PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Repeal of Part 930 and addition of new Part 930 to Title 19 NYCRR.
Statutory authority:
Executive Law, section 94(9)(c) and (17)(a); and Public Officers Law, sections 73(5) and 74
Subject:
Honoraria regulations.
Purpose:
To provide guidance and procedures regarding the acceptance of honoraria.
Text of proposed rule:
Title 19 NYCRR Part 930 is repealed and a new Part 930 is added to read as follows:
CHAPTER XX. JOINT COMMISSION ON PUBLIC ETHICS
TITLE 19 NYCRR PART 930: HONORARIA
930.1 Purpose and Effect of Regulations.
(a) The purpose of these regulations is to establish the procedures and conditions for approval and acceptance of Honoraria by specified New York State officials and employees.
(b) The effect of these regulations is to supersede prior regulations and any Advisory Opinions or other guidance issued by predecessor agencies to the Joint Commission on Public Ethics to the extent such Advisory Opinions and guidance are inconsistent with this Part.
930.2 Definitions.
(a) Approving Authority for a State Officer or Employee shall mean the head of a State agency or appointing authority, or his or her appropriate designee. In the case of a Statewide Elected Official, the head of a Civil Department or the head of a State Agency, it shall mean the New York State Joint Commission on Public Ethics.
(b) Civil Department shall mean any of the departments listed herein: Agriculture and Markets, Civil Service, Comptroller, Corrections and Community Services, Economic Development, Education, Environmental Conservation, Executive, Financial Services, Health, Labor, Law, Motor Vehicles, Office of Children and Family Services, Office of Mental Health, Office for People with Developmental Disabilities, Office of Temporary and Disability Assistance, Public Service, State, Taxation and Finance, and Transportation.
(c) Commission shall mean the New York State Joint Commission on Public Ethics.
(d) Covered Person shall mean:
(1) Head of a Civil Department as defined in subdivision (b) of this section;
(2) State Officer or Employee as defined in subdivision (j) of this section;
(3) Statewide Elected Official as defined in subdivision (k) of this section.
(e) Honorarium shall mean:
(1) Any payment, which may take the form of a fee or any other compensation, made to a Covered Person in consideration for a service performed that is not part of his or her official duties. Such service includes, but is not limited to, delivering a speech, writing, or publishing an article, or participating in any public or private conference, convention, meeting, or similar event. Honorarium shall also include expenses incurred for travel, lodging, and meals related to the service performed.
(2) Honorarium shall not mean a payment provided to a Covered Person who provides services for or acts on behalf of an employee organization certified or recognized under Article 14 of the Civil Service Law to represent such Covered Person.
(f) Honorarium Approval shall mean a record created by the Approving Authority in accordance with section 930.4(c) of this Part.
(g) Interested Source shall mean any person or entity who on his or her own behalf, or on behalf of an entity, that satisfies any one of the following:
(1) is regulated by, negotiates with, appears before in other than a Ministerial Matter, seeks to contract with or has contracts with, or does other business with: (i) the Covered Person, in his or her official capacity; (ii) the State Agency with which the Covered Person is employed or affiliated; or (iii) any other State Agency when the Covered Person’s agency is to receive the benefits of the contract; or
(2) is required to be listed on a statement of registration pursuant to § 1-e(a)(1) of article 1-A of the Legislative Law and lobbies or attempts to influence actions, decisions, or policies of the State Agency with which the Covered Person is employed or affiliated; or
(3) is the spouse or unemancipated child of any individual satisfying the requirements of section 930.2(g)(2); or
(4) is involved in any action or proceeding, in which administrative and judicial remedies thereto have not been exhausted, and which is adverse to either: (i) the Covered Person in his or her official capacity; or (ii) the State Agency with which the Covered Person is employed or affiliated; or
(5) has received or applied for funds at any time during the previous 12 months up to and including the date of the proposed or actual receipt of the item or service from either: (i) the Covered Person in his or her official capacity; or (ii) the State Agency with which the Covered Person is employed or affiliated.
(h) Ministerial Matter shall mean an administrative act carried out in a prescribed manner not allowing for substantial personal discretion.
(i) State Agency shall mean any Civil Department; State department; or division, board, commission, or bureau of any State department or Civil 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.
(j) State Officer(s) or Employee(s) shall mean:
(1) Statewide Elected Officials;
(2) Heads of Civil Departments and State departments and their respective deputies and assistants other than members of the board of regents of the university of the State of New York who receive no compensation or are compensated on a per diem basis;
(3) Officers and employees of statewide elected officials;
(4) Officers and employees of State departments, boards, bureaus, divisions, commissions, councils, or other State Agencies other than officers of such boards, commissions or councils who receive no compensation or are compensated on a per diem basis;
(5) Employees of public authorities (other than multi?128;state authorities), public benefit corporations, and commissions at least one of whose members of such public authorities, public benefit corporations, and commissions is appointed by the governor; and
(6) Members or directors of public authorities (other than multi-state authorities), public benefit corporations, and commissions identified in section 930.2(j)(5) who receive compensation other than on a per diem basis.
