ARTICLE 1 Short Title
This chapter shall be known as the "Executive Law."
ARTICLE 2 Governor
Office and residence of governor. The office of the governor
shall be known as the executive chamber, and his residence, as the
executive mansion.
Acting governor. Every provision of law relating to the governor
shall extend to the lieutenant-governor, to the president of the senate,
and to the speaker of the assembly respectively, while acting as
governor in pursuance of law.
Secretary and counsel to the governor. A secretary to the
governor shall be appointed by the governor, and shall receive a salary
to be fixed by the governor within the amount appropriated therefor. It
shall be the duty of such secretary to assist the governor in matters
pertaining to the executive department and perform such duties as the
governor may assign to him. The governor may also appoint and at
pleasure remove a counsel to the governor who shall receive a salary to
be fixed by the governor within the amount appropriated therefor. It
shall be the duty of such counsel to advise the governor in regard to
the constitutionality, consistency and legal effect of bills presented
to the governor for his approval and on matters involving the exercise
of executive clemency and such other legal matters as may be referred to
him by the governor.
Chief diversity officer. A chief diversity officer for the
state shall be appointed by the governor and shall receive a salary to
be fixed by the governor within the amount appropriated therefor. The
chief diversity officer's responsibilities shall include the following:
1. Advise and assist the governor in formulating policies relating to
workforce diversity and minority and women's business enterprises;
2. Work with the director of the division of minority and women's
business development to prepare an annual plan for ensuring full
compliance with article fifteen-a of the executive law by state agencies
and the use of diversity practices by such agencies;
3. Advise the governor and the agencies regarding any measures
necessary to ensure full compliance with article fifteen-a of this
chapter and use of diversity practices by state public authorities;
4. Serve as a member of the state procurement council established
under section one hundred sixty-one of the state finance law;
5. Serve as the governor's liaison with organizations representing
minority and women-owned business enterprises and other organizations
related to diversity in the state workforce and in state contracting;
6. Serve as the governor's liaison to the small business advisory
council for issues related to the creation of a diverse workforce and
state procurement practices relating to minority and women-owned
business enterprises;
7. Review and consult with the director of minority and women's
business development regarding policies relating to minority and
women-owned business enterprise contract specialists at state agencies;
and
8. Engage in other actions assigned to him or her by the governor
relating to diversity in hiring or promotion of the state workforce and
in encouraging diversity practices and compliance with article fifteen-a
of this chapter in procurement.
Chief disability officer. 1. Persons with disabilities comprise
a major segment of the state of New York's population and their
particular needs and concerns must be considered as an integral part of
the planning and implementation of all state programs and services
affecting their lives and well-being. The office of the chief disability
officer shall advocate on behalf of persons with disabilities and ensure
that persons with disabilities are afforded the opportunity to exercise
all of the rights and responsibilities accorded to citizens of this
state.
2. For purposes of this article:
(a) "Persons with disabilities" shall mean any person who has a
disability as defined in subdivision twenty-one of section two hundred
ninety-two of this chapter.
(b) "State agency" or "state agencies" shall mean any state
department, board, bureau, division, commission, committee, public
authority, public corporation, council, office or other governmental
entity performing a governmental or proprietary function for the state,
except the judiciary or the state legislature.
3. (a) The governor shall appoint a chief disability officer. The
chief disability officer shall advise and assist state agencies in
developing policies designed to help meet the needs of persons with
disabilities. The chief disability officer shall be appointed by the
governor and receive a salary to be fixed by the governor within the
amounts appropriated therefor.
(b) The chief disability officer shall: (i) be the state's coordinator
for the implementation of the Americans with Disabilities Act; (ii)
coordinate state activities to ensure that state programs do not
discriminate against and are accessible to persons with disabilities;
(iii) ensure that such programs provide services to individuals with
disabilities in the most integrated setting appropriate to their needs;
and (iv) work with state agencies to develop legislation and potential
regulatory changes to help effectuate the duties and responsibilities
required in this article, and any other changes that may significantly
affect the lives of persons with disabilities in the state.
(c) The chief disability officer shall, to the extent practicable,
review and report to the governor upon proposed legislation and
regulations. The chief disability officer shall submit comments, where
appropriate, to the state agency which referred such proposed
legislation and regulations evaluating: (i) the impact of the proposed
legislation or regulation upon persons with disabilities; (ii) the
relationship and impact of such proposed legislation or regulation on
existing programs affecting persons with disabilities; and (iii) any
modifications that would help persons with disabilities or aid in the
implementation of the new proposal. All state agencies shall cooperate
with the chief disability officer to ensure that the chief disability
officer is able to fulfill the requirements under this section.
Executive records. The governor shall cause to be kept in the
executive chamber or in the appropriate state office:
1. Journals of the daily transactions of his office.
2. Registers, containing classified statements of such transactions.
3. Separate registers containing classified statements of all
applications for pardon, commutation or other executive clemency, and of
his action thereon.
4. An account of his official expenses and disbursements, including
the incidental expenses of his department.
5. Files of all official records upon which applications for executive
clemency are founded; of statements made by judges to him; of sentences
to death and of the testimony in capital cases; and of such other papers
relating to the transactions of his office as are deemed by him of
sufficient value for preservation.
Examination and inspection by the governor. The governor is
authorized at any time, either in person or by one or more persons
appointed by him for the purpose, to examine and investigate the
management and affairs of any department, board, bureau or commission of
the state. The governor and the persons so appointed by him are
empowered to subpoena and enforce the attendance of witnesses, to
administer oaths and examine witnesses under oath and to require the
production of any books or papers deemed relevant or material. Whenever
any person so appointed shall not be regularly in the service of the
state his compensation for such services shall be fixed by the governor,
and said compensation and all necessary expenses of such examinations
and investigations shall be paid from the treasury out of any
appropriations made for the purpose upon the order of the governor and
the audit and warrant of the comptroller.
Notwithstanding any inconsistent provision of any general, special or
local law, charter, administrative code or other statute, service
rendered by a person appointed by the governor pursuant to this section
shall not constitute or be deemed state service or re-entry into state
service under the civil service law, the retirement and social security
law or under any charter, administrative code, or other general, special
or local law relating to a state or municipal retirement or pension
system so as to suspend, impair or otherwise affect or interfere with
the pension or retirement status, rights, privileges and benefits of
such person under any such system or to interfere with the right of such
person or his beneficiary to receive any pension or annuity benefits or
death benefits by reason of the selection of any option under any such
system.
Limited operation of holiday. The governor in issuing any
proclamation appointing any day as a holiday or as a day of thanksgiving
or fasting and prayer or other religious observance, under section
twenty-four of the general construction law is authorized, in his
discretion, to limit or restrict the effect and operation of such
proclamation to any city or county to be designated by him in such
proclamation.
Lease or loan of state property; temporary transfer of personnel.
Notwithstanding any inconsistent provisions of law, general, special or
local
1. (a) The governor, from time to time, whenever he deems it to be in
the public interest, may authorize any department or agency of the state
to lease or lend to the army, navy or any branch of the armed forces of
the United States, any real or personal property of the state, on such
terms and conditions as he may deem necessary to promote the public
welfare and protect the interests of the state, making an adequate and
appropriate provision to reimburse the state for any cost of maintenance
and operation and for depreciation and waste. He may also authorize such
department or agency to lease or lend such property to any other agency
of the United States of America performing functions occasioned by the
war or defense effort, or to any other organization subsidized or
authorized directly or indirectly by the United States of America to
perform work or render services occasioned by the war or defense effort,
provided, however, that such lease or loan of property shall be on terms
and conditions which fully compensate the state for its loss or use of
such property. Such compensation shall, in addition to the cost of
maintenance and operation, include, but not be limited to, depreciation
and waste or debt service incidental thereto. Notwithstanding the
foregoing provisions, however, the division of military and naval
affairs of the executive department may be authorized pursuant to this
section to lease or lend armories or other real or personal property
under its jurisdiction to the army, navy or any other branch of the
armed forces of the United States of America for military purposes
without provision for reimbursement to the state for depreciation and
waste or debt service. Any renewal of an agreement or lease heretofore
made pursuant to the provisions of paragraph (a) of subdivision one of
section thirty-six of the New York state war emergency act or to the
provisions of chapter two hundred seventy-seven of the laws of nineteen
hundred forty-two prior to the repeal of such provisions shall be made
in compliance with this paragraph.
(b) The governor, from time to time, whenever he deems it to be in the
public interest, is hereby authorized to enter into a contract on behalf
of the state for the lease or loan, on such terms and conditions as he
may deem necessary to promote the public welfare and protect the
interests of the state, of any real or personal property of the state,
or the temporary transfer or employment of personnel of the state to any
municipal subdivision or other public corporation of the state.
2. (a) The chief executive of any such municipal subdivision or the
board, commission or other head of any other public corporation is
hereby authorized to enter into a contract and to execute any such lease
or to accept any such loan or to employ such personnel, and such
municipal subdivision or other public corporation is further authorized
to equip, maintain, utilize and operate any such property and to employ
necessary personnel therefor in accordance with the purposes for which
such contract is executed.
(b) The chief executive of any such municipal subdivision or the
board, commission or other head of such other public corporation is
empowered to do all things and perform any and all acts which he or it
may deem necessary to effectuate the purposes for which such contract
was entered into.
Indian settlement agreements. 1. Oneida settlement agreement.
Notwithstanding any other provision of law, upon filing with the
secretary of state, the settlement agreement executed between the
governor, the counties of Oneida and Madison, and the Oneida Nation of
New York dated the sixteenth day of May, two thousand thirteen, to be
known as the Oneida Settlement Agreement, including, without limitation,
the provisions contained therein relating to arbitration and judicial
review in state or federal courts and, for the sole purpose thereof, a
limited waiver of the state's Eleventh Amendment sovereign immunity from
suit, shall upon its effective date be deemed approved, ratified,
validated and confirmed by the legislature. It is the intention of the
legislature in enacting this section to ensure that the settlement
agreement shall be fully enforceable in all respects as to the rights,
benefits, responsibilities and privileges of all parties thereto.
Tribal-state compact. (a) Notwithstanding any other law, the
state, through the governor, may execute a tribal-state compact with the
Seneca Nation of Indians pursuant to the Indian Gaming Regulatory Act of
1988 (P.L. 100-497; 25 U.S.C. §§ 2701-2721 and 18 U.S.C. §§ 1166-1168)
consistent with a memorandum of understanding between the governor and
the president of the Seneca Nation of Indians executed on June
twentieth, two thousand one and filed with the department of state on
June twenty-first, two thousand one. Such tribal-state compact shall be
deemed ratified by the legislature upon the governor's certification to
the temporary president of the senate, the speaker of the assembly, and
the secretary of state, that such compact, through its terms, by a
memorandum of understanding or other agreement between the state and
Nation, by a Nation's ordinance or resolution, by statute, by executive
order, or by the terms of any other agreement entered into by or on
behalf of the Nation, provides: (i) assurances that the Nation will
provide (1) reasonable access to the gaming and related facilities to
labor union organizers for purposes of a campaign to solicit employee
support for labor union representation; (2) permission for labor union
organizers to distribute labor union authorization cards on site for the
purpose of soliciting employee support for labor union representation;
and (3) recognition of labor unions as the exclusive collective
bargaining representatives of employees in appropriate bargaining units
based upon a demonstration of majority employee support of such labor
unions by union authorization card check as verified, if necessary, by
an independent arbitrator appointed by the Public Employment Relations
Board in consultation with the Nation and the labor union; (ii)
assurances that the Nation has an adequate civil recovery system which
guarantees fundamental due process to visitors and guests of the
facility and related facilities; and (iii) assurances that the Nation
will maintain during the term of the compact sufficient liability
insurance to assure that visitors and guests will be compensated for
their injuries.
(b) Notwithstanding any other law, the state, through the governor,
may execute tribal-state compacts pursuant to the Indian Gaming
Regulatory Act of 1988 (P.L. 100-497; 25 U.S.C. §§ 2701-2721 and 18
U.S.C. §§ 1166-1168) authorizing up to three Class III gaming facilities
in the counties of Sullivan and Ulster. Such tribal-state compact shall
be deemed ratified by the legislature upon the governor's certification
to the temporary president of the senate, the speaker of the assembly
and the secretary of state, that such compact, through its terms, by a
memorandum of understanding or other agreement between the state and
Nation, by a Nation's ordinance or resolution, by statute, by executive
order, or by the terms of any other agreement entered into by or on
behalf of the Nation, provides: (i) assurances that the Nation will
provide (1) reasonable access to the gaming and related facilities to
labor union organizers for purposes of a campaign to solicit employee
support for labor union representation; (2) permission for labor union
organizers to distribute labor union authorization cards on site for the
purpose of soliciting employee support for labor union representation;
(3) provision of employees' names and addresses to labor union
representatives and tribal/employer/management neutrality in labor union
organizing campaigns; (4) recognition of labor unions as the exclusive
collective bargaining representatives of employees in appropriate
bargaining units based upon a demonstration of majority employee support
of such labor unions by union authorization card check as verified, if
necessary, by an independent arbitrator appointed by the Public
Employment Relations Board in consultation with the Nation and the labor
union; and (5) final and binding arbitration of organized labor matters
or disputes including negotiations for collective bargaining agreements
with arbitrators' awards enforceable in a state or federal court of
competent jurisdiction; (ii) assurances that the Nation has an adequate
civil recovery system which guarantees fundamental due process to
visitors and guests of the facility and related facilities; and (iii)
assurances that the Nation will maintain during the term of the compact
sufficient liability insurance to assure that visitors and guests will
be compensated for their injuries.
(c) Except as otherwise specifically provided in the compact, the
state specifically reserves all its rights, as attributes of its
inherent sovereignty, recognized by the tenth and eleventh amendments to
the United States Constitution. Nothing in this section shall be
construed to affect the existing authority of the governor under the
constitution and laws of this state to execute tribal-state compacts.
ARTICLE 2-A Reprieves, Commutations and Pardons
Power of governor to grant reprieves, commutations and pardons.
The governor has power to grant reprieves, commutations and pardons,
after conviction, for all offenses, except treason and cases of
impeachment, upon such conditions, and with such restrictions and
limitations, as he may think proper, subject to the regulations provided
in this article.
His power; in respect to convictions for treason; duty of the
legislature, in such cases. He may also suspend the execution of the
sentence, upon a conviction for treason, until the case can be reported
to the legislature, at its next meeting, when the legislature must
either pardon or commute the sentence, direct the execution thereof, or
grant a further reprieve.
Governor to communicate annually to legislature, reprieves,
commutations and pardons. He must annually communicate to the
legislature, each case of reprieve, commutation or pardon; stating the
name of the convict, the crime of which he was convicted, the sentence
and its date, and the date of the commutation, pardon or reprieve.
Conditional pardon; procedure on violation of. If any person who
has been discharged from imprisonment, by virtue of any parole,
conditional pardon, or conditional commutation of his sentence, shall
violate such condition or neglect to perform it, his parole, pardon or
commutation shall be void and he shall be remanded to the place of his
former imprisonment and there confined for the unexpired term for which
he had been sentenced. Determination of the violation of such parole,
pardon or commutation and reincarceration therefor shall be had in the
manner prescribed in the correction law.
Setting aside judgment of conviction and dismissing indictment,
information or complaint in case of pardon of defendant on ground of
innocence. Upon motion duly made therefor, the judgment of conviction
must be set aside and the indictment, information or complaint dismissed
by the court in which the defendant was convicted, in a case where the
defendant shall receive a pardon from the governor stating that such
pardon is issued on the ground of innocence of the crime for which he
was convicted and further stating that such finding of innocence is
based upon evidence discovered after the judgment of conviction was
rendered and after the time within which to make a motion for a new
trial on newly discovered evidence had expired. Such setting aside of a
judgment of conviction and dismissal of an indictment, information or
complaint against a defendant shall place the defendant in the same
position as if the indictment, information or complaint had been
dismissed at the conclusion of the trial by the court because of the
failure to establish the defendant's guilt beyond a reasonable doubt.
ARTICLE 2-B State and Local Natural and Man-made Disaster Preparedness
Natural and man-made disasters; policy; definitions. 1. It shall
be the policy of the state that:
a. local government and emergency service organizations continue their
essential role as the first line of defense in times of disaster, and
that the state provide appropriate supportive services to the extent
necessary;
b. local chief executives take an active and personal role in the
development and implementation of disaster preparedness programs and be
vested with authority and responsibility in order to insure the success
of such programs;
c. state and local natural disaster and emergency response functions
be coordinated using recognized practices in incident management in
order to bring the fullest protection and benefit to the people;
d. state resources be organized and prepared for immediate effective
response to disasters which are beyond the capability of local
governments and emergency service organizations; and
e. state and local plans, organizational arrangements, and response
capability required to execute the provisions of this article shall at
all times be the most effective that current circumstances and existing
resources allow.
2. As used in this article the following terms shall have the
following meanings:
a. "disaster" means occurrence or imminent, impending or urgent threat
of wide spread or severe damage, injury, or loss of life or property
resulting from any natural or man-made causes, including, but not
limited to, fire, flood, earthquake, hurricane, tornado, high water,
landslide, mudslide, wind, storm, wave action, volcanic activity,
epidemic, disease outbreak, air contamination, terrorism, cyber event,
blight, drought, infestation, explosion, radiological accident, nuclear,
chemical, biological, or bacteriological release, water contamination,
bridge failure or bridge collapse.
b. "state disaster emergency" means a period beginning with a
declaration by the governor that a disaster exists and ending upon the
termination thereof.
c. "municipality" means a public corporation as defined in subdivision
one of section sixty-six of the general construction law and a special
district as defined in subdivision sixteen of section one hundred two of
the real property tax law.
d. "commission" means the disaster preparedness commission created
pursuant to section twenty-one of this article.
e. "emergency services organization" means a public or private agency,
voluntary organization or group organized and functioning for the
purpose of providing fire, medical, ambulance, rescue, housing, food or
other services directed toward relieving human suffering, injury or loss
of life or damage to property as a result of an emergency, including
non-profit and governmentally-supported organizations, but excluding
governmental agencies.
f. "chief executive" means:
(1) a county executive or manager of a county;
(2) in a county not having a county executive or manager, the chairman
or other presiding officer of the county legislative body;
(3) a mayor of a city or village, except where a city or village has a
manager, it shall mean such manager; and
(4) a supervisor of a town, except where a town has a manager, it
shall mean such manager.
g. "Disaster emergency response personnel" means agencies, public
officers, employees, or affiliated volunteers having duties and
responsibilities under or pursuant to a comprehensive emergency
management plan.
h. "Emergency management director" means the government official
responsible for emergency preparedness, response and recovery for a
county, city, town, or village.
i. "incident management team" means a state certified team of trained
personnel from different departments, organizations, agencies, and
jurisdictions within the state, or a region of the state, activated to
support and manage major and/or complex incidents requiring a
significant number of local, regional, and state resources.
j. "executive level officer" means a state agency officer with the
authority to deploy agency assets and resources and make decisions
binding a state agency.
k. "third party non-state resources" means any contracted resource
that is not owned or controlled by the state or a political subdivision
including, but not limited to, ambulances, construction crews, or
contractors.
Disaster preparedness commission established; meetings; powers
and duties. 1. There is hereby created in the executive department a
disaster preparedness commission consisting of the commissioners of
transportation, health, division of criminal justice services,
education, economic development, agriculture and markets, housing and
community renewal, general services, labor, environmental conservation,
mental health, addiction services and supports, parks, recreation and
historic preservation, corrections and community supervision, children
and family services, homeland security and emergency services, and
people with developmental disabilities, the president of the New York
state energy research and development authority, the superintendents of
state police and financial services, the secretary of state, the state
fire administrator, the chair of the public service commission, the
adjutant general, the office of information technology services, and the
office of victim services, the chairs of the thruway authority, the
office for the aging, the metropolitan transportation authority, the
port authority of New York and New Jersey, the chief professional
officer of the state coordinating chapter of the American Red Cross, the
chief professional officer of 2-1-1 New York state and three additional
members, to be appointed by the governor, two of whom shall be chief
executives. Each member agency may designate an executive level officer
of that agency, with responsibility for disaster preparedness matters,
who may represent that agency on the commission. The commissioner of the
division of homeland security and emergency services shall serve as
chair of the commission, and the governor shall designate the vice chair
of the commission. The members of the commission, except those who serve
ex officio, shall be allowed their actual and necessary expenses
incurred in the performance of their duties under this article but shall
receive no additional compensation for services rendered pursuant to
this article.
2. The commission, on call of the chairperson, shall meet at least
twice each year and at such other times as may be necessary. The agenda
and meeting place of all regular meetings shall be made available to the
public in advance of such meetings and all such meetings shall be open
to the public. The commission shall establish quorum requirements and
other rules and procedures regarding conduct of its meetings and other
affairs.
3. The commission shall have the following powers and
responsibilities:
a. study all aspects of man-made or natural disaster prevention,
response and recovery;
b. request and obtain from any state or local officer or agency any
information necessary to the commission for the exercise of its
responsibilities;
c. prepare and, as appropriate, revise a state comprehensive emergency
management plan. The commission shall report all revisions to such plan
by March thirty-first of each year to the governor, the legislature and
the chief judge of the state, unless a current version of the plan is
available to the public on the website of the division of homeland
security and emergency services. In preparing such plans, the commission
shall consult with federal and local officials, emergency service
organizations including both volunteer and commercial emergency response
organizations, and the public as it deems appropriate. To the extent
such plans impact upon administration of the civil and criminal justice
systems of the state, including their operational and fiscal needs in
times of disaster emergency, the commission, its staff and any working
group, task force, agency or other instrumentality to which it may
delegate responsibility to assist it in its duties shall consult with
the chief administrator of the courts and coordinate their preparation
with him or her or with his or her representatives;
d. prepare, keep current and distribute to chief executives and others
an inventory of programs directly relevant to prevention, minimization
of damage, readiness, operations during disasters, and recovery
following disasters;
e. direct state disaster operations and coordinate state disaster
operations with local disaster operations following the declaration of a
state disaster emergency;
f. (1) unless it deems it unnecessary, create, following the
declaration of a state disaster emergency, a temporary organization in
the disaster area to provide for integration and coordination of efforts
among the various federal, state, municipal and private agencies
involved. The commission, upon a request from a municipality and with
the approval of the governor, shall direct the temporary organization to
assume direction of the local disaster operations of such municipality,
for a specified period of time not to exceed thirty days, and in such
cases such temporary organization shall assume direction of such local
disaster operations, subject to the supervision of the commission. Upon
the expiration of the thirty day period the commission, at the request
of the municipality, may extend the temporary organization's direction
of such local disaster operations for additional periods not to exceed
thirty days. The commission, upon a finding that a municipality is
unable to manage local disaster operations, may, with the approval of
the governor, direct the temporary organization to assume direction of
the local disaster operations of such municipality, for a specified
period of time not to exceed thirty days, and in such cases such
temporary organization shall assume direction of such local disaster
operations, subject to the supervision of the commission. Upon
expiration of the thirty day period the commission, after consultation
with the municipality, and with the approval of the governor, may extend
the temporary organization's direction of such local disaster operations
for additional periods not to exceed thirty days. In such event, such
temporary organization may utilize such municipality's local resources,
provided, however, that the state shall not be liable for any expenses
incurred in using such municipality's resources. The state shall not be
liable for the expenses incurred in using third party, non-state
resources deployed to the affected area by the temporary organization,
which are necessary to protect life and safety;
(2) The state incident management team shall have the authority to act
as the operational arm of the temporary organization. When called to
duty and deployed by the state, members of any state or local incident
management team shall be deemed temporary employees of the state and
shall have the same privileges and immunities afforded to regular state
employees, subject to the rules and regulations promulgated by the
president of the state civil service commission pursuant to section one
hundred sixty-three of the civil service law;
g. assist in the coordination of federal recovery efforts and
coordinate recovery assistance by state and private agencies;
h. provide for periodic briefings, drills, exercises or other means to
assure that all state personnel with direct responsibilities in the
event of a disaster are fully familiar with response and recovery plans
and the manner in which they shall carry out their responsibilities, and
coordinate with federal, local or other state personnel. Such activities
may take place on a regional or county basis, and local and federal
participation shall be invited and encouraged;
i. submit to the governor, the legislature and the chief judge of the
state by March thirty-first of each year an annual report which shall
include but need not be limited to:
(1) a summary of commission and state agency activities for the year
and plans for the ensuing year with respect to the duties and
responsibilities of the commission;
(2) recommendations on ways to improve state and local capability to
prevent, prepare for, respond to and recover from disasters;
(3) the status of the state and local plans for disaster preparedness
and response, including the name of any locality which has failed or
refused to develop and implement its own disaster preparedness plan and
program; and the extent to which all forms of local emergency response
assets have been included, and accounted for in planning and preparation
for disaster preparedness and response; and
j. develop public service announcements to be distributed to
television and radio stations and other media throughout the state
informing the public how to prepare and respond to disasters. Such
public service announcements shall be distributed in English and such
other languages as such commission deems appropriate.
4. All powers of the state civil defense commission are assigned to
the commission.
5. The state office of emergency management within the division of
homeland security and emergency services shall serve as the operational
arm of the commission and shall be responsible for implementing
provisions of this article and the rules and policies adopted by the
commission. The director of the state office of emergency management
within the division of homeland security and emergency services shall
exercise the authority given to the disaster preparedness commission in
section twenty-nine of this article, to coordinate and direct state
agencies and assets in response to a state disaster emergency, through
their respective agency heads, on behalf of the governor and the chair
of the disaster preparedness commission, when the governor, the
lieutenant governor, and the chair of the disaster preparedness
commission are incapacitated or without an available means of reliable
communication with the state office of emergency management. If the
director of the state office of emergency management is unable to
exercise this authority, then the executive deputy commissioner of the
division of homeland security and emergency services shall act in this
capacity. In the event that the executive deputy commissioner is unable
to exercise this authority, then such authority shall be exercised by
the official willing and able to do so in the following order: the
superintendent of the division of state police; the state fire
administrator; or the director of the office of counterterrorism within
the division of homeland security and emergency services. Nothing in
this subdivision shall be construed to limit the authority of the
governor, lieutenant governor, or the chair of the disaster preparedness
commission to oversee the director of the state office of emergency
management within the division of homeland security and emergency
services or any official exercising authority given to the disaster
preparedness commission in section twenty-nine of this article.
State disaster preparedness plans. 1. The commission shall
prepare a state disaster preparedness plan and submit such plan to the
governor for approval no later than one year following the effective
date of this act. The governor shall act upon such plan by July first of
that year. The commission shall review such plans annually.
2. The purpose of such plans shall be to minimize the effects of
disasters by: (i) identifying appropriate measures to prevent disasters,
(ii) developing mechanisms to coordinate the use of resources and
manpower for service during and after disaster emergencies and the
delivery of services to aid citizens and reduce human suffering
resulting from a disaster, and (iii) provide for recovery and
redevelopment after disaster emergencies.
3. Such plans shall be prepared with such assistance from other
agencies as the commission deems necessary, and shall include, but not
be limited to:
a. Disaster prevention and mitigation. Plans to prevent and minimize
the effects of disasters shall include, but not be limited to:
(1) identification of hazards and assessment of risk;
(2) recommended disaster prevention and mitigation projects, policies,
priorities and programs, with suggested implementation schedules, which
outline federal, state and local roles;
(3) suggested revisions and additions to building and safety codes,
and zoning and other land use programs;
(4) suggested ways in which state agencies can provide technical
assistance to municipalities in the development of local disaster
prevention and mitigation plans and programs;
(5) such other measures as reasonably can be taken to protect lives,
prevent disasters, and reduce the impact of disasters.
b. Disaster response. Plans to coordinate the use of resources and
manpower for service during and after disaster emergencies and to
deliver services to aid citizens and reduce human suffering resulting
from a disaster emergency shall include, but not be limited to:
(1) coordination of resources, manpower and services, using recognized
practices in incident management and utilizing existing organizations
and lines of authority and centralized direction of requests for
assistance;
(2) the location, procurement, construction, processing,
transportation, storing, maintenance, renovation, distribution, disposal
or use of materials, including those donated, and facilities and
services;
(3) a system for warning populations who are or may be endangered;
(4) arrangements for activating state, municipal and volunteer forces,
through normal chains of command so far as possible and for continued
communication and reporting;
(5) a specific plan for rapid and efficient communication, and for the
integration of state communication facilities during a state disaster
emergency, including the assignment of responsibilities and the
establishment of communication priorities, and liaison with municipal,
private and federal communication facilities;
(6) a plan for coordinated evacuation procedures, including the
establishment of temporary housing and other necessary facilities;
(7) criteria for establishing priorities with respect to the
restoration of vital services and debris removal;
(8) plans for the continued effective operation of the civil and
criminal justice systems;
(9) provisions for training state and local government personnel and
volunteers in disaster response operations;
(10) providing information to the public, including coordination with
any state recognized information and referral services;
(11) care for the injured and needy and identification and disposition
of the dead;
(12) utilization and coordination of programs to assist victims of
disasters, with particular attention to the needs of the poor, the
elderly, individuals with disabilities and other groups which may be
especially affected;
(13) control of ingress and egress to and from a disaster area,
including but not limited to, exempting from travel bans those essential
private and public personnel, as determined by the commission, who are
summoned by their employers to assist in emergency services, such as
utility and other workers who need to reach declared emergency areas in
order to perform tasks related to the restoration and/or maintenance of
energy and communications infrastructure;
(14) a plan for the delivery of medical supplies and medications to
pharmacies, hospitals and nursing homes located within the area declared
to be experiencing a disaster emergency.
(15) arrangements to administer federal disaster assistance;
(16) a system for obtaining and coordinating situational awareness
including the centralized assessment of disaster effects and resultant
needs; and
(17) utilization and coordination of programs to assist individuals
with household pets and service animals following a disaster, with
particular attention to means of evacuation, shelter and transportation
options.
c. Recovery. Plans to provide for recovery and redevelopment after
disaster emergencies shall include, but not be limited to:
(1) measures to coordinate state agency assistance in recovery
efforts;
(2) arrangements to administer federal recovery assistance; and
(3) such other measures as reasonably can be taken to assist in the
development and implementation of local disaster recovery plans.
Local comprehensive emergency management plans. 1. Each county,
except those contained within the city of New York, and each city with a
population of one million or more, shall prepare a comprehensive
emergency management plan. Each city with a population of less than one
million, town and village is authorized to prepare a comprehensive
emergency management plan. The disaster preparedness commission shall
provide assistance and advice for the development of such plans. Each
city with a population of less than one million, town and village plan
shall be coordinated with the county plan.
2. The purpose of such plans shall be to minimize the effect of
disasters by (i) identifying appropriate local measures to prevent
disasters, (ii) developing mechanisms to coordinate the use of local
resources and manpower for service during and after disasters and the
delivery of services to aid citizens and reduce human suffering
resulting from a disaster, and (iii) providing for recovery and
redevelopment after disasters.
3. Plans for coordination of resources, manpower and services shall
provide for a centralized coordination and direction of requests for
assistance.
4. Plans for coordination of assistance shall provide for utilization
of existing organizations and lines of authority.
5. In preparing such plans, cooperation, advice and assistance shall
be sought from local government officials, regional and local planning
agencies, police agencies, fire departments and fire companies, local
emergency management agencies, commercial and volunteer ambulance
services, health and social services officials, community action
agencies, the chief administrator of the courts, organizations for the
elderly and the handicapped, agencies and organizations that provide
home health care services, agencies and organizations that provide
hospice services, other interested groups and the general public. Such
advice and assistance may be obtained through public hearings held on
public notice, or through other appropriate and practical methods,
through which such aforementioned groups may offer their input for
consideration on issues that support the effective preparation and
execution of the plan. In addition, in the case of home care and
hospice, such input may address procedures by which such providers may
be granted essential access to care for such patients during an
emergency.
6. All plans for comprehensive emergency management developed by local
governments or any revisions thereto shall be submitted to the
commission by December thirty-first of each year to facilitate state
coordination of disaster operations.
7. Such plans shall include, but not be limited to:
a. Disaster prevention and mitigation. Plans to prevent and minimize
the effects of disasters shall include, but not be limited to:
(1) identification of hazards and assessment of risk;
(2) recommended disaster prevention and mitigation projects, policies,
priorities and programs, with suggested implementation schedules, which
outline federal, state and local roles;
(3) suggested revisions and additions to building and safety codes and
zoning and other land use programs;
(4) such other measures as reasonably can be taken to protect lives,
prevent disasters, and reduce their impact.
b. Disaster response. Plans to coordinate the use of resources and
manpower for service during and after disasters and to deliver services
to aid citizens and reduce human suffering resulting from a disaster
shall include, but not be limited to:
(1) coordination of resources, manpower and services, using recognized
practices in incident management, utilizing existing organizations and
lines of authority and centralized direction of requests for assistance;
(2) the location, procurement, construction, processing,
transportation, storing, maintenance, renovation, distribution, disposal
or use of materials, including those donated, and facilities and
services which may be required in time of disaster;
(3) a system for warning populations who are or may be endangered;
(4) arrangements for activating municipal and volunteer forces,
through normal chains of command so far as possible, and for continued
communication and reporting;
(5) a specific plan for rapid and efficient communication and for the
integration of local communication facilities during a disaster
including the assignment of responsibilities and the establishment of
communication priorities and liaison with municipal, private, state and
federal communication facilities;
(6) a plan for coordination evacuation procedures including the
establishment of temporary housing and other necessary facilities;
(7) criteria for establishing priorities with respect to the
restoration of vital services and debris removal;
(8) plans for the continued effective operation of the civil and
criminal justice systems;
(9) provisions for training local government personnel and volunteers
in disaster response operations;
(10) providing information to the public;
(11) care for the injured and needy and identification and disposition
of the dead;
(12) utilization and coordination of programs to assist victims of
disasters, with particular attention to the needs of the poor, the
elderly, individuals with disabilities and other groups which may be
especially affected;
(13) control of ingress and egress to and from a disaster area,
including but not limited to, exempting from travel bans those essential
private and public personnel, as determined by the commission, who are
summoned by their employers to assist in emergency services, such as
utility and other workers who need to reach declared emergency areas in
order to perform tasks related to the restoration and/or maintenance of
energy and communications infrastructure;
(14) arrangements to administer state and federal disaster assistance;
(15) procedures under which the county, city, town, village or other
political subdivision and emergency organization personnel and resources
will be used in the event of a disaster;
(16) a system for obtaining and coordinating disaster information
including the centralized assessment of local disaster effects and
resultant needs;
(17) continued operation of governments of political subdivisions; and
(18) utilization and coordination of programs to assist individuals
with household pets and service animals following a disaster, with
particular attention to means of evacuation, shelter and transportation
options.
c. Recovery. Local plans to provide for recovery and redevelopment
after disasters shall include, but not be limited to:
(1) recommendations for replacement, reconstruction, removal or
relocation of damaged or destroyed public or private facilities,
proposed new or amendments to zoning, subdivision, building, sanitary or
fire prevention regulations and recommendations for economic development
and community development in order to minimize the impact of any
potential future disasters on the community.
(2) provision for cooperation with state and federal agencies in
recovery efforts.
(3) provisions for training and educating local disaster officials or
organizations in the preparation of applications for federal and state
disaster recovery assistance.
County registry of disabled persons; notice. 1. In each
county having a local disaster preparedness plan pursuant to section
twenty-three of this article, in order to meet the special needs of
persons who would need assistance during evacuations and sheltering
because of physical or mental handicaps, it is recommended that each
chief executive maintain a registry of disabled persons located within
the county. The registration shall identify those persons in need of
assistance and plan for resource allocation to meet those identified
needs. To assist the chief executive in identifying such persons, the
county department of health, or such other county department or agency
as designated by the chief executive, shall provide voluntary
registration information to all of its special needs clients and to all
incoming clients as part of the intake process. The registry shall be
updated annually. The registration program shall give disabled persons
the option of pre-authorizing emergency response personnel to enter
their homes during search and rescue operations if necessary to assure
their safety and welfare during disasters.
2. Upon the establishment of a voluntary registry of disabled persons
as provided in subdivision one of this section, the chief executive
shall make such registry available to the appropriate county, state and
federal agencies for their use in delivering services in the event of a
local or state disaster. The chief executive shall, upon the request of
the state emergency management office, provide such registry information
to such office. The chief executive may, at his discretion, use the
registry information for local disaster preparedness only in
coordination with other political subdivisions of the state.
3. Upon the establishment of a voluntary registry of disabled persons
as provided in subdivision one of this section, at least semi-annually,
each chief executive shall cause to be published in a newspaper of
general circulation within the county a notice of the availability of
the voluntary registration program.
4. All records, data, information, correspondence and communications
relating to the registration of disabled persons as provided in
subdivision one of this section are confidential, except that such
information shall be available to other county chief executives for
local disaster preparedness only as the chief executive of the county
maintaining such registry deems necessary. Provided, however, the
individual file of a person having registered with the registry of
disabled persons shall be made available to that person upon request.
5. All community-based services providers, including home health care
providers, shall assist the chief executive by collecting registration
information for people with special needs as part of program intake
processes, establishing programs to increase the awareness of the
registration process, and educating clients about the procedures that
may be necessary for their safety during disasters.
6. A county shall not be liable for any claim based upon the good
faith exercise or performance or the good faith failure to exercise or
perform a function or duty on the part of any officer or employee in
carrying out a local disaster preparedness plan.
Nursing home and assisted living facility plans. 1. After
consultation with the commissioner of health, the director of the office
for the aging, and the director of the state office of homeland
security, the commission shall establish standards for nursing homes,
adult homes, enriched housing programs and assisted living residences
regarding disaster preparedness.
2. Each such facility shall be assisted in the establishment of a
disaster preparedness plan. The plan shall include, but not be limited
to, the following:
(a) Maintaining a supply of food, water and to the extent deemed
necessary and feasible in the reasonable judgment of the operator of the
facility, medication in reserve in the event that obtaining such items
should become difficult or impossible.
(b) In the reasonable judgment of the facility, having access to a
generator or generators sufficient to supply electrical power to the
facility.
(c) Establishing an evacuation plan for residents including an
alternative site suitable for temporary use.
(d) Establishing staffing plans during a disaster.
3. Such plans shall be made available to the county emergency
management office.
4. Nothing in this section shall be deemed to modify or override any
requirements in regulations duly promulgated by a state agency, or to
limit any lawful authority of a state agency to promulgate regulations,
with respect to disaster preparedness of such facilities, the contents
of their disaster preparedness plans or the process for approval of
those plans.
Consistency among local disaster preparedness plans. 1. The
local disaster preparedness plans for each county, city, town, or
village shall be so developed that no part of the local disaster
preparedness plan of any county or any city, town, or village within
such county conflicts with any part of the local disaster preparedness
plan of any of the other said entities within such county or such county
itself. In the event of any such conflict, such conflict shall be
resolved by such county. The provisions of this subdivision shall not
apply to a city wholly containing more than one county or to any county
wholly contained within any such city.
2. In the event that any part of the local disaster preparedness plan
of any county or any city, town, or village within such county conflicts
with any part of the local disaster preparedness plan of any other
county or any city, town, or village within any such other county, such
conflict shall be resolved by the state emergency management office, as
defined in paragraph (e) of subdivision one of section twenty-nine-e of
this article. The provisions of this subdivision shall not apply to any
county wholly contained within a city wholly containing more than one
county. Any city wholly containing more than one county shall be subject
to the provisions of this subdivision as if it were a county.
3. Said state emergency management office is hereby authorized and
directed to promulgate any rules or regulations or take any other
measures necessary to effectuate the provisions of this section.
Local state of emergency; local emergency orders by chief
executive. 1. Notwithstanding any inconsistent provision of law, general
or special, in the event of a disaster, rioting, catastrophe, or similar
public emergency within the territorial limits of any county, city, town
or village, or in the event of reasonable apprehension of immediate
danger thereof, and upon a finding by the chief executive thereof that
the public safety is imperiled thereby, such chief executive may
proclaim a local state of emergency within any part or all of the
territorial limits of such local government; provided, however, that in
the event of a radiological accident as defined in section twenty-nine-c
of this article, such chief executive may request of the governor a
declaration of disaster emergency. Such proclamation shall remain in
effect for a period not to exceed thirty days or until rescinded by the
chief executive, whichever occurs first. The chief executive may issue
additional proclamations to extend the state of emergency for additional
periods not to exceed thirty days. Following such proclamation and
during the continuance of such local state of emergency, the chief
executive may promulgate local emergency orders to protect life and
property or to bring the emergency situation under control. As
illustration, such orders may, within any part or all of the territorial
limits of such local government, provide for:
a. the establishment of a curfew and the prohibition and control of
pedestrian and vehicular traffic, except essential emergency vehicles
and personnel;
b. the designation of specific zones within which the occupancy and
use of buildings and the ingress and egress of vehicles and persons may
be prohibited or regulated;
c. the regulation and closing of places of amusement and assembly;
d. the suspension or limitation of the sale, dispensing, use or
transportation of alcoholic beverages, firearms, explosives, and
flammable materials and liquids;
e. the prohibition and control of the presence of persons on public
streets and places;
f. the establishment or designation of emergency shelters, emergency
medical shelters, and in consultation with the state commissioner of
health, community based care centers;
g. the suspension within any part or all of its territorial limits of
any of its local laws, ordinances or regulations, or parts thereof
subject to federal and state constitutional, statutory and regulatory
limitations, which may prevent, hinder, or delay necessary action in
coping with a disaster or recovery therefrom whenever (1) a request has
been made pursuant to subdivision seven of this section, or (2) whenever
the governor has declared a state disaster emergency pursuant to section
twenty-eight of this article. Suspension of any local law, ordinance or
regulation pursuant to this paragraph shall be subject to the following
standards and limits:
(i) no suspension shall be made for a period in excess of five days,
provided, however, that upon reconsideration of all the relevant facts
and circumstances, a suspension may be extended for additional periods
not to exceed five days each during the pendency of the state of
emergency;
(ii) no suspension shall be made which does not safeguard the health
and welfare of the public and which is not reasonably necessary to the
disaster effort;
(iii) any such suspension order shall specify the local law, ordinance
or regulation, or part thereof suspended and the terms and conditions of
the suspension;
(iv) the order may provide for such suspension only under particular
circumstances, and may provide for the alteration or modification of the
requirements of such local law, ordinance or regulation suspended, and
may include other terms and conditions;
(v) any such suspension order shall provide for the minimum deviation
from the requirements of the local law, ordinance or regulation
suspended consistent with the disaster action deemed necessary; and
(vi) when practicable, specialists shall be assigned to assist with
the related emergency actions to avoid adverse effects resulting from
such suspension.
2. A local emergency order shall be effective from the time and in the
manner prescribed in the order and shall be published as soon as
practicable in a newspaper of general circulation in the area affected
by such order and transmitted to the radio and television media for
publication and broadcast. Such orders may be amended, modified and
rescinded by the chief executive during the pendency or existence of the
state of emergency. Such orders shall cease to be in effect five days
after promulgation or upon declaration by the chief executive that the
state of emergency no longer exists, whichever occurs sooner. The chief
executive nevertheless, may extend such orders for additional periods
not to exceed five days each during the pendency of the local state of
emergency.
3. The proclamation of a local state of emergency and local emergency
orders of a chief executive of a county shall be executed in
quadruplicate and shall be filed within seventy-two hours or as soon
thereafter as practicable in the office of the clerk of the governing
board of the county, the office of the county clerk, the office of the
secretary of state and the state office of emergency management within
the division of homeland security and emergency services. The
proclamation of a local state of emergency and local emergency orders of
a chief executive of a city, town or village shall be executed in
quadruplicate and shall be filed within seventy-two hours or as soon
thereafter as practicable in the office of the clerk of such municipal
corporation, the office of the county clerk, the office of the secretary
of state and the state office of emergency management within the
division of homeland security and emergency services.
4. Nothing in this section shall be deemed to limit the power of any
local government to confer upon its chief executive any additional
duties or responsibilities deemed appropriate.
5. Any person who knowingly violates any local emergency order of a
chief executive promulgated pursuant to this section is guilty of a
class B misdemeanor.
6. Whenever a local state of emergency is declared by the chief
executive of a local government pursuant to this section, the chief
executive of the county in which such local state of emergency is
declared, or where a county is wholly contained within a city, the mayor
of such city, may request the governor to remove all or any number of
sentenced incarcerated individuals from institutions maintained by such
county in accordance with section ninety-three of the correction law.
7. Whenever a local state of emergency has been declared pursuant to
this section, the chief executive of the county in which the local state
of emergency has been declared, or where a county is wholly contained
within a city, the chief executive of the city, may request the governor
to provide assistance under this chapter, provided that such chief
executive determines that the disaster is beyond the capacity of local
government to meet adequately and state assistance is necessary to
supplement local efforts to save lives and to protect property, public
health and safety, or to avert or lessen the threat of a disaster.
8. The legislature may terminate by concurrent resolution, such
emergency orders at any time.
9. a. Whenever a local state of emergency is declared pursuant to this
section and upon receipt of notification by an electric corporation or
the service provider, pursuant to section seventy-three-a of the public
service law or section one thousand twenty-mm of the public authorities
law, the chief executive shall coordinate with affected police
departments, fire departments, ambulance services and advanced life
support first response services prewired with an appropriate transfer
switch for using an alternate generated power source for the emergency
deployment of alternate generated power sources.
b. For the purposes of this section, "alternate generated power
source" shall mean electric generating equipment that is of the capacity
that is capable of providing adequate electricity to operate all life
safety systems and the basic operations of a police department, fire
department, ambulance service or advanced life support first response
service.
Use of local government resources in a disaster. 1. Upon the
threat or occurrence of a disaster, the chief executive of any political
subdivision is hereby authorized and empowered to and shall use any and
all facilities, equipment, supplies, personnel and other resources of
his political subdivision in such manner as may be necessary or
appropriate to cope with the disaster or any emergency resulting
therefrom.
2. Upon the threat or occurrence of a disaster, a chief executive may
request and accept assistance which is coordinated and directed by the
county chief executive as provided in section twenty-six of this
article.
3. A chief executive may also request and accept assistance from any
other political subdivision and may receive therefrom and utilize any
real or personal property or the service of any personnel thereof on
such terms and conditions as may be mutually agreed to by the chief
executives of the requesting and assisting political subdivisions.
4. Upon the receipt of a request for assistance made pursuant to
subdivision two or three of this section, the chief executive of any
political subdivision may give, lend or lease, on such terms and
conditions as he may deem necessary to promote the public welfare and
protect the interests of such political subdivision, any services,
equipment, facilities, supplies or other resources of his political
subdivision. Any lease or loan of real or personal property pursuant to
this subdivision, or any transfer of personnel pursuant hereto, shall be
only for the purpose of assisting a political subdivision in emergency
relief, reconstruction, or rehabilitation made necessary by the
disaster.
5. A political subdivision shall not be liable for any claim based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of any officer or employee in
carrying out the provisions of this section.
6. The chief executive, when requesting assistance pursuant to this
section may request assistance from the civil defense and disaster
preparedness forces of any other political subdivision, but only if the
civil defense and disaster preparedness forces of the type being
requested have already been activated within the political subdivisions
requesting assistance. The chief executive of any political subdivision
receiving such a request is hereby authorized and empowered, subject to
the provisions of section twenty-six of this article, to respond
thereto.
7. Any power or authority conferred upon any political subdivision by
this section shall be in addition to and not in substitution for or
limitation of any powers or authority otherwise vested in such
subdivision or any officer thereof.
Coordination of local disaster preparedness forces and local
civil defense forces in disasters. 1. Upon the threat or occurrence of a
disaster, the chief executive of a county may coordinate responses for
requests for assistance made by the chief executive of any political
subdivision within the county.
2. Coordination of assistance shall utilize existing organizations and
lines of authority and shall utilize any comprehensive emergency
management plans prepared by the affected municipality.
3. A chief executive or any elected or appointed county, city, town or
village official shall not be held responsible for acts or omissions of
municipal employees, disaster preparedness forces or civil defense
forces when performing disaster assistance pursuant to a declared
disaster emergency or when exercising comprehensive emergency management
plans.
Continuity of local governments. 1. Every county, except those
wholly contained within a city, every city, every town and every village
shall have power to provide by local law, and every other public
corporation, district corporation or public benefit corporation shall
have power to provide by resolution, for its continuity and that of its
elective and appointive officers, including members of its legislative
or governing body when, in the event of a disaster and the emergency
conditions caused thereby, any of such officers is unable to discharge
the powers and duties of his office or is absent from the political
subdivision. In any such local law or resolution, provision may be made
that the removal of a disability or the termination of an absence from
the political subdivision of an officer higher on a list or order of
succession provided therein to an office shall not terminate the service
in such office of an individual lower on such list or order of
succession who is temporarily filling such office. Notwithstanding the
provisions of any general or special law or city or village charter, a
local law or resolution adopted pursuant to this section may be made
effective without approval at a mandatory or permissive referendum but
in no case shall such local law or resolution become effective until one
certified copy thereof has been filed with the clerk of the political
subdivision or other appropriate official designated for such purpose by
the respective legislative or governing body, one certified copy thereof
has been filed in the office of the state comptroller and three
certified copies thereof have been filed in the office of the secretary
of state.
No provision of this subdivision shall be construed or interpreted as
affecting the validity of any ordinance, local law or resolution enacted
prior to April first, nineteen hundred seventy-nine or actions taken
thereunder by the government of any county, city, town or village.
2. The provisions of this section shall not be applicable in any case
where the continuity of the government of a political subdivision or
that of any of its elective or appointive officers is otherwise provided
for by or pursuant to law.
3. This section shall be construed liberally. The powers herein
granted shall be in addition to and not in substitution of any power
granted, procedure provided or provision made in any other law.
State declaration of disaster emergency. 1. Whenever the
governor, on his own initiative or pursuant to a request from one or
more chief executives, finds that a disaster has occurred or may be
imminent for which local governments are unable to respond adequately,
he shall declare a disaster emergency by executive order.
2. Upon declaration of a disaster arising from a radiological
accident, the governor or his designee, shall direct one or more chief
executives and emergency services organizations to:
(a) notify the public that an emergency exists; and
(b) take appropriate protective actions pursuant to the radiological
emergency preparedness plan approved pursuant to sections twenty-two and
twenty-three of this article. The governor, or his designee, shall also
have authority to direct that other actions be taken by such chief
executives pursuant to their authority under section twenty-four of this
article.
3. The executive order shall include a description of the disaster,
and the affected area. Such order or orders shall remain in effect for a
period not to exceed six months or until rescinded by the governor,
whichever occurs first. The governor may issue additional orders to
extend the state disaster emergency for additional periods not to exceed
six months.
4. Whenever the governor shall find that a disaster is of such
severity and magnitude that effective response is beyond the
capabilities of the state and the affected jurisdictions, he shall make
an appropriate request for federal assistance available under federal
law, and may make available out of any funds provided under the
governmental emergency fund or such other funds as may be available,
sufficient funds to provide the required state share of grants made
under any federal program for meeting disaster related expenses
including those available to individuals and families.
5. The legislature may terminate at any time a state disaster
emergency issued under this section by concurrent resolution.
Post disaster recovery planning. 1. Whenever a state disaster
emergency has been declared any county, city, town or village included
in such disaster area shall prepare a local recovery and redevelopment
plan, unless the legislative body of the municipality shall determine
such plan to be unnecessary or impractical. Prior to making such
determination, the municipality shall notify the commission of its
intent to forego preparation and provide an opportunity to comment to
the commission. Within fifteen days after the declaration of a state
disaster, any county, city, town or village included in such disaster
area shall report to the commission whether the preparation of a
recovery and redevelopment plan has been commenced, and if not, the
reasons for not preparing such plan. Within sixty days after the
declaration of a state disaster, the commission shall report to the
governor and the legislature the status of local recovery and
redevelopment plans, including the name of any municipality which has
failed or refused to commence the development of a recovery and
redevelopment plan.
2. The commission shall provide technical assistance in the
development of such plans upon the request of such county, city, town or
village.
3. A local recovery and redevelopment plan shall include, but need not
be limited to: plans for replacement, reconstruction, removal or
relocation of damaged or destroyed facilities; proposed new or amended
regulations such as zoning, subdivision, building or sanitary ordinances
and codes; and plans for economic recovery and community development.
Such plans shall take into account and to the extent practicable
incorporate relevant existing plans and policies and such plans shall
take into account the need to minimize the potential impact of any
future disasters on the community.
4. Proposed plans shall be presented at a public hearing upon five
days notice published in a newspaper of general circulation in the area
affected and transmitted to the radio and television media for
publication and broadcast. Such notice shall state the time and place of
the hearing and indicate where copies of the proposed plan may be
inspected or obtained. Any county, city, town, or village preparing a
recovery and redevelopment plan pursuant to this subdivision may, upon
mutual agreement with any other such county, city, town or village, hold
a joint hearing to consider such recovery and redevelopment plan.
5. Such plans shall be prepared within forty-five days after the
declaration of a state disaster and shall be transmitted to the
commission. The commission shall provide its comments on the plan
within ten days after receiving such plan.
6. A plan shall be adopted by such county, city, town or village
within ten days after receiving the comments of the commission. The
adopted plan may be amended at any time in the same manner as originally
prepared, revised and adopted.
7. The adopted plan shall be the official policy for recovery and
redevelopment within the municipality.
8. Nothing in this section shall preclude any municipality from
applying for or accepting and receiving any federal funds.
Direction of state agency assistance in a disaster emergency.
Upon the declaration of a state disaster emergency the governor may
direct any and all agencies of the state government to provide
assistance under the coordination of the disaster preparedness
commission. Such state assistance may include: (1) utilizing, lending,
or giving to political subdivisions, with or without compensation
therefor, equipment, supplies, facilities, services of state personnel,
and other resources, other than the extension of credit; (2)
distributing medicine, medical supplies, food and other consumable
supplies through any public or private agency authorized to distribute
the same; (3) performing on public or private lands temporary emergency
work essential for the protection of public health and safety, clearing
debris and wreckage, making emergency repairs to and temporary
replacements of public facilities of political subdivisions damaged or
destroyed as a result of such disaster; and (4) making such other use of
their facilities, equipment, supplies and personnel as may be necessary
to assist in coping with the disaster or any emergency resulting
therefrom.
Suspension of other laws. 1. Subject to the state
constitution, the federal constitution and federal statutes and
regulations, the governor may by executive order temporarily suspend
specific provisions of any statute, local law, ordinance, or orders,
rules or regulations, or parts thereof, of any agency during a state
disaster emergency, if compliance with such provisions would prevent,
hinder, or delay action necessary to cope with the disaster.
2. Suspensions pursuant to subdivision one of this section shall be
subject to the following standards and limits:
a. no suspension shall be made for a period in excess of thirty days,
provided, however, that upon reconsideration of all of the relevant
facts and circumstances, the governor may extend the suspension for
additional periods not to exceed thirty days each;
b. no suspension shall be made which does not safeguard the health and
welfare of the public and which is not reasonably necessary to the
disaster effort;
c. any such suspension order shall specify the statute, local law,
ordinance, order, rule or regulation or part thereof to be suspended and
the terms and conditions of the suspension;
d. the order may provide for such suspension only under particular
circumstances, and may provide for the alteration or modification of the
requirements of such statute, local law, ordinance, order, rule or
regulation suspended, and may include other terms and conditions;
e. any such suspension order shall provide for the minimum deviation
from the requirements of the statute, local law, ordinance, order, rule
or regulation suspended consistent with the disaster action deemed
necessary; and
f. when practicable, specialists shall be assigned to assist with the
related emergency actions to avoid needless adverse effects resulting
from such suspension.
3. Such suspensions shall be effective from the time and in the manner
prescribed in such orders and shall be published as soon as practicable
in the state bulletin.
4. The legislature may terminate by concurrent resolution executive
orders issued under this section at any time.
Use of disaster emergency response personnel in disasters. 1.
State use of disaster emergency response personnel and non-state
resource providers. a. The governor may, in their discretion, direct the
state disaster preparedness commission to conduct an emergency exercise
or drill, under its direction, in which all or any of the personnel and
resources of the agencies of the commission of the state may be utilized
to perform the duties assigned to them in a disaster, for the purpose of
protecting and preserving human life or property in a disaster. During a
disaster or such drill or exercise, disaster emergency response
personnel in the state shall operate under the direction and command of
the chair of such commission, and shall possess the same powers, duties,
rights, privileges and immunities as are applicable in a civil defense
drill held at the direction of the state civil defense commission under
the provisions of the New York state defense emergency act.
b. The governor may deploy non-state resource providers to another
compact member jurisdiction under any compact in this article. When
authorized to provide assistance and deployed by the legally designated
state official or officials, non-state resource providers shall be
deemed agents of the state for purposes of the deployment and shall be
entitled to the rights and benefits provided to state resource providers
by the compact, subject to any terms and conditions of the requesting
state. Non-state resource providers shall not offer assistance to, or
request assistance from, another compact member jurisdiction. The
division of homeland security and emergency services shall serve as the
coordinator for offers and requests for assistance and facilitator of
the reimbursement of non-state resource providers by the requesting
state. The division of homeland security and emergency services shall
not be responsible for reimbursement until the division receives payment
from the requesting compact member jurisdiction.
2. Local use of disaster emergency response personnel. a. Upon the
threat or occurrence of a disaster, and during and immediately following
the same, and except as otherwise provided in paragraph d of this
subdivision, the county chief executive may direct the emergency
management director of a county to assist in the protection and
preservation of human life or property by calling upon disaster
emergency response personnel employed by or supporting that county, as
specified in the county comprehensive emergency management plan, to
perform the emergency response duties assigned to them.
b. The disaster emergency response personnel of the county shall be
regarded as a reserve disaster force to be activated, in whole or in
part, by the county emergency management director upon the direction of
the county chief executive when the county chief executive, in his or
her discretion, is convinced that the personnel and resources of local
municipal and private agencies normally available for disaster
assistance are insufficient adequately to cope with the disaster.
c. Except as provided in paragraph d of this subdivision, the county
chief executive may exercise the power conferred upon him in paragraph a
of this subdivision, or may deactivate the disaster emergency response
personnel of the county in whole or in part, on his own motion or upon
the request of the chief executive officer of a village, town or city
located within the county of which he is an officer.
d. Where the local office of public safety or emergency management in
a city is independent of the county office of public safety or emergency
management and is not consolidated therewith, the county chief executive
may direct the emergency management director of the county to render
assistance within such city only when the chief executive officer of
such city has certified to him that the disaster emergency response
personnel of the city have been activated pursuant to the provisions of
subdivision three of this section and that all resources available
locally are insufficient adequately to cope with the disaster.
e. When performing disaster assistance pursuant to this section,
county disaster emergency response personnel shall operate under the
direction and command of the county emergency management director and
his or her duly authorized deputies, and shall possess the same powers,
duties, rights, privileges and immunities they would possess when
performing their duties in a locally sponsored civil defense drill or
training exercise in the civil or political subdivision in which they
are enrolled, employed or assigned emergency response responsibilities.
f. The chief executive officer of a city shall be responsible for the
conduct of disaster operations within the city, including the operations
directed by the county emergency management director when rendering
disaster assistance within a city pursuant to this section.
g. Outside of a city, the sheriff of the county, and in Nassau county
the commissioner of police of the county of Nassau, shall supervise the
operations of the emergency management director when rendering peace
officer duties incident to disaster assistance. The sheriff and such
commissioner may delegate such supervisory power to an elected or
appointed town or village official in the area affected.
h. Neither the chief executive officer of a city, nor the county chief
executive, nor any elected or appointed town or village official to whom
the county chief executive has delegated supervisory power as aforesaid
shall be held responsible for acts or omissions of disaster emergency
response personnel when performing disaster assistance.
3. City use of disaster emergency response personnel. a. Upon the
threat or occurrence of a disaster, and during and immediately following
the same, and except as otherwise provided in paragraph d of this
subdivision, the chief executive of a city may direct the emergency
management director of the city to assist in the protection and
preservation of human life or property by calling upon city disaster
emergency response personnel to perform the emergency response duties
assigned to them.
b. The disaster emergency response personnel of the city shall be
regarded as a reserve disaster force to be activated, in whole or in
part, by the city emergency management director upon the direction of
the chief executive officer of the city when the latter, in his or her
discretion, is convinced that the personnel and resources of local
municipal and private agencies normally available for disaster
assistance are insufficient adequately to cope with the disaster.
c. Except as provided in paragraph d of this subdivision, the chief
executive officer of a city may exercise the power conferred upon him in
paragraph a of this subdivision, or may deactivate the disaster
emergency response personnel of the city in whole or in part, on his own
motion or upon the request of the head of the city police force.
d. Where the local office of emergency management in a city is under
the jurisdiction of a consolidated county office of civil defense as
provided in the New York state defense emergency act, the chief
executive officer of such city seeking the assistance of disaster
emergency response personnel in the protection and preservation of human
life or property within such city because of such disaster, must request
the same from the county chief executive in which such city is located,
in the same manner as provided for assistance to towns and villages in
subdivision two of this section.
e. When performing disaster assistance pursuant to this subdivision,
disaster emergency response personnel shall operate under the direction
and command of the city emergency management director and his or her
duly authorized deputies, and shall possess the same powers, duties,
rights, privileges, and immunities they would possess when performing
their duties in a locally sponsored civil defense drill or training
exercise in the city in which they are enrolled, employed or assigned
emergency response responsibilities.
f. Where the city disaster emergency response personnel have been
directed to assist in local disaster operations pursuant to paragraph a
of this subdivision, and the chief executive officer of the city is
convinced that the personnel and resources of local municipal and
private agencies normally available for disaster assistance, including
local disaster emergency response personnel, are insufficient adequately
to cope with the disaster, he or she may certify the fact to the county
chief executive and request the county chief executive to direct the
county emergency management director to render assistance in the city,
as provided in subdivision two of this section.
g. The chief executive officer of a city shall be responsible for the
conduct of disaster operations within the city, including the operations
directed by the county emergency management director, when rendering
disaster assistance within a city pursuant to this subdivision.
h. Neither the chief executive officer of a city, nor the county chief
executive, shall be held responsible for acts or omissions of disaster
emergency response personnel when performing disaster assistance.
Radiological preparedness. 1. The commission:
(a) may monitor directly and record the off-site presence of
radioactive material in the vicinity of nuclear electric generating
facilities located in the state of New York;
(b) shall obtain from the licensees, United States nuclear regulatory
commission-required high range radiation, temperature and pressure
levels in the containment buildings and in the containment building
vents of nuclear electric generating facilities located in the state of
New York; and,
(c) shall obtain, subject to the approval of the United States nuclear
regulatory commission, any reactor data provided by the licensee to the
United States nuclear regulatory commission, which the disaster
preparedness commission determines, as a result of the report issued
pursuant to section twenty-nine-d of this article, to be a reliable
indicator of a possible radiological accident.
Upon the occurrence of a radiological accident, the commission shall
promptly provide appropriate and available radioactivity monitoring data
to any chief executive who requests it. For the purposes of this
section, the term "radiological accident" shall be limited to a
radiological accident occurring at a nuclear electric generating
facility.
2. (a) Any licensee of the United States nuclear regulatory commission
for a nuclear electric generating facility shall be liable for an annual
fee to support state and local governmental responsibilities under
accepted radiological emergency preparedness plans related to the
facility operated by such licensee.
(b) The amount of such fee shall be one million dollars. Such fee,
which shall be payable to the commission on or before December first,
shall be expended or distributed only by appropriation.
3. Such fees shall be expended by the commission for purposes of
supporting state and local government responsibilities under accepted
radiological emergency preparedness plans, including:
(a) purchase, installation, maintenance and operation of equipment
used by the commission and local governments to monitor and record the
potential and actual presence of radioactive materials within the
appropriate planning radius from a nuclear electric generating facility;
(b) purchase, storage and distribution by the commission of equipment,
drugs or other material for the purpose of protecting public health and
safety;
(c) personal service, administrative costs and contractual services;
(d) emergency services personnel training and the plans, development,
implementation, testing and revisions; and,
(e) the state or local share when applying for matching funds.
3-a. (a) Notwithstanding the provisions of subdivision three of this
section, the New York state emergency management office (SEMO) and the
coalition of nuclear counties, which constitutes the counties of Monroe,
Wayne, Oswego, Orange, Putnam, Rockland and Westchester, shall each
receive an equal one-half portion of the total amount of proceeds
resulting from the total assessments and contributions made pursuant to
this section.
(b) The one-half portion of the proceeds resulting from the total
assessments and contributions made pursuant to this section received by
the coalition of nuclear counties shall be distributed pursuant to the
following formula:
Monroe county 12.3%
Orange county 10%
Oswego county 12.5%
Putnam county 9.8%
Rockland county 18%
Wayne county 12.4%
Westchester county 25%
Reports. In order to assess the present preparedness in the
state for any radiological accident and to determine the need for, and
appropriateness of, any additional specific steps by state government,
the commission shall report to the governor and the legislature by
January first, nineteen hundred eighty-two, its findings,
recommendations and proposed legislation where appropriate concerning:
1. The need for and appropriateness of additional specific state
activities or programs beyond those required by the accepted
radiological emergency preparedness plans or provided for under existing
law, including but not limited to:
(a) radiological monitoring equipment;
(b) warning systems and equipment;
(c) medical technologies and equipment;
(d) plume transport and dose assessment models; and
(e) nuclear fuel cycle and materials licensees other than electric
generating facilities.
2. Any such recommendations shall be developed in consultation with
all concerned public and private parties and shall:
(a) take into account proven safety effectiveness;
(b) outline any proposed costs and the means for meeting such costs;
(c) consider related activities of the United States nuclear
regulatory commission or others; and
(d) when appropriate, discuss alternatives and various implementation
stages.
New York state emergency assistance program. 1. For purposes
of this section the following terms shall have the following meanings:
(a) "Infrastructure" shall mean and include publicly owned storm and
sanitary sewers, water supply systems, drainage systems, transportation
systems, roads and bridges.
(b) "Municipality" shall mean any county, city, village, or town of
the state.
(c) "Public facilities" shall mean and include publicly owned
buildings, including traditional government buildings, such as
courthouses, firehouses, police stations, parks, recreational
facilities, and correctional facilities.
(d) "Fund" shall mean the state's contingency reserve fund established
by law.
(e) "The office of emergency management" shall mean the office within
the division of homeland security and emergency services.
2. The governor may, upon a finding that a municipality in the state
has suffered substantial damage by an unanticipated natural disaster
which has resulted in significant economic distress within such
municipality, issue a declaration of significant economic distress in
accordance with the provisions herein. In determining whether such
significant economic distress exists, the governor shall consider
whether the following criteria have been met:
(a) the municipality suffered a substantial loss of assessed value;
(b) substantial damage has occurred to municipal buildings, facilities
and infrastructure;
(c) the cost incurred by the municipality for clean-up operations is
significant;
(d) businesses within the municipality have experienced significant
economic loss due to the inability to conduct normal business due to the
disaster;
(e) a significant increase in unemployment claims filed by persons
employed within the municipality has occurred; and
(f) the county or the county within which the municipality is located
has been declared eligible by the United States small business
administration for physical disaster and economic injury disaster loans.
In addition, the governor shall also consider the extent that other
financial resources, including federal assistance and insurance, are
available to assist the municipality to repair damage caused by the
disaster.
3. (a) Upon the issuance of a declaration of significant economic
distress due to unanticipated natural disaster by the governor, a
municipality recognized by the governor as being affected by such
disaster which occurred on or after December first, nineteen hundred
ninety-two, may apply to the division of homeland security and emergency
services on a form prescribed by such office, for reimbursement from the
state's contingency reserve fund for reimbursement of extraordinary and
unanticipated costs associated with the reconstruction or repair of
public buildings, facilities or infrastructure.
(b) Where the municipality applying for assistance authorized pursuant
to this section is a city, and such application pertains to a county
wholly contained within such city, such city may submit separate
applications for such assistance for each such county.
(c) Such municipality shall be granted the assistance provided
pursuant to this section, within the amounts made available by
appropriation from the fund, upon approval of such application, provided
that such municipality agrees to have a local disaster preparedness plan
pursuant to section twenty-three of this article in effect by December
thirty-first, nineteen hundred ninety-three. On or after December
thirty-first, nineteen hundred ninety-three, no municipality shall be
eligible for reimbursement of such expenses unless such plan is in
effect.
(d) Municipalities which have received assistance pursuant to this
section shall, as soon thereafter as may be possible, amend their
respective local disaster preparedness plans to include corrective
measures that must be taken in order to avoid, to the extent possible,
similar emergencies in the future.
(e) Municipalities applying for assistance pursuant to this section
shall accurately describe the emergency conditions which necessitate the
expenditure of funds for which reimbursement is being sought pursuant to
this section.
(f) In providing assistance pursuant to this section, the division of
homeland security and emergency services may give preference to
applicants which demonstrate the greatest need or which document that
such assistance will be utilized to bring the applicant into compliance
with federal or state law.
(g) In the event that amounts appropriated are insufficient to provide
for full reimbursement of all extraordinary and unanticipated costs
incurred by such municipality approved for reimbursement pursuant to
this section, the division of homeland security and emergency services
is authorized to provide a pro rata share of the appropriations,
appropriated herein, to such municipality.
4. (a) The commissioner of the division of homeland security and
emergency services as defined in article twenty-six of this chapter with
the advice and consent of the disaster preparedness commission created
pursuant to this article, shall have the power to make such rules and
regulations as may be necessary and proper to effectuate the purposes of
this section.
(b) The commissioner of the division of homeland security and
emergency services shall by March fifteenth of each year report to the
governor and the legislature describing the activities and operation of
the program authorized by this section. Such report shall set forth the
number of reimbursement applications received and approved; the
identities of the counties, cities, towns and villages receiving
reimbursement together with the amount and purpose of the reimbursement.
Emergency management assistance compact. 1. The emergency
management assistance compact is made and entered into by and between
the participating member states which enact this compact, hereinafter
called party states. For the purposes of this agreement, the term
"states" is taken to mean the several states, the commonwealth of Puerto
Rico, the District of Columbia, and all United States territorial
possessions.
The purpose of this compact is to provide for mutual assistance
between the states entering into this compact in managing any emergency
or disaster that is duly declared by the governor of the affected state
or states, whether arising from natural disaster, technological hazard,
man-made disaster, civil emergency aspects of resource shortages,
community disorders, insurgency or enemy attack.
This compact shall also provide for mutual cooperation in
emergency-related exercises, testing or other training activities using
equipment and personnel simulating performance of any aspect of the
giving and receiving of aid by party states or subdivisions of party
states during emergencies, such actions occurring outside actual
declared emergency periods. Mutual assistance in this compact may
include the use of the states' national guard forces, either in
accordance with the national guard mutual assistance compact or by
mutual agreement between states.
2. Each party state entering into this compact recognizes that many
emergencies transcend political jurisdictional boundaries and that
intergovernmental coordination is essential in managing these and other
emergencies under this compact. Each state further recognizes that there
will be emergencies which require immediate access and present
procedures to apply outside resources to make a prompt and effective
response to such an emergency. This is because few, if any, individual
states have all the resources they may need in all types of emergencies
or the capability of delivering resources to areas where emergencies
exist.
The prompt, full and effective utilization of resources of the
participating states, including any resources on hand or available from
the federal government or any other source, that are essential to the
safety, care and welfare of the people in the event of any emergency or
disaster declared by a party state, shall be the underlying principle on
which all provisions of this compact shall be understood.
On behalf of the governor of each state participating in the compact,
the legally designated state official who is assigned responsibility for
emergency management will be responsible for formulation of the
appropriate interstate mutual aid plans and procedures necessary to
implement this compact.
3. (a) It shall be the responsibility of each party state to formulate
procedural plans and programs for interstate cooperation in the
performance of the responsibilities listed in this section. In
formulating such plans, and in carrying them out, the party states,
insofar as practical, shall:
(1) Review individual state hazard analysis and, to the extent
reasonably possible, determine all those potential emergencies the party
states might jointly suffer, whether due to natural disaster,
technological hazard, man-made disaster, emergency aspects or resource
shortages, civil disorders, insurgency or enemy attack.
(2) Review party states' individual emergency plans and develop a plan
which will determine the mechanism for the interstate management and
provision of assistance concerning any potential emergency.
(3) Develop interstate procedures to fill any identified gaps and to
resolve any identified inconsistencies or overlaps in existing or
developed plans.
(4) Assist in warning communities adjacent to or crossing the state
boundaries.
(5) Protect and assure uninterrupted delivery of services, medicines,
water, food, energy and fuel, search and rescue and critical lifeline
equipment, services and resources, both human and material.
(6) Inventory and set procedures for the interstate loan and delivery
of human material resources, together with procedures for reimbursement
or forgiveness.
(7) Provide, to the extent authorized by law, for temporary suspension
of any statutes or ordinances that restrict the implementation of the
above responsibilities.
(b) The authorized representative of a party state may request
assistance of another party state by contacting the authorized
representative of that state. The provisions of this agreement shall
only apply to requests for assistance made by and to authorized
representatives. Requests may be verbal or in writing. If verbal, the
request shall be confirmed in writing within thirty days of the verbal
request. Requests shall provide the following information:
(1) A description of the emergency service function for which
assistance is needed, such as, but not limited to, fire services, law
enforcement, emergency medical, transportation, communications, public
works and engineering, building inspection, planning and information
assistance, mass care, resource support, health and medical services,
and search and rescue.
(2) The amount and type of personnel, equipment, materials and
supplies needed, and a reasonable estimate of the length of time that
they will be needed.
(3) The specific place and time for staging of the assisting party's
response and a point of contact at that location.
(c) There shall be frequent consultation between state officials who
have assigned emergency management responsibilities and other
appropriate representatives of the party states with affected
jurisdictions and the United States government, with free exchange of
information, plans and resource records relating to emergency
capabilities.
4. Any party state requested to render mutual aid or conduct exercises
and training for mutual aid shall take such action as is necessary to
provide and make available the resources covered by this compact in
accordance with the terms hereof provided, that it is understood that
the state rendering aid may withhold resources to the extent necessary
to provide reasonable protection for such state.
Each party state shall afford to the emergency forces of any party
state, while operating within its state limits under the terms and
conditions of this compact, the same powers (except that of arrest
unless specifically authorized by the receiving state), duties, rights
and privileges as are afforded forces of the state in which they are
performing emergency services. Emergency forces will continue under the
command and control of their regular leaders, but the organizational
units will come under the operational control of the emergency services
authorities of the state receiving assistance. These conditions may be
activated, as needed, only subsequent to a declaration of a state of
emergency or disaster by the governor of the party state that is to
receive assistance or commencement of exercises or training for mutual
aid and shall continue so long as the exercises or training for mutual
aid are in progress, the state, or states, of emergency or disaster
remains in effect or loaned resources remain in the receiving states,
whichever is longer.
