JPE-32-14-00002-E Public Service Announcement Regulations

8/13/14 N.Y. St. Reg. JPE-32-14-00002-E

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 32

August 13, 2014

RULE MAKING ACTIVITIES

NEW YORK STATE JOINT COMMISSION ON PUBLIC ETHICS

EMERGENCY RULE MAKING

 

I.D No. JPE-32-14-00002-E

Filing No. 662

Filing Date. Jul. 23, 2014

Effective Date. Jul. 23, 2014

Public Service Announcement Regulations

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Part 940 to Title 19 NYCRR.

Statutory authority:

Executive Law, section 94(9)(c), (d-1); Legislative Law, art. 1-A; and Public Officers Law, sections 73(5) and 74

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The Public Integrity Reform Act of 2011 (“PIRA”) was enacted in August 2011 and included a provision that JCOPE shall “[a]dopt, amend and rescind rules and regulations defining the permissible use of and promoting the proper use of public service announcements.” See Executive Law § 94(9)(d-1).

Part 940 prohibits the publishing of public service announcements featuring certain State officers and employees (“Covered Officials”) during the 90-day period preceding any statewide election. The purpose of this rule is to prevent the unwarranted use of one’s State position for a personal benefit, such as increased public exposure close to a statewide election.

JCOPE promulgated these rules in accordance with the State Administrative Procedure Act, as the Notice of Proposed Rulemaking was published in the State Register on May 14, 2014. As a result of public comments received, technical, non-substantive revisions to the rules have been incorporated into the attached version of Part 940. The earliest possible date that these rules can be finally adopted is when the Notice of Adoption will be published in the August 13, 2014 issue of the State Register.

JCOPE determined that it is necessary for the preservation of the general welfare that this rule be effective prior to August 13, 2014. Therefore, as authorized by § 202(6) of the State Administrative Procedure Act, these new rules should be adopted on an emergency basis making Part 940 immediately effective upon filing with the Department of State.

As previously stated, Part 940 prohibits the publishing of public service announcements featuring Covered Officials during the 90-day period preceding any statewide election. This emergency adoption is necessary to apply these rules to the upcoming primary election on September 9, 2014 and to the general election on November 4, 2014. By immediately setting forth when Covered Officials are restricted from appearing in public service announcements, this emergency rule will serve the public interest in the upcoming election cycle.

In light of these concerns, JCOPE seeks to make this rule effective on an emergency basis until the rule becomes final, which will occur with the issuance of the State Register on August 13, 2014.

Subject:

Public service announcement regulations.

Purpose:

To adopt regulations defining the permissible use of, and promoting the proper use of, public service announcements.

Text of emergency rule:

Chapter XX. Joint Commission On Public Ethics

Part 940 Public Service Announcements With Covered Officials: Permissible And Proper Usage

940.1 Purpose.

Pursuant to Executive Law § 94(9)(d-1), the Joint Commission on Public Ethics shall adopt, amend, and rescind rules and regulations “defining the permissible use of and promoting the proper use of public service announcements.” The purpose of these regulations is to: (a) provide guidance as to what constitutes, for the purposes of the Public Officers Law, a public service announcement; (b) clarify that an appearance in a public service announcement does not ordinarily constitute a “gift” under Public Officers Law § 73(5), Legislative Law Article 1-A, Title 19 NYCRR Part 933, and Title 19 NYCRR Part 934; and (c) place limitations on when certain individuals – referred to as “Covered Officials” – who are also Candidates may appear in public service announcements.

Public service announcements in which no Covered Official appears, is named, or is otherwise identified or referenced are not covered by these regulations.

940.2 Definitions.

(a) Appear shall mean to appear (by likeness, picture, or voice), be named, or otherwise identified or referenced.

(b) Candidate shall have the same meaning as that term is defined in New York Election Law § 14-100.

(c) Covered Official shall mean an individual who holds any one of the following positions or offices: Governor, Lieutenant Governor, Comptroller, or Attorney General of the State of New York; any Member of the New York State Legislature; or any head and/or executive director of a State Agency.