(k) Statewide Elected Official shall mean the Governor, Lieutenant Governor, Comptroller, or Attorney General.
930.3 Certain Covered Persons Prohibited from Receiving Payment for Speeches.
Notwithstanding any other provision of this Part and pursuant to Public Officers Law § 73(5-a)(b), no Statewide Elected Official or any head of a Civil Department shall, directly or indirectly, solicit, accept, or receive any payment made in consideration for any speech given at a public or private conference, convention, meeting, social event, meal, or like gathering.
930.4 Approval Procedures.
(a) An Honorarium must be approved by the Covered Person’s Approving Authority in accordance with this Part.
(b) Within a reasonable period of time prior to the performance of the service for which an Honorarium is offered, or to the receipt of the Honorarium, a Covered Person shall submit to his or her Approving Authority a written request for approval to accept the Honorarium.
(c) The Approving Authority shall review and approve a request to accept an Honorarium in accordance with the procedures and conditions set forth in sections 930.4 and 930.5 of this Part. The Honoraria Approval shall contain the information set forth in (1) through (5) of this subdivision:
(1) The name of the Covered Person accepting the Honorarium;
(2) Identify of the offeror and nature of the offeror’s business;
(3) A detailed description of the service for which the Honorarium is offered, including the date and location where the service will be performed;
(4) The amount of the Honorarium and, where applicable, and itemization of amounts paid for the service, attendance, registration, travel, lodging, and meals; and
(5) A statement that the Approving Authority has approved the Honorarium in accordance with the conditions set forth in section 930.5 of this Part.
(d) The Approving Authority shall retain all completed and signed Honorarium Approvals for a period of three years from the receipt date of the Honorarium and shall be made available to the Commission upon its request.
(e) The Approving Authority shall provide the Covered Person with a copy of the Honorarium Approval.
930.5 Conditions for Approval.
(a) An Approving Authority may approve a request to accept an Honorarium provided the following conditions are met:
(1) State personnel, equipment, and time are not used in preparing the service for which an Honorarium is offered;
(2) No State funds (including funds from any New York State public authority or any public benefit corporation) are used to pay the Covered Person’s attendance, registration, travel, lodging, or meal expenses related to the service for which an Honorarium is offered;
(3) If the service is to be performed during the Covered Person’s official work day, he or she must charge accrued leave (other than sick leave) to perform such service;
(4) If the Honorarium is offered by or on behalf of an Interested Source, all of the following criteria must be met:
(i) It is not reasonable, under the circumstances, to infer that the Honorarium was intended to influence the Covered Person in the performance of his or her official duties.
(ii) The Honorarium could not, under the circumstances, reasonably be expected to influence the Covered Person in the performance of his or her official duties.
(iii) The Honorarium is not, under the circumstances, intended as a reward for any official action on his or her part.
(5) The Approving Authority determines that the offeror is not being used to conceal that the Honorarium is actually offered or paid by an Interested Source; and
(6) Performing the service for which the Honorarium is offered and accepting the Honorarium do not violate Public Officers Law § 74.
930.6 Minimum Requirements.
Nothing contained in this Part shall prohibit any State Agency from adopting or implementing its own rules, regulation or procedures governing Honoraria that are more restrictive than the requirements of this Part.
930.7 Exemption.
A member of the faculty (including an adjunct member of the faculty) at the State University of New York and the City University of New York, including all their constituent units except community college of the State University of New York and the independent institutions operating statutory or contract colleges on behalf of the State, and a State Officer or Employee serving in the title of Research Scientist, Cancer Research Scientist, Research Physician, Research Psychiatrist or Psychiatrist, is exempt from all the provisions and requirements in this Part, with the exception of sections 930.7 and 930.8, provided the service performed by such member of the faculty is within the subject matter of his or her official academic discipline.
930.8 Enforcement.
The Commission is authorized pursuant to Executive Law § 94 to investigate possible violations of Public Officers Law § 73 and § 74 and their corresponding regulations and take appropriate action as authorized in these statutes.
930.9 Reporting.
Any Covered Person who is required to file a financial disclosure statement pursuant to § 73-a of the Public Officers Law, including those persons qualifying for an exemption under section 930.7, shall report any Honorarium in excess of $1,000 (or all Honoraria the aggregate total of which exceed $1,000 received from a single offeror) in his or her financial disclosure statement for the applicable year.