5. Whenever any person holds a license, certificate or other permit
issued by any state party to the compact evidencing the meeting of
qualifications for professional, mechanical or other skills, and when
such assistance is requested by the receiving party state, such person
shall be deemed licensed, certified, or permitted by the state
requesting assistance to render aid involving such skill to meet a
declared emergency or disaster, subject to such limitations and
conditions as the governor of the requesting state may prescribe by
executive order or otherwise.
6. Officers or employees of a party state rendering aid in another
state pursuant to this compact shall be considered agents of the
requesting state for tort liability and immunity purposes and no party
state or its officers or employees rendering aid in another state
pursuant to this compact shall be liable on account or any act or
omission in good faith on the part of such forces while so engaged or on
account of the maintenance or use of any equipment or supplies in
connection therewith. Good faith shall not include willful misconduct,
gross negligence or recklessness.
7. Inasmuch as it is probable that the pattern and detail of the
machinery for mutual aid among two or more states may differ from that
among the states that are parties hereto, this instrument contains
elements of a broad base common to all states, and nothing contained
herein shall preclude any state from entering into supplementary
agreements with another state or affect any other agreements already in
force between states. Supplementary agreements may comprehend, but shall
not be limited to, provisions for evacuation and reception of injured
and other persons and the exchange of medical, fire, police, public
utility, reconnaissance, welfare, transportation and communications
personnel, and equipment and supplies.
8. Each party state shall provide for the payment of compensation and
death benefits to injured members of the emergency forces of that state
and representatives of deceased members of such forces in case such
members sustain injuries or are killed while rendering aid pursuant to
this compact, in the same manner and on the same terms as if the injury
or death were sustained within their own state.
9. Any party state rendering aid in another state pursuant to this
compact shall be reimbursed by the party state receiving such aid for
any loss or damage to or expense incurred in the operation of any
equipment and the provision of any service in answering a request for
aid and for the costs incurred in connection with such requests
provided, that any aiding party state may assume, in whole or in part,
such loss, damage, expense or other cost, or may loan such equipment or
donate such services to the receiving party state without charge or cost
provided, however, that any two or more party states may enter into
supplementary agreements establishing a different allocation of costs
among those states. Expenses under subdivision eight of this section
shall not be reimbursable under this provision.
10. Plans for the orderly evacuation and interstate reception of
portions of the civilian population as the result of any emergency or
disaster of sufficient proportions to so warrant, shall be worked out
and maintained between the party states and the emergency
management/services directors of the various jurisdictions where any
type of incident requiring evacuations might occur. Such plans shall be
put into effect by request of the state from which evacuees come and
shall include the manner of transporting such evacuees, the number of
evacuees to be received in different areas, the manner in which food,
clothing, housing and medical care will be provided, the registration of
the evacuees, the providing of facilities for the notification of
relatives or friends, and the forwarding of such evacuees to other areas
or the bringing in of additional materials, supplies and all other
relevant factors. Such plans shall provide that the party state
receiving evacuees and the party state from which the evacuees come
shall mutually agree as to reimbursement of out-of-pocket expenses
incurred in receiving and caring for such evacuees, for expenditures for
transportation, food, clothing, medicines and medical care, and like
items. Such expenditures shall be reimbursed as agreed by the party
state from which the evacuees come. After the termination of the
emergency or disaster, the party state from which the evacuees come
shall assume the responsibility for the ultimate support of repatriation
of such evacuees.
11. (a) This compact shall become operative immediately upon its
enactment into law by any two states; thereafter, this compact shall
become effective as to any other state upon its enactment by such state.
(b) Any party state may withdraw from this compact by enacting a
statute repealing the same, but no such withdrawal shall take effect
until thirty days after the governor of the withdrawing state has given
notice in writing of such withdrawal to the governors of all other party
states. Such action shall not relieve the withdrawing state from
obligations assumed hereunder prior to the effective date of withdrawal.
(c) Duly authenticated copies of this compact and of such
supplementary agreements as may be entered into shall, at the time of
their approval be deposited with each of the party states and with the
federal emergency management agency and other appropriate agencies of
the United States government.
12. This compact shall be construed to effectuate the purposes stated
in subdivision one of this section. If any provision of this compact is
declared unconstitutional, or the applicability thereof to any person or
circumstances is held invalid, the constitutionality of the remainder of
this compact and the applicability thereof to other persons and
circumstances shall not be affected thereby.
13. Nothing in this compact shall authorize or permit the use of
military forces by the National Guard of a state at any place outside
the state in any emergency for which the president is authorized by law
to call into federal service the militia, or for any purposes for which
the use of the army or the air force would in the absence of express
statutory authorization be prohibited under section 1385 of title 18,
United States code.
14. The legally designated state official who is assigned
responsibility for emergency management shall not offer resources to, or
request resources from, another compact member state, without prior
discussion with and concurrence from the state agency, department,
office, division, board, bureau, commission or authority that may be
asked to provide resources or that may utilize resources from another
compact member state.
15. The director of the state emergency management office shall, on or
before the first day of January, two thousand two, provide to the
legislature and the governor copies of all mutual aid plans and
procedures promulgated, developed or entered into after the effective
date of this section. The director of the state emergency management
office shall annually hereafter provide the legislature and governor
with copies of all new or amended mutual aid plans and procedures on or
before the first day of January of each year.
Intrastate mutual aid program. 1. Creation. There is hereby
created the intrastate mutual aid program to complement existing mutual
aid agreements in the event of a disaster that results in a formal
declaration of an emergency by a participating local government. All
local governments within the state, excepting those which affirmatively
choose not to participate in accordance with subdivision four of this
section, are deemed to be participants in the program; provided,
however, with respect to school districts and boards of cooperative
educational services, such participation shall be limited to the sharing
of facilities management and administrative personnel and equipment.
2. Definitions. As used in this section, the following terms shall
have the following meanings:
a. "Employee" means any person holding a position by election,
appointment, or employment by a local government;
b. "Local government" means any county, city, town, village, school
district or board of cooperative educational services of the state;
c. "Local emergency management director" means the local government
official responsible for emergency preparedness, response and recovery;
d. "Requesting local government" means the local government that asks
another local government for assistance during a declared emergency, or
for the purposes of conducting training, or undertaking a drill or
exercise;
e. "Assisting local government" means one or more local governments
that provide assistance pursuant to a request for assistance from a
requesting local government during a declared emergency, or for the
purposes of conducting training, or undertaking a drill or exercise;
f. "Disaster" shall have the same meaning as in section twenty of this
article;
g. "School district" shall have the same meaning as in title two of
the education law, including any public school district and any special
act school district as defined in section four thousand one of the
education law; and
h. "Board of cooperative educational services" shall have the same
meaning as in section nineteen hundred fifty of the education law.
3. Intrastate mutual aid program committee established; meetings;
powers and duties. a. There is hereby created within the disaster
preparedness commission an intrastate mutual aid program committee, for
purposes of this section to be referred to as the committee, which shall
be chaired by the commissioner of the division of homeland security and
emergency services, and shall include the state fire administrator, the
commissioner of health, the commissioner of education and the
commissioner of agriculture and markets, provided that each such
official may appoint a designee to serve in his or her place on the
committee. The committee shall also include five representatives from
local public safety or emergency response agencies and one
representative from a school district or board of cooperative
educational services. Such representatives, who shall serve a maximum
two-year term, shall be appointed by the commissioner of the division of
homeland security and emergency services, with regard to a balance of
geographic representation and discipline expertise.
b. The committee, on the call of the chairperson, shall meet at least
twice each year and at such other times as may be necessary. The agenda
and meeting place of all regular meetings shall be made available to the
public in advance of such meetings and all such meetings shall be open
to the public.
c. The committee shall have the following powers and responsibilities:
(1) to promulgate rules and regulations, acting through the division
of homeland security and emergency services, to implement the intrastate
mutual aid program as described in this section;
(2) to develop policies, procedures and guidelines associated with the
program, including a process for the reimbursement of assisting local
governments by requesting local governments;
(3) to evaluate the use of the intrastate mutual aid program;
(4) to examine issues facing participating local governments regarding
the implementation of the intrastate mutual aid program; and
(5) to prepare reports to the disaster preparedness commission
discussing the effectiveness of mutual aid in the state and making
recommendations for improving the efficacy of the system, if
appropriate.
4. Local government participation in the intrastate mutual aid
program. a. A local government may elect not to participate in the
intrastate mutual aid program, or to withdraw from the program, by its
governing body enacting a resolution declaring that it elects not to
participate in the program and providing such resolution to the division
of homeland security and emergency services. Participation in the
program will continue until a copy of such resolution is received and
confirmed by the division of homeland security and emergency services.
b. A local government that has declined to participate in the program
may, acting by resolution through its governing body and providing a
copy of the resolution to the division of homeland security and
emergency services, elect to participate in the program.
c. Nothing in this section shall preclude a local government from
entering into mutual aid agreements with other local governments or
other entities with terms that supplement or differ from the provisions
of this section.
d. Nothing in this section shall affect any other agreement to which a
local government may currently be a party, or later enter into,
including, but not limited to, the state fire mobilization and mutual
aid plan.
5. Fire related resources. Notwithstanding the authority vested
pursuant to this section, all fire related resources shall be
administered pursuant to section two hundred nine-e of the general
municipal law.
6. Requesting assistance under the intrastate mutual aid program. a.
Subject to the restrictions on school districts and boards of
cooperative educational services set forth in subdivision one of this
section, the state or a participating local government may request
assistance of other participating local governments in preventing,
mitigating, responding to and recovering from disasters that result in
the declaration of a state disaster emergency or locally-declared
emergencies, or for the purpose of conducting multi-jurisdictional or
regional training, drills or exercises. Requests for assistance may be
made verbally or in writing; verbal requests shall be memorialized in
writing as soon thereafter as is practicable. Notwithstanding the
provisions of section twenty-five of this article, the local emergency
management director shall have the authority to request and accept
assistance and deploy the local resources of his or her jurisdiction
under the intrastate mutual aid program. The director of the state
office of emergency management is authorized to request and accept
assistance pursuant to this section.
b. Once an emergency is declared at the county level, all requests and
offers for assistance, to the extent practical, shall be made through
the county emergency management office, or in the case of the city of
New York, through the city emergency management office. All requests for
assistance should include:
(1) a description of the disaster;
(2) a description of the assistance needed;
(3) a description of the mission for which assistance is requested;
(4) an estimate of the length of time the assistance will be needed;
(5) the specific place and time for staging of the assistance and a
point of contact at that location; and
(6) any other information that will enable an assisting local
government to respond appropriately to the request.
c. Assisting local governments shall submit to the state or requesting
local government an inventory of the resources being deployed.
d. The written request for assistance and all inventories of resources
being deployed shall be submitted to the division of homeland security
and emergency services within three calendar days of the request for or
deployment of such resources.
7. Division of homeland security and emergency services
responsibilities under the intrastate mutual aid program. The division
of homeland security and emergency services shall provide notification
by mail to each local government with a comprehensive description of the
intrastate mutual aid program, including a statement that all local
governments are participants of the program unless they expressly opt
out pursuant to subdivision four of this section; maintain a current
list of participating local governments with their authorized
representatives and contact information, and provide a copy of the list
to each of the participating local governments on an annual basis during
the second quarter of each calendar year; monitor and report to the
intrastate mutual aid program committee on the use of the intrastate
mutual aid program; coordinate the provision of mutual aid resources in
accordance with the comprehensive emergency management plan and
supporting protocols; identify mutual aid best practices; when
practical, provide the committee with statistical information related to
the use of mutual aid during recent regional disaster responses; and
assist with the development, implementation and management of a
state-wide resource typing system.
8. Reimbursement of assisting local government by the state or
requesting local government; resolving disputes regarding reimbursement.
a. Any assisting local government requesting reimbursement under this
program for loss, damage or expenses incurred in connection with the
provision of assistance that seeks reimbursement by the state or
requesting local government shall make such request in accordance with
procedures developed by the intrastate mutual aid committee.
b. Notwithstanding the provisions of section twenty-five of this
article or any inconsistent provision of law to the contrary, the state
or any requesting local government requesting assistance under this
program shall be liable and responsible to the assisting local
government for any loss or damage to equipment or supplies and shall
bear and pay the expense incurred in the operation and maintenance of
any equipment and the cost of materials and supplies used in rendering
assistance under this section.
c. The assisting local government shall be liable for salaries or
other compensation for its employees deployed to the state or a
requesting local government during the time they are not rendering
assistance pursuant to such request, and shall defray the actual
traveling and maintenance expense of its employees and equipment while
they are rendering assistance under this section. The state or
requesting local government shall reimburse the assisting local
government for any moneys paid for such salaries or other compensation
and traveling and maintenance expenses incurred from activities
performed while rendering assistance under this program.
d. Notwithstanding paragraph c of this subdivision, any voluntary
ambulance service rendered pursuant to a request for assistance under
this program that affects a volunteer ambulance workers service award or
supplemental service award from a service award program or a
supplemental service award program established pursuant to article
eleven-aa, article eleven-aaa, or article eleven-aaaa of the general
municipal law shall be the responsibility of the political subdivision
which adopted the service award program or supplemental service award
program and not the responsibility of the state or requesting local
government.
e. Where a dispute arises between an assisting local government and
the state or a requesting local government regarding reimbursement for
loss, damages or expenses incurred in connection with the provision of
aid, the parties will make every effort to resolve the dispute within
thirty business days of written notice of the dispute by the party
asserting noncompliance.
9. Performance of services. a. (1) Employees of an assisting local
government shall continue under the administrative control of their home
jurisdiction. However, in all other cases where not prohibited by
general, special or local law, rule or regulation, employees of an
assisting local government shall be under the direction and control of
the director of the state office of emergency management, local
emergency management director or other official charged with performing
emergency management functions for the state or requesting local
government;
(2) Performance by employees of an assisting local government of
services for the state or a requesting local government pursuant to this
section shall have no impact upon whether negotiating unit employees
represented by an employee organization, recognized or certified
pursuant to section two hundred six or two hundred seven of the civil
service law, exclusively perform such services, as that phrase is used
by the public employment relations board, on behalf of the state or
requesting local government;
b. Assets and equipment of an assisting local government shall
continue under the ownership of the assisting local government, but
shall be under the direction and control of the director of the state
office of emergency management, local emergency management director or
other official charged with performing emergency management functions
for the state or requesting local government.
10. Liability. a. Each local government is responsible for procuring
and maintaining insurance or other coverage as it deems appropriate.
b. While rendering assistance under the intrastate mutual aid program,
employees of the assisting local government shall have the same
immunities and privileges as if such duties were performed within their
home jurisdiction. An assisting local government providing assistance
pursuant to the intrastate mutual aid program shall be liable for the
negligence of its employees, which occurs in the performance of their
duties in the same manner and to the same extent as if such negligence
occurred in the performance of their duties in their home jurisdiction.
c. Employees of an assisting local government responding to or
rendering assistance pursuant to a request for assistance who sustain
injury or death in the course of, and arising out of, their response are
entitled to all applicable benefits as if they were responding in their
home jurisdiction. The assisting local government shall be liable for
all costs or payments for such benefits as required by law.
d. Nothing in this section shall be construed to prevent the assisting
and requesting local governments from agreeing to other terms related to
liability and compensation. Local governments may choose to enter into
an agreement, at any time, to alter these terms as they deem necessary.
e. Nothing in this section shall be construed to provide any
protection against liability, or to create any liability, for an
individual who responds to a state of emergency where aid has not been
requested, or where aid has not been authorized by the individual's home
jurisdiction.
11. Obligation of insurers. Nothing in this section shall impair,
alter, limit or modify the rights or obligations of any insurer under
any policy of insurance.
12. License, certificate and permit portability. a. State certified
emergency medical services providers who respond outside of their normal
jurisdiction pursuant to a request for assistance under this program
shall follow their normal operating protocols as if they were responding
and rendering services in their home jurisdiction.
b. Any other individual authorized and deployed by a participating
local government when responding pursuant to a request for assistance
under this program shall have the same powers and duties as if they were
responding in their home jurisdiction.
Immunity from liability for emergency alerts. Any provider of
mobile services, as defined in 47 U.S.C. 153, including its officers,
directors, employees, affiliates, vendors and agents, acting on behalf
of the state, and any third-party intermediary transmission service
provider, including such third-party intermediary transmission service
provider's affiliates, officers, directors, employees, vendors and
agents, acting directly or indirectly on behalf of the state or on
behalf of any such provider of mobile services, that transmits emergency
alerts similar to those described in 47 CFR 10.10 and 10.400, or that
transmits any other type or form of emergency alert messages, shall not
be liable for any act or omission related to or any harm resulting from
the transmission of, or failure to transmit, an emergency alert,
provided that such provider, officer, director, employee, affiliate,
vendor or agent acted reasonably and in good faith.
Acceptance of gifts. 1. The state office of emergency
management within the division of homeland security and emergency
services may accept any assistance, including but not limited to gifts
or grants of real or personal property, but not including money, from
any public or private source for the purpose of preparing for,
responding to, or recovering from a state disaster emergency. Such
assistance may be used to support state and local disaster operations or
distributed to disaster response organizations supporting local disaster
response operations. To the extent practicable, the office of emergency
management shall distribute such assistance in consultation with local
governments, not-for-profit organizations, and other disaster response
organizations that have experience responding to state disaster
emergencies.
2. The state office of emergency management shall maintain a database
of all assistance accepted during the state disaster emergency and shall
make such information available to the public on its website. The
database shall include, but is not limited to, the name of the donor,
type of assistance provided, value of the assistance, recipient of the
assistance (if available), date of the donation and date of
distribution.
3. The director of the office of emergency management, in consultation
with the commissioner of the division of homeland security and emergency
services, may promulgate rules and regulations necessary to implement
this section.
Northern emergency management assistance compact.
Notwithstanding any other law, the state, through the governor, may
enter the northern emergency management assistance compact (P.L.
112-282, ratified by Congress on January fourteenth, two thousand
thirteen). Such compact shall be deemed ratified by the legislature upon
the governor's certification to the temporary president of the senate,
the speaker of the assembly, and the secretary of state, that New York
has entered into the compact.
International Emergency Management Assistance Compact.
Notwithstanding any other law, the state, through the governor, may
enter the compact established by the emergency management assistance
memorandum of understanding (executed on July eighteenth, two thousand
by the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode
Island, and Vermont and the Canadian provinces of New Brunswick,
Newfoundland, Nova Scotia, Prince Edward Island, and Quebec) at the
twenty-fifth conference of New England Governors and Eastern Canadian
Premiers, as authorized by Article II(j) of the Agreement between the
Government of the United States and the Government of Canada on
Cooperation in Comprehensive Emergency Planning and Management renewed
on December second, nineteen ninety-eight. Such compact shall be deemed
ratified by the legislature upon the governor's certification to the
temporary president of the senate, the speaker of the assembly, and the
secretary of state, that New York has entered into the compact.
ARTICLE 3 Executive Department
Executive department. There shall continue to be in the state
government an executive department. The head of the executive department
shall be the governor. The governor may appoint such subordinates and
employees as may be necessary for the exercise of his powers and the
performance of his duties as head of the executive department, and may
prescribe their duties and fix their compensation within the amounts
appropriated therefor.
Divisions. There shall be in the executive department the
following divisions:
1. The division of the budget.
2. The division of military and naval affairs.
3. The office of general services.
4. The division of state police.
5. The division of housing.
6. The division of alcoholic beverage control.
7. The division of human rights.
8. The division of homeland security and emergency services.
9. Office of information technology services.
The governor may establish, consolidate, or abolish additional
divisions and bureaus.
Authority not to renew. 1. For the purposes of this section,
"state agency" shall mean any state department, board, bureau, division,
commission, committee, public authority, public benefit corporation,
council, office, or other governmental entity performing a governmental
or proprietary function for the state.
2. Notwithstanding any other provision of law, when a state agency
levies fees or assesses civil fines or penalties for licensing or
regulatory matters, such state agency shall, following consultation with
the state department of law and after such appropriate due process as
required by the provisions of law applicable to such state agency and to
such licensing or regulatory matters, not be required to renew any
license, permit, or certificate of qualification, authority, or
operation, of any business, individual, or other entity, which is not a
state agency, municipal corporation or district corporation, if such
business, individual or other entity has failed to pay or enter into a
written agreement to settle outstanding fees, civil penalties or fines
assessed by such state agency.
ARTICLE 4 Department of Audit and Control
Department of audit and control; comptroller. There shall
continue to be in the state government a department of audit and
control.
1. The head of the department of audit and control shall be the
comptroller. He shall be paid an annual salary of one hundred fifty-one
thousand five hundred dollars.
2. The organization of the department of audit and control is
continued until changed by or pursuant to law. The comptroller may
establish such divisions, bureaus, sections and units in the department
as he may deem necessary and may consolidate, alter or abolish any of
them.
3. The functions of the comptroller, and his powers and duties
pertaining thereto, shall be exercised and performed in the department
of audit and control by the comptroller and by such divisions, bureaus,
sections, units and officers in the department as he may designate.
Deputies and assistants; undertakings. 1. The comptroller shall
appoint eight deputies, one of whom shall be the first deputy
comptroller. Such deputies shall receive annual salaries to be fixed by
the comptroller within amounts appropriated therefor. Each of such
deputies may perform any of the powers or duties of the comptroller.
2. The comptroller also may appoint such other officers, assistants
and employees as he may deem necessary for the exercise and performance
of his powers and duties and those of the department. Such officers,
assistants and employees shall receive such compensation as may be fixed
by the comptroller within the amounts appropriated therefor.
Deputy comptroller for the city of New York. In addition to
the deputies otherwise authorized by law, the comptroller shall, by and
with the advice and consent of the senate, appoint a deputy comptroller
for the city of New York. Such deputy may be removed or replaced by the
comptroller and shall receive an annual salary to be fixed by the
comptroller within the amounts appropriated therefor. Such deputy may
perform any of the powers or duties of the comptroller and he shall
assist the New York state financial control board created pursuant to
section five of the New York state financial emergency act for the city
of New York in carrying out and exercising the responsibilities assigned
and powers granted to such board.
Supervision of money paid into court. The comptroller shall
have power, at any time, to examine the books, papers, records and
accounts of any public office or officer of the state, or of any
subdivision of the state in anywise relating to moneys or securities
paid into court or ordered by any court of record or required by statute
to be so paid.
Examiners. 1. Whenever the comptroller may deem it necessary to
enable him to perform the duties imposed upon him by law with regard to
the inspection, examination and audit of the fiscal affairs of the state
or of the several officers, departments, institutions, public
corporations or political subdivisions thereof, he may assign the work
of such inspection, audit and examination to any examiner or examiners
appointed by him pursuant to law.
2. The comptroller is authorized to employ such examiners as he may
deem necessary to carry out the provisions of law in relation to his
duty as to money paid into court.
Records and data in aid of audit; destruction of certain papers.
1. Where powers and duties of the comptroller relate to moneys, funds or
securities of the state, or to state appropriations, or to funds and
securities administered under state supervision, or to obligations of
the state or of state agencies, the comptroller, except as provided in
subdivision two of this section, shall preserve all data and records
pertaining to his acts and proceedings in the exercise and performance
of such powers and duties, and of his transactions with other public
officers, and with corporations and individuals, in connection
therewith, to the end that the necessary information acquired by him
through such acts, proceedings and transactions may be at all times
available as an aid to the comptroller and his successors in exercising
the functions of audit of vouchers, official accounts, accrual and
collection of revenues and receipts, and of prescribed methods of
accounting.
2. Notwithstanding any other provision of this article, the
comptroller may destroy any of the following described papers now or
hereafter in the custody of the department of audit and control after
they have been in such custody six years or more:
a. Estimates and requisitions of state departments, commissions,
boards, bodies, officers and institutions;
b. Working papers;
c. Unsuccessful bids;
d. Any other papers which, in the judgment of the comptroller, are not
and will not be of use in connection with audits, accounts and
accountings, accrual and collection of revenues and receipts or payments
of moneys from the state treasury or from any fund or funds in his
custody.
The comptroller shall not destroy any papers which in his judgment
might be of historic value without first submitting a description
thereof to the commissioner of education and obtaining his consent to
their destruction. This subdivision shall not authorize the destruction
of any papers the preservation or production of which shall have been
directed by a court or judge for the purposes of an action or
proceeding.
Authority to represent the state as owner of abutting property.
Whenever by law owners of property abutting upon a street or highway, or
any number or percentage thereof, are authorized to petition or
otherwise initiate any proceeding respecting the use, occupation or
improvement of such street or highway, or the consent of such owners or
of any number or percentage thereof is a prerequisite to the use,
occupation or improvement of a street or highway, the comptroller in
behalf of the state, upon the approval of the attorney-general, is
authorized to join in any petition, take any action or consent to the
use, occupation or improvement of such a street or highway, affecting
the property of the state abutting upon such street or highway, with the
same force and effect, and subject to the same limitations and
conditions, as the owners of other property abutting upon such street or
highway.
Office of welfare inspector general. 1. There is hereby created
in the department of audit and control an office of welfare inspector
general. The head of the office shall be the welfare inspector general,
who shall be appointed by the comptroller, by and with the advice and
consent of the senate.
2. The comptroller shall fix the compensation of the welfare inspector
general within the amounts appropriated therefor.
Organization of offices; officers and employees. 1.
Notwithstanding any inconsistent provision of law, the welfare inspector
general may, from time to time, subject to the approval of the state
comptroller, create, abolish, transfer and consolidate divisions,
bureaus and other units within the office as he may determine necessary
for the efficient operation of the office.
2. The welfare inspector general may, subject to the approval of the
state comptroller, appoint such deputies, directors, assistants and
other officers and employees as may be needed for the performance of his
duties and may prescribe their powers and fix their compensation within
the amounts appropriated therefor.
General functions, powers and duties of office of welfare
inspector general. The office of welfare inspector general, by and
through the welfare inspector general, or his duly authorized deputy,
director, assistant, officer or employee, shall have the following
functions, powers and duties notwithstanding section one hundred
thirty-six of the social services law:
1. To receive and investigate complaints from the public or any other
source concerning alleged abuses, suspected frauds, and other violations
of the welfare system which shall be deemed to include medical
assistance. As used in this article, the term "medical assistance" shall
have the same meaning contained in section three hundred sixty-five-a of
the social services law.
2. To receive complaints of alleged failures to prosecute frauds
against the welfare system which shall be deemed to include medical
assistance and to investigate the same.
3. To receive complaints of alleged failures to enforce the state's
laws regarding the employment of welfare recipients in available
employment, and to investigate the same.
4. To receive complaints of alleged failures of local officials and
employees to comply with state laws and regulations regarding welfare
administration which shall be deemed to include medical assistance, and
to investigate the same.
5. On the initiative of the office and at the direction of the welfare
inspector general, to conduct any investigation: of the operations of
the state social services department and local social services
districts, the state health department and local health departments, and
the state department of mental hygiene and community mental health
boards in order to insure proper expenditure of welfare funds; of
violations of the welfare system; of failure to prosecute welfare
frauds; of failure to enforce the state's laws regarding the employment
of welfare recipients in available employment; of failure of local
officials and employees to comply with state law, rules, and regulations
regarding welfare administration which shall be deemed to include
medical assistance, and other matters relating thereto.
6. To exercise and perform such other functions, powers and duties as
may from time to time be conferred or imposed by law.
7. To make an annual report to the governor, the comptroller and the
legislature concerning its work during the preceding year, and to make
such further interim reports to them as they or any of them shall deem
advisable or require.
8. To conduct any inquiry pertinent or material to the discharge of
the functions, powers and duties imposed by law; and through designated
members of the staff, to subpoena witnesses, administer oaths, take
testimony and compel the production of such books, papers, records and
documents as may be relevant to any such inquiry and investigation.
9. To do all things necessary or convenient to carry out the
functions, powers and duties set forth in this article, to the extent
they conform with applicable federal requirements, if any.
10. To make, amend or repeal such rules and regulations as may be
necessary with the approval of the state comptroller, for the
performance of the duties imposed hereunder.
Cooperation and assistance of other agencies. The office of
welfare inspector general may request from any department, board,
bureau, commission or other agency of the state and its political
subdivisions, and the same are authorized and directed to provide, such
cooperation and assistance, services and data as will enable the office
properly to carry out its functions, powers and duties. As an incident
to rendering such cooperation and assistance, all governmental agencies
shall be required to submit a written response to the office of welfare
inspector general respecting its reports and findings when so requested
by said office. Section one hundred thirty-six of the social services
law shall in no way be construed to restrict any person or governmental
body from cooperating and assisting the welfare inspector general
hereunder. Section six hundred ninety-seven or any other provision of
the tax law shall in no way be construed to restrict the office of
welfare inspector general from obtaining the name, address, social
security number, employment history and number of dependents claimed for
any individual certified by the welfare inspector general, or his
designee, to be a welfare recipient and suspected of abusing, defrauding
or otherwise violating the welfare system.
Referral of evidence. 1. Upon the discovery of evidence of the
commission of a crime by any person, the welfare inspector general shall
refer such evidence to the district attorney of the county in which the
alleged crime occurred, for the appropriate action of such district
attorney.
2. Upon the discovery of evidence of a violation by a social services
official or employee of the laws, rules or regulations of the state
regarding welfare administration, the welfare inspector general shall
refer such evidence to the state commissioner of social services for
appropriate action of such commissioner.
ARTICLE 4-A Office of the State Inspector General
Jurisdiction. This article shall, subject to the limitations
contained herein, confer upon the office of the state inspector general,
jurisdiction over all covered agencies. For the purposes of this article
"covered agency" shall include all executive branch agencies,
departments, divisions, officers, boards and commissions, public
authorities (other than multi-state or multi-national authorities), and
public benefit corporations, the heads of which are appointed by the
governor and which do not have their own inspector general by statute.
Wherever a covered agency is a board, commission, a public authority or
public benefit corporation, the head of the agency is the chairperson
thereof.
Establishment and organization. 1. There is hereby established
the office of the state inspector general in the executive department.
The head of the office shall be the state inspector general who shall be
appointed by the governor.
2. The state inspector general shall hold office until the end of the
term of the governor by whom he or she was appointed and until his or
her successor is appointed and has qualified.
3. The state inspector general shall report to the secretary to the
governor.
4. The state inspector general may appoint one or more deputy
inspectors general to serve at his or her pleasure, who shall be
responsible for conducting investigations in the agencies to which they
are designated and in which they are deemed employed.
5. The salary of the inspector general shall be established by the
governor within the limit of funds available therefore; provided,
however, such salary shall be no less than the salaries of certain state
officers holding the positions indicated in paragraph (a) of subdivision
one of section one hundred sixty-nine of the executive law.
Functions and duties. The state inspector general shall have the
following duties and responsibilities:
1. receive and investigate complaints from any source, or upon his or
her own initiative, concerning allegations of corruption, fraud,
criminal activity, conflicts of interest or abuse in any covered agency;
1-a. receive and investigate complaints from any source, or upon his
or her own initiative, concerning allegations of corruption, fraud, use
of excessive force, criminal activity, conflicts of interest or abuse by
any police officer in a covered agency and promptly inform the division
of criminal justice services, in the form and manner as prescribed by
the division, of such allegations and the progress of investigations
related thereto unless special circumstances require confidentiality.
Nothing in this subdivision shall require the division of criminal
justice services to participate in the investigation of such allegations
or take action or prevent the division of criminal justice services from
taking action authorized pursuant to subdivision three of section eight
hundred forty-five of this chapter in the time and manner determined by
the commissioner of the division of criminal justice services.
2. inform the heads of covered agencies of such allegations and the
progress of investigations related thereto, unless special circumstances
require confidentiality;
3. determine with respect to such allegations whether disciplinary
action, civil or criminal prosecution, or further investigation by an
appropriate federal, state or local agency is warranted, and to assist
in such investigations;
4. prepare and release to the public written reports of such
investigations, as appropriate and to the extent permitted by law,
subject to redaction to protect the confidentiality of witnesses. The
release of all or portions of such reports may be deferred to protect
the confidentiality of ongoing investigations;
5. review and examine periodically the policies and procedures of
covered agencies with regard to the prevention and detection of
corruption, fraud, criminal activity, conflicts of interest or abuse;
6. recommend remedial action to prevent or eliminate corruption,
fraud, criminal activity, conflicts of interest or abuse in covered
agencies;
7. establish programs for training state officers and employees
regarding the prevention and elimination of corruption, fraud, criminal
activity, conflicts of interest or abuse in covered agencies.
Powers. The state inspector general shall have the power to:
1. subpoena and enforce the attendance of witnesses;
2. administer oaths or affirmations and examine witnesses under oath;
3. require the production of any books and papers deemed relevant or
material to any investigation, examination or review;
4. notwithstanding any law to the contrary, examine and copy or remove
documents or records of any kind prepared, maintained or held by any
covered agency;
5. require any officer or employee in a covered agency to answer
questions concerning any matter related to the performance of his or her
official duties. No statement or other evidence derived therefrom may be
used against such officer or employee in any subsequent criminal
prosecution other than for perjury or contempt arising from such
testimony. The refusal of any officer or employee to answer questions
shall be cause for removal from office or employment or other
appropriate penalty;
6. monitor the implementation by covered agencies of any
recommendations made by state inspector general;
7. perform any other functions that are necessary or appropriate to
fulfill the duties and responsibilities of office.
* 8. Appoint an independent monitor to provide guidance and technical
assistance related to the policies, practices, programs and decisions of
the Orange county industrial development agency and the funding
corporation, as authorized in subdivisions two, three, four, five, six,
seven and eight of section nine hundred twelve-b of the general
municipal law.
* NB Repealed May 3, 2030
Responsibilities of covered agencies, state officers and
employees. 1. Every state officer or employee in a covered agency shall
report promptly to the state inspector general any information
concerning corruption, fraud, criminal activity, conflicts of interest
or abuse by another state officer or employee relating to his or her
office or employment, or by a person having business dealings with a
covered agency relating to those dealings. The knowing failure of any
officer or employee to so report shall be cause for removal from office
or employment or other appropriate penalty. Any officer or employee who
acts pursuant to this subdivision by reporting to the state inspector
general improper governmental action as defined in section
seventy-five-b of the civil service law shall not be subject to
dismissal, discipline or other adverse personnel action.
2. The head of any covered agency shall advise the governor within
ninety days of the issuance of a report by the state inspector general
as to the remedial action that the agency has taken in response to any
recommendation for such action contained in such report.
ARTICLE 4-B Office of the Inspector General of New York For Transportation
Jurisdiction. 1. This article shall, subject to the limitations
contained herein, confer upon the office of the inspector general of New
York for transportation investigative and prosecutorial power over
criminal and unethical conduct involving individuals serving at a senior
level in operations, financing or management of a transportation entity
located in a city of a population of one million or more where such
action or actions occurred within the state; and investigative and
prosecutorial power of criminal and unethical conduct involving
managerial appointees or managerial employees of any transportation
entity where such action or actions occurred within the state.
2. For the purposes of this article: (a) "transportation entity" shall
mean any public entity located within a city of one million or more
involved in the transportation of persons, goods or other items within
or to and from the state of New York where at least one individual
involved at a senior level in operations, financing or management of
such entity is appointed by the governor;
(b) "individuals involved at a senior level in operations, financing
or management" shall mean individuals that exert full or partial control
over formal actions taken by a transportation entity or on behalf of
such entity, or exert independent judgment in the fulfillment of their
duties and obligations, but shall not include individuals whose actions
are of a routine or clerical nature; and
(c) "managerial appointee" or "managerial employee" shall mean any
individual who (i) participates directly or as part of a team in
formulating policy; (ii) may reasonably be required to assist directly
in the preparation for and conduct of negotiations concerning major
fiscal matters, procurements or expenditures in excess of one hundred
thousand dollars provided that such role is not of a routine or clerical
nature and requires the exercise of independent judgment; or (iii) has a
major role in the administration of personnel agreements or in personnel
administration, provided that such role is not of a routine or clerical
nature and requires the exercise of independent judgment.
3. Nothing contained in this section shall replace or diminish the
jurisdiction of the attorney general or any district attorney, or the
inspector general of any transportation entity.
4. The inspector general shall be authorized to:
(a) receive, investigate and prosecute complaints regarding any
individuals involved at a senior level in operations, financing or
management or managerial appointee or managerial employee of any
transportation entity concerning corruption, conflicts of interest,
fraud, waste and abuse, recusals or failure to recuse, or criminal
activity in any case where such conduct, action or failure occurred
before or after the effective date of the chapter of the laws of two
thousand seventeen that added this article and where such conduct,
action or failure occurred in New York;
(b) represent the state in any administrative hearing or
administrative proceeding involving any criminal or unethical conduct of
individuals involved at a senior level in operations, financing or
management or a managerial appointee or managerial employee of a
transportation entity where such conduct occurred in New York; and
(c) represent the state in civil actions involving any criminal or
unethical conduct of individuals involved at a senior level in
operations, financing or management or a managerial appointee or
managerial employee of a transportation entity where such conduct
occurred in New York.
Establishment and organization. 1. There shall be an office of
the inspector general of New York for transportation in the executive
department. The head of the office shall be the inspector general of New
York for transportation.
2. The inspector general shall be appointed by the governor and shall
hold office until the end of the term of the governor by whom he or she
is appointed and until his or her successor is appointed.
3. The inspector general may appoint a deputy inspector general to
serve at his or her pleasure, who shall be responsible for conducting
investigations and prosecuting violations of law. The inspector general
shall identify a process for a coordinated approach with prosecutors to
avoid duplication and provide for a timely response to alleged
violations.
4. The salary of the inspector general shall be established by the
governor within the limit of funds available therefore.
Functions and duties. The inspector general of New York for
transportation shall have the following duties and responsibilities:
1. receive, investigate, and prosecute complaints from any source, or
upon his or her own initiative, concerning allegations of corruption,
conflicts of interest, fraud, waste and abuse, recusals or failure to
recuse, or criminal activity regarding any transportation entity,
conduct or activity or failure to act by any individuals involved at a
senior level in operations, financing or management or managerial
appointee or managerial employee of a transportation entity occurring
before or after the effective date of the chapter of the laws of two
thousand seventeen that added this article, in violation of New York law
and occurring in New York;
2. inform the transportation entity of such allegations and the
progress of investigations related thereto, unless special circumstances
require confidentiality, provided that the inspector general shall
maintain a written record that specifies the reason confidentiality is
necessary under this paragraph;
3. issue a subpoena or subpoenas requiring a person or persons to
appear before the grand jury, trial court, produce documents, provide a
sworn statement under oath and be examined in reference to any matter
within the jurisdiction of the inspector general. A subpoena issued
under this section shall be governed by article twenty-three of the
civil practice law and rules or articles one hundred ninety or six
hundred ten of the criminal procedure law. The inspector general or his
or her deputy or any person designated in writing by them may administer
an oath to a witness in any such investigation or prosecution and may
seek to confer immunity for compelled testimony pursuant to article
fifty of the criminal procedure law;
4. determine with respect to such allegations whether to initiate
civil or criminal prosecution, or make a referral for further
investigation by an appropriate federal, state or local agency or any
other office of inspector general as is warranted, and to assist in such
investigations; and
5. prepare and release to the public written reports of such
investigations, as appropriate and to the extent permitted by law,
subject to redaction to protect the confidentiality of witnesses. The
release of all or portions of such reports may be deferred to protect
the confidentiality of ongoing investigations, provided that the
inspector general shall maintain a written record that specifies the
reason confidentiality is necessary under this subdivision.
ARTICLE 5 Department of Law
Department of law. There shall continue to be in the state
government a department of law. The head of the department of law shall
be the attorney-general who shall receive an annual salary of one
hundred fifty-one thousand five hundred dollars.
Solicitor general. There shall be in the department of law a
solicitor general who shall be appointed by the attorney-general and who
shall perform such duties in the place and stead of the attorney-general
as may lawfully be assigned to him. The attorney-general shall fix his
compensation within the amounts appropriated therefor.
Assistants. 1. The attorney-general may appoint such assistant
attorneys-general, deputy assistant attorneys-general and attorneys as
he may deem necessary and fix their compensation within the amounts
appropriated therefor. Whenever deputy or deputy attorney-general is
referred to or designated in any law, contract or document such
references or designations shall be deemed to refer to and include
assistant attorneys-general, deputy assistant attorneys-general or
attorneys appointed by the attorney-general.
General duties. The attorney-general shall:
1. Prosecute and defend all actions and proceedings in which the state
is interested, and have charge and control of all the legal business of
the departments and bureaus of the state, or of any office thereof which
requires the services of attorney or counsel, in order to protect the
interest of the state, but this section shall not apply to any of the
military department bureaus or military offices of the state. No action
or proceeding affecting the property or interests of the state shall be
instituted, defended or conducted by any department, bureau, board,
council, officer, agency or instrumentality of the state, without a
notice to the attorney-general apprising him of the said action or
proceeding, the nature and purpose thereof, so that he may participate
or join therein if in his opinion the interests of the state so warrant.
2. Whenever required by the governor, attend in person, or by one of
his deputies, any term of the supreme court or appear before the grand
jury thereof for the purpose of managing and conducting in such court or
before such jury criminal actions or proceedings as shall be specified
in such requirement; in which case the attorney-general or his deputy so
attending shall exercise all the powers and perform all the duties in
respect of such actions or proceedings, which the district attorney
would otherwise be authorized or required to exercise or perform; and in
any of such actions or proceedings the district attorney shall only
exercise such powers and perform such duties as are required of him by
the attorney-general or the deputy attorney-general so attending. In all
such cases all expenses incurred by the attorney-general, including the
salary or other compensation of all deputies employed, shall be a county
charge.
3. Upon request of the governor, comptroller, secretary of state,
commissioner of transportation, superintendent of financial services,
commissioner of taxation and finance, commissioner of motor vehicles, or
the state inspector general, or the head of any other department,
authority, division or agency of the state, investigate the alleged
commission of any indictable offense or offenses in violation of the law
which the officer making the request is especially required to execute
or in relation to any matters connected with such department, and to
prosecute the person or persons believed to have committed the same and
any crime or offense arising out of such investigation or prosecution or
both, including but not limited to appearing before and presenting all
such matters to a grand jury.
4. Cause all persons indicted for corrupting or attempting to corrupt
any member or member-elect of the legislature, or the commissioner of
general services, to be brought to trial.
5. When required by the comptroller or the superintendent of public
works, prepare proper drafts for contracts, obligations and other
instruments for the use of the state.
6. Upon receipt thereof, pay into the treasury all moneys received by
him for debts due or penalties forfeited to the people of the state.
7. He may, on behalf of the state, agree upon a case containing a
statement of the facts and submit a controversy for decision to a court
of record which would have jurisdiction of an action brought on the same
case. He may agree that a referee, to be appointed in an action to which
the state is a party, shall receive such compensation at such rate per
day as the court in the order of reference may specify. He may with the
approval of the governor retain counsel to recover moneys or property
belonging to the state, or to the possession of which the state is
entitled, upon an agreement that such counsel shall receive reasonable
compensation, to be fixed by the attorney-general, out of the property
recovered, and not otherwise.
8. Whenever in his judgment the public interest requires it, the
attorney-general may, with the approval of the governor, and when
directed by the governor, shall, inquire into matters concerning the
public peace, public safety and public justice. For such purpose he may,
in his discretion, and without civil service examination, appoint and
employ, and at pleasure remove, such deputies, officers and other
persons as he deems necessary, determine their duties and, with the
approval of the governor, fix their compensation. All appointments made
pursuant to this subdivision shall be immediately reported to the
governor, and shall not be reported to any other state officer or
department. Payments of salaries and compensation of officers and
employees and of the expenses of the inquiry shall be made out of funds
provided by the legislature for such purposes, which shall be deposited
in a bank or trust company in the names of the governor and the
attorney-general, payable only on the draft or check of the
attorney-general, countersigned by the governor, and such disbursements
shall be subject to no audit except by the governor and the
attorney-general. The attorney-general, his deputy, or other officer,
designated by him, is empowered to subpoena witnesses, compel their
attendance, examine them under oath before himself or a magistrate and
require that any books, records, documents or papers relevant or
material to the inquiry be turned over to him for inspection,
examination or audit, pursuant to the civil practice law and rules. If a
person subpoenaed to attend upon such inquiry fails to obey the command
of a subpoena without reasonable cause, or if a person in attendance
upon such inquiry shall, without reasonable cause, refuse to be sworn or
to be examined or to answer a question or to produce a book or paper,
when ordered so to do by the officer conducting such inquiry, he shall
be guilty of a misdemeanor. It shall be the duty of all public officers,
their deputies, assistants and subordinates, clerks and employees, and
all other persons, to render and furnish to the attorney-general, his
deputy or other designated officer, when requested, all information and
assistance in their possession and within their power. Each deputy or
other officer appointed or designated to conduct such inquiry shall make
a weekly report in detail to the attorney-general, in form to be
approved by the governor and the attorney-general, which report shall be
in duplicate, one copy of which shall be forthwith, upon its receipt by
the attorney-general, transmitted by him to the governor. Any officer
participating in such inquiry and any person examined as a witness upon
such inquiry who shall disclose to any person other than the governor or
the attorney-general the name of any witness examined or any information
obtained upon such inquiry, except as directed by the governor or the
attorney-general, shall be guilty of a misdemeanor.
9. Bring and prosecute or defend upon request of the commissioner of
labor or the state division of human rights, any civil action or
proceeding, the institution or defense of which in his judgment is
necessary for effective enforcement of the laws of this state against
discrimination by reason of age, race, sex, creed, color, national
origin, sexual orientation, gender identity or expression, military
status, disability, predisposing genetic characteristics, familial
status, marital status, citizenship or immigration status, or domestic
violence victim status, or for enforcement of any order or determination
of such commissioner or division made pursuant to such laws.
10. Prosecute every person charged with the commission of a criminal
offense in violation of any of the laws of this state against
discrimination because of age, race, sex, creed, color, national origin,
sexual orientation, gender identity or expression, military status,
disability, predisposing genetic characteristics, familial status,
marital status, citizenship or immigration status, or domestic violence
victim status, in any case where in his judgment, because of the extent
of the offense, such prosecution cannot be effectively carried on by the
district attorney of the county wherein the offense or a portion thereof
is alleged to have been committed, or where in his judgment the district
attorney has erroneously failed or refused to prosecute. In all such
proceedings, the attorney-general may appear in person or by his deputy
or assistant before any court or any grand jury and exercise all the
powers and perform all the duties in respect of such actions or
proceedings which the district attorney would otherwise be authorized or
required to exercise or perform.
11. Prosecute and defend all actions and proceedings in connection
with safeguarding and enforcing the state's remainder interest in any
trust which meets the requirements of subparagraph two of paragraph (b)
of subdivision two of section three hundred sixty-six of the social
services law.
12. Whenever any person shall engage in repeated fraudulent or illegal
acts or otherwise demonstrate persistent fraud or illegality in the
carrying on, conducting or transaction of business, the attorney general
may apply, in the name of the people of the state of New York, to the
supreme court of the state of New York, on notice of five days, for an
order enjoining the continuance of such business activity or of any
fraudulent or illegal acts, directing restitution and damages and, in an
appropriate case, cancelling any certificate filed under and by virtue
of the provisions of section four hundred forty of the former penal law
or section one hundred thirty of the general business law, and the court
may award the relief applied for or so much thereof as it may deem
proper. The word "fraud" or "fraudulent" as used herein shall include
any device, scheme or artifice to defraud and any deception,
misrepresentation, concealment, suppression, false pretense, false
promise or unconscionable contractual provisions. The term "persistent
fraud" or "illegality" as used herein shall include continuance or
carrying on of any fraudulent or illegal act or conduct. The term
"repeated" as used herein shall include repetition of any separate and
distinct fraudulent or illegal act, or conduct which affects more than
one person. Notwithstanding any law to the contrary, all monies
recovered or obtained under this subdivision by a state agency or state
official or employee acting in their official capacity shall be subject
to subdivision eleven of section four of the state finance law.
In connection with any such application, the attorney general is
authorized to take proof and make a determination of the relevant facts
and to issue subpoenas in accordance with the civil practice law and
rules. Such authorization shall not abate or terminate by reason of any
action or proceeding brought by the attorney general under this section.
13. Prosecute any person for perjury committed during the course of
any investigation conducted by the attorney-general pursuant to statute.
In all such proceedings, the attorney-general may appear in person or by
his deputy or assistant before any court or any grand jury and exercise
all the powers and perform all the duties necessary or required to be
exercised or performed in prosecuting any such person for such offense.
15. In any case where the attorney general has authority to institute
a civil action or proceeding in connection with the enforcement of a law
of this state, in lieu thereof he may accept an assurance of
discontinuance of any act or practice in violation of such law from any
person engaged or who has engaged in such act or practice. Such
assurance may include a stipulation for the voluntary payment by the
alleged violator of the reasonable costs and disbursements incurred by
the attorney general during the course of his investigation. Evidence of
a violation of such assurance shall constitute prima facie proof of
violation of the applicable law in any civil action or proceeding
thereafter commenced by the attorney general.
16. (a) Notwithstanding any other law to the contrary, in resolving,
by agreed judgment, stipulation, decree, agreement to settle, assurance
of discontinuance or otherwise, any claim or cause of action, whether
filed or unfiled, actual or potential, and whether arising under common
law, equity, or any provision of law, a state agency or a state official
or employee acting in their official capacity shall not have the
authority to include or agree to include in such resolution any term or
condition that would provide the state agency, official, or employee,
their agent or designee, the settling party, or any third party with
control or discretion over how any moneys to be paid by the settling
party would be used, spent, or allocated.
(b) Paragraph (a) of this subdivision shall not apply to any provision
in the resolution of a claim or cause of action providing (1) moneys to
be distributed to the federal government, to a local government, or to
any holder of a bond or other debt instrument issued by the state, any
public authority, or any public benefit corporation; (2) moneys to be
distributed solely or exclusively as a payment of damages or restitution
to individuals or entities that were specifically injured or harmed by
the defendant's or settling party's conduct and that are identified in,
or can be identified by the terms of, the relevant judgment,
stipulation, decree, agreement to settle, assurance of discontinuance,
or relevant instrument resolving the claim or cause of action; (3)
moneys recovered or obtained by the attorney general where application
of paragraph (a) of this subdivision is prohibited by federal law, rule,
or regulation, or would result in the reduction or loss of federal funds
or eligibility for federal benefits pursuant to federal law, rule, or
regulation; (4) moneys recovered or obtained by or on behalf of a public
authority, a public benefit corporation, the department of taxation and
finance, the workers' compensation board, the New York state higher
education services corporation, the tobacco settlement financing
corporation, a state or local retirement system, an employee health
benefit program administered by the New York state department of civil
service, the Title IV-D child support fund, the lottery prize fund, the
abandoned property fund, or an endowment of the state university of New
York or any unit thereof or any state agency, provided that all of the
moneys received or recovered are immediately transferred to the relevant
public authority, public benefit corporation, department, fund, program,
or endowment; (5) moneys to be refunded to an individual or entity as
(i) an overpayment of a tax, fine, penalty, fee, insurance premium, loan
payment, charge or surcharge; (ii) a return of seized assets; or (iii) a
payment made in error; (6) moneys to be used to prevent, abate, restore,
mitigate or control any identifiable instance of prior or ongoing water,
land or air pollution; and/or (7) state moneys received as part of any
statewide opioid settlement agreements as defined in section 25.18 of
the mental hygiene law, to be spent on eligible expenditures as defined
in section 25.18 of the mental hygiene law.
(c) Where an agreed judgment, stipulation, decree, agreement to
settle, assurance of discontinuance or other legal instrument resolves
(1) any claim or any cause of action asserted by a state agency or a
state official or employee acting in their official capacity and (2) any
claim or cause of action asserted by one or more foreign jurisdictions
or third parties, paragraph (a) of this subdivision shall only apply to
the resolution of the claim or cause of action asserted by the state
agency, official, or employee.
17. The attorney general may investigate and prosecute every person or
entity charged with the commission of a criminal offense in violation of
the laws of this state applicable to any crime that affects the title
to, encumbrance of, or the possession of real property, including but
not limited to deed theft, larceny, criminal possession of stolen
property, offering a false instrument for filing, falsifying business
records, residential mortgage fraud, or scheme to defraud. In all such
proceedings, the attorney general may appear in person or by the
attorney general's deputy before any court of record or any grand jury
and exercise all the powers and perform all the duties in respect of
such actions or proceedings which the district attorney would otherwise
be authorized or required to exercise or perform. Nothing herein shall
in any way abrogate, supersede, or interfere with the authority of the
district attorney of a county in which an offense occurs to investigate,
initiate and/or prosecute any such crime.
18. Notwithstanding any other law to the contrary, in any civil
enforcement action initiated by the attorney-general, neither the
attorney-general nor the department of law has, or shall be deemed to
have, possession, custody, or control of, or the right, authority, or
practical ability to obtain documents, communications, other
information, or personnel of any agency, entity, or authority other than
the department of law.
Action by attorney-general for forfeiture of public office.
The attorney-general may maintain an action, upon his own information or
upon the complaint of a private person, against a public officer, civil
or military, who has done or suffered an act which by law works a
forfeiture of his office.
Action by attorney-general against usurper of office or
franchise. 1. The attorney-general may maintain an action, upon his own
information or upon the complaint of a private person, against a person
who usurps, intrudes into, or unlawfully holds or exercises within the
state a franchise or a public office, civil or military, or an office in
a domestic corporation. The attorney-general may set forth in the
complaint, in his discretion, the name of the person rightfully entitled
to the office and facts showing his right thereto. Judgment may be
rendered upon the right of the defendant and of the party so alleged to
be entitled, or only upon the right of the defendant, as justice
requires. Where two or more persons claim to be entitled to the same
office or franchise, the attorney-general may bring the action against
all to determine their respective rights thereto.
2. If the complaint sets forth the name of the person rightfully
entitled to the office and the facts showing his right thereto, a
provisional order to arrest the defendant may be granted by the court if
the defendant by means of his usurpation or intrusion has received any
fees or emoluments belonging to the office.
3. Where a defendant is adjudged to be guilty of usurping or intruding
into or unlawfully holding or exercising an office, franchise or
privilege, final judgment shall be rendered, ousting and excluding him
therefrom, and in favor of the state or the relator, as the case
requires, for the costs of the action. As a part of the final judgment
in an action for usurping or intruding into or unlawfully holding or
exercising an office, franchise or privilege, the court, in its
discretion, also may award that the defendant, or, where there are two
or more defendants, that one or more of them, pay to the state a fine
not exceeding two thousand dollars. The judgment for the fine may be
docketed and execution may be issued thereupon in favor of the state, as
if it had been rendered in an action to recover the fine.
4. Where final judgment has been rendered upon the right and in favor
of the person alleged in the complaint to be entitled to an office, he
may recover, by action against the defendant, the damages which he has
sustained in consequence of the defendant's usurpation, intrusion into,
unlawful holding or exercise of the office.
Action by the people for illegal receipt or disposition of
public funds or other property. 1. Where any money, funds, credits, or
other property, held or owned by the state, or held or owned officially
or otherwise for or in behalf of a governmental or other public
interest, by a domestic, municipal, or other public corporation, or by a
board, officer, custodian, agency, or agent of the state, or of a city,
county, town, village or other division, subdivision, department, or
portion of the state, has heretofore been, or is hereafter, without
right obtained, received, converted, or disposed of, an action to
recover the same, or to recover damages or other compensation for so
obtaining, receiving, paying, converting, or disposing of the same, or
both, may be maintained by the state in any court of the state, or
before any court or tribunal of the United States, or of any other
state, or of any territory of the United States, or of any foreign
country, having jurisdiction thereof, although a right of action for the
same cause exists by law in some other public authority, and whether an
action therefor in favor of the latter is or is not pending when the
action in favor of the state is commenced. The attorney-general shall
commence an action, suit or other judicial proceeding, as prescribed in
this section, whenever he deems it for the interests of the state so to
do; or whenever he is so directed, in writing, by the governor.
2. Upon the commencement by the state of any action, suit or other
judicial proceeding, as prescribed in this section, the entire cause of
action, including the title to the money, funds, credits, or other
property, with respect to which the suit or action is brought, and to
the damages or other compensation recoverable for the obtaining,
receipt, payment, conversion or disposition thereof, if not previously
so vested, is transferred to and becomes absolutely vested in the state.
3. Any court of the state in which an action is brought by the state,
as prescribed in this section, may direct, by the final judgment
therein, or by a subsequent order, that any money, funds, damages,
credits, or other property, recovered by or awarded to the plaintiff
therein, which, if that action had not been brought, would not have
vested in the state, be disposed of, as justice requires, in such a
manner as to reinstate the lawful custody thereof, or to apply the same
or the proceeds thereof to the objects and purposes for which they were
authorized to be raised or procured; after paying into the state
treasury out of the proceeds of the recovery all expenses incurred by
the state in the action.
4. Any corporation, board, officer, custodian, agency, or agent, in
behalf of any city, county, town, village, or other division,
subdivision, department, or portion of the state, which was not a party
to an action, brought as prescribed in this section, and which claims to
be entitled to the custody or disposition of any of the money, funds,
damages, credits, or other property, recovered by, or awarded to the
plaintiff, by the final judgment in the action, or any of the proceeds
thereof, and not disposed of as prescribed in subdivision three, may
bring a special proceeding against the attorney-general at any time
after the actual collection of the money and its payment into the state
treasury, or the actual receipt of the property by the state, in the
supreme court, county of Albany, seeking disposition of the money or
other property.
5. Notwithstanding any other law to the contrary, including without
limitation; section sixty-four of this article; the education law; the
retirement and social security law and the administrative code of the
city of New York, the portion of all money received by the attorney
general in connection with the settlement of an action arising out of
the management, operation, investments of or otherwise in connection
with a retirement or other fund established pursuant to the education
law, the retirement and social security law or the administrative code
of the city of New York attributable to the harm suffered by such fund
shall be deposited into such fund.
Attorney-general; death penalty prosecutions. 1. The
attorney-general shall, whenever required by the governor or his
designee after a request of the governor by a district attorney, direct
that the resources and personnel of the department of law be used to
provide assistance relating to the prosecution or appeal of any case
where the defendant may be subject to the penalty of death. Such
assistance shall include the use of any department resource or services,
which the attorney-general deems proper, and may be performed or
provided by the attorney-general or any employee of the department of
law. Assistance pursuant to this section may only be provided with
respect to proceedings where:
(i) the defendant is represented by counsel appointed pursuant to the
provisions of section thirty-five-b of the judiciary law or the
defendant is receiving expert, investigative or other services pursuant
to such section, or
(ii) the defendant, through counsel retained privately by the
defendant through his or her own means or through the means of a person
other than the defendant, or through representation by pro bono counsel,
is able to marshal substantially greater legal and investigatory
resources than those reasonably available to the district attorney.
2. A request of the governor made by a district attorney for
assistance in a death penalty case shall be accompanied by a certificate
of need stating that as a result of cases where the defendant may be
subject to the penalty of death additional resources or personnel are
needed to supplement the district attorney's staff and available
resources in order to fulfill such district attorney's responsibilities.
Office of immigrant trust. 1. (a) There is hereby established
an immigrant trust office in the department of law. The head of the unit
shall be appointed by the attorney general.
(b) Notwithstanding any other provision of law, rule, or regulation to
the contrary, the attorney general shall establish, through executive
order, processes and procedures for screening such unit head and the
entire unit from records, communication, and information related to the
civil defense of state officials and employees, and persons involved in
the civil defense of state officials and employees from records,
communication, and information relating to an investigation or
investigations by such unit relating to potential violation of this law.
The executive order establishing screens shall be sufficient to satisfy
the rules of professional conduct regarding conflicts and to protect the
rights of state officials and employees who are the subject of an
investigation or civil action under this section by ensuring that the
individuals conducting or otherwise involved in such investigation or
civil action do not have access to any non-public records or information
obtained in the course of the office's civil defense of state employees.
2. Notwithstanding any other provision of law, the immigrant trust
office shall establish and maintain a process to solicit and receive
complaints from the public alleging knowing, intentional, or willful
violations of article fifteen-AA of this chapter, section one hundred
seventy-k of this chapter, article nineteen-D of the general municipal
law, and section thirty-two hundred one-b of the education law, by state
and local entities, officers, or employees, or their contractors,
including the improper or unlawful use of state or local resources for
immigration enforcement and the improper or unlawful sharing of
information by state or local entities, officers, or employees, or their
contractors, with federal immigration authorities.
3. (a) The immigrant trust office shall have the power to investigate
complaints or violations of article fifteen-AA of this chapter, section
one hundred seventy-k of this chapter, article nineteen-D of the general
municipal law, and section thirty-two hundred one-b of the education
law. Such power shall also include the ability to:
(i) take proof and issue subpoenas in accordance with the civil
practice law and rules;
(ii) subpoena and enforce the attendance of witnesses;
(iii) administer oaths or affirmations and examine witnesses under
oath;
(iv) notwithstanding any laws to the contrary, examine and copy or
remove documents or records of any kind prepared, maintained, or held by
any employer or agency;
(v) visit and inspect all local correctional facilities, and speak
with people detained therein for the purposes of investigating potential
violations and ensuring compliance with this section; and
(vi) perform any other functions that are necessary or appropriate to
fulfill the duties and responsibilities of office.
(b) The attorney general shall have the powers enumerated under
paragraph (a) of this subdivision with respect to any entity covered by
article fifteen-AA of this chapter, section one hundred seventy-k of
this chapter, article nineteen-D of the general municipal law, and
section thirty-two hundred one-b of the education law, and its employees
and agents as outlined in this section, except:
(i) agencies under the executive authority of the governor;
(ii) entities that are statutorily entitled to representation by the
department of law;
(iii) entities whose officers and employees are statutorily entitled
to representation by the department of law; and
(iv) entities that are subject to the jurisdiction of the New York
court of claims.
(c) Upon referral by the governor, the attorney general shall have the
powers enumerated under paragraph (a) of this subdivision with regard to
employees and agents of:
(i) agencies under the executive authority of the governor;
(ii) entities that are statutorily entitled to representation by the
department of law pursuant to section seventeen of the public officers
law;
(iii) entities whose officers and employees are statutorily entitled
to representation by the department of law; and
(iv) entities that are subject to the jurisdiction of the New York
court of claims.
(d) Nothing in this section shall in any way limit rights or remedies
which are otherwise available under law to the attorney general or any
other person.
4. Upon receipt and review of a complaint, deemed credible, of a
violation of article fifteen-AA of this chapter, or section one hundred
seventy-k of this chapter, or upon its own initiative when the office
learns through the regular course of its duties of a suspected violation
of article fifteen-AA of this chapter, or section one hundred seventy-k
of this chapter, the office shall, where the alleged violation involves
a state agency or a state employee, transmit a request for a referral
regarding such credible complaint to the governor. The governor shall
review such request and make a determination on whether to refer the
matter to the office for investigation, and upon such referral back to
the office, the office shall investigate the alleged violation and, if
warranted, may commence a civil action for appropriate injunctive or
declaratory relief, enter into assurances of discontinuance, or seek the
imposition of a period of monitoring of the state entity by the office.
5. Upon receipt of a complaint deemed credible of a violation of
article nineteen-D of the general municipal law, or section one hundred
seventy-k of this chapter, or upon its own initiative when the office
learns through the regular course of its duties of a suspected violation
of article nineteen-D of the general municipal law, or section one
hundred seventy-k of this chapter that involves a county, locality, or
municipal corporation entity or employee, the office shall,
notwithstanding any other provision of law, investigate the matter and,
if warranted, may commence a civil action for appropriate injunctive or
declaratory relief, enter into assurances of discontinuance, or seek the
imposition of a period of monitoring of the municipal government entity
by the office.
6. Upon receipt of a complaint deemed credible of a violation of
section thirty-two hundred one-b of the education law or upon its own
initiative when the office learns through the regular course of its
duties of a suspected violation of such section, the office shall,
notwithstanding any other provision of law, investigate the matter and,
if warranted, may commence a civil action for appropriate injunctive or
declaratory relief, enter into assurances of discontinuance, or seek the
imposition of a period of monitoring of the school by the office.
Costs recovered. Costs recovered by the attorney-general may be
applied by him in payment of the expenses incurred by him in the action
or proceeding in which they are received, or of any expenditure which he
is authorized to incur not otherwise provided for. He shall, at the
close of each fiscal year, render to the comptroller an account of such
costs received, with vouchers of such expenditures. During the fiscal
year, the comptroller is authorized to transfer any amount available
within the account dedicated for this purpose to the general fund, upon
the request of the director of the budget. In the event insufficient
cash remains in such account to meet expenditures against available
appropriations from such account, the comptroller is authorized to
transfer the amounts necessary to meet such expenditures from the
general fund; provided however that in no event shall the cumulative
value of any such transfers from the general fund made to such account
within a single fiscal year exceed ten percent of the value of the
appropriations made in such fiscal year from such account or the
cumulative balance of transfers from the account to the general fund.
The comptroller shall establish such accounts and records as are
necessary to provide an accurate accounting and reporting of the
transfers to or from the general fund.
Register. The attorney-general shall keep a register of all
actions and proceedings prosecuted or defended by him, and of all
proceedings in relation thereto, and shall deliver the same to his
successor.
Destruction of certain records, books and other data by the
attorney-general. In any action or proceeding or by other process of
law, in which a money judgment or award shall have been procured in
favor of the people of the state of New York, any department of the
state of New York, or duly constituted division, bureau or board
thereof, and which judgment or award has been duly paid and satisfied,
the department of law, with the consent of the commissioner of education
as provided by section one hundred forty-seven of the education law, may
after the expiration of six years from the time of payment of said
judgment or award destroy all statistics, documents and papers filed
with or used by the department of law in procuring said judgment or
award.
Additional counsel. The governor or attorney-general may
designate and employ such additional attorneys or counsel as may be
necessary to assist in the transaction of any of the legal business
mentioned in section sixty-three of this chapter and such attorneys or
counsel shall be paid a reasonable fee upon the certificate of the
governor and attorney-general, the amount thereof to be audited and
allowed by them or to be paid by the attorney-general out of costs,
penalties and judgments collected by him, prior to the payment thereof
into the state treasury as required by section one hundred twenty-one of
the state finance law.
Deputy attorney-general to act as special district attorney.
Whenever the governor shall advise the attorney-general that he has
reason to doubt whether in any county the law relating to crimes against
the elective franchise is properly enforced, the attorney-general shall
require from the district attorney of such county, and it shall be the
duty of such district attorney forthwith to make to the attorney-general
a report of all prosecutions and complaints within his county during the
year then last past for offenses under the election law and of the
action had thereon.
The attorney-general shall assign one or more of his deputies to take
charge of prosecutions under the election law. Such deputy shall
represent the people of this state in all such prosecutions before all
magistrates and in all courts and before any grand jury having
cognizance thereof. The deputies so assigned shall be appointed pursuant
to section sixty-two of this chapter. They may be especially appointed
thereunder for the purpose of such assignment and for the performance of
the duties herein described.
Whenever the attorney-general shall advise the governor that there is
occasion for an extraordinary term in any such county to inquire into
and try cases arising under article sixteen of the election law, the
governor may appoint an extraordinary term of the supreme court to be
constituted and held for the trial of criminal cases in such county,
pursuant to section one hundred forty-nine of the judiciary law. Grand
and petit juries shall be drawn and summoned for said term in the manner
provided by law, and such cases shall be brought before such inquest and
court as the attorney-general shall direct. All the provisions of
sections sixty-three and sixty-seven of this chapter shall apply to such
extraordinary term.
It shall be the duty of the district attorney of the county, and of
the assistants, clerks and employees in his office, and of all police
authorities, officers and men within any such county, to render to the
attorney-general and his deputy whenever requested, all aid and
assistance within their power in such prosecutions and in the conduct of
such cases. The jurisdiction conferred upon the attorney-general herein
to prosecute crimes, is concurrent in each county with that of the
district attorney; but whichever of such officers shall first assume
jurisdiction of a particular offense shall have exclusive jurisdiction
to prosecute for the same unless or until the governor shall, by written
order filed with both such officers, give such jurisdiction to the
other.
Statewide organized crime task force. 1. There shall be
established within the department of law a statewide organized crime
task force which, pursuant to the provisions of this section, shall have
the duty and power:
(a) To conduct investigations and prosecutions of organized crime
activities carried on either between two or more counties of this state
or between this state and another jurisdiction;
(b) To cooperate with and assist district attorneys and other local
law enforcement officials in their efforts against organized crime.
2. Notwithstanding any other provision of law, the governor and the
attorney general may, and without civil service examination, jointly
appoint and employ, fix his compensation, and at pleasure remove, a
deputy attorney general in charge of the organized crime task force. The
attorney general may, and without civil service examination, appoint and
employ, and at pleasure remove, such assistant deputies, accountants and
other persons as he deems necessary, determine their duties and, with
the approval of the governor, fix their compensation. The payments of
salaries and compensation of such officers and employees shall be in the
same manner as is prescribed in subdivision eight of section sixty-three
of this chapter.
3. The deputy attorney general in charge of the organized crime task
force may request and shall receive from the division of state police,
the state department of taxation and finance, the state department of
labor, the temporary state commission of investigation, and from every
department, division, board, bureau, commission or other agency of the
state, or of any political subdivision thereof, cooperation and
assistance in the performance of his duties. Such deputy attorney
general may provide technical and other assistance to any district
attorney or other local law enforcement official requesting such
assistance in the investigation or prosecution of organized crime cases.
4. The deputy attorney general in charge of the organized crime task
force is empowered to conduct hearings at any place within the state, to
administer oaths or affirmations, subpoena witnesses, compel their
attendance, examine them under oath or affirmation, and require the
production of any books, records, documents or other evidence he may
deem relevant or material to an investigation. He is empowered to apply
for search warrants pursuant to article six hundred ninety of the
criminal procedure law, and, except in exigent circumstances, shall give
prior notice of the application to the district attorney of the county
in which such a warrant is to be executed, and in such circumstances,
shall give such notice as soon thereafter as practicable; provided,
however, that the failure to give notice of a search warrant application
to a district attorney shall not be a ground to suppress the evidence
seized in executing the warrant. He may designate an assistant to
exercise any such powers. Every witness attending before such deputy
attorney general or his assistant shall be examined privately and the
particulars of such examination shall not be made public. If a person
subpoenaed to attend upon such inquiry fails to obey the command of a
subpoena without reasonable cause, or if a person in attendance upon
such inquiry shall, without reasonable cause, refuse to be sworn or to
be examined or to answer a question or to produce a book or paper, when
ordered so to do by the officer conducting such inquiry, he shall be
guilty of a class A misdemeanor.
5. Upon the application of the deputy attorney general in charge of
the organized crime task force, the supreme court or a justice thereof
may impound any exhibit marked in evidence in any hearing held in
connection with an investigation conducted by such deputy attorney
general, and may order such exhibit to be retained by, or delivered to
and placed in the custody of, such deputy. When so impounded, such
exhibit shall not be taken from the custody of such deputy except upon
further order of the court or a justice thereof made upon five days
notice to such deputy, or upon his application or with his consent.
6. In any hearing held in connection with an investigation conducted
by the deputy attorney general in charge of the organized crime task
force, the attorney general may confer immunity in accordance with the
provisions of section 50.20 of the criminal procedure law, but only
after affording the appropriate district attorney the opportunity to be
heard in respect to any objections which he may have to the granting of
such immunity.
7. With the approval of the governor and with the approval or upon the
request of the appropriate district attorney, the deputy attorney
general in charge of the organized crime task force, or one of his
assistants, may attend in person any term of the county court or supreme
court having appropriate jurisdiction, including an extraordinary
special or trial term of the supreme court when one is appointed
pursuant to section one hundred forty-nine of the judiciary law, or
appear before the grand jury thereof, for the purpose of managing and
conducting in such court or before such jury a criminal action or
proceeding concerned with an offense where any conduct constituting or
requisite to the completion of or in any other manner related to such
offense occurred either in two or more counties of this state, or both
within and outside this state. In such case, such deputy attorney
general or his assistant so attending shall exercise all the powers and
perform all the duties in respect of such actions or proceedings, which
the district attorney would otherwise be authorized or required to
exercise or perform. In any of such actions or proceedings the district
attorney shall only exercise such powers and perform such duties as are
required of him by such deputy attorney general.
Office of special investigation. 1. There shall be established
within the office of the attorney general an office of special
investigation. Notwithstanding any other provision of law, the office of
special investigation shall investigate and, if warranted, prosecute any
alleged criminal offense or offenses committed by a person, whether or
not formally on duty, who is a police officer, as defined in subdivision
thirty-four of section 1.20 of the criminal procedure law, or a peace
officer as defined in section 2.10 of the criminal procedure law,
provided that such peace officer is employed or contracted by an
education, public health, social service, parks, housing or corrections
agency, or is a peace officer as defined in subdivision twenty-five of
section 2.10 of the criminal procedure law, concerning any incident in
which the death of a person, whether in custody or not, is caused by an
act or omission of such police officer or peace officer or in which the
attorney general determines there is a question as to whether the death
was in fact caused by an act or omission of such police officer or peace
officer.
2. The attorney general has investigative authority and criminal
jurisdiction under this section at the time of the death of the person
and the attorney general retains investigative authority and criminal
jurisdiction over the incident unless the attorney general determines
that such incident does not meet the requirements of this section. If
the attorney general determines the incident does not meet the
requirements for the attorney general to have investigative authority
and criminal jurisdiction pursuant to this section, the attorney general
shall, as soon as practicable, provide written notice of such
determination to the district attorney for the county in which the
incident occurred.
3. In connection with any particular incident encompassed by this
section, the attorney general shall conduct a full, reasoned and
independent investigation, including but not limited to: (a) gathering
and analyzing evidence; (b) conducting witness interviews; (c) reviewing
and commissioning any necessary investigative and scientific reports;
and (d) reviewing audio and video-recordings. The attorney general shall
be empowered to subpoena witnesses, compel their attendance, examine
them under oath before himself or herself or a magistrate and require
that any books, records, documents or papers relevant or material to the
inquiry be turned over to him or her for inspection, examination or
audit, pursuant to the civil practice law and rules, in connection with
such incident.
3-a. (a) The attorney general shall maintain the confidentiality of
all video footage and audio recordings received and reviewed.
(b) Disclosure of any audio recordings or video footage shall be
delayed, at the attorney general's discretion, only if such a disclosure
would compromise an ongoing criminal investigation or prosecution, or at
the request of the decedent's family.
(c) Redactions of audio records or video footage shall be made
pursuant to its video release policy.
(d) Nothing in this subdivision shall be construed to prohibit or
restrict the disclosure of audio recordings or video footage to any
person or entity otherwise lawfully entitled to receive such recordings
or footage pursuant to law, court order, or lawful process.
4. The attorney general shall have criminal jurisdiction over any
criminal conduct arising from any incident herein, and shall exercise
all of the powers and perform all of the duties with respect to such
actions or proceedings that a district attorney would otherwise be
authorized or required to exercise or perform, including all the powers
necessary to prosecute acts and omissions and alleged acts and omissions
to obstruct, hinder or interfere with any inquiry, prosecution, trial or
judgment arising from the incident. The criminal jurisdiction of the
office of special investigation shall displace and supersede the
jurisdiction of the district attorney where the incident occurred; and
such district attorney shall only have the powers and duties reserved to
him or her in writing by the attorney general.