(d) Party shall have the same meaning as that term is defined in New York Election Law § 1-104(3).

(e) Party Committee shall have the same meaning as that term is defined in New York Election Law § 14-100.

(f) Publish or Publishing shall mean publication, dissemination, broadcast, or on-line posting through any print or electronic media, including television, radio, and the Internet.

(g) State Agency shall mean any civil department; State department; any public benefit corporation, public authority, or commission at least one of whose members is appointed by the Governor. State Agency shall also include the State University of New York or the City University of New York, including all their constituent units except (1) community colleges of the State University of New York and (2) the independent institutions operating statutory or contract colleges on behalf of the State.

940.3 Public Service Announcements.

(a) A Public Service Announcement is a communication that meets all of the following criteria:

(1) The communication (i) is designed to promote programs, activities, or services of nonprofit organizations or federal, state or local governments; or (ii) imparts information generally regarded as serving the public interest;

(2) The communication is sponsored or paid for by (i) a person or (ii) an organization or entity with a mission or history that includes providing outreach and public service announcements to the community;

(3) The communication is subject to the public service announcement policies, if any, of the entity publishing the communication;

(4) The communication does not advertise a commercial product or service;

(5) The communication is not paid for or controlled by a Covered Official who is a Candidate and who Appears in the communication, or his or her Party or Party Committee, or any organization affiliated with the Covered Official or his or her Party or Party Committee;

(6) The communication does not constitute “lobbying” or “lobbying activities,” as those terms are defined in Legislative Law Article 1-A;

(7) The communication (i) does not promote or support a Covered Official who is a Candidate or criticize or oppose an individual running against such Covered Official; (ii) could not reasonably be interpreted to be an appeal to vote for such Covered Official or to vote against an individual running opposed to such Covered Official; (iii) does not include any personal, political or campaign information, and (iv) does not link or refer to any websites created or operated by a campaign or any campaign-related entity, including a campaign committee, Party, or Party Committee; and

(8) The communication is of primary interest to the general public or a segment of the general public.

(b) Examples of Public Service Announcements include, but are not limited to, communications regarding nonprofit or governmental outreach or awareness activities such as: breast cancer screening; heart disease prevention; domestic violence awareness and prevention; energy conservation; organ donation; emergency or other disaster relief; programs designed to encourage reading; job training and job fairs; and fund drives for charitable activities.

(c) The following is a non-exhaustive list of communications that are not regulated or otherwise restricted by this Part:

(1) News, Editorials, or Opinions in which a Covered Official Appears that are Published in a News Medium that is not controlled by the Covered Official or his or her Party or Party Committee;

(i) “News Medium” means an entity that regularly Publishes news to either the public-at-large or to subscribers.

(ii) “News” means information that is about current events or that would be of current interest to the public and that, through the use of editorial skills, is turned into a distinct work that is Published to an audience.

(iii) “Editorial” means a communication that provides an opinion of the news medium that is Publishing the communication.

(iv) “Opinion” means a communication, including but not limited to, a column, a letter to the editor, or blog or comment on a blog, expressing a viewpoint and is authored by an individual or entity other than the news medium that is Publishing the communication.

(2) State Agency websites; official websites of, and communications from, Members of the New York State Legislature;

(3) A Covered Official’s personal communications, including but not limited to, letters, emails, and postings on social media pages.

940.4 Public Service Announcements Excluded as Gifts Under Parts 933 and 934.

Notwithstanding any provision of Public Officers Law § 73(5), Legislative Law Article 1-A, Part 933, and Part 934, paying for the production or Publishing of a Public Service Announcement does not constitute a “gift” as that term is defined or otherwise used in Public Officers Law § 73(5), Legislative Law Article 1-A, Part 933, and Part 934.

940.5 Appearance By a Covered Official in a Public Service Announcement in the Ninety Days Prior to an Election.

(a) Notwithstanding any other provision of this Part, a determination made pursuant to the provisions of Executive Law §§ 94(13), (14) that a Covered Official knowingly and intentionally Appeared in a Public Service Announcement that, with the knowledge that such Public Service Announcement would be Published in the ninety calendar days prior to any election in which the Covered Official was a Candidate, shall be a violation of Public Officers Law § 74(3)(d), in addition to any other applicable provisions, and subject the Covered Official to the penalties contained therein.