Text of proposed rule and any required statements and analyses may be obtained from:
Louis Manuta, Associate Counsel, Joint Commission on Public Ethics, 540 Broadway, Albany, NY 12207, (518) 408-3976, email: regs@jcope.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority: Executive Law section 94(9)(c) generally directs the Joint Commission on Public Ethics (“JCOPE”) to adopt, amend, and rescind rules and regulations to govern JCOPE’s various procedures. Executive Law section 94(17)(a) directs JCOPE to promulgate rules concerning limitations on the receipt of gifts and honoraria by persons subject to its jurisdiction. Public Officers Law section 73(5) prohibits subject persons from soliciting, accepting, or receiving a gift. The Code of Ethics in Public Officers Law section 74 establishes standards intended to prevent the use of an individuals’ official position or authority for personal benefit.
2. Legislative objectives: To provide guidance and procedures regarding the acceptance of honoraria by certain State officers and employees.
3. Needs and benefits: JCOPE’s predecessor agencies created regulations regarding honoraria and payment for officially related travel expenses in Part 930. The proposed rulemaking will clarify these rules by separating the regulations governing honoraria (set forth in Part 930) from the regulations governing payment for officially related travel expenses (proposed herein in Part 931). The regulations set forth in Part 931 govern payments for official activities of specified New York State officials and employees (referred to as “covered person(s)”).
Part 930.1 provides the purpose and effect of the regulations.
Part 930.2 defines key terms in the regulations. It defines an “honorarium” as a fee or any other compensation made to a covered person in consideration for a service performed that is not part of his or her official duties. Such services include, but are not limited to, delivering a speech, writing or publishing an article, or participating in any public or private conference, convention, meeting, or similar event. This Part also defines an “interested source,” which is a person or entity who has certain defined relationships with State persons or entities. This definition is central to a determination made, pursuant to Part 930.5, by the individual’s approving authority as to whether an honorarium can be approved. In the case of most covered persons, the approving authority is the individual’s agency. In the case of statewide elected officials and heads of agencies and certain departments, the approving authority is JCOPE.
Part 930.3 specifies that, in accordance with Public Officers Law section 73(5-a)(b), a Statewide elected official or a head of a civil department may not, directly or indirectly, solicit, accept, or receive any payment made in consideration for any speech given at a public or private conference, convention, meeting, social event, meal, or like gathering.
Part 930.4 sets forth the procedures a covered person and his approving authority are to follow when deterring whether an honorarium may be accepted. The approving authority must retain all completed and signed honorarium approvals for a period of three years from the receipt date of the honorarium and must provide a copy of the honorarium approval to the requesting individual.
Part 930.5 establishes the conditions for the approving authority to approve acceptance of the honorarium by the covered individual, including an analysis for situations where the honorarium is from an interested source. In addition, the approving authority must consider whether performing the service for which the honorarium is offered and accepting the honorarium violate the Code of Ethics in Public Officers Law section 74.
Part 930.6 explains that State agencies are free to adopt or implement rules, regulations, or procedures that are more restrictive than those in the honoraria regulations.
Part 930.7 creates an exemption from the honorarium processes in Parts 930.1 through 930.8 for: (1) a member of the faculty (including an adjunct member of the faculty) at the State University of New York and the City University of New York, including all constituent units (except community colleges of the State University of New York and the independent institutions operating statutory or contract colleges on behalf of the State), and (2) a State officer or employee serving in specified research and scientific titles, provided the service performed by the member of the faculty is within the subject matter of his or her official academic discipline.
Part 930.8 identifies the statutory provision, Executive Law section 94, that authorizes JCOPE to investigate possible violations of Public Officers Law sections 73 and 74 and their corresponding regulations and to take appropriate action as authorized in these statutes.
Part 930.9 states that any individual who is required to file a financial disclosure statement pursuant to section 73-a of the Public Officers Law, including those persons qualifying for an exemption under Part 930.7, must report any honorarium in excess of $1,000 (or all honoraria the aggregate total of which exceed $1,000 received from a single offeror) in his or her financial disclosure statement for the applicable year.
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 the 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 honorarium they would give to individuals covered by the honorarium regulations.
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. However, amending the existing honoraria regulations and moving the reimbursement for travel expenses language to new Part 931 through the formal rulemaking process provide 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 Proposed Rulemaking 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 honoraria regulations may affect what payments Covered Persons (as defined in the regulations) can accept as honoraria, this does not impose record-keeping requirements or other adverse economic impacts on small businesses and local governments.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this Notice of Proposed Rule Making since the proposed rule making 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 honoraria regulations affect what payments Covered Persons (as defined in the regulations) can accept as honoraria. Rural areas are not affected in any way.
Job Impact Statement
A Job Impact Statement is not submitted with this Notice of Proposed Rule Making 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 honoraria regulations apply only to what payments Covered Persons (as defined in the regulations) can accept as honoraria. This regulation does not apply nor relate to economic development or employment opportunities.