5. The attorney general shall designate a deputy attorney general for
special investigation to exercise the powers and duties of the office of
special investigation, who shall be in the exempt class of the civil
service. The deputy attorney general may designate deputies or
assistants, who shall be in the exempt class of the civil service, as
necessary and appropriate. The other employees of the office of special
investigation within the department of law, who are not otherwise
exempt, shall all be in the competitive class of the civil service and
shall be considered for purposes of article fourteen of the civil
service law to be public employees in the civil service of the state,
and shall be assigned to the appropriate collective bargaining unit.
Employees serving in positions in newly created titles shall be assigned
to the same collective bargaining units as they would have been assigned
to were such titles created prior to the establishment of the office of
special investigation within the department of law by this chapter. The
deputy attorney general for special investigation may appear and conduct
proceedings in person or by his or her deputy or assistant before any
court or grand jury in connection with proceedings under this section.
6. (a) For any incident under this section, the office of special
investigation shall issue a public report and post the report on its
website whenever the office of special investigation initiates an
investigation and (i) the office of special investigation declines to
present evidence to a grand jury or (ii) the office of special
investigation does present evidence to a grand jury but the grand jury
declines to return indictment on any charges. The report will include,
to the extent possible and lawful, the results of the investigation of
the incident.
(b) The report shall also include: (i) with respect to subparagraph
(i) of paragraph (a) of this subdivision, an explanation as to why the
office of special investigation declined to present evidence to a grand
jury; and (ii) any recommendations for systemic or other reforms arising
from the investigation.
7. Six months after this subdivision takes effect, and annually on
such date thereafter, the office of special investigation shall issue a
report, which shall be made available to the public and posted on the
website of the department of law, which shall provide information on the
matters investigated by such office during such reporting period. The
information presented shall include, but not be limited to: the county
and geographic location of each matter investigated; a description of
the circumstances of each case; racial, ethnic, age, gender and other
demographic information concerning the persons involved or alleged to be
involved; information concerning whether a criminal charge or charges
were filed against any person involved or alleged to be involved in such
matter; the nature of such charges; and the status or, where applicable,
outcome with respect to all such criminal charges. Such report shall
also include recommendations for any systemic or other reforms
recommended as a result of such investigations.
8. (a) Notwithstanding any other provision of law, rule or regulation
to the contrary, in a matter in which the attorney general's authority
established under this section conflicts, or has a reasonable risk of
conflicting, with the attorney general's representation of state
employees in civil litigation under section seventeen of the public
officers law, the attorney general may designate a deputy attorney
general or assistant attorney general, including any person designated
under subdivision five of this section, as provided by section nine of
the public officers law, to act as attorney general for that matter in
the attorney general's stead.
(b) Notwithstanding any other provision of law, rule or regulation to
the contrary, the attorney general shall establish through rules and
regulations, processes and procedures for screening (i) the person so
designated pursuant to paragraph (a) of this subdivision, and the entire
prosecution team, from records, communication, and information related
to the civil defense of a police officer or peace officer as defined in
subdivision one of this section, and (ii) persons involved in the civil
defense of a police officer or peace officer as defined in subdivision
one of this section from records, communication, and information related
to the investigation and, where appropriate, prosecution of state peace
or police officers under this section. The rules and regulations
establishing screens shall be sufficient to satisfy the rules of
professional conduct regarding conflicts and to protect the rights of
state peace and police officers who are the subject of an investigation
or prosecution under this section by ensuring that the individuals
conducting or otherwise involved in such investigation or prosecution do
not have access to any confidential information obtained in the course
of the office's civil defense of state employees.
Task force on social media and violent extremism. 1.
Establishment and organization. (a) There is hereby established a task
force on social media and violent extremism within the department of
law.
(b) The attorney general may appoint or assign a deputy attorney
general and/or one or more assistants to serve on the task force.
(c) The mission of the task force on social media and violent
extremism shall be to study, investigate, and make recommendations
relating to the use, operations, policies, programs, and practices of
online social media companies and any role they may have in promoting,
facilitating, and providing platforms for individuals and groups to plan
and promote acts of violence, including but not limited to, the use of
such platforms to: initiate threats against public safety or against a
specific group of individuals based on an actual or perceived
classification or characteristic; communicate or plan for criminal
activity, including but not limited to, hate crimes, acts of domestic
terrorism, or acts of domestic terrorism motivated by hate; spread
extremist content; and aid in the radicalization and mobilization of
extremist individuals or groups.
2. Functions and duties. Subject to appropriations made available
therefor, the task force shall have the following duties and
responsibilities:
(a) to receive and investigate complaints from any source, or upon its
own initiative, allegations involving the use and role of social media
platforms in broadcasting, streaming, promoting, or otherwise
facilitating acts of violence as described in paragraph (c) of
subdivision one of this section;
(b) to determine, with respect to such allegations, whether social
media companies may be civilly or criminally liable for their role in
promoting, facilitating, or providing a platform for individuals and
groups to plan and promote acts of violence as described in paragraph
(c) of subdivision one of this section, or whether further investigation
by the department of law is warranted or whether a referral to an
appropriate federal, state or local law enforcement agency is necessary,
and to assist in such investigations, if requested by a federal, state,
or local law enforcement agency;
(c) to prepare and make public reports regarding the work of the task
force, provided, however that such reports shall not include
confidential or other protected information or any information that
pertains to or may interfere with ongoing or future investigations;
(d) to review and examine periodically the use, operations, policies,
programs, and practices of social media companies and any role they may
have in promoting, facilitating, and providing platforms for individuals
and groups to plan and promote acts of violence as described in
paragraph (c) of subdivision one of this section;
(e) to cooperate with and assist the division of homeland security and
emergency services or any other state or local agency as may be
appropriate in their efforts to counter acts of violence as described in
paragraph (c) of subdivision one of this section;
(f) to review the final report of the domestic terrorism task force
established pursuant to section six of part R of chapter fifty-five of
the laws of two thousand twenty, setting forth the findings,
conclusions, recommendations, and activities of the task force, to
examine and evaluate how to prevent mass shootings by domestic
terrorists in New York state in furtherance of the goals of the task
force on social media and violent extremism;
(g) to recommend remedial action to prevent the use of social media
platforms by individuals and groups to plan and promote acts of violence
as described in paragraph (c) of subdivision one of this section;
(h) on an annual basis, to submit to the governor, the temporary
president of the senate, the speaker of the assembly, the minority
leader of the senate and the minority leader of the assembly, no later
than December thirty-first, a report summarizing the activities of the
task force and recommending specific changes to state law to further the
mission of the task force on social media and violent extremism; and
(i) to perform any other functions and duties that are necessary or
appropriate to fulfill the duties and responsibilities of the task
force.
3. Powers. In executing its duties under subdivision two of this
section, the task force shall have the power to:
(a) subpoena and enforce the attendance of witnesses;
(b) administer oaths or affirmations and examine witnesses under oath;
(c) request and receive from the division of homeland security and
emergency services, the division of state police, the division of
criminal justice services, and from every department, division, board,
bureau, commission or other agency of the state, or of any political
subdivision thereof, cooperation and assistance in the performance of
its duties;
(d) provide technical and other assistance to any district attorney or
other local law enforcement official requesting such assistance in the
investigation or prosecution of cases involving the role of social media
platforms in broadcasting, streaming, promoting, or otherwise
facilitating acts of violence as described in paragraph (c) of
subdivision one of this section; and
(e) conduct hearings at any place within the state and require the
production of any books, records, documents or other evidence he or she
may deem relevant or material to an investigation.
Attorney-general authorized to appear in cases involving the
constitutionality of an act of the legislature, or a rule or regulation
adopted pursuant thereto. 1. Whenever the constitutionality of a
statute, or a rule or regulation adopted pursuant thereto is brought
into question upon the trial, hearing or appeal of any action or
proceeding, civil or criminal, in any court of record of original or
appellate jurisdiction, and proof of the notice of such constitutional
challenge, as required by paragraph one of subdivision (b) of section
one thousand twelve of the civil practice law and rules, has not been
filed, the court or justice before whom such action or proceeding is
pending, shall make an order, directing the party desiring to raise such
question, to serve notice thereof on the attorney-general, and providing
that the attorney-general be permitted to appear at any such trial or
hearing in support of the constitutionality of such statute, or rule or
regulation adopted pursuant thereto. The court or justice before whom
any such action or proceeding is pending may also make such order upon
the application of any party thereto, and the court shall make such
order in any such action or proceeding upon motion of the
attorney-general. When such order has been made in any manner mentioned
in this section and notice pursuant to such order has been given, the
attorney-general shall be permitted to appear in such action or
proceeding in support of the constitutionality of such statute, or a
rule or regulation adopted pursuant thereto.
2. In the event the constitutionality of a statute, or rule or
regulation adopted pursuant thereto is brought into question and the
party questioning such constitutionality, or any other party to the
action or proceeding serves the attorney-general pursuant to paragraph
one of subdivision (b) of section one thousand twelve of the civil
practice law and rules, proof of such service upon the attorney-general
shall be accepted by the court in satisfaction of the provisions of
subdivision one of this section.
3. The court having jurisdiction in an action or proceeding in which
the constitutionality of a statute, rule or regulation is challenged,
shall not consider any challenge to the constitutionality of such
statute, rule or regulation unless proof of service of the notice
required by this section or required by subdivision (b) of section one
thousand twelve of the civil practice law and rules is filed with such
court.
When costs payable to relator. Where security is given by
relator in an action brought by the attorney-general on the relation or
information of a person having an interest, all costs and disbursements
taxed in favor of the plaintiff shall be payable to the relator.
Power to administer oaths and take acknowledgments. The
attorney-general of the state of New York and all deputies and
assistants appointed by him pursuant to section sixty-two of the
executive law, who have duly qualified, shall have the power, while
acting as such, to administer oaths and take affidavits and
acknowledgments and proofs of written instruments to be read in
evidence, anywhere within the state of New York, except such instruments
as now are required by law to be recorded to create constructive notice
thereof.
Welfare inspector general. 1. Definitions. For the purposes of
this section, the following definitions shall apply:
a. "Inspector" means the welfare inspector general created by this
section.
b. "Investigation" means, investigations of fraud, abuse, or illegal
acts perpetrated within the department of social services or local
social services districts, or by contractees or recipients of public
assistance services as provided by the department of social services.
c. "Office" means the office of the welfare inspector general created
by this section.
2. a. There is hereby created in the department of law within the
office of the deputy attorney general for medicaid fraud control an
office of welfare inspector general. The head of the office shall be
the welfare inspector general, who shall be appointed by the governor,
by and with the advice and consent of the senate.
b. The inspector shall serve for a term of five years unless removed
by the governor for neglect or malfeasance in office, and may also be
removed for neglect or malfeasance by the senate upon a vote of
two-thirds of its members. An inspector removed from office may not be
reappointed to such office.
c. The inspector may not be employed with the department of social
services during his employment with the office or within two years after
terminating employment with the office.
3. Functions, duties and responsibilities. The inspector shall have
the following functions, duties and responsibilities:
a. to appoint such deputies, directors, assistants and other officers
and employees as may be needed for the performance of his duties and may
prescribe their powers and fix their compensation within the amounts
appropriated therefor;
b. to conduct and supervise investigations relating to the programs of
the department of social services and, to the greatest extent possible,
to coordinate such activities with the deputy attorney general for
medicaid fraud control, the commissioner of social services, the
commissioner of health, the commissioner of education, the fiscal agent
employed to operate the medicaid management information system, and the
state comptroller;
c. to keep the governor, attorney general, state comptroller,
president pro tem and minority leader of the senate, the speaker and the
minority and majority leaders of the assembly, apprised of fraud and
abuse;
d. to prosecute fraud, abuse or illegal acts perpetrated within the
department of social services or local social services districts, or by
contractees or recipients of public assistance services;
e. to make information and evidence relating to criminal acts which he
may obtain in carrying out his duties available to appropriate law
enforcement officials and to consult with the deputy attorney general
for medicaid fraud control and local district attorneys to coordinate
investigations and criminal prosecutions;
f. to subpoena witnesses, administer oaths or affirmations, take
testimony and compel the production of such books, papers, records and
documents as he may deem to be relevant to an investigation undertaken
pursuant to this section;
g. to monitor the implementation by the relevant office of his
recommendations and those of other investigative agencies;
h. to recommend policies relating to the prevention and detection of
fraud and abuse or the identification and prosecution of participants in
such fraud or abuse; and
i. to receive complaints of alleged failures of state and local
officials to prevent, detect and prosecute fraud and abuse.
4. Cooperation of agency officials and employees. a. In addition to
the authority otherwise provided by this section, the inspector, in
carrying out the provisions of this section, is authorized:
(i) to have full and unrestricted access to all records, reports,
audits, reviews, documents, papers, recommendations or other material
available to the department of social services and local social services
districts relating to programs and operations with respect to which the
inspector has responsibilities under this section;
(ii) to make such investigations relating to the administration of the
programs and operations of the department of social services as are, in
the judgment of the inspector, necessary or desirable; and
(iii) to request such information, assistance and cooperation from any
federal, state or local governmental department, board, bureau,
commission, or other agency or unit thereof as may be necessary for
carrying out the duties and responsibilities enjoined upon him by this
section. State and local agencies or units thereof are hereby authorized
and directed to provide such information, assistance and cooperation.
b. Notwithstanding any other provision of law, rule or regulation to
the contrary, no person shall prevent, seek to prevent, interfere with,
obstruct or otherwise hinder any investigation being conducted pursuant
to this section. Section one hundred thirty-six of the social services
law shall in no way be construed to restrict any person or governmental
body from cooperating and assisting the inspector or his employees in
carrying out their duties under this section. Any violation of this
paragraph shall constitute cause for suspension or removal from office
or employment.
5. Establishment period. The governor shall nominate the initial
inspector as soon as is practicable but in no event later than sixty
days after the effective date of this section.
6. Reports required of the inspector. The inspector shall, no later
than February first of each year submit to the governor, the state
comptroller, the attorney general and the legislature a report
summarizing the activities of the office during the preceding calendar
year.
7. Disclosure of information. a. The inspector shall not publicly
disclose information which is:
(i) a part of any ongoing investigation; or
(ii) specifically prohibited from disclosure by any other provision of
law.
b. Notwithstanding paragraph a of this subdivision, any report under
this section may be disclosed to the public in a form which includes
information with respect to a part of an ongoing criminal investigation
if such information has been included in a public record.
Law enforcement misconduct investigative office. 1.
Jurisdiction. This section shall, subject to the limitations contained
in this section, confer upon the law enforcement misconduct
investigative office jurisdiction over all covered agencies. For the
purposes of this section "covered agency" means an agency of any
political subdivision within the state maintaining a police force or
police forces of individuals defined as police officers in section 1.20
of the criminal procedure law, provided however, covered agency does not
include any agency, public authority, or other entity under the
jurisdiction of the state inspector general pursuant to article four-A
of the executive law, the metropolitan transportation authority
inspector general pursuant to section one thousand two hundred
seventy-nine of the public authorities law, or the port authority
inspector general pursuant to chapter one hundred fifty-four of the laws
of nineteen twenty-one.
2. Establishment and organization. (a) There is hereby established the
law enforcement misconduct investigative office in the department of
law. The head of the office shall be a deputy attorney general who shall
be appointed by the attorney general.
(b) Such deputy attorney general may appoint one or more assistants to
serve at his or her pleasure.
(c) The salary for the head of such office shall be established within
the limit of funds available therefore; provided, however, such salary
shall be no less than the salaries of certain state officers holding the
positions indicated in paragraph (a) of subdivision one of section one
hundred sixty-nine of this chapter.
(d) The mission of the law enforcement misconduct investigative office
shall be to review, study, audit and make recommendations relating to
the operations, policies, programs and practices, including ongoing
partnerships with other law enforcement agencies, of state and local law
enforcement agencies with the goal of enhancing the effectiveness of law
enforcement, increasing public safety, protecting civil liberties and
civil rights, ensuring compliance with constitutional protections and
local, state and federal laws, and increasing the public's confidence in
law enforcement.
3. Functions and duties. The deputy attorney general shall have the
following duties and responsibilities:
(a) receive and investigate complaints from any source, or upon his or
her own initiative, concerning allegations of corruption, fraud, use of
excessive force, criminal activity, conflicts of interest or abuse in
any covered agency;
(b) inform the heads of covered agencies of such allegations and the
progress of investigations related thereto, unless special circumstances
require confidentiality;
(b-1) promptly inform the division of criminal justice services, in
the form and manner prescribed by the division, of such allegations and
the progress of investigations related thereto unless special
circumstances require confidentiality. Nothing in this paragraph shall
require the division of criminal justice services to participate in the
investigation of such allegations or take action or prevent the division
of criminal justice services from taking action authorized pursuant to
subdivision three of section eight hundred forty-five of this chapter in
the time and manner determined by the commissioner of the division of
criminal justice services;
(c) determine with respect to such allegations whether disciplinary
action, civil or criminal prosecution, or further investigation by an
appropriate federal, state or local agency is warranted, and to assist
in such investigations, if requested by such federal, state, or local
agency;
(d) prepare and release to the public written reports of
investigations, as appropriate and to the extent permitted by law,
subject to redaction to protect the confidentiality of witnesses and
other information that would be exempt from disclosure under article six
of the public officers law. The release of all or portions of such
reports may be temporarily deferred to protect the confidentiality of
ongoing investigations;
(e) review and examine periodically the policies and procedures of
covered agencies with regard to the prevention and detection of
corruption, fraud, use of excessive force, criminal activity, conflicts
of interest and abuse;
(f) recommend remedial action to prevent or eliminate corruption,
fraud, use of excessive force, criminal activity, conflicts of interest
and abuse in covered agencies; and
(g) investigate patterns, practices, systemic issues, or trends
identified by analyzing actions, claims, complaints, and investigations,
including, but not limited to, any patterns or trends regarding
departments, precincts, and commands; and
(h) on an annual basis, submit to the governor, the attorney general,
the temporary president of the senate, the speaker of the assembly, the
minority leader of the senate and the minority leader of the assembly,
no later than December thirty-first, a report summarizing the activities
of the office and recommending specific changes to state law to further
the mission of the law enforcement misconduct investigative office.
4. Powers. The deputy attorney general shall have the power to:
(a) subpoena and enforce the attendance of witnesses;
(b) administer oaths or affirmations and examine witnesses under oath;
(c) require the production of any books and papers deemed relevant or
material to any investigation, examination or review;
(d) notwithstanding any law to the contrary, examine and copy or
remove documents or records of any kind prepared, maintained or held by
any covered agency;
(e) require any officer or employee in a covered agency to answer
questions concerning any matter related to the performance of his or her
official duties. No statement or other evidence derived therefrom may be
used against such officer or employee in any subsequent criminal
prosecution other than for perjury or contempt arising from such
testimony. The refusal of any officer or employee to answer questions
shall be cause for removal from office or employment or other
appropriate penalty;
(f) monitor the implementation by covered agencies of any
recommendations made by the law enforcement misconduct investigative
office; and
(g) perform any other functions that are necessary or appropriate to
fulfill the duties and responsibilities of office.
5. Responsibilities of covered agencies, officers and employees. (a)
Every officer or employee in a covered agency shall report promptly to
the law enforcement misconduct investigative office any information
concerning corruption, fraud, use of excessive force, criminal activity,
conflicts of interest or abuse by another officer or employee relating
to his or her office or employment, or by a person having business
dealings with a covered agency relating to those dealings. The knowing
failure of any officer or employee to so report shall be cause for
removal from office or employment or other appropriate penalty. Any
officer or employee who acts pursuant to this subdivision by reporting
to the law enforcement misconduct investigative office shall not be
subject to dismissal, discipline or other adverse personnel action.
(b) Upon receiving at least five complaints from five or more
individuals relating to at least five separate incidents involving a
certain officer or employee within two years, the head of any covered
agency shall refer such complaints to the law enforcement misconduct
investigative office for review. The law enforcement misconduct
investigative office shall investigate such complaints to determine
whether the subject officer or employee has engaged in a pattern or
practice of misconduct, use of excessive force, or acts of dishonesty.
The referral and investigation pursuant to this subdivision shall be in
addition to and shall not supersede any civil, criminal, administrative
or other action or proceeding relating to such complaints or the subject
officer or employee.
(c) The head of any covered agency shall advise the governor, the
temporary president of the senate, the speaker of the assembly, the
minority leader of the senate, the minority leader of the assembly and
the division of criminal justice services within ninety days of the
issuance of a report by the law enforcement misconduct investigative
office as to the remedial action that the agency has taken in response
to any recommendation for such action contained in such report.
(d) Nothing in this section shall be construed to impede, infringe, or
diminish the rights, privileges, benefits or remedies that accrue to any
employee pursuant to any agreement entered into pursuant to article
fourteen of the civil service law.
ARTICLE 6 Department of State
Department of state; secretary of state. There shall be in the
state government a department of state. The head of the department shall
be the secretary of state who shall be appointed by the governor by and
with the advice and consent of the senate and hold office until the end
of the term of the governor by whom he was appointed and until his
successor is appointed and has qualified. The secretary of state shall
receive an annual salary within the amount appropriated therefor and his
reasonable expenses when necessarily absent on public business
pertaining to the duties of his office.
In addition to those divisions created and continued within the
Department of State by other statutes, the secretary of state may
establish such other divisions and bureaus in the department of state as
he may deem necessary. He may prescribe the duties and powers of such
divisions and bureaus which shall be exercised and performed under his
supervision.
Rules. Subject to and in conformity with the provisions of the
constitution and laws of the state, the secretary of state may adopt and
promulgate such rules which shall regulate and control the exercise of
the powers of the department of state and the performance of the duties
of officers, agents and other employees thereof.
Deputies. The secretary of state shall appoint a deputy, who may
perform all the duties of the secretary of state. Any such deputy shall
receive an annual salary to be fixed by the secretary of state within
the amount appropriated therefor. The secretary of state may also
appoint and fix the compensation of such other deputies, assistants and
employees as he shall deem necessary within the amount appropriated
therefor and prescribe their powers and duties.
Custody of records. 1. The secretary of state shall have the
custody of all laws and concurrent resolutions of the legislature, all
documents issued under the great seal, all books, records, deeds,
parchments, maps and papers deposited or kept in his or her office, and
shall properly arrange and preserve them.
2. The records in the custody of the secretary of state need not be
retained in the form in which the record is received so long as the
technology used to retain such record results in a permanent record
which may be accurately reproduced during the period for which the
record is required to be retained. The secretary of state may promulgate
rules and regulations relating to the use by the department of state of
automatic data processing, telecommunications and other information
technologies for the processing of records for retention by the
department of state.
Examination of reports. The secretary of state shall examine
all reports required to be filed with the department of state pursuant
to article seven-A of this chapter in order to determine the nature and
extent of the in-kind support provided by any covered entity to one or
more recipient entities, as such terms are defined in section one
hundred seventy-two-e of this chapter, and the nature and extent of
covered communications by any covered entity, as such terms are defined
in section one hundred seventy-two-f of this chapter. Notwithstanding
any inconsistent provision of law, whenever the secretary of state, in
consultation with the department of taxation and finance or the
department of law, determines that the nature and extent of a covered
entity's in-kind support to other entities or the nature and extent of a
covered entity's spending on covered communications is inconsistent with
the charitable purposes of such covered entity, the secretary shall
cause the reports required by article seven-A of this chapter filed by
such entity to be published on the website of the department of state
upon such finding. Provided, however, that such publishing shall not
include the names and addresses of individual donors to covered entities
nor shall such publishing include the covered entity's Internal Revenue
Service Form 990 Schedule B. The secretary shall report to the governor,
the temporary president of the senate and the speaker of the assembly,
by December thirty-first, two thousand twenty-two, and annually
thereafter, on topics including but not limited to: the nature and
extent of in-kind support provided by covered entities to recipient
entities, as such terms are defined in section one hundred seventy-two-e
of this chapter and the nature and extent of expenditures for covered
communications. The secretary may request the assistance of the
department of taxation and finance or the department of law in order to
complete this report. Provided however that such report shall not
include the names and addresses of individual donors to covered entities
nor shall such report include the covered entity's Internal Revenue
Service Form 990 Schedule B.
Commission on ethics and lobbying in government. 1. (a)
Commission established. There is hereby established within the
department of state, a commission on ethics and lobbying in government,
an agency responsible for administering, enforcing, and interpreting New
York state's ethics and lobbying laws. The commission shall have and
exercise the powers and duties set forth in this section with respect to
statewide elected officials, members of the legislature and employees of
the legislature, and state officers and employees as defined in sections
seventy-three, seventy-three-a, and seventy-four of the public officers
law, candidates for statewide elected office and for the senate or
assembly, and the political party chair as is defined in section
seventy-three of the public officers law, lobbyists and the clients of
lobbyists as defined in section one-c of the legislative law, and
individuals who have formerly held such positions, were lobbyists or
clients of lobbyists as defined in section one-c of the legislative law,
or who have formerly been such candidates.
(b) The commission shall provide for the transfer, assumption or other
disposition of the records, property, and personnel affected by this
section, and it is further provided, should any employees be transferred
from the joint commission on public ethics ("JCOPE"), the predecessor
ethics agency, to the commission, that such transfer will be without
further examination or qualification and such employees shall retain
their respective civil service classifications, status and collective
bargaining agreements.
(c) The commission shall review any pending inquiries or matters
affected by this section and shall establish policies to address them.
(d) The commission shall undertake a comprehensive review of all
regulations in effect upon the effective date of this section; and
review of all advisory opinions of predecessor ethics agencies,
including JCOPE, the legislative ethics commission, the commission on
public integrity, the state ethics commission, and the temporary
lobbying commission, which will address the consistency of such
regulations and advisory opinions among each other and with the new
statutory language, and of the effectiveness of the existing laws,
regulations, guidance and ethics enforcement structure.
(e) This section shall not be deemed to have revoked or rescinded any
regulations or advisory opinions in effect on the effective date of this
section that were issued by predecessor ethics and lobbying bodies. The
commission shall cooperate, consult, and coordinate with the legislative
ethics commission, to the extent possible, to administer and enforce the
laws under its jurisdiction.
(f) The annual budget submitted by the governor shall separately state
the recommended appropriations for the commission on ethics and lobbying
in government. Upon enactment, these separately stated appropriations
for the commission on ethics and lobbying in government shall not be
decreased by interchange with any other appropriation, notwithstanding
section fifty-one of the state finance law.
2. Definitions. For the purposes of this section, the following terms
shall have the following meanings:
(a) "commission" means the commission on ethics and lobbying in
government established pursuant to subdivision one of this section.
(b) "selection members" means the governor, speaker of the assembly,
temporary president of the senate, minority leader of the senate,
minority leader of the assembly, comptroller, and the attorney general.
(c) "independent review committee" means the committee of the American
Bar Association accredited New York state law school deans or interim
deans, or their designee who is an associate dean of their respective
law school, tasked with reviewing, approving, or denying the members of
the commission as nominated by the selection members and other tasks
pursuant to this section.
(d) "respondent" means the individual or individuals or organization
or organizations subject to an inquiry, investigation, or enforcement
action.
(e) "victim" means any individual that has suffered or alleged to have
suffered direct harm from any violation of law that is subject to
investigation under the jurisdiction of the commission.
3. Nomination and appointment of the commission. (a) The commission
shall consist of eleven members, to be nominated by the selection
members as follows: three members by the governor; two members by the
temporary president of the senate; one member by the minority leader of
the senate; two members by the speaker of the assembly; one member by
the minority leader of the assembly; one member by the attorney general;
and one member by the comptroller.
(b) The independent review committee shall within thirty days review
the qualifications of the nominated candidates and approve or deny each
candidate nominated by their respective selection member.
(c) The independent review committee shall publish on its website a
procedure by which it will review the qualifications of the nominated
candidate and approve or deny each candidate.
(d) Those candidates that the independent review committee deems to
meet the qualifications necessary for the services required based on
their background and expertise that relate to the candidate's potential
service on the commission shall be appointed as a commission member. The
nominating selection member shall nominate a new candidate for those
that are denied by the independent review committee.
(e) No individual shall be eligible for nomination and appointment as
a member of the commission who is currently, or has within the last two
years:
(i) been registered as a lobbyist in New York state;
(ii) been a member or employee of the New York state legislature, a
statewide elected official, or a commissioner of an executive agency
appointed by the governor;
(iii) been a political party chair, as defined in section
seventy-three of the public officers law; or
(iv) been a state officer or employee as defined in section
seventy-three of the public officers law.
(f) The independent review committee shall convene as needed or as
requested by the selection members. The chair of the independent review
committee shall be elected from the members of the independent review
committee.
(g) Appropriate staffing and other resources shall be provided for in
the commission's budget for the independent review committee to carry
out its powers, functions, and duties. The independent review committee
shall publish on the commission's website a procedure by which it will
review and select the commission members and other processes to
effectuate its responsibilities under this section.
(h) The majority of the independent review committee shall constitute
a quorum to hold a meeting and conduct official business.
(i) During the pendency of the review and approval or denial of the
candidates, the independent review committee shall be subject to and
maintain confidentiality in all independent review committee processes,
reviews, analyses, approvals, and denials. A member of the independent
review committee may be removed by majority vote of the committee for
substantial neglect of duty, misconduct, violation of the
confidentiality restrictions set forth in this section, inability to
discharge the powers or duties of the committee or violation of this
section, after written notice and opportunity for a reply.
(j) Upon the receipt of the selection members' appointments, members
of the independent review committee shall disclose to the independent
review committee any personal, professional, financial, or other direct
or indirect relationships a member of the independent review committee
may have with an appointee. If the independent review committee
determines a conflict of interest exists, such independent review
committee member shall, in writing, notify the other members of the
independent review committee of the possible conflict. The member may
recuse themself from all subsequent involvement in the consideration of
and action upon the appointment. If, after disclosure, the member does
not recuse themself from the matter, the independent review committee,
by majority vote finding the disclosed information creates a substantial
conflict of interest, may remove the conflicted member from further
consideration of and action upon the appointment.
(k) Notwithstanding the provisions of article seven of the public
officers law, no meeting or proceeding of the independent review
committee shall be open to the public, except the applicable records
pertaining to the review and selection process for a member's seat shall
be subject to disclosure pursuant to article six of the public officers
law only after an individual member is appointed to the commission.
Requests for such records shall be made to, and processed by, the
commission's records access officer.
(l) The independent review committee shall neither be public officers
nor be subject to the requirements of the public officers law.
(m) Notwithstanding subdivision (l) of this section, the independent
review committee members shall be entitled to representation,
indemnification, and to be held harmless to the same extent as any other
person employed in service of the state and entitled to such coverage
under sections seventeen and nineteen of the public officers law,
provided however, that any independent review committee member removed
due to a violation of paragraph (i) of this subdivision shall not
qualify for such entitlements.
4. Commission. (a) The first class of members of the commission shall
serve staggered terms to ensure continuity. For the first class of the
commission, the governor's first appointee shall serve an initial term
of four years, their second appointee shall serve an initial term of two
years, and their third appointee shall serve an initial term of one
year; the attorney general's appointee shall serve an initial term of
four years; the comptroller's appointee shall serve an initial term of
four years; the temporary president of the senate's first appointee
shall serve an initial term of four years and their second appointee
shall serve a term of two years; the minority leader of the senate's
appointee shall serve an initial term of four years; the speaker of the
assembly's first appointee shall serve initial terms of four years and
their second appointee shall serve a term of two years; and the minority
leader of the assembly's appointee shall serve a term of four years. All
subsequent members shall serve a term of four years. No member shall be
selected to the commission for more than two full consecutive terms,
except that a member who has held the position by filling a vacancy can
only be selected to the commission for an additional two full
consecutive terms.
(b) The commission by majority vote shall elect a chairperson from
among its members for a term of two years. A chairperson may be elected
to no more than two terms for such office.
(c) Members of the commission may be removed by majority vote of the
commission for substantial neglect of duty, misconduct in office,
violation of the confidentiality restrictions set forth in this section,
inability to discharge the powers or duties of office or violation of
this section, after written notice and opportunity for a reply.
(d) Any vacancy occurring on the commission shall be filled within
thirty days of its occurrence in the same manner as a member is
initially selected to complete the vacant term.
(e) During the period of a member's service as a member of the
commission, the member shall refrain from making, or soliciting from
other persons, any contributions to candidates, political action
committees, political parties or committees, newsletter funds, or
political advertisements for election to the offices of governor,
lieutenant governor, member of the assembly or the senate, attorney
general or state comptroller.
(f) Members of the commission shall receive a per diem allowance equal
to the salary of a justice of the supreme court divided by two hundred
twenty for each day or each pro-rated day actually spent in the
performance of the member's duties under this section, and, in addition
thereto, shall be reimbursed for all reasonable expenses actually and
necessarily incurred by the member in the performance of the member's
duties under this section. For the purposes of this subdivision, a day
shall consist of at least seven and one-half hours spent in the
performance of the member's duties under this section.
(g) The commission shall meet at least quarterly and additionally as
called by the chairperson, or upon the call of a majority of the members
of the commission. The commission shall be subject to articles six and
seven of the public officers law.
(h) A majority of the members of the commission shall constitute a
quorum, and the commission shall have the power to act by majority vote
of the total number of members of the commission without vacancy.
(i) The commission shall hold a public hearing at least once each
calendar year to take testimony regarding the operation of the
commission and solicit public input regarding potential or proposed
changes in the laws under its jurisdiction.
5. Powers. (a) The commission has the authority to: (i) adopt, amend,
and rescind any rules and regulations pertaining to section
seventy-three, seventy-three-a or seventy-four of the public officers
law, article one-A of the legislative law, or section one hundred seven
of the civil service law; (ii) adopt, amend, and rescind any procedures
of the commission, including but not limited to, procedures for advice
and guidance, training, filing, review, and enforcement of financial
disclosure statements, investigations, enforcement, and due process
hearings; and (iii) develop and promulgate any programs for reviews,
training, and guidance to carry out the commission's mission.
(b) The commission shall adopt and post on its website guidance
documents detailing the processes and procedures of an investigation,
including the stages of an investigation; timelines, including the
reasons for any potential delays in an investigation; the hearing and
adjudication process; outcomes of an investigation; and, anything else
the commission deems necessary to inform the public as well as relevant
parties to an investigation including complainants, respondents,
victims, if any, and witnesses as to such processes and procedures. The
guidance documents shall delineate the processes and procedures that
apply to the relevant parties, including, where applicable, the due
process and any other rights or remedies that the relevant party may
have under the commission's procedures or any other area of law. The
guidance documents shall be provided to the relevant party of an
investigation upon such party's involvement in such investigation.
(c) The commission has the authority to compel the testimony of
witnesses, and may administer oaths or affirmations, subpoena witnesses,
compel their attendance and require the production of any books or
records which it may deem relevant or material.
6. Executive director and commission staff. The commission shall:
(a) (i) Appoint an executive director through a majority vote of the
members of the commission, who shall act in accordance with the policies
of the commission. The executive director shall be appointed without
regard to political affiliation and solely on the basis of fitness to
perform the duties assigned by this section, and meet the qualifications
necessary for the services required based on their background and
expertise that relate to the candidate's potential service to the
commission. No individual shall be eligible to be appointed as an
executive director if the individual is currently, or within the last
two years has been:
(1) registered as a lobbyist in New York state;
(2) a member or employee of the New York state legislature or a
statewide elected official, or a commissioner of an executive agency
appointed by the governor; or
(3) a political party chair, as defined in section seventy-three of
the public officers law.
(ii) The appointment and removal of the executive director shall be
made by a majority vote of the commission.
(iii) The term of office of the executive director shall be four years
from the date of appointment. The salary of the executive director shall
be determined by the members of the commission based on experience.
(iv) The commission may remove the executive director for neglect of
duty, misconduct in office, violation of the confidentiality
restrictions in this section, or inability or failure to discharge the
powers or duties of office, including the failure to follow the lawful
instructions of the commission.
(b) The commission may delegate authority to the executive director to
act in the name of the commission between meetings of the commission
provided such delegation is in writing, the specific powers to be
delegated are enumerated, and the commission shall not delegate any
decisions specified in this section that require a vote of the
commission.
(c) The commission, through the executive director, shall establish
units within the commission to carry out it duties, including, but not
limited to, (i) an advice and guidance unit, (ii) a training unit, (iii)
a financial disclosure unit, (iv) a lobbying unit, and (v) an
investigations and enforcement unit.
(d) The commission, through the executive director, shall appoint such
other staff as are necessary to carry out its duties under this section,
including, but not limited to, a deputy director of an advice and
guidance unit to provide timely confidential advice to persons subject
to the commission's jurisdiction, a deputy director for training, a
deputy director for investigations and enforcement, and a deputy
director for lobbying.
(e) In addition to meeting the qualifications necessary for the
services required for the position, the deputy director for
investigations and enforcement shall have completed substantial training
and have experience in trauma-informed approaches to investigations and
enforcement. The deputy director for investigations and enforcement
shall complete a minimum of four hours of training annually in
trauma-informed approaches to investigations and enforcement. Such
trainings may include, but not be limited to, the impact of trauma,
first impression matters, victim interviews, investigative strategies,
and alcohol and drug facilitated cases.
(f) The commission, through the executive director, shall review and
approve a staffing plan provided and prepared by the executive director
which shall contain, at a minimum, a list of the various units and
divisions as well as the number of positions in each unit, titles and
their duties, and salaries, as well as the various qualifications for
each position.
7. Advice and guidance. (a) The commission shall establish a unit or
units solely for ethics and lobbying guidance, and give such prompt,
informal advice to persons whose conduct it oversees, except with
respect to members of the legislature and legislative staff, who shall
seek advice from the legislative ethics commission in the first
instance.
(b) Persons receiving such informal advice may rely on that advice
absent misrepresentation or omission of material facts to the commission
and such communications with the commission shall be treated as
confidential, except as disclosure is needed to prevent or rectify a
crime or fraud, or prevent a substantial threat to public health or
safety or if required by court order.
(c) The commission may also render, on written request or on its own
initiative, advisory opinions, and may allow for public comment before
issuance of an advisory opinion. Such an opinion rendered by the
commission shall be relied on by those subject to the commission's
jurisdiction and until, or unless, amended, superseded, or revoked. Such
opinion may also be relied upon by any such person, and may be
introduced and shall be a defense, in any criminal or civil action.
8. Training. The commission shall establish a training unit and shall
develop and administer an on-going program for the education and
training in ethics and lobbying for those subject to the provisions of
this section, as follows:
(a) The commission shall develop and administer a comprehensive and
interactive live-in person or live-online ethics training course and
shall designate and train instructors to conduct such training. Such
live course shall be designed to include practical application of the
material covered and a question-and-answer participatory segment. Unless
the commission grants an extension or waiver for good cause shown,
statewide elected officials, members of the legislature and employees of
the legislature, and state officers and employees as defined in sections
seventy-three, seventy-three-a, and seventy-four of the public officers
law, and the political party chair as is defined in section
seventy-three of the public officers law, shall complete the live course
within ninety days of appointment or employment and shall complete the
live course every two years subsequently.
(b) The commission shall develop and administer an online ethics
refresher course for all individuals listed under subparagraph (i) of
this paragraph who have previously completed the live course. Such
refresher course shall be designed to include any changes in law,
regulation, or policy or in the interpretation thereof, and practical
application of the material covered. Unless the commission grants an
extension or waiver for good cause shown, such individuals shall take
such refresher course once every year after having completed the live
course under paragraph (a) of this subdivision.
(c) The commission shall develop and administer an online live
question and answer course for agency ethics officers.
(d) The commission shall develop and administer training courses for
lobbyists and clients of lobbyists and adopt regulations and procedures
related to such training courses including, but not limited to,
establishing deadlines for training course completion.
(d-1) The commission may impose a fee upon lobbyists and clients of
lobbyists for late completion of the training course required by this
subdivision, as set forth in section one-d of the legislative law.
(e) The provisions of this subdivision shall be applicable to the
legislature except to the extent that an ethics training program is
otherwise established by the assembly and/or senate for their respective
members and employees and such program meets or exceeds each of the
requirements set forth in this subdivision.
(f) On an annual basis, the commission, in coordination with the
legislative ethics commission, shall determine the status of compliance
with the training requirements under this subdivision by each state
agency and by the senate and the assembly. Such determination shall
include aggregate statistics regarding participation in such training
and shall be reported on a quarterly basis to the governor and the
legislature in writing.
9. Financial disclosure statements. (a) The commission may delegate
all or part of review, inquiry and advice in this section to the staff
under the supervision of the executive director.
(b) The commission shall make available forms for annual statements of
financial disclosure required to be filed pursuant to section
seventy-three-a of the public officers law.
(c) The commission shall review the financial disclosure statements of
the statewide elected officials and members of the legislature within
sixty days of their filings to determine, among other things,
deficiencies and conflicts.
(d) The commission shall review on a random basis the financial
disclosure statements for filers who are not statewide elected officials
and members of the legislature.
(e) The commission shall review financial disclosure statements filed
in accordance with the provisions of this section and (i) inquire into
any disclosed conflict to recommend how best to address such conflict;
and
(ii) ascertain whether any person subject to the reporting
requirements of section seventy-three-a of the public officers law has
failed to file such a statement, has filed a deficient statement or has
filed a statement which reveals a possible violation of section
seventy-three, seventy-three-a or seventy-four of the public officers
law.
(f) If a person required to file a financial disclosure statement with
the commission has failed to file a disclosure statement or has filed a
deficient statement, the commission shall notify the reporting person in
writing, state the failure to file or detail the deficiency, provide the
person with a fifteen-day period to cure the deficiency, and advise the
person of the penalties for failure to comply with the reporting
requirements. This first notice of deficiency shall be confidential. If
the person fails to make such filing or fails to cure the deficiency
within the specified time period, the commission shall send a notice of
delinquency (i) to the reporting person; (ii) in the case of a statewide
elected official, to the chief of staff or counsel to the statewide
elected official; (iii) in the case of a member of the legislature or a
legislative employee, to the temporary president of the senate and the
speaker of the assembly; and (iv) in the case of a state officer,
employee or board member, to the appointing authority for such person.
Such notice of delinquency may be sent at any time during the reporting
person's service as a statewide elected official, state officer or
employee, member of the assembly or the senate, or a legislative
employee or a political party chair or while a candidate for statewide
office, or within one year after termination of such service or
candidacy. A copy of any notice of delinquency or report shall be
included in the reporting person's file and be available for public
inspection and copying pursuant to the provisions of this section. The
jurisdiction of the commission, when acting pursuant to this subdivision
with respect to financial disclosure, shall continue for two years
notwithstanding that the reporting person separates from state service,
or ceases to hold public or political party office, or ceases to be a
candidate, provided the commission notifies such person of the alleged
failure to file or deficient filing pursuant to this subdivision.
(g) The commission shall adopt a procedure whereby a person who is
required to file an annual financial disclosure statement with the
commission may request an additional period of time within which to file
such statement, other than members of the legislature, candidates for
members of the legislature and legislative employees, due to justifiable
cause or undue hardship.
(h) The commission may permit any person who is required to file a
financial disclosure statement with the commission to request that the
commission delete from the copy thereof made available for public
inspection and copying one or more items of information which may be
deleted by the commission upon a finding by the commission that the
information which would otherwise be required to be made available for
public inspection and copying will have no material bearing on the
discharge of the reporting person's official duties. If such request for
deletion is denied, the commission, in its notification of denial, shall
inform the person of their right to appeal the commission's
determination in a proceeding commenced against the commission, pursuant
to article seventy-eight of the civil practice law and rules.
(i) The commission may permit any person who is required to file a
financial disclosure statement with the commission to request an
exemption from any requirement to report one or more items of
information which pertain to such person's spouse, domestic partner, or
unemancipated children which item or items may be exempted by the
commission upon a finding by the commission that the reporting
individual's spouse, domestic partner, on their own behalf, or on behalf
of an unemancipated child, objects to providing the information
necessary to make such disclosure and that the information which would
otherwise be required to be reported shall have no material bearing on
the discharge of the reporting person's official duties. If such request
for exemption is denied, the commission, in its notification of denial,
shall inform the person of their right to appeal the commission's
determination, pursuant to article seventy-eight of the civil practice
law and rules.
(j) The commission may permit any person required to file a financial
disclosure statement to request an exemption from any requirement to
report the identity of a client pursuant to the question under
subparagraph (b) of paragraph eight of subdivision three of section
seventy-three-a of the public officers law in such statement based upon
an exemption set forth in such question. The reporting individual need
not seek an exemption to refrain from disclosing the identity of any
client with respect to any matter where they or their firm provided
legal representation to the client in connection with an investigation
or prosecution by law enforcement authorities, bankruptcy, or domestic
relations matters. In addition, clients or customers receiving medical
or dental services, mental health services, residential real estate
brokering services, or insurance brokering services need not be
disclosed. Pending any application for deletion or exemption to the
commission relating to the filing of a financial disclosure statement,
all information which is the subject or part of the application shall
remain confidential. Upon an adverse determination by the commission,
the reporting individual may request, and upon such request the
commission shall provide, that any information that is the subject or
part of the application remain confidential for a period of thirty days
following notice of such determination. In the event that the reporting
individual resigns their office and holds no other office subject to the
jurisdiction of the commission, the information shall not be made public
and shall be expunged in its entirety.
(k) The commission shall permit any person who has not been determined
by the person's appointing authority to hold a policy-making position,
but who is otherwise required to file a financial disclosure statement
to request an exemption from such requirement in accordance with rules
and regulations governing such exemptions. Such rules and regulations
shall provide for exemptions to be granted either on the application of
an individual or on behalf of persons who share the same job title or
employment classification which the commission deems to be comparable
for purposes of this section. Such rules and regulations may permit the
granting of an exemption where, in the discretion of the commission, the
public interest does not require disclosure and the applicant's duties
do not involve the negotiation, authorization or approval of:
(i) contracts, leases, franchises, revocable consents, concessions,
variances, special permits, or licenses as such terms are defined in
section seventy-three of the public officers law;
(ii) the purchase, sale, rental or lease of real property, goods or
services, or a contract therefor;
(iii) the obtaining of grants of money or loans; or
(iv) the adoption or repeal of any rule or regulation having the force
and effect of law.
10. Investigation and enforcement. (a) The commission shall receive
complaints and referrals alleging violations of section seventy-three,
seventy-three-a or seventy-four of the public officers law, article
one-A and section five-b of the legislative law, or section one hundred
seven of the civil service law.
(b) Upon the receipt of a complaint, referral, or the commencement of
an investigation, members of the commission shall disclose to the
commission any personal, professional, financial, or other direct or
indirect relationships a member of the commission may have with a
complainant or respondent. If any commissioner determines a conflict of
interest may exist, the commissioner shall, in writing, notify the other
members of the commission setting forth the possible conflict of
interest. The commissioner may recuse themself from all subsequent
involvement in the consideration and determination of the matter. If,
after the disclosure, the commissioner does not recuse themself from the
matter, the commission, by a majority vote finding that the disclosed
information creates a substantial conflict of interest, shall remove the
conflicted commissioner from all subsequent involvement in the
consideration and determination of the matter, provided the reason for
the decision is clearly stated in the determination of the commission.
(c) The commission shall conduct any investigation necessary to carry
out the provisions of this section. Pursuant to this power and duty, the
commission may administer oaths or affirmations, subpoena witnesses,
compel their attendance and testimony, and require the production of any
books or records which it may deem relevant or material. The commission
may, by a majority vote and pursuant to regulations adopted pursuant to
the state administrative procedure act, delegate to the executive
director the authority to issue subpoenas, provided that the executive
director first notify the chair of the commission.
(d) The commission staff shall review and investigate, as appropriate,
any information in the nature of a complaint or referral received by the
commission or initiated by the commission, including through its review
of media reports and other information, where there is specific and
credible evidence that a violation of section seventy-three,
seventy-three-a, or seventy-four of the public officers law, section one
hundred seven of the civil service law or article one-A of the
legislative law by a person or entity subject to the jurisdiction of the
commission including members of the legislature and legislative
employees and candidates for members of the legislature.
(e) The commission shall notify the complainant, if any, that the
commission has received their complaint.
(f) If, following a preliminary review of any complaint or referral,
the commission or commission staff decides to elevate such preliminary
review into an investigation, written notice shall be provided to the
respondent setting forth, to the extent the commission is able to, the
possible or alleged violation or violations of such law and a
description of the allegations against the respondent and the evidence,
if any, already gathered pertaining to such allegations, provided
however that any information that may, in the judgment of the commission
or staff, either be prejudicial to the complainant or compromise the
investigation shall be redacted. The respondent shall have fifteen days
from receipt of the written notice to provide any preliminary response
or information the respondent determines may benefit the commission or
commission staff in its work. After the review and investigation, the
staff shall prepare a report to the commission setting forth the
allegation or allegations made, the evidence gathered in the review and
investigation tending to support and disprove, if any, the allegation or
allegations, the relevant law, and a recommendation for the closing of
the matter as unfounded or unsubstantiated, for settlement, for
guidance, or moving the matter to a confidential due process hearing.
The commission shall, by majority vote, return the matter to the staff
for further investigation or accept or reject the staff recommendation.
(g) In an investigation involving a victim the commission shall ensure
that any interview of such victim is upon such victim's consent and that
the investigator or investigators interviewing such victim have adequate
trauma informed and victim centered investigative training. If a victim
is requested to testify at a hearing, the commission shall provide
sufficient notice to the victim of such request. Regardless of whether a
victim is requested to or testifies at a hearing, the victim shall be
informed as to how any statements made or information provided will be
used in an investigation.
(h) Upon the conclusion of an investigation, if the commission, after
consideration of a staff report, determines by majority vote that there
is credible evidence of a violation of the laws under its jurisdiction,
it shall provide the respondent timely notice for a due process hearing.
The commission shall also inform the respondent of its rules regarding
the conduct of adjudicatory proceedings and appeals and the other due
process procedural mechanisms available to the respondent. If after a
hearing the complaint is unsubstantiated or unfounded, the commission
shall provide written notice to the respondent, complainant, if any, and
victim, if any, provided that such notice shall not include any
personally identifying information or information tending to identify
any party involved in an investigation.
(i) The hearing shall be conducted before an independent arbitrator.
Such hearing shall afford the respondent with a reasonable opportunity
to appear in person, and by attorney, give sworn testimony, present
evidence, and cross-examine witnesses.
(j) The commission may, at any time, develop procedures and rules for
resolution of de minimus or minor violations that can be resolved
outside of the enforcement process, including the sending of a
confidential guidance or educational letter.
(k) The jurisdiction of the commission when acting pursuant to this
section shall continue notwithstanding that a statewide elected official
or a state officer or employee or member of the legislature or
legislative employee separates from state service, or a political party
chair ceases to hold such office, or a candidate ceases to be a
candidate, or a lobbyist or client of a lobbyist ceases to act as such,
provided that the commission notifies such individual or entity of the
alleged violation of law within two years from the individual's
separation from state service or termination of party service or
candidacy, or from the last report filed pursuant to article one-A of
the legislative law. Nothing in this section shall serve to limit the
jurisdiction of the commission in enforcement of subdivision eight of
section seventy-three of the public officers law.
(l) If the commission's vote to proceed to a due process hearing after
the completion of an investigation does not carry, the commission shall
provide written notice of the decision to the respondent, complainant,
if any, and victim, if any, provided that such notice shall not include
any personally identifying information or information tending to
identify any party involved in an investigation.
(m) If the commission determines a complaint or referral lacks
specific and credible evidence of a violation of the laws under its
jurisdiction, or a matter is closed due to the allegations being
unsubstantiated prior to a vote by the commission, such records and all
related material shall be exempt from public disclosure under article
six of the public officers law, except the commission's vote shall be
publicly disclosed in accordance with articles six and seven of the
public officers law. The commission shall provide written notice of
such closure to the respondent, complainant, if any, or victim, if any,
provided that such notice shall not include any personally identifying
information or information tending to identify any party involved in an
investigation.
(n) (i) An individual subject to the jurisdiction of the commission
who knowingly and intentionally violates the provisions of subdivisions
two through five-a, seven, eight, twelve or fourteen through seventeen
of section seventy-three of the public officers law, section one hundred
seven of the civil service law, or a reporting individual who knowingly
and willfully fails to file an annual statement of financial disclosure
or who knowingly and willfully with intent to deceive makes a false
statement or fraudulent omission or gives information which such
individual knows to be false on such statement of financial disclosure
filed pursuant to section seventy-three-a of the public officers law,
shall be subject to a civil penalty in an amount not to exceed forty
thousand dollars and the value of any gift, compensation or benefit
received as a result of such violation.
(ii) An individual who knowingly and intentionally violates the
provisions of paragraph a, b, c, d, e, g, or i of subdivision three of
section seventy-four of the public officers law, shall be subject to a
civil penalty in an amount not to exceed ten thousand dollars and the
value of any gift, compensation or benefit received as a result of such
violation.
(iii) An individual subject to the jurisdiction of the commission who
knowingly and willfully violates article one-A of the legislative law
shall be subject to civil penalty as provided for in that article.
(iv) With respect to a potential violation of any criminal law where
the commission finds sufficient cause by a majority vote, it shall refer
such matter to the appropriate law enforcement authority for further
investigation.
(v) In assessing the amount of the civil penalties to be imposed, the
commission shall consider the seriousness of the violation, the amount
of gain to the individual and whether the individual previously had any
civil or criminal penalties imposed pursuant to this section, and any
other factors the commission deems appropriate.
(vi) A civil penalty for false filing shall not be imposed under this
subdivision in the event a category of "value" or "amount" reported
hereunder is incorrect unless such reported information is falsely
understated.
(vii) Notwithstanding any other provision of law to the contrary, no
other penalty, civil or criminal may be imposed for a failure to file,
or for a false filing, of such statement, or a violation of subdivision
six of section seventy-three of the public officers law or section one
hundred seven of the civil service law, except that the commission may
recommend that the individual in violation of such subdivision or
section be disciplined.
(o) The commission shall be deemed to be an agency within the meaning
of article three of the state administrative procedure act and shall
adopt rules governing the conduct of adjudicatory proceedings and
appeals taken pursuant to a proceeding commenced under article
seventy-eight of the civil practice law and rules relating to the
assessment of the civil penalties or the recommendation of employee
discipline herein authorized. Such rule shall provide for due process
procedural mechanisms substantially similar to those set forth in
article three of the state administrative procedure act but such
mechanisms need not be identical in terms or scope.
(p) (i) The commission shall have jurisdiction to investigate, but
shall have no jurisdiction to impose penalties or discipline upon
members of or candidates for member of the legislature or legislative
employees for any violation of the public officers law or section one
hundred seven of the civil service law. If, after investigation and a
due process hearing, the commission has found, by a majority vote, a
substantial basis to conclude that a member of the legislature or a
legislative employee or candidate for member of the legislature has
violated any provisions of such laws, it shall prepare a written report
of its findings and provide a copy of that report to the legislative
ethics commission, and to such individual in violation of such law. The
commission shall provide to the legislative ethics commission copies of
the full investigative file and hearing record.
(ii) With respect to the investigation of any individual who is not a
member of the legislature or a legislative employee or candidate for
member of the legislature, if after its investigation and due process
hearing, the commission has found, by a majority vote, a substantial
basis to conclude that the individual or entity has violated the public
officers law, section one hundred seven of the civil service law, or the
legislative law, the commission shall determine whether, in addition to
or in lieu of any fine authorized by this article, the matter should be
referred to their employer for discipline with a warning, admonition,
censure, suspension or termination or other appropriate discipline. With
regard to statewide elected officials, the commission may not order
suspension or termination but may recommend impeachment. The commission
shall then issue a report containing its determinations including its
findings of fact and conclusions of law to the complainant and
respondent. The commission shall publish such report on its website
within twenty days of its delivery to the complainant and respondent.
11. Confidentiality. (a) When an individual becomes a commissioner or
staff of the commission, such individual shall be required to sign a
non-disclosure statement.
(b) Except as otherwise required or provided by law, or when necessary
to inform the complainant or respondent of the alleged violation of law,
if any, of the status of an investigation, testimony received, or any
other information obtained by a commissioner or staff of the commission,
shall not be disclosed by any such individual to any person or entity
outside of the commission during the pendency of any matter. Any
confidential communication to any person or entity outside the
commission related to the matters before the commission shall occur only
as authorized by the commission. For the purposes of this paragraph,
"matter" shall mean any complaint, review, inquiry, or investigation
into alleged violations of this chapter.
(c) The commission shall establish procedures necessary to prevent the
unauthorized disclosure of any information received by any member of the
commission or staff of the commission. Any breaches of confidentiality
may be investigated by the New York state office of the inspector
general, attorney general, or other appropriate law enforcement
authority upon a majority vote of the commission to refer, and
appropriate action shall be taken.
(d) Any commission member or person employed by the commission who
intentionally and without authorization releases confidential
information received or generated by the commission shall be guilty of a
class A misdemeanor.
12. Annual report. (a) The commission shall make an annual public
report summarizing the activities of the commission during the previous
year and recommending any changes in the laws governing the conduct of
persons subject to the jurisdiction of the commission, or the rules,
regulations and procedures governing the commission's conduct. Such
report shall include, but is not limited to:
(i) information on the number and type of complaints received by the
commission and the status of such complaints;
(ii) information on the number of investigations pending and nature of
such investigations;
(iii) where a matter has been resolved, the date and nature of the
disposition and any sanction imposed; provided, however, that such
annual report shall not contain any information for which disclosure is
not permitted pursuant to this section or other laws;
(iv) information regarding financial disclosure compliance for the
preceding year; and
(v) information regarding lobbying law filing compliance for the
preceding year.
(b) Such a report shall be filed in the office of the governor and
with the legislature on or before the first day of April for the
preceding year.
13. Website. (a) Within one hundred twenty days of the effective date
of this section, the commission shall update JCOPE's publicly accessible
website which shall set forth the procedure for filing a complaint with
the commission, the filing of financial disclosure statements filed by
state officers or employees or legislative employees, the filing of
statements required by article one-A of the legislative law, and any
other records or information which the commission determines to be
appropriate.
(b) The commission shall post on its website the following documents:
(i) the information set forth in an annual statement of financial
disclosure filed pursuant to section seventy-three-a of the public
officers law except information deleted pursuant to paragraph (g) of
subdivision nine of this section of statewide elected officials and
members of the legislature;
(ii) notices of delinquency sent under subdivision nine of this
section;
(iii) notices of civil assessments imposed under this section which
shall include a description of the nature of the alleged wrongdoing, the
procedural history of the complaint, the findings and determinations
made by the commission, and any sanction imposed;
(iv) the terms of any settlement or compromise of a complaint or
referral which includes a fine, penalty or other remedy;
(v) those required to be held or maintained publicly available
pursuant to article one-A of the legislative law; and
(vi) reports issued by the commission pursuant to this section.
14. Additional powers. In addition to any other powers and duties
specified by law, the commission shall have the power and duty to
administer and enforce all the provisions of this section.
15. Severability. If any part or provision of this section or the
application thereof to any person or organization is adjudged by a court
of competent jurisdiction to be unconstitutional or otherwise invalid,
such judgment shall not affect or impair any other part or provision or
the application thereof to any other person or organization, but shall
be confined in its operation to such part or provision.
Consumer protection division. 1. Legislative declaration. The
legislature hereby finds and declares that the consumption of goods and
services is an economic activity that affects the life of every citizen.
The legislature further finds that unscrupulous and questionable
business practices are detrimental to the economic well-being of the
citizens of this state. In order to protect the people of New York state
from economic harm the legislature finds that it is appropriate that the
responsibilities of the consumer protection board be consolidated into a
new consumer protection division under the supervision of the secretary.
2. Consumer protection division. (a) The secretary shall establish a
consumer protection division in the department.
(b) The secretary is authorized to establish within the consumer
protection division one or more units and assign appropriate functions
to any such unit and may appoint such staff as necessary and prescribe
their duties and fix their compensation within the appropriation
provided by law.
(c) The secretary shall establish a public education and outreach
campaign to publicize the consumer protection division so as to maximize
public awareness of, and the services provided by, such division.
3. Powers of the consumer protection division. (a) The division shall
have the power and duty to:
(1) receive complaints of consumers, attempt to mediate such
complaints where appropriate, and refer complaints to the appropriate
unit of the department, or federal, state or local agency authorized by
law for appropriate action on such complaints;
(2) coordinate the activities of all state agencies performing
consumer protection functions;
(3) initiate and encourage consumer education programs;
(4) conduct investigations, research, studies and analyses of matters
affecting the interests of consumers;
(5) cooperate with and assist the attorney general and the department
of financial services in the carrying out of legal enforcement
responsibilities for the protection of consumers;
(6) implement other powers and duties by regulation and otherwise as
prescribed by any provision of law;
(7) (i) advise and make recommendations to the governor on matters
affecting the consumers of the state and promote and encourage the
protection of the legitimate interests of consumers within the state;
(ii) study the operation of consumer protection laws and recommend to
the governor new laws and amendments of laws for consumer protection;
(8) represent the interests of consumers of the state before federal,
state and local administrative and regulatory agencies;
(9) establish a process by which victims of identity theft will
receive assistance and information to resolve complaints. To implement
the process the secretary shall have the authority to:
(i) promulgate rules and regulations to administer the identity theft
prevention and mitigation program; and
(ii) act as a liaison between the victim and any state agency, public
authority, or any municipal department or agency, the division of state
police, and county or municipal police departments, and any
non-governmental entity, including but not limited to, consumer credit
reporting agencies, to facilitate the victim obtaining such assistance
and data as will enable the program to carry out its duties to help
consumers resolve the problems that have resulted from the identity
theft. Trade secrets and proprietary business information contained in
the documents or records that may be received by the division shall be
exempt from disclosure to the extent allowed by article six of the
public officers law;
(10) undertake activities to encourage business and industry to
maintain high standards of honesty, fair business practices, and public
responsibility in the production, promotion and sale of consumer goods
and services;
(11) conduct product research and testing and, where appropriate,
contract with private agencies and firms for the performance of such
services;
(12) cooperate with and assist local governments in the development of
consumer protection activities;
(13) establish advisory councils to assist in policy formulation on
specific consumer problems;
(14) cooperate with and assist consumers in class actions in proper
cases;
(15) create an internet website or webpage pursuant to section three
hundred ninety-c of the general business law, as added by chapter five
hundred nine of the laws of two thousand seven; and
(16) exercise such powers and duties granted to the secretary by
article sixteen of the energy law as the secretary may direct,
including, but not limited to: consult with such president of the New
York state energy research and development authority in connection with
investigations conducted by such president pursuant to article sixteen
of the energy law; make determinations relating to compliance by
products with the standards adopted pursuant to article sixteen of the
energy law; order the immediate cessation of any distribution, sale or
offer for sale, import, or installation of any product that does not
meet such standards; and impose civil penalties as contemplated by
article sixteen of the energy law.
4. Utility intervention unit. (a) There is established within the
division a state utility intervention unit.
(b) The utility intervention unit shall have the power and duty to:
(i) on behalf of the secretary, initiate, intervene in, or participate
in any proceedings before the public service commission or the
department of public service, to the extent authorized by sections
three-b, twenty-four-a, seventy-one, eighty-four or ninety-six of the
public service law or any other applicable provision of law, where he or
she deems such initiation, intervention or participation to be necessary
or appropriate;
(ii) represent the interests of consumers of the state before federal,
state and local administrative and regulatory agencies engaged in the
regulation of energy services;
(iii) accept and investigate complaints of any kind from Long Island
power authority consumers, attempt to mediate such complaints where
appropriate directly with such authority and refer complaints to the
appropriate state or local agency authorized by law to take action with
respect to such complaints; and
(iv) hold regular forums in each of the service territories of the
combination gas and electric corporations, as defined under section two
of the public service law, and the Long Island power authority to
educate consumers about utility-related matters and the regulatory
process, opportunities to lower energy costs, including through energy
efficiency and distributed generation, and other matters affecting
consumers.
5. Reports. (a) No later than March fifteenth of each year, beginning
in two thousand twelve, the secretary shall furnish to the governor, the
speaker of the assembly and the temporary president of the senate a
report describing the activities of the consumer protection division.
The secretary shall prepare quarterly a report to the governor, the
speaker of the assembly and the temporary president of the senate of the
category and number of complaints received by the division during the
previous quarter in sufficient detail to assist the recipients in
determining the need for additional laws for the protection of the
consumer. Additionally, all such complaints received by the division
shall be maintained on a category by category basis.
(b) No later than January first, two thousand twelve, the secretary
shall furnish to the governor, the speaker of the assembly and the
temporary president of the senate a report describing the activities of
the consumer protection division regarding the public education and
outreach campaign required pursuant to paragraph (c) of subdivision two
of this section.
Office for new Americans. 1. Legislative intent. The
legislature hereby finds and declares that, according to the 2010
census, approximately twenty-two percent of New Yorkers were not born in
the United States, nine percent above the national average. For years
immigrants have come to the United States to make a better life for
themselves. It is of utmost importance to the state that these new
Americans be given the tools to assist them in making a better life for
themselves, particularly through programs that help develop and leverage
their skills and strengthen their connections with their communities and
through programs to reduce exploitation of vulnerable immigrant
populations.
2. Definitions. For the purposes of this section, the terms "new
American" and "immigrant" shall refer to non-citizen domicilaries of New
York state whose country of origin is other than the United States.
3. Office for new Americans; director. There is hereby created within
the department of state the office for new Americans. The secretary
shall appoint a director of the office to accomplish the
responsibilities set forth in this section. Such director shall receive
an annual salary within amounts appropriated and shall serve at the
pleasure of the secretary.
4. Organization of the office for new Americans. The secretary shall
have the power to establish, consolidate, reorganize, or abolish any
organizational units within the office as he or she determines to be
necessary for efficient operation thereof. The secretary shall assign
functions to any such unit and may appoint staff, agents, and
consultants, prescribe their duties, and fix their compensation within
amounts appropriated.
5. Powers and duties of the office for new Americans. The office for
new Americans shall have the power and responsibility to:
(a) Create a network of neighborhood-based opportunity centers;
(b) Increase access to English-for-speakers-of-other-languages (ESOL)
training, including by engaging not-for-profit organizations and other
qualified providers of ESOL training services;
(c) Assist immigrants in matters relating to immigration status,
including but not limited to assisting with the naturalization process
and applications for deferred action for childhood arrivals;
(d) Connect immigrants to business resources that harness their
skills, employment referral programs, and other workforce development
programs;
(e) Develop and leverage the skills of immigrants to benefit their
communities and the state;
(f) Strengthen the connections between immigrants and their
communities through civic engagement;
(g) Reduce exploitation of immigrants;
(h) Establish a toll-free multi-lingual hotline and a website for
purposes including but not limited to dissemination of information about
the programs and services offered by the office for new Americans,
referral for services, and receipt of complaints relating to fraud and
other related crimes against immigrants;
(i) Ensure that individuals referred by the office are directed to
service providers who are in compliance with article twenty-eight-C of
the general business law or providers certified by the bureau of
immigration appeals;
(j) Using information developed by the office through the hotline,
assist law enforcement in combatting crimes against immigrants;
(k) Advise the governor and secretary concerning matters affecting
immigrants in the state in order to promote and encourage the full
participation of immigrants in the state's civic and economic life;
(l) Coordinate with other state agencies and otherwise marshal the
resources of the state to serve the needs of immigrants;
(m) Encourage and assist local governments in the development of
activities to enhance civic engagement among immigrants and in immigrant
communities;
(n) Beginning in two thousand fifteen, by June fifteenth of each year,
produce a report to the governor, the speaker of the assembly, and the
temporary president of the senate describing the activities of the
office, including but not limited to, summarizing calls received through
the hotline and website, information on ESOL training services provided
by the office, the number of immigrants assisted through the opportunity
centers, or an estimation thereof, the status of any workforce
development programs, and any other relevant information;
(o) Encourage the development of and provide for the establishment of
a state military immigrant family legacy program liaison, as provided in
section twenty-nine-b of the veterans' services law; and
(p) Request individuals seeking assistance from the office answer the
following questions: "Have you served in the United States military?"
"Has someone in your family served in the United States military?"
Individuals identifying themselves or a family member as "intended
recipients" of the staff sergeant Alex R. Jimenez New York state
military immigrant family legacy program as such term is defined in
paragraph (e) of subdivision one of section twenty-nine-b of the
veterans' services law, shall be advised of such program. In addition,
such individuals shall be informed that the department of veterans'
services and local veterans' service agencies established pursuant to
section seventeen of the veterans' services law provide assistance to
uniformed service members, veterans and their families regarding
benefits available under federal and state law. Information regarding
veterans and military status provided by assisted individuals shall be
protected as personal confidential material, and used only to identify
such individuals as "intended recipients" of the staff sergeant Alex R.
Jimenez New York State military immigrant family legacy program, and to
assist such individuals in matters relating to immigration status and
citizenship, and in referring such individuals to the department of
veterans' services or local veterans' service agencies for information
and assistance with regard to benefits and entitlements under federal
and state law.
* § 94-d. New York Asian American and Pacific Islander commission. 1.
(a) There is hereby established within the department of state the New
York Asian American and Pacific Islander commission. The commission
shall consist of thirteen members representative of Asian American and
Pacific Islander communities which may include, but not be limited to:
the Bangladeshi, Bhutanese, Cambodian, Chinese, Filipino, Hmong, Indian,
Indonesian, Japanese, Korean, Laotian, Malaysian, Mongolian, Nepalese,
Pakistani, Singaporean, Sri Lankan, Taiwanese, Thai, and Vietnamese
communities. Such members shall have experience advocating on behalf of
their community, and shall be appointed as follows:
(1) seven members shall be appointed by the governor;
(2) two members shall be appointed by the temporary president of the
senate;
(3) two members shall be appointed by the speaker of the assembly;
(4) one member shall be appointed by the minority leader of the
senate; and
(5) one member shall be appointed by the minority leader of the
assembly.
The secretary of state, or their designee, shall serve as chair of the
commission.
(b) Each member of the commission shall serve a term of three years,
except that in making the first appointments to the commission, four
members shall be appointed to serve for one year, four for two years,
and five for three years. The first appointments made by the temporary
president of the senate and speaker of the assembly shall be allocated
equally between the one-year and two-year terms of service. The first
appointments made by the minority leaders shall serve for three years.
The first appointments made by the governor shall be as follows: two
members shall be appointed to serve for one year, two members shall be
appointed to serve for two years, and three members shall be appointed
to serve for three years. The members shall be eligible for
reappointment and shall serve until their successors are appointed and
qualified, and the term of the successor of any incumbent shall be
calculated from the expiration of the term of that incumbent. A vacancy
occurring other than by expiration of term shall be filled in the same
manner as the original appointment, but for the unexpired term only.
(c) A majority of the members of the commission shall constitute a
quorum for the purpose of conducting the business thereof and a majority
vote of all the members in office shall be necessary for action.
2. The commission shall make recommendations regarding the following:
(a) policies to improve the community, economic and social well-being,
and the health and educational needs important to Asian American and
Pacific Islander communities in the state;
(b) statewide programs, recognizing the continuing contributions of
Asian American and Pacific Islander individuals in the state;
(c) public education campaigns regarding Asian American and Pacific
Islander issues and culture;
(d) ways to increase the awareness among Asian American and Pacific
Islander individuals of state and local resources that may benefit Asian
American and Pacific Islander individuals and communities as a whole.
3. The members of the commission shall serve without compensation, but
they shall be entitled to reimbursement for all necessary expenses
incurred in the performance of their duties.
4. The commission shall submit an annual report on its activities to
the governor and the legislature.
* NB Repealed November 17, 2028
Legislative manual. The secretary of state, at the expense of
the state, may in each odd-numbered year prepare and publish the
legislative manual. The manual shall contain the constitution of the
United States and of the state of New York, diagrams of the senate and
assembly chambers, and such other information of the nature heretofore
published therein, as the secretary may consider useful, and shall be
printed and bound in substantially the same style as heretofore. As soon
as printed, the secretary shall deliver a copy of the manual to each
member and officer of the legislature, and to each state officer
entitled to the session laws.
Fees and refunds. Except as otherwise provided by section
ninety-six-a of this chapter, the department of state shall collect the
following fees:
1. For searching the records of the department for the availability of
a corporate, limited partnership or limited liability company name, five
dollars for each name submitted.
2. For searching the records of the department other than as set forth
in subdivision one hereof, five dollars for each name in excess of five
submitted by or on behalf of an applicant for a search.
3. For a copy of any paper or record not required to be certified or
otherwise authenticated, fifty cents per page; except that the fee for a
copy of any paper or record not required to be certified or otherwise
authenticated which is furnished by the bureau of corporations of the
department of state, shall be five dollars, regardless of the number of
pages.
4. For a certified or exemplified copy of any law, record or paper,
except a photostatic copy furnished by the department of state, one
dollar per page; for a certified or exemplified copy of any law, record
or paper reproduced by photostat by the department of state, fifty cents
per page and in either case five dollars additional for the certificate
under the official seal of the department of state, affixed thereto;
except that the fee for a certified or exemplified copy of any record or
paper which is furnished by the bureau of corporations of the department
of state, shall be ten dollars, regardless of the number of pages or
regardless of whether such document is reproduced by photostat.
5. For a certificate or authentication under the great seal of the
state, ten dollars.
6. For a certificate as to the official character of a commissioner of
deeds residing in another state or foreign country, one dollar.
7. For every other certificate under the official seal of the
department of state, twenty-five dollars.
8. For registering and recording a notice of a mining claim as
required by section eighty-two of the public lands law, fifty dollars.
9. (a) For filing under the general associations law or any
corporation law, except the business corporation law and not-for-profit
corporation law: a certificate of incorporation, one hundred twenty-five
dollars; a certificate or report of voluntary dissolution, including the
issuance of duplicate certificates by the secretary of state, and a
certified copy of an order or judgment of dissolution, sixty dollars;
the statement and designation of a foreign corporation, including the
issuance of a certificate of authority, two hundred twenty-five dollars;
a certificate of designation or change of address or any certificate of
change of mailing address or office of a foreign corporation, other than
a moneyed corporation, thirty dollars; any other certificate or
instrument, sixty dollars.
(b) For filing under the business corporation law and the
not-for-profit corporation law as set forth in those chapters.
10. For service of process on the secretary of state, acting as agent
for a third party pursuant to law, except as otherwise specifically
provided by law, forty dollars. No fee shall be collected for process
served on behalf of a county, city, town or village or other political
subdivision of the state. The fees paid the secretary of state shall be
a taxable disbursement.
11. (a) For the special handling of requests made to the division of
corporations of the department of state for any service for which a fee
is collected as prescribed by law, twenty-five dollars. For the purposes
of this section the term "special handling" shall mean the completion of
the request within twenty-four hours of receipt of the request, except
in those cases where the twenty-four hour period shall end on a
Saturday, Sunday, holiday or day on which the division of corporations
of the department of state is not open for business, in which case the
twenty-four hour period shall be extended to the appropriate hour of the
next succeeding business day on which such division is open for
business.
