919.

Addressing the Respondent's denial of access to graphic photographs of the victim of the murder pursuant to Public Officers Law §87(2)(b), the Appellate Division opined that Petitioner "failed to articulate any public interest in disclosure of these photographs which would require the court to balance the public's interest in disclosure against the victim and her family's privacy rights", citing Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, and Matter of Edwards v New York State Police, 44 AD3d 1216.

Click HERE to access the opinion of the Appellate Division posted on the Internet.

Retired county police officer alleged to have taken unlawful pension benefits from the New York State and Local Retirement System

On February 7, 2023, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney David J. Clegg announced the indictment* of a former Ulster County BOCES criminal justice instructor, a retired Westchester County Police Officer. The retired police officer allegedly stole over $163,000 from the New York State and Local Retirement System (NYSLRS) by taking unlawful pension payments and forging a required certificate purportedly issued by the State Education Department (SED).

“The defendant allegedly submitted forged documents to scam the New York state retirement system,” DiNapoli said. “He will now face the consequences of his actions. Safeguarding the New York State and Local Retirement System and maintaining its integrity are priorities for my office. I thank District Attorney Clegg, the State Education Department and the State Police for their partnership in holding accountable those who think they can swindle the pension system.”

After retiring from the Westchester Police Department in 2005, Anthony Sciacca was hired as an instructor at Ulster County BOCES teaching criminal justice and earning a salary of over $70,000. As a retiree under the age of 65 at the time, without a waiver, Sciacca was not allowed to earn more than $30,000 annually in other New York State public employment while continuing to receive his full NYSLRS pension benefit.**

The joint investigation revealed that while Sciacca had a lawful waiver from Sept.1, 2005 through June 30, 2011, he did not have a lawful waiver for the next eight years. However, he continued to earn his Ulster County BOCES public salary in excess of $70,000 on top of receiving his monthly NYSLRS pension payments.

When the NYSLRS discovered that Sciacca’s income was over the limit and that it had no waivers on file, Sciacca’s pension was suspended, and he was asked to provide copies of any waivers he had been granted. In response to NYSLRS’ inquiry, Sciacca allegedly supplied the retirement system with falsified documents. These documents stated that his waivers had been approved.

The investigation revealed that these documents were fraudulent, and that no such waivers had been obtained. Through his scheme, Sciacca was able to collect over $163,000 in NYSLRS pension payments to which he was not entitled.

DiNapoli’s investigation was spurred by SED’s examination of Sciacca’s credentials. During this review, SED also discovered that Sciacca had allegedly forged a document to show that he had received a “Security Operations, Professional Certificate,” which was a requirement of his continued BOCES employment. 

Sciacca was arraigned in Ulster County Criminal Court before Judge Bryan E. Rounds on Feb. 6, 2023, and is due back in court on Feb. 22, 2023. He was charged with Scheme to Defraud, Grand Larceny, Defrauding the Government, four counts of Forgery, two counts of Offering a False Instrument for Filing, two counts of Falsifying a Business Record and Retirement Fraud. Ulster County Assistant District Attorney Felicia S. Raphael, chief of the Financial & Cyber Crimes Bureau, is prosecuting the case.

The charges add to those first brought against him when he was arrested on July 14, 2022, which then included Grand Larceny, three counts of Forgery, three counts of Filing a False Instrument, three counts of Falsifying Business Records and one count of retirement fraud.

* The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

** See, generally, Article 7 of the Retirement and Social Security Law, which addresses the reemployment of retired public employees of the State of New York in the public service in the State of New York.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Employer's motion to confirm an arbitration award granted

The Appellate Division affirmed Supreme Court's denial of the Respondent union's cross motion to vacate the arbitration award, explaining courts lacks the authority, to "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator [, even if] it believes its interpretation would be the better one"*, citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL—CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Noting the ruling in Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, [cert.  dismissed 548 US 940], the Appellate Division said "It is well settled that judicial review of arbitration awards is extremely limited", although "CPLR 7511(b)(1)(iii) permits vacatur of an award where ... the arbitrator exceeds his or her power."

The Appellate Division then observed that the arbitrator exceeds his or her power where his or her award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Barone v Haskins, 193 AD3d 1388, appeal dismissed 37 NY3d 1032, lv denied 37 NY3d 919 [see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332].

The Appellate Division opined that in the instant matter "the arbitrator merely interpreted and applied the provisions of the relevant collective bargaining agreement (CBA), as she had the authority to do," citing Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408, and that the court was "powerless to set aside that interpretation even if we disagree with it...."

* The Appellate Division indicated that the plain language of the Collective Bargaining Agreement [CBA] supported the arbitrator's interpretation of the CBA.

Click HERE to access the Appellate Division's decision posted on the Internet.