(b) An Appearance as described in Part 940.5(a) shall not be a violation of Public Officers Law § 74 when the Appearance occurs during a declared state of emergency where the Public Service Announcement relates to such emergency.

This notice is intended

to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires August 13, 2014.

Text of rule and any required statements and analyses may be obtained from:

Joanna Weiss, Associate Counsel, Joint Commission on Public Ethics, 540 Broadway, Albany, NY 12207, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory authority: Executive Law § 94(9)(d-1) directs the Joint Commission on Public Ethics (“JCOPE”) to promulgate regulations relating to public service announcements, and section 94(9)(c) authorizes JCOPE to adopt, amend, and rescind rules and regulations to govern JCOPE procedures. Public Officers Law § 73(5) establishes the restrictions on soliciting, accepting or receiving gifts that apply to certain individuals affiliated with the State, including Statewide elected officials, State officers, employees, members of the Legislature, and Legislative employees. (Public Officers Law § 73(5) utilizes the definition of “Gift” in Legislative Law Article 1-A, § 1-c(j).) Public Officers Law § 74 contains the Code of Ethics by which all State officers and employees must abide.

2. Legislative objectives: Currently, New York State does not provide specific guidance to State employees and Legislative Members and employees who appear in public service announcements. By clarifying the circumstances in which a State employee or officer’s appearance in a public service announcement is appropriate, the regulations promote the proper use of these announcements.

3. Needs and benefits: The proposed rulemaking is necessary to regulate and clarify that, ordinarily, the appearance of a State officer or employee or Legislative Member or employee in a Public Service Announcement (as that term is defined in the regulations) does not constitute a “Gift” to that individual under the Public Officers Law, the Legislative Law, or 19 NYCRR Parts 933 and 934. The regulations also provide that the appearance in a Public Service Announcement by a Member of the Legislature or certain State officers and employees who are candidates for State public office may, in certain circumstances, constitute a violation of Public Officers Law § 74. Thus, the regulations promote Public Service Announcements, while discouraging their use as campaign tools for elective office. The regulations provide clear guidance to questions about what constitutes a Public Service Announcement, who is covered by these regulations, and what requirements apply to these individuals in connection with their appearance in Public Service Announcements.

Part 940.1 provides the purpose and effect of the regulations.

Part 940.2 defines key terms in the regulations. In particular Part 940.2(c) defines a “Covered Official” as an individual who holds any one of the following positions or offices: Governor, Lieutenant Governor, Comptroller, or Attorney General of the State of New York; any elected member of the New York State Legislature; or any head and/or executive director of a State Agency. Part 940.2(b) defines “Candidate” according to New York Election Law § 14-100. Part 940.2(a) defines “Appear” to mean to “appear (by likeness, picture, or voice), be named, or otherwise identified or referenced.”

Part 940.3 defines a Public Service Announcement as a communication that meets all of the criteria listed therein. Among the criteria are following:

• The communication (i) is designed to promote programs, activities or services of nonprofit organizations or federal, state or local governments or (ii) imparts information generally regarded as serving the public interest;

• The communication is sponsored or paid for by (i) a person or (ii) an organization or entity with a mission or history that includes providing outreach and public service announcements to the community;

• The communication is not paid for or controlled by (i) a Covered Official who is a Candidate and who appears in the communication, or (ii) his or her party or party committee, or any organization affiliated with the covered official or his or her party or party committee;

• The communication does not constitute “lobbying” or “lobbying activities,” as those terms are defined in Legislative Law Article 1-A;

• The communication (i) does not promote or support a Covered Official who is a Candidate or criticize or oppose an individual running against such Covered Official and (ii) could not reasonably be interpreted to be an appeal to vote for such Covered Official or to vote against an individual running opposed to such Covered Official.

Part 940.3(b) provides a non-exhaustive list of examples of Public Service Announcements, which include communications regarding nonprofit or governmental outreach or awareness activities on such topics as energy conservation, emergency or other disaster relief, or job training and job fairs.