(b) For the same day expedited handling of requests made to the
division of corporations of the department of state for any service for
which a fee is collected as prescribed by law, seventy-five dollars. For
the purposes of this section the term "same day expedited handling"
shall mean the completion of the request on the same day as the day of
request.
(c) For the two hour priority handling of requests made to the
division of corporations of the department of state for any service for
which a fee is collected as prescribed by law, one hundred fifty
dollars. For the purposes of this section the term "two hour priority
handling" shall mean the completion of the request within two hours on
the same day as the day of the request.
(d) For handling of non-expedited requests made to the division of
corporations of the department of state for any service for which a fee
is collected as prescribed by law, the completion of such request shall
be accomplished within seven business days.
12. For the filing, recording or registering of any certificate,
notice or other paper required to be filed, recorded or registered, the
fee for which is not otherwise prescribed by law, twenty-five dollars.
13. Except as otherwise specifically provided by law, the department
of state may refund, within three years from the date of payment and
upon audit of the state comptroller, any fee or portion of a fee paid
pursuant to any of the statutes which the department is charged by law
to administer, in any case in which:
a. the license, permit, or certificate applied for is not issued, or
does not take effect, or
b. the filing or certification requested is not made, or
c. the service requested is not rendered, or
d. the payment made is in excess of the amount prescribed by such
statute, or
e. the licensee has entered the active armed services of the United
States in which event the refund shall be such proportion of the license
fee paid as the number of full months remaining unexpired of the license
period bears to the total number of months in such period.
14. No fee shall be collected for copies of records furnished to state
officers as defined in the public officers law, section two, for use in
their official capacity.
15. The department of state shall on or before the tenth day of each
month, out of the moneys collected during the preceding month pursuant
to subdivision nine of this section, pay over to each county clerk in
whose office a certified copy of a corporation certificate or other
instrument relating to a domestic or foreign corporation shall have been
filed by the department during the preceding month pursuant to law the
sum of six dollars for each such copy of a corporation certificate or
other instrument for which the department shall have collected a filing
fee of thirty dollars or more, and the sum of one dollar for each such
copy of a corporation certificate or other instrument for which the
department shall have collected a sum of less than thirty dollars, and
such payment shall be received by the county clerk in full satisfaction
of all fees for filing such copy, any other general or special law to
the contrary notwithstanding. All such moneys remaining after such
payments to the county clerks shall be paid pursuant to section one
hundred twenty-one of the state finance law.
16. Consistent with the provisions of the corporate laws of the state
of New York, the department of state shall produce or reproduce the
content of any informational systems maintained pursuant to such laws.
The secretary of state shall establish the type and amount of the
reasonable fees to be collected by the department of state for such
informational systems. Such fees shall be subject to approval of the
director of the budget and shall be promulgated in the official rules
and regulations of the department of state in accordance with the
provisions of the state administrative procedure act.
17. For receipt of a village incorporation petition pursuant to
section 2-202 of the village law, two hundred fifty dollars.
Fees for services rendered pursuant to the uniform commercial
code. 1. In case of conflict between this section and any other
provision of law, this section shall control.
2. The secretary of state shall determine the type and amount of all
fees to be collected by the department of state and other filing offices
for services rendered by said department or office pursuant to the
provisions of the uniform commercial code and article ten-A of the lien
law. Such fees, referred to as processing fees, shall be non-refundable
fees paid to the department of state or office at the time that
documents are presented to the department of state or office for filing,
and will be paid whether or not the documents are accepted for filing.
Such fees shall be subject to the approval of the director of the budget
and shall be promulgated in the official rules and regulations of the
department of state in accordance with the provisions of the state
administrative procedure act. Nothing contained in this subdivision
shall preclude the secretary of state from periodically changing such
fees, subject to the approval of the director of the budget, and from
periodically amending the official rules and regulations of the
department of state in accordance with the provisions of the state
administrative procedure act.
3. Consistent with the provisions of article nine of the uniform
commercial code and article ten-A of the lien law, the department of
state and other filing offices shall produce or reproduce the content of
any informational systems maintained pursuant to such laws. The
secretary of state and other filing offices shall establish reasonable
fees for information so produced or reproduced. Notwithstanding any
other provisions of law, the availability of such information shall be
determined solely by the provisions of the uniform commercial code.
Completing unfinished papers. The secretary of state shall have
power to complete and sign and certify in his own name, adding to his
signature the date of so doing, all records of incorporation papers and
other papers left incomplete or unsigned by any of his predecessors,
with the same force and effect as though said records had been duly
signed by such predecessors.
Affirmation in lieu of oath. Any application for a license or
registration required by law to be filed with the department of state
may, in lieu of being acknowledged or sworn under oath, be subscribed by
the applicant and affirmed by him or her as true under penalties of
perjury.
Copies of amendments to rules for admission of attorneys. The
secretary of state must cause to be published in the next ensuing volume
of the session laws each amendment of the rules established by the court
of appeals for the admission of attorneys and counselors, filed with him
pursuant to the judiciary law.
Central state registry of security guards. 1. The department
shall collect information and maintain, on a current basis, a registry
of all security guards and applicants for registration cards in the
state. Such registry shall include, but not be limited to, with respect
to each security guard or applicant as the case may be, his or her name,
address, date of birth, whether a registration card has been issued,
denied, suspended or revoked or has expired, and the security guard
company or companies by whom he or she is or has been employed and such
other information as may in the discretion of the secretary be
appropriate; provided, however, that in no case shall such registry
include criminal history information.
2. Each security guard company as defined in subdivision five of
section eighty-nine-f of the general business law which employs security
guards shall transmit to the department, no later than the fifteenth day
of January in the year next succeeding the year in which the provisions
of this section become effective, a list which shall include but not be
limited to the name of every security guard employed by such security
guard company indicating with respect to each security guard his or her
name, address, date of birth and such other information as may in the
discretion of the secretary be appropriate; provided, however, that in
no case shall such registry include criminal history information. Each
such security guard company shall thereafter, submit to the department
the name of each security guard employed or who has retired or resigned
or whose employment as a security guard is terminated for any reason, no
later than the fifteenth calendar day following such employment,
retirement, resignation or termination, and, in the instance of newly
appointed security guards, shall include all the information required to
be furnished in the initial listing required by this subdivision. The
information required to be submitted pursuant to this subdivision which
is required by law to be kept confidential shall be kept confidential
and all other information shall be released only pursuant to this
section.
3. The department shall establish rules and regulations to provide for
a permanent system of identification for each security guard or
applicant as the case may be, which will ensure the security and privacy
of information contained in the registry and to ensure that such
information is made available only to qualified agencies defined in
subdivision nine of section eight hundred thirty-five of this chapter
and to security guard companies only for the purposes enumerated in
subdivision four of this section.
4. Notwithstanding any other provision of law, security guard
companies, as defined in subdivision five of section eighty-nine-f of
the general business law, shall, upon such terms and conditions as the
department shall by rules and regulations prescribe, have timely access
to information contained in the registry, with respect to security
guards as defined in subdivision six of section eighty-nine-f of the
general business law or applicants as defined in subdivision nine of
section eighty-nine-f of the general business law, who as certified by
such security guard companies making such inquiries are presently
employed by or who have applied for employment by such security guard
companies as security guards. Such information shall include but not be
limited to employment history and such other information as may in the
discretion of the secretary be appropriate and relevant to the
employment of a security guard.
5. In the event of failure or refusal to comply with the requirements
of subdivision two of this section, the secretary may apply to the
supreme court for an order directed to the person responsible requiring
compliance. Upon such application the court may issue such order as may
be just, and a failure to comply with the order of the court shall be a
contempt of court and punishable as such.
6. Whenever an applicant for or holder of a security guard
registration card has been charged with a serious offense as defined by
subdivision thirteen of section eighty-nine-f of the general business
law or of a misdemeanor, the division shall notify the department and
the department shall notify the security guard company which employs
such applicant or which has filed the application on behalf of such
applicant of such serious offense or a misdemeanor as provided for in
paragraph a of subdivision three of section eighty-nine-g of this
article.
7. In the event that a registration card is not issued within six
months following application therefor, or is not reissued within six
months following the expiration thereof, unless the registration card
has been suspended or revoked, the department shall so notify the
division which shall thereupon destroy the set of fingerprints received
with the application.
8. The department shall continue to maintain in the registry the
information required to be kept pursuant to this article for security
guards and applicants for a period of not less than five years following
their termination, revocation, resignation, retirement or failure to be
hired or renewed at which time the department shall purge from the
registry such information.
9. Saving clause. In case it be judicially determined that any of the
provisions of this section is unconstitutional or otherwise invalid,
such determination shall not affect the validity or effect of the
remaining provisions of this section.
Central state registry of armored car guards. 1. The secretary
of state shall maintain a computerized registry of all individuals who
apply for a registration card or have been issued a registration card as
an armored car guard pursuant to the provisions of article eight-C of
the general business law. An armored car carrier, as that term is
defined in subdivision six of section eighty-nine-bbb of the general
business law, shall obtain only the name, address and armored car guard
registration status of an employee or potential employee listed in such
registry.
2. The secretary of state shall maintain all records collected for
applicants pursuant to the armored car guard act for a period of five
years after the applicant's termination as an armored car guard,
retirement, resignation, death, failure to be rehired, or non-renewal of
the applicant's registration card. Every armored car carrier shall file
with the secretary, on a monthly basis, a report, stating all armored
car guards in their employ who have retired, resigned, died, been
terminated, have not been rehired, or have otherwise been removed from
active duty, in such form and on such media as approved for such purpose
by the secretary.
Information on state agencies pertaining to persons subjected
to section seventy-three-a of the public officers law and who hold
policy-making positions. 1. As used in this section "agency" means:
(a) any state department, board, bureau, division, council, committee,
commission, or office;
(b) any other similar state public organization established pursuant
to state statutes, executive order, or other executive action for the
exercise of any function of state government and to which members are
appointed or elected; and
(c) any public authority or public benefit corporation a majority of
whose members are appointed by the governor or serve as members by
virtue of holding state offices to which they were appointed by the
governor, or any combination thereof.
2. "Agency" does not include:
(a) any informal advisory organization established exclusively by a
state agency to advise a commissioner, secretary, or other director of
that agency on an informal basis;
(b) the state legislature; and
(c) any local government or subdivision or entity thereof.
3. The secretary of state shall maintain a compilation of persons
subjected to section seventy-three-a of the public officers law and who
hold policy-making positions at all state agencies, including state
agencies established after the effective date of this section. Such
compilation shall identify by agency the persons subjected to section
seventy-three-a of the public officers law and who hold policy-making
positions, the length of time such positions have been held, and a
representation of policy-making positions at such agency held by women
compared to policy-making positions held by men. The secretary of state
shall keep such inventory in a public record available for inspection,
and updated annually on the department of state website.
4. Each agency shall annually on or before January first, submit to
the secretary of state all information required pursuant to this section
in a manner specified by the secretary of state to facilitate the
publication requirements of this section.
5. For the purposes of this section, "persons subjected to section
seventy-three-a of the public officers law and who hold policy-making
decisions" shall include, but not be limited to, a commissioner, a
superintendent, an executive director, and other chief executive
officers, positions appointed by the governor, as well as the
appointments of the aforementioned whose function is essential to the
policy-making processes of such agency, and any other position whose
function is essential to the policy-making processes of such agency.
Accessibility, rules and regulations. 1. The secretary of
state, in consultation with any other state agency he or she deems
necessary, shall promulgate any rules and regulations necessary to
remove the word "handicapped" from any signs or other means of
communication where such word appears.
2. The secretary of state, in consultation with any other state agency
he or she deems necessary, shall promulgate rules and regulations
necessary to require that wherever the current universal symbol of
access of a figure in a wheelchair appears, such symbol shall instead
depict a logo with a dynamic character leaning forward with a sense of
movement. Such logo shall be readily identifiable, simply designed with
no secondary meaning, and provide for equivalent facilitation and
accessibility as the current universal symbol of access. The provisions
of this subdivision shall only apply to any new signs being installed or
replaced on and after the effective date of this section.
Legislative notification of the proposed adoption, amendment,
suspension or repeal of agency rules.
1. Definitions. As used in this section,
a. "Agency" means any state board, bureau, commission, department,
authority, division, or officer authorized by law to make rules.
b. "Rule" means the whole or part of each agency statement of general
applicability or regulation or code that implements or applies law, or
prescribes the procedure or practice requirements of any agency,
including the amendment, suspension or repeal thereof, except such as
relates to the organization or internal management of the agency.
2. Except as provided in subdivision three of this section, at least
sixty days prior to either the adoption of any rule, or, if a public
hearing is required by statute, at least sixty days prior to the first
public hearing on a proposed rule, the agency proposing to take such
action shall send in writing or may transmit electronically in
accordance with article three of the state technology law, a
notification of such proposed action to the temporary president of the
senate and the speaker of the assembly. This notification shall: (a)
refer to the statutory authority under which the action is proposed, (b)
give the time and place of any public hearing that may be scheduled
concerning the proposed action, or state the manner in which data, views
or arguments may be submitted to the agency concerning the proposed
action, (c) contain a copy of the complete text of the proposed rule,
and (d) contain a fiscal statement setting forth the fiscal consequences
of the proposed action on the state and its local governments.
3. If the agency finds that it is necessary for the preservation of
the public health, safety or general welfare to dispense with the
requirements of subdivision two of this section, the agency may dispense
with such requirements and adopt the rule, as an emergency measure.
Within five days of the filing of such emergency measure in the office
of the department of state, the agency taking such action shall send or
transmit, as the case may be, the temporary president of the senate and
the speaker of the assembly a notification containing the information
required by subdivision two of this section; provided, however, such
notification shall also: (a) include a brief statement setting forth the
reasons why the agency finds that it is necessary for the preservation
of the public health, safety or general welfare to dispense with the
requirements of subdivision two of this section and adopt the rule as an
emergency measure, and (b) provide the date the emergency measure will
terminate if the agency does not intend to adopt such measure as a
permanent rule, or indicate that the agency intends to adopt such
measure as a permanent rule, in which case compliance with the
notification requirements of this section shall be deemed satisfied. The
effectiveness of any such emergency measure, unless adopted as a
permanent rule in the manner prescribed by law, shall not exceed ninety
days after the filing of such measure in the office of the department of
state, provided, however, if such emergency measure is readopted prior
to the expiration of such ninety day period such readoption and any
subsequent readoptions shall remain in effect for no longer than sixty
days.
4. The legislature in the joint rules of the senate and assembly may
exempt from the requirements of this section certain rules which have or
would have no significant fiscal implications.
5. This section does not relieve any agency from compliance with any
statute requiring that its rules be filed with or approved by designated
persons or bodies before they become effective.
6. A proceeding to invalidate any rule on the ground of noncompliance
with the procedural requirements of this section must be commenced by
the temporary president of the senate or the speaker of the assembly
within four months from the effective date of the rule. No rule shall be
valid unless adopted in substantial compliance with this section;
provided, however, that the inadvertent failure to give notice as
provided in this section shall not invalidate any rule.
Application by municipal corporations for the suspension of
certain rules.
1. Definitions. As used in this section,
a. "Agency" means any state board, bureau, commission, department,
division or officer authorized by law to adopt rules.
b. "Rule" means the whole or part of each agency statement of general
applicability or regulation or code that implements or applies law,
including the amendment, suspension or repeal thereof.
c. "Municipal corporation" means a county outside the city of New
York, a city, a town, a village or a school district.
d. "Governing body" means:
(1) In a county, a board of supervisors, county legislature or other
body vested by its charter, other law or other valid enactment with
jurisdiction to enact local laws;
(2) In a city, the board of aldermen, a common council, commission or
other body vested by its charter or other law with jurisdiction to enact
ordinances or local laws;
(3) In a town, the town board;
(4) In a village, the board of trustees; and
(5) In a school district, the board of education, board of trustees or
sole trustee.
2. A municipal corporation may, by resolution adopted by its governing
body, apply to the agency which has adopted a rule for the mandatory
suspension of such rule for the balance of the municipal corporation's
current fiscal year, provided the rule was filed in the office of the
secretary of state after the commencement of the municipal corporation's
current fiscal year.
3. Upon the receipt of such an application, the agency which adopted
the rule shall forthwith by order suspend its applicability to the
petitioning municipal corporation for the balance of such corporation's
current fiscal year, unless the agency determines by order, within
thirty days of receipt of such application, that the immediate
implementation of the rule is necessary for public health, safety or
welfare, or that its postponement would be contrary to express provision
of law. A copy of any order issued pursuant to this section shall be
sent to the temporary president of the senate, the speaker of the
assembly and the administrative regulations review commission.
4. This section shall not relieve a municipal corporation from
complying with a rule until such time that the agency which has adopted
the rule shall issue an order pursuant to this section suspending its
applicability to such corporation.
Filing and publication of codes, rules and regulations. 1. a.
No code, rule or regulation shall become effective until it is filed
with the secretary of state, unless a later date is required by statute
or is specified by such code, rule or regulation.
b. Each department, board, bureau, officer, authority, commission or
other agency of the state, authorized by statute to adopt codes, rules
or regulations shall transmit to the secretary of state a certified copy
of every such code, rule and regulation except such as relate solely to
the organization or internal management of such department, board,
bureau, authority, commission or other agency of the state in force at
the time of such transmittal or to become effective thereafter,
certified by the head of such department, board, bureau, authority,
commission or other agency of the state, or if such head is a board or
commission, by the chairman or secretary thereof, together with a
citation of the statutory authority pursuant to which each such code,
rule or regulation was adopted.
c. Any code, rule or regulation which includes in the text thereof any
United States statute, or code, rule or regulation previously published
in the code of federal regulations or in the federal register, or any
previously published data, criteria, standards, specifications,
techniques, illustrations or other information reasonably available to
regulated parties, shall have set forth in its text a precise
identification of such material, including but not limited to:
applicable titles, dates, editions, page numbers, section numbers, and
authors, the names and addresses of the publisher from whom a copy may
be obtained, and the designated office or offices of the adopting agency
at which such material is available for public inspection and copying.
d. No amendment to any material identified pursuant to paragraph c of
this subdivision shall be effective unless adopted in compliance with
the applicable provisions of law and filed with the secretary of state
pursuant to this section.
e. The secretary of state shall promulgate rules establishing
procedure, forms, style and font for submission of every such code, rule
and regulation required to be submitted by this section.
2. Immediately upon adopting any new code, rule or regulation
including any rule as defined in the state administrative procedure act,
or any amendment to or repeal thereof, except such as relate solely to
the organization or internal management of a department, board, bureau,
authority, commission or other agency of the state, the original thereof
shall be filed in the office of the department of state. Attached
thereto shall be a certificate, in a form prescribed by the secretary of
state, citing the statutory authority including particular sections and
subdivisions pursuant to which each such change or new code, rule or
regulation was adopted, the date of adoption, and the date of
publication in the state register of the notice required under the
provisions of the state administrative procedure act as well as the date
and manner of publication of any additional prior notice required under
any other statute. If the action taken shall be exempt from the
provisions of the state administrative procedure act and if no other
statutory notice requirement shall be applicable the certificate shall
so state. Such certificate shall be signed by the head of the
department, board, bureau, authority, commission, or other agency of the
state, or if such head is a board or commission, by the chairman or
secretary thereof, or, in lieu of such signatures, it may be signed by a
person designated by such head or chairman aforementioned, provided such
designation is made in writing, contains therein the signature of the
person designated, and is filed with the department of state. The
secretary of state shall reject any rule submitted for filing in the
event that either the notice required by subdivision five or six of
section two hundred two of the state administrative procedure act, or
the attached certificate, reveals that the rule was not adopted in
substantial compliance with section two hundred two of such act.
3. It shall be the duty of the secretary of state to prepare a master
compilation of all such codes, rules and regulations in such form and
order as he may determine. He shall not, however, change the language of
any existing code, rule or regulation except a title or explanatory
caption; but he shall recommend any such change as he may deem advisable
to the department, board, bureau, officer, authority, commission or
other agency of the state authorized to adopt such code, rule or
regulation. Such master compilation shall include all codes, rules and
regulations except such as relate solely to the organization or internal
management of a department, board, bureau, authority, commission or
other agency of the state, in effect on the first day of January,
nineteen hundred forty-five, and which he shall certify as a true copy
of the master compilation prepared by him.
4. Publication of all such codes, rules and regulations filed with the
secretary of state pursuant to this section shall be provided in the
following manner:
a. the secretary of state shall make readily available in his office,
for public inspection and copying, the full text of the master
compilation;
b. each agency shall make readily available at a designated office or
offices of the agency, for public inspection and copying, the full text
of all codes, rules and regulations adopted by the agency;
c. at the same time material identified pursuant to paragraph c of
subdivision one of this section is filed with the secretary of state, an
agency shall transmit a copy of all such material except material that
is: (i) a United States statute or a code, rule or regulation published
in the Code of Federal Regulations or in the Federal Register; or (ii)
readily available without charge on the internet to the legislative
library and, within each judicial department of the state, one court law
library designated by the chief administrator of the courts; provided
that for materials readily available on the internet, the agency shall
identify the address at which such materials can be accessed;
d. notwithstanding any provisions of law to the contrary, photocopies
of any codes, rules and regulations shall be available to the public
upon payment of a fee not to exceed twenty-five cents per page; and
e. the secretary of state shall cause such compilation to be printed;
however, he may exclude from such printed compilation any previously
published portion of a rule which is precisely identified in the text
thereof pursuant to paragraph c of subdivision one of this section.
5. The compilation printed pursuant to paragraph e of subdivision four
of this section shall be known as the "official compilation of codes,
rules and regulations of the state of New York" and shall presumptively
establish the codes, rules and regulations of the state of New York,
except such as relate solely to the organization or internal management
of a department, board, bureau, authority, commission or other agency of
the state, in force and effect on the first day of January, nineteen
hundred forty-five. The official supplements to such compilation
published as hereinafter provided shall presumptively establish any
changes in such codes, rules and regulations and any new codes, rules or
regulations except such as relate solely to the organization or internal
management of a department, board, bureau, authority, commission or
other agency of the state, affected by addition, amendment or repeal, or
adopted during the period ending on the thirty-first day of December in
any year immediately preceding the publication of such supplement.
Nothing in such official compilation or any new edition thereof or
official supplement thereto shall be construed as repealing or amending
any code, rule or regulation adopted by any department, board, bureau,
authority, commission or other agency of the state, and in case of any
inconsistency arising through omission or otherwise between the official
compilation and such codes, rules and regulations as filed in the office
of the secretary of state, the latter shall prevail.
Future editions and supplements of official compilations. 1.
In any year the secretary of state may, whenever he shall believe that
the public interest will be served thereby, cause a new edition of such
official compilation or any volume thereof to be published, which
compilation shall be published as soon as practicable, and shall set
forth the codes, rules and regulations except such as relate solely to
the organization or internal management of a department, board, bureau,
authority, commission or other agency of the state on file in the office
of the department of state on the date as of which such new edition is
published.
2. The secretary of state may, whenever he deems it to be necessary,
cause to be published an official supplement to the official
compilation, showing all new and all changes in existing codes, rules
and regulations adopted since the effective date of the codes, rules and
regulations embraced in the latest edition of the official compilation
or since the end of the period covered by the preceding supplement.
3. Any new edition of such compilation published as heretofore
provided, and any supplementation thereof or thereto, shall
presumptively establish that the codes, rules and regulations contained
therein are on file in the department of state, and are effective,
unless otherwise stated, on the date as of which such new edition, or
any volume thereof, or a supplementation thereto, is published.
4. Any code, rule or regulation contained in any new edition of the
official compilation, or any volume thereof, or any supplementation
thereto, shall not be printed in any official supplement published for
any period prior to the date as of which such new edition, volume, or
supplementation is published.
Departmental cooperation. The secretary of state may advise
with the several departments, boards, bureaus, officers, authorities,
commissions and other agencies of the state which are authorized by
statute to issue codes, rules or regulations, to the end that the same
may, so far as possible, be uniform in style and form, be properly
numbered and captioned and be free from matter which is obsolete.
Departmental cooperation regarding water quality. The
secretary of state shall cooperate with the environmental facilities
corporation to establish methods to facilitate loans to eligible
borrowers and to develop educational materials for eligible borrowers
about the low-interest loans available through the water pollution
control linked deposit program, established by article sixteen of the
state finance law, and to develop an application form to be provided to
lenders for linked deposit loan requests. For residential and small
business on-site wastewater treatment systems projects, the department
shall require owners of such systems to submit the results of
inspections of such systems at the time of an application for financial
assistance pursuant to article sixteen of the state finance law. The
department may promulgate rules and regulations necessary and reasonable
for the operation of the program, including but not limited to standards
for the inspection of residential and small business on-site wastewater
treatment systems.
Changes in codes, rules or regulations. Changes in any code,
rule or regulation except such as relates solely to the organization or
internal management of a department, board, bureau, authority,
commission or other agency of the state shall be made by a department,
board, bureau, officer, authority, commission or other agency of the
state only by addition, amendment or repeal. Every resolution or order
affecting such an addition, amendment or repeal shall refer to the
appropriate title and to the appropriate section or paragraph as
published in the official compilation or supplement thereto. In the case
of a proposed new code, rule or regulation except such as relates solely
to the organization or internal management of a department, board,
bureau, authority, commission or other agency of the state for which
there is no appropriate title, the head of such department, board,
bureau, authority, commission or other agency of the state shall confer
with the secretary of state and shall, prior to the adoption of any
resolution establishing such code, rule or regulation, have his approval
in writing of the proposed title, captions and numbers of such code,
rule or regulation and any parts, paragraphs or sections thereof.
Proof of codes, rules and regulations. Any code, rule or
regulation of the state of New York may be read in evidence from the
official compilation or supplement thereto. To entitle any copy of a
code, rule or regulation published, other than those published in such
official compilation or supplement thereto, to be read in evidence there
shall be contained in the same book or pamphlet a printed certificate of
the secretary of state that such copy is a correct transcript of the
text of the code, rule or regulation as published in such official
compilation or supplement thereto. For such a certificate the secretary
of state shall collect such a fee as he shall deem just and reasonable.
Internet access to the New York code, rules and regulations.
The department of state shall post or maintain a link on its website to
an unofficial version of the New York codes, rules, and regulations,
which shall be provided at no cost to the end users. All state agencies
which have adopted rules and regulations shall maintain a link to the
department of state website which contains such link.
Intergovernmental agreements. 1. The secretary of state shall
compile and keep current a list of all interstate compacts and other
intergovernmental agreements between or among states, subdivisions of
this state and other states, or between this state or any subdivision
thereof and the federal government having the force of law to which this
state or any subdivision thereof is party. Such list shall contain the
citations to the statutes or other official documents of this state
containing the text of any such compact or agreement together with a
listing of all other jurisdictions party to the compact or agreement,
the date on which each such jurisdiction entered into participation in
such compact or agreement with this state or subdivision thereof; the
status of each such compact or agreement in respect of withdrawals
therefrom and the citations to any act or resolution of the congress of
the United States, if any, consenting to such compact or agreement. The
list required to be kept pursuant to this subdivision also shall include
compacts and agreements adopted by this state or any subdivision thereof
but not in effect by reason of the absence of such other parties thereto
as may be necessary to make the compact or agreement effective and
binding.
2. In any case where the statutes of this state do not contain the
full text of a compact or agreement to which subdivision one of this
section applies, the secretary of state shall receive a true copy of the
compact or agreement and keep the same on file.
3. Any amendment, supplementary agreement or administrative rule or
regulation having the force of law implementing, adding to or modifying
any such compact or agreement to which this state or a subdivision
thereof is party shall be listed or filed in the same manner as the
compact or agreement itself.
4. The secretary of state shall make the list maintained by him
pursuant to this act and any information contained therein available to
any person upon request, but shall not be required to furnish copies of
any compact or agreement, unless so required by a provision of law or
administrative rule other than this section.
5. The listing and filing requirements of this section shall be in
addition to and not in substitution for any requirements for listing or
filing, publication or distribution contained in particular compacts or
agreements to which this state is or may be a party.
6. Upon receipt by the governor of a formal notice from another state
of such state's withdrawal from an interstate compact to which New York
is party, the governor shall transmit such notice or a copy thereof to
the secretary of state. Any agency or subdivision of this state
administering, participating in or entering into any compact or
agreement shall furnish the secretary of state with all information
necessary to permit such secretary to perform his duties and
responsibilities pursuant to this section.
Address confidentiality program. There is created in the
office of the secretary of state a program to be known as the "address
confidentiality program" to protect victims of domestic violence,
victims of human trafficking, victims of kidnapping, victims of a sexual
offense, victims of stalking, and reproductive health care services
providers, employees, volunteers, patients, or immediate family members
of reproductive health care services providers by authorizing the use of
designated addresses for such victims and their minor children. The
program shall be administered by the secretary of state.
1. Definitions. For the purposes of this section the following words
shall, unless the context requires otherwise, have the following
meanings:
(a) "Victim of domestic violence" shall have the same meaning as is
ascribed to such term by section four hundred fifty-nine-a of the social
services law.
(b) "Actual address" means the residential street address, school
address or work address of an individual, as specified on his or her
application to be a program participant under this section.
(c) "Program participant" means a person certified as a program
participant under this section.
(d) "Mail" means first class letters delivered via the United States
Postal Service, including priority, express and certified mail, and
excluding packages, parcels, periodicals and catalogues, unless they are
clearly identifiable as pharmaceuticals or clearly indicate that they
are sent by a government agency.
(e) "Substitute address" means the secretary's designated address for
the address confidentiality program.
(f) "Secretary" means the secretary of state.
(g) "Public record" means any information kept, held, filed, produced
or reproduced by, with or for an agency, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets, forms,
papers, designs, drawings, maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes.
(h) "Process" means judicial process and all orders, demands, notices
or other papers required or permitted by law to be served on a program
participant.
(i) "Victim of a sexual offense" means a victim of any act
constituting an offense as defined under article one hundred thirty,
and/or sections 255.25, 255.26, and 255.27 of the penal law, including
threats or attempts to commit such offenses.
(j) "Victim of stalking" means a victim of any act constituting an
offense as defined under sections 120.45, 120.50, 120.55 and 120.60 of
the penal law.
(k) "Victim of human trafficking" means a victim of any act
constituting an offense as defined under section 135.35, 135.37, 230.34,
or 230.34-a of the penal law.
* (l) "Reproductive health care services provider, employee,
volunteer, or patient" means a person who obtains, provides, or assists,
at the request of another person, in obtaining or providing reproductive
health care services, or a person who owns or operates a reproductive
health care services facility.
* NB There are 2 par (l)'s
* (l) "Victim of kidnapping" means a victim of any act constituting an
offense as defined under sections 135.20 and 135.25 of the penal law.
* NB There are 2 par (l)'s
(m) "Reproductive health care services facility" includes a hospital,
an office operated by a licensed physician and surgeon, a licensed
clinic, or other licensed health care facility that provides
reproductive health care services and includes only the building or
structure in which the reproductive health care services are actually
provided.
(n) "Immediate family member" shall have the same meaning as defined
in subdivision eight of section two hundred thirty-eight of the public
health law.
2. Address confidentiality program; application; certification. (a) An
adult person, a parent or legal guardian acting on behalf of a minor, or
a legal guardian acting on behalf of an incapacitated person, may apply
to the secretary to have an address designated by the secretary to serve
as the person's address or address of the minor or incapacitated person
in lieu of the person's actual address. The secretary shall approve an
application if it is filed in the manner and on the form prescribed by
the secretary, and if it includes:
(i) a signed written statement affirmed by the applicant that:
(A) the applicant, or the minor or incapacitated person on whose
behalf the application is made, is a victim of domestic violence, victim
of human trafficking, victim of kidnapping, victim of a sexual offense,
victim of stalking, or a reproductive health care services provider,
employee, volunteer, patient, or an immediate family member of a
reproductive health care services provider;
(B) the applicant, or the minor or incapacitated person on whose
behalf the application is made, has left his or her residence because of
such violence or acts, provided, however, this clause shall not apply if
the applicant is a reproductive health care services provider, employee,
volunteer, patient, or an immediate family member of a reproductive
health care services provider;
(C) the applicant fears for his or her safety or his or her children's
safety, or the safety of the minor or incapacitated person on whose
behalf the application is made, or, in the case of a reproductive health
care services provider, employee, volunteer, or patient, the applicant
fears for his or her safety or the safety of an immediate family member;
and
(D) the parent or legal guardian applying on behalf of a minor or
incapacitated person has legal authority to act on the person's behalf;
(ii) a designation of the secretary as agent for purposes of service
of process and for the purpose of receipt of mail;
(iii) the mailing address where the applicant can be contacted by the
secretary and the telephone number or numbers where the applicant can be
called by the secretary;
(iv) the actual address or addresses that the applicant requests not
be disclosed because of the increased risk of domestic violence, a
sexual offense, stalking, physical injury or in the case of reproductive
health care services provider, employee, volunteer, patient, or an
immediate family member of a reproductive health care services provider,
other threats of violence; and
(v) the name of any person who resides with the applicant who also
needs to be a program participant in order to ensure the safety of the
applicant and, if the person named in the application is eighteen years
of age or older, the consent of such person to be a program participant
and designation by such person of the secretary as agent for purposes of
service of process and for the purpose of receipt of mail; and
(vi) the signature of the applicant and the name and signature of any
individual or representative of any office designated by the secretary
under subdivision three of this section who assisted in the preparation
of the application, and the date on which the applicant signed the
application.
(b) The secretary shall establish, distribute and make available a
form for the purpose of making applications pursuant to this section.
(c) Applications shall be filed with the office of the secretary.
(d) Upon receipt of a properly completed application, the secretary
shall certify the applicant as a program participant and shall serve as
the participant's agent for service of process and receipt of mail for
the duration of the term of certification.
(e) Participants shall be certified for four years following the date
of filing, unless the certification is withdrawn or cancelled before
that date. The secretary shall promulgate rules and regulations for
renewal of applications pursuant to this section.
3. Designation of agencies to assist applicants. The secretary shall
designate state, local or nonprofit agencies that provide counseling,
referral, shelter or other specialized services to victims of domestic
violence, victims of human trafficking, victims of kidnapping, victims
of a sexual offense, victims of stalking, and reproductive health care
services providers, employees, volunteers, patients, or immediate family
members of reproductive health care services providers to assist persons
applying to be program participants. Such persons providing assistance
shall be trained by the secretary. Any assistance and counseling
rendered by an officer of the secretary or his or her designees to
applicants shall in no way be construed as legal advice.
4. Use and acceptance of substitute address; mail forwarding. (a) A
program participant may request that state and local agencies use the
substitute address. When creating, modifying or maintaining a public
record, state and local agencies shall accept the substitute address
upon demonstration by a program participant of his or her certification
in the program, unless the secretary waives this requirement after
determining that:
(i) the agency has a bona fide statutory or administrative requirement
for the use of the participant's actual address which would otherwise be
confidential under this section; and
(ii) the agency has explained how its acceptance of the substitute
address will prevent the agency from meeting its obligations under the
law and why it cannot meet its statutory or administrative obligation by
a change in its internal procedures.
(b) Any agency receiving a waiver shall maintain the confidentiality
of the program participant's address by redacting the actual address
when the record is released to any person and shall not make the program
participant's actual address available for inspection or copying, except
under the following circumstances:
(i) there is a bona fide statutory or administrative requirement for
the communication of an actual address to another agency that has
received a waiver from the secretary, provided that each waiver
specifically authorizes such communication with the specified agency; or
(ii) if directed by a court order to a person identified in the order.
(c) Upon receipt by the secretary of a process or mail for a
participant, the office of the secretary shall immediately forward all
such process or mail to the appropriate program participants at the
address specified by the participant for that purpose, and shall record
the date of such forwarding. Service of process on a program
participant, a program participant's minor child, incapacitated person
or other adult member of the program participant's household shall be
complete when the secretary receives such process by mail or otherwise.
(d) A program participant may use the substitute address as his or her
work address.
(e) The secretary or any member of the department of state who
reasonably and in good faith handles any process or mail on behalf of a
participant in accordance with this section shall be immune from any
civil liability which might otherwise result by reason of such actions.
5. Cancellation of certification. (a) The secretary may cancel a
program participant's certification if, after the passage of fourteen
days:
(i) from the date of changing his or her name, the program participant
does not notify the secretary that he or she has obtained a name change;
however, the program participant may reapply under his or her new name;
(ii) from the date of changing his or her actual address, the program
participant fails to notify the secretary of the change of such address;
or
(iii) from the date the secretary first receives mail, forwarded to
the program participant's address, returned as non-deliverable.
(b) The secretary shall cancel certification of a program participant
who applies using false information.
(c) The secretary shall cancel certification of a program participant
if the participant's certification term has expired and certification
renewal has not been completed.
(d) The secretary shall send notice of cancellation to the program
participant. Notice of cancellation shall set out the reasons for
cancellation. The program participant shall have thirty days to appeal
the cancellation decision under procedures developed by the secretary.
(e) Program participants may withdraw from the program by giving the
secretary written notice of their withdrawal and his or her current
identification card. The secretary shall establish, by rule, a secure
procedure for ensuring that the request for withdrawal is legitimate.
(f) Any records or documents pertaining to a program participant shall
not be a public record and shall be retained and held confidential for a
period of three years after termination of certification and then
destroyed.
6. Disclosure of participant information prohibited; exceptions. (a)
The secretary shall not make a program participant's information, other
than the substitute address, available for inspection or copying, except
under any of the following circumstances:
(i) if requested by a law enforcement agency for a legitimate law
enforcement purpose as determined by the law enforcement agency; or
(ii) to a person identified in a court order, upon the secretary's
receipt of that court order which specifically orders the disclosure of
a particular program participant's address and the reasons stated
therefor.
(b) The secretary may verify the participation of a specific program
participant, in which case the secretary may only confirm information
supplied by the requester.
7. Rules and regulations. The secretary shall promulgate rules and
regulations necessary to implement the provisions of this section.
8. Report to the legislature. The secretary shall submit to the
legislature, no later than February first of each year, a report that
includes for each county, the total number of applications received, the
total number of persons participating in the program established by this
section during the previous calendar year and the total number of pieces
of mail forwarded to program participants during the previous calendar
year.
Registration of certain service providers. 1. For purposes of
this section:
(a) "Client" shall mean a person or entity who in the preceding
calendar year retained or hired the political consultant relating to
matters before any state or local government agency, authority or
official, including services, advice or consultation relating to any
state or local government contract for real property, goods or services,
an appearance in a ratemaking proceeding, an appearance in a regulatory
matter, or an appearance in a legislative matter other than matters
described in subparagraph (E) of the second undesignated paragraph of
subdivision (c) of section one-c of the legislative law.
(b) "Political consulting services" shall mean services provided by a
political consultant to or on behalf of an elected public official in
New York state or to or on behalf of a candidate for elected office in
New York state, or to or on behalf of a person nominated for elected
public office which services: (1) assist or are intended to assist in a
campaign for nomination for election or election to office in New York
state, including fundraising activities, voter outreach, composition and
distribution of promotional literature, advertisements, or other similar
communications, as set forth in section 14-106 of the election law, or
(2) consist of political advice to an elected public official or
candidate for elected public office in New York state or person
nominated for elected public office; provided, however, that political
consulting services shall not include bona fide legal work directly
related to litigation or legal advice with regard to securing a place on
the ballot, the petitioning process, the conduct of an election, or
which involves the election law.
(c) "Political consultant" shall mean a person who holds himself or
herself out to persons in this state as a person who performs political
consulting services in a professional capacity and who is usually
compensated, excluding reimbursement for expenses, for such services.
2. The secretary of state shall promulgate rules and regulations
prescribing a registration form to be used by any political consultant
who provides political consulting services to a sitting elected public
official, candidate for elected public office or person nominated for
elected public office and who has also been retained by a client for
such services.
3. Such registration form shall identify:
(a) the name, address, and telephone number of the political
consultant;
(b) the name, address, and telephone number of each sitting elected
public official, candidate for elected public office, and person
nominated for elected public office who the political consultant
provided political consulting services to;
(c) the name, address, and telephone number of each client who retains
or hires a political consultant in the preceding calendar year provided,
that in the event the client is an entity, at least one natural person
who has a controlling interest in such entity shall be identified; and
(d) a brief description of the nature of the political consulting
services provided to each identified client.
4. Such registration shall be filed with the department of state and
shall cover a six month reporting period. The reporting period shall
mean the six month period within a calendar year starting January first
and ending June thirtieth or the six month period within a calendar year
starting July first and ending December thirty-first.
5. The secretary of state shall post the completed forms on the
department of state's website within thirty days of the close of each
reporting period.
6. The department of state may impose a civil penalty of up to seven
hundred fifty dollars upon any political consultant who fails to file a
registration required by this section provided, however, that the
secretary shall provide such political consultant a reasonable
opportunity to cure such a failure.
7. The department of state shall adopt, amend and rescind rules and
regulations defining the degree and extent of political consulting
services necessary to require the reporting pursuant to this section.
Administration of certain monies. The secretary or their
designee shall administer monies collected pursuant to section 2-202 of
the village law and appropriations available for the operations of the
village incorporation commission established pursuant to section 2-260
of the village law to ensure that the commission can perform its
statutory functions; and provided further, that the secretary or their
designee shall distribute funds as required pursuant to section 2-236 of
the village law and any relevant appropriations bill.
Appointment of notaries public. 1. The secretary of state may
appoint and commission as many notaries public for the state of New York
as in his or her judgment may be deemed best, whose jurisdiction shall
be co-extensive with the boundaries of the state. The appointment of a
notary public shall be for a term of four years. An application for an
appointment as notary public shall be in form and set forth such matters
as the secretary of state shall prescribe. Every person appointed as
notary public must, at the time of his or her appointment, be a resident
of the state of New York or have an office or place of business in New
York state. A notary public who is a resident of the state and who moves
out of the state but still maintains a place of business or an office in
New York state does not vacate his or her office as a notary public. A
notary public who is a nonresident and who ceases to have an office or
place of business in this state, vacates his or her office as a notary
public. A notary public who is a resident of New York state and moves
out of the state and who does not retain an office or place of business
in this state shall vacate his or her office as a notary public. A
non-resident who accepts the office of notary public in this state
thereby appoints the secretary of state as the person upon whom process
can be served on his or her behalf. Before issuing to any applicant a
commission as notary public, unless he or she be an attorney and
counsellor at law duly admitted to practice in this state or a court
clerk of the unified court system who has been appointed to such
position after taking a civil service promotional examination in the
court clerk series of titles, the secretary of state shall satisfy
himself or herself that the applicant is of good moral character, has
the equivalent of a common school education and is familiar with the
duties and responsibilities of a notary public; provided, however, that
where a notary public applies, before the expiration of his or her term,
for reappointment with the county clerk or where a person whose term as
notary public shall have expired applies within six months thereafter
for reappointment as a notary public with the county clerk, such
qualifying requirements may be waived by the secretary of state, and
further, where an application for reappointment is filed with the county
clerk after the expiration of the aforementioned renewal period by a
person who failed or was unable to re-apply by reason of his or her
induction or enlistment in the armed forces of the United States, such
qualifying requirements may also be waived by the secretary of state,
provided such application for reappointment is made within a period of
one year after the military discharge of the applicant under conditions
other than dishonorable, or if the applicant has a qualifying condition,
as defined in section one of the veterans' services law, within a period
of one year after the applicant has received a discharge other than bad
conduct or dishonorable from such service, or if the applicant is a
discharged LGBT veteran, as defined in section one of the veterans'
services law, within a period of one year after the applicant has
received a discharge other than bad conduct or dishonorable from such
service. In any case, the appointment or reappointment of any applicant
is in the discretion of the secretary of state. The secretary of state
may suspend or remove from office, for misconduct, any notary public
appointed by him or her but no such removal shall be made unless the
person who is sought to be removed shall have been served with a copy of
the charges against him or her and have an opportunity of being heard.
No person shall be appointed as a notary public under this article who
has been convicted, in this state or any other state or territory, of a
crime, unless the secretary makes a finding in conformance with all
applicable statutory requirements, including those contained in article
twenty-three-A of the correction law, that such convictions do not
constitute a bar to appointment.
2. A person regularly admitted to practice as an attorney and
counsellor in the courts of record of this state, whose office for the
practice of law is within the state, may be appointed a notary public
and retain his office as such notary public although he resides in or
removes to an adjoining state. For the purpose of this and the following
sections of this article such person shall be deemed a resident of the
county where he maintains such office.
Procedure of appointment; fees and commissions; fee payment
methods. 1. New appointment. (a) Applicants for a notary public
commission shall submit to the secretary of state with their
application, the oath of office, duly executed before any person
authorized to administer an oath, together with their signature.
(b) Upon being satisfied of the competency and good character of
applicants for appointment as notaries public, the secretary of state
shall issue a commission to such persons; and the official signature of
the applicants and the oath of office filed with such applications shall
take effect.
(c) The secretary of state shall receive a non-refundable application
fee of sixty dollars from applicants for appointment, which fee shall be
submitted together with the application. No further fee shall be paid
for the issuance of the commission.
(d) A notary public identification card indicating the appointee's
name, address, county and commission term shall be transmitted to the
appointee.
(e) The commission, duly dated, and a certified copy or the original
of the oath of office and the official signature, and twenty dollars
apportioned from the application fee shall be transmitted by the
secretary of state to the county clerk of the county in which the
appointee resides by the tenth day of the following month. Transmission
may be accomplished by electronic means that results in a submission of
such records and fees by the secretary of state to the county clerk. For
purposes of this section, "electronic" shall have the same meaning as
set forth in section three hundred two of the state technology law.
(f) The county clerk shall make a proper index of commissions and
official signatures transmitted to that office by the secretary of state
pursuant to the provisions of this section.
2. Reappointment. (a) Applicants for reappointment of a notary public
commission shall submit to the secretary of state with their application
the oath of office, duly executed before any person authorized to
administer an oath, together with their signature.
(b) Upon being satisfied of the completeness of the application for
reappointment, the secretary of state shall issue a commission to such
persons; and the official signature of the applicants and the oath of
office filed with such applications shall take effect.
(c) The secretary of state shall receive a non-refundable application
fee of sixty dollars from each applicant for reappointment, which fee
shall be submitted together with the application. No further fee shall
be paid for the issuance of the commission.
(d) The commission, duly dated, and a certified or original copy of
the oath of office and the official signature, and twenty dollars
apportioned from the application fee plus interest as may be required by
statute shall be transmitted by the secretary of state to the county
clerk of the county in which the appointee resides by the tenth day of
the following month. Transmission may be accomplished by electronic
means that results in a submission of such records and fees by the
secretary of state to the county clerk.
(e) The county clerk shall make a proper record of commissions
transmitted to that office by the secretary of state pursuant to the
provisions of this section.
3. Electronic notarization. (a) After registration of the capability
to perform electronic notarial acts pursuant to section one hundred
thirty-five-c of this article, the secretary of state shall transmit to
the county clerk the exemplar of the notary public's electronic
signature and any change in commission number or expiration date of the
notary public's commission. Transmission may be accomplished by
electronic means.
(b) Registration of the capability to perform electronic notarizations
shall be treated as a new appointment by the secretary of state.
4. Fees. (a) Except for changes made in an application for
reappointment, the secretary of state shall receive a non-refundable fee
of ten dollars for changing the name or address of a notary public.
(b) The secretary of state may issue a duplicate identification card
to a notary public for one lost, destroyed or damaged upon application
therefor on a form prescribed by the secretary of state and upon payment
of a non-refundable fee of ten dollars. Each such duplicate
identification card shall have the word "duplicate" stamped across the
face thereof, and shall bear the same number as the one it replaces.
(c) The secretary of state shall accept payment for any fee relating
to appointment or reappointment as a notary in the form of cash, money
order, certified check, company check, bank check or personal check. The
secretary of state may provide for accepting payment of any such fee due
by credit or debit card, which may include payment through the internet.
Certificates of official character of notaries public. The
secretary of state or the county clerk of the county in which the
commission of a notary public is filed may certify to the official
character of such notary public and any notary public may file their
autograph signature and a certificate of official character in the
office of any county clerk of any county in the state and in any
register's office in any county having a register and thereafter such
county clerk may certify as to the official character of such notary
public. The secretary of state shall collect for each certificate of
official character issued the sum of one dollar. The county clerk and
register of any county with whom a certificate of official character has
been filed shall collect for filing the same the sum of ten dollars. For
each certificate of official character issued, with seal attached, by
any county clerk, the sum of five dollars shall be collected.
Certification of notarial signatures. The county clerk of a
county in whose office any notary public has qualified or has filed
their autograph signature and a certificate of official character,
shall, when so requested and upon payment of a fee of three dollars,
affix to any certificate of proof or acknowledgment or oath signed by
such notary anywhere in the state of New York, a certificate under their
hand and seal, stating that a commission or a certificate of official
character of such notary with their autograph signature has been filed
in the county clerk's office, and that the county clerk was at the time
of taking such proof or acknowledgment or oath duly authorized to take
the same; that the county clerk is well acquainted with the handwriting
of such notary public or has compared the signature on the certificate
of proof or acknowledgment or oath with the autograph signature
deposited in their office by such notary public and believes that the
signature is genuine. An instrument with such certificate of
authentication of the county clerk affixed thereto shall be entitled to
be read in evidence or to be recorded in any of the counties of this
state in respect to which a certificate of a county clerk may be
necessary for either purpose. In addition to the foregoing powers, a
county clerk of a county in whose office a notary public has qualified
may certify the signature of an electronic notary public, registered
with the secretary of state pursuant to section one hundred
thirty-five-c of this article, provided such county clerk has received
from the secretary of state, an exemplar of the notary public's
registered electronic signature.
Signature and seal of county clerk. The signature and seal of a
county clerk, upon a certificate of official character of a notary
public or the signature of a county clerk upon a certificate of
authentication of the signature and acts of a notary public or
commissioner of deeds, may be a facsimile, printed, stamped,
photographed or engraved thereon.
Powers and duties; in general; of notaries public who are
attorneys at law. Every notary public duly qualified is hereby
authorized and empowered within and throughout the state to administer
oaths and affirmations, to take affidavits and depositions, to receive
and certify acknowledgments or proof of deeds, mortgages and powers of
attorney and other instruments in writing; to demand acceptance or
payment of foreign and inland bills of exchange, promissory notes and
obligations in writing, and to protest the same for non-acceptance or
non-payment, as the case may require, and, for use in another
jurisdiction, to exercise such other powers and duties as by the laws of
nations and according to commercial usage, or by the laws of any other
government or country may be exercised and performed by notaries public,
provided that when exercising such powers he shall set forth the name of
such other jurisdiction.
A notary public who is an attorney at law regularly admitted to
practice in this state may, in his discretion, administer an oath or
affirmation to or take the affidavit or acknowledgment of his client in
respect of any matter, claim, action or proceeding.
For any misconduct by a notary public in the performance of any of his
powers such notary public shall be liable to the parties injured for all
damages sustained by them. A notary public shall not, directly or
indirectly, demand or receive for the protest for the non-payment of any
note, or for the non-acceptance or non-payment of any bill of exchange,
check or draft and giving the requisite notices and certificates of such
protest, including his notarial seal, if affixed thereto, any greater
fee or reward than seventy-five cents for such protest, and ten cents
for each notice, not exceeding five, on any bill or note. Every notary
public having a seal shall, except as otherwise provided, and when
requested, affix his seal to such protest free of expense.
Notary public or commissioner of deeds; acting without
appointment; fraud in office. 1. Any person who holds himself out to the
public as being entitled to act as a notary public or commissioner of
deeds, or who assumes, uses or advertises the title of notary public or
commissioner of deeds, or equivalent terms in any language, in such a
manner as to convey the impression that he is a notary public or
commissioner of deeds without having first been appointed as notary
public or commissioner of deeds, or
2. A notary public or commissioner of deeds, who in the exercise of
the powers, or in the performance of the duties of such office shall
practice any fraud or deceit, the punishment for which is not otherwise
provided for by this act, shall be guilty of a misdemeanor.
Advertising by notaries public. 1. The provisions of this
section shall not apply to attorneys-at-law, admitted to practice in the
state of New York.
2. A notary public who advertises his or her services as a notary
public in a language other than English shall post with such
advertisement a notice in such other language the following statement:
"I am not an attorney licensed to practice law and may not give legal
advice about immigration or any other legal matter or accept fees for
legal advice."
3. A notary public shall not use terms in a foreign language in any
advertisement for his or her services as a notary public that mean or
imply that the notary public is an attorney licensed to practice in the
state of New York or in any jurisdiction of the United States. The
secretary shall designate by rule or regulation the terms in a foreign
language that shall be deemed to mean or imply that a notary public is
licensed to practice law in the state of New York and the use of which
shall be prohibited by notary publics who are subject to this section.
4. For purposes of this section, "advertisement" shall mean and
include material designed to give notice of or to promote or describe
the services offered by a notary public for profit and shall include
business cards, brochures, and notices, whether in print or electronic
form.
5. Any person who violates any provision of this section or any rule
or regulation promulgated by the secretary may be liable for civil
penalty of up to one thousand dollars. The secretary of state may
suspend a notary public upon a second violation of any of the provisions
of this section and may remove from office a notary public upon a third
violation of any of the provisions of this section, provided that the
notary public shall have been served with a copy of the charges against
him or her and been given an opportunity to be heard. The civil penalty
provided for by this subdivision shall be recoverable in an action
instituted by the attorney general on his or her own initiative or at
the request of the secretary.
6. The secretary may promulgate rules and regulations governing the
provisions of this section, including the size and type of statements
that a notary public is required by this section to post.
Electronic notarization. 1. Definitions. (a) "Communication
technology" means an electronic device or process that: (i) allows a
notary public and a remotely located individual to communicate with each
other simultaneously by sight and sound; and (ii) when necessary and
consistent with other applicable law, facilitates communication with a
remotely located individual who has a vision, hearing, or speech
impairment.
(b) "Electronic" shall have the same meaning as set forth in
subdivision one of section three hundred two of the state technology
law.
(c) "Electronic record" means information that is created, generated,
sent, communicated, received or stored by electronic means.
(d) "Electronic notarial act" means an official act by a notary
public, physically present in the state of New York, on or involving an
electronic record and using means authorized by the secretary of state.
(e) "Electronic notary public" or "electronic notary" means a notary
public who has registered with the secretary of state the capability of
performing electronic notarial acts.
(f) "Electronic signature" shall have the same meaning as set forth in
subdivision three of section three hundred two of the state technology
law.
(g) "Principal" means an individual:
(i) whose signature is reflected on a record that is notarized;
(ii) who has taken an oath or affirmation administered by a notary
public; or
(iii) whose signature is reflected on a record that is notarized after
the individual has taken an oath or affirmation administered by a notary
public.
(h) "Record" means information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is retrievable in
perceivable form.
2. Any notary public qualified under this article is hereby authorized
to perform an electronic notarial act by utilizing audio-video
communication technology that allows the notary public to interact with
a principal, provided that all conditions of this section are met.
(a) The methods for identifying document signers for an electronic
notarization shall be the same as the methods required for a paper-based
notarization; provided, however, an electronic notarial act conducted
utilizing communication technology shall meet the standards which have
been approved through regulation by the secretary of state as
acceptable. Such regulations shall include, but not be limited to:
(i) that the signal transmission shall be secure from interception
through lawful means by anyone other than the persons communicating;
(ii) that the communication technology shall permit the notary public
to communicate with the principal live, in real time;
(iii) that the communication technology shall permit the notary to
communicate with and identify the remotely located individual at the
time of the notarial act; and
(iv) a standard that requires two or more different processes for
authenticating the identity of a remotely located individual utilizing
technology to detect and deter fraud, but which may allow a notary
public's personal knowledge of a document signer to satisfy such
requirement.
(b) If video and audio conference technology has been used to
ascertain a document signer's identity, the electronic notary shall keep
a copy of the recording of the video and audio conference and a notation
of the type of any other identification used. The recording shall be
maintained for a period of at least ten years from the date of
transaction.
3. Registration requirements. (a) Before performing any electronic
notarial act or acts, a notary public shall register the capability to
notarize electronically with the secretary of state on a form prescribed
by the secretary of state and upon payment of a fee which shall be set
by regulation.
(b) In registering the capability to perform electronic notarial acts,
the notary public shall provide the following information to the
secretary of state, notary processing unit:
(i) the applicant's name as currently commissioned and complete
mailing address;
(ii) the expiration date of the notary public's commission and
signature of the commissioned notary public;
(iii) the applicant's e-mail address;
(iv) the description of the electronic technology or technologies to
be used in attaching the notary public's electronic signature to the
electronic record; and
(v) an exemplar of the notary public's electronic signature, which
shall contain the notary public's name and any necessary instructions or
techniques that allow the notary public's electronic signature to be
read.
4. Types of electronic notarial acts. (a) Any notarial act authorized
by section one hundred thirty-five of this article may be performed
electronically as prescribed by this section if: (i) for execution of
any instrument in writing, under applicable law that document may be
signed with an electronic signature and the notary public is reasonably
able to confirm that such instrument is the same instrument in which the
principal made a statement or on which the principal executed a
signature; and (ii) the electronic notary public is located within the
state of New York at the time of the performance of an electronic
notarial act using communication technology, regardless of the location
of the document signer. If the principal is outside the United States,
the record or subject of the notarial act:
(1) is to be filed with or relates to a matter before a public
official or court, governmental entity, or other entity subject to the
jurisdiction of the United States; or
(2) shall involve property located in the territorial jurisdiction of
the United States or shall involve a transaction substantially connected
with the United States.
(b) An electronic notarial act performed using communication
technology pursuant to this section satisfies any requirement of law of
this state that a document signer personally appear before, be in the
presence of, or be in a single time and place with a notary public at
the time of the performance of the notarial act.
5. Form and manner of performing the electronic notarial act. (a) When
performing an electronic notarial act relating to execution of
instruments in writing, a notary public shall apply an electronic
signature, which shall be attached to the electronic record such that
removal or alteration of such electronic signature is detectable and
will render evidence of alteration of the document containing the notary
signature which may invalidate the electronic notarial act.
(b) The notary public's electronic signature is deemed to be reliable
if the standards which have been approved through regulation by the
secretary of state have been met. Such regulations shall include, but
not be limited to, the requirements that such electronic signature be:
(i) unique to the notary public;
(ii) capable of independent verification;
(iii) retained under the notary public's sole control;
(iv) attached to the electronic record; and
(v) linked to the data in such a manner that any subsequent
alterations to the underlying document are detectable and may invalidate
the electronic notarial act.
(c) The notary public's electronic signature shall be used only for
the purpose of performing electronic notarial acts.
(d) The remote online notarial certificate for an electronic notarial
act shall state that the person making the acknowledgement or making the
oath appeared through use of communication technology.
(e) The secretary shall adopt rules necessary to establish standards,
procedures, practices, forms, and records relating to a notary public's
electronic signature. The notary public's electronic signature shall
conform to any standards adopted by the secretary.
6. Recording of an electronic record. (a) If otherwise required by law
as a condition for recording that a document be an original document,
printed on paper or another tangible medium, or be in writing, the
requirement is satisfied by paper copy of an electronic record that
complies with the requirements of this section.
(b) If otherwise required by law as a condition for recording, that a
document be signed, the requirement may be satisfied by an electronic
signature.
(c) A requirement that a document or a signature associated with a
document be notarized, acknowledged, verified, witnessed, or made under
oath is satisfied if the electronic signature of the person authorized
to perform that act, and all other information required to be included,
is attached to or logically associated with the document or signature. A
physical or electronic image of a stamp, impression, or seal need not
accompany an electronic signature if the notary has attached an
electronic notarial certificate that meets the requirements of this
section.
(d) (i) A notary public may certify that a tangible copy of the
signature page and document type of an electronic record notarized by
such notary public is an accurate copy of such electronic record. Such
certification must (1) be dated and signed by the notary public in the
same manner as the official signature of the notary public provided to
the secretary of state pursuant to section one hundred thirty-one of
this article, and (2) comply with section one hundred thirty-seven of
this article.
(ii) A county clerk, city registrar, or other recording officer where
applicable shall accept for recording a tangible copy of an electronic
record and that is otherwise eligible to be recorded under the laws of
this state if the record has been certified by a notary public or other
individual authorized to perform a notarial act.
(iii) A certification in substantially the following form is
sufficient for the purposes of this subdivision:
CERTIFICATE OF AUTHENTICITY
State of New York )
) ss.:
County of ...............)
On this ...... day of ...... in the year ....., I certify that the
signature page of the attached record (entitled ......) (dated ......)
is a true and correct copy of the signatures affixed to an electronic
record printed by me or under my supervision. I further certify that, at
the time of printing, no security features present on the electronic
record indicated any changes or errors in an electronic signature in the
electronic record after its creation or execution.
(Signature and title of notary public)
(official stamp or registration number, with the expiration
date of the notary public's commission)
7. Change of e-mail address. Within five days after the change of an
electronic notary public's e-mail address, the notary public shall
electronically transmit to the secretary of state a notice of the
change, signed with the notary public's official electronic signature.
8. No notary public or business employing the services of a notary
public operating in the state of New York shall exclusively require
notarial transactions to utilize electronic notarization.
9. Nothing in this section shall be construed as requiring any notary
public to perform a notarial act using electronic communication
technology. A notary public may refuse to perform such a notarial act if
the notary public is not satisfied that (a) the principal is competent
or has the capacity to execute a record, or (b) the principal's
signature is knowingly and voluntarily made.
10. Notwithstanding article nine of the real property law or any other
law to the contrary, any act performed in conformity with this section
shall satisfy any requirements at law that a principal personally appear
before, be in the presence of, or be in a single time and place with a
notary public at the time of the performance of the notarial act, unless
a law expressly excludes the authorization provided for in this section.
Notarial fees. A notary public shall be entitled to the
following fees:
1. For administering an oath or affirmation, and certifying the same
when required, except where another fee is specifically prescribed by
statute, two dollars.
2. For taking and certifying the acknowledgment or proof of execution
of a written instrument, by one person, two dollars, and by each
additional person, two dollars, for swearing each witness thereto, two
dollars.
3. For electronic notarial services, established in section one
hundred thirty-five-c of this chapter, a fee set through regulation by
the secretary of state.
Statement as to authority of notaries public. In exercising
powers pursuant to this article, a notary public, in addition to the
venue of the act and signature of such notary public, shall print,
typewrite, stamp, or affix by electronic means where performing an
electronic notarial act in conformity with section one hundred
thirty-five-c of the executive law, beneath their signature in black
ink, the notary public's name, the words "Notary Public State of New
York," the name of the county in which such notary public originally
qualified, and the expiration date of such notary public's commission
and, in addition, wherever required, a notary public shall also include
the name of any county in which such notary public's certificate of
official character is filed, using the words "Certificate filed
........... County." A notary public who is duly licensed as an attorney
and counsellor at law in this state may substitute the words "Attorney
and Counsellor at Law" for the words "Notary Public." A notary public
who has qualified or who has filed a certificate of official character
in the office of the clerk in a county or counties within the city of
New York must also affix to each instrument such notary public's
official number or numbers in black ink, as assigned by the clerk or
clerks of such county or counties at the time such notary qualified in
such county or counties and, if the instrument is to be recorded in an
office of the register of the city of New York in any county within such
city and the notary has been given a number or numbers by such register
or his predecessors in any county or counties, when the notary public's
autographed signature and certificate are filed in such office or
offices pursuant to this chapter, the notary public shall also affix
such number or numbers. No official act of such notary public shall be
held invalid on account of the failure to comply with these provisions.
If any notary public shall willfully fail to comply with any of the
provisions of this section, the notary public shall be subject to
disciplinary action by the secretary of state. In all the courts within
this state the certificate of a notary public, over the signature of the
notary public, shall be received as presumptive evidence of the facts
contained in such certificate; provided, that any person interested as a
party to a suit may contradict, by other evidence, the certificate of a
notary public.
Powers of notaries public or other officers who are
stockholders, directors, officers or employees of a corporation. A
notary public, justice of the supreme court, a judge, clerk, deputy
clerk, or special deputy clerk of a court, an official examiner of
title, or the mayor or recorder of a city, a justice of the peace,
surrogate, special surrogate, special county judge, or commissioner of
deeds, who is a stockholder, director, officer or employee of a
corporation may take the acknowledgment or proof of any party to a
written instrument executed to or by such corporation, or administer an
oath to any other stockholder, director, officer, employee or agent of
such corporation, and such notary public may protest for non-acceptance
or non-payment, bills of exchange, drafts, checks, notes and other
negotiable instruments owned or held for collection by such corporation;
but none of the officers above named shall take the acknowledgment or
proof of a written instrument by or to a corporation of which he is a
stockholder, director, officer or employee, if such officer taking such
acknowledgment or proof be a party executing such instrument, either
individually or as representative of such corporation, nor shall a
notary public protest any negotiable instruments owned or held for
collection by such corporation, if such notary public be individually a
party to such instrument, or have a financial interest in the subject of
same. All such acknowledgments or proofs of deeds, mortgages or other
written instruments, relating to real property heretofore taken before
any of the officers aforesaid are confirmed. This act shall not affect
any action or legal proceeding now pending.
Commissioners of deeds within the state. 1. Commissioners of
deeds in the cities of this state shall be appointed by the common
councils of such cities respectively, and shall hold office for the term
of two years from the date of their appointment, and until others are
appointed in their places. A vacancy occurring during the term for which
any commissioner shall be appointed, shall be filled by the common
council. The common council of the several cities of this state, except
in cities of this state situate in a county which has a population of
not less than one hundred and eighty thousand, and not more than six
hundred and fifty thousand, according to the last state or federal
enumeration, shall at the end of every even numbered year, by resolution
of the board, determine the number of commissioners of deeds to be
appointed for such cities respectively.
2. The term of office of each commissioner of deeds appointed by the
common council in cities of this state situate in a county which has a
population of not less than one hundred and eighty thousand, and not
more than six hundred and fifty thousand, according to the last state or
federal enumeration, shall expire on the thirty-first of December of the
even numbered year next after he shall be appointed. The common council
of any such city shall in the month of November in every even numbered
year, by resolution, determine the number of commissioners of deeds to
be appointed in such cities, respectively, for the next succeeding two
years.
3. Any person who resides in or maintains an office or other place of
business in any such city and who resides in the county in which said
city is situated shall be eligible to appointment. Such commissioners of
deeds may be appointed by the common council by resolution, and the city
clerk shall immediately after such appointment, file a certificate
thereof with the county clerk of the county in which such city is
situate, specifying the term for which the said commissioners of deeds
shall have been appointed; the county clerk shall thereupon notify such
persons of their appointment, and such persons so appointed shall
qualify by filing with him his oath of office, duly executed before such
county clerk or before any person authorized to administer an oath,
together with his official signature, within thirty days from the date
of such notice.
4. The county clerk shall make a proper index of certificates of
appointment and official signatures filed with him. For filing and
indexing the certificate of appointment and official signature, the
county clerk shall be paid a fee of one dollar by the appointee, which
fee shall include the administration of the oath by the county clerk,
should he administer the same.
5. If a person appointed commissioner of deeds shall not file his oath
of office as such commissioner of deeds, in the office of the clerk of
the county of his residence, within thirty days after the notice of his
appointment as above provided, his appointment is deemed revoked and the
fee filed with his application forfeited.
6. A commissioner of deeds may file his autograph signature and
certificate of appointment in the office of any county clerk, and the
county clerk of the county in which such city is located, upon request
of any commissioner appointed under the provisions of this section and
upon payment of twenty-five cents for each certificate, must make and
deliver to such commissioner such number of certificates as may be
required. Such certificates shall be issued under the hand and seal of
the county clerk of the county in which such city is located, showing
the appointment and term of office of such commissioner and stating the
county in which he resides. Such a certificate may be filed in the
office of any county clerk upon the payment of one dollar for such
filing in each office. The clerks of the counties outside the city of
New York, shall each keep a book or card index file in which shall be
registered the signature of the commissioners so filing such
certificates.
7. The county clerk of the county in which said city is located shall,
upon demand and upon payment of the sum of fifty cents, authenticate a
certificate of acknowledgment or proof of oath taken before such
commissioner of deeds within such city, by subjoining or attaching to
the original certificate of acknowledgment or proof of oath a
certificate under his hand and official seal specifying that at the time
of taking the acknowledgment or proof of oath the officer taking it was
duly authorized to take the same; that the authenticating officer is
acquainted with the former's handwriting, or has compared the signature
on the certificate of acknowledgment or proof of oath with the autograph
signature deposited in his office by such officer, and that he verily
believes the signature is genuine.
8. Any instrument or paper sworn to, proved or acknowledged before a
commissioner of deeds within a city and authenticated as hereinbefore
provided by the clerk of a county within which such city is located
shall be recorded and read in evidence in any county in this state
without further proof; provided, however, that a county clerk's
certificate of authentication shall not be necessary to entitle any deed
or other instrument or paper so proved or acknowledged to be recorded in
any office where such commissioner has filed his autograph signature and
certificate of appointment or to be read in evidence in any county in
which such commissioner has filed with the county clerk his autograph
signature and certificate of appointment, as herein provided.
9. The foregoing provisions of this section shall not apply in the
city of New York.
Commissioners of deeds in the city of New York. 1. The council
of the city of New York is hereby authorized and is empowered to appoint
commissioners of deeds in such city from time to time, who shall hold
their offices for two years from the date of their appointment.
2. No person shall be appointed a commissioner of deeds except an
attorney-at-law unless such person shall have submitted with his
application proof of his ability to perform the duties of the office.
Applicants serving clerkships in the offices of attorneys, and whose
clerkship certificate is on file with the proper officials, shall submit
an affidavit to that effect. Other employees of attorneys shall submit
an affidavit sworn to by a member of the firm of such attorneys that the
applicant is a proper and competent person to perform the duties of a
commissioner of deeds. Every other applicant shall furnish a certificate
of the city clerk of such city stating that he has examined the
applicant and believes such applicant to be competent to perform the
duties of a commissioner of deeds; provided, however, that where a
commissioner of deeds applies, before the expiration of his term, for a
reappointment or where a person whose term as commissioner of deeds
shall have expired applies within six months after such expiration for
appointment as a commissioner of deeds, such examination shall not be
required. Upon any such application for such renewal the city clerk
shall furnish the applicant with a certificate stating that the
applicant has theretofore qualified for appointment and indicate the
date of the applicant's original appointment thereon. The fee for
issuing each such certificate shall be fifty cents.
3. Such appointment shall not require the approval of the mayor, and
hereafter, at the time of subscribing or filing the oath of office, the
city clerk shall collect from each person appointed a commissioner of
deeds the sum of twenty-five dollars, and he shall not administer or
file such oath unless such fee has been paid.
4. The city clerk shall designate a commissioner of deeds clerk, whose
duties shall be to enter the names of commissioners of deeds appointed
in a book kept for that purpose, make out certificates of appointment
and discharge such other duties as the city clerk may designate.
5. Any person hereafter appointed to the office of commissioner of
deeds in and for the city of New York by the council, before entering
upon the discharge of the duties of such office and within thirty days
after such appointment, shall take and subscribe before the commissioner
of deeds clerk in the office of the city clerk or before any person
authorized to administer oaths the following oath of office: that the
applicant is a citizen of the United States, and a resident of the state
of New York, the city of New York and the county of (naming the county);
that he will support the constitution of the United States and the
constitution of the state of New York and faithfully discharge the
duties of the office of commissioner of deeds. A person regularly
admitted to practice as an attorney and counsellor in the courts of
record of this state, whose office for the practice of law is within the
city of New York, may be appointed a commissioner of deeds in and for
the city of New York and may retain his office as such commissioner of
deeds although he resides in or removes to another city in this state or
to an adjoining state. For the purposes of this and the following
sections of this article such person shall be deemed a resident of the
county where he maintains such office.
5-a. A person regularly admitted to practice as an attorney and
counsellor in the courts of record of this state, whose office for the
practice of law is within the city of New York, may be appointed a
commissioner of deeds in and for the city of New York and may retain his
office as such commissioner of deeds although he resides in or removes
to any other county in this state or to an adjoining state. For the
purposes of this article such person shall be deemed a resident of the
county where he maintains such office.
6. Any commissioner of deeds who may remove from the city of New York
during his term of office vacates his office and is hereby required to
notify the city clerk of such removal, and immediately upon the receipt
of such notice of removal the city clerk shall cause the name of such
commissioner to be stricken from the roll of commissioners of deeds of
the city.
7. Any person appointed to the office of commissioner of deeds under
the provisions of this section, upon qualifying as above provided, may
administer oaths and take acknowledgments or proofs of deeds and other
instruments in any part of the city of New York.
8. A commissioner of deeds may file his autograph signature and
certificate of appointment in the office of any county clerk in the
city; and the city clerk, upon request of any commissioner appointed
under the provisions of this section and upon payment of twenty-five
cents for each certificate, must make and deliver to such commissioner
such number of certificates as such commissioner may require. Such
certificates shall be issued under the hand and official seal of the
city clerk, showing the appointment and term of office of such
commissioner and stating the county in which he resides, which
certificates may be filed in the office of the several county clerks in
the city upon payment of one dollar in each office for filing.
9. The clerks of the counties of New York, Kings, Queens, Richmond and
Bronx shall each keep a book or card index file in which shall be
registered the signature of the commissioners so filing such
certificates; and the county clerk of any county in the city with whom
such commissioner has filed a certificate of appointment shall, upon
demand and upon payment of the sum of fifty cents, authenticate a
certificate of acknowledgment or proof of oath taken before such
commissioner of deeds, without regard to the county in the city in which
such acknowlgment or proof was taken or oath administered, by subjoining
or attaching to the original certificate of acknowledgment or proof or
oath a certificate under his hand and official seal specifying that at
the time of taking the acknowledgment or proof or oath the officer
taking it was duly authorized to take the same; that the authenticating
officer is acquainted with the former's handwriting, or has compared the
signature on the certificate of acknowledgment, proof or oath with the
autograph signature deposited in his office by such officer, and that he
verily believes the signature is genuine.
10. Any instrument or paper sworn to, proved or acknowledged before a
commissioner of deeds within the city of New York and authenticated as
hereinbefore provided by the clerk of any county within the city with
whom such commissioner has filed his autograph signature and certificate
of appointment shall be recorded and read in evidence in any county in
this state without further proof; provided, however, that a county
clerk's certificate of authentication shall not be necessary to entitle
any deed or other instrument or paper so proved or acknowledged to be
recorded or read in evidence in any office of the county clerks within
the city of New York or the office of the register of the city of New
York.
11. A commissioner of deeds must affix, in black ink, to each
instrument sworn to, acknowledged or proved, in addition to his
signature, the date when his term expires and his official number as
given to him by the city clerk, and must print, typewrite or stamp his
name in black ink beneath his signature.
12. The mayor of the city of New York may remove any commissioner of
deeds appointed under the provisions of this section for cause shown;
but no such commissioner shall be removed until charges have been duly
made against him to the mayor and the commissioner shall have had an
opportunity to answer the same. At any proceedings held before the mayor
for the removal of such commissioner of deeds the mayor shall have power
to subpoena witnesses and to compel the attendance of the same, and to
administer oaths, and to compel the production of books and papers, and
upon the termination of such proceedings shall make his decision thereon
in writing, and cause the same to be filed in the office of the city
clerk of the city of New York, provided, however, that the mayor may,
whenever a hearing is granted by him on complaint against a commissioner
of deeds, designate an assistant corporation counsel to preside who
shall have power to subpoena witnesses and to compel the attendance of
the same, administer oaths, compel the production of books and papers
and receive exhibits; such assistant shall, upon the termination of such
proceedings, certify a copy of the stenographer's minutes of such
hearing and such exhibits as may be received in evidence, together with
his recommendations on the issues presented, whereupon the mayor shall
render a decision on all matters presented on such hearing.
13. In case such commissioner shall be removed from office the city
clerk, immediately upon the receipt by him of the order of removal
signed by the mayor, shall cause the name of such commissioner so
removed to be stricken from the roll of commissioners of deeds of the
city.
14. No person who has been removed from office as a commissioner of
deeds for the city of New York, as hereinbefore provided, shall
thereafter be eligible again to be appointed as such commissioner nor,
shall he be eligible thereafter to appointment to the office of notary
public.
15. Any person who has been removed from office as aforesaid, who
shall, after knowledge of such removal, sign or execute any instrument
as a commissioner of deeds or notary public shall be deemed guilty of a
misdemeanor.
16. In case of the removal for cause, or removal from the city or
resignation of a commissioner of deeds, the city clerk shall immediately
notify each county clerk and the register of the city of New York of
such removal or resignation.
Commissioners of deeds in other states, territories and foreign
countries. The secretary of state may, in his discretion, appoint and
commission in any other state, territory or dependency, or in any
foreign country, such number of commissioners of deeds as he may think
proper, each of whom shall be a resident of or have his place of
business in the city, county, municipality or other political
subdivision from which chosen, and shall hold office for the term of
four years, unless such appointment shall be sooner revoked by the
secretary of state, who shall have power to revoke the same. A person
applying for appointment as a commissioner of deeds shall state in his
application the city, county, municipality or other political
subdivision for which he desires to be appointed, and shall enclose with
his application the sum of twenty-five dollars, which sum, if a
commission shall be granted, shall be paid by the secretary of state
into the state treasury, and if such commission shall not be granted,
then the same shall be returned to the person making the application.
Each commissioner, before performing any of the duties or exercising any
of the powers of his office, shall take the constitutional oath of
office, if appointed for a city or county within the United States,
before a justice of the peace or some other magistrate in such city or
county; and if for a territory or dependency, before a judge of a court
of record in such territory or dependency; and if for a city,
municipality or other political subdivision in a foreign country, before
a person authorized by the laws of this state to administer an oath in
such country, or before a clerk or judge of a court of record in such
foreign country; and shall cause to be prepared an official seal on
which shall be designated his name, the words, "commissioner of deeds
for the state of New York," and the name of the city or county, and the
state, country, municipality or other political subdivision from which
appointed, and shall file a clear impression of such seal, his written
signature and his oath certified by the officer before whom it was
taken, in the office of the department of state. The secretary of state
upon receipt of such impression, signature and oath, shall forward to
such commissioner instructions and forms, and a copy of the appropriate
sections of this chapter.
Powers of such commissioners. Every such commissioner shall
have authority, within the city, county, municipality or other political
subdivision for which he is appointed, and in the manner in which such
acts are performed by authorized officers within the state:
1. To take the acknowledgment or proof of the execution of a written
instrument, except a bill of exchange, promissory note or will, to be
read in evidence or recorded in this state.
2. To administer oaths.
3. If such commissioner is also an attorney at law regularly admitted
to practice in this state, in his discretion, to the extent authorized
by this section, to administer an oath to or take the acknowledgment of
or proof of the execution of an instrument by his client with respect to
any matter, claim, action or proceeding.
4. If appointed for a foreign country, to certify to the existence of
a patent, record or other document recorded in a public office or under
official custody in such foreign country, and to the correctness of a
copy of such patent, record or document, or to the correctness of a copy
of a certified copy of such patent, record or other document, which has
been certified according to the form in use in such foreign country.
5. A written instrument acknowledged or proved, an oath administered,
or a copy or a copy of a certified copy of a patent, record or other
document certified, as heretofore provided in this section, may be read
in evidence or recorded within this state, the same as if taken,
administered or certified within the state before an officer authorized
to take the acknowledgment or proof of a written instrument, to
administer oaths, or to certify to the correctness of a public record,
if there shall be annexed or subjoined thereto, or indorsed thereon a
certificate of the commissioner before whom such acknowledgment or proof
was taken, by whom the oath was administered, or by whom the correctness
of such copy is certified, under his hand and official seal. Such
certificate shall specify the day on which, and the city or other
political subdivision, and the state or country or other place in which,
the acknowledgment or proof was taken, or the oath administered, without
which specification the certificate shall be void. Except as provided in
subdivision five of this section, such certificate shall be
authenticated by the certificate of the secretary of state annexed or
subjoined to the certificate of such commissioner, that such
commissioner was, at the time of taking such acknowledgment or proof, of
administering such oath, or of certifying to such patent record or
document, or copy thereof, duly authorized therefor, that he is
acquainted with the handwriting of such commissioner, or has compared
the signature upon the certificate with the signature of such
commissioner deposited in his office, that he has compared the
impression of the seal affixed to such certificate with the impression
of the seal of such commissioner deposited in his office, and that he
believes the signature and the impression of the seal upon such
certificate to be genuine. The certificate of a commissioner as to the
correctness of a copy of a certified copy of a patent, record or other
document, as provided by this section, shall be presumptive evidence
that it was certified according to the form in use in such foreign
country.
6. A commissioner of deeds appointed pursuant to the preceding section
may during his term of office procure from the secretary of state, on
payment to him of a fee of two dollars, a certificate of his
appointment, prescribed by the secretary of state, stating among other
things, the date of his appointment, the date of expiration thereof and
the city, county, municipality or other political subdivision for which
he is appointed, and containing the signature of the commissioner in his
own handwriting and his official seal, and certifying that he has
compared the signature on such certificate with the signature of such
commissioner deposited in his office, that he has compared the
impression of the seal affixed to such certificate with the impression
of the seal of such commissioner deposited in his office and that he
believes the signature and the impression of the seal upon such
certificate to be genuine. Such a certificate may be filed by such
commissioner in the office of any county clerk or register in the state
upon the payment to such county clerk or register of a fee of two
dollars. Upon the filing of such certificate in the office of a county
clerk or register in this state, a written instrument acknowledged or
proved, an oath administered, or a copy or copy of a certified copy of a
patent, record or other document certified, by a commissioner pursuant
to this section, shall be entitled to be read in evidence and shall be
accepted for filing or recording and filed or recorded, as the case may
be, in the office of such county clerk or register, on tender or payment
of the lawful fees therefor, without having annexed or subjoined to the
certificate of such commissioner contained thereon the authenticating
certificate of the secretary of state as required by subdivision five of
this section or by subdivision one of section three hundred eleven of
the real property law or by any other provision of law.
Validity of acts of notaries public and commissioners of
deeds notwithstanding certain defects. 1. Except as provided in
subdivision three of this section, the official certificates and other
acts heretofore or hereafter made or performed of notaries public and
commissioners of deeds heretofore or hereafter and prior to the time of
their acts appointed or commissioned as such shall not be deemed
invalid, impaired or in any manner defective, so far as they may be
affected, impaired or questioned by reason of defects described in
subdivision two of this section.
2. This section shall apply to the following defects:
(a) ineligibility of the notary public or commissioner of deeds to be
appointed or commissioned as such;
(b) misnomer or misspelling of name or other error made in his
appointment or commission;
(c) omission of the notary public or commissioner of deeds to take or
file his official oath or otherwise qualify;
(d) expiration of his term, commission or appointment;
(e) vacating of his office by change of his residence, by acceptance
of another public office, or by other action on his part;
(f) the fact that the action was taken outside the jurisdiction where
the notary public or commissioner of deeds was authorized to act.
3. No person shall be entitled to assert the effect of this section to
overcome a defect described in subdivision two if he knew of the defect
or if the defect was apparent on the face of the certificate of the
notary public or commissioner of deeds; provided however, that this
subdivision shall not apply after the expiration of six months from the
date of the act of the notary public or commissioner of deeds.
4. After the expiration of six months from the date of the official
certificate or other act of the commissioner of deeds, subdivision one
of this section shall be applicable to a defect consisting in omission
of the certificate of a commissioner of deeds to state the date on which
and the place in which an act was done, or consisting of an error in
such statement.
5. This section does not relieve any notary public or commissioner of
deeds from criminal liability imposed by reason of his act, or enlarge
the actual authority of any such officer, nor limit any other statute or
rule of law by reason of which the act of a notary public or
commissioner of deeds, or the record thereof, is valid or is deemed
valid in any case.
Fees of such commissioners. The fees of such commissioners
shall be as follows:
1. If appointed for another state, territory or dependency, not to
exceed four times the amount allowed by the laws of such state,
territory or dependency for like services, and not to exceed in any case
one dollar for taking the proof or acknowledgment of a written
instrument, or administering an oath;
2. If appointed for Great Britain or Ireland, for administering or
certifying an oath, one shilling sterling, and for taking the proof or
acknowledgment of a written instrument, or for certifying to the
existence or correctness of a copy of a patent, record or document, four
shillings sterling;
3. If appointed for France or any other foreign country, for
administering and certifying an oath, one franc and twenty-five
centimes, and for taking the proof or acknowledgment of a written
instrument, or for certifying to the existence or correctness of a copy
of a patent, record or document, five francs.
Saving clause. In case it be judicially determined that any
phrase, clause, part, paragraph or section of any of the provisions of
sections one hundred thirty, one hundred thirty-one, one hundred
thirty-two, one hundred thirty-three, one hundred thirty-five, one
hundred thirty-six, one hundred thirty-seven and one hundred
thirty-eight is unconstitutional or otherwise invalid, such
determination shall not affect the validity or effect of the remaining
provisions of the aforementioned sections. All persons heretofore
appointed and still holding office as notaries public shall continue in
such office after the effective date of this article, with the same
powers and duties as herein provided until the expiration of the term
for which they were appointed.
Eligible professions for the purchase, sale, and use of body
armor. The secretary of state in consultation with the division of
criminal justice services, the division of homeland security and
emergency services, the department of corrections and community
supervision, the division of the state police, and the office of general
services shall promulgate rules and regulations to establish criteria
for eligible professions requiring the use of body armor, as such term
is defined in subdivision two of section 270.20 of the penal law. Such
professions shall include those in which the duties may expose the
individual to serious physical injury that may be prevented or mitigated
by the wearing of body armor. Such rules and regulations shall also
include a process by which an individual or entity may request that the
profession in which they engage be added to the list of eligible
professions, a process by which the department shall approve such
professions, and a process by which individuals and entities may present
proof of engagement in eligible professions when purchasing body armor.
ARTICLE 6-A State Register
Definitions. As used in this article, unless another meaning is
clearly apparent in the language or context:
1. The term "agency" shall mean any department, board, bureau,
commission, division, office, council, committee or officer of the
state, a public benefit corporation or public authority at least one of
whose members is appointed by the governor.
2. The term "public corporation" shall mean and include a municipal
corporation, a district corporation, or public benefit corporation
except a public benefit corporation at least one of whose members is
appointed by the governor.
3. The term "person" shall mean any individual, partnership,
corporation, association, or public or private organization of any
character, other than an agency or public corporation.
Publication of certain public notices. 1. The department of
state shall publish, pursuant to the schedule in section one hundred
forty-seven of this article, and post on its internet website a
publication to be known as the state register, in which shall be
published and posted from time to time as received by such department:
(a) rules, orders, designations, and notices submitted by the chief
administrator of the courts;
(b) notices and advertisements required by state statute or federal
law, rule or regulation to be published by an agency in a newspaper;
(c) notices required by statute to be published in newspapers in
actions against foreign corporations;
(d) notices and job impact statements required by the state
administrative procedure act to be published in the state register; and
(e) any other matter required by statute to be published in the state
register.
2. The secretary of state may, at his or her discretion, publish and
post in the state register any notice or information which is not
otherwise required by statute to be submitted to him or her by an agency
or public corporation for publication in the state register, in
instances where such publication and posting will serve the public
interest.
3. With regard to rule making notices required to be published and
posted in the state register pursuant to article two of the state
administrative procedure act, the secretary of state may, at his or her
discretion, publish and post the complete text of a proposed or adopted
rule, which is not otherwise required to be published and posted in the
state register, in instances where such publication and posting will
serve the public interest. The secretary of state shall accept from a
state agency all rulemaking notices, statements and analyses as required
by the state administrative procedure act, data, rules, and regulations
as provided for by article three of the state technology law.
4. With regard to a notice of adoption published in the state register
pursuant to article two of the state administrative procedure act, for
which the corresponding notice of proposed rule making published and
posted in the state register included the complete text of the rule, the
secretary of state may, at his or her discretion, include only the
changes in such text in the notice of adoption.
4-a. Notice of the availability of any state or federal funding which
is to be distributed by any agency upon application by any municipality,
school board, school district, not-for-profit organization or any other
individual or organization entitled to apply for such funding pursuant
to any law, rule or regulation governing the distribution of such funds
shall be published and posted in the state register. Such notice shall
appear in the register no later than forty-five days prior to the last
day for receipt of applications for such funding. Such notice shall not
be required: (i) whenever a notice has been published in the procurement
opportunities newsletter pursuant to article four-C of the economic
development law; (ii) for state or federal transportation funding; and
(iii) in those instances where an entity has been specifically
designated by law or legislative resolution to receive funding. Failure
to publish the notice in a timely manner shall not be a basis for
setting aside an award or challenging a contract or other legal claim.
5. The publication and posting of notices and advertisements in the
state register shall be additional to their publication in newspapers,
whenever publication in newspapers is required by statute.
6. The secretary of state shall promulgate rules establishing
procedure, forms, font and style for submission of material by any
person, agency or public corporation for publication and posting in the
state register.
Schedule of publication. 1. The department of state shall
publish a regular issue of the state register at least once a week and
special issues as directed by statute or as deemed appropriate by the
secretary of state.
2. The department of state may publish special issues which shall
include information and notices required to be published pursuant to
section fourteen hundred two of the abandoned property law, at times
specified by such section.
3. The department of state shall publish, quarterly, a special issue
which shall:
(a) contain an index of all notices published in the state register
pursuant to article two of the state administrative procedure act
between January first of the year of publication and the state register
issue immediately preceding publication of this special issue;
(b) cite each notice in the index by the identification number
described in subdivision three of section one hundred forty-nine of this
article and for each such notice cited, the index shall include a
description of the subject and purpose of the rule, the date of
publication of the notice, and a symbol denoting whether the notice was
for (i) a proposed rule making, (ii) an adoption, (iii) an emergency
adoption, (iv) an expiration, (v) a revised rule making or (vi) a
withdrawal; and
(c) arrange notice citations by agency in alphabetical order and
present consecutively all such citations relating to a single rule
making.
Distribution and fees. 1. a. The department of state shall mail
or otherwise deliver a copy of each issue of the state register to the
office of the clerk of every county, to every library designated by the
commissioner of education, and upon written request, to the office of
the clerk of any city, town or village. Such copies shall be made
available for public inspection by such offices and libraries for not
less than one year.
b. On or before September first, nineteen hundred eighty-three, and
annually thereafter, the commissioner of education shall designate a
sufficient number of libraries, not to exceed three hundred, to provide
a uniform, statewide distribution of copies of each issue of the state
register, and shall provide the department of state with a list of such
designated libraries.
2. The department of state shall mail or otherwise deliver a copy of
each regular issue and the quarterly index required by subdivision three
of section one hundred forty-seven of this article to each agency and
every state legislator, unless the agency or state legislator has
requested that the department discontinue such delivery, and shall
provide notice and indicate the availability upon request of any special
issue published pursuant to subdivision two of section one hundred
forty-seven of this article by placing said notice in the regular issue
appearing two weeks prior to the publication date of any such special
issue. Such special issues shall be available to each agency and state
legislator at no charge.
3. Subscriptions to the state register shall be made available to the
public by either first or second class mail, or in electronic form at
the election of the subscriber. A reasonable rate for a subscription to
printed copies of the regular issue and quarterly index required by
subdivision three of section one hundred forty-seven of this article, to
be not more than eighty dollars per year for first class mail delivery
and not more than forty dollars per year for second class mail delivery,
shall be set by the secretary of state. The secretary of state may
charge no more than one dollar and fifty cents per single copy of a
printed regular issue or quarterly index of the state register. Rates
shall not be set at such a level that the anticipated total subscription
revenues exceed the total cost of producing, printing and distributing
the state register.
4. Special issues published pursuant to subdivision two of section one
hundred forty-seven of this article shall be made available to the
public at prices set by the secretary of state to reflect the cost of
producing, printing and distributing the special issues. The notice
provided in subdivision two of this section shall indicate the prices of
the special issues.
4-a. In addition to the state register, the department of state shall
make available at no cost an online version of the weekly state
register, quarterly index and any special issues as directed by statute
or deemed appropriate by the secretary of state.
5. The secretary of state shall be entitled to charge and receive a
reasonable sum from any person required by state statute to cause a
notice to be published in the state register.
6. All fees set by the secretary of state pursuant to this section are
subject to the approval of the director of the budget.
Format of state register. 1. The printed version of the state
register shall be an eight and one-half by eleven inch booklet with
three holes punched in the left hand margin to make such register
suitable for storage in an eight and one-half by eleven inch loose-leaf
binder.
2. Each regular issue of the state register shall contain:
(a) a table of contents;
(b) a table which includes a general description of the identification
number system, the alphanumeric abbreviation assigned to each agency and
the symbol to denote the various types of notices pursuant to article
two of the state administrative procedure act;
(c) a complete list of all public hearings to be conducted for which a
notice of proposed rule making has been published therein or in any
previous issue of the state register. Such list shall include (i) the
agency which will conduct the public hearing; (ii) the date, time, place
and subject of such public hearing; and (iii) the identification number
for the proposed rule making which is the subject of such public
hearing;
(d) a presentation of notices, required by article two of the state
administrative procedure act and not already published in the state
register, in a sequence that provides by agency (i) notices of emergency
adoption, (ii) notices of adoption, (iii) notices of expiration, (iv)
notices of withdrawal, (v) notices of proposed rule making for which a
public hearing is scheduled, (vi) notices of proposed rule making for
which no hearing is scheduled and (vii) notices of revised rule making;
(e) an action pending index, in tabular form, by agency in
alphabetical order, which shall identify all previously noticed proposed
rules for which the secretary of state has not published a notice of
expiration, of adoption or of withdrawal, and, with respect to a rule
defined in subparagraph (ii) of paragraph (a) of subdivision two of
section one hundred two of the state administrative procedure act, for
which the secretary of state has not published a notice of adoption or
withdrawal for one year after the publication of the proposed rule
making notice or two years if such notice has been renewed by the
agency. Such action pending index shall include a description of the
subject and purpose of the proposed rule and the identification number
described in paragraph (a) of subdivision three of this section.
3. With respect to notices published in the state register pursuant to
article two of the state administrative procedure act: (a) each notice
of proposed rule making shall be identified in the state register by an
identification number which shall include a separate alphanumeric
abbreviation to identify the agency, the issue number and year of
publication of the state register, a consecutive number assigned by the
secretary of state to such notice, and a symbol denoting that the notice
is for a proposed rule making;
(b) each notice of expiration, revised rule making, withdrawal,
adoption or emergency adoption shall be identified by the identification
number assigned to the notice of proposed rule making to which it
corresponds, followed by a symbol denoting that such notice is for an
expiration, withdrawal, adoption or emergency adoption;
(c) if a notice of emergency adoption does not correspond to a prior
notice of proposed rule making, such notice of emergency adoption shall
be assigned an identification number in accordance with paragraph (a) of
this subdivision, except that the symbol shall denote that the notice is
for an emergency adoption.
4. To the extent practicable, every version of the state register
transmitted by electronic means shall substantially comply with the
provisions of this section.
ARTICLE 6-B Services to Localities
Legislative findings. The legislature hereby finds and declares
that:
1. Strong local government has been a major positive factor in the
political, economic and social development of the state;
2. The future welfare of the state depends in large measure on the
effectiveness of local government and of its relationships to state
government;
3. Population shifts and other economic and social trends have brought
new problems to local government;
4. The state has the responsibility toward local government to
coordinate state services and information for the benefit of local
government, to assist in the solution of its problems, and otherwise to
help local government in making itself as strong and effective as
possible;
5. The need for a more rational planning process requires a high
degree of local, state and interstate cooperation;
6. The need for a single state agency to review and comment on local
planning efforts of statewide significance, state agency planning and
interstate planning commission programs is recognized;
7. A common data base developed by the official state planning agency
in conjunction with planning efforts at all levels of government is
essential to effective planning; and
8. State planning and development policies should promote planning
programs among state agencies and between levels of government that
maximize environmental and economic benefits to the localities.
Definitions. As used in this article, the term "municipalities"
shall include public corporations as defined in subdivision one of
section sixty-six of the general construction law and special districts
as defined in subdivision sixteen of section one hundred two of the real
property tax law.
General functions, powers and duties. The department of state,
by and through the secretary of state or duly authorized officers or
employees, shall have the following functions, powers and duties:
1. To assist the governor in coordinating the activities and services
of those departments and agencies of the state having relationships with
municipalities to the end of providing more effective services to such
municipalities.
2. To keep the governor informed as to the problems of municipalities
and to advise and assist in formulating policies with respect thereto
and utilizing the resources of the state government for the benefit of
municipalities.
3. To serve as a clearinghouse, for the benefit of municipalities,
regarding information relating to their common problems and to the state
and federal services available to assist in the solution of those
problems.
4. To refer municipalities to the appropriate departments and agencies
of the state and federal governments for advice, assistance and
available services in connection with particular problems
5. To advise and assist municipalities in the solution of particular
problems.
6. To conduct studies and analyses of the problems of municipalities
and to make the results thereof available as the secretary may deem
appropriate.
7. To encourage and assist cooperative efforts among municipalities in
developing among themselves solutions of their common problems.
8. To encourage expansion and improvement of training made available
to municipal officials, in cooperation with municipalities and the
organizations representing them.
9. To consult with and cooperate with municipalities and officers,
organizations, groups and individuals representing them, to the end of
more effectively carrying out the functions, powers and duties of the
department.
10. To encourage and facilitate cooperation and collaboration among
agencies and levels of government, and between government and the
private sector, for the protection and development of human, natural and
man-made resources.
11. To advise and assist municipalities in the performance of their
planning and development activities.
12. To aid and assist, in the provision and coordination of state
technical assistance and services in connection with the planning and
development activities of municipalities.
13. To provide assistance and guidance to municipalities and, as
appropriate, to the private sector, through the compilation, formulation
and dissemination of necessary information, projections and techniques
relating to development of resources.
14. To undertake any studies, inquiries, surveys or analyses necessary
for performance of the functions, powers and duties of the department
through the personnel of the department or consultants, or in
cooperation with any public or private agencies.
15. To adopt, amend or rescind such rules, regulations and orders as
may be necessary or convenient for the performance of its functions,
powers and duties under this article.
16. To enter into contracts with any persons, firm, corporation or
governmental agency, and to do all other things necessary or convenient
to carry out the functions, powers and duties expressly set forth in
this article.
17. To effectuate the purposes of this article, and to enable the
department properly to carry out its functions, powers and duties, the
secretary of state may request from any state department or agency or
from any municipality, and the same are hereby authorized to provide,
appropriate assistance, services and data.
22. To prepare and recommend to the legislature and the governor
legislative proposals relating to municipalities.
23. With the approval of the governor, to accept and administer as
agent of the state any gift, grant, devise or bequest, whether
conditional or unconditional, including federal grants, for any of the
purposes of this article. Any moneys so received may be expended subject
to the same limitations as to approval of expenditures and audits as are
prescribed for state moneys.
Specific powers, functions and duties. The department of state
shall have the following specific powers, functions and duties:
1. (a) To act as the official state planning agency for all of the
purposes of sections seven hundred one and seven hundred three of the
federal housing act of nineteen hundred fifty-four, as heretofore and
hereafter amended, except as otherwise provided by law.
(b) To act as agent for, and enter into contracts and otherwise
cooperate with, the federal government in connection with the authority
referred to in paragraph (a) of this subdivision, and as such agent to
administer any grant or advance of funds for the assistance of any such
activities to the state, or through the state to the governing bodies of
municipalities, legally constituted metropolitan or regional planning
agencies, and tribal councils or other legally constituted tribal bodies
for planning for an Indian reservation located within the territorial
jurisdiction of the state of New York, complying with the provisions of
such grants or advances.
(c) To present any claim, other than claims required by law to be
presented by the commissioner of transportation, to the federal
government or any agency or official thereof with respect to the funds
made available for the purposes specified in paragraphs (a) and (b) of
this subdivision.
(d) To enter into a contract or contracts with any municipality,
legally constituted metropolitan or regional planning agency, or tribal
council or other legally constituted tribal body for planning for an
Indian reservation located within the territorial jurisdiction of the
state of New York, in connection with the authority provided in
paragraph (a) of this subdivision for grants to be made to such
municipality, planning agency or tribal council or other legally
constituted tribal body by the state, within amounts appropriated
therefor, for planning projects approved by the secretary, which
contracts shall provide that the approved cost of a planning project,
over and above the amount which may be received from federal grants
therefor, shall be borne in an amount not to exceed one-half thereof by
the state pursuant to such contracts and the remainder thereof out of
local funds appropriated therefor by such municipality, planning agency
or tribal council or other legally constituted tribal body.
2. To act as the official agent of the state for the purpose of
administering, carrying out and otherwise cooperating with the federal
government in connection with the provisions of the federal Appalachian
regional development act of nineteen hundred sixty-five as heretofore
and hereafter amended; to apply for, accept, and expend funds made
available by the federal government pursuant to such federal acts and
enter into any necessary contracts or compacts in connection therewith;
and to take any further action which may be required under the terms of
any such federal act.
3. To act as the official agent of the state for the purpose of
administering, carrying out and otherwise cooperating with the federal
government in connection with the provisions of the federal public works
and economic development act of nineteen hundred sixty-five, as
heretofore and hereafter amended; to apply for, accept, and expend funds
made available by the federal government pursuant to such federal acts
and enter into any necessary contracts or compacts in connection
therewith; to review and approve overall economic development programs
prepared under the provisions of such federal acts as to the
qualifications of the area or district organization and the adequacy and
reasonableness of such programs, and every political subdivision of the
state, or private or public non-profit organization or association
submitting an overall economic development program to the federal
government must submit such overall economic development program for
review by the department of state; to act on behalf of the political
subdivisions of the state in connection with making findings that
projects for which financial assistance is sought under the provisions
of such federal acts are consistent with an overall program for the
economic development of the area; and to take any further action which
may be required under the terms of any such federal acts, including but
not limited to delineating economic development districts and economic
development regions and providing for the administration of such
districts and regions in any manner deemed appropriate by the
department, except that with regard to section three hundred two of such
act, the governor shall designate the official agent of the state for
the purpose of administering, carrying out and otherwise cooperating
with the federal government in connection with the provisions of such
section.
5. (a) To make or contract to make, within appropriations therefor,
state grants to municipalities to cover fifty per centum of the costs to
municipalities of preparing applications to the federal government for
federal assistance for the planning of comprehensive city demonstration
programs as authorized under title one of the demonstration cities and
metropolitan development act of nineteen hundred sixty-six as modified
by the provisions of title I of the housing and community development
act of nineteen hundred seventy-four, and any federal laws as heretofore
and hereafter amended, as such costs shall be certified by the
municipality and approved by the secretary of state.
(b) In the case of municipalities which have contracted with the
federal government for a federal grant to assist in financing the costs
of planning comprehensive city demonstration programs under the
authority referred to in paragraph (a) of this subdivision, to make or
contract to make, within appropriations therefor, state grants to such
municipalities to cover fifty per centum of the net cost to the
municipality of undertaking and completing such planning, exclusive of
any federal assistance, as such net cost shall be certified by the
municipality and approved by the secretary of state, but in no event
shall such state grants exceed one-eighth of the federal grant.
(c) In the case of municipalities which have had applications approved
by the federal government for federal assistance for the planning of
comprehensive city demonstration programs under the authority referred
to in paragraph (a) of this subdivision, but for which federal funds are
not then available, to make or contract to make, within appropriations
therefor, state grants to such municipalities in an amount not to exceed
ninety per centum of the reasonably anticipated costs of undertaking and
completing such planning, as such costs shall be certified by the
municipality and approved by the secretary of state; provided, however,
that no such grant shall be made unless the municipality agrees to repay
such grant out of federal funds made available to the municipality for
such planning, when and to the extent such federal funds are made
available.
(d) In carrying out the functions, powers and duties prescribed in
paragraphs (a), (b) and (c) of this subdivision and in developing plans
and applications under title one of the housing and community
development act of nineteen hundred seventy-four, to provide such
technical assistance to the municipalities as the secretary of state
determines to be appropriate.
6. The department of taxation and finance is hereby designated to
accept and receive all grants and advances from the federal government
pursuant to the provisions of sections seven hundred one and seven
hundred three of the federal housing act of nineteen hundred fifty-four
and the provisions of the federal Appalachian regional development act
of nineteen hundred sixty-five and the federal public works and economic
development act of nineteen hundred sixty-five and the federal fire
prevention and control act of nineteen hundred seventy-four, as such
acts may be amended from time to time, which are provided for the
purposes specified in subdivisions one, two, three, four and five of
this section and all moneys so accepted and received shall be deposited
by the department of taxation and finance in special funds for use
exclusively for the purposes for which such grants or advances were
made. Payment from such special funds shall be made upon audit and
warrant of the comptroller upon vouchers approved by the secretary.
7. Nothing contained in this section shall be deemed to derogate or
detract in any way from the functions, powers and duties prescribed by
law of any state department or agency or any municipality, nor to
interrupt or preclude the direct relationships of any such department or
agency with any such municipality for the carrying out of such
functions, powers and duties.
ARTICLE 6-C Office of Fire Prevention and Control
Office of fire prevention and control; creation; state fire
administrator; employees. There is hereby created in the division of
homeland security and emergency services an office of fire prevention
and control. The head of such office shall be the state fire
administrator, who shall be appointed by the governor and shall hold
office during the pleasure of the governor. He shall receive an annual
salary to be fixed by the commissioner of the division of homeland
security and emergency services within the amount available by
appropriation. He shall also be entitled to receive reimbursement for
expenses actually and necessarily incurred by him in the performance of
his duties within the amount available by appropriation.
Definitions. When used in this article:
1. "Districts" shall mean fire districts created pursuant to article
eleven of the town law.
2. "Fire companies" shall mean fire companies governed by the
not-for-profit corporation law.
3. "Municipal corporations" shall mean a county, city, town and
village.
4. "Municipalities" shall mean municipal corporations.
5. "Sprinkler system" shall mean a system of piping and appurtenances
designed and installed in accordance with generally accepted standards
so that heat from a fire will automatically cause water to be discharged
over the fire area to extinguish it or prevent its further spread.
Functions, powers and duties of the office. The office of fire
prevention and control, by and through the state fire administrator or
his duly authorized officer or employee, shall be empowered to:
1. Advise and assist in coordinating and strengthening the activities,
programs and services, and rules and regulations of those departments
and agencies of the state which have functions, powers and duties
relating to (a) arson suppression, detection, investigation and
prosecution, (b) fire prevention and control, and (c) fire
service-related problems, to the end of providing more effective
services to the public and strengthening governmental programs relating
to such matters.
1-a. Advise and assist the state education department in the
development of a specialized course of study for teachers of fire and
arson prevention.
2. Advise and assist fire companies, municipal corporations and
districts, including agencies and departments thereof in developing
measures for more effective fire and arson prevention and control; to
assist and encourage cooperative efforts to solve common problems
relating to fire and arson prevention and control and to serve as a
clearinghouse of information about fire and arson prevention and
control, about reported cases of burn injuries or wounds sustained, and
about state and federal services available to assist in solving such
problems.
3. Employ or contract with individuals, agencies or corporations to
assist fire companies, municipal corporations and districts in the
development of an arson investigation program or in the investigation of
cases of suspected arson or cases of burn injuries or wounds sustained
upon the request of such an entity. However, nothing in this provision
shall be construed to remove the primary responsibility for arson
investigations from appropriate local jurisdictions or agencies.
4. Improve arson evidence analysis and testing at existing facilities
and periodically recommend to the governor and the legislature methods
to improve such services.
5. Collect, compile and disseminate information relating to fire and
arson prevention and control, reported cases of burn injuries or wounds
sustained, the use of sprinkler systems, and to operate a state fire
reporting system. The state fire reporting system shall include a
procedure for the identification of patterns of suspicious or criminal
fires and for alerting appropriate state and local authorities. The fire
reporting system shall also include fire incident data supplied by local
fire agencies in a manner and on forms prescribed by the state fire
administrator. To the extent practicable, the data shall be collected
and maintained in a form compatible with information collected by other
states and the federal government. The state fire administrator shall
cooperate with the division of state police, division of criminal
justice services, department of financial services, local police and
fire agencies, the insurance industry and other appropriate
organizations in maintaining such system. The provisions of section
three hundred eighteen of the insurance law shall apply to any
organization supplying information pursuant to this subdivision.
6. Plan, coordinate and provide training for firefighters, both paid
and volunteer, and related governmental officers and employees, relating
to fire and arson prevention and control, and encourage expansion and
improvement of local training facilities in cooperation with fire
companies, municipal corporations and districts. Such training shall be
made available by video or computer to the maximum extent possible. The
office shall adopt rules and regulations relating to such training,
including but not limited to training standards used and the process by
which training hours are allocated to counties as well as a uniform
procedure for requesting and providing additional training hours.
7. Operate the New York state academy of fire science.
8. Consult with and cooperate with state departments and agencies, and
universities, colleges and institutions in the state for the development
of specialized courses of study for public officers and employees,
including paid and volunteer firefighters, in fire science and
administration. As part of the development of a training program for
firefighters, the office shall collect, compile, and disseminate
information regarding training needs based on the data provided pursuant
to section seventy-two-g of the general municipal law. Such information
shall be compiled annually and, once compiled, a copy of such
information shall be submitted to the governor, the temporary president
of the senate, and the speaker of the assembly.
9. Coordinate and support arson training programs conducted by the
division of criminal justice services and the division of state police.
10. Provide such public education and information programs, studies
and reports as the state fire administrator may determine in furtherance
of the provisions of this article and to coordinate and assist other
state agencies, municipal corporations and districts and fire companies
in such matters.
11. Provide management advice and technical assistance to municipal
corporations and districts and fire companies relating to fire and arson
prevention and control, including recommendations relating to
organizations and structure of fire companies, municipal corporations
and districts, allocations of powers and functions, cooperation and
intergovernmental organizational and fiscal relationships, federal and
state aid programs; to provide legal advice and technical services to
state and local officials and agencies with respect to powers, duties
and functions of municipal corporations and districts and fire companies
relating to fire and arson prevention and control.
12. Prepare and recommend revisions, consolidations or compilations of
statutes relating to arson, fire prevention and control.
13. Upon request of the appropriate state agency, provide for the fire
safety inspection of state or state-regulated facilities with the
cooperation and assistance of local fire inspection personnel. The
completed fire inspection form shall be filed with the requesting agency
and contain recommendations as may be appropriate and a copy filed with
the office of fire prevention and control.
14. Act as the official agent of the state for the purpose of
administering, carrying out and otherwise cooperating with the federal
government in connection with the provisions of the federal fire
prevention and control act of nineteen hundred seventy-four and any
federal laws amendatory or supplemental to such act heretofore or
hereafter enacted; to apply for, accept, and expend funds made available
by the federal government pursuant to such act; and to enter into any
necessary contracts or compacts pursuant to such federal acts in
connection therewith and to take any further action which may be
required under the terms of any such federal act.
15. Enter into contracts with any person, firm, corporation or
governmental agency to do all things necessary and convenient to carry
out the functions, powers and duties expressly set forth in this
article.
16. Accept and administer as agent of the state any gift, grant,
devise or bequest, including federal grants for any of the purposes of
this article. Any moneys so received may be expended subject to the same
limitations as to approval of expenditures and audits as are prescribed
for state moneys.
17. Issue a written report to the governor and legislature, on or
before February fifteenth of each year, on firefighter training
activities. Such report shall include at least the following
information: the minimum training hours allocated on a county-by-county
basis, the training hours requested by each county, any unfulfilled
training hour requests, and the number of hours used by each county on a
county-by-county basis.
18. Establish rules and regulations as to the location and design of a
delineator used to mark the location of fire hydrants.
19. Issue permits and enforce the provisions of article four hundred
five of the penal law for the public displays of fireworks and indoor
pyrotechnics on or within state property, unless such authority has been
delegated pursuant to the rules and regulations promulgated by the
office of fire prevention and control.
20. Register the manufacturers, distributors, wholesalers, retailers
and seasonal retailers of sparkling devices who wish to do business
within the state.
* 21. Adopt, amend or rescind such rules, regulations or orders as may
be necessary or convenient to the performance of the functions, powers
and duties set forth in this article.
* NB There are 2 sb 21's
* 21. Provide written materials to consumers and builders which detail
the benefits of and include the factors that can affect costs associated
with the installation and maintenance of an automatic fire sprinkler
system for a one- or two-family residential dwelling.
* NB Repealed upon provisions set forth in § 3 of chapter 201 of 2014
* NB There are 2 sb 21's
22. In coordination with the commissioner of the office for people
with developmental disabilities, provide the training program relating
to handling emergency situations involving individuals with autism
spectrum disorder and other developmental disabilities and associated
training materials pursuant to section 13.43 of the mental hygiene law
to all firefighters, both paid and volunteer. The office shall adopt all
necessary rules and regulations relating to such training, including the
process by which training hours are allocated to counties as well as a
uniform procedure for requesting and providing additional training
hours.
Establishment of a specialized hazardous materials emergency
response training program. 1. The state fire administrator shall
establish a specialized hazardous materials emergency response training
program for individuals responsible for providing emergency response
recovery following incidents involving hazardous materials as such term
is defined in regulations promulgated by the commissioner of
transportation pursuant to section fourteen-f of the transportation law.
The state fire administrator shall inform all fire companies, municipal
corporations and districts, including agencies and departments thereof
and all firefighters, both paid and volunteer, and related officers and
employees and police officers of the implementation and availability of
the hazardous materials emergency response training program and shall,
subject to the availability of an appropriation, conduct such training
with sufficient frequency to assure adequate response to incidents
involving hazardous materials and protection of responders in all
geographic areas of the state.
2. The state fire administrator shall prescribe the curriculum of the
hazardous materials emergency response training program, which shall
include, but shall not be limited to:
(a) hands-on training, including information in regard to leak and
spill control, product neutralization, pickup and disposal, fire
control, decontamination procedures and use and application of foam
agents;
(b) hazard assessment with emphasis on incident scene decision-making,
including: potential threat to public safety and need for evacuation,
calculation of the effect of weather on certain chemicals and evaluation
of the result of chemical exposures to air, water, soil, vegetation,
lives and property and impact on the personal safety of those working in
the accident area;
(c) calibration and use of emergency equipment;
(d) chemical and biological properties of various classes of
chemicals, for example, flammables, oxidizers, corrosives, poisons; and
(e) weapons of mass destruction and response to terrorism.
3. Such specialized hazardous materials emergency response training
program curriculum shall also include guidance regarding emergency
response to incidents involving lithium-ion batteries. For the purposes
of this section, "lithium-ion battery" shall have the same meaning as in
section four hundred ninety-five of the general business law.
4. The state fire administrator is hereby directed to issue a report
to the governor, speaker of the assembly, temporary president of the
senate, chairman of the assembly transportation committee and the
chairman of the senate transportation committee by February fifteenth of
each year on the operations of the program set forth in this section.
5. The state fire administrator shall promulgate such rules and
regulations as are necessary to carry out the provisions of this
section.
Permanent marking indicating location of fire hydrants. A
municipality or fire district may mark the location of any fire hydrant
within its jurisdiction by means of a reflective delineator of a uniform
type and color approved by the office of fire prevention and control.
Fire safety standards for cigarettes. 1. a. When used in this
section, the word "cigarette" shall mean any roll for smoking made
wholly or in part of tobacco or of any other substance, irrespective of
size or shape and whether or not such tobacco or substance is flavored,
adulterated or mixed with any other ingredient, the wrapper or cover of
which is made of paper or any other substance or material except
tobacco.
b. When used in this section, the word "sell" shall mean to sell, or
to offer or agree to do the same.
2. a. Within two years after this section takes effect, the office of
fire prevention and control shall promulgate fire safety standards for
cigarettes sold or offered for sale in this state. Such standards shall
take effect as provided in subdivision four of this section and shall
insure either:
(1) That such cigarettes, if ignited, will stop burning within a time
period specified by the standards if the cigarettes are not smoked
during that period; or
(2) That such cigarettes meet performance standards prescribed by the
office of fire prevention and control to limit the risk that such
cigarettes will ignite upholstered furniture, mattresses or other
household furnishings.
b. In promulgating fire safety standards for cigarettes pursuant to
this section, the office of fire prevention and control, in consultation
with the department of health, shall consider whether cigarettes
manufactured in accordance with such standards may reasonably result in
increased health risks to consumers.
c. The office of fire prevention and control shall be responsible for
administering the provisions of this section.
d. The office of fire prevention and control shall report to the
governor and the legislature no later than eighteen months after this
section takes effect on the status of its work in promulgating the fire
safety standards required by this subdivision.
e. When a cigarette is suspected of having ignited a fire, and the
office of fire prevention and control receives information regarding the
brand and style of such cigarette pursuant to section two hundred four-d
or ninety-one-a of the general municipal law, and where such brand and
style had been previously certified pursuant to subdivision three of
this section and the package has been marked as required by subdivision
six of this section, the office of fire prevention and control shall
conduct random testing on cigarettes of the same brand and style in
order to determine whether such cigarettes meet the fire safety
standards mandated by this section; provided however that such testing
shall not be required if the office of fire prevention and control has
tested such brand and style within the preceding three months.
3. On and after the date the fire safety standards take effect in
accordance with subdivision four of this section, no cigarettes shall be
sold or offered for sale in this state unless the manufacturer thereof
has certified in writing to the office of fire prevention and control
that such cigarettes meet the performance standards prescribed by the
office of fire prevention and control pursuant to subdivision two of
this section.
(a) Such certifications must be based upon testing conducted by a
laboratory that has been accredited pursuant to Standard ISO/IEC 17025
of the international organization for standardization, or such other
comparable accreditation standard as the office of fire prevention and
control shall require by regulation.
(b) Such certification shall be signed by an officer of the
manufacturer and shall contain for each cigarette brand style such
information as shall be deemed necessary by the office of fire
prevention and control, including but not limited to: (i) the brand and
style; (ii) length in millimeters; (iii) circumference in millimeters;
(iv) flavor, if applicable; (v) filter or non-filter; (vi) package
description; (vii) the name, address and telephone number of the
laboratory, if different than the manufacturer that conducted the test;
(viii) the date that the testing occurred; and (ix) a notarized
statement from an officer or director of the laboratory certifying that
the cigarette meets the performance standards prescribed by the office
of fire prevention and control.
(c) If a manufacturer has certified a cigarette pursuant to this
subdivision, and thereafter makes any change to such cigarette that is
likely to alter its compliance with the fire safety standards mandated
by this section, then before such cigarette may be sold or offered for
sale in this state such manufacturer shall retest such cigarette in
accordance with the testing standards prescribed by the office of fire
prevention and control and maintain records of such retesting as
required by subdivision seven of this section. Any such altered
cigarette which does not meet the performance standard prescribed by the
office of fire prevention and control may not be sold in the state.
Copies of such written certifications shall be provided by the
certifying manufacturer to all wholesale dealers, as defined in
subdivision eight of section four hundred seventy of the tax law, and
all agents, as defined in subdivision eleven of section four hundred
seventy of the tax law. The office of fire prevention and control shall
prescribe procedures by which stamping agents, wholesale dealers or
retail dealers are notified of which cigarettes have been certified by
manufacturers as meeting the performance standards prescribed by the
office of fire prevention and control, which may include the maintenance
of a website listing certified cigarette brands and styles.
4. The fire safety standards required pursuant to subdivision two of
this section shall take effect on such date as the office of fire
prevention and control shall specify in promulgating such standards and
such date shall be the earliest practicable date by which manufacturers
of cigarettes can comply with such standards; provided, however, that
such date shall not be later than one hundred eighty days after such
standards are promulgated. On and after such date, no person or entity
shall sell in this state cigarettes that have not been certified by the
manufacturer in accordance with subdivision three of this section or
that have not been marked in the manner required by subdivision six of
this section; provided, however, that nothing in this subdivision shall
be construed to prohibit any person or entity from selling or offering
for sale cigarettes that have not been certified by the manufacturer in
accordance with subdivision three of this section and have not been
marked in the manner required by subdivision six of this section if such
cigarettes are or will be stamped for sale in another state or are
packaged for sale outside the United States.
5. a. Any wholesale dealer, as defined in subdivision eight of section
four hundred seventy of the tax law, or any agent, as defined in
subdivision eleven of section four hundred seventy of the tax law, or
any other person or entity who knowingly sells or offers to sell
cigarettes in violation of subdivision four of this section shall be
subject to a civil penalty not to exceed one hundred dollars for each
pack of such cigarettes sold or offered for sale provided that in no
case shall the penalty against any wholesale dealer exceed one hundred
thousand dollars for sales or offers to sell during any thirty day
period. Any retail dealer, as defined in subdivision nine of section
four hundred seventy of the tax law, who knowingly sells or offers to
sell cigarettes in violation of subdivision four of this section shall
be subject to a civil penalty not to exceed one hundred dollars for each
pack of such cigarettes sold or offered for sale, provided that in no
case shall the penalty against any retail dealer exceed twenty-five
thousand dollars for sales or offers to sell during any thirty day
period. Any person engaged in the business of selling cigarettes in or
for shipment into New York who possesses cigarettes that have not been
certified or marked in accordance with the requirements of this section
shall be deemed to be offering such cigarettes for sale in New York. An
agent licensed in more than one state may rebut such presumption by
establishing: (i) that such cigarettes have been physically segregated
from cigarettes offered for sale in New York; and (ii) no New York tax
stamps have been placed on any cigarettes that have not been certified
or marked in accordance with this section. In addition to any penalties
imposed by this section the commissioner of taxation and finance, after
an opportunity for a hearing has been afforded pursuant to subdivision
five of section four hundred eighty of the tax law, shall suspend for
six months the license of any agent issued pursuant to section four
hundred seventy-two of the tax law, the license of any wholesale dealer
issued pursuant to section four hundred eighty of the tax law, or the
registration of any retail dealer issued pursuant to section four
hundred eighty-a of the tax law, when such agent, wholesale dealer or
retail dealer violates this section three or more times within a three
year period, provided such violations occurred on at least three
separate calendar days.
b. In addition to any penalty prescribed by law, any corporation,
partnership, sole proprietor, limited partnership, association or any
other business entity engaged in the manufacture of cigarettes that
knowingly makes a false certification pursuant to subdivision three of
this section shall be subject to a civil penalty of at least
seventy-five thousand dollars and not to exceed two hundred fifty
thousand dollars for each such false certification, and any entity that
fails to pay a civil penalty imposed pursuant to this paragraph within
thirty days after such penalty is imposed, shall be subject to a bar
from selling cigarettes covered by that false certification in this
state until the state receives full payment of such penalty.
c. There is hereby established in the custody of the state comptroller
a special fund to be known as the "Cigarette Fire Safety Act Fund". Such
fund shall consist of all moneys recovered from the assessment of civil
penalties authorized by this subdivision. Such monies shall be deposited
to the credit of the fund and shall, in addition to any other moneys
made available for such purpose, be available to the office of fire
prevention and control for the purpose of fire safety and prevention
programs. All payments from the cigarette fire safety act fund shall be
made on the audit and warrant of the state comptroller on vouchers
certified and submitted by the state fire administrator.
6. No cigarettes shall be distributed, sold or offered for sale in
this state unless the manufacturer has placed on each individual package
the letters "FSC" which signifies Fire Standards Compliant. Such letters
shall appear in eight point type and be permanently printed, stamped,
engraved or embossed on the package at or near the UPC Code, if present.
Any package containing such symbol is deemed to be in compliance with
the office of fire prevention and control regulations set forth in 19
NYCRR 429.8.
7. a. Each manufacturer shall maintain copies of the reports of all
tests conducted on all cigarettes for a period of three years, and shall
make copies of such reports available to the office of fire prevention
and control and the attorney general upon written request; provided,
however, that any manufacturer that fails to make copies of such reports
available within sixty days of receiving such a written request shall be
subject to a civil penalty not to exceed ten thousand dollars for each
day after the sixtieth day that such manufacturer does not make such
copies available and shall be subject to a bar from selling or offering
to sell cigarettes in New York until such copies are made available.
b. Testing performed or sponsored by the office of fire prevention and
control in order to determine a cigarette's compliance with the fire
safety standards mandated by this section shall be conducted (i) in
accordance with the requirements applicable to manufacturers pursuant to
the regulations of the office of fire prevention and control, and (ii)
by a laboratory that has been accredited pursuant to Standard ISO/IEC
17025 of the international organization for standardization or such
other comparable accreditation standard as the office of fire prevention
and control shall require by regulation.
8. a. To enforce the provisions of this section, the commissioner of
taxation and finance and the state fire administrator may take
administrative action imposing the civil penalties and suspensions
authorized by subdivision five of this section. In addition, the
attorney general may bring an action on behalf of the people of the
state of New York to enjoin acts in violation of this section and to
recover any civil penalties unless civil penalties have been previously
recovered in such administrative proceedings.
b. Any enforcement officer as defined in section thirteen hundred
ninety-nine-t of the public health law shall have the power to impose
upon any retail dealer the civil penalties authorized by subdivision
five of this section, following a hearing conducted in the same manner
as hearings conducted under article thirteen-E of the public health law.
c. To enforce the provisions of this section, the commissioner of
taxation and finance and the state fire administrator, or their duly
authorized representatives, are hereby authorized to examine the books,
papers, invoices and other records of any person in possession, control
or occupancy of any premises where cigarettes are placed, stored, sold
or offered for sale, as well as the stock of cigarettes in any such
premises. Every person in the possession, control or occupancy of any
premises where cigarettes are placed, sold or offered for sale, is
hereby directed and required to give the commissioner of taxation and
finance and the state fire administrator, and their duly authorized
representatives, the means, facilities and opportunity for such
examinations as are herein provided for and required.
d. Whenever any police officer designated in section 1.20 of the
criminal procedure law or a peace officer designated in subdivision four
and subdivision seventy-nine pertaining to the Office of Fire Prevention
and Control, of section 2.10 of such law, acting pursuant to his or her
special duties, shall discover any cigarettes which have not been marked
in the manner required by subdivision six of this section, such officer
is hereby authorized and empowered to seize and take possession of such
cigarettes. Such seized cigarettes shall be turned over to the
commissioner of taxation and finance, and shall be forfeited to the
state. Cigarettes seized pursuant to this section shall be destroyed.
e. The commissioner of the division of homeland security and emergency
services, in consultation with the state fire administrator, and the
commissioner of taxation and finance are hereby authorized to promulgate
such regulations as are deemed necessary to implement the provisions of
this section.
Thermal imaging camera grant program. 1. Subject to available
appropriation, there is hereby established in the office of fire
prevention and control a thermal imaging camera grant program, under
which grants shall be made available to fire organizations for the
purchase of one thermal imaging camera each or for reimbursement to such
fire organizations for public funds, other than state or federal funds,
that have been expended by such fire organizations on or after April
first, two thousand for the purchase of a thermal imaging camera,
provided, however, no reimbursement, when combined with any required
match, shall exceed the office of general services contract price per
camera. Such grants shall be made available upon application by such
fire organizations. Fire organizations that are without a thermal
imaging camera shall receive priority from the office of fire prevention
and control for grants made pursuant to this section. The office of fire
prevention and control may require, pursuant to such uniform standards
as such office may prescribe, that applicants for such grants or
reimbursement provide matching funds of up to, but not more than, the
amount awarded; provided, however, that a fire organization having an
annual operating budget of one hundred fifty thousand dollars or less
shall not be required to provide matching funds. The office of fire
prevention and control shall promulgate such rules and regulations as
are necessary to advance the purposes of this section. Such regulations
shall establish, among other things, training requirements for the use
of thermal imaging cameras by fire organizations.
2. As used in this section, "fire organizations" means a board of fire
commissioners, which operates a fire department pursuant to the town
law, a fire department established pursuant to the village law or
general city law or a fire company located within a fire protection
district pursuant to the town law.
College fire safety. 1. Notwithstanding the provisions of any
law to the contrary, the office of fire prevention and control of the
division of homeland security and emergency services, by and through the
state fire administrator or their duly authorized officers and
employees, shall have the responsibility to annually inspect buildings
under the jurisdiction of public colleges and independent colleges, as
these terms are defined in section eight hundred seven-b of the
education law, for compliance with and violations of the uniform fire
prevention and building code; or any other applicable code, rule or
regulation pertaining to fire safety. Buildings subject to inspection
are all buildings under the jurisdiction of such colleges used for
classroom, dormitory, fraternity, sorority, laboratory, physical
education, dining, recreational or other purposes.
2. a. The office of fire prevention and control shall have the power
to issue a notice of violation and orders requiring the remedying of any
condition found to exist in, on or about any such building which
violates the uniform fire prevention and building code, or any other
code, rule or regulation pertaining to fire safety, fire safety
equipment and fire safety devices. Such office is further authorized to
promulgate regulations regarding the issuance of violations, compliance
with orders, and providing for time for compliance, reinspection
procedures, and issuance of certificates of conformance.
b. Where any college authority in general charge of the operation of
any public or independent college buildings is served personally or by
registered or certified mail with an order of the office of fire
prevention and control to remedy any violation and fails to comply with
such order immediately or within such other time as specified in the
order, the office of fire prevention and control may avail itself of any
or all of the following remedies: (1) assess a civil penalty of up to
five hundred dollars per day until the violation is corrected; (2) order
immediate closure of the building, buildings or parts thereof where a
violation exists that poses an imminent threat to public health and
safety; (3) refer violations to the appropriate local government
authorities for enforcement pursuant to article eighteen of this
chapter.
c. The office of fire prevention and control is authorized to commence
necessary proceedings in a court of competent jurisdiction seeking
enforcement of any of its orders and payment of assessed penalties.
3. a. Except as provided herein, any county, city, town or village,
pursuant to resolution of their respective legislative bodies, may apply
to the office of fire prevention and control for delegation of all or
part of the duties, rights and powers conferred upon the office of fire
prevention and control by this section and section eight hundred seven-b
of the education law. Upon acceptable demonstration of adequate
capability, resources and commitment on the part of the applicant local
government, the office of fire prevention and control may make such
delegation, in which case the local government shall also have all of
the rights, duties and powers provided to local governments in article
eighteen of this chapter and in any city charter or code. The authority
granted in this section to assess civil penalties and order closure of
buildings shall not be delegated to the local government. Such powers
shall continue in the office of fire prevention and control which may
exercise them in the case of violations, on its own volition or at the
request of the delegee local government. The delegation shall expire
after three years, and may be renewed at the discretion of the office of
fire prevention and control. All inspection reports conducted pursuant
to a delegation of authority shall be promptly filed with the office of
fire prevention and control. In the event any such report is not filed
or reasonable grounds exist to believe that inspections or enforcement
are inadequate or ineffective, the office of fire prevention and control
may revoke the delegation or continue it subject to terms and conditions
specified by the office of fire prevention and control.
b. The authorities in a city having a population of one million or
more shall exercise all of the rights, powers and duties pertaining to
inspection of independent and public college buildings and enforcement
provided in this section and section eight hundred seven-b of the
education law, without impairing any existing authority of such city. A
copy of all inspection reports shall be filed with the office of fire
prevention and control by the authorities conducting inspections.
Evacuation drills. Except as may be otherwise provided in
rules and regulations promulgated by the department of state pursuant to
article eighteen of this chapter, in any building owned or leased in
whole by the state or any agency thereof, an evacuation drill shall be
conducted at least twice each year in which all of the occupants of the
buildings shall participate simultaneously and which shall conduct all
such occupants to a place of safety. In New York city, the state fire
administrator shall make rules, regulations and special orders necessary
and suitable to each situation, as appropriate.
Establishment of teams for urban search and rescue, specialty
rescue and incident support. 1. Authorization to establish urban search
and rescue task force teams, specialty rescue teams, and incident
support teams. The commissioner of the division of homeland security and
emergency services after consultation with the state fire administrator
shall have the authority to establish, organize, administer, support,
train, and fund urban search and rescue task force teams, specialty
rescue teams, and incident support teams created pursuant to this
section.
2. Definitions. For the purposes of this section, the following terms
shall have the following meanings:
(a) "urban search and rescue task force team" shall mean a specialized
team or group of teams, formed pursuant to this section, organized with
capabilities equivalent to urban search and rescue task force teams
established under the federal emergency management agency in order to
assist in the removal of trapped victims in emergency situations
including, but not limited to, collapsed structures, trench excavations,
elevated locations, and other technical rescue situations.
(b) "specialty rescue team" shall mean a specialized team, formed
pursuant to this section, organized to provide technical rescue
assistance to first responders including, but not limited to, canine
search and rescue/disaster response, cave search and rescue, collapse
search and rescue, mine and tunnel search and rescue, and swift
water/flood search and rescue teams. Such teams shall be aligned with
one or more of the search and rescue categories within the federal
emergency management agency's national resource typing system.
(c) "incident support team" shall mean a team of trained response
personnel, formed pursuant to this section, organized to provide
coordination with governmental agencies and non-governmental
organizations as well as technical, and logistical support to urban
search and rescue task force teams and specialty rescue teams.
3. Appointment and training of team members; equipment. (a) The
commissioner of the division of homeland security and emergency services
is hereby authorized to appoint members to any team created pursuant to
this section. Team membership shall consist of local emergency response
personnel, state agency personnel and specialty personnel as required.
(b) The commissioner of the division of homeland security and
emergency services shall be responsible for training and equipping the
teams established pursuant to this section and for training such other
teams located within the state for response to man-made or natural
disasters to the extent appropriations are provided. The commissioner of
the division of homeland security and emergency services shall support
the capabilities of each team established pursuant to this section with
the necessary training and equipment to ensure mobilization and
deployment for rapid response to emergencies and disasters to the extent
appropriations are provided.
4. Accreditation of teams. The commissioner of the division of
homeland security and emergency services shall have the authority to
establish an accreditation program to review and evaluate new and
existing local and regional technical rescue capabilities, and provide
recommendations for capability enhancement in accordance with the
national incident management system, the national response plan, and
nationally recognized standards.
5. Defense, indemnification and insurance coverage of team members.
Members of the teams formed pursuant to this section who are volunteer
firefighters, volunteer ambulance workers, municipal or state employees,
or employees of a non-governmental entity shall be provided coverage by
their respective municipalities, organizations, and entities for
purposes of sections seventeen and eighteen of the public officers law
and/or other defense and indemnification coverage and workers'
compensation coverage pursuant to applicable provisions of the workers'
compensation law or benefits pursuant to applicable provisions of the
volunteer firefighters' benefit law or the volunteer ambulance workers'
benefit law. Individuals appointed to an urban search and rescue task
force team, a specialty rescue team or an incident support team, for
which such coverage is not available, shall be deemed volunteer state
employees for purposes of section seventeen of the public officers law
and section three of the workers' compensation law.
6. Rules and regulations. The commissioner of the division of homeland
security and emergency services after consultation with the state fire
administrator shall have the authority to promulgate rules and
regulations as deemed necessary relating to the accreditation of urban
search and rescue task force teams, specialty rescue teams, and incident
support teams and to the formation and operation of all teams
established pursuant to this section.
7. Funding. The division of homeland security and emergency services
shall expend the necessary monies for training, equipment, and other
items necessary to support the operations of urban search and rescue
task force teams, specialty rescue teams and incident support teams
within appropriations provided. The division of homeland security and
emergency services also may, pursuant to applicable rules and
regulations approved by the director of the division of the budget,
approve grants of funds from monies allocated and appropriated for any
or all such teams.
Registration and fees for manufacturers, distributors,
wholesalers, and retailers of sparkling devices. 1. Definitions. As used
in this section, the term:
(a) "Distributor" means any person or entity engaged in the business
of selling sparkling devices to wholesalers, specialty retailers,
permanent retailers or temporary seasonal retailers for resale.
(b) "Manufacturer" means any person or entity engaged in the
manufacture or construction of sparkling devices.
(c) "Specialty retailer" means any person or entity who, at a fixed
place of business, is engaged solely in selling sparkling devices at
retail. For purposes of this section, a person or entity is engaged
solely in selling sparkling devices if fifty-one percent or more of such
person's or entity's annual gross sales are from the sale of sparkling
devices.
(d) "Permanent retailer" means any person or entity who, at a fixed
place of business, is engaged in selling sparkling devices at retail.
(e) "Sparkling devices" means any item defined in subparagraph (vi) of
paragraph (a) of subdivision one of section 270.00 of the penal law.
(f) "Temporary seasonal retailer" means any person or entity who, at a
temporary stand or tent, is engaged in selling sparkling devices from
June twentieth through July fifth or from December tenth through January
second of each year at retail.
(g) "Wholesaler" means any person or entity engaged in the business of
selling sparkling devices to specialty retailers, permanent retailers or
temporary seasonal retailers at wholesale.
2. Registration requirements. Any manufacturer, distributor,
wholesaler, specialty retailer, permanent retailer or temporary seasonal
retailer of sparkling devices who wishes to do business in this state or
to otherwise sell, ship, or assign for sale its products in this state
must register annually with the office of fire prevention and control on
forms prescribed by such office. Any specialty retailer, permanent
retailer or temporary seasonal retailer that sells sparkling devices at
more than one retail location may submit one registration form for all
such locations but must provide the address of each location with the
registration form; however, any retailer may submit multiple
registration forms.
3. Registration form. The registration form filed with the office of
fire prevention and control must be notarized and must include the
following information: business name; address; telephone number;
officers, if the business is a corporation; and an individual designated
as a contact person.
4. Fees. (a) Each manufacturer, distributor or wholesaler must pay an
annual registration fee to be set by the office of fire prevention and
control not to exceed five thousand dollars. Each specialty retailer
must pay an annual registration fee to be set by such office not to
exceed two thousand five hundred dollars. Each permanent retailer shall
pay an annual registration fee to be set by such office not to exceed
two hundred dollars for each retail location registered. Each temporary
seasonal retailer must pay a registration fee to be set by such office
not to exceed two hundred fifty dollars per season. Each
certificate-holder wishing to have a duplicate certificate issued for
one which is lost or to reflect a change of address shall request such
duplicate in writing and shall pay a fee of five dollars.
(b) Revenue from registration fee payments shall be used for the
purposes of implementing firefighter safety and training programs as
well as registration and testing provisions of this chapter.
(c) No city, municipality or other local jurisdiction shall charge any
fee or require any permit whatsoever for the sale and use of sparkling
devices.
5. Record and reports. Each manufacturer, distributor and wholesaler
shall maintain and make available to the state fire administrator, upon
the state fire administrator's reasonable request, full and complete,
true, and accurate records showing the name and quantity of any
sparkling device produced in, imported to, exported from, or sold in
this state.
6. Rules. The state fire administrator shall promulgate rules
prescribing registration forms required by this section.
Granting authority. The division of homeland security and
emergency services by and through the commissioner of the division of
homeland security and emergency services or his duly authorized officers
and employees, shall administer, carry out and approve grants of funds
from moneys allocated and appropriated therefor, for authorized arson,
fire prevention and control expenditures as defined herein, that are
conducted by municipal corporations. "Authorized arson, fire prevention
and control expenditures" shall mean those expenditures utilized by a
municipal corporation for fire or arson prevention, fire or arson
investigation and arson prosecution. No expenditure which has not been
specifically designated by the local legislative body for arson, fire
prevention and control and approved by the office of fire prevention and
control pursuant to rules and regulations promulgated thereby shall be
considered an "authorized arson, fire prevention and control
expenditure." The division of homeland security and emergency services
shall adopt, amend and rescind such rules, regulations and guidelines as
may be necessary for the performance of its functions, powers and duties
under this section. The division of homeland security and emergency
services shall allocate grants under this article among the
municipalities whose applications have been approved in such a manner as
will most nearly provide an equitable distribution of the grants among
municipalities, taking into consideration such factors as the level of
suspected arson activity, population and population density, the need
for state funding to carry out local programs, and the potential of the
municipalities to effectively employ such grants.
Firefighting training. 1. For the purpose of this section, the
term fire fighter shall mean a member of a fire department whose duties
include fire service as defined in paragraph d of subdivision eleven of
section three hundred two of the retirement and social security law.
2. In addition to the functions, powers and duties otherwise provided
by this article, the state fire administrator may promulgate rules and
regulations with respect to:
(a) The approval, or revocation thereof, of fire training programs for
fire fighters;
(b) Minimum courses of study, attendance requirements, and equipment
and facilities to be required for approved fire training programs for
fire fighters;
(c) Minimum qualifications for instructors for approved fire training
programs for fire fighters;
(d) The requirements of minimum basic training which fire fighters
appointed to probationary terms shall complete before being eligible for
permanent appointment, and the time within which such basic training
must be completed following such appointment to a probationary term;
(e) The requirements of minimum basic training which fire fighters not
appointed for probationary terms but appointed on other than a permanent
basis shall complete in order to be eligible for continued employment or
permanent appointment, and the time within which such basic training
must be completed following such appointment on a non-permanent basis;
(f) The requirements for in-service training programs designed to
assist fire fighters in maintaining skills and being informed of
technological advances;
(g) Categories or classifications of advanced in-service training
programs and minimum courses of study and attendance requirements with
respect to such categories or classifications;
(h) Exemptions from particular provisions of this article in the case
of any county, city, town, village or fire district, if in the opinion
of the state fire administrator the standards of fire training
established and maintained by such county, city, town, village or fire
district are equal to or higher than those established pursuant to this
article; or revocation in whole or in part of such exemption, if in his
or her opinion the standards of fire training established and maintained
by such county, city, town, village or fire district are lower than
those established pursuant to this article; and
(i) Education, health and physical fitness requirements for
eligibility of persons for provisional or permanent appointment in the
competitive class of the civil service as fire fighters as it deems
necessary and proper for the efficient performance of such duties;
3. In furtherance of his or her functions, powers and duties as set
forth in this section, the state fire administrator may:
(a) Recommend studies, surveys and reports to be made by the state
fire administrator regarding the carrying out of the objectives and
purposes of this section;
(b) Visit and inspect any fire training programs approved by the state
fire administrator or for which application for such approval has been
made; and
(c) Recommend standards for promotion to supervisory positions.
4. In addition to the functions, powers and duties otherwise provided
by this section, the state fire administrator shall:
(a) Approve fire training programs for fire fighters and issue
certificates of approval to such programs, and revoke such approval or
certificate;
(b) Certify, as qualified, instructors for approved fire training
programs for fire fighters and issue appropriate certificates to such
instructors;
(c) Certify fire fighters who have satisfactorily completed basic
training programs and in-service training programs, and issue
appropriate certificates to such fire fighters and revoke such
certificates;
(d) Cause studies and surveys to be made relating to the
establishment, operation, effectiveness and approval of fire training
programs;
(e) Cause studies and surveys to be made relating to the completion or
partial completion of training programs by video or computer to the
maximum extent practicable; and
(f) Consult with and cooperate with the state university of New York
and private universities, colleges and institutes in the state for the
development of specialized courses of study for fire fighters in fire
science and fire administration.
Advisory council for fire prevention and control. 1. There is
hereby created within the division of homeland security and emergency
services an advisory council for fire prevention and control for the
purpose of advising the commissioner and the state fire administrator
with regard to: (a) execution of the functions, powers and duties of the
office with respect to fire and arson prevention and control services,
policies and programs; (b) recommendations on courses of instruction and
standards for training of firefighters of fire departments, fire
companies, municipal corporations, districts, and private industry of
the state; (c) recommendations on federal and state legislation and
programs relating to fire and arson prevention services, policies and
programs; and (d) recommendations upon such other matters as the
commissioner and the state fire administrator may request.
2. The council shall be composed of the state fire administrator, as
chair, or his or her designee, and twelve other members appointed as
follows: six members appointed by the governor; two members appointed by
the temporary president of the senate; one member appointed by the
minority leader of the senate; two members appointed by the speaker of
the assembly; one member appointed by the minority leader of the
assembly.
3. Membership of such council shall consist of representatives from
the volunteer and career fire service, at least half of which shall
serve at the municipal level.
4. Members of the council, other than the state fire administrator,
shall serve for terms of three years, with such terms to commence on
April first and expire on March thirty-first.
5. No member of the council shall be disqualified from holding any
other public office or employment, nor shall he or she forfeit any such
office or employment by reason of the appointment hereunder,
notwithstanding the provisions of any general, special or local law,
ordinance or city charter.
6. The council shall meet at least twice a year. Special meetings may
be called by the chairperson. The agenda and meeting place of all
regular or special meetings shall be made available to the public in
advance of such meeting.
7. Members of the council shall serve without salary or per diem
allowance, but shall be entitled to reimbursement for actual and
necessary expenses incurred in the performance of official duties under
this section, provided, however, that such members are not, at the time
such expenses are incurred, public employees otherwise entitled to such
reimbursement.
8. The chairperson may create subcommittees as he or she may from time
to time deem appropriate to provide the council with advice and
recommendations. Members of such subcommittees shall be entitled to
reimbursement for actual and necessary expenses incurred in the
performance of official duties under this section, provided, however,
that such members are not, at the time such expenses are incurred,
public employees otherwise entitled to such reimbursement.
Inclusion on the fallen firefighters memorial. In the case of
a death of a firefighter, regardless of whether such death occurred
before, on, or after the effective date of this section, that results
from services performed in the line of duty, as determined by an
authoritative agency including, but not limited to, the workers'
compensation board, the federal Department of Justice, or the office of
fire prevention and control, the name of that firefighter shall be
inscribed upon the New York state fallen firefighters memorial on the
Capitol Mall in Albany. The fallen firefighters memorial selection
committee shall amend its election criteria so that it is not in
conflict with the provisions of this section.
Training; live fire conditions. 1. In the training of
firefighters under live fire conditions no person or persons shall play
the role of a victim.
2. For purposes of this section, a live fire condition is any
unconfined open flame or device that can propagate fire to a building, a
training tower, an acquired structure or other combustible material.
3. A violation of this section shall be punishable by a civil penalty
not to exceed one thousand dollars paid for by the fire department
conducting such training.
Training for fire chiefs. The state fire administrator may
conduct the training and education required for fire chiefs pursuant to
subdivision seven of section fifty-eight-a of the civil service law and
section two hundred four-dd of the general municipal law with sufficient
frequency to enable individuals to satisfy the necessary qualifications
for a fire chief pursuant to such section. To the extent practicable,
such training and education may be made available in all geographic
regions of the state. Such regions may be determined by the state fire
administrator.
ARTICLE 6-D Community Services Block Grant Program
Definitions. When used in this article:
1. "Eligible entity" shall mean any organization
(a) officially designated as a community action agency or a community
action program under the provisions of section two hundred ten of the
economic opportunity act of 1964 for fiscal year 1981, unless such
community action agency or a community action program lost its
designation under section two hundred ten of such act as a result of a
failure to comply with the provisions of such act; or
(b) designated by the process described in section one hundred
fifty-nine-m of this article (including an organization serving migrant
or seasonal farmworkers that is so described or designated).
Such eligible entity shall have a tripartite board as its governing
board which fully participates in the development, planning,
implementation, and evaluation of the program to serve low-income
communities and through which the entity shall administer the community
services block grant program. However, such eligible entities which are
public organizations shall have either a tripartite board or another
mechanism specified by the state to assure decision making and
participation by low-income individuals in the development, planning,
implementation, and evaluation of programs funded under this article.
2. "Tripartite board" shall mean
(a) the governing board of a private nonprofit entity selected by the
entity and composed so as to assure that
(1) one-third of the members of the board are elected public
officials, holding office on the date of selection, or their
representatives, except that if the number of such elected officials
reasonably available and willing to serve on the board is less than
one-third of the membership of the board, membership on the board of
appointive public officials or their representatives may be counted in
meeting such one-third requirement;
(2) (A) not fewer than one-third of the members are persons chosen in
accordance with democratic selection procedures adequate to assure that
these members are representative of low-income individuals and families
in the neighborhood served; and
(B) each representative of low-income individuals and families
selected to represent a specific neighborhood within a community under
clause (A) of this subparagraph resides in the neighborhood represented
by the member; and
(3) the remainder of the members are officials or members of business,
industry, labor, religious, law enforcement, education, or other major
groups and interests in the community served; or
(b) the governing board of a public organization, which shall have
members selected by the organization and shall be composed so as to
assure that not fewer than one-third of the members are persons chosen
in accordance with democratic selection procedures adequate to assure
that these members
(1) are representative of low-income individuals and families in the
neighborhood served;
(2) reside in the neighborhood served; and
(3) are able to participate actively in the development, planning,
implementation, and evaluation of programs funded under this article.
3. "Indian tribes" and "tribal organizations" shall mean those tribes,
bands or other organized groups of Indians recognized in the state or
considered by the federal secretary of the interior to be an Indian
tribe or an Indian organization for any purpose.
4. "Community based organization" shall mean any organization
incorporated for the purpose of providing services or other assistance
to economically or socially disadvantaged persons within its designated
community. Such organization must have a board of directors of which
more than half of the members reside in such designated community.
5. "Department" shall mean the department of state.
6. "Secretary" shall mean the secretary of state.
Functions, powers and duties of the secretary. The secretary
or his duly authorized officers or employees, shall have the following
functions, powers and duties:
1. To act as the official agent of the state for the purpose of
administering, carrying out and otherwise cooperating with the federal
government in connection with the federal community services block grant
act of 1981, as amended;
2. To allocate federal community services block grant funds pursuant
to contracts with recipients of such funds in the manner required by
federal law and regulation;
3. To assist the governor in applying for the state's allocation under
the federal community services block grant act, including the
fulfillment of any planning requirements;
4. To cooperate with the legislature in conducting hearings required
by the federal community services block grant act; and
5. To monitor and evaluate the use of funds received by the state
pursuant to the federal community services block grant act.
Rules and regulations. The secretary shall promulgate rules
and regulations necessary to carry out the provisions of this article.