Part 940.3(c) provides a non-exhaustive list of communications that are not regulated or restricted under the regulations. This list includes: news, editorials, and opinions that are published by an entity that regularly publishes news to the public or to subscribers and is not controlled by the Covered Official appearing in the story or the Covered Official’s political party; State agency and legislative web sites; communications from Members of the Legislature officials; and personal communications from Covered Officials.

Part 940.4 clarifies that paying for the production or Publishing of a Public Service Announcement is not considered a gift, as that term is defined in Public Officers Law § 73(5), Legislative Law Article 1-A, or 19 NYCRR Parts 933 or Part 934.

Part 940.5(a) provides that a knowing and intentional appearance by a Covered Official in a Public Service Announcement within the ninety days prior to an election in which the Covered official is a Candidate may be a violation of Public Officers Law § 74(3)(d), as well as any other applicable provision, and would subject the Covered Official to the penalties contained therein.

Part 940.5(b) provides that during a state of emergency, an appearance by a Covered Official in a Public Service Announcement during the ninety days prior to an election would not be considered a violation of the Public Officers Law, as long as the Public Service Announcement relates to the emergency.

4. Costs:

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

b. costs to the agency, state and local government: Minimal costs to state and local governments. Minimal administrative costs to the agency during the implementation phase.

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 an estimated slight increase in staff resources to implement the regulations.

5. Local government mandate: The proposed regulation imposes, at most, minimal new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district, as they must make themselves aware of any requirements from the regulation that would apply to Public Service Announcements they would like to create and disseminate.

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: JCOPE could promulgate a formal advisory opinion or other guidance, but the formal rulemaking process provides more clarity to affected parties.

9. Federal standards: These regulations do not exceed any federal minimum standard with regard to a similar subject area.

10. Compliance schedule: Compliance will take effect upon adoption.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with this Notice of Emergency Adoption because the proposed 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 New York State Joint Commission on Public Ethics notes that while the public service announcement regulations may, indirectly, affect when certain state employees and officers can appear in public service announcements on behalf of local governments or sponsored by small businesses, this does not impose extensive record-keeping requirements or other adverse economic impacts on these entities.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this Notice of Emergency Adoption because the proposed rulemaking will not impose any adverse economic impact on rural areas, nor will compliance require or impose any reporting, record-keeping or other affirmative acts on the part of rural areas. The Joint Commission on Public Ethics makes these findings based on the fact that the public service announcement regulations define what constitutes a public service announcement and sets forth the limitations on when certain state employees and officers who are also candidates for public office can appear in public service announcements. Rural areas are not affected in any way.

Job Impact Statement

A Job Impact Statement is not submitted with this Notice of Emergency Adoption because the proposed rulemaking will have no impact on jobs or employment opportunities. The Joint Commission on Public Ethics makes this finding based on the fact that the public service announcement regulations define what constitutes a public service announcement and sets forth the limitations on when certain state employees and officers who are also candidates for public office can appear in public service announcements. This regulation neither applies nor relates to economic development or employment opportunities.

Assessment of Public Comment

The Commission received public comments from two entities and one individual. The first entity provided two comments. The first comment was a proposal that the Regulations follow advice issued by the House Ethics Committee, which requires that Public Service Announcements (“PSAs”) not include any personal, political or campaign information, and not link or refer to any websites created by campaign or campaign-related entities, such as political parties and campaign committees. This suggestion was incorporated into the regulation. The second comment sought a clarification in Part 940.3(a)(2) that a PSA cannot be sponsored or paid for by an entity whose only activity is to produce and pay for a PSA. Language in the regulation was revised to clarify this definition. The second entity requested that for purposes of administrative consistency, the date restriction in Part 940.5(a) be changed from 90 days before an election to 30 days before a primary campaign and 60 days before a general election. The Commission deems the 90-day period to be a reasonable restriction on the appearance of covered officials in PSAs, as opposed to other types of communications. The individual commenter proposed that the title be changed for purposes of clarity to “Public Service Announcements and Covered Officials.”