Limitation of administrative costs. Not more than five
percent of the community services block grant funds received by the
state shall be retained for administration at the state level.
Distribution of funds. At least ninety percent of the
community services block grant funds received by the state shall be
distributed pursuant to a contract by the secretary to eligible entities
as defined in subdivision one of section one hundred fifty-nine-e of
this article. Each such eligible entity shall receive the same
proportion of community services block grant funds as was the proportion
of funds received in the immediately preceding federal fiscal year under
the federal community services block grant program as compared to the
total amount received by all eligible entities in the state, under the
federal community services block grant program.
The secretary shall, pursuant to section one hundred fifty-nine-h of
this article, retain not more than five percent of the community
services block grant funds for administration at the state level.
The remainder of the community services block grant funds received by
the state shall be distributed pursuant to a contract by the secretary
in the following order of preference: a sum of up to one-half of one
percent of the community services block grant funds received by the
state to Indian tribes and tribal organizations as defined in this
article, on the basis of need; and to community based organizations.
Such remainder funds received by eligible entities will not be included
in determining the proportion of funds received by any such entity in
the immediately preceding federal fiscal year under the federal
community services block grant program.
Monitoring and evaluation. 1. The secretary shall monitor and
evaluate the use of community services block grant funds made available
pursuant to this article by the recipients of such funds in order to
evaluate the performance of such recipients. Evaluations shall include,
but not be limited to:
(a) determining the effectiveness of recipients' administrative
operations, organizational structure, planning and programming, self
evaluation, and general decision making; and
(b) reviewing the recipients' compliance with federal and state law
and regulation.
2. For purposes of evaluations conducted under this section,
recipients shall make available to the secretary, or any duly authorized
officer or employee of the department, appropriate books, documents,
papers and records for examination, copying or mechanical reproduction
on or off the premises of the recipient upon a reasonable request
therefor.
Decertification and reduction of entity shares. 1. Any
eligible entity that received funding in the previous federal fiscal
year through a community services block grant made under this article
shall not have its funding terminated under this article or reduced
below the proportional share of funding the entity received in the
immediately preceding federal fiscal year, as determined pursuant to
section one hundred fifty-nine-i of this article, unless, after
providing notice and an opportunity for a hearing on the record, the
state determines that cause exists for such termination or such
reduction, subject to review by the secretary of the United States
department of health and human services. For purposes of making a
determination that cause exists for:
(a) a funding reduction, the term "cause" shall include
(1) a statewide redistribution of funds provided through a community
services block grant under this article to respond to
(A) the results of the most recently available census or other
appropriate data;
(B) the designation of a new eligible entity; or
(C) severe economic dislocation; and
(2) the failure of an eligible entity to comply with the terms of an
agreement or a state plan, or to meet a state requirement, as described
in this section; or
(b) a termination, the term "cause" includes the failure of an
eligible entity to comply with the terms of an agreement or a state
plan, or to meet a state requirement, as described in this section.
2. If the state determines, on the basis of a final decision in a
review pursuant to this article, that an eligible entity fails to comply
with the terms of an agreement or the state plan to provide services
under this article or to meet appropriate standards, goals, and other
requirements established by the state (including performance
objectives), the state shall:
(a) inform the entity of the deficiency to be corrected;
(b) require the entity to correct the deficiency;
(c) (1) offer training and technical assistance, if appropriate, to
help correct the deficiency, and prepare and submit to the secretary of
the United States department of health and human services a report
stating the reasons for the determination; or
(2) if the state determines that such training and technical
assistance are not appropriate, it shall prepare and submit to the
secretary of the United States department of health and human services a
report stating the reasons for the determination;
(d) (1) at the discretion of the state (taking into account the
seriousness of the deficiency and the time reasonably required to
correct the deficiency), allow the entity to develop and implement and
submit to the state, within sixty days after being informed of the
deficiency, a quality improvement plan to correct such deficiency within
a reasonable period of time, as determined by the state; and
(2) not later than thirty days after receiving from an eligible entity
a proposed quality improvement plan pursuant to subparagraph one of this
paragraph, either approve such proposed plan or specify the reasons why
the proposed plan cannot be approved; and
(e) after providing adequate notice and an opportunity for a hearing,
initiate proceedings to terminate the designation of or reduce the
funding under this article of the eligible entity unless the entity
corrects the deficiency.
3. A determination to terminate the designation or reduce the funding
of an eligible entity pursuant to subdivision two of this section is
reviewable by the secretary of the United States department of health
and human services, pursuant to the processes set forth in the federal
community services block grant act of 1981, as amended.
Designation and redesignation of eligible entities in
unserved areas. 1. Qualified organization in or near area. (a) In
general. If any geographic area of the state is not, or ceases to be,
served by an eligible entity under this article, and if the governor
decides to serve such area, the governor may solicit applications from,
and designate as an eligible entity
(1) a private nonprofit organization (which may include an eligible
entity) that is geographically located in the unserved area, that is
capable of providing a broad range of services designed to eliminate
poverty and foster self-sufficiency, and that meets the requirements of
this article; and
(2) a private nonprofit eligible entity that is geographically located
in an area contiguous to or within reasonable proximity of the unserved
area and that is already providing related services in the unserved
area.
(b) Requirement. In order to serve as the eligible entity for the
area, an entity described in subparagraph two of paragraph (a) of this
subdivision shall agree to add additional members to the board of the
entity to ensure adequate representation
(1) in each of the three required categories described in paragraph
(a) of subdivision two of section one hundred fifty-nine-e of this
article, by members that reside in the community comprised by the
unserved area; and
(2) in the category described in subparagraph two of paragraph (a) of
subdivision two of section one hundred fifty-nine-e of this article, by
members that reside in the neighborhood to be served.
2. Special consideration. In designating an eligible entity under
subdivision one of this section, the governor shall grant the
designation to an organization of demonstrated effectiveness in meeting
the goals and purposes of this article and may give priority, in
granting the designation, to eligible entities that are providing
related services in the unserved area, consistent with the needs
identified by a community-needs assessment.
3. No qualified organization in or near area. If no private, nonprofit
organization is identified or determined to be qualified under
subdivision one of this section to serve the unserved area as an
eligible entity the governor may designate an appropriate political
subdivision of the state to serve as an eligible entity for the area. In
order to serve as the eligible entity for that area, the political
subdivision shall have a tripartite board or other mechanism as required
in section one hundred fifty-nine-e of this article.
Report of the secretary. The secretary of state shall report
to the governor and the legislature by March fifteenth of each year on
the administration of the community services block grant program. The
report shall include, but not be limited to, the results of the
monitoring and evaluation of recipients of funds under the program and
any recommendation for changes which the secretary of state deems
necessary for the effective administration of the program.
ARTICLE 6-E State Certified and Licensed Real Estate Appraisers
Application. This article applies to the profession of real
estate appraisers and the use of the titles "state certified real estate
appraiser" and "state licensed real estate appraiser".
Definitions. As used in this article the following terms
shall mean:
1. "Analysis" is a study of real estate or real property other than
estimating value.
2. "Appraisal" or "real estate appraisal" means an analysis, opinion
or conclusion relating to the nature, quality, value or utility of
specified interests in, or aspects of, identified real estate. An
appraisal may be classified by subject matter into either a valuation or
an analysis.
3. "Appraisal report" means any written communication of an appraisal.
4. "Board" means the state board of real estate appraisal established
pursuant to the provisions of section one hundred sixty-c of this
article.
5. (a) "Certified appraisal" or "certified appraisal report" means an
appraisal or appraisal report given or signed and certified as such by a
certified real estate appraiser. When identifying an appraisal or
appraisal report as "certified", the state certified real estate
appraiser must indicate which type of certification is held. A certified
appraisal or appraisal report represents to the public that it meets the
appraisal standards defined in this article.
(b) "Licensed appraisal" or "licensed appraisal report" means an
appraisal or appraisal report given or signed and authenticated as such
by a licensed real estate appraiser. A licensing appraisal or appraisal
report represents to the public that it meets the appraisal standards as
prescribed by the board.
6. (a) "State certified real estate appraiser" means a person who
develops and communicates real estate appraisal and who holds a current,
valid certificate issued to him or her for either general or residential
real estate under the provisions of this article.
(b) "State licensed real estate appraiser" means a person who develops
and communicates real property appraisals and who holds a current valid
license issued to him or her for residential real property under the
provisions of this article.
(c) "State licensed real estate appraiser assistant" means a person
who assists and is supervised by a state certified real estate appraiser
and who holds a current valid license issued to him or her under the
provisions of this article.
7. "Department" shall mean the department of state.
8."Real estate" means an identified parcel or tract of land, including
improvements, if any.
9. "Real property" means one or more defined interests, benefits and
rights inherent in the ownership of real estate.
10. "Valuation" is an estimate of the value of real estate or real
property.
Use of the title "state certified real estate appraiser" or
"state licensed real estate appraiser" or "state licensed real estate
appraiser assistant". 1. Only a person certified under this article
shall use the title "state certified real estate appraiser" or licensed
under this article shall use the title "state licensed real estate
appraiser" or "state licensed real estate appraiser assistant" or assume
that title or any title, designation or abbreviation likely to create
the impression of certification or license by this state as a real
estate appraiser or real estate appraiser assistant. After December
thirty-first, nineteen hundred ninety-one, only a person who is
certified or licensed pursuant to this article shall describe or refer
to any appraisal or other evaluation of real estate located in this
state by the term "certified" or "licensed".
2. Nothing in this article shall preclude a person who is not a state
certified or licensed real estate appraiser or a licensed real estate
appraiser assistant from appraising real estate for compensation.
State board of real estate appraisal. 1. There is hereby
established within the department of state a state board of real estate
appraisal which shall consist of nine members, three of whom shall be
public members and six of whom shall be real estate appraisers, who
shall have and exercise the powers of the board as set forth in section
one hundred sixty-d of this article.
2. Three members shall be appointed by the governor, one of whom shall
be a public member; two members shall be appointed by the temporary
president of the senate, one of whom shall be a real estate appraiser
and one of whom shall be a public member; two members shall be appointed
by the speaker of the assembly, one of whom shall be a real estate
appraiser and one of whom shall be a public member; one member shall be
appointed by the minority leader of the senate; one member shall be
appointed by the minority leader of the assembly. The term of each
member shall be five years.
3. Notwithstanding the foregoing, the members of the first board who
are real estate appraisers, need not be certified or licensed under this
article prior to their appointment to the board. The board shall appoint
an executive secretary who shall be a real estate appraiser.
4. The executive secretary and real estate appraiser members first
appointed to the board shall be certified designated members in good
standing of a nationally recognized real estate appraisal organization
that as of June first, nineteen hundred eighty-nine, required appraisal
experience, education and testing in order to become a designated
member, in addition to adherence to standards of professional practice
in order to retain such designation. Each real estate appraiser member
of the board appointed after January first, nineteen hundred ninety-six,
must be a state certified real estate appraiser. At least one-half of
the appraiser members appointed after January first, nineteen hundred
ninety-six, shall hold the general appraisal certificate. Any vacancy
occurring on the board shall be filled within sixty days of its
occurrence, in the same manner as the member whose vacancy is being
filled was appointed. A person appointed to fill a vacancy occurring
other than by expiration of a term shall be appointed for the unexpired
term of the member he succeeds. No person shall serve as a member of
the board for more than two consecutive terms. The public members of the
board shall not be engaged in the practice of real estate appraising.
Powers of the board. 1. The board shall adopt rules and
regulations in aid or furtherance of this article and shall have the
following powers and duties:
a. To define, with respect to each category of state certified real
estate appraisers, state licensed real estate appraisers, and state
licensed real estate appraiser assistants, the type of educational
experience, appraisal experience and equivalent experience that will
meet the statutory requirements of this article, provided, however, that
in no event shall the experience, education and examination requirements
adopted by the board be less than the minimum criteria established by
the Appraisal Subcommittee of the Federal Financial Institutions
Examination Council or by the Appraiser Qualification Board of the
Appraisal Foundation as referred to in title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989;
b. To establish examination specifications consistent with the
standards of the Appraisal Qualifications Board of the Appraisal
Foundation for state licensed real estate appraiser assistants, state
licensed real estate appraisers and each category of state certified
real estate appraisers, to provide or procure appropriate examination
questions and answers and to establish procedures for grading
examinations;
c. To define, with respect to state licensed real estate appraiser
assistants, state licensed real estate appraisers and each category of
state certified real estate appraisers, the continuing education
requirements for the renewal of a license or a certification that will
meet the statutory requirements provided in this article;
d. To review the standards for the development and communication of
real estate appraisals provided in this article and to adopt regulations
explaining and interpreting such standards, provided, however, that such
standards must, at a minimum, conform to the uniform standards of
professional appraisal as promulgated by the Appraisal Standards Board
of the Appraisal Foundation; and
e. To prescribe the scope of practice for state licensed real estate
appraiser assistants, state licensed real estate appraisers and each
category of state certified real estate appraisers, provided, however,
that in no event shall the scope of practice prescribed by the board be
less than the scope of practice established by the Appraisal
Subcommittee of the Federal Financial Institutions Examination Council
or by the Appraiser Qualification Board of the Appraisal Foundation as
referred to in title XI of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989;
f. To perform such other functions and duties as may be necessary in
carrying out the provisions of this article.
2. The board shall promulgate rules and regulations prescribing the
form and content of each appraisal report. Such rules and regulations
shall include but are not limited to the following requirements:
a. Each appraisal report shall clearly and accurately disclose any
extraordinary assumption or limited condition that directly affects an
appraisal.
b. Each written appraisal report shall comply with the following
specific reporting guidelines:
(1) Identify and describe the real estate being appraised;
(2) Identify the real property being appraised;
(3) Define the opinion that is the purpose of the appraisal and
describe the scope of the appraisal;
(4) Set forth the effective date of the opinion and the date of the
appraisal report;
(5) Set forth the appraiser's opinion of the highest and best use of
the real estate being appraised when such an opinion is necessary and
appropriate;
(6) Set forth the appraisal procedure followed, the data considered
and the reasoning that supports the analyses, opinions and conclusions;
(7) Set forth all assumptions and limiting conditions that affect the
analyses, opinions and conclusions in the appraisal report; and
(8) Set forth any additional information that may be appropriate to
show compliance with, and identify permitted departures from, the
requirements for the development of appraisals as provided in this
article or as established by the board.
3. The board shall establish standards of developing an appraisal.
Such standards shall, among other things, state the following
guidelines:
a. All state certified or licensed real estate appraisers conducting
certified or licensed appraisals, performing appraisal service or
issuing an appraisal shall:
(1) Be aware of, understand and correctly employ those recognized
appraisal methods and techniques that are necessary to produce a
credible analysis, opinion or conclusion;
(2) Not commit a substantial error or omission of commission which
results from a significant departure from the recognized appraisal
methods and techniques;
(3) Not commit a substantial error or omission of commission that
significantly affects an analysis, opinion or conclusion;
(4) Identify the real estate and real property under consideration,
define the opinion that is the purpose of the appraisal, consider the
scope of the appraisal service and identify the effective date of the
opinion;
(5) Identify and consider the appropriate procedures and market data
required to perform the appraisal service, where appropriate;
(6) Consider the effect on use and value of the following factors:
existing land use regulations, reasonably probable modifications of land
use regulations, economic demand, the physical adaptability of the
property, neighborhood trends and the highest and best use of the
property;
(7) Consider the effect on the property being appraised of anticipated
public or private improvements, located on or off the site, to the
extent that market actions reflect the anticipated improvements as of
the effective appraisal date;
(8) Recognize that land may be appraised as though vacant and avail-
able for development and that the appraisal of improvements is based on
their actual contributions to the site;
(9) Appraise proposed improvements only after examining and having
available for future examination plans, specifications or other
documentation sufficient to identify the scope and character of the
proposed improvements, evidence indicating the probable time of
completion of the proposed improvements, and reasonably clear and
appropriate evidence supporting development costs, anticipated earnings,
occupancy projections and the anticipated competition at the time of
completion; and
(10) Base estimates of anticipated future rent and expenses for the
real estate and real property being appraised on reasonably clear and
appropriate evidence.
b. In addition to the foregoing, an appraiser shall define the value
being considered. If the value estimate is a statement or estimate of
market value, he or she shall clearly indicate whether the statement or
estimate is the most probable price in terms of cash or financial
arrangements equivalent to cash or other terms as may be precisely
defined. If an estimate of value is based on submarket financing or
financing with unusual conditions or incentives, the terms of such a
typical financing shall be clearly set forth, their contributions to, or
negative influence on value shall be described and estimated, and the
market data supporting the valuation estimate shall be described and
explained.
c. For each real property appraisal analysis, opinion or conclusion
that contains an estimate of value, a state certified or licensed real
estate appraiser shall observe all of the following specific real
property appraisal guidelines:
(1) Consider whether an appraised fractional interest, physical
segment or partial holding contributes pro rata to the value of the
whole;
(2) Identify any personal property or other items that are not real
estate but are included with or considered in connection with real
estate being appraised and contribute to the total value estimate or
conclusion;
(3) Consider and analyze any current agreement of sale, option or
listing of the real estate and real property being appraised, if the
information is available to the person in the normal course of business;
(4) Consider and analyze any prior sales of the property being
appraised that occurred within one year;
(5) When estimating the value of a leased fee estate or a leasehold
estate, analyze and consider the effect on value, if any, of the terms
and conditions of the lease; and
(6) Give careful consideration to the effect on value, if any, of the
assemblage of the various estates or component parts of an estate and
refrain from estimating the value of the whole solely by adding together
the individual values of its various estates or component parts.
d. In developing a review appraisal, a state certified or licensed
real estate appraiser shall observe all of the following specific
appraisal guidelines:
(1) Identify the appraisal report being reviewed, the real estate
being appraised, the real property being appraised, the effective date
of the opinion in the original report, the date of the original report
and the date of the review;
(2) Identify the scope of the review process to be conducted,
including a determination of whether or not it is appropriate or
essential to inspect the appraised property and the data presented;
(3) Form an opinion as to the adequacy and relevance of the data used
and the propriety of any adjustment made;
(4) Form an opinion as to whether or not the appraisal methods and
techniques used were appropriate and, if not, the reasons for the
person's disagreement with the original appraisal; and
(5) Form an opinion as to whether or not the analyses, opinions or
conclusions in the report being reviewed are correct or appropriate and,
if not, state his or her analyses, opinions or conclusions and his or
her reasons for disagreement with the original appraisal.
e. In developing an appraisal for an employer or a client, a state
certified or licensed real estate appraiser shall carefully consider and
determine whether the appraisal service to be performed is intended to
result in an analysis, opinion or conclusion of a disinterested third
party and therefore would be classified as an appraisal assignment as
defined in subdivision two of section one hundred sixty-x of this
article. If the appraisal service to be performed is not intended to
result in an analysis, opinion or conclusion of a disinterested third
party, the person shall then carefully consider whether or not he or she
would be perceived by third parties or the public as acting as a
disinterested third party.
f. Prior to entering into an agreement to perform a real property
appraisal service, a state certified or licensed real estate appraiser
shall carefully consider the knowledge and experience that will be
required to complete the appraisal service competently and either:
(1) Have the knowledge and experience necessary to complete the
appraisal service competently; or
(2) Immediately disclose the lack of knowledge or experience to the
client and take all steps necessary to complete the appraisal service
competently.
g. A state certified or licensed real estate appraiser may enter into
an agreement to perform a real property appraisal service that calls for
something less than, or different from, the work that would otherwise be
required by the specific appraisal guidelines, provided that prior to
entering into the agreement, he or she has done all of the following:
(1) The state certified or licensed real estate appraiser has
determined that the appraisal service to be performed is not so limited
in scope that the resulting analysis, opinion or conclusion concerning
real estate or real property would tend to mislead or confuse the
client, the users of the appraisal report or the public; and
(2) The state certified or licensed real estate appraiser has advised
the client that the appraisal service calls for something less than, or
different from, the work required by the specific appraisal guidelines,
and therefore the appraisal report will include a qualification that
reflects the limited or differing scope of the appraisal service.
Powers of the department. The department shall have the
following powers and duties:
1. To receive applications for certification and licensing;
2. To establish the administrative procedures for processing
applications for certification and licensing;
3. To approve or disapprove applications for certification or license
and issue certificates or licenses;
4. To maintain a registry of the names and addresses of people
certified or licensed under this article;
5. To retain records and all application materials submitted to it;
6. To approve courses and seminars for original certification or
licensing and continuing education to ensure that the same are
consistent with the standards established by the board, or equivalent to
those required by such standards;
7. To assist the board in such other manner as the board may request;
8. To establish administrative procedures for disciplinary proceedings
conducted pursuant to the provisions of this article; and
9. To suspend and revoke certificates or licenses or impose fines
pursuant to the disciplinary proceedings provided for in this article.
Fees. 1. The department shall charge and collect fees not in
excess of the following:
a. An application fee for certification and licensing of two hundred
fifty dollars.
b. An examination fee of fifty dollars.
c. A reexamination fee of fifty dollars.
d. A fee for recertification or renewal of license of two hundred
fifty dollars.
e. A delinquent renewal fee of two hundred dollars.
2. Notwithstanding any other law, the department may transmit an
annual registry fee as set by the federal appraisal subcommittee in
accordance with 12 U.S.C. 3338 (a)(4)(A) from such individuals who
perform or seek to perform appraisals in federally related transactions
and to transmit a roster of such individuals to the Appraisal
Subcommittee of the Federal Financial Institutions Examination Council
as required by Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989.
3. All fees collected under this section shall be paid into the
business and licensing services account established pursuant to section
ninety-seven-y of the state finance law.
Certification and licensing process. 1. Applications for
original certification and recertification, original license and renewal
of license, and examinations shall be made in writing to the department
on forms approved by the board.
2. The fees, as fixed by the department pursuant to section one
hundred sixty-f of this article, must accompany all applications for
original certification and recertification, original license and renewal
of license, and examination.
3. At the time of filing an application for certification or license,
each applicant shall sign a pledge to comply with the standards set
forth in this article and state that he or she understands the types of
misconduct for which disciplinary proceedings may be initiated against a
state certified real estate appraiser, or a state licensed real estate
appraiser, as set forth in this article.
Licenses and certifications. 1. There shall be one class of
license for state licensed real estate appraiser assistants, one class
of license for state licensed real estate appraisers and two classes of
certification for state certified real estate appraisers. The classes of
certification shall be state certified residential real estate appraiser
and state certified general real estate appraiser. The board shall
prescribe the scope of practice for each license and both classes of
certification, provided, however, that in no event shall the scope of
practice prescribed by the board be less than the minimum criteria
established by the Appraisal Subcommittee of the Federal Financial
Institutions Examination Council or by the Appraiser Qualification Board
of the Appraisal Foundation as referred to in title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989.
2. The application for original certification and recertification or
original license and renewal of license, and examination shall specify
whether it is for a license or certification being applied for and
previously granted. If the application is for a license or renewal, it
shall specify for what class of license the application is being made.
If the application is for a certification or recertification, it shall
specify for what class of certification the application is being made.
Examination requirement. An original certification as a state
certified real estate appraiser or an original license as a state
licensed real estate appraiser shall not be issued to any person who has
not demonstrated through a written examination process that he or she
possesses the following:
1. Appropriate knowledge of technical terms commonly used in or
related to real estate appraising, appraisals, report writing and
economic concepts applicable to real estate;
2. Understanding of the principles of land economics, real estate
appraisal processes, and of problems likely to be encountered in
gathering, interpreting and processing of data in carrying out appraisal
disciplines;
3. Understanding of the standards for the development and
communication of real estate appraisals as provided in this article;
4. Knowledge of theories of depreciation, cost estimating, methods of
capitalization, and the mathematics of real estate appraisal that are
appropriate for the classification of certificate applied for;
5. Knowledge of other principles and procedures as may be appropriate
for the respective classifications;
6. Basic understanding of real estate law; and
7. Understanding of the types of misconduct for which disciplinary
proceedings may be initiated against a state certified real estate
appraiser or a state licensed real estate appraiser, as set forth in
this article.
Examination prerequisites. 1. Certified general
classification. As a prerequisite to taking the examination for
certification as a state certified general real estate appraiser, an
applicant shall present evidence satisfactory to the board that he or
she has fulfilled the minimum education and experience requirements for
such certification examination as established by the board, which shall
not be less than the minimum criteria established by the Appraiser
Qualification Board pursuant to Title XI of the Financial Institution
Reform, Recovery and Enforcement Act of 1989.
2. Certified residential classification. As a prerequisite to taking
the examination for certification as a state certified residential real
estate appraiser, an applicant shall present evidence satisfactory to
the board that he or she has fulfilled the minimum education and
experience requirements for such certification examination as
established by the board, which shall not be less than the minimum
criteria established by the Appraiser Qualification Board pursuant to
Title XI of the Financial Institution Reform, Recovery and Enforcement
Act of 1989.
3. Licensed classification. As a prerequisite to taking the
examination for licensing as a state licensed real estate appraiser, an
applicant shall present evidence satisfactory to the board that he or
she has fulfilled the minimum education and experience requirements for
such certification examination as established by the board, which shall
not be less than the minimum criteria established by the Appraiser
Qualification Board pursuant to Title XI of the Financial Institution
Reform, Recovery and Enforcement Act of 1989.
Experience requirement. 1. An original certification of a
state certified real estate appraiser, or an original license of a state
licensed real estate appraiser, shall not be issued to any person who
does not possess the equivalent of two years of appraisal experience in
real property appraisal as defined by the board supported by adequate
written reports. Such experience may include fee and staff appraisal, ad
valorem tax appraisal, review appraisal, appraisal analysis, highest and
best use analysis, feasibility analysis or study, and teaching of
appraisal courses at a university, college, or junior college when such
courses have a duration of not less than ten weeks.
2. A person who is not a state certified real estate appraiser under
this article may assist a state certified real estate appraiser in the
preparation of an appraisal, provided that he or she is actively and
personally supervised by the state certified real estate appraiser and
provided that any appraisal report is reviewed and signed by the
supervising state certified appraiser.
3. Each applicant for certification or license shall furnish under
oath a detailed listing of the real estate appraisal reports for each
year for which experience is claimed by the applicant. Upon request, the
applicant shall make available to the department for examination, a
sample of appraisal reports which the applicant has prepared in the
course of his or her appraisal practice.
4. No state certified real estate appraiser shall supervise more than
three licensed real estate appraiser assistants.
Terms of registration. The term of a certificate or license
issued under the authority of this article shall be two years from the
date of issuance. The expiration date of the certificate or license
shall appear on the certificate or license and no other notice of its
expiration need be given to its holder.
Nonresident certification and licensing. 1. Every applicant
for certification or licensing under this article who is not a resident
of this state shall submit, with the application for certification or
license, an irrevocable consent that service of process upon him or her
may be made by delivery of the process to the secretary of state if, in
an action against the applicant in a court of this state arising out of
the applicant's activities as a state certified real estate appraiser,
or a state licensed real estate appraiser, the plaintiff cannot, in the
exercise of due diligence, effect personal service upon the applicant.
2. When a nonresident of this state, certified or licensed under the
laws of his resident state, the certification and licensing process of
which has not been disapproved by the appraisal subcommittee of the
federal financial institutions examination council, does not maintain an
office for providing appraisal services to clients in this state, and
has complied with subdivision one of this section, such nonresident may,
upon recommendation of the board, pursuant to such temporary licensing
rules or regulations as the board may promulgate, provide certified or
licensed appraisals. No temporary certificate or license shall be valid
for a duration greater than one year after the date of issue. Any person
performing, or seeking to perform, federally related appraisals shall be
liable for, and pay, all fees, rated proportionately, which would apply
to such person were he or she a resident of this state.
3. A nonresident of this state who has complied with subdivision one
of this section, but who does not qualify for treatment under
subdivision two of this section, may obtain a certificate as a state
certified real estate appraiser or a license as a state licensed real
estate appraiser by conformity to all the provisions of this article
relating to state certified or licensed real estate appraisers.
4. The board shall recognize on a temporary basis the certification or
license of an appraiser issued by another state pursuant to section 1122
of Title XI of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub. Law. No. 101-73, 103 Stat. 183 (1989)
(codified at 12 U.S.C. 331 et seq.).
Nonresident certification and licensing by reciprocity. If,
in the determination of the board, the certification or licensing
process has not been disapproved by the appraisal subcommittee of the
federal financial institutions examination council, an applicant who is
certified under the laws of such other state may obtain a certificate as
a state certified real estate appraiser or a license as a state licensed
real estate appraiser in this state upon such terms and conditions as
may be determined by the department.
Renewal certificate or license. 1. a. To obtain a
recertification as a state certified real estate appraiser, or a renewal
of license as a state licensed real estate appraiser, the holder of a
current, valid certificate or license shall make application and pay the
prescribed fee to the department not earlier than one hundred twenty
days nor later than thirty days prior to the expiration date of the
certificate or license then held. With the application for
recertification or renewal of license, the state certified real estate
appraiser or state licensed real estate appraiser shall present evidence
in the form prescribed by the department of having completed the
continuing education requirements, if any, for renewal specified in this
article.
b. If the department determines that an applicant has failed to meet
the requirements for renewal of certification or licensing through
mistake, misunderstanding or circumstances beyond the control of the
applicant, the department may extend the term of the certificate or
license for a period not to exceed six months, upon payment by the
applicant of the prescribed fee for the extension.
c. If the applicant satisfies the requirements for renewal during the
extended term of certification or license, the beginning date of the new
renewal certificate or license shall be the day following the expiration
of the certificate or license previously held by the applicant.
2. If a person fails to renew a certificate as a state certified real
estate appraiser, or license as a state licensed real estate appraiser,
prior to its expiration or within a period of extension granted by the
department pursuant to this article, the person may obtain a
recertification or renewal of license by satisfying all of the
requirements for renewal and by the payment of a late renewal fee.
3. The license of a state licensed real estate appraiser assistant may
be renewed in accordance with the provisions of subdivisions one and two
of this section.
Basis for denial. The department may, in accordance with the
provisions of this article relating to hearings, deny the issuance of a
certificate as a state certified real estate appraiser, or license as a
state licensed real estate appraiser, or license as a state licensed
real estate appraiser assistant, to an applicant on any of the grounds
enumerated in this article.
Principal place of business. 1. Each state certified or
licensed real estate appraiser and each state licensed real estate
appraiser assistant shall advise the department of the address of his or
her principal place of business and all other addresses at which he or
she is currently engaged in the business of preparing or assisting with
the preparation of real property appraisal reports.
2. Change of name or address. Notice in writing in the manner and form
prescribed by the department shall be given the department at its
offices in Albany within ten days of a change of name or address of the
state certified or licensed real estate appraisers or of the state
licensed real estate appraiser assistants, except those made on a
recertification or renewal application. The fee for filing each change
of name or address notice shall be ten dollars.
Certificate or license. 1. A certificate or license issued
under authority of this article shall bear the signature of the
executive secretary of the board and a certificate or license number
assigned by the department.
2. Each state certified real estate appraiser shall place his or her
certificate number, and each licensed real estate appraiser shall place
his or her license number adjacent to or immediately below the title
"State Certified Residential Real Estate Appraiser", "State Certified
General Real Estate Appraiser" or "State Licensed Real Estate
Appraiser", respectively, when used in an appraisal report or in a
contract or other instrument used by the certificate or license holder
in conducting real property appraisal activities.
3. Duplicate licenses or certifications or pocket cards. In the case
of loss, destruction, or damage, the secretary of state may, upon
submission of a request in such form and manner as the department may
prescribe, issue a duplicate license or certification or pocket card
upon payment of a fee of ten dollars.
Use of term. 1. The title "state certified real estate
appraiser" may only be used to refer to individuals who hold the
certificate, and the title "state licensed real estate appraiser" may
only be used to refer to individuals who hold the license, and the title
"state licensed real estate appraiser assistant" may only be used to
refer to individuals who hold the license, and may not be used following
or immediately in conjunction with the name or signature of a firm,
partnership, corporation or group; or in such manner that it might be
interpreted as referring to a firm, partnership, corporation, group or
anyone other than an individual holder of the certificate or license.
2. No certificate or license shall be issued under the provisions of
this article to a corporation, partnership, firm or group. This shall
not be construed to prevent a state certified or licensed real estate
appraiser from signing an appraisal report on behalf of a corporation,
partnership, firm or group practice.
Continuing education. 1. As a prerequisite to recertification
or renewal of license, a certified or licensed real estate appraiser
shall present evidence satisfactory to the department of having met the
continuing education requirements, if any, pursuant to this article.
2. The basic continuing education requirement for recertification or
renewal of license shall be the completion by the applicant, during the
immediately preceding term of certification or license, of not less than
twenty-eight classroom hours of instruction in courses or seminars which
have received the approval of the department. Computer based and
distance learning courses may be approved by the department so long as
providers demonstrate the ability to monitor and verify participation by
the real estate appraiser for the specified time periods.
3. In lieu of meeting the requirements of subdivision two of this
section an applicant for recertification or renewal of license may
satisfy all or part of the requirements by presenting evidence of the
following:
a. Completion of an educational program of study determined by the
department to be equivalent, for continuing education purposes, to
courses approved by the department pursuant to subdivision two of this
section; or
b. Participation other than as a student in educational processes and
programs approved by the department which relate to real property
appraisal theory, practices or techniques, including, but not
necessarily limited to, teaching, program development and preparation of
textbooks, monographs, articles and other instructional materials.
4. The secretary of state or her duly appointed designee shall adopt
regulations upon recommendation by the board for implementations of the
provisions of this article to assure that persons renewing their
certifications as state certified real estate appraisers or licenses as
state licensed real estate appraisers have current knowledge of real
property appraisal theories, practices and techniques which will provide
a high degree of service and protection to those members of the public
with whom they deal in a professional relationship under authority of
the certification or license. The regulations shall prescribe the
following:
a. Policies and procedures for obtaining departmental approval of
courses of instruction pursuant to subdivision two of this section;
b. Standards, policies and procedures to be applied by the department
in evaluating applicant's claims of equivalency in accordance with
subdivision three of this section;
c. Standards, monitoring methods and systems for recording attendance
to be employed by course sponsors as a prerequisite to department
approval of courses for credit.
5. In adopting regulations pursuant to paragraph a of subdivision four
of this section, the board shall give favorable consideration to courses
of instruction, seminars and other real property appraisal educational
courses or programs previously or hereafter developed by or under the
auspices of professional appraisal organizations and utilized by those
associations for purposes of designation or indicating compliance with
the continuing education requirements of such organizations.
6. No amendment or repeal of a regulation adopted by the secretary of
state or her duly appointed designee pursuant to this section shall
operate to deprive a state certified real estate appraiser of credit
toward recertification, or a state licensed real estate appraiser of
credit toward renewal of license, for any course of instruction
completed by the applicant prior to the amendment or repeal of the
regulation which would have qualified for continuing education credit
under the regulation as it existed prior to the repeal or amendment.
7. A certification as a state certified real estate appraiser, or a
license as a state licensed real estate appraiser, that has been revoked
as a result of disciplinary action by the department shall not be
reinstated unless the applicant presents evidence of completion of the
continuing education required by this article. This requirement of
evidence of continuing education shall not be imposed upon any applicant
for reinstatement who has been required to successfully complete the
examination for state certified or licensed real estate appraiser as a
condition to reinstatement of certification or license.
8. The board shall prescribe the continuing education requirements for
licensed real estate appraiser assistants; provided, however, that in no
event shall such requirements be less than the minimum criteria
established by the Appraisal Subcommittee of the Federal Financial
Institutions Examination Council or by the Appraiser Qualification Board
of the Appraisal Foundation as referred to in title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989.
Disciplinary proceedings. 1. The rights of any holder under a
state certificate as a state certified real estate appraiser, or a
license as a state licensed real estate appraiser, may be revoked or
suspended, or the holder of the certification or license may be
otherwise disciplined in accordance with the provisions of this article,
upon any of the grounds set forth in this section. As an alternative or
in addition to such suspension or revocation, a fine not exceeding two
thousand dollars may be imposed on any holder of the certification or
license, provided that fifty percent of all moneys received by the
department of state for such fines shall be payable to the
anti-discrimination in housing fund established pursuant to section
eighty-a of the state finance law. The department may investigate the
actions of a state certified or licensed real estate appraiser, and may
sanction or otherwise discipline a certificate or license holder for any
of the following acts or omissions:
a. Procuring or attempting to procure a certificate or license
pursuant to this article by knowingly making a false statement,
submitting false information, refusing to provide complete information
in response to a question in an application for certification or license
or through any form of fraud or misrepresentation;
b. Failing to meet the minimum qualifications established by this
article;
c. Paying money other than provided for by this article to any member
or employee of the department to procure a certificate or license under
this article;
d. A conviction of a felony or a misdemeanor which is substantially
related to the qualifications, functions and duties of a person
developing real estate appraisals and communicating real estate
appraisals to others;
e. An act or omission involving dishonesty, fraud or misrepresentation
with the intent to substantially benefit the certificate or license
holder or another person or with the intent to substantially injure
another person;
f. Violation of any of the standards for the development or
communication of real estate appraisals as provided in this article;
g. Failure or refusal without good cause to exercise reasonable
diligence in developing an appraisal, preparing an appraisal report or
communicating an appraisal;
h. Negligence or incompetence in developing an appraisal, in preparing
an appraisal report, or in communicating an appraisal;
i. Willfully disregarding or violating any of the provisions of this
article or the regulations of the board for the administration and
enforcement of the provisions of this article;
j. Accepting an appraisal assignment as defined in section one hundred
sixty-x of this article, when the employment itself is contingent upon
the appraiser reporting a predetermined estimate, analysis or opinion,
or where the fee to be paid is contingent upon the appraiser reporting a
predetermined estimate, analysis or opinion, or where the fee to be paid
is contingent upon the opinion, conclusion or valuation reached, or upon
the consequences resulting from the appraisal assignment;
k. Violating the confidential nature of governmental records to which
he or she gained access through employment or engagement as an appraiser
by a governmental agency;
l. Entry of a final civil judgment against the person on grounds of
fraud, misrepresentation or deceit in the making of any appraisal of
real property; or
m. Violation of article fifteen of the executive law committed in his
or her capacity as a real estate appraiser.
2. In a disciplinary proceeding based upon a civil judgment, the
certified or licensed real estate appraiser shall be afforded an
opportunity to present matters in mitigation and extenuation, but may
not collaterally attack the civil judgment.
3. The provisions of subdivisions one and two of this section shall
also be applicable to licensed real estate appraiser assistants.
Due process. 1. Before suspending or revoking any
certification or license or imposing any fines on a holder of a
certification or license, the department shall notify the state
certified or licensed real estate appraiser or licensed real estate
appraiser assistant in writing of any charges made at least twenty days
prior to the date set for the hearing and shall afford such real estate
appraiser or such real estate appraiser assistant an opportunity to be
heard in person or by counsel.
2. The written notice may be served either personally or sent by
certified mail to the last known business address of the appraiser.
3. The department shall have the power to subpoena and issue subpoena
duces tecum and to take testimony by deposition, in the same manner as
prescribed by law in judicial proceedings in the courts of this state.
Hearing and judicial review. 1. The hearing on the charges
shall be at a time and place prescribed by the department.
2. If the department determined that a state certified or licensed
real estate appraiser or licensed real estate appraiser assistant is
guilty of a violation of any of the provisions of this article, it shall
prepare a finding of fact and recommend that such appraiser be
reprimanded, that their certification or license be suspended or
revoked, and/or indicate whether a fine shall be imposed. The decision
and order of the department shall be final.
3. Any final decision or order of the department in certifying or
denying certification or in recertification, or in licensing, denying
license, or in renewal of a license, under this article or in revoking
or suspending such certification or license or imposing any fine or
reprimand on the holder of such certification or license shall be
subject to review by a proceeding brought under and pursuant to article
seventy-eight of the civil practice law and rules at the insistence of
the applicant for such certification, the holder of the certificate or
license so revoked or suspended or the person fined, reprimanded or
otherwise aggrieved.
Classification of services. 1. A client or employer may
retain or employ a state certified or licensed real estate appraiser to
act as a disinterested third party in rendering an unbiased estimate of
value or analysis. A client or employer may also retain or employ a
state certified or licensed real estate appraiser to provide specialized
services to facilitate the client's or employer's objectives. In either
case, the appraisal and the appraisal report must comply with the
provisions of this article.
2. For the purposes of this article, the term "appraisal assignment"
means an engagement for which an appraiser is employed or retained to
act, or would be perceived by third parties or the public as acting, as
a disinterested third party in rendering an unbiased analysis, opinion
or conclusion relating to the nature, quality, value or utility of
specified interests in, or aspects of, identified real estate.
3. For the purposes of this article, the term "specialized services"
means those appraisal services which do not fall within the definition
of appraisal assignment. The term "specialized services" may include
valuation work and analysis work. Regardless of the intention of the
client or employer, if the state certified or licensed real estate
appraiser would be perceived by third parties or the public as acting as
a disinterested third party in rendering an unbiased analysis, opinion
or conclusion, the work is classified as an appraisal assignment and not
"specialized services".
Contingent fees. 1. A state certified or licensed real estate
appraiser may not accept a fee for an appraisal assignment as defined in
section one hundred sixty-x of this article, that is contingent upon the
appraiser reporting a predetermined estimate, analysis, or opinion or is
contingent upon the opinion, conclusion or valuation reached, or upon
the consequences resulting from the appraisal assignment.
2. A state certified or licensed real estate appraiser who enters into
an agreement to perform specialized services, as defined in section one
hundred sixty-x of this article, may be paid a fixed fee or a fee that
is contingent on the results achieved by the specialized services.
3. If a state certified or licensed real estate appraiser enters into
an agreement to perform specialized services for a contingent fee, this
fact shall be clearly stated in each written report. In each written
report, this fact shall be clearly stated in a prominent location in
such report and also in each letter of transmittal and in the
certification or authentication of the statements made by the appraiser
in such a report.
Retention of records. 1. A state certified or licensed real
estate appraiser shall retain for three years, originals or true copies
of all written contracts engaging his or her services for real property
appraisal work, and all reports and supporting data assembled and
formulated by the appraiser in preparing the reports.
2. Such period for retention of records is applicable to each
engagement of the services of the appraiser and shall commence upon the
date of the submittal of the appraisal to the client unless, within such
three year period, such appraiser is notified that the appraisal or
report is involved in litigation, in which event the three year period
for the retention of records shall commence upon the date of the final
disposition of such litigation.
3. All records required to be maintained under the provisions of this
article shall be made available by the state certified or licensed real
estate appraiser for inspection and copying by the board on reasonable
notice to such appraiser. All such records copied by the board shall be
kept confidential, except where disclosure of same is required by law or
mandate of a court.
Transitional licensing. Consistent with the intent and
purpose of this article, and without the disapproval of the appraisal
subcommittee of the federal financial institutions examination council,
the board may prescribe requirements for transitional licenses which
shall expire no later than January first, nineteen hundred ninety-three.
Severability. If any clause, sentence, paragraph, section or
part of this article shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, section, or part thereof directly
involved in the controversy in which such judgment shall have been
rendered.
ARTICLE 6-F New York Black Car Operators' Injury Compensation Fund, Inc
Definitions. As used in this article:
1. "Black car operator" means the registered owner of a for-hire
vehicle, or a driver designated by such registered owner to operate the
registered owner's for-hire vehicle as the registered owner's authorized
designee, whose injury arose out of and in the course of providing
covered services to a central dispatch facility that is a registered
member of the New York black car operators' injury compensation fund,
inc.
(a) For the purposes of the administration of this article, a black
car operator shall include a TNC driver that is engaged in a TNC
prearranged trip. For the purposes of this article, the terms "TNC
driver", "TNC prearranged trip" and "digital network" shall have the
same meanings as such terms are defined in article forty-four-B of the
vehicle and traffic law.
(b) For the purposes of the administration of this article, a black
car operator shall include a TNC driver that is logged onto a TNC
digital network and is not engaged in a TNC prearranged trip but is
engaged in an activity reasonably related to driving as a TNC driver
taking into consideration the time, place and manner of such activity.
2. "Board" means the workers' compensation board.
3. "Central dispatch facility" means a central facility, wherever
located, including a transportation network company, that (a) dispatches
the registered owners of for-hire vehicles, or drivers acting as the
designated agent of such registered owners, to both pick-up and
discharge passengers in the state, and (b) has certified to the
satisfaction of the department of state that more than ninety percent of
its for-hire business is on a payment basis other than direct cash
payment by a passenger; provided, however, that a central dispatch
facility shall not include any such central facility that owns fifty
percent or more of the cars it dispatches. For the purposes of
administration of this article, central dispatch facility shall include
TNC prearranged trip as defined in article forty-four-B of the vehicle
and traffic law.
4. "Covered services" means, with respect to dispatches from or by a
central dispatch facility located in the state, all dispatches from such
central dispatch facility regardless of where the pick-up or discharge
occurs, and, with respect to dispatches from or by a central dispatch
facility located outside the state, all dispatches involving a pick-up
in the state, regardless of where the discharge occurs.
5. "Department" means the department of state.
6. "Fund" means the New York black car operators' injury compensation
fund, inc.
7. "Fund liability date" means the earlier of: (a) the date as of
which the board first approves the fund's application to self-insure
pursuant to subdivision two of section one hundred sixty-ii of this
article, or (b) the date on which coverage commences under the initial
insurance policy purchased by the fund pursuant to subdivision three of
section one hundred sixty-ii of this article.
8. "Local licensing authority" means the governmental agency in the
state, if any, that is authorized to license a central dispatch
facility.
9. "Secretary" means the secretary of state.
10. "Transportation network company" or "TNC" shall have the same
meaning as the term is defined in article forty-four-B of the vehicle
and traffic law.
New York black car operators' injury compensation fund, inc.
There is hereby created a not-for-profit corporation to be known as the
New York black car operators' injury compensation fund, inc. To the
extent that the provisions of the not-for-profit corporation law do not
conflict with the provisions of this article, or with the plan of
operation established pursuant to this article, the not-for-profit
corporation law shall apply to the fund, which shall be a type C
corporation pursuant to such law. If an applicable provision of this
article or of the fund's plan of operation relates to a matter embraced
in a provision of the not-for-profit corporation law but is not in
conflict therewith, both provisions shall apply. The fund shall perform
its functions in accordance with its plan of operation established and
approved pursuant to section one hundred sixty-gg of this article and
shall exercise its powers through a board of directors established
pursuant to this article.
Supervision of central dispatch facilities. A central
dispatch facility shall, with respect to the provisions of this article,
be subject to the supervision and oversight of the department and the
local licensing authority, if any, as provided in this article.
Management of the fund; board of directors. 1. There shall
be appointed a board of directors of the fund, consisting of eleven
directors, six of whom shall be selected by the black car assistance
corporation; four of whom shall be chosen by the governor, including one
chosen upon the recommendation of the temporary president of the senate
and one chosen upon the recommendation of the speaker of the assembly;
one chosen to represent a transportation network company as defined by
article forty-four-B of the vehicle and traffic law; and one of whom
shall be the secretary, who shall serve ex officio. The governor shall
appoint the director chosen to represent a transportation network
company no later than December thirty-first, two thousand seventeen. The
terms of all directors other than the secretary shall be three years.
The board shall have the power to remove for cause any director other
than the secretary.
2. The directors shall elect annually from among their number a chair
and a vice chair who shall act as chair in the chair's absence.
3. For their attendance at meetings, the directors of the fund shall
be entitled to compensation, as authorized by the directors, in an
amount not to exceed two hundred dollars per meeting per director and to
reimbursement of their actual and necessary expenses.
4. Directors of the fund, except as otherwise provided by law, may
engage in private or public employment or in a profession or business.
5. (a) All of the directors shall have equal voting rights and five or
more directors shall constitute a quorum. The affirmative vote of five
directors shall be necessary for the transaction of any business or the
exercise of any power or function of the fund.
(b) The fund may delegate to one or more of its directors, officers,
agents or employees such powers and duties as it may deem proper.
(c) A vacancy occurring in a director position for which the governor
was the original appointing authority shall be filled by the governor,
upon the recommendation of the legislative official, if any, that was
authorized to recommend the original appointee pursuant to subdivision
one of this section. A vacancy occurring in a director position for
which the black car assistance corporation was the original appointing
authority shall be filled by the black car assistance corporation. A
vacancy in any one or more of the director positions shall not prevent
the remaining directors from transacting any business, provided a quorum
is present and voting.
(d) At the expiration of a director's term, the authority that
appointed such director pursuant to subdivision one of this section or
paragraph (c) of this subdivision shall re-appoint such director for an
additional term or appoint a new director for such subsequent term,
provided however that no individual may serve as director for more than
three successive terms.
Plan of operation. 1. Within seventy-five days of the
effective date of this article, the fund shall file with the department
its plan of operation, which shall be designed to assure the fair,
reasonable and equitable administration of the fund. The plan of
operation and any subsequent amendments thereto shall become effective
upon being filed with the department.
2. The plan of operation shall constitute the by-laws of the fund and
shall, in addition to the requirements enumerated elsewhere in this
article:
(a) establish procedures for collecting and managing the assets of the
fund;
(b) establish regular places and times for meetings of the fund's
board of directors;
(c) establish the procedure by which the fund shall determine whether
to provide the benefits due pursuant to this article by self-insuring or
by purchasing insurance;
(d) establish accounting and record-keeping procedures for all
financial transactions of the fund, its agents and the board of
directors;
(e) establish a procedure for determining and collecting the
appropriate amount of surcharges and assessments under this article;
(f) set forth the procedures by which the fund may exercise the audit
rights granted to it under this article;
(g) establish procedures to ensure prompt and accurate notification to
the fund by its members of all accidents and injuries to black car
operators, and provide for full reimbursement of the fund by any central
dispatch facility whose failure to provide such notification results in
the imposition of a penalty on the fund by the board; and
(h) contain such additional provisions as the board of the fund may
deem necessary or proper for the execution of the powers and duties of
the fund.
Membership in the fund; registration with the department. 1.
The membership of the fund shall be composed of all central dispatch
facilities. Each central dispatch facility shall be required, as a
condition of doing business within this state, to pay the department a
two hundred dollar annual fee for the purpose of registering as a member
of the fund and receiving a certificate of registration. Such sums shall
be used by the department for the administration of this article. The
initial registration fee shall be due no later than ninety days after
the effective date of this article. The department shall have the power
to assess an additional fee against each registrant in the amount
necessary to provide it with sufficient funds to cover its expenses in
performing its duties pursuant to this article. The department shall
provide the fund with an updated list of registrants on a monthly basis.
2. All central dispatch facilities shall be required, as a condition
of obtaining or retaining their license from the local licensing
authority, if any, to (a) be members of the fund; (b) be registered with
the department as members of the fund; and (c) submit to the local
licensing authority a copy of its certificate of registration as proof
of such membership and registration.
3. Within sixty days of the effective date of this article, the board
of the fund shall, on the basis of information from trade papers, local
licensing authorities and other sources, identify the central dispatch
facilities subject to this article and, on a regular and ongoing basis,
confirm that all such entities have registered in accordance with
subdivision one of this section.
4. The fund shall, within seventy-five days of the effective date of
this article, provide to its members a copy of the proposed plan of
operation filed with the department and shall inform its members of
their rights and duties pursuant to this article.
Securing of compensation. 1. Within two hundred ten days of
the effective date of this article, the fund shall secure the payment of
workers' compensation to all black car operators entitled thereto
pursuant to this chapter by either: (a) self-insuring in accordance with
subdivision three of section fifty of the workers' compensation law and
the rules promulgated by the board pursuant to such section or (b)
purchasing workers' compensation insurance covering, on a blanket basis,
all black car operators who are the fund's employees pursuant to section
two of the workers' compensation law.
2. If the fund initially seeks to apply to the board for authorization
to self-insure pursuant to subdivision three of section fifty of the
workers' compensation law, it shall submit its application and
accompanying proof to the board within one hundred fifty days of the
effective date of this article. The board shall notify the fund and the
secretary in writing of any change in the fund's status as a
self-insurer or of any additional requirements that the board may deem
necessary for continuation of such status.
3. If the fund chooses to secure the payment of workers' compensation
pursuant to the workers' compensation law by purchasing an insurance
policy from the state insurance fund or a, licensed insurer, it shall
file with the department no later than thirty days after the
commencement of a new policy year a copy of the policy it has purchased.
In such case, the department shall be treated by the insurer as a
certificate holder for purposes of receiving notice of cancellation of
the policy.
4. No provision of this article shall be construed to alter or affect
the liability under the workers' compensation law of any central
dispatch facility with respect to black car operators prior to the fund
liability date.
* 5. The fund shall have the authority to provide additional health
benefits, consistent with its plan of operation, for all black car
operators entitled thereto pursuant to this chapter, provided that the
fund shall have complied with all applicable statutory and regulatory
requirements. The surcharge amount not related to payments of workers'
compensation claims and the administration of those claims shall be up
to one-half of one percent (0.5%).
* NB Repealed December 20, 2028
Assessment of fund members; customer surcharges; audit
powers of the fund, the board and the fund's insurer. 1. To pay (a) the
costs of the insurance purchased pursuant to subdivision three of
section one hundred sixty-ii of this article or (b) the benefits due
under the workers' compensation law in the event the fund self-insures
pursuant to subdivision two of section one hundred sixty-ii of this
article, and to pay (c) its expenses in carrying out its powers and
duties under this article and (d) its liabilities, if any, pursuant to
section fourteen-a of the workers' compensation law, the fund shall
ascertain by reasonable estimate the total funding necessary to carry on
its operations.
2. Based upon its estimation of operating costs, the fund shall
establish a proposed uniform percentage surcharge to be added to (a) the
invoices or billings for covered services sent to the customers of the
fund's members by a member or its agent and (b) the credit payments for
covered services received by a member or its agent. The proposed
surcharge shall become effective thirty days after being filed with the
department. Notwithstanding the foregoing, beginning on the first day of
the first calendar month that shall commence at least seventy-five days
after the effective date of this article, and until the fund shall have
filed with the department a different surcharge amount, a three percent
surcharge shall be added to every invoice or billing for covered
services sent by a member or its agent to, and every credit payment for
covered services received by a member or its agent from, the customers
of the fund's members. Each member of the fund shall be liable for
payment to the fund of an amount equal to the product of (i) the
percentages surcharge due pursuant to this article, divided by one
hundred and (ii) all payments received by the member or its agent for
covered services from the member's customers, as provided in this
subdivision, regardless of whether the surcharge was billed or charged.
3. No local licensing authority or the department or the New York
state department of motor vehicles shall issue, continue or renew any
license or registration certificate, or permit for the operation of any
central dispatch facility unless such central dispatch facility, as a
condition of maintaining its license and/or registration certificate,
adds the surcharge required by this section to every invoice and billing
for covered services sent to, and every credit payment for covered
services received from, its customers and pays to the fund no later than
the fifteenth day of each month the total surcharges due pursuant to
this article.
4. Each central dispatch facility shall submit to the fund with its
monthly payment a detailed accounting of the charge and surcharge
amounts charged to and received from customers for covered services
during the previous month. The first such payment and accounting shall
be due on the fifteenth day of the month following the imposition of the
surcharge pursuant to subdivision two of this section.
5. Should the fund determine that the surcharge amounts that have been
paid to it are inadequate to meet its obligations under this article, it
shall determine the surcharge rate required to eliminate such deficiency
and shall file such revised surcharge rate with the department in
accordance with subdivision two of this section. Commencing thirty days
after such filing, the members of the fund shall charge the revised
surcharge rate and shall pay to the fund the total amount of surcharges
in accordance with this article.
6. The fund shall have the power directly or through its agent to
conduct financial audits of its members to verify their compliance with
the requirements of this article. The fund or its agent shall be
afforded convenient access at all reasonable hours to all books, records
and other documents of its members that may be relevant to such audits.
7. For the purposes of conducting payroll audits, an insurer providing
coverage to the fund pursuant to this article may treat the members of
the fund as policyholders. Members of the fund shall be required to do
all things required of employers pursuant to section one hundred
thirty-one of the workers' compensation law, and shall be required to
provide the board access to any and all records and information as
otherwise required by the workers' compensation law and the regulations
promulgated thereunder, and shall be liable as provided in the workers'
compensation law for any failure so to do.
Financial oversight of the fund. No later than May first of
each year, the fund shall submit to the governor and legislature
certified financial statements prepared in accordance with generally
accepted accounting principles by a certified public accountant. The
members of the fund shall be required on and after January first of each
year to afford the certified public accountant convenient access at all
reasonable hours to all books, records and other documents, including
but not limited to invoices and vouchers, necessary or useful in the
preparation of such statements and in the verification of the monthly
statements submitted to the fund.
Exemption from taxes. The fund shall be exempt from payment
of all fees and taxes levied by this state or any of its subdivisions,
except taxes levied on real property.
Liability insurance. The fund shall purchase such insurance
as is necessary to protect the fund and any director, officer, agent or
other representative from liability for their administration of the
fund, and shall, to the extent permitted by law, indemnify such
directors, officers, agents or other representatives and hold them
harmless from liability for their administration of the fund.
Regulations. The department shall adopt regulations
implementing the provisions of this article, including the conduct and
notice of hearings held pursuant to section one hundred sixty-oo of this
article.
Violations; penalties; appeals. 1. (a) If the secretary
believes a violation of this article by a fund member may have occurred,
the secretary shall notify the local licensing authority of such fact
and, upon notice to the fund member, a hearing shall be held by such
local licensing authority to determine whether such violation occurred.
In the absence of a local licensing authority, or if the local licensing
authority chooses not to hold such hearing, the hearing shall be held by
the secretary.
(b) If the fund believes that a central dispatch facility has failed
to pay the fund the assessments due pursuant to this article, or has
failed to pay the reimbursement due pursuant to paragraph (g) of
subdivision two of section one hundred sixty-gg of this article, it
shall make a referral to the a local licensing authority, or, in the
absence of a local licensing authority, to the department. Upon receipt
of such a referral, the local licensing authority or the department
shall be required to hold a hearing pursuant to paragraph (a) of this
subdivision.
2. Except as otherwise provided in this section, a fund member that is
found, after a hearing held pursuant to subdivision one of this section,
to have violated a provision of this article, or a rule promulgated by
the department pursuant to this article, shall be liable for a fine in
an amount not to exceed ten thousand dollars per violation.
Notwithstanding the foregoing, a fund member that fails to bill or that
collects and fails to submit to the fund the required surcharges shall
be subject, in addition to payment to the fund of the amount overdue
plus interest on such amount as herein provided, to a penalty, at the
discretion of the local licensing authority, if any, or, in the absence
of such authority, of the department, of (a) up to five thousand dollars
for each twenty days the payment is overdue, or (b) revocation of its
membership in the fund and of its certificate of registration, or (c)
both a monetary penalty and revocation of its membership in the fund and
of its certificate of registration. The rate of interest applicable
pursuant to this section shall be twelve percent per annum. Any monetary
penalty imposed pursuant to this subdivision shall be retained by the
department or the local licensing authority and be used to defray the
costs of administering this article. The responsible persons, of a
central dispatch facility that are found, after a hearing held pursuant
to subdivision one of this section, to be in default to the fund for
assessments owed pursuant to this article, shall be personally liable
for the amount of such assessments determined to be then due and
outstanding, including interest on such assessments awarded pursuant to
this subdivision, and for all monetary penalties imposed pursuant to
this subdivision.
"Responsible persons," for purposes of this subdivision, include: (i)
the directors of a central dispatch facility that is a corporation; (ii)
the managers of a central dispatch facility that is a limited liability
company or its members if management of the central dispatch facility is
vested in its members; (iii) the general partner or partners of a
central dispatch facility that is a partnership; (iv) all individuals
who directly or indirectly own, control or hold the power to vote ten
percent or more of the voting interests of any corporation, joint stock
company, partnership, association, trust, limited liability company or
similar entity that manages a central dispatch facility; and (v) the
president, secretary and treasurer of a central dispatch facility,
regardless of its form of organization.
Failure of the central dispatch facility, or of its responsible
persons to pay any assessments or penalties awarded pursuant to this
subdivision within twenty days of issuance of a valid order so to do, or
in the event an appeal has been taken from the determination of the
department or the local licensing authority, to deposit with the
secretary or the local licensing authority within twenty days of the
issuance of the determination from which the appeal is taken the total
amount of the award as security for its payment, shall entitle the
secretary or the local licensing authority to file with the clerk of
Albany county a certified copy of the determination of the department or
local licensing authority, and thereupon judgment shall be entered in
the supreme court by the clerk of Albany county in conformity therewith
immediately upon such filing. Such judgment shall be entered in the same
manner, have the same effect and be subject to the same proceedings as
though rendered in a suit duly heard and determined by the supreme
court, except that no appeal may be taken therefrom.
3. Within twenty days after issuance by the department or local
licensing authority of a determination adverse to a central dispatch
facility following a hearing held pursuant to subdivision one of this
section, an appeal may be taken therefrom to the appellate division of
the supreme court, third department, by the aggrieved central dispatch
facility. The attorney general shall represent the department or the
local licensing authority thereon.
ARTICLE 6-G Independent Livery Driver Benefit Fund
Definitions. For the purposes of this article:
1. "Independent livery driver" means a livery driver that is
dispatched by an independent livery base.
2. "Annualized basis" means the product of the number of livery
drivers affiliated with a dispatching livery base and the number of
months each such driver is affiliated with the livery base, divided by
twelve.
3. "Covered services" means all dispatches from a livery base
regardless of where the pick-up or discharge occurs.
4. "Fund" means the independent livery driver benefit fund as
established in this article.
5. "Independent livery base" has the same meaning as set forth in
section eighteen-c of the workers' compensation law.
6. "Livery" means a for-hire vehicle licensed by a local taxi and
limousine commission, carrying no more than five passengers or such
other limited number as set by a local taxi and limousine commission,
which charges for service on the basis of flat rate, time, mileage or
zones, and which is dispatched by a livery dispatch facility, but shall
not include a vehicle owned or driven by a black car operator, as
defined in article six-F of this chapter.
7. "Livery driver" means an individual that drives a livery, is
dispatched by a livery base, receives compensation for such driving, and
is licensed to do so by a local taxi and limousine commission.
8. "Livery base" means a central facility that manages, organizes or
dispatches liveries, and is licensed to do so by a local taxi and
limousine commission.
9. "Livery registrant" means a person in whose name a livery is
licensed by a local taxi and limousine commission.
10. "Local taxi and limousine commission" means a unit of local
government in New York city, Nassau county or Westchester county
authorized to license and regulate liveries.
Independent livery driver benefit fund. 1. There is hereby
created a not-for-profit corporation to be known as the New York
independent livery driver benefit fund. To the extent that the
provisions of the not-for-profit corporation law do not conflict with
the provisions of this article, or with the plan of operation
established pursuant to this article, the not-for-profit corporation law
shall apply to the fund, which shall be a type C corporation pursuant to
such law. If an applicable provision of this article or of the fund's
plan of operation relates to a matter embraced in a provision of the
not-for-profit corporation law but is not in conflict therewith, both
provisions shall apply. The fund shall perform its functions in
accordance with its plan of operation, and shall exercise its powers
through a board of directors established pursuant to this article.
2. Within thirty days of the effective date of this article, there
shall be appointed a board of directors of the fund, consisting of nine
directors appointed by the governor, one of whom shall be chosen upon
nomination of the temporary president of the senate; one of whom shall
be chosen upon nomination of the speaker of the assembly; one of whom
shall be chosen upon nomination of the chair of the workers'
compensation board; one of whom shall be chosen on nomination of the
superintendent of financial services; one of whom shall be chosen on
nomination of the American Federation of Labor-Congress of Industrial
Organizations of New York; and four of whom shall be chosen without
prior nomination, at least two of which shall be a livery registrant or
owner, officer or director of a livery base or livery registrant. The
initial terms of directors shall be staggered, the four directors
appointed by the governor without prior nomination serving for initial
terms of three years from the effective date of this article, the two
directors appointed upon nomination of the speaker of the assembly and
temporary president of the senate serving for initial terms of two years
from the effective date of this article, and the three directors on
nomination of the superintendent of financial services, the chair of the
workers' compensation board and the American Federation of
Labor-Congress of Industrial Organizations of New York serving for
initial terms of one year from the effective date of this article. The
subsequent terms of all directors shall be three years. The board of
directors shall have the power to remove for cause any director. The
failure of any nominating authority to appoint a director within the
time set by this subdivision shall not bar the fund from operating, so
long as at least six directors have been appointed.
3. The directors shall elect annually from among their number a chair
and a vice chair who shall act as chair in the chair's absence.
4. For their attendance at meetings, the directors of the fund shall
be entitled to compensation, as authorized by the directors, in an
amount not to exceed two hundred dollars per meeting per director and to
reimbursement of their actual and necessary expenses.
5. Directors of the fund, except as otherwise provided by law, may
engage in private or public employment or in a profession or business.
6. (a) All of the directors shall have equal voting rights and five or
more directors shall constitute a quorum. The affirmative vote of four
directors shall be necessary for the transaction of any business or the
exercise of any power or function of the fund.
(b) A vacancy occurring in a director position shall be filled in the
same manner as the initial appointment to that position, provided
however that no individual may serve as director for more than three
successive terms.
(c) The board of directors may:
(i) delegate to one or more of its directors, officers, agents or
employees such powers and duties as it may deem proper;
(ii) establish the procedure by which the fund shall determine how to
provide the benefits due pursuant to this article;
(iii) establish accounting and record-keeping procedures for all
financial transactions of the fund, its agents and the board of
directors;
(iv) establish a procedure for determining and collecting the
appropriate amount of assessments under and as consistent with this
article;
(v) set forth the procedures by which the fund may exercise the audit
rights granted to it under this article;
(vi) establish procedures to ensure prompt and accurate notification
to the fund by independent livery bases of all deaths of independent
livery drivers, and all injuries to livery drivers that resulted from a
crime for which there is a police report, and provide for full
reimbursement of the fund by any member whose failure to provide such
notification results in the imposition of a penalty on the fund by the
workers' compensation board;
(vii) recommend changes in the law or regulations governing workers'
compensation benefits with livery drivers; and
(viii) engage in such additional actions as the board of directors may
deem necessary or proper for the execution of the powers and duties of
the fund.
Contributions to the fund. Each independent livery base
shall be assessed an annual payment to the fund, to be set by the board
of directors no later than January first of each calendar year or such
other date as the board of directors may set consistent with, and as
necessary to effectuate, this article. The total amount of the payment
shall be determined by the fund as sufficient to provide it with total
assets equal to one hundred fifty percent of the cost of an insurance
policy issued under section one hundred sixty-ddd of this article, and
to provide for any administrative expense of the fund. Each independent
livery base's own share of such payments shall be determined by a
formula set by the board of directors, to be based on the number of
liveries affiliated with each livery base at the time the payments are
calculated, or such other measure set by the chair of the workers'
compensation board. Each independent livery base shall make the payments
assessed against it annually within thirty days of assessment. If it is
determined by the board of directors that there may be an insufficient
amount of money in the fund to purchase the requisite coverage or to pay
administrative expenses in a given year, the board of directors may
require each independent livery base to make an additional payment to
the fund based on the amount of its affiliated drivers on an annualized
basis or such other criteria as shall be established by the chair of the
workers' compensation board, except that no such payments shall be
assessed, such that the fund will have funds greater than necessary to
provide compensation under the workers' compensation law, to the extent
set forth in section one hundred sixty-ddd of this article for eighteen
months.
Use of the fund. Moneys deposited into the fund shall be
used to provide benefits under the workers' compensation law, by
purchase of a policy from the state insurance fund, or from a carrier
licensed to write workers' compensation insurance to the extent
permitted by section three thousand four hundred fifty-one of the
insurance law, for livery drivers dispatched by independent livery
bases, to provide benefits under the workers' compensation law for
deaths of livery drivers arising out of and in the course of providing
covered services, and all injuries arising out of and in the course of
providing covered services either: (1) resulting from a crime against
such livery driver as evidenced by a police report or (2) for the
following conditions: (a) the amputation or loss of an arm, leg, hand,
foot, multiple fingers, index finger, multiple toes, ear, or nose, (b)
paraplegia or quadriplegia, or (c) total and permanent blindness or
deafness. The provisions of the workers' compensation law shall govern
any application for and the receipt of such benefits.
Regulations. The chair of the workers' compensation board
may promulgate regulations necessary to effectuate the provisions of
this article.
Membership in the fund. 1. The membership of the fund shall
be comprised of all independent livery bases. If the workers'
compensation board or local taxi and limousine commission revokes a
livery base's authorization to act as an independent livery base, it
shall cease to be a member of the fund within thirty days. Such
revocation shall not entitle the livery base to the return of any moneys
deposited into the fund.
2. Each livery base shall be required, as a condition of obtaining or
retaining any license it receives to operate as a livery base from a
local taxi and limousine commission either: (a) to be a member of the
fund, to submit to the local taxi and limousine commission proof of such
membership and to maintain such records as the workers' compensation
board, state department of motor vehicles or local taxi and limousine
commission may direct in order to carry out the livery base's
responsibilities under this article, and as necessary to determine the
appropriate cost of compensation the fund must provide under the
workers' compensation law; or (b) to present proof to the local taxi and
limousine commission that it has secured compensation under the workers'
compensation law, to the extent required of employers, for all livery
drivers it dispatches.
3. Each local taxi and limousine commission shall supply the fund and
the workers' compensation board, at any such time as the fund or
workers' compensation board requests, a list of all liveries affiliated
with each livery base licensed by the commission.
4. The fund shall, within seventy-five days of the appointment of the
fund's board of directors, provide to its members a copy of the proposed
plan of operation filed with the workers' compensation board and all
local taxi and limousine commissions and shall inform its members of
their rights and duties pursuant to this article.
Plan of operation. 1. Within seventy-five days of the
appointment of the fund's board of directors, the fund shall file with
the workers' compensation board and local taxi and limousine commissions
its plan of operation, which shall be designed to assure the fair,
reasonable and equitable administration of the fund. The plan of
operation and any subsequent amendments thereto shall become effective
upon being filed with the workers' compensation board and all taxi and
limousine commissions.
2. The plan of operation shall constitute the by-laws of the fund and
shall, in addition to the requirements enumerated elsewhere in this
article:
(a) establish procedures for collecting and managing the assets of the
fund;
(b) establish regular places and times for meetings of the fund's
board of directors;
(c) establish accounting and record-keeping procedures for all
financial transactions of the fund, its agents and the board of
directors;
(d) establish a procedure for determining and collecting the
appropriate amount of assessments under this article; and
(e) contain such additional provisions as the board of directors of
the fund may deem necessary or proper for the execution of the powers
and duties of the fund.
Violations; penalties; appeals. 1. Any person that
knowingly submits a materially false statement on the affirmation
provided for in section eighteen-c of the workers' compensation law
shall be guilty of a class A misdemeanor. Any person that commits a
second or subsequent offense under this subdivision shall be guilty of a
class E felony.
2. The workers' compensation board or local taxi and limousine
commission may, upon its own motion or the application of a local taxi
and limousine commission or the independent livery fund, and upon notice
to the independent livery base, conduct a hearing as to the validity of
any affirmation filed under section eighteen-c of the workers'
compensation law, or to determine whether there has been any other
violation of this article. Should the workers' compensation board or
local taxi and limousine commission determine that the certification
contains any materially false statements, the workers' compensation
board may:
(a) revoke the livery base's authorization as an independent livery
base for a period of up to five years;
(b) impose a civil penalty of up to ten thousand dollars; and/or
(c) refer the independent livery base to the local taxi and limousine
commission for such additional sanction as it may impose under its rules
and regulations.
3. Any independent livery base which has been found on two separate
occasions, under subdivision two of this section, to have made a
materially false statement in its certification shall be permanently
barred from acting as an independent livery base.
4. If an independent livery base fails to submit to the independent
livery driver benefit fund any required charge, the workers'
compensation board or local taxi and limousine commission may order that
it pay into the fund, upon application of the fund and following notice
to the independent livery base (a) the amount overdue plus interest on
such amount, and/or (b) a penalty of up to five hundred dollars for each
thirty days after notice is given that the payment is overdue. The
workers' compensation board or local taxi and limousine commission may
suspend or revoke such livery base's authorization to act as an
independent livery base for failure to make such payment. The rate of
interest applicable to this subdivision shall be twelve percent per
annum. Any monetary penalty imposed pursuant to this subdivision shall
be retained by the workers' compensation board and be used to defray the
costs of administering this article.
5. If the workers' compensation board or local taxi and limousine
commission determines that any independent livery base has made any
material misrepresentations, or temporarily altered the affiliation of
any livery, livery driver or livery registrant, for the purpose of
reducing its payments into the fund, the workers' compensation board or
local taxi and limousine commission may suspend the livery base's
membership in the fund for a period of up to two years, and may impose a
penalty of up to five thousand dollars.
6. If the workers' compensation board or local taxi and limousine
commission determines that any independent livery base has coerced any
livery driver into making false statements or refraining from reporting
any violations of this article, the workers' compensation board or local
taxi and limousine commission may suspend the livery base's membership
in the fund for a period of up to two years, and may impose a penalty of
up to five thousand dollars.
7. Except as otherwise provided in this section, a livery base that is
found to have violated a provision of this article or a rule promulgated
by the workers' compensation board or local taxi and limousine
commission pursuant to this article shall be liable for a fine in an
amount not to exceed five thousand dollars per violation.
8. If the fund has reason to believe a violation of this article by a
fund member may have occurred, the fund shall notify the workers'
compensation board. Upon receipt of such a referral, the workers'
compensation board shall hold a hearing to determine the validity of the
charge, or refer the matter to the local taxi and limousine commission
for such determination.
9. The responsible persons of an independent livery base shall be
personally liable for the amount of any monetary penalties awarded
pursuant to this subdivision. "Responsible persons," for purposes of
this subdivision, shall be: (a) the directors of a livery base that is a
corporation; (b) the managers of a livery base that is a limited
liability company or its members if management of a livery base is
vested in its members; (c) the general partner or partners of a livery
base that is a partnership; (d) all individuals who directly or
indirectly own, control or hold the power to vote ten percent or more of
the voting interests of any corporation, joint stock company,
partnership, association, trust, limited liability company or similar
entity that manages a livery base; and (e) the president, secretary and
treasurer of a livery base, regardless of its form of organization.
10. Failure of the independent livery base, or of its responsible
persons, to pay any charges or penalties awarded pursuant to this
section within twenty days of issuance of a valid order so to do, or in
the event an appeal has been taken from the determination of the
workers' compensation board, to deposit with the workers' compensation
board within twenty days of the issuance of the determination from which
the appeal is taken the total amount of the award as security for its
payment, shall entitle the workers' compensation board or local taxi and
limousine commission to file with the clerk of Albany county or the
county where the local taxi and limousine commission is located a
certified copy of the determination of the workers' compensation board
or the local taxi and limousine commission, and thereupon judgment shall
be entered in the supreme court by the clerk of the county where the
determination is filed immediately upon such filing. Such judgment shall
be entered in the same manner, have the same effect and be subject to
the same proceedings as though rendered in a suit duly heard and
determined by the supreme court, except that no appeal may be taken
therefrom.
11. Within twenty days after issuance by the workers' compensation
board of a determination adverse to a livery base pursuant to this
section, an appeal may be taken therefrom to the appellate division of
the supreme court, third department, by the aggrieved party.
12. If the membership of an independent livery base in the independent
livery fund is suspended for failure to pay assessments under this
article, the livery base may make application for reinstatement only
upon payment of such assessments and such penalties and interest as the
local taxi and limousine commission or workers' compensation board has
imposed, or upon the agreement by the base and fund to a schedule for
such payment.
13. Any sanction imposed under this section shall be after notice to
the independent livery base and an opportunity for a hearing.
Insurance premiums. Nothing in this article or in the
provisions of the workers' compensation law pertaining to coverage of
livery drivers under this article shall be construed as limiting the
discretion of the state insurance fund, in providing coverage to the New
York independent livery driver benefit fund, inc., in choosing a premium
basis, rating plan or setting a rate to cover the risk posed by insuring
such fund.
ARTICLE 6-H Real Estate Appraisal Management Companies
Definitions. As used in this article, the following terms
shall have the following meanings:
1. "Appraisal" or "real estate appraisal" means an analysis, opinion
or conclusion relating to the nature, quality, value or utility of
specified interests in, or aspects of, identified real estate. An
appraisal may be classified by subject matter into either a valuation or
an analysis.
2. "Appraisal management company" or "AMC" means an individual or
business entity that:
(a) provides appraisal management services to creditors or to
secondary mortgage market participants, including affiliates;
(b) provides such services in connection with valuing a consumer's
real property as security for consumer credit transactions secured by a
consumer's principal dwelling; and
(c) within a given year, oversees an appraisal panel of more than
fifteen appraisers working in New York state or twenty-five or more
appraisers working in two or more states. An AMC shall not include a
department or division of an entity that provides appraisal management
services only to that entity.
3. "Appraisal management services" means to, directly or indirectly,
provide any of the following services on behalf of a lender, financial
institution, client, or any other person in connection with valuing a
consumer's principal dwelling as security for a consumer credit
transaction or incorporating such transactions into securitizations:
(a) administer an appraiser panel;
(b) recruit, retain or select appraisers;
(c) qualify or verify licensing or certification and negotiate fees
and service level expectations with persons who are part of an appraiser
panel;
(d) contract with appraisers to perform appraisal assignments;
(e) receive an order for an appraisal from one person, and deliver the
order for the appraisal to an appraiser that is part of an appraiser
panel for completion;
(f) manage the process of having an appraisal performed, including
providing administrative duties, such as receiving appraisal orders and
reports, submitting completed appraisal reports to creditors and
underwriters for services provided, and reimbursing appraisers for
services performed;
(g) track and determine the status of orders for appraisals;
(h) conduct quality control of a completed appraisal prior to the
delivery of the appraisal to the person that ordered the appraisal;
(i) provide a completed appraisal performed by an appraiser to one or
more clients; or
(j) compensate appraisers for services rendered.
An individual who hires an appraiser solely for his or her own
purposes, shall not be deemed an appraisal management company.
4. "Appraiser" means a person licensed or certified pursuant to
article six-E of this chapter.
5. "Appraiser panel" means a network, list or roster of licensed or
certified appraisers approved by the appraisal management company to
perform appraisals as independent contractors of the appraisal
management company.
6. "Appraisal review" means the act or process of developing and
communicating an opinion about the quality of another appraiser's work
that was performed as part of an appraisal assignment. Appraisal reviews
must be performed by a person who is certified as a real estate
appraiser pursuant to article six-E of this chapter.
7. "Board" means the state board of real estate appraisal which shall
advise the department, as necessary, on implementation of, and
enforcement of this article.
8. "Competent appraiser" means an appraiser that satisfies each
provision of the competency rule of the uniform standards of
professional appraisal practice for a specific appraisal assignment or
valuation service that the appraiser has received, or may receive, from
an appraisal management company.
9. "Controlling person" means:
(a) an owner, officer or director of an appraisal management company,
or an individual who holds an ownership interest of ten percent or more
of such company;
(b) an individual employed, appointed or authorized by an appraisal
management company that has the authority to enter into a contractual
relationship with other persons for the performance of appraisal
management services and has the authority to enter into agreements with
appraisers for the performance of appraisals; or
(c) an individual who possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of an
appraisal management company.
10. "Department" means the New York state department of state.
11. "Hybrid firm or entity" means an entity that hires both real
estate appraisers as employees to perform appraisals of real property,
and engage independent contractors to perform such appraisals. A hybrid
firm or entity shall be treated as an AMC for purposes of state
registration if it oversees more than fifteen real estate appraisers
completing valuation services in an individual state or twenty-five or
more real estate appraisers in two or more states within a given year.
The numerical calculation for a hybrid firm or entity should only
include real estate appraisers engaged as independent contractors.
12. "Person" means an individual, partnership, corporation, or any
other entity recognized under New York state law.
13. "Real estate" means an identified parcel or tract of land,
including improvements, if any.
14. "Real property" means the interest, benefits, and rights inherent
in the ownership of real estate.
15. "Uniform standards of professional appraisal practice" or "USPAP"
means the appraisal standards promulgated by the appraisal standards
board of the appraisal foundation.
16. "Secondary mortgage market participant" means a guarantor or
insurer of mortgage-backed securities, or an underwriter or issuer of
mortgage-backed securities. Secondary mortgage market participant only
includes an individual investor in a mortgage-backed security if that
investor also serves in the capacity of a guarantor, insurer,
underwriter, or issuer for such mortgage-backed security.
Registration required. It shall be unlawful for a person
to, directly or indirectly, engage or attempt to engage in business as
an appraisal management company, or to advertise or hold oneself out as
engaging in or conducting business as an appraisal management company
without first obtaining a certificate of registration issued by the
department under the provisions of this article.
Exemptions. The provisions of this article shall not apply
to any person that exclusively employs appraisers for the performance of
appraisals or to any appraisal management company that is a wholly-owned
subsidiary of a financial institution, which is regulated by the federal
financial institution regulatory agency. The registration provisions of
this article shall not apply to the state, any state agency or
authority, or any political subdivision of the state that employs
appraisers.
Forms. An applicant for a certificate of registration as
an appraisal management company shall submit an application on such
forms as prescribed by the department.
Denial of registration. The department may investigate the
good character of applicants for a certificate of registration under
this article and may deny the issuance of such certificate of
registration based upon lack of good moral character which may include,
but is not limited to, any of the grounds enumerated in this article.
For the purposes of this article, a non-substantive ground for denial,
revocation, or surrender of an appraiser's license should not be
construed as an automatic prohibition.
Expiration of license. A certificate of registration
granted by the department pursuant to this article shall be valid for a
period of two years from the date upon which it is issued.
Fees. 1. The department shall collect a fee of two hundred
fifty dollars for a certificate of registration issued or reissued under
the provisions of this article. Additionally, the department shall
assess twenty-five dollars for each appraiser added to an appraisal
management company's appraiser panel.
2. The department shall collect from each appraisal management company
seeking to be registered, the amount determined by the appraisal
subcommittee to be a national registry fee for each appraiser, that
performs appraisal services within New York on the appraiser panel of an
appraisal management company pursuant to Section 1109(a)(4) of the
federal Financial Institutions Reform, Recovery, and Enforcement Act of
1989 as amended by the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010. The department may transmit the annual registry
fee to the appraisal subcommittee. The department shall provide its
roster of appraisal management companies to the appraisal subcommittee.
These transmittals shall occur at least annually.
3. Except for changes made on a renewal application, appraisal
management companies shall provide the department with notice of a
change in the appraisal management's principal address. Change of
address notifications shall be accompanied by a fee of ten dollars.
4. Except for changes made on a renewal application, the department
shall collect a fee of ten dollars for changing a name on a certificate
of registration.
5. In lieu of the fee set forth in subdivision one of this section,
the department shall collect a fee of three hundred fifty dollars to
reissue a certificate of registration under this article which was
submitted after the expiration of the immediately preceding registration
term.
Owner requirements. An appraisal management company
applying for a certificate of registration shall not be owned in whole
or in part, directly or indirectly, by a person who has had a license,
registration or certificate to act as a real estate appraiser denied,
revoked, or surrendered in lieu of pending discipline in any state or by
a person holding ten percent or more of the company where that person
has had a license, registration or certificate to act as a real estate
appraiser denied, revoked, or surrendered in lieu of possible discipline
in any state.
Controlling persons. 1. Each appraisal management company
applying for a certificate of registration shall designate one
controlling person who shall be the main contact for all communication
between the department and the appraisal management company. Such
designated controlling person shall never have had a license or
certificate to act as an appraiser denied, revoked, or surrendered in
lieu of possible discipline in any state and shall be of good moral
character, as determined by the department. Applicants shall cooperate
with any such background investigation conducted by the department.
2. Each person that owns more than ten percent of an appraisal
management company shall be of good moral character, as determined by
the department. Applicants shall cooperate with any such background
investigation conducted by the department.
3. Each appraisal management company applying for a certificate of
registration shall certify to the department that it has reviewed each
entity that owns more than ten percent of the appraisal management
company and that no entity that owns more than ten percent of the
appraisal management company is more than ten percent owned by any
person that has had a license or certificate to act as an appraiser
denied, revoked, or surrendered in lieu of a pending revocation.
Employee requirements. 1. An appraisal management company
that applies for a certificate of registration shall not knowingly
employ, utilize, or engage, for any real estate appraisal, valuation
service or appraisal review assignment, a person who has had a license
or certificate to act as an appraiser in this state or in any other
state denied, revoked, or surrendered in lieu of possible discipline,
unless such license has been reinstated.
2. Prior to placing an assignment for an appraisal or valuation
service with an appraiser on the appraiser panel of an appraisal
management company, the appraisal management company shall verify that
the appraiser receiving the assignment is a competent appraiser as
defined by the USPAP Competency Rule with regards to geographic area and
the type of property being appraised. An appraiser is deemed part of an
appraisal management company panel as of the earliest date on which: (a)
the appraisal management company accepts the appraiser for consideration
for future appraisal assignments in covered transactions or for
secondary mortgage market participants in connection with covered
transactions; or (b) engages the appraiser to perform one or more
appraisals on behalf of a creditor for a covered transaction or
secondary mortgage market participant in connection with covered
transactions.
3. An appraisal management company may not hire, employ or engage, or
in any way contract with or pay a person who is not licensed or
certified as a real estate appraiser by the department pursuant to
article six-E of this chapter for the purposes of performing an
appraisal as defined in this article. Nothing in this section shall
prohibit an appraisal management company from hiring, employing,
engaging or contracting with or paying a person to perform a property
inspection, or property evaluation if they are licensed as an appraiser,
a real estate broker including associate real estate brokers and real
estate salespersons pursuant to article twelve-A of the real property
law or a home inspector pursuant to article twelve-B of the real
property law, or a person to perform a broker price opinion if they are
licensed as a real estate broker including associate real estate brokers
and real estate salespersons pursuant to article twelve-A of the real
property law.
4. An appraiser shall be considered part of an appraisal management
company's appraiser panel until: (a) the appraisal management company
sends a written notice to such appraiser removing such appraiser with an
explanation; or (b) receives a written notice from such appraiser asking
to be removed or of the death or incapacity of such appraiser.
Restrictions. An appraisal management company that applies
for a certificate of registration shall not knowingly:
1. Employ any person in a position in which the person has the
responsibility to order appraisals or valuation services or to review
completed appraisals who has had a license, registration or certificate
to act as an appraiser in this state or in any other state, denied,
revoked, or surrendered in lieu of a pending revocation, unless such
license has been reinstated;
2. Enter into any independent contractor arrangement, whether in
verbal, written, or by other form, with any person who has had a
license, registration or certificate to act as an appraiser in this
state or in any other state, denied, revoked, or surrendered in lieu of
a pending revocation, unless such license has been reinstated; and
3. Enter into any contract, agreement, or other business relationship,
whether in verbal, written, or other form, with any entity that employs,
has entered into an independent contract arrangement, or has entered
into any contract, agreement, or other business relationship, whether in
verbal, written, or any other form, with any person who has ever had a
license, registration or certificate to act as an appraiser in this
state or in any other state, denied, revoked, or surrendered in lieu of
a pending revocation, unless such license has been reinstated.
Recordkeeping. Each appraisal management company shall
maintain a detailed record of each service request that it receives and
the real estate appraiser that performs such appraisal for the appraisal
management company. Records shall be maintained for a period of at least
five years after such appraisal is completed or two years after final
disposition of a judicial proceeding related to such assignment,
whichever period expires later. Appraisal management companies shall
make records available to the department upon request. Appraisal
management companies shall also allow the department to examine the
books and records of the appraisal management company and require it to
submit reports, information and documents upon request. Appraisal
management companies shall also allow the department to verify that the
appraisers on such panel hold a valid license or certification.
Appraiser independence; unlawful acts. Each appraisal
management company shall ensure that real estate appraisals are
conducted independently and free from inappropriate influence and
coercion. Notwithstanding any other provision of this article, it shall
be unlawful for any employee, director, officer, or agent of an
appraisal management company registered in this state pursuant to this
article to:
1. Compensate, coerce, extort, collude, instruct, induce, bribe, or
intimidate, or attempt to compensate, coerce, extort, collude, instruct,
induce, bribe, or intimidate a person, firm or other entity conducting
or involved in an appraisal for the purpose of causing the appraised
value assigned under the appraisal or other valuation services to the
property to be based on any factor other than the independent judgment
of the appraiser;
2. Mischaracterize the appraised value of a property in conjunction
with a consumer credit transaction;
3. Seek to influence an appraiser or otherwise to encourage a targeted
value in order to facilitate the making or pricing of a consumer credit
transaction;
4. Act without just cause to withhold or threaten to withhold timely
payment for an appraisal report or for other valuation services rendered
with such appraisal report or services provided in accordance with the
contract between parties;
5. Act without just cause to withhold or threaten to withhold future
business, or to demote or terminate an appraiser without just cause;
6. Expressly or implicitly promise future business, promotions, or
increased compensation for an appraiser in exchange for the real estate
appraiser inflating or deflating his or her appraised value of real
property;
7. Require a real estate appraiser to indemnify an appraisal
management company or hold an appraisal management company harmless for
any liability, damage, losses, or claims arising out of the services
performed by such appraisal management company, and not the services
performed by the appraiser;
8. Condition the request for an appraisal or the payment of an earned
fee, salary or bonus, on the opinion, conclusion, or valuation to be
reached, or on a preliminary estimate or opinion requested from an
appraiser;
9. Request that an appraiser provide an estimated, predetermined, or
desired valuation in an appraisal report, or provide estimated values or
comparable sales at any time prior to the appraiser's completion of an
appraisal;
10. Provide to an appraiser an anticipated, estimated, encouraged, or
desired value for a subject property or a proposed or target amount to
be loaned to the borrower, except that a copy of the sales contract for
purchase transactions may be provided; or
11. Provide to an appraiser, or any entity or person related to the
appraiser, stock or any other financial or non-financial benefits in
exchange for appraising property in a manner other than that which is
within the independent opinion of the appraiser.
Nothing in this section shall be construed as prohibiting the
appraisal management company from asking an appraiser to consider
additional, appropriate property information, including: additional
comparable properties to make or support an appraisal; provide further
detail, substantiation, or explanation for the appraiser's value
conclusion; or correct errors in the appraisal report.
Mandatory reporting. An appraisal management company that
has a reasonable basis to believe an appraiser within the appraisal
management company's appraisal panel is failing to comply with the
uniform standards of professional appraisal practice, is violating
applicable laws, or is otherwise engaging in unethical or unprofessional
conduct shall immediately refer such matter to the department.
Unprofessional conduct. 1. Appraisal management companies
shall not engage in unprofessional conduct including, but not limited to
the following:
(a) Requiring an appraiser to modify any aspect of an appraisal report
or valuation service report, unless such modifications are appropriate
according to USPAP;
(b) Requiring an appraiser to prepare an appraisal report or valuation
service report if such appraiser, in their professional judgment,
believes they don't have the necessary expertise for the specific
geographic and or specific area type;
(c) Requiring an appraiser to prepare an appraisal report or valuation
service under a time frame that such appraiser believes, in their
professional judgment, does not afford such appraiser the ability to
meet all the relevant legal and professional obligations including USPAP
requirements. Notwithstanding the foregoing provisions of this
paragraph, all appraisal reports should be completed within a reasonable
timeframe and appraisers may not unnecessarily delay completing
appraisal assignments;
(d) Prohibiting or inhibiting communication between the appraiser and
the lender, a real estate licensee, or any other person from whom such
appraiser, in their professional judgment is relevant;
(e) Requiring the appraiser to do anything that does not comply with
USPAP, or any assignment conditions and certifications required by the
client;
(f) Making any portion of the appraiser's fee or the appraisal
management company's fee contingent upon a favorable outcome, including,
but not limited to, the closing of a loan, requiring a specific dollar
amount be achieved by such appraiser in the appraisal report, making
requests for the purpose of facilitating a mortgage loan transaction,
setting a broker price opinion, or setting any other real property price
or value estimation that does not qualify as an appraisal; or
(g) Each appraisal management company operating in this state shall
make payment to an appraiser for the completion of an appraisal or
valuation assignment within thirty days of the date on which such
appraiser transmits or otherwise provides the completed appraisal or
valuation services to the appraisal management company or its assignee;
2. It shall be unlawful for an appraisal management company to:
(a) Knowingly fail to compensate an appraiser at a rate that is
reasonable and customary for appraisal or other valuation services being
performed in the market area of the property being appraised without the
services of an appraisal management company in a manner that is either
inconsistent with, or would violate section 1639(e) of the federal Truth
in Lending Act (15 USC §1639(e));
(b) Knowingly include any fees for appraisal management services that
are performed by the appraisal management company for a lender, client,
or other person in the amount that it charges the lender, client, or
other person for the actual completion of an appraisal or valuation
service by an appraiser that is part of the appraiser panel of the
appraisal management company;
(c) Knowingly fail to separate any and all fees charged to a client by
the appraisal management company for the actual completion of an
appraisal by an appraiser from the fees charged to a lender, client, or
any other person by an appraisal management company for appraisal
management services;
(d) Knowingly prohibit an appraiser from recording the fee that such
appraiser was paid by the appraisal management company for the
performance of the appraisal within the appraisal report that is
submitted by such appraiser to the appraisal management company;
(e) Knowingly fail to separately state the fees paid to an appraiser
for appraisal services and the fees charged by the appraisal management
company for services associated with the management of the appraisal
process to the client, borrower and any other payer. Appraisal
management companies shall provide a copy of the appraiser's invoice
with a copy of any appraisal report submitted to a client or a client's
representative;
(f) Knowingly allow the removal from rotation of an appraiser from an
appraiser panel, without prior written notice to such appraiser with
just cause; or
(g) Knowingly obtain, use, or pay for a second or subsequent appraisal
or the ordering of an automated valuation model or any other valuation
service in connection with a mortgage financing transaction unless there
is a reasonable basis to believe that the initial appraisal was flawed
or tainted and such basis is clearly and appropriately noted in the loan
file, or unless such appraisal or automated valuation model is done
pursuant to a bona fide pre- or post-funding appraisal review or quality
control process. Nothing in this paragraph shall prohibit an AMC from
obtaining additional appraisals if required by a lending program, or if
such additional appraisals are required by applicable local, state, or
federal law.
Alteration of appraisal reports. An appraisal management
company shall not alter, modify, or otherwise change a completed
appraisal or valuation service report submitted by an appraiser by
removing such appraiser's signature or seal or by adding information to,
or removing information from such report with intent to change the
valuation conclusion. An appraisal management company shall not require
an appraiser to provide such appraisal management company with such
appraiser's digital signature or seal.
Enforcement. The department may revoke or suspend the
license of an appraisal management company, or in lieu thereof may
impose a fine, per violation, not to exceed twenty-five thousand dollars
if the department finds that the licensee has made a material
misstatement in the application for such license, or if such licensee
has been found guilty of fraud or fraudulent practices, or for dishonest
or misleading advertising, or has demonstrated untrustworthiness or
incompetency to act as an appraisal management company, or has violated
any provision of this article or a regulation promulgated thereunder.
The department shall report any such violations by appraisal management
companies to the appraisal subcommittee.
Disciplinary hearings. The department shall, before
revoking or suspending any license or imposing any fine or reprimand on
the holder thereof, and at least twenty days prior to the date set for
the hearing, notify, in writing, the holder of such license of any
charges made and shall afford such licensee an opportunity to be heard
in person or by counsel in reference thereto. Such written notice may be
served by personal delivery to the licensee, or by certified mail to the
last known business address of such licensee or unlicensed person, or by
any method authorized by the civil practice law and rules. The hearing
on such charges shall be at such time and place as the department shall
prescribe.
Power to suspend a license. In cases where the health,
safety, or welfare of the public is endangered, the department shall
have the authority to immediately suspend a license pending a hearing
before an administrative law judge.
Investigation. The department shall have the power to
enforce the provisions of this article and upon complaint of any person,
or on its own initiative, to investigate any violation thereof or to
investigate the business, business practices and business methods of an
appraisal management company, if in the opinion of the department such
investigation is warranted. Each such applicant or licensee shall be
obliged, on request of the department, to supply such information as may
be required concerning his or its business, business practices or
business methods, or proposed business practices or methods.
For the purpose of enforcing the provisions of this article, and in
making investigations relating to any violation thereof, and for the
purpose of investigating the character, competency and integrity of the
applicants or licensees hereunder, and for the purpose of investigating
the business, business practices and business methods of any applicant
or licensee, or of the officers or agents thereof, the department,
acting by such officer or person in the department as the secretary of
state may designate, shall have the power to subpoena and bring before
the officer or person so designated any person in this state and require
the production of any books, records or papers which he deems relevant
to the inquiry and administer an oath to and take testimony of any
person or cause his or her deposition to be taken, except that any
applicant or licensee or officer or agent thereof shall not be entitled
to fees and/or mileage. A subpoena issued under this section shall be
regulated by the civil practice law and rules.
Rule-making authority. The department may adopt rules not
inconsistent with the provisions of this chapter which may be reasonably
necessary to implement, administer, and enforce the provisions of this
chapter.
Violations. 1. Any person or company who fails to obtain a
certificate of registration required pursuant to this article shall be
guilty of a misdemeanor.
2. Criminal actions for failure to obtain a certificate of
registration may also be prosecuted by the attorney general, or his or
her deputy, in the name of the people of the state, and in any such
prosecution the attorney general, or his or her deputy, may exercise all
the powers and perform all the duties the district attorney is otherwise
authorized to exercise or to perform therein.
Severability. Should the courts of this state declare any
provision of this article unconstitutional, or unauthorized, or in
conflict with any other section or provision of this article, such
decision shall affect only such section or provision so declared to be
unconstitutional or unauthorized and shall not affect any other section
or part of this article.
Judicial review. The actions of the department in granting
or refusing to grant or to renew a license under this article or in
revoking or suspending such a license or imposing any fine or reprimand
on the holder thereof or refusing to revoke or suspend such a license or
impose any fine or reprimand shall be subject to review by a proceeding
brought under and pursuant to article seventy-eight of the civil
practice law and rules at the instance of the applicant for such
license, the holder of a license so revoked, suspended, fined, or
reprimanded or the person aggrieved.
ARTICLE 7 Miscellaneous Provisions
Certain searches, the filing of papers, and certified copies,
ordered by state officers to be gratuitous. 1. Each of the following
officers, to wit: the secretary of state, the comptroller, the
commissioner of taxation and finance, the attorney general, the public
service commission, the commissioner of agriculture and markets, the
commissioner of transportation, the industrial commissioner, the
chairman of the state labor relations board, the chairman of the state
liquor authority, the superintendent of financial services, the state
commissioner of human rights, the commissioner of general services and
the commissioner of housing and community renewal may require search to
be made, in the office of any of the others, or of a county clerk or of
the clerk of a court of record, for any record, document, or paper,
where he or she deems it necessary for the discharge of his or her
official duties, and a copy thereof, or extracts therefrom, to be made
and officially certified or exemplified, without the payment of any fee
or charge.
2. No salaried officer of any city, county, or court, of this state,
or any public officer who is required by law to deposit the fees
collected in his office into any city or county treasury, shall be
entitled to receive from said state officers, or from a division or
bureau of said state officers, any fee for entering, filing, docketing,
registering or recording any paper, record or document required by law
to be filed in the office of any such city, county, court, or public
officer, or for a certified copy, transcript or extract of any paper,
document or record on file in such office which he deems necessary for
the discharge of his official duties, and every such officer must, upon
application therefor, furnish to said state officers, or a division or
bureau of said state officers, for such official use, a certified copy,
extract or transcript of any paper, record or document on file in such
office without the payment of the fee prescribed by law therefor; nor
shall any court clerk demand or receive from any of said state officers,
or from a division or bureau of said state officers, any trial or jury
fee upon filing in any court in this state a note of issue or demand for
a jury trial.
3. Such salaried officer shall also furnish the services herein
specified to any state department or a bureau or agency thereof acting
as an agent of the state in the acquisition of real property, without
the payment of any fee or charge.
Contracts for professional services of state and municipal
employees. Notwithstanding any inconsistent provision of law, general,
special or local, the state and any municipal subdivision thereof and
any department, bureau, board, commission, authority or any other agency
or instrumentality of the state or any municipal subdivision thereof,
are hereby severally authorized and empowered to enter into any contract
or arrangement with the United States of America or any office,
department, agency or instrumentality thereof for the performance at
cost by engineers, architects, draftsmen and chemists employed by the
state or such municipal subdivision, upon such terms and conditions as
may be mutually agreed upon, of any project or work authorized by or
pursuant to any act of congress or the cost of which has been provided
for by an appropriation or contract authorization made by any act of
congress which involves or requires the professional services of such
employees. The making or performance of any such contract or arrangement
shall in no wise be deemed to affect or result in the impairment,
diminution or abridgment of the compensation, or any of the civil
service, retirement and other rights, privileges and immunities of any
employee engaged in the performance of any service thereunder.
Contracts for services of state agencies. 1. Notwithstanding
any inconsistent provision of law, general, special or local, the state
and any department, bureau, board, commission, authority, or any other
agency or instrumentality of the state, are hereby severally authorized
and empowered, subject to the approval of the governor, to enter into
any contract or agreement for the production of any goods, materials, or
equipment or the processing, reprocessing, altering or repair thereof,
deemed by the governor necessary or desirable to effectuate postwar
adjustments or defense effort, upon such terms and conditions as he may
approve.
2. Such contract or agreement may be made only with the United States
of America, or any office, department, agency or instrumentality
thereof, or with any person, firm or corporation engaged in the
production or supply of any goods, materials or equipment or the
processing, reprocessing, altering or repair thereof, for or for use,
directly or indirectly, by the United States of America, or any of its
agencies.
3. In the performance of any such contract or agreement any such
department, bureau, board, commission, authority, or any other such
agency or instrumentality of the state, is hereby authorized and
empowered to use any of the real or personal property of the state,
under its control and supervision and temporarily to employ or transfer
any of its personnel.
4. The making or performance of any such contract or agreement shall
in no wise be deemed to affect or result in the impairment, diminution
or abridgment of the compensation, or any of the civil service,
retirement and other rights, privileges and immunities of any employee
engaged in the performance of any service thereunder.
5. Any such contract or agreement shall provide for payment to the
state of compensation, price or other consideration which in no wise
shall be less than the compensation, price or other consideration
generally obtainable by private persons, firms or corporations for the
performance of similar contracts or agreements, provided the same is
reasonably ascertainable.
6. All moneys received on account of any contracts or agreements made
pursuant to this section or pursuant to the provisions of section
fifty-two-a of the New York state war emergency act prior to the repeal
thereof shall be received by the state and deposited in the special fund
provided for in section ninety-seven-a of the state finance law. The
moneys in such fund may be expended and used to defray the expenses
incidental to such contract or agreement in accordance with the terms
and conditions of such contract or agreement and to reimburse the
general fund of the state for any expenditures made in the first
instance for such purposes. Such moneys shall be paid out of such fund
on vouchers approved by the head of the department or agency, to which
any moneys may be allocated by the director of the budget, after audit
by and upon warrant of the comptroller.
Contracts with Green Thumb Environmental Beautification,
Incorporated. Each state department, agency, board, bureau, commission
or other unit performing governmental functions for the state, within
amounts appropriated therefor, may contract with Green Thumb
Environmental Beautification, Incorporated, a nonprofit organization
that is organized for the purpose of environmental beautification and
employs persons fifty-five years of age or older whose annual income
does not exceed: (1) two hundred fifty percent of the non-farm federal
poverty level applicable to a family of one (as defined and updated by
the federal department of health and human services) for an individual
living alone or in another person's home; or (2) four hundred percent of
the non-farm federal poverty level applicable to a family of one (as
defined and updated by the federal department of health and human
services) for a couple living alone or in another person's home. The
contract shall name the organization, the amount and manner of payments
for the service to be rendered, nature of such service, the rendering of
a verified account of the disbursements with verified or certified
vouchers therefor attached, a refund of any unused amount, and such
other conditions upon the use thereof as may be deemed proper.
Reports by and to the department. Each department, other than
the executive department, shall make an annual report to the governor
and legislature on or before the fifteenth day of May, for the preceding
calendar year. It shall contain such information concerning the
department and its several divisions, bureaus, offices, agencies and
institutions, and their activities and affairs, and such
recommendations, as the head of the department shall deem necessary or
proper, and any matters required by express provision of law to be
included in such report. A department also shall make such other and
special reports as the governor or either house of the legislature may
require. From time to time, the head of a department may require from
any board, commission or other body in the department or from any
subordinate officer or employee, division or bureau of the department,
or from any institution subject to the supervision of the department, or
from any agency of the department, such reports or information as such
head may deem necessary. Unless expressly authorized by the head of the
department, there shall be hereafter no separate report, annual or
otherwise, directly to the legislature or governor by any such board,
commission, body, officer, division, bureau, institution or agency
notwithstanding any existing provision of law authorizing or requiring
such report.
Report and publication economy regulations. 1. The
commissioner of the office of general services, in consultation with the
state comptroller, shall establish regulations providing for cost
savings in the printing and distribution of reports and other
publications by agencies, departments and authorities of the state. To
the extent that such reports and publications do not relate to the
marketing or advertising of a service or product of the agency,
department or authority, such regulations shall at a minimum provide
that such reports and other publications:
(a) be as brief as may be practicable;
(b) utilize uncoated recyclable paper, of a size that will minimize
paper use and waste, for printing of text and cover;
(c) make limited use of photographs;
(d) be printed in no more than two colors, unless otherwise
specifically permitted by law, rule or regulation of the commissioner;
(e) not use covers unless such covers are necessary and appropriate
for the protection of the document;
(f) be distributed pursuant to a distribution list which is reviewed
at least annually to eliminate duplicate, excessive, unwanted and
obsolete mailings;
(g) be mailed in combination, to the extent practicable and when
possible, with mailing of other reports and publications;
(h) be eliminated or combined, to the extent practicable and when
possible, with other reports and publications.
2. Each agency or department shall, with its annual report, provide
the state comptroller with a list of printing cost estimates from all
sources, including in-house facilities, the office of general services
central reproduction unit, private printers and such other printing cost
information as may be required by the state comptroller.
3. Subdivision one of this section shall be implemented in a manner
that is consistent with the provisions of subdivisions five and six of
section three hundred fifty-five of the education law.
State aid to rural areas: agency reports. 1. Legislative
intent. The legislature hereby finds, declares and determines that:
(a) enhanced access to financial and technical assistance available
from state agencies is of great significance to rural communities;
(b) grants and other forms of state assistance are not always easily
attainable by rural areas with the greatest need;
(c) rural areas across the state continue to suffer from high levels
of unemployment and poverty, limited access to health care and other
human services, individual isolation, shortfalls in family income and
educational attainment, as well as the inability to undertake
infrastructure investment and business development;
(d) rural communities often lack sufficient expertise and staff to
prepare and process applications for aid, as well as address the
requirements associated with administration of any proceeds. This,
coupled with disproportionate competition with large metropolitan and
suburban communities for a diminishing number of grants often places a
rural community at a disadvantage when attempting to advance the
betterment of its citizens;
(e) improved awareness of the ways state agencies provide financial
and technical assistance would enhance opportunities for rural areas to
make use of such resources, strengthening their ability to respond to
modern challenges.
2. Definitions. For the purposes of this section, the following terms
shall have the following meanings:
(a) "Rural area" shall mean those portions of the state so defined by
subdivision seven of section four hundred eighty-one of this chapter;
(b) "State agency" shall mean the following: office for the aging,
department of agriculture and markets, office of alcoholism and
substance abuse services, department of economic development, department
of education, department of environmental conservation, environmental
facilities corporation, department of health, division of housing and
community renewal, job development authority, office of mental health,
office of parks, recreation and historic preservation, department of
social services, department of state, department of transportation,
urban development corporation, and the division for youth;
(c) "Set-aside" shall mean a direct commitment of financial and/or
technical assistance by state agencies specifically for rural areas as
herein defined;
(d) "Rural program development" means the systematic identification of
special service needs of rural areas by a state agency and the
utilization of said agency's financial, technical and other available
resources to help meet such need;
(e) "Rural advisory committee" means a committee created pursuant to
statute or through administrative action by a state agency for the
purposes of assisting such agency to develop and implement programs for
rural areas;
(f) "Regulatory flexibility" means the conscious consideration of the
ability of affected individuals and/or groups in rural areas to respond
to state agency rules and regulations and the state agency's attempt to
mitigate any negative impacts which may result from such requirements on
said individuals and/or groups.
3. Annual reports of state agencies.
(a) In addition to any existing requirements of state agencies for the
submission of annual reports, such agencies shall also annually provide:
(i) a listing and description of any set-asides for rural areas in New
York state. Such reports shall include the number of applications
submitted, the number of applications approved, and the proportionate
share of dollars and/or technical assistance rendered to public and/or
private sector interests within rural areas of the state;
(ii) a listing and description of the activities and participation of
any rural advisory committees which directly serve such agency, or of
which the agency is a member;
(iii) a listing and description of existing and/or new rural program
development efforts within the agency, or of which the agency is a part;
(iv) a description of existing and/or new rule-making or regulatory
flexibility afforded to rural areas of the state; and
(v) recommendations for any statutory change, as well as financial and
other resources to improve state agency assistance and responsiveness to
rural areas of the state.
(b) In a form prescribed by the governor, all state agencies, as
defined in this section, shall report the annual information required in
paragraph (a) of this subdivision to the governor, with a copy also
submitted to the speaker of the assembly, the temporary president of the
senate, the minority leader of the assembly, the minority leader of the
senate, and the chairman and vice-chairman of the New York state
legislative commission on the development of rural resources established
pursuant to chapter four hundred twenty-eight of the laws of nineteen
hundred eighty-two. The first such report shall be submitted on or
before January first, nineteen hundred ninety-six.
Printing cost reduction notices. There shall be printed on
the cover or cover page of every annual report, report or similar
publication issued by any department, division, commission, agency or
any other entity of the state, a notice which states the following words
or words to the effect of the following: "In an effort to reduce the
costs of printing, please notify the producer of this document if you
wish your name to be deleted from our mailing list or if your address
has changed."
Availability of application forms. 1. The state and every
state agency, department, bureau, board, authority, office, commission,
or any other instrumentality of the state shall make the various
application forms developed and distributed by such agency or
instrumentality for public use that are readily convertible to internet
form and are intended to be commonly used by the general public
available on the internet.
2. Nothing in this section shall require that an agency or other state
entity or instrumentality accept or process application forms submitted
through the internet, or post application forms including user-specific
data on the internet.
3. The office of information technology services shall promulgate
rules and regulations to implement the provisions of this section. Such
rules shall at least provide for the prioritization and timing for
making application forms available on the internet.
Commission on uniform state laws; object; membership; term of
office; expenses. The commission on uniform state laws is continued. It
shall be the object of the commission to examine various statutes and
fields of law and to consult and cooperate with similar commissions in
other states with a view to promoting uniform legislation throughout the
United States whenever practicable. The commission may recommend such
legislation as may accomplish its objective. It shall consist of five
members appointed by the governor. The members shall hold office and may
be removed at the pleasure of the governor. The commission shall serve
without compensation, but each commissioner shall be entitled to receive
his actual disbursements for his expenses in performing the duties of
his office. The commission may employ such persons and incur such
expenses as may be necessary for the performance of its duties within
the amounts appropriated therefor. The commission shall report to the
legislature whenever the commission deems it necessary and shall report
to the legislature upon its request. Such reports shall consist of an
account of the transactions of the commission and its advice and
recommendations.
Record of appearances. Every regulatory agency of the state
shall keep a record of appearances before it or its appropriate
divisions or bureaus of attorneys, agents and representatives appearing
on behalf of any person, firm, corporation or association subject to its
regulatory jurisdiction, for which they receive a fee, which record
shall be open to public inspection. Each regulatory agency shall file
the record with the New York temporary state commission on lobbying on
forms prescribed by the commission. The record shall be filed quarterly
on the fifteenth day of the month following the end of the quarter. The
term "regulatory agency" as used in this section shall mean the
department of financial services, department of financial services,
state liquor authority, department of agriculture and markets,
department of education, department of environmental conservation,
department of health, division of housing and community renewal,
department of state, other than the division of corporations and state
records, department of public service, the industrial board of appeals
in the department of labor and the department of law, other than when
the attorney general or his agents or employees are performing duties
specified in section sixty-three of this chapter.
Advertising and publicizing summer camps cited as subversive.
Notwithstanding any inconsistent provision of law, general or special,
no department, bureau, board, commission, authority, agency or other
instrumentality of the state shall knowingly advertise, publicize,
assist, support or advise, or in any manner promote in any publication
or otherwise, any summer camp cited by the attorney general of the
United States, the attorney general of the state of New York, any duly
authorized state agency or any legislative investigating body for
teaching, advocating or embracing the doctrine that the government of
the United States or of any state or any political subdivision thereof
shall be overthrown or overturned by force, violence or any unlawful
means, or advocating, advising, teaching or embracing the duty,
necessity or propriety of adopting any such doctrine.
Notices to attorneys at law by state bodies or officers. 1.
Whenever a person is involved as a party in a proceeding before any body
or officer exercising quasi-judicial or administrative functions, and an
attorney at law has filed a notice of appearance in such proceeding on
behalf of such person, a copy of all subsequent written communications
or notices to such person in such proceeding (other than subpoenas)
shall be sent to such attorney at law, and if any such subsequent
written communication or notice is sent to the party in the proceeding,
a copy of the same shall be sent to the attorney at law at the same
time. Every such body or officer is authorized to provide by rule or
regulation for the manner in which compliance with the requirements of
this section shall be effected, including, but not limited to, the form
and content of notices of appearance, the manner in which an attorney at
law shall file his notice of appearance in a proceeding, and the manner
in which written communications or notices shall be sent to the attorney
at law.
2. For the purpose of this section:
(a) "person" shall mean one or more individuals, partnerships,
corporations or associations;
(b) "proceeding" shall mean any quasi-judicial or administrative
procedure instituted by a written application by a person to a body or
officer, by a notice of assessment given by a body or officer to a
person, by a written complaint addressed by a body or officer or
transmitted by a body or officer to a person, or by a notice of any
hearing before a body or officer whether or not such hearing is
prescribed by statute.
3. This section shall not apply to preliminary investigations.
Designation of days of commemoration. 1. A day of
commemoration is a calendar day so designated by this section or a
calendar day in any one year so designated by a proclamation of the
governor or resolution of the Senate and Assembly jointly adopted.
2. A day of commemoration shall not constitute a holiday or
half-holiday but shall be a day set aside in recognition and special
honor of a person, persons, group ideal or goal.
3. The following days shall be days of commemoration in each year:
January sixth, to be known as "Haym Salomon Day", January
twenty-seventh, to be known as "Holocaust Remembrance Day", February
fourth, to be known as "Rosa Parks Day", February fifteenth, to be known
as "Susan B. Anthony Day", February sixteenth, to be known as
"Lithuanian Independence Day", February twenty-eighth, to be known as
"Gulf War Veterans' Day", March fourth, to be known as "Pulaski Day",
March eighth, to be known as "International Women's Day", March tenth,
to be known as "Harriet Tubman Day", March twenty-ninth, to be known as
"Vietnam Veterans' Day", April ninth, to be known as "POW Recognition
Day", April twenty-seventh, to be known as "Coretta Scott King Day",
April twenty-eighth, to be known as "Workers' Memorial Day", the first
Tuesday in May to be known as "New York State Teacher Day", May
seventeenth, to be known as "Thurgood Marshall Day", the first Sunday in
June, to be known as "Children's Day", June second, to be known as
"Italian Independence Day", June twelfth, to be known as "Women Veterans
Recognition Day", June nineteenth, to be known as "Juneteenth Freedom
Day", June twenty-fifth, to be known as "Korean War Veterans' Day", the
second Monday in July, to be known as "Abolition Commemoration Day",
August twenty-fourth, to be known as "Ukrainian Independence Day",
August twenty-sixth, to be known as "Women's Equality Day", September
eleventh, to be known as "Battle of Plattsburgh Day" and also to be
known as "September 11th Remembrance Day", September thirteenth, to be
known as "John Barry Day" and also to be known as "Uncle Sam Day in the
State of New York", September seventeenth, to be known as "Friedrich
Wilhelm von Steuben Memorial Day", the third Friday in September to be
known as "New York State POW/MIA Recognition Day" except if such date of
commemoration cannot be observed due to a religious holiday, such
observances shall then be conducted on the second Friday of September,
the last Saturday in September, to be known as "War of 1812 Day", the
fourth Saturday of September, known as "Native-American Day", the last
Sunday in September, to be known as "Gold Star Mothers' Day", October
fifth, to be known as "Raoul Wallenberg Day", October eleventh, to be
known as "New Netherland Day in the State of New York", October
eighteenth, to be known as "Disabilities History Day", October
twenty-seventh, to be known as "Theodore Roosevelt Day", November ninth,
to be known as "Witness for Tolerance Day", November twelfth, to be
known as "Elizabeth Cady Stanton Day", the third Tuesday in November to
be known as "New York State School-Related Professionals Recognition
Day", November twenty-sixth, to be known as "Sojourner Truth Day",
November thirtieth, to be known as "Shirley Chisholm Day", December
third, to be known as "International Day of Persons with Disabilities",
December seventh, to be known as "Pearl Harbor Day", December sixteenth,
to be known as "Bastogne Day" and that day of the Asian lunar calendar
designated as new year to be known as "Asian New Year".
Salaries of certain state officers. 1. Salaries of certain
state officers holding the positions indicated hereinbelow shall be as
set forth in subdivision two of this section:
(a) commissioner of corrections and community supervision,
commissioner of education, commissioner of health, commissioner of
mental health, commissioner of developmental disabilities, commissioner
of children and family services, commissioner of temporary and
disability assistance, chancellor of the state university of New York,
commissioner of transportation, commissioner of environmental
conservation, superintendent of state police, commissioner of general
services, commissioner of the division of homeland security and
emergency services and the executive director of the state gaming
commission;
(b) commissioner of labor, chairman of public service commission,
commissioner of taxation and finance, superintendent of financial
services, commissioner of criminal justice services, and commissioner of
parks, recreation and historic preservation;
(c) commissioner of agriculture and markets, commissioner of addiction
services and supports, adjutant general, commissioner and president of
state civil service commission, commissioner of economic development,
president of higher education services corporation, commissioner of
motor vehicles, member-chair of board of parole, chair of public
employment relations board, secretary of state, executive director of
the housing finance agency, commissioner of housing and community
renewal, executive director of state insurance fund, commissioner-chair
of state liquor authority, chair of the workers' compensation board;
(d) director of office for the aging, commissioner of human rights,
commissioners of the department of public service, chairman of state
commission on quality of care for the mentally disabled, chairman of
commission on alcoholism and substance abuse prevention and education,
executive director of the council on the arts and executive director of
the board of social welfare;
(e) chairperson of state athletic commission, director of the office
of victim services, chairperson of human rights appeal board,
chairperson of the industrial board of appeals, chairperson of the state
commission of correction, members of the board of parole,
member-chairperson of unemployment insurance appeal board, director of
veterans' services, and vice-chairperson of the workers' compensation
board;
(f) executive director of adirondack park agency, members of state
commission of correction, members of unemployment insurance appeal
board, and members of the workers' compensation board.
2. (a) Effective January first, nineteen hundred ninety-nine, the
annual salaries of the officers holding the positions indicated in
subdivision one of this section shall be as follows: for the positions
listed in paragraph (a), $136,000; in paragraph (b), $127,000; in
paragraph (c), $120,800; in paragraph (d), $109,800; in paragraph (e),
$101,600; and in paragraph (f), $90,800.
(b) Notwithstanding any of the foregoing provisions of this section to
the contrary, an incumbent in a position (i) listed in former section
one hundred sixty-nine of the executive law in effect on the day prior
to the effective date of this subdivision, or (ii) listed in this
section, or (iii) covered by a provision of law other than such section,
shall not receive compensation in an amount less than such person
received on the effective date of this section.
3. Notwithstanding any other provision of this section or any other
provision of law, the boards of trustees of the state university of New
York and the city university of New York shall each establish and
implement salary plans for the chancellors, presidents and senior staffs
of such state and city universities, respectively. The board of regents
shall establish and implement a separate salary plan for the president
of the university of the state of New York, setting forth the
compensation to be received by the president for performing the duties
of that office assigned by the rules of the regents or statute, which
shall be in addition to the compensation received by such person
pursuant to the provisions of subdivisions one and two of this section.
Such salary plans shall be developed after consultation with the
governor's office of employee relations and the division of the budget.
Any increase in compensation for the positions set forth in this
subdivision, not otherwise funded from any appropriation, shall be
funded from reallocations of funds within the appropriations
specifically identified by the aforementioned boards. Each board of
trustees and the board of regents shall file a proposed salary plan
report with the chairs of the senate finance committee and the assembly
ways and means committee and the director of the budget at least sixty
days prior to the effective date of such salary plan. Each salary plan
report shall set forth the salary schedule, the dollar value of
additional public compensation and other employment benefits that such
positions would receive, the specific sources of funding to be
reallocated for salary increases, the amount of increase to be provided
to each position, the comparison salary data on which the plan is based,
and such other information as the boards of trustees and the board of
regents deem appropriate.
Audit of agencies by the state comptroller; reports of
corrective action. Whenever the state comptroller shall conduct an audit
of the activities and operations of any department, bureau, board,
commission, authority or any other agency or instrumentality, he or she
shall submit a tentative copy of a report of such audit to the head of
the entity audited. The head of such entity may submit a written
response to such tentative report within thirty days of the receipt
thereof. The state comptroller shall thereafter submit a final report of
such audit which shall contain a complete copy of the response, if any,
submitted to the tentative report. If the final report makes
recommendations for corrective action, the head of the entity audited
shall report within one hundred eighty days after receipt thereof to the
governor, the state comptroller, the president, president pro tem and
minority leader of the senate, the speaker, majority and minority
leaders of the assembly, and the chairman and ranking minority members
of the senate finance committee and the assembly ways and means
committees of the state legislature what steps were taken to implement
such recommendations, and, where recommendations were not implemented,
the reasons therefor.
Celebration of Rosa Parks; bus companies. 1. For purposes of
this section, the terms "bus company" and "bus line" shall have the same
meanings as set forth in subdivisions two and three of section two of
the transportation law.
2. On February fourth, two thousand eight and every February fourth
thereafter, a day of commemoration designated as "Rosa Parks Day"
pursuant to section one hundred sixty-eight-a of this article, every bus
company operating a bus line in this state may reserve and keep empty
one seat on each bus placed in service by such bus company in honor of
civil rights activist Rosa Parks.
3. Compliance with the provisions of this section shall be voluntary,
and no bus company operating a bus line in this state shall be subject
to any liability, either civil or criminal, solely for the failure to
comply with the provisions of this section.
* § 170-b. Employee loans. 1. No state agency shall make available to
employees a loan of any amount of money. Provided, however, that nothing
in this section shall be construed to impede any person from receiving
any aid for which he or she is eligible pursuant to any state or federal
statute or regulation.
2. For purposes of this section, the term "state agency" shall mean
any state department, state university of New York, city university of
New York, authority, board, bureau, division, commission, committee,
council, office or other governmental entity performing a governmental
or proprietary function for the state.
* NB There are 2 § 170-b's
* § 170-c. Regulatory penalties for small businesses. 1. Unless
explicitly exempted or excluded by any other law, rule or regulation,
upon a first time violation of a state agency's rules or regulations
related to paperwork submitted to a state agency or actions or omissions
that are determined by such state agency to be de minimus, a small
business, as defined in subdivision eight of section one hundred two of
the state administrative procedure act, shall be afforded a cure period
or other opportunity for ameliorative action if the violation can be
corrected, the successful completion of which will prevent the
imposition of penalties on the party or parties subject to enforcement
of such de minimus violation. However, no waiver of penalties or cure
period or other opportunity for ameliorative action may be given if the
agency determines that the violation may result in a natural resource
damage claim or serious actual harm, or may present an endangerment to
public safety, human health or the environment, is a violation of human
or civil rights law, results in loss of employee wages or benefits,
interferes with any remedy, review, or resolution related to harassment
or discrimination claims, was or is a willful violation, involves tax
fraud, violates requirements related to federal funding to the state,
relates to state funding or procurement, is similar to prior violations,
is a penal law violation, relates to a material or substantive portion
of the business, or is in contravention of the public interest and/or
policy reflected by the agency's mission. Upon such first violation, a
state agency shall (a) provide the small business with a copy of the
applicable small business regulation guides pursuant to section one
hundred two-a of the state administrative procedure act and any other
helpful guidance or information detailing the agency's rules and
regulations, to the extent such materials exist, or (b) to the extent
practicable, provide such small business assistance with compliance with
the agency's rules and regulations. The agency shall have the discretion
to determine the appropriate period of time to allow such small business
to cure or take such other ameliorative action to address such
violation, which shall be reasonable but shall not be less than fifteen
business days unless a longer period is allowed pursuant to law or
regulation.
2. As used in this section "state agency" shall mean an agency as
defined in subdivision one of section one hundred two of the state
administrative procedure act; provided that "state agency" shall not
include the department of taxation and finance, the workers'
compensation board nor the department of financial services.
3. Nothing herein shall prevent or preclude any other waivers of
penalties that may be applicable by this or any other agency.
4. Every state agency shall provide to the division for small
business, created pursuant to section one hundred thirty-two of the
economic development law, the following information covering the
previous calendar year, annually by July first following the effective
date of this subdivision, and every July first thereafter: (a) how many
cure periods or other opportunities for ameliorative action were
afforded pursuant to subdivision one of this section and how many small
businesses made use of such options, (b) how many cure periods and other
opportunities for ameliorative action were successfully completed and
resulted in the avoidance of a penalty, (c) what, if any, guidance,
information, and assistance with compliance was provided to small
businesses issued pursuant to subdivision one of this section, and (d)
the range of time granted by the state agency to correct first time
violations and the type of violations that were ameliorated. The
division for small business shall by October first following the
effective date of this subdivision, and every October first thereafter,
prepare a report compiling this information, by agency, and shall post
this report on its website and shall provide a copy of such report to
the governor, the speaker of the assembly and the temporary president of
the senate.
* NB Repealed December 20, 2027
Disclosure of disabled tenants' rights. The division of human
rights shall promulgate regulations requiring every housing provider
under subdivisions two-a and five of section two hundred ninety-six of
this chapter, to provide notice to all tenants and prospective tenants,
in writing, within thirty days of the effective date of their tenancy,
or thirty days from the effective date of this section for current
tenants, of their rights to request reasonable modifications and
accommodations pursuant to subparagraphs one, two and three of paragraph
d of subdivision two-a of section two hundred ninety-six of this chapter
and subdivision eighteen of section two hundred ninety-six of this
chapter.
* § 170-e. Disclosure of lawful source of income rights to prospective
tenants. The division of human rights shall promulgate regulations
requiring any state, county, municipal or other governmental entity,
including but not limited to the division of housing and community
renewal, or any agency or instrumentality of such an entity, and any
public or private non-profit entity authorized to administer any public
housing program or assistance, including, but not limited to, the
section eight housing choice voucher program, or any other form of
housing assistance, payment, subsidy or credit, regardless of whether or
not such assistance, payment, subsidy or credit is paid or attributed
directly to a landlord, to ensure that individuals who have applied for
and are eligible to receive such assistance, payment, subsidy or credit
are informed, in writing, of their rights and remedies available under
law, with regard to lawful source of income discrimination pursuant to
this section.
* NB There are 2 § 170-e's
Website accessibility; contractors and vendors. Each
contractor, subcontractor, vendor, consultant, or other person providing
services pursuant to a state contract shall be required to conform any
website provided by such contractor, subcontractor, vendor, consultant,
or person in relation to and for the purpose of the provision of such
services to the most current version of the Web Content Accessibility
Guidelines adopted by the World Wide Web Consortium for accessibility,
or any successor standards.
Collection of demographic information; sexual orientation and
gender expression. 1. Every state agency, board, or commission that
directly or by contract collects demographic data as to the ancestry or
ethnic origin of residents of the state of New York shall use, to the
extent practicable, separate collection categories and tabulations for
sexual orientation and gender identity or expression.
2. The term "gender identity or expression" means having or being
perceived as having a gender identity, self-image, appearance, behavior
or expression whether or not that gender identity, self-image,
appearance, behavior or expression is different from that traditionally
associated with the sex assigned to that person at birth.
3. The data collected pursuant to the different collection categories
and tabulations described in subdivision one of this section shall be
included in every demographic report on ancestry or ethnic origins of
residents of the state of New York by the state agency, board, or
commission published or released on or after July first, in the calendar
year following the effective date of this section. The data shall be
made available to the public in accordance with state and federal law,
except for personal identifying information, which shall be deemed
confidential, by posting the data on the internet web site of the
agency, board, or commission on or before July first, in the calendar
year following the effective date of this section, and annually
thereafter. This subdivision shall not be construed to prevent any other
state agency, board, or commission from posting data collected pursuant
to subdivision one of this section on the agency's, board's, or
commission's internet web site, in the manner prescribed by this
section. A state agency, board, or commission that cannot comply with
the requirements of this section shall, at least sixty days before the
applicable deadline, post publicly on its web site a written progress
report that describes with specificity the steps the agency, board, or
commission has taken to comply with this section, the impediments that
prevented compliance, the efforts undertaken by the agency, board, or
commission to come into compliance, and an estimated timeframe for
compliance. The written report shall be updated every six months from
the date of the original posting.
4. Guidance shall be issued for state agencies, boards, and
commissions in their compliance with the requirements set forth in
subdivision three of this section.
Additional collection of demographic information. 1. Every
state agency, board, department, or commission that directly collects
demographic data as to the ancestry or ethnic origin of residents of the
state of New York shall use separate collection categories and
tabulations for the following Middle Eastern and North African groups in
New York state:
(a) Each major North African (NA) group shall include Egyptian,
Moroccan, Algerian, Sudanese, Tunisian, and Libyan; and
(b) Each major Middle Eastern (ME) group shall include Yemeni,
Iranian, Palestinian, Iraqi, Lebanese, Israeli, Jordanian, Syrian,
Armenian, and Saudi; and
(c) Collection categories shall include a category for other Middle
Eastern or North African groups.
2. The data collected pursuant to the different collection categories
and tabulations described in subdivision one of this section, to the
degree that the data quality is sufficient, shall be included in every
demographic report on ancestry or ethnic origins of residents of the
state of New York by the state agency, board, department, or commission
published or released on or after January first, two thousand
twenty-seven. The data shall be made available to the public in
accordance with state and federal law, except for personal identifying
information, which shall be deemed confidential, by posting the data on
the internet web site of the agency, board, department, or commission on
or before January first, two thousand twenty-seven, and annually
thereafter. If the data quality is determined to be insufficient for
publication, an explanation of the problem with the data quality shall
be included in any report or publication made available to the public.
This subdivision shall not be construed to prevent any other state
agency from posting data collected pursuant to subdivision one of this
section on the agency's internet web site, in the manner prescribed by
this section.
3. A state agency, board, or commission that cannot comply with the
requirements of this section shall, at least sixty days before the
applicable deadline, post publicly on its web site a written progress
report that describes with specificity the steps the agency, board, or
commission has taken to comply with this section, the impediments that
prevented compliance, the efforts undertaken by the agency, board, or
commission to come into compliance, and an estimated timeframe for
compliance. The written report shall be updated every six months from
the date of the original posting.
Gender-based violence and the workplace. 1. Each state agency
shall formulate and issue a gender-based violence and the workplace
policy for such agency. In formulating such policy, the state agency
shall refer to the model gender-based violence and the workplace policy
distributed by the office for the prevention of domestic violence
pursuant to subdivision eleven of section five hundred seventy-five of
this chapter, and adopt its provisions as appropriate.
2. Each state agency shall designate at least one domestic violence
agency liaison who shall ensure agency compliance with the domestic
violence provisions of the gender-based violence and the workplace
policy, be trained to assist victimized employees, and serve as the
primary contact for the policy distributed by the agency.
3. Each state agency, in formulating or revising its gender-based
violence and the workplace policy, shall give due regard to the
importance of increasing awareness of gender-based violence and
informing employees of available resources for assistance; clearly
specifying how to reach the domestic violence agency liaison; ensuring
that personnel policies and procedures are fair to domestic and
gender-based violence victims and survivors, and responsive to their
needs; developing workplace safety response plans; complying with state
and federal law including restrictions of possession of firearms by a
person convicted of a domestic violence related crime or subject to an
order of protection; encouraging and promoting gender-based violence
education and training for employees; and holding accountable employees
who misuse state resources or authority or violate their job duties in
committing an act of gender-based violence. Each state agency, when it
issues its gender-based violence and the workplace policy, shall provide
a copy of that policy and the information for its designated domestic
violence agency liaison to the office for the prevention of domestic
violence, and shall notify the office of any subsequent modifications of
the policy or the contact information for the domestic violence agency
liaison.
4. (a) Every covered employee shall participate in a gender-based
violence and the workplace training developed by the office for the
prevention of domestic violence and made available on the statewide
learning management system annually.
(b) As used in this subdivision, "covered employee" shall mean all
officers and employees working in the executive chamber in the office of
the governor and New York State agencies who supervise other officers
and employees, who serve as the domestic violence agency liaison, or who
are employed in a human resources position. "Officers and employees"
shall have the meaning given to "state officer or employee" in section
seventy-three of the public officers law.
5. Each state agency shall cooperate with the office for the
prevention of domestic violence and furnish such information, reporting,
and assistance as the office determines is reasonably necessary to
accomplish the purposes of this section.
Mental health references contained in state and municipal
forms. No form, preprinted document, other public-facing document,
training material, agency guidance, or manual utilized by a state
agency, public authority or municipality shall use the term "emotionally
disturbed person" to identify or denote a person experiencing emotional
distress or an emotional or mental health crisis. All forms or
preprinted documents, other public-facing documents, training materials,
agency guidance or manuals utilizing such term shall be amended to
replace the term "emotionally disturbed person" with the term "person
experiencing an emotional crisis".
Local cops, local crimes act. 1. For purposes of this
section, the following definitions shall apply:
(a) "Law enforcement agency" means the New York state police and any
law enforcement agency or department of any municipality, any police
district, or any agency, department, commission, authority or public
benefit corporation of the state of New York employing a police officer
as that term is defined in subdivision thirty-four of section 1.20 of
the criminal procedure law or peace officer as that term is defined in
section 2.10 of the criminal procedure law, except for the port
authority of New York and New Jersey.
(b) "Local government" means any municipal corporation and governing
board in the state of New York.
(c) "Municipal corporation" has the same meaning as such term is
defined in section two of the general municipal law.
(d) "Governing board" has the same meaning as such term is defined in
section two of the general municipal law.
(e) "Correctional facility" has the same meaning as such term is
defined in subdivision four of section two of the correction law.
(f) "Local correctional facility" has the same meaning as such term is
defined in subdivision sixteen of section two of the correction law.
(g) "Immigration detention facility" means any building, facility, or
structure used, in whole or in part, to house or detain individuals for
any violation of a civil provision of the federal Immigration and
Nationality Act relating to an individual's immigration status.
(h) "Juvenile detention facility" means a specialized secure, secure,
or nonsecure detention facility certified by the office of children and
family services pursuant to section five hundred three of this chapter.
(i) "Facility for youth placed with or committed to the office of
children and family services" means a facility operated pursuant to
section five hundred four of this chapter.
(j) "Immigration authority" has the same meaning as such term is
defined in section three hundred nineteen of this chapter.
(k) "Immigration enforcement" has the same meaning as such term is
defined in section three hundred nineteen of this chapter.
(l) "Immigration law" means any civil provision of the federal
Immigration and Nationality Act and any provision of law that penalizes
a person's presence in, entry into, or reentry into the United States.
2. (a) No local government, law enforcement agency, correctional
facility, local correctional facility, juvenile detention facility, or
facility for youth placed with or committed to the office of children
and family services, or agent thereof may, enter into, modify, renew,
remain in, or extend:
(i) any agreement pursuant to section 287(g) of the Immigration and
Nationality Act codified at 8 U.S.C. § 1357(g), including, but not
limited to, any formal or informal agreement under which an officer or
employee may engage in or assist immigration enforcement, or otherwise
may perform a function of an immigration officer; or
(ii) any contract, intergovernmental service agreement, or any other
formal or informal agreement to house or detain individuals for federal
civil immigration violations, including, but not limited to, agreements
entered into pursuant to 8 U.S.C. § 1103(a) or § 1231(g).
(b) Nothing in this subdivision shall be construed to preclude
contracts or agreements by:
(i) any hospital or other health care facility as defined by section
twenty-eight hundred one of the public health law, including any health
care facility operated by a public benefit corporation pursuant to title
two of article ten-C of the public authorities law, or any mental health
facility or hospital as defined by section 1.03 of the mental hygiene
law to provide health care services;
(ii) any authorized agency as defined by subdivision ten of section
three hundred seventy-one of the social services law, to provide care or
placement to children in the custody of the United States Office of
Refugee Resettlement; or
(iii) any federal law enforcement agency for the provision of
detention space for individuals subject to pending federal criminal
charges; provided, however, that no such agreement may provide for
detention space to house or detain individuals solely for federal civil
immigration violations.
3. No local government, law enforcement agency, correctional facility,
local correctional facility, juvenile detention facility, or facility
for youth placed with or committed to the office of children and family
services or agent thereof shall:
(a) pay, reimburse, subsidize, give any financial incentive or benefit
or defray in any way costs related to the sale, purchase, construction,
development, ownership, management, or operation of an immigration
detention facility that is or will be owned, managed, or operated, in
whole or in part by a private entity; or
(b) otherwise give any financial incentive or benefit in connection
with the sale, purchase, construction, development, ownership,
management, or operation of an immigration detention facility.
4. Notwithstanding any provision of state or local law to the contrary
relating to the time in which a decision shall be rendered on an
application for or an appeal relating to a permit, certificate, or
variance, no local government shall approve a zoning variance or issue a
permit or certificate for the construction or the reuse of existing
buildings or structures by any private entity for use as an immigration
detention facility unless the local government, at a minimum, and in
addition to any other requirements:
(a) provides notice to the public of the proposed zoning variance,
permit, or certificate action at least one hundred eighty days before
authorizing the variance or issuing the permit or certificate; and
(b) solicits and hears public comments on the proposed zoning
variance, permit, or certificate action in at least two separate
meetings open to the public.
5. Nothing in subdivisions three and four of this section shall
restrict any local government from adopting or applying additional
zoning variance, permitting, or certificate requirements, or extending
the length of the one hundred eighty day notice requirement, or
increasing the number of meetings open to the public to discuss the
zoning variance, permit, certificate, or reuse of existing buildings or
structures, notwithstanding any provision of state or local law to the
contrary relating to the time in which a decision shall be rendered on
an application for or an appeal relating to a permit, certificate, or
variance.
6. Nothing in this section shall be construed to prohibit a local
government, law enforcement agency, correctional facility, or local
correctional facility from complying with any state or federal court
order or judicial warrant, or any other action as required by law.
7. (a) Any agreement described in subdivision two of this section
shall be deemed not consistent with state law and any such agreement
existing upon the effective date of this section shall be void and
unenforceable, and any law enforcement agency, correctional facility,
local correctional facility, juvenile detention facility, or facility
for youth placed with or committed to the office of children and family
services, or agent thereof shall exercise any applicable termination
provision contained in such agreement.
(b) Notwithstanding paragraph (a) of this subdivision, any law
enforcement agency, correctional facility, local correctional facility,
juvenile detention facility, or facility for youth placed with or
committed to the office of children and family services, or agent
thereof shall exercise any applicable termination provision contained in
any agreement described in subparagraph (ii) of paragraph (a) of
subdivision two of this section within three months after the effective
date of this section, after which time any such agreement shall be
deemed not consistent with state law, void, and unenforceable.
8. The provisions of this section shall apply notwithstanding any
other provisions of state or local law, charter, code, ordinance,
resolution, rule, or regulation to the contrary. Provided, however, that
nothing in this article shall be construed to prevent or restrict the
state government from adopting, enacting, or enforcing state policies or
a local government from adopting, enacting, or enforcing local policies,
laws, resolutions, ordinances, or regulations which comply with at least
the applicable standards or requirements of this section, or which
exceed the provisions of this section, or which further restrict the
ability of state government or local government personnel to participate
in immigration enforcement beyond the requirements set forth in the
chapter of the laws of two thousand twenty-six that added this section.
Discovery and disposition of human remains and funerary
objects. 1. Definitions. As used in this section:
(a) "Burial site" means any location in which human remains are
interred, which is not a cemetery subject to provisions of the
not-for-profit corporation law, the religious corporations law, the
general municipal law, the county law, the town law or the village law.
(b) "Committee" means the Native American burial site review committee
created by subdivision three of this section.
(c) "Culturally-affiliated group" means any group, including a Native
American Nation or tribe, whose past or present government, or
traditional culture or religion, was or is affiliated with human remains
or funerary objects which are the subject of this section.
(d) "Forensic anthropologist or bioarchaeologist" means a person
qualified in the medicolegal or osteological investigation/examination
of human skeletal remains.
(e) "Funerary objects" means any item or items reasonably believed to
have been placed with human remains at the time of burial, including but
not limited to burial markers, items of personal adornment, vessels,
beads, tools, implements, ceremonial objects and other artifacts.
(f) "Human remains" means the remains of any part of the body of a
deceased person, excluding teeth.
(g) "Lineal descendant" means a genealogical descendant established by
oral tradition, traditional Indigenous knowledge, or written record.
(h) "Native American Nation or tribe" means any Native American tribe,
nation or group.
(i) "State archaeologist" means the person appointed to such office
pursuant to section two hundred thirty-five of the education law.
2. Applicability. (a) This section shall apply to all lands within the
state except for lands located upon any Native American territory or
reservation located wholly or partly within the state.
(b) Subdivisions three, four, five, six, and seven of this section
shall not apply to any project that has been reviewed pursuant to
section 14.09 of the parks, recreation, and historic preservation law or
to state participation in any review conducted pursuant to section 106
of the National Historic Preservation Act. If any human remains are
discovered during the project, the applicant shall immediately notify
the state archaeologist.
3. Native American burial site review committee. (a) There is hereby
established a Native American burial site review committee consisting of
the following:
(i) one member to be appointed by each of the Native American Nations
or tribes recognized by the state;
(ii) the state archaeologist;
(iii) a forensic anthropologist or bioarchaeologist appointed by the
executive director of the New York state museum;
(iv) the chair of the human remains committee or other designee of the
New York Archaeological Council; and
(v) one member with expertise in the field of historic preservation
appointed by the commissioner of the office of parks, recreation and
historic preservation.
(b) The committee shall elect a chairperson from among its members.
The members who are not public employees shall be reimbursed by the
state for their reasonable, necessary expenses incurred in the
performance of committee functions. Three-fifths of the members of the
committee shall constitute a quorum for the purpose of conducting
business. A majority vote of all members who have been appointed or who
are serving ex-officio shall be necessary for action. Any vacancy shall
be filled in the same manner as the original appointment.
(c) It shall be the function of the committee to determine the lineal
descendants and/or culturally-affiliated groups for Native American
human remains and funerary objects subject to this section, and to
provide notice to such descendants and/or groups as provided in this
section. The state archaeologist shall prepare, and the committee shall
adopt, standard procedures for determining the lineal descendants and
culturally-affiliated groups for human remains as required by this
section, including acceptable types of proof of such descent and
affiliation. Such procedures shall include dispute resolution methods to
resolve disagreements among the committee members.
4. Discovery of burial site; reporting requirements. (a) Any person
who in the course of any ground-disturbing activity discovers a burial
site, human remains or funerary objects shall immediately cease any
further disturbance of such site, remains or objects, and shall
immediately report such discovery to the coroner or medical examiner in
the county in which the remains were discovered. The coroner or medical
examiner shall, within ninety-six hours, determine whether any actions
are required pursuant to the provisions of article seventeen-A of the
county law. If any such remains appear to the coroner or medical
examiner to be more than fifty years old, the coroner or medical
examiner shall immediately provide notice of the discovery of such
remains to the state archaeologist, who shall in turn convey such notice
to the other members of the committee. If no action is required under
article seventeen-A of the county law, or once such actions are
undertaken and no further action is required, the state archaeologist
and the committee may commence their inspection or examination of the
remains or objects. Any inspection or examination shall be made in situ
except as necessary to comply with such article seventeen-A, this
section, or to determine the age of the remains. The state archaeologist
and the committee may use ground penetrating radar or other pertinent
technology or equipment on any portion of the project site that has yet
to be disturbed to determine if any other remains exist within the
project site.
(b) The state archaeologist, or a registered archeologist or
registered professional archeologist as may be designated by the state
archaeologist, shall, upon receiving notice from a coroner or medical
examiner of the discovery of human remains, inspect the site, remains
and/or objects which are the subject of such notice. Within ten days of
receiving such notice, the state archaeologist shall prepare a report
thereon and provide a copy of the report to the committee and to the
property owner. The report shall be based upon physical examination of
the discovered burial site, remains and/or objects, and shall contain
the state archaeologist's conclusion as to whether such site, remains
and/or objects may be of Native American origin. In the event the state
archaeologist determines there is a reasonable possibility the site
contains multiple remains, an additional period of ten days may be
provided for assessment by the state archaeologist in consultation with
the culturally-affiliated group to determine the parameters of the site.
In preparing the report, the state archaeologist may seek and obtain
assistance from any employee of the regents, from the committee, and
from the office of parks, recreation and historic preservation.
(c) The committee may recommend to the office of parks, recreation,
and historic preservation that the site should be designated as a place
of historic interest under section twelve-a of the Indian law.
5. Determination of and notification to lineal descendants or
culturally-affiliated groups. (a) If the state archaeologist, the
forensic anthropologist or bioarchaeologist, and the committee agree
that the burial site does not wholly or partly contain human remains or
funerary objects that are of Native American origin, it shall be the
responsibility of the state archaeologist to determine, as soon as
practicable, whether there are any reasonably ascertainable lineal
descendants or culturally-affiliated groups with respect to such site,
remains or objects and, immediately upon making such determination, to
provide notice to such descendants or groups of the reported discovery.
(b) If the state archaeologist, the forensic anthropologist or
bioarchaeologist, and the committee agree that the burial site wholly or
partly contains human remains or funerary objects that may be of Native
American origin, it shall be the responsibility of the committee to
determine the lineal descendants or culturally-affiliated groups. Such
determination shall be made as soon as practicable after the committee
receives a report from the state archaeologist concerning the burial
site. Immediately upon making such determination, the committee shall
provide notification to such descendants or groups of the reported
discovery.
(c) The committee shall have stewardship of Native American human
remains and funerary objects from the time it receives notification from
the state archaeologist pursuant to subdivision four of this section
until the lineal descendants and/or culturally-affiliated groups receive
notification from the committee pursuant to this subdivision, at which
time such lineal descendants and/or culturally-affiliated groups shall
have the right of possession and stewardship of such remains and
objects. Upon notification to such lineal descendants or
culturally-affiliated groups pursuant to this subdivision, ownership of
and responsibility for the human remains and funerary objects shall vest
exclusively in such descendants or groups, which shall have authority to
determine their disposition subject to the provisions of this section.
(d) The state archaeologist shall have stewardship of non-Native
American human remains and funerary objects from the time he or she
receives notification from the coroner or medical examiner pursuant to
subdivision four of this section until the lineal descendants and/or
culturally-affiliated groups receive notification from the state
archaeologist pursuant to this paragraph, at which time such lineal
descendants and/or culturally-affiliated groups shall have the right of
possession and stewardship of such remains and objects. Upon
notification to such lineal descendants or culturally-affiliated groups
pursuant to this subdivision, ownership of and responsibility for the
human remains and funerary objects shall vest exclusively in such
descendants or groups, which shall have authority to determine their
disposition subject to the provisions of this section.
(e) Where a burial site contains both Native American and non-Native
American human remains or funerary objects, the committee shall be
responsible for the Native American burials at the site, and the state
archaeologist shall be responsible for all other burials at the site.
Once stewardship of each is determined, the procedures established in
paragraphs (c) and (d) of this subdivision shall apply.
6. Disposition of remains and objects. (a) Within ten days after
receiving notification from the state archaeologist to lineal
descendants or a culturally-affiliated group, other than a Native
American Nation or tribe, of the discovery of a burial site, the
descendants or group shall advise the state archaeologist in writing as
to the preferred disposition of the discovered remains or objects, which
may include a request to protect the burial site and keep the remains
interred where they were found. The state archaeologist shall consult
with the property owner to try to facilitate the request of the lineal
descendants or culturally-affiliated group.
(b) Within sixty days after receiving notification from the committee
to a lineal descendant or culturally-affiliated group of the discovery
of a burial site, the descendants or group shall advise the committee in
writing as to the preferred disposition of the discovered remains or
objects, which may include a request to protect the burial site and keep
the remains interred where they were found. The committee shall consult
with the property owner to try to facilitate the request of the lineal
descendants or culturally-affiliated group.
(c) No later than ten days after receiving the report from the state
archaeologist pursuant to subdivision four of this section, the property
owner shall inform the state archaeologist of their decision with
respect to the interment of the remains on their property. The report
from the state archaeologist to the property owner shall clearly include
that the property owner has ten days to notify the state archaeologist
of their decision. If a property owner fails to notify the state
archaeologist of their decision, the state archaeologist or the
committee, as appropriate, shall abide by the decision of the lineal
descendants or culturally-affiliated group.
(d) Only the state archaeologist, a registered archaeologist, or a
registered professional archaeologist may touch or handle any remains or
funerary objects.
7. Disposition of human remains and funerary objects, generally. (a)
The property owner, their agents, assignees, employees, family members,
friends, acquaintances, or any other individuals acting on behalf of
such property owner, other than the state archeologist or a registered
archeologist or a registered professional archaeologist hired by the
property owner and acting pursuant to paragraph (d) of this subdivision,
are strictly prohibited from moving, relocating, transferring, selling,
possessing, touching, handling, or otherwise intentionally disturbing,
in any manner, all human remains and funerary objects that are
discovered on site. Except as necessary to carry out the purposes of
this section, burial sites, human remains and funerary objects shall
remain undisturbed after discovery and during the process established by
this section.
(b) While the disposition of the remains shall be determined by the
lineal descendants or culturally-affiliated group, and the property
owner, the preferred disposition as a matter of policy is to have the
remains stay interred where they are discovered.
(c) (i) If the lineal descendants, or culturally-affiliated group, and
the property owner agree that the remains shall stay interred, the
committee or state archaeologist, as appropriate, shall establish a plan
of action for the preservation and protection of the remains.
(ii) If the lineal descendants or culturally-affiliated group requests
that the remains be excavated and moved to a different location, the
committee or state archaeologist, as appropriate, shall establish and
implement a plan of action for the respectful, dignified excavation and
removal of the remains.
(iii) If the lineal descendants or culturally-affiliated group advise
that the remains stay interred, but the property owner notifies of their
decision, as provided in this section, that the remains should be
removed, the committee or state archaeologist, as appropriate, shall
establish and implement a plan of action for the respectful, dignified
excavation and removal of the remains. Such plan shall not be
inconsistent with the provisions of this section. The committee or state
archaeologist may, prior to the execution of the plan of action, consult
with the property owner in an attempt to realize the request of the
lineal descendants or culturally-affiliated group. The committee or
state archaeologist may use a mediator, at no cost to the property owner
unless mediation is requested by the property owner, as part of this
process.
(d) (i) If the plan of action has not been implemented within ninety
days of the notification to the state archaeologist by the coroner or
medical examiner pursuant to paragraph (a) of subdivision four of this
section, and any additional time provided pursuant to paragraph (b) of
subdivision four of this section, the property owner may decide to
excavate and remove the remains, provided that they shall engage a
registered archeologist or a registered professional archaeologist,
registered with the Register of Professional Archaeologists and who
practices in the field of bioarchaeology or forensic anthropology, to
excavate and remove the remains in a respectful and dignified manner
that is not inconsistent with the provisions of this section, and
provided further that the property owner may request the state
archeologist to perform any such excavation or removal. The
culturally-affiliated group shall have the right to have a cultural
monitor on site prior to and during any excavation and removal of human
remains or funerary objects. Failure of the culturally-affiliated group
to have a monitor on site shall not be grounds to prohibit, prevent, or
pause any excavation, removal, or other conduct as provided in this
section.
(ii) If the plan of action has been substantially implemented but not
completed within the ninety-day period, and any additional time provided
pursuant to paragraph (b) of subdivision four of this section, the
committee or state archaeologist may have one additional ten-day period
to complete the excavation and removal. The state archaeologist, in
consultation with the committee, where appropriate, shall determine
whether the plan of action has been substantially implemented.
(iii) Any excavation and removal caused by the property owner pursuant
to this paragraph shall be done at the expense of the property owner and
shall be performed and supervised by the registered archaeologist, or a
registered professional archaeologist, hired by the property owner
pursuant to this subdivision, provided that the property owner may
request the state archeologist to complete any such excavation or
removal even after the ninety-day implementation period or any
additional time provided in this section has expired. The
culturally-affiliated group may select a cultural monitor to observe the
work. Such archaeologist shall review the established plan of action
with the state archaeologist or the committee, as appropriate, and act
in accordance with that plan. For the purposes of this paragraph, only
the state archaeologist, as provided in this section, or the registered
archaeologist or registered professional archaeologist hired to perform
the excavation pursuant to this subdivision may have physical contact
with or otherwise disturb the remains or burial site.
(iv) The state archaeologist or committee shall make themselves
available to the registered archaeologist or registered professional
archaeologist forthwith for the purposes of discussing the established
plan of action for the site. If the state archaeologist or committee
fails to make themselves available forthwith, the registered
archaeologist or registered professional archaeologist may proceed with
the excavation and removal.
(v) If no plan of action has been established prior to the expiration
of the ninety-day period, and any additional time provided pursuant to
paragraph (b) of subdivision four of this section, the registered
archaeologist or registered professional archaeologist may proceed with
the excavation and removal in a professional, respectful, dignified
manner that is not inconsistent with the provisions of this section.
(vi) Any remains or funerary objects excavated from the site as a
result of the implementation of the process established by this
paragraph shall be deposited with the New York state museum for
disposition.
(vii) Notwithstanding any conflicting provision of this section, the
state archeologist may at any time monitor and observe any excavation
and removal performed pursuant to this section.
(e) If the state archaeologist and the committee have been unable to
identify the lineal descendants or culturally-affiliated group for human
remains or funerary objects, the state archaeologist shall take
stewardship of the remains and shall make the recommendation for their
disposition in accordance with the provisions of this section.
(f) Notwithstanding any conflicting provision of paragraph (d) of this
subdivision, for project sites that contain the remains of six or more
individuals, if the state archaeologist determines that additional time
is necessary for the excavation of such site, an additional thirty-day
period may be added before the remains can be excavated and removed by
the property owner. If the state archeologist continues to find that
additional time is necessary, the period before remains can be excavated
and removed by the property owner may be extended multiple times in
increments of thirty days. The state archaeologist must provide a copy
of each such determination to the property owner in writing. The
property owner may bring an action pursuant to article seventy-eight of
the civil practice law and rules to review the determination of the
state archaeologist pursuant to this paragraph.
8. Penalties. (a) Any person who fails to report the discovery of a
burial site, human remains or funerary objects as required by
subdivision four of this section shall be guilty of a class B
misdemeanor, as defined in the penal law.
(b) Any person other than the state archaeologist, or a person or
group with a right to remove or a right of possession or stewardship
pursuant to this section, or a designee thereof, who intentionally
removes human remains or funerary objects from a burial site shall be
guilty of a class A misdemeanor, as defined in the penal law.
(c) Any person (i) who knowingly defaces or destroys a burial site,
human remains or funerary objects, or (ii) who, knowing that a burial
site, human remains, or funerary objects exist causes another person to
deface or destroy such burial site, human remains, or funerary objects,
or (iii) who possesses human remains or funerary objects with intent to
sell such remains or artifacts, or (iv) who sells or attempts to sell
human remains or funerary objects, except when authorized by law, shall
be guilty of a class E felony, as defined in the penal law.
9. Enforcement. The attorney general or any aggrieved party, including
the committee and any lineal descendant or culturally-affiliated group,
may bring an action in supreme court in the judicial district where the
remains or objects covered by this section are located to enjoin
violations or threatened violations of this section, and to recover such
remains or objects.
ARTICLE 7-A Solicitation and Collection of Funds For Charitable Purposes
Definitions. The following words and phrases as used in this
article shall have the following meanings unless a different meaning is
required by the context. 1. "Charitable organizations." Any benevolent,
philanthropic, patriotic, or eleemosynary person or one purporting to be
such or law enforcement support organization as defined in subdivision
eleven of this section.
2. "Contribution." The promise or grant of any money or property of
any kind or value, whether or not in combination with the sale of goods,
services, entertainment or any other thing of value, including a grant
or other financial assistance from any agency of government, except
payments by members of any organization for membership, for services or
other benefit, other than the right to vote for directors or trustees,
elect officers, or hold offices.
3. "Person." Any individual, organization, group, association,
partnership, corporation, or any combination of them.
4. "Professional fund raiser." Any person who directly or indirectly,
by contract, including but not limited to sub-contract, letter or other
agreement or other engagement on any basis, for compensation or other
consideration (a) plans, manages, conducts, carries on, or assists in
connection with a charitable solicitation or who employs or otherwise
engages on any basis another person to solicit from persons in this
state for or on behalf of any charitable organization or any other
person, or who engages in the business of, or holds himself out to
persons in this state as independently engaged in the business of
soliciting for such purpose; (b) solicits on behalf of a charitable
organization or any other person; or (c) who advertises that the
purchase or use of goods, services, entertainment or any other thing of
value will benefit a charitable organization but is not a commercial
co-venturer. A bona fide director, trustee, officer, volunteer or
employee of a charitable organization or fund raising counsel shall not
be deemed a professional fund raiser.
5. "Professional solicitor." Any person who is employed or retained
for compensation by a professional fund raiser to solicit contributions
for charitable purposes or for the purposes of any law enforcement
support organization from persons in this state.
6. "Commercial co-venturer." Any person who for profit is regularly
and primarily engaged in trade or commerce other than in connection with
the raising of funds or any other thing of value for a charitable
organization and who advertises that the purchase or use of goods,
services, entertainment, or any other thing of value will benefit a
charitable organization.
7. "Secretary." The secretary of state.
8. "Membership." The collective body of any charitable organization
comprised of persons having voting rights and other powers of
governance.
9. "Fund raising counsel." Any person who for compensation consults
with a charitable organization or who plans, manages, advises, or
assists with respect to the solicitation in this state of contributions
for or on behalf of a charitable organization, but who does not have
access to contributions or other receipts from a solicitation or
authority to pay expenses associated with a solicitation and who does
not solicit. A bona fide officer, volunteer, or employee of a charitable
organization or an attorney at law retained by a charitable organization
or an individual engaged solely to draft applications for funding from a
governmental agency or an entity exempt from taxation pursuant to
section 501(c)(3) of the internal revenue code, shall not be deemed a
fund raising counsel.
10. "Solicit." To directly or indirectly make a request for a
contribution, whether express or implied, through any medium. A
"solicitation" shall be deemed to have taken place whether or not a
contribution is made. For purposes of this article, a "solicitation" or
a "solicitation of contributions" includes any advertising which
represents that the purchase or use of goods, services, entertainment or
any other thing of value will benefit a charitable organization.
Provided, however, that the printing and the mailing of a written
solicitation for funds or any other thing of value to benefit a
charitable organization shall not alone constitute soliciting on the
part of persons who printed and mailed such solicitation if such persons
do not otherwise solicit, receive or have access to contributions.
11. "Law enforcement support organization." Any organization,
association, union or conference of or purporting to be of current or
former law enforcement officers, including, without limitation, peace
officers and police officers as defined in subdivisions thirty-three and
thirty-four of section 1.20 of the criminal procedure law, sheriffs,
deputy sheriffs, detectives, investigators or constables or any
auxiliary or affiliate of such an organization, association, union or
conference composed of one or more such organizations.
12. "Attorney general". The attorney general of the state of New York.
Registration of charitable organizations. 1. Every charitable
organization, and any charitable organization registered or required to
be registered pursuant to article eight of the estates, powers and
trusts law, except as otherwise provided in section one hundred
seventy-two-a of this article, which intends to solicit contributions
from persons in this state or from any governmental agency shall, prior
to any solicitation, file with the attorney general a prescribed
registration form that includes, but is not limited to, the following
information:
(a) The name of the organization and the name or names under which it
intends to solicit contributions.
(b) The names and business, residence, or other addresses where each
can regularly be found of the officers, directors, trustees, and
executive personnel of the organization.
(c) The addresses of the organization and the addresses of any offices
in this state. If the organization does not maintain an office, the name
and address of the person having custody of its financial records.
(d) Where and when the organization was established, the form of its
organization, its tax exempt status together with a copy of the most
recent letter of exemption, if any, issued by the internal revenue
service, the most recent communication from the internal revenue service
regarding any audit thereby, if any, and a copy of any certificate of
incorporation, by-laws, amendments and other operative organizational
documents.
(e) A clear description of the specific programs stating whether in
existence or planned for which the contributions to be solicited will be
used.
(f) The date on which the fiscal year of the organization ends.
(g) Whether the organization is authorized by any other governmental
authority to solicit contributions and whether it or any of its present
officers, directors, executive personnel or trustees are or have ever
been fined or otherwise penalized or enjoined from soliciting
contributions or have been found to have engaged in unlawful practices
regarding solicitation of contributions or administration of charitable
assets and whether its registration or license has been suspended or
cancelled by any court or other governmental agency together with the
identity of such courts or governmental agencies and the reasons for
such fine, penalty, injunction, suspension or cancellation.
(h) The names and addresses of any professional fund raisers, fund
raising counsels and commercial co-venturers who are acting or have
agreed to act on behalf of the organization.
(i) A copy of its annual report, if any, for the immediately preceding
fiscal year in accordance with the requirements of section one hundred
seventy-two-b of this article.
(j) The names and addresses of any chapters, branches, affiliates or
organizations that share in the contributions or other revenue raised in
this state.
2. The registration form shall be signed under penalties for perjury
by the president or other authorized officer and the chief fiscal
officer of the organization.
3. At the time of filing such registration, each charitable
organization shall pay to the attorney general a fee of twenty-five
dollars.
4. Any charitable organization required to register with the attorney
general pursuant to this article and properly registered pursuant to
article eight of the estates, powers and trusts law that has not
previously registered pursuant to this article shall not be required to
register separately, but shall file with the attorney general a
statement that it is registered pursuant to article eight of the
estates, powers and trusts law. Such statement shall be accompanied by
all additional documents required to complete registration pursuant to
this article, including any additional financial filings required by
this article.
5. Registration pursuant to this article shall remain in effect unless
it is either cancelled as provided in this article, withdrawn by the
organization or the organization has failed to file the required
financial report and such failure has not been remedied pursuant to
subdivision seven of this section.
6. Every registered organization shall file with the attorney general
within thirty days of any material change in the information required to
be furnished by such organization under subdivision one of this section
a prescribed form stating any such changes and signed under penalties
for perjury by the president or other authorized officer of the
organization.
7. In no event shall a registration of a charitable organization to
solicit contributions in New York pursuant to this article continue, or
be continued, in effect after the date such organization should have
filed, but failed to file, a financial report in accordance with the
requirements of section one hundred seventy-two-b of this article, and
such organization shall not be eligible to file a new registration
pursuant to this article until it shall have filed the required
financial report or reports with the attorney general. If any such
report is subsequently filed such organization shall file a new
registration pursuant to this article, upon the payment of a
re-registration fee of one hundred fifty dollars to the attorney
general.
8. Forms, financial reports, professional fund raisers' contracts, and
other documents required to be filed pursuant to this article become
public records of the attorney general, except that where such records
are forms including the names, addresses or telephone numbers of
contributors and amounts contributed by them, such names, addresses, and
telephone numbers of contributors and amounts contributed by them shall
not be a public record and shall not be subject to disclosure pursuant
to article six of the public officers law, and the attorney general
shall keep such information confidential, except when authorized by a
court order, and use it solely for the purpose of conducting
investigations and litigation to enforce the not-for-profit corporation
and religious corporation laws, the provisions of this article, article
eight of the estates, powers and trusts law, and the attorney general's
other authority to oversee charities and charitable assets.
9. No charitable organization, professional fund raiser, fund raising
counsel or commercial co-venturer shall use or exploit the fact of its
registration or the registration of any other registrant under this
article or article eight of the estates, powers and trusts law so as to
lead the public to believe that registration in any manner constitutes
an endorsement or approval by the state.
10. To the extent practicable, the attorney general shall develop a
single registration and uniform set of reporting forms to be filed in
accordance with the requirements of this subdivision and those of
section 8-1.4 of the estates, powers and trusts law. These forms shall
avoid duplication with and make maximum use of information required in
federal reporting forms filed with the attorney general.
Certain persons exempted. 1. This article shall not apply to
corporations organized under the religious corporations law, and other
religious agencies and organizations, and charities, agencies, and
organizations operated, supervised, or controlled by or in connection
with a religious organization.
2. The following persons shall not be required to register with the
attorney general:
(a) An educational institution confining its solicitation of
contributions to its student body, alumni, faculty and trustees, and
their families.
(b) Fraternal, patriotic, social, alumni, law enforcement support
organizations and historical societies chartered by the New York state
board of regents when solicitation of contributions is confined to their
membership.
(c) Persons requesting any contributions for the relief of any
individual, specified by name at the time of the solicitation, if all of
the contributions collected, without any deductions whatsoever, are paid
to or for the benefit of the named beneficiary. Prior to the
commencement of any such solicitation, the principal person requesting
contributions may file with the attorney general a form, provided by the
attorney general, which shall read as follows:
CHARITABLE SOLICITATION FOR THE RELIEF OF AN INDIVIDUAL
______________________________________________________________________
NAME AND ADDRESS OF THE PRINCIPAL PERSON REQUESTING CONTRIBUTIONS
______________________________________________________________________
PURPOSE OF THE SOLICITATION
______________________________________________________________________
NAME AND ADDRESS OF THE PRIMARY INDIVIDUAL BENEFICIARY
______________________________________________________________________
NAME AND ADDRESS OF SECONDARY BENEFICIARY (IF ANY)
LIST NO MORE THAN THREE SECONDARY BENEFICIARIES
The principal person requesting contributions may, on such form
designate up to three secondary individuals or charitable organizations
as charitable beneficiaries who shall be entitled to such contributions
in the event circumstances change rendering it impossible or
impracticable to use any or all of the money collected for the primary
beneficiary. The designation of one or more secondary beneficiaries
shall be ineffective unless such form has been filed with the attorney
general and all persons requesting contributions shall have informed any
person solicited at the time of any solicitation of such filing. In the
event that it is or may be impossible or impracticable to use any or all
of the money collected for the benefit of the primary beneficiary, and
(i) no secondary beneficiary has been properly designated pursuant to
this paragraph, or (ii) no secondary beneficiary exists, then the
attorney general, the primary beneficiary, or any person who requested
contributions may petition the supreme court, on notice to the attorney
general, the primary beneficiary if living, any secondary beneficiaries,
and the principal person who requested the contributions for an order
directing that any moneys remaining shall be transferred to a charitable
organization with purposes similar to those for which such contributions
were collected. In the event that money collected for the relief of any
individual, without any deductions whatsoever, is paid to or for the
benefit of the primary beneficiary within sixty days of its receipt,
then all requirements of this paragraph shall be deemed to have been
complied with. For the purposes of this section, the term "principal
person requesting the contributions" shall mean any person who is
primarily responsible for soliciting funds for the relief of an
individual, but shall not include any person who solicits funds when all
such funds are subsequently transferred over to a principal person
requesting contributions.
(d) Any charitable organization which solicits or receives gross
contributions of less than twenty-five thousand dollars during a fiscal
year of such organization, provided none of its fund raising is carried
on by professional fund raisers or fund raising counsel. However, if the
gross contributions received by such charitable organization during any
fiscal year of such organization shall be in excess of twenty-five
thousand dollars, it shall within thirty days after the date it shall
have received gross contributions in excess of twenty-five thousand
dollars register with the attorney general as required by section one
hundred seventy-two of this article.
(e) Any charitable organization receiving an allocation from a
federated fund, incorporated community appeal or a united way, provided
such fund, appeal or united way is complying with the provisions of this
article relating to registration and filing of financial reports with
the attorney general, and provided such organization does not receive,
in addition to such allocation, gross contributions in excess of
twenty-five thousand dollars during the fiscal year, and provided
further that all the fund-raising functions of such organizations are
carried on by persons who are unpaid for such services. However, if the
gross contributions other than such allocation received by such
charitable organization during any fiscal year of such organization
shall be in excess of twenty-five thousand dollars, it shall within
thirty days after the date it shall have received such contributions in
excess of twenty-five thousand dollars register with the attorney
general as required by section one hundred seventy-two of this article.
(f) A local post, camp, chapter or similarly designated element, or a
county unit of such elements, of a bona fide veterans' organization
which issues charters to such local elements throughout this state, a
bona fide organization of volunteer firefighters, an organization
providing volunteer ambulance service (as defined in section three
thousand one of the public health law) or a bona fide auxiliary or
affiliate of such organizations, provided all its fund-raising
activities are carried on by members of such an organization or an
affiliate thereof and such members receive no compensation, directly or
indirectly, therefor.
(g) An educational institution which files annual financial reports
with the regents of the university of the state of New York as required
by the education law or with an agency having similar jurisdiction in
another state or a library which files annual financial reports as
required by the state education department.
(h) A charitable organization which receives all or substantially all
of its funds from a single governmental agency and reports annually to
that agency provided such reports contain financial information
substantially similar in content to that required by subdivision one of
section one hundred seventy-two-b of this article; provided, however,
that such organization may receive no more than twenty-five thousand
dollars from sources other than the government agency to which it
reports.
(i) Any police department, sheriff's department or other governmental
law enforcement agency.
(j) The state parent teachers association and any parent teachers
association affiliated with an educational institution that is subject
to the jurisdiction of the state education department.
Reports by registered charitable organizations; registration
to be cancelled for failure to file. 1. Every charitable organization
registered or required to be registered pursuant to section one hundred
seventy-two of this article which shall receive in any fiscal year gross
revenue and support in excess of one million dollars shall file with the
attorney general an annual written financial report, on forms prescribed
by the attorney general, on or before the fifteenth day of the fifth
calendar month after the close of such fiscal year. The annual financial
report shall be accompanied by an annual financial statement which
includes an independent certified public accountant's audit report
containing an opinion that the financial statements are presented fairly
in all material respects and in conformity with generally accepted
accounting principles, including compliance with all pronouncements of
the financial accounting standards board and the American Institute of
Certified Public Accountants that establish accounting principles
relevant to not-for-profit organizations. Such financial report shall
include a statement of any changes in the information required to be
contained in the registration form filed on behalf of such organization.
The financial report shall be signed by the president or other
authorized officer and the chief fiscal officer of the organization who
shall certify under penalties for perjury that the statements therein
are true and correct to the best of their knowledge, and shall be
accompanied by an opinion signed by an independent public accountant
that the financial statement and balance sheet therein present fairly
the financial operations and position of the organization. A fee of
twenty-five dollars payable to the attorney general shall accompany such
financial report at the time of filing, provided however, that any such
organization that is registered with the attorney general pursuant to
article eight of the estates, powers and trusts law is required to file
only one annual financial report which meets the filing requirements of
this article and section 8-1.4 of the estates, powers and trusts law.
2. Every charitable organization registered or required to be
registered pursuant to section one hundred seventy-two of this article
which shall receive in gross revenue and support in any fiscal year at
least two hundred fifty thousand dollars but not more than one million
dollars shall file an annual financial report. The annual financial
report shall be accompanied by an annual financial statement which
includes an independent certified public accountant's review report in
accordance with "statements on standards for accounting and review
services" issued by the American Institute of Certified Public
Accountants. The annual financial statement shall be prepared in
conformity with generally accepted accounting principles, including
compliance with all pronouncements of the financial accounting standards
board and the American Institute of Certified Public Accountants that
establish accounting principles relevant to not-for-profit
organizations. Such financial report shall be filed with the attorney
general, upon forms prescribed by the attorney general on an annual
basis on or before the fifteenth day of the fifth calendar month after
the close of such fiscal year, which shall include a financial report
covering such fiscal year in accordance with such requirements as the
attorney general may prescribe. Such financial report shall include a
statement of any changes in the information required to be contained in
the registration form filed on behalf of such organization. The
financial report shall be signed by the president or other authorized
officer and the chief fiscal officer of the organization who shall
certify under penalties for perjury that the statements therein are true
and correct to the best of their knowledge. A fee of twenty-five dollars
payable to the attorney general shall accompany such financial report at
the time of filing, provided, however, that any such organization that
is registered with the attorney general pursuant to article eight of the
estates, powers and trusts law is required to file only one annual
financial report which meets the filing requirements of this article and
section 8-1.4 of the estates, powers and trusts law. Notwithstanding the
requirements of this section, if upon review of an independent certified
public accountant's review report filed pursuant to this subdivision,
the attorney general determines that a charitable organization should
obtain an independent certified public accountant's audit report, such
organization shall obtain and file with the attorney general an audit
report that meets the requirements of subdivision one of this section
within one hundred twenty days of the attorney general's request for
such report.
2-a. Every charitable organization registered or required to be
registered pursuant to section one hundred seventy-two of this article
which shall receive in any fiscal year of such organization gross
revenue and support not in excess of two hundred fifty thousand dollars
shall file with the attorney general an unaudited financial report on
forms prescribed by the attorney general, on or before the fifteenth day
of the fifth calendar month after the close of such fiscal year. Such
financial report shall include a statement of any changes in the
information required to be contained in the registration form filed on
behalf of such organization. The financial report shall be signed by the
president or other authorized officer and the chief fiscal officer of
the organization who shall certify under penalties for perjury that the
statements therein are true and correct to the best of their knowledge.
A fee of twenty-five dollars payable to the attorney general shall
accompany such financial report at the time of filing. Provided,
however, that any such organization that is registered with the attorney
general pursuant to article eight of the estates, powers and trusts law
is required to file only one annual financial report which meets the
filing requirements of this article and section 8-1.4 of the estates,
powers and trusts law.
3. For any fiscal year of any organization registered pursuant to
section one hundred seventy-two of this article in which such
organization would have been exempt from registration pursuant to
section one hundred seventy-two of this article if it had not been so
registered, or in which it did not solicit or receive contributions,
such organization shall file, instead of the financial reports required
by subdivision one, two or two-a of this section, a report, signed under
penalties for perjury by the president or other authorized officer and
the chief fiscal officer, in the form prescribed by the attorney general
stating the nature of the exemption and the facts upon which it is based
or that such organization did not solicit or receive contributions in
such fiscal year. The report shall include a statement of any changes in
the information required to be contained in the registration form filed
on behalf of such organization and may include a notice, signed under
penalties for perjury by the president or other authorized officer, on a
form prescribed by the attorney general, that such organization's
registration is being withdrawn.
4. (a) Upon prior written authorization by the attorney general any
charitable organization registered pursuant to section one hundred
seventy-two of this article, which is the parent organization of one or
more affiliates thereof, and such affiliates, may comply with the
reporting requirements of subdivision one, two, two-a or three of this
section, by filing a combined written annual financial report upon forms
prescribed by the attorney general.
(b) As used in this subdivision the term "affiliate" shall include any
chapter, branch, auxiliary, or other subordinate unit of any registered
charitable organization, howsoever designated, whose policies, fund
raising activities, and expenditures are supervised or controlled by
such parent organization.
(c) There shall be appended to each combined annual financial report a
schedule, containing such information as may be prescribed by the
attorney general, reflecting the activities of each affiliate, which
shall contain a statement signed under penalties for perjury, by the
president or other authorized officer certifying that the information
contained therein is true.
(d) The failure of a parent organization to file a combined annual
financial written report shall not excuse either the parent organization
or its affiliates from complying with the provisions of subdivision one,
two, two-a or three of this section.
(e) A combined annual financial report filed pursuant to this
subdivision shall be accompanied by a fee, paid to the attorney general,
of twenty-five dollars plus ten dollars for each organization included
in such annual financial report, but the aggregate fee shall not exceed
five hundred dollars.
5. The attorney general shall cancel the registration of any
organization which fails to comply with subdivision one, two, two-a or
three of this section within the time therein prescribed, or fails to
furnish such additional information as is requested by the attorney
general within the required time; except that the time may be extended
by the attorney general for a period not to exceed one hundred eighty
days. Notice of such cancellation shall be mailed to the registrant at
least twenty days before the effective date thereof.
6. Every charitable organization registered or required to register
pursuant to section one hundred seventy-two of this article shall keep
and maintain records, books and reports for at least three years after
the end of the period of registration to which they relate which shall
at all times be available for inspection, by the attorney general, or
any duly authorized representatives at the principal office of such
organization.
7. The attorney general may accept a copy of a current financial
report previously filed by a charitable organization with any other
governmental agency in compliance with the provisions of this article
provided that the report filed with such other governmental agency shall
be substantially similar in content to the financial report required by
this section.
8. Any financial report filed by any charitable organization required
to be registered but which has not previously registered pursuant to
this article or article eight of the estates, powers and trusts law must
be accompanied by all registration material required to be filed by this
article.
9. Any registered charitable organization that is required to file a
funding disclosure report pursuant to section one hundred seventy-two-e
of this article, and/or a financial disclosure report pursuant to
section one hundred seventy-two-f of this article for a reporting period
during the applicable fiscal year shall also be required to file such
annual financial report, including all required forms and attachments,
with the department of state.
Non-resident charitable organizations; designation of
secretary of state as agent for service of process; service of process.
1. Any charitable organization having its principal place of business
without the state or organized under and by virtue of the laws of
another or foreign state and which solicits contributions from people in
this state, shall be deemed to have irrevocably appointed the secretary
of state as its agent upon whom may be served any summons, subpoena,
subpoena duces tecum, other process or notice directed to such
charitable organization, or any partner, principal, officer, trustee or
director thereof, in any action or proceeding brought by the attorney
general or any other party under the provisions of this article. Any
such charitable organization may file with the secretary of state of the
state of New York a designation, duly acknowledged in accordance with
procedures for such filing with the secretary of state, irrevocably
appointing the secretary of state as its agent upon whom may be served
any such process; provided, however, that a designation filed with the
secretary of state pursuant to section three hundred fifty-two-a of the
general business law or section thirteen hundred four of the
not-for-profit corporation law shall serve also as such designation.
2. Service of such process upon the secretary of state shall be made
by personally delivering to and leaving with the secretary of state or
any person authorized by the secretary of state to accept such service a
copy thereof at the office of the department of state in the city of
Albany, and such service shall be sufficient service provided that
notice of such service and a copy of such process are forthwith sent by
the attorney general or any other party to such charitable organization
by certified mail with return receipt requested, at its office as set
forth in the registration form required to be filed with the attorney
general pursuant to section one hundred seventy-two of this article, or
in default of the filing of such form, at the last address known to the
attorney general or any other party. Service of such process shall be
complete upon the receipt by the attorney general or any other party of
a return receipt purporting to be signed by the addressee or a person
qualified to receive its certified mail, in accordance with the rules
and customs of the post office department, or, if acceptance was refused
by the addressee or its agent, ten days after the return to the attorney
general or any other party of a notation by the postal authorities that
receipt thereof was refused.
Prohibited activity. Except as exempted pursuant to
subdivision one of section one hundred seventy-two-a of this article, in
addition to other violations of this article no person shall:
1. Make any material statement which is untrue in an application for
registration, registration statement, a claim of exemption, financial
report or any other forms or documents required to be filed or filed
pursuant to this article; or fail to disclose a material fact in an
application for registration, registration statement, claim of
exemption, financial report or any other forms or documents required to
be filed or filed pursuant to this article; or
2. Engage in any fraudulent or illegal act, device, scheme, artifice
to defraud or for obtaining money or property by means of a false
pretense, representation or promise, transaction or enterprise in
connection with any solicitation or with the registration, reporting and
disclosure provisions of this article. The term "fraud" or "fraudulent"
as used herein shall include those acts which may be characterized as
misleading or deceptive including but not limited to those acts covered
by the term "fraud" or "fraudulent" under subdivision twelve of section
sixty-three of this chapter. To establish fraud neither intent to
defraud nor injury need to be shown; or
3. Use or intend to use false or materially misleading advertising or
promotional material in connection with any solicitation; or
4. Fail to apply contributions in a manner substantially consistent
with the solicitation or the registration statement of the charitable
organization or the purposes expressed therein; or
5. Enter into any contract or agreement with or otherwise employ or
engage any professional fund raiser, fund raising counsel or
professional solicitor required to be registered pursuant to this
article unless such professional fund raiser, fund raising counsel or
professional solicitor has provided to such person a statement, signed
under penalties for perjury, that it is registered and in compliance
with all filing requirements of this article; or
6. Enter into any contract or agreement, employment or engagement to
raise funds or conduct any fund raising activities for any charitable
organization required to be registered pursuant to this article unless
such charitable organization is registered and in compliance with all
filing requirements of this article; or
7. Repeatedly and wilfully fail to file as required by this article
any fund-raising contract, closing statement or report or other form or
document; or
8. Fail to respond or comply within sixty days with any cease and
desist order of the attorney general; or
9. Represent in any manner that registration constitutes an
endorsement or approval by the state or the attorney general; or
10. Solicit for a charitable purpose or engage in any other fund
raising activities without being a registered charitable organization in
compliance with all filing requirements of this article, if required to
be registered, or having a written contract or agreement with a
charitable organization or registered charitable organization if
required to be registered, authorizing solicitation on its behalf; or
11. Continue soliciting on behalf of a charitable organization more
than fifteen days after the cancellation in accordance with subdivision
six of section one hundred seventy-four-a of this article; or
12. Act as or enter any contract or other agreement with a charitable
organization as a professional fund raiser, fund raising counsel, or
professional solicitor without having registered and being in compliance
with all filing and disclosure requirements of this article; or
13. Fail to maintain books and records as required by this article or
fail to produce to the attorney general any such books and records
within fifteen days of receiving, by certified mail, a request for such
books and records; or
14. Fail to discontinue solicitation immediately or to register
pursuant to this article within fifteen days after the attorney general
has given notice pursuant to subdivision two of section one hundred
seventy-five of this article of violation of subdivision one, two, or
three of section one hundred seventy-four of this article; or
15. Fail to provide a charitable organization with an accurate
accounting of a sale advertised for its benefit as prescribed by
subdivision three of section one hundred seventy-three-a of this
article; or
16. Knowingly use in the course of soliciting contributions for or on
behalf of a charitable organization a name, symbol, or other mark so
closely related or similar to that used by another established
charitable organization that the use thereof would tend to confuse or
mislead the public; or
17. Solicit contributions in a manner or with words which are coercive
as such term is defined pursuant to section 135.65 of the penal law; or
18. Vote or use personal influence as an officer or member of the
board of directors of a charitable organization, a majority of whose
members are professional fund raisers or their designees on matters on
which such officer or member has a financial or material conflicting
interest; or
19. Include in any solicitation a statement that the financial report
of a charitable organization or professional fund raiser is on file with
the attorney general unless the charitable organization or professional
fund raiser has complied with all filing requirements pursuant to this
article and article eight of the estates, powers and trusts law, to the
extent also applicable; or
20. Use in any solicitation a New York state address, including a New
York state return address unless:
(a) the charitable organization maintains and staffs an office at that
address; or
(b) immediately proximate to the New York address, both the address of
the charitable organization's actual headquarters and the fact that the
New York address is a "mail drop", using this or a substantially similar
term that clearly conveys the message that the New York address is that
of a mail handling facility; or
21. State or imply that a charitable organization conducts any
activities in New York and/or benefits New York state residents unless
it conducts such activities and/or provides such benefits.
Disclosure of certain donations by charitable non-profit
entities. 1. Definitions. For the purposes of this section:
(a) "Covered entity" shall mean any corporation or entity that is
qualified as an exempt organization or entity by the United States
Department of the Treasury under I.R.C. 501(c)(3) that is required to
report to the department of law pursuant to this section.
(b) "In-kind donation" shall mean donations of staff, staff time,
personnel or any other human resources, offices or office supplies,
except that an in-kind donation shall not include an in-kind donation
made by a person or entity in the course of an activity that is
substantially related to accomplishing the covered entity's tax exempt
purposes where the in-kind donator is offering or providing goods or
services for substantially less than fair market value to individuals,
corporations or groups, and those goods or services are actually
purchased or consumed by wholly unaffiliated individuals, corporations
or groups for no charge or substantially less than fair market value,
and may include, but is not limited to, pro bono legal services and
other forms of technical assistance.
(c) "Donation" shall mean any contribution, including a gift, loan,
in-kind donation, advance or deposit of money or anything of value.
(d) "Recipient entity" shall mean any corporation or entity that is
qualified as an exempt organization or entity by the United States
Department of the Treasury under I.R.C. 501(c)(4) that is required to
file a source of funding report with the commission on ethics and
lobbying in government pursuant to sections one-h and one-j of the
legislative law.
(e) "Reporting period" shall mean the six month period within a
calendar year starting January first and ending June thirtieth or the
six month period within a calendar year starting July first and ending
December thirty-first.
2. Funding disclosure reports to be filed by covered entities. (a) Any
covered entity that makes an in-kind donation in excess of ten thousand
dollars to a recipient entity during a relevant reporting period shall
file a funding disclosure report with the department of state. The
funding disclosure report shall include:
(i) the name and address of the covered entity that made the in-kind
donation;
(ii) the name and address of the recipient entity that received or
benefitted from the in-kind donation;
(iii) the names of any persons who exert operational or managerial
control over the covered entity. The disclosures required by this
paragraph shall include the name of at least one natural person;
(iv) the date such donation was made by the covered entity; and
(v) a description of the in-kind donation, including the charitable
purpose advanced by such donation, if any, and any restrictions on the
use of such donation by the recipient entity.
(b) The covered entity shall file a funding disclosure report with the
department of state within thirty days of the close of a reporting
period.
3. Public disclosure of funding disclosure reports. The department of
state shall promulgate any regulations necessary to implement these
requirements and shall publish such reports on the department's website
when authorized pursuant to subdivision two of this section; provided
however that the secretary of state, or his or her designee, may
determine that disclosure of all or a portion of the in-kind donations
to the covered entity and financial assistance provided by any covered
entity to one or more recipient entities, shall not be made public if,
based upon a review of the relevant facts presented by the covered
entity, such disclosure may cause harm, threats, harassment, or
reprisals to the source of the donation or to individuals or property
affiliated with the source of the donation. The covered entity may
appeal the secretary's determination and such appeal shall be heard by a
judicial hearing officer who is independent and not affiliated with or
employed by the department of state. The total amount of in-kind
donations to the covered entity and financial assistance provided by any
covered entity to one or more recipient entities that are the subject of
such appeal shall not be made public pending final judgment on appeal.
4. If a covered entity's or recipient entity's annual report filed
pursuant to section one hundred seventy-two-b of this article does not
include a completed Internal Revenue Service Form 990 schedule B and
that covered entity makes, or that recipient entity receives, qualifying
donations pursuant to subdivision two of this section, that entity shall
in addition to filing a disclosure with the department of law, also file
with the department of state a complete Internal Revenue Service Form
990 Schedule B, regardless of whether such form is submitted or required
to be submitted to the Internal Revenue Service.
Disclosure of certain activities by non-charitable non-profit
entities. 1. Definitions. (a) "Covered Entity" means any corporation or
entity that is qualified as an exempt organization or entity by the
United States Department of the Treasury under I.R.C. 501(c)(4).
(b) "Covered communication" means a communication by a covered entity,
not otherwise reported by such covered entity pursuant to article one-A
of the legislative law or article fourteen of the election law, by a
covered entity conveyed to five hundred or more members of a general
public audience in the form of: (i) an audio or video communication via
broadcast, cable or satellite; (ii) a written communication via
advertisements, pamphlets, circulars, flyers, brochures, letterheads; or
(iii) other published statement which: refers to and advocates for or
against a clearly identified elected official, executive or
administrative body or legislative body relating to the sponsorship,
support, opposition, or outcome of any proposed legislation, pending
legislation, rule, regulation, hearing or decision, or advocates for or
against action by any elected official, executive or administrative body
or legislative body.
Covered communication shall not include: (i) communications with a
professional journalist or newscaster, including an editorial board or
editorial writer of a newspaper, magazine, news agency, press
association or wire service, relating to news, as these terms are
defined in section seventy-nine-h of the civil rights law, and
communications relating to confidential and non-confidential news as
described in subdivisions (b) and (c) of section seventy-nine-h of the
civil rights law respectively and communications made pursuant to
community outreach efforts for broadcast stations required by federal
law; or
(ii) a communication that is: (A) directed, sent or distributed by the
covered entity only to individuals who affirmatively consent to be
members of the covered entity, contribute funds to the covered entity,
or, pursuant to the covered entity's articles or bylaws, have the right
to vote directly or indirectly for the election of directors or
officers, or on changes to bylaws, disposition of all or substantially
all of the covered entity's assets or the merger or dissolution of the
covered entity; or (B) for the purpose of promoting or staging any
candidate debate, town hall or similar forum to which at least two
candidates seeking the same office, or two proponents of differing
positions on a referendum or question submitted to voters, are invited
as participants, and which does not promote or advance one candidate or
position over another.
(c) "Expenditures for covered communications" shall mean: (i) any
expenditure made, liability incurred, or contribution provided for
covered communications; or (ii) any other transfer of funds, assets,
services or any other thing of value to any individual, group,
association, corporation whether organized for profit or not-for-profit,
labor union, political committee, political action committee, or any
other entity for the purpose of supporting or engaging in covered
communications by the recipient or a third party.
(d) "Donation" shall mean any contribution, including in-kind, gift,
loan, advance or deposit of money or anything of value made to a covered
entity unless such donation is deposited into an account the funds of
which are not used for making expenditures for covered communications.
(e) "Reporting period" shall mean the six month period within a
calendar year starting January first and ending June thirtieth or the
six month period within a calendar year starting July first and ending
December thirty-first.
2. Disclosure of expenditures for covered communications. (a) Any
covered entity that makes expenditures for covered communications in an
aggregate amount or fair market value exceeding ten thousand dollars in
a calendar year shall file a financial disclosure report with the
department of state. The financial disclosure report shall include:
(i) the name and address of the covered entity that made the
expenditure for covered communications;
(ii) the name or names of any individuals who exert operational or
managerial control over the covered entity. The disclosures required by
this paragraph shall include the name of at least one natural person;
(iii) a detailed description of the covered communication;
(iv) the dollar amount paid for each covered communication, the name
and address of the person or entity receiving the payment, and the date
the payment was made; and
(v) for any restricted donation received by the covered entity in
whole or in part for the support of the covered communication, the name
and address of any individual, corporation, association, or group that
made a donation to the covered entity and the date of such donation, and
the amount of the donation, together with a description of any
restriction.
(b) The covered entity shall file a financial disclosure report with
the department of state within thirty days of the close of a reporting
period.
3. Public disclosure of funding disclosure reports. The department of
state shall promulgate any regulations necessary to implement these
requirements and shall publish on the department's website the reports
of covered communications required by this section. Such publishing
shall not include the names and addresses of individual donors to
covered entities, nor shall such publishing include the covered entity's
Internal Revenue Service Form 990 Schedule B. Such report shall not be
made public pursuant to this section if, based upon a review of the
relevant facts presented by the covered entity, such disclosure may
cause harm, threats, harassment, or reprisals to the source of the
donation or to individuals or property affiliated with the source of the
donation. The covered entity may appeal the secretary's determination
and such appeal shall be heard by a judicial hearing officer who is
independent and not affiliated with or employed by the department of
state, pursuant to regulations promulgated by the department of state.
The reports subject to disclosure pursuant to this section that are the
subject of such appeal pursuant to this section shall not be made public
pending final judgment on appeal.
4. If a covered entity's annual report filed pursuant to section one
hundred seventy-two-b of this article does not include a completed
Internal Revenue Service Form 990 schedule B, the entity shall in
addition to filing a disclosure with the department of law, also file
with the department of state a complete Internal Revenue Service Form
990 schedule B, regardless of whether such form is submitted or required
to be submitted to the Internal Revenue Service.
Professional fund-raisers, commercial co-venturers and fund
raising counsel. 1. Registration and bond required. No person shall act
as a professional fund raiser or fund raising counsel on behalf of a
charitable organization required to be registered pursuant to this
article before registering with the attorney general or after the
expiration or cancellation of such registration or any renewal thereof.
Applications for registration and re-registration shall be in writing,
under oath, in the form prescribed by the attorney general and shall be
accompanied by an annual fee in the sum of eight hundred dollars. A
professional fund raiser shall at the time of filing each application
for registration or re-registration, file with, and have approved by,
the attorney general a bond. In said bond, the filer shall be the
principal obligor, in the sum of ten thousand dollars, with one or more
sureties whose liability in the aggregate as such sureties will at least
equal the said sum. The bond which may be in the form of a rider to a
larger blanket liability bond shall run to the attorney general for the
use of the state and to any person who may have a cause of action
against the obligor of said bond for any malfeasance or misfeasance in
the conduct of such solicitation. Registration or re-registration when
effected shall be for a period of one year, expiring one year from the
date of registration or re-registration and may be renewed upon written
application, under penalties for perjury, in the form prescribed by the
attorney general and the filing of the bond and the fee prescribed
herein for each additional one year period. Applications for
registration and re-registration and bonds, when filed with the attorney
general, shall become public records of the attorney general. If there
is any material change in the information provided in any such
application for registration or re-registration, the applicant or
registrant shall notify the attorney general, under penalties for
perjury, in writing within twenty days of such change.
2. Books and records. A professional fund raiser, commercial
co-venturer and fund raising counsel shall maintain accurate and current
books and records of all activities conducted pursuant to contracts
required under section one hundred seventy-three-a of this article;
which, until at least three years shall have elapsed after the end of
the effective period of the contract to which they relate, shall be kept
in such person's office available for inspection and examination and/or
audit by the charitable organization and/or attorney general or any duly
authorized representative. Provided, however, that any such books and
records obtained by the attorney general shall not be available to the
public for inspection. A professional fund raiser, commercial
co-venturer and fund raising counsel shall, within seven days of a
request of any charitable organization with which it has contracted,
provide copies of such records to the charitable organization.
3. Violations. Any person who wilfully violates the provisions of this
section is guilty of a misdemeanor.
Contracts of professional fund raisers, fund raising counsel
and commercial co-venturers; closing statements; final accountings. 1.
No person shall act as a professional fund raiser, fund raising counsel
or commercial co-venturer before he has a written contract with the
charitable organization or other person benefitting from his services. A
professional fund raiser or fund raising counsel shall within ten days
after its execution by the parties thereto file with the attorney
general a copy of each contract entered into between such professional
fund raiser or fund raising counsel and a charitable organization
required to be registered pursuant to this article, certified under
penalties for perjury by said professional fund raiser or fund raising
counsel to be a true and correct copy of such contract. When the
services to be performed under such contracts include the oral
solicitation of funds from the public, such oral presentations shall be
deemed to be part of the contract and shall be reduced to a writing
which in the case of a professional fund raiser shall be filed with the
attorney general by the registrant at the time such contracts are filed.
If there is any change in the presentation filed with the attorney
general, the registrant shall notify the attorney general in writing
within five days of such change. No services shall be performed under
such a contract until the professional fund-raiser shall have received
an acknowledgement from the attorney general of the receipt of a copy of
such contract or such contract shall have been on file with the attorney
general for at least fifteen days, whichever is shorter. Provided,
however, that no services shall be performed pursuant to such contract
if, within fifteen days of filing, the attorney general has notified the
professional fund raiser or fund raising counsel and the charitable
organization of any deficiencies in the contract and/or the registration
and filing under this article. True and correct copies of such contracts
shall be kept on file in the offices of the charitable organization and
the professional fund raiser, fund raising counsel or commercial
co-venturer during the term thereof and until the expiration of a period
of three years subsequent to the date the solicitation of contributions
provided for therein actually terminates. Within ninety days after the
termination of any such contract, the professional fund raiser shall
file with the attorney general a closing statement, signed under
penalties for perjury by all parties to the contract on forms prescribed
by the attorney general. Such statement shall disclose gross revenue,
all expenditures incurred in the performance of the contract, and all
funds paid to the professional fund raiser and charitable organization.
In the event that a contract term is longer than a one year period, the
professional fund raiser shall file an interim statement, at least
annually. No person shall act as a sub-contractor on behalf of another
professional fund raiser prior to obtaining a written contract with such
professional fund raiser and written consent from the charity on whose
behalf fundraising activities are to be conducted pursuant to such
contract, and such written consent shall have been attached to such
contract and filed with the attorney general pursuant to subdivision one
of this section. Willful violation of this section shall be a
misdemeanor.
2. Every contract between a professional fund raiser and a charitable
organization shall contain or shall be deemed to contain a provision
that within five days of receipt by the professional fund raiser or any
other person the gross revenue received from any solicitation shall be
deposited in a bank account under the exclusive control of the charity.
3. Within ninety days after the termination of a sales promotion
advertised to benefit a charitable organization, a commercial
co-venturer shall provide such organization with an accounting stating
the number of items sold, the dollar amount of each sale and the amount
paid or to be paid to the charitable organization. In the event that any
such sales promotion is longer than a one year period, the commercial
co-venturer shall provide the charitable organization with an interim
report, at least annually.
4. A charitable organization which enters into a contract with a
commercial co-venturer shall file with the attorney general on the date
that the next financial report is due to be filed the following
information on forms prescribed by the attorney general and signed under
penalties for perjury by an officer: (a) a list of the names and
addresses of all commercial co-venturers authorized by the charitable
organization to use its name during the year covered by that financial
report and, if known, during the year following the year covered by the
financial report, (b) a statement of the financial terms and any
conditions of each co-venture contract, and (c) a statement whether each
commercial co-venturer has provided the charitable organization with an
accounting as prescribed by subdivision three of this section.
Professional solicitor. 1. Registration required. No person
shall act as a professional solicitor in the employ of a professional
fund raiser required to register pursuant to section one hundred
seventy-three of this article before he or she has registered with the
attorney general or after the expiration or cancellation of such
registration or any renewal thereof. Application for registration or
re-registration shall be in writing and signed under penalties for
perjury in the form prescribed by the attorney general and shall be
accompanied by a fee in the sum of eighty dollars. Such registration or
re-registration when effected shall be for a period of one year,
expiring one year from the date of such registration or re-registration,
and may be renewed upon written application, signed under penalties for
perjury, in the form prescribed by the attorney general and the payment
of the fee prescribed herein, for additional one year periods.
Applications for registration and re-registration, when filed with the
attorney general, shall become public records in the office of the
attorney general.
2. Limitations upon professional solicitors for law enforcement
support organizations. No person or professional solicitor, in the
course of soliciting or collecting funds on behalf of any law
enforcement support organization, shall engage in any acts prohibited by
subdivision seventeen of section one hundred seventy-two-d of this
article, or by paragraph (h) of subdivision two of section one hundred
seventy-five of this article, provided, however, that no criminal
liability shall attach to any law enforcement support organization or
its officers because of the activities of any professional solicitor
employed on behalf of such organization.
3. Violations. Any person who wilfully violates the provisions of this
section is guilty of a misdemeanor.
Non-resident professional fund raisers, fund raising counsel,
professional solicitors and commercial co-venturers; designation of
secretary of state as agent for service of process; service of process.
1. Any professional fund raiser, fund raising counsel, professional
solicitor or commercial co-venturer resident or whose principal place of
business is without the state or organized under and by virtue of the
laws of another or foreign state, who or which has been engaged by or on
behalf of any charitable organization to conduct any fund raising
activities in this state and/or solicit contributions from people in
this state shall be deemed to have irrevocably appointed the secretary
of state as the agent upon whom may be served any summons, subpoena,
subpoena duces tecum, other process or notice directed to such
professional fund raiser, fund raising counsel, professional solicitor,
commercial co-venturer or any partner, principal, officer, or director
thereof, in any action or proceeding brought by the attorney general or
any other party under the provisions of this section. Any such
professional fund raiser, fund raising counsel, professional solicitor
or commercial co-venturer may file with the secretary of state a
designation, in terms complying herewith, duly acknowledged, irrevocably
appointing the secretary of state as the agent upon whom may be served
any such process; provided, however, that a designation filed with the
secretary of state pursuant to section three hundred fifty-two-a of the
general business law, section thirteen hundred four of the
not-for-profit corporation law, or section thirteen hundred four of the
business corporation law shall serve also as such designation.
2. Service of such process or notice upon the secretary of state shall
be made by personally delivering to and leaving with the secretary of
state or any person authorized by the secretary of state to accept such
service a copy thereof at the office of the department of state in the
city of Albany, and such service shall be sufficient service provided
that notice of such service and a copy of such process are forthwith
sent by the attorney general or other party as the case may be to such
professional fund raiser, fund raising counsel, professional solicitor
or commercial co-venturer by certified mail with return receipt
requested, at the office address as set forth in the registration form
required to be filed with the attorney general pursuant to sections one
hundred seventy-three and one hundred seventy-three-b of this article,
or in default of the filing of such form, at the last address known to
the attorney general or other party. Service of such process shall be
complete ten days after the receipt by the attorney general or other
party of a return receipt purporting to be signed by the addressee or a
person qualified to receive the addressee's certified mail, in
accordance with the rules and customs of the post office department, or,
if acceptance was refused by the addressee or the agent, ten days after
the return to the attorney general or other party of the original
envelope bearing a notation by the postal authorities that receipt
thereof was refused.
Solicitation by unregistered charitable organizations,
professional fund-raisers or commercial co-venturers a fraud upon the
people of the state. 1. No charitable organization shall employ any
professional fund raiser or commercial co-venturer unless and until such
fund raiser or commercial co-venturer is registered pursuant to this
article. Any such contract of employment shall be voidable at the option
of the charitable organization.
2. No professional fund raiser or commercial co-venturer shall enter
into any contract or raise any funds for any organization required to be
registered pursuant to this article unless such charitable organization
actually so registered.
3. No professional fund raiser required to be registered under this
article shall employ any professional solicitor who is not registered in
accordance with this article.
4. In addition to all other remedies provided by law the attorney
general may bring an action to enjoin the violation of the provisions of
this section. The attorney general may give notice of at least fifteen
days in writing by registered or certified mail to the organization,
person or persons violating the provisions hereof, requiring that
registration be accomplished or that the solicitation funds be
immediately terminated. The failure to immediately discontinue
solicitation or to register in accordance with the provisions of this
article within fifteen days of service of such notice shall be deemed to
be a continuing fraud upon the people of the state of New York.
Contracts with charitable organizations. 1. Whenever a
charitable organization contracts with a professional fund raiser or
fund raising counsel or commercial co-venturer, the charitable
organization shall have the right to cancel the contract without cost,
penalty, or liability for a period of fifteen days following the date on
which said contract is filed with the attorney general pursuant to the
provisions of this article, regardless of the date of execution of said
contract. Any provision in the contract that is intended to waive this
right of cancellation shall be void and unenforceable.
2. A charitable organization may cancel a contract signed pursuant to
subdivision one of this section by a written notice of cancellation. If
given by mail, cancellation shall be deemed effective when deposited in
a mailbox, properly addressed and postage prepaid. The notice shall be
sufficient if it states that the charitable organization does not intend
to be bound by the contract.
3. Whenever a charitable organization cancels a contract pursuant to
the provisions of this section, it shall mail a duplicate copy of the
notice of cancellation to the attorney general, at the address
designated for that purpose.
4. Every contract entered into pursuant to subdivision one of this
section shall contain, in a conspicuous typeface:
(a) a concise, accurate statement of the charitable organization's
right to cancel;
(b) a concise, accurate statement of the period during which the
contract may be cancelled;
(c) the address to which the notice of cancellation is to be sent;
(d) the address of the attorney general to which a duplicate of the
notice of cancellation is to be sent; and
(e) a clear statement of the financial arrangement including, if
applicable, a statement of the percentage of the total funds collected
on behalf of the charitable organization which shall be paid to the
professional fund raiser or any other person for purposes other than the
exclusive benefit of the charitable organization.
5. Any funds collected by any professional fund raiser, fund raising
counsel, professional solicitor, commercial co-venturer, charitable
organization or any other person in violation of this section shall be
deemed to be held in trust for the benefit of the charitable
organization without deduction for costs or expenses of any nature. A
charitable organization shall be entitled to recover all funds collected
in violation of this section together with costs, disbursements and
allowances.
6. The failure of a professional fund raiser, fund raising counsel or
commercial co-venturer to immediately discontinue solicitation or any
other fund raising activity upon receipt of a notice of cancellation in
accordance with the provisions of this article within fifteen days of
the cancellation of the contract shall be deemed to be a continuing
fraud upon the people of the state of New York.
7. In addition to all other remedies provided by law the attorney
general may bring an action to enjoin the violation of the provisions of
this section and to recover restitution, damages, costs and attorneys
fees.
Solicitation. 1. Any solicitation, by any means, including
but not limited to oral solicitation, by or on behalf of a registered
charitable organization which is required to file financial reports
pursuant to this article and has filed all such reports, shall include
therein a statement that upon request, a person may obtain from the
organization or from the charities registry on the attorney general's
website, a copy of the last financial report filed by the organization
with the attorney general. Such statement shall specify the address of
the organization and the address of the attorney general, to which such
request should be addressed and in the case of a written solicitation,
must be placed conspicuously in the material with print no smaller than
ten point bold face type or, alternatively, no smaller than the size
print used for the most number of words in the statements. Provided,
however, such statement need not be made where the space for a printed
advertisement or promotional time in any media has been donated or made
available to the charitable organization at no cost and such space or
time does not reasonably permit inclusion of such statement.
2. Any solicitation used by or on behalf of any charitable
organization shall include:
(a) a clear description of the programs and activities for which it
has requested and has expended or will expend contributions or shall
include therein a statement that, upon request, a person may obtain from
the organization such a description; and
(b) a statement identifying the website and telephone number of the
New York state office of the attorney general where an individual can
receive information on charitable organizations.
(c) If the solicitation is by an institution subject to article five-A
of the not-for-profit corporation law, and is for an endowment fund, the
solicitation must include a statement that, unless otherwise restricted
by the gift instrument pursuant to paragraph (b) of section five hundred
fifty-three of the not-for-profit corporation law, the institution may
expend so much of an endowment fund as it deems prudent after
considering the factors set forth in paragraph (a) of section five
hundred fifty-three of the not-for-profit corporation law.
3. In addition to any other disclosure required by law, any
solicitation by any means by a professional fund raiser or professional
solicitor on behalf of a charitable organization required to be
registered pursuant to this article shall clearly and unambiguously
disclose:
(a) the name of the professional fund raiser as on file with the
attorney general and that the solicitation is being conducted by a
professional fund raiser;
(b) the name of the individual professional solicitor as on file with
the attorney general and that the individual is receiving compensation
for conducting the solicitation; and
(c) a statement identifying the website and telephone number of the
office of the attorney general where an individual can receive
information on charitable organizations.
4. If any charitable organization makes contributions to another
organization which is not its affiliate as defined by paragraph (b) of
subdivision four of section one hundred seventy-two-b of this article,
such solicitation shall include a statement that such contributions have
been made and that a list of all organizations which have received
contributions during the past twelve months from the soliciting
organization may be obtained from that organization provided, however, a
united way, federated fund or incorporated community appeal, by or
through which a donation is merely transferred to a charity selected by
the donor, need not include such donor selected organizations in the
list.
5. A charitable organization shall comply with all requests made
pursuant to subdivisions two and four of this section within fifteen
days of their receipt. In the event that a charitable organization
required to register pursuant to this article has not previously been
required to file an annual report with the attorney general, the
solicitation shall state the date when such report will be filed.
Provided, however, that no additional solicitation shall be permitted by
charitable organizations until an annual report is filed, if the report
is delayed beyond one year.
Sales advertised to benefit a charitable organization. All
advertising, of every kind and nature, that a sale of goods, services,
entertainment or any other thing of value will benefit a charitable
organization shall set forth the anticipated portion of the sales price,
anticipated percentage of the gross proceeds, anticipated dollar amount
per purchase, or other consideration or benefit the charitable
organization is to receive. Provided, however, that advertising for
sales by a charitable organization that has not used the services of a
professional fund raiser or commercial co-venturer in any way for the
sale shall not be subject to the requirement of this section.
Unauthorized use of names when soliciting or collecting
contributions.
1. No person shall, for the purpose of soliciting contributions from
persons in this state, use the name of any other person, except that of
an officer, director or trustee of the charitable organization by or for
which contributions are solicited, without the written consent of such
other person.
2. A person shall be deemed to have used the name of another person
for the purpose of soliciting contributions if such latter person's name
is listed on any stationery, advertisement, brochure or correspondence
in or by which a contribution is solicited by or on behalf of a
charitable organization or his name is listed or referred to in
connection with a request for a contribution as one who has contributed
to, sponsored or endorsed the charitable organization or its activities.
3. Nothing contained in this section shall prevent the publication of
names of contributors without their written consents, in an annual or
other periodic report issued by a charitable organization for the
purpose of reporting on its operations and affairs to its membership or
for the purpose of reporting contributions to contributors.
4. A violation of this section shall be a misdemeanor.
Enforcement by attorney general. 1. An action for violation of
this article may be prosecuted by the attorney general, or his deputy,
in the name of the people of the state, and in any such action, the
attorney general or his deputy, shall exercise all the powers and
perform all duties which the district attorney would otherwise be
authorized to exercise or to perform therein.
2. In addition to any other action or proceeding authorized by law and
any action or proceeding by the attorney general, the attorney general
may bring an action or special proceeding in the supreme court, in the
name and in behalf of the people of the state of New York, against a
charitable organization and any other persons acting for it or in its
behalf to enjoin such organization and/or persons from continuing the
solicitation or collection of funds or property or engaging therein or
doing any acts in furtherance thereof, and to cancel any registration
statement previously filed with the attorney general pursuant to this
article and for an order awarding restitution and damages, penalties and
costs; and removing any director or other person responsible for the
violation of this article; dissolving a corporation and other relief
which the court may deem proper, whenever the attorney general shall
have reason to believe that the charitable organization or other person:
(a) is violating or has violated any of the provisions of this
article;
(b) has refused or failed, or any of its principal officers has
refused or failed, after notice, to produce any records of such
organizations;
(c) is employing or about to employ, or there is employed or about to
be employed, in any solicitation or collection of funds or other
property for such organization, any device, scheme or artifice to
defraud or for obtaining money or property by means of a false pretense,
representation or promise;
(d) has made a material false statement in an application,
registration or statement required to be filed pursuant to this article;
(e) (i) has failed or is failing to apply the funds solicited from the
public in a manner substantially consistent with its charitable purposes
or solicitation or has engaged in repeated fraudulent or illegal
activities, acts or conduct in connection with the solicitation for
charitable purposes; (ii) or, in the case of a law enforcement support
organization, has failed or is failing to apply the funds solicited from
the public in a manner substantially consistent with the purposes of the
solicitation or has engaged in repeated fraudulent or illegal
activities, acts or conduct in connection with the solicitation for
purposes of the law enforcement support organization;
(f) violates any order or determination made by the attorney general
pursuant to the provisions of this article;
(g) has used or intends to use false or materially misleading
advertising or promotional material in connection with any solicitation
or with any commercial co-venture or fails to disclose the information
required to be disclosed pursuant to section one hundred seventy-four-b
of this article; or
(h) is a law enforcement support organization and is employing or
about to employ, or there is employed or about to be employed, in any
solicitation or collection of funds or other property for such
organization, any device, scheme or artifice to defraud or for obtaining
money or property by means of a false pretense, representation or
promise which shall include, without limitation, making any of the
following representations: (i) that professional fund raisers or
solicitors are police officers or employees of any law enforcement
agency, (ii) that funds collected will be used to aid widows and
children of police officers slain in the line of duty or for any other
charitable program unless the organization is actually engaged in such a
program, (iii) that contributors will receive special benefits from
police officers, and (iv) that contributions are tax deductible as a
charitable contribution or as a business expense unless they so qualify
under the applicable provisions of the internal revenue code.
In connection with such proposed action or proceeding the attorney
general is authorized to take proof, issue subpoenas and administer
oaths in the manner provided in the civil practice law and rules.
3. Upon a showing by the attorney general in an application for an
injunction that any person engaged in solicitation has been convicted in
this state or elsewhere of a felony or of a misdemeanor involving the
misappropriation, misapplication or misuse of the money or property of
another, and who has not, subsequent to such conviction, received
executive pardon therefor or a certificate of relief from disabilities
or a certificate of good conduct pursuant to article twenty-three of the
correction law, the supreme court, after a hearing, may enjoin such
person from engaging in any solicitation.
4. The attorney general may exercise the authority granted in this
section against any charitable organization which operates under the
guise or pretense of being an organization exempted by the provisions of
section one hundred seventy-two-a of this article and is not in fact an
organization entitled to such an exemption.
5. Whenever the attorney general shall have reason to believe that any
professional fund-raiser, fund raising counsel, professional solicitor
or commercial co-venturer is operating in violation of the provisions of
this article, or has made any false statement in any application,
registration or statement required to be filed pursuant to this article,
or if any professional fund-raiser, fund raising counsel, or commercial
co-venturer has refused or failed, after notice, to produce any records
demanded of him, or there is employed or is about to be employed in any
solicitation or collection of contributions for a charitable or
religious organization any device, scheme or artifice to defraud or for
obtaining money or property by means of any false pretense,
representation or promise, in addition to any other action or proceeding
authorized by law, he may bring in the supreme court an action or
proceeding in the name, and on behalf, of the people of the state of New
York against such professional fund-raiser, fund raising counsel,
commercial co-venturer, professional solicitor, and any other person who
has participated or is about to participate in such solicitation or
collection by employing such device, scheme, artifice, false
representation or promise, to enjoin such professional fund-raiser, fund
raising counsel, commercial co-venturer, professional solicitor, or
other person from continuing such solicitation or collection or engaging
therein or doing any acts in furtherance thereof, or to cancel any
registration statement previously filed with the attorney general.
6. Whenever the attorney general has determined to commence an action
under this article, he may present to any justice of the supreme court,
before beginning such action, an application in writing for an order
directing the person or persons mentioned in the application to appear
before the justice of the supreme court or referee designated in such
order and answer such questions as may be put to them or to any of them,
or to produce such papers, documents and books concerning the practices
to which the action which he has determined to bring relates, and it
shall be the duty of the justice of the supreme court to whom such
application for the order is made to grant such application. The
application for such order made by the attorney general may simply show
upon his information and belief that the testimony of such person or
persons is material and necessary. The provisions of the civil practice
law and rules relating to an application for an order for the
examination of witnesses before the commencement of an action and the
method of proceeding on such examination, shall not apply except as
herein prescribed. The order shall be granted by the justice of the
supreme court to whom the application has been made with such
preliminary injunction or stay as may appear to such justice to be
proper and expedient and shall specify the time when and place where the
witnesses are required to appear. The justice or referee may adjourn
such examination from time to time and witnesses must attend
accordingly. The testimony of each witness must be subscribed by him and
all must be filed in the office of the clerk of the county in which such
order for examination is filed. The order for such examination must be
signed by the justice making it and service of a copy thereof with an
endorsement by the attorney general signed by him or his deputy, to the
effect that the person named therein is required to appear and be
examined at the time and place and before the justice or referee
specified in such endorsement, shall be sufficient notice for the
attendance of witnesses. Such endorsement may contain a clause requiring
such person to produce at such examination all books, papers and
documents in his possession or under his control relating to the subject
of such examination. The order shall be served upon the person named in
the endorsement aforesaid by showing him the original order and
delivering to and leaving with him at the same time a copy thereof,
endorsed as above provided, and by paying or tendering to him the fee
allowed by law to witnesses subpoenaed to attend trials of civil actions
in any court of record in this state.
7. In addition to any other action authorized by law, the attorney
general may bring an action or special proceeding in the supreme court
to recover any civil penalties assessed by the attorney general.
8. Nothing contained in section one hundred seventy-seven of this
article shall prevent, limit, restrict, impede or delay the attorney
general from instituting, at any time, any action or proceeding
authorized by the provisions of this article or any other appropriate
law, as he may deem necessary.
Application of article. This article shall not be construed
to limit or restrict the exercise of the powers or the performance of
the duties of the attorney general or district attorney which they
otherwise are authorized to exercise or perform under any other
provision of law.
Municipal option. Nothing contained in this article shall be
construed to prevent any municipality from adopting or enacting any
local law, ordinance or regulation imposing more restrictive
requirements for the solicitation of contributions for law enforcement
support organizations, provided, however, that nothing permitted by this
section shall be construed to modify or be inconsistent with the legal
standards in this article that are applicable to individuals and
organizations other than law enforcement support organizations and
professional fund raisers and solicitors which are employed by such law
enforcement support organizations even when such other individuals and
organizations act jointly and together with such law enforcement support
organizations.
Advisory council. The advisory council on charities
registration is continued. It shall advise the attorney general and make
recommendations with respect to the operation and administration of this
article with the objective of assuring maximum simplicity in the
conformance of charitable organizations with the provisions of this
article. The council shall consist of not fewer than five nor more than
ten members. The members of the advisory council now in office shall
continue to hold office for the remainder of the terms to which they
were appointed and thereafter until their successors are appointed. The
attorney general shall designate the chairman of the council and may
appoint additional and successor members and fix their terms of office.
The members shall serve without compensation but shall be allowed their
actual and necessary expenses incurred in the performance of their
duties hereunder.
Administration and enforcement by attorney general. 1. The
attorney general shall make rules and regulations necessary for the
administration of this article including, but not limited to regulations
and waiver procedures that will ensure that charitable organizations do
not have to register twice in relation to the solicitation and
administration of assets, and rules or regulations allowing or requiring
any submission to the attorney general to be effected by electronic
means.
2. Upon a finding by the attorney general that any person has
committed or is committing a violation of any provision of this article,
the attorney general may:
(a) revoke, suspend or deny a registration of a charitable
organization, professional fund raiser, professional solicitor or fund
raising counsel or deny or revoke a claim of exemption or issue an order
directing a charitable organization, professional fund raiser,
professional solicitor, fund raising counsel or commercial co-venturer
to cease and desist specified fund raising activities; and
(b) assess a civil penalty against the violator of not more than one
thousand dollars for each act or omission constituting a violation and
an additional penalty of not more than one hundred dollars for each day
during which such violation continues. Prior to assessing a civil
penalty, the attorney general shall notify the violator in writing by
certified mail to its last known business address that a civil penalty
will be assessed pursuant to this section unless the violation is cured
within thirty days of the date of the mailing of the notice.
3. The attorney general shall, before denying, revoking or suspending
any registration or exemption, or issuing a cease and desist order or
assessing a civil penalty, notify the applicant or registrant in writing
and provide an opportunity for a hearing on a record in reference
thereto in accordance with such rules as the attorney general may
promulgate to effectuate the purposes of this article. Such written
notice may be served by personal delivery to the applicant or registrant
or by registered or certified mail to its last known business address.
Hearings must be requested within twenty days of receipt of the notice
from the attorney general. Any hearing shall be held within thirty days
of the receipt of the request by the attorney general, at such time and
place as the attorney general shall prescribe. The attorney general, or
his or her designee may issue subpoenas in accordance with the civil
practice law and rules, compel the attendance of witnesses at the
hearing, administer oaths, take proof and make determinations of
relevant facts. The respondent may appear at the hearing and may
cross-examine all witnesses and produce evidence on his or her behalf.
The attorney general or his or her designee shall not be bound by the
rules of evidence during the conduct of the hearing. A final
determination shall be made by the attorney general or his or her
designee within ten days of the conclusion of the hearing. The attorney
general shall serve a copy of such determination or order upon the
registrant or applicant personally or by registered or certified mail at
his or her last known business address.
4. The administrative remedies provided by this article shall not be
applicable to any violation of this article which is or was the subject
of any action or proceeding brought by the attorney general.
ARTICLE 8 Division of Budget
Division of the budget; director; general duties. The head of
the division of the budget shall be the director of the budget who shall
be appointed by the governor and hold office during his pleasure. He
shall receive a salary to be fixed by the governor within the amount
appropriated therefor. It shall be the duty of the director of the
budget to assist the governor in his duties under the constitution and
laws of the state respecting the formulation of the budget and the
correlating and revising of estimates and requests for appropriations of
the civil departments, and also to assist the governor in his duties
respecting the investigation, supervision and coordination of the
expenditures and other fiscal operations of such department. The
director, subject to rules prescribed by the governor, may appoint and
fix the compensation of subordinates and employees of the division
within the amounts appropriated therefor.
Tax expenditure reporting. 1. Definitions. For the purposes of
this section, the following definitions shall apply:
(a) "Tax expenditures" shall mean features of the tax law that by
exemption, exclusion, deduction, allowance, credit, preferential tax
rate, deferral, or other statutory device, reduce the amount of
taxpayers' liabilities to the state by providing either economic
incentives or tax relief to particular classes of persons or entities,
to achieve a public purpose.
(b) "Cost of tax expenditure" shall mean the aggregate, estimated
amount by which a tax expenditure reduces taxpayers' liabilities to the
state on a taxable year basis, or on a calendar year basis if a taxable
year basis is not appropriate.
2. Annual tax expenditure report. In addition to the information
required by article seven of the constitution and section twenty-two of
the state finance law, the governor shall submit to the legislature, as
early as practicable, but no later than thirty days after submitting the
budget, a tax expenditure report containing the following information
and statements relating to tax expenditures in articles nine (other than
section one hundred eighty), nine-A, thirteen-A, twenty-two,
twenty-eight, thirty-one, thirty-two and thirty-three of the tax law:
(a) an enumeration of such tax expenditures;
(b) the provisions of law authorizing such tax expenditures, their
effective dates, and, if applicable, the dates on which such tax
expenditures expire or are reduced;
(c) if reliable data are available, estimates prepared by the
commissioner of taxation and finance, in conjunction with the director
of the budget, of the cost of such tax expenditures for the (i) current
taxable or calendar year and (ii) the five preceding years;
(d) any recommendations of the governor regarding continuing,
modifying, or repealing such tax expenditures, and such other
information regarding tax expenditures as the executive may feel useful
and appropriate;
(e) if the governor's budget includes proposals for the expiration,
modification, or repeal of such tax expenditures or for the addition of
tax expenditures in or to such articles or such law, such report shall
also contain, to the extent reliable data are available, an analysis of
the number and types of persons and entities benefiting or expected to
benefit from such tax expenditures, an estimate of the costs of such tax
expenditures for the coming fiscal year, and an explanation of the
reasons for the proposals;
(f) comment, if any, on the effectiveness and efficiency of other tax
expenditures; and
(g) general cautionary and advisory notes concerning limitations of
data, estimation procedures, sampling errors and imputed values,
prominently displayed.
3. Any information relating to tax expenditures furnished by the
commissioner of taxation and finance shall be furnished in accordance
with the secrecy provisions of the tax law.
Diversion of funds dedicated to public transportation systems
to the general fund of the state or to any other purpose, is prohibited.
1. For the purposes of this section, the term "public transportation
system" shall mean any public benefit corporation constituting a
transportation authority which provides or contracts for the provision
of, under joint support arrangements, mass transportation services, or a
subsidiary thereof, or any county or city which provides or contracts
for the provision of, pursuant to section one hundred nineteen-r of the
general municipal law, mass transportation services.
2. The director of the budget shall be prohibited from diverting
revenues derived from taxes and fees paid by the public into any fund
created by law including, but not limited to sections eighty-eight-a,
eighty-nine-c and ninety-two-ff of the state finance law and chapter
twenty-five of the laws of two thousand nine for the purpose of funding
public transportation systems into the general fund of the state or into
any other fund maintained for the support of another governmental
purpose. No diversion of funds can occur contrary to this section by an
administrative act of the director of the budget or any other person in
the executive branch.
3. If any diversion of funds occurs by passage of legislation during a
regular or extraordinary session of the legislature, the director of the
budget shall create and include with the budget or legislation diverting
funds, a diversion impact statement which shall include the following
information:
(a) The amount of the diversion from dedicated mass transit funds;
(b) The amount diverted from each fund;
(c) The amount diverted expressed as current monthly transit fares;
(d) The cumulative amount of diversion from dedicated mass transit
funds during the preceding five years;
(e) The date or dates when the diversion is to occur; and
(f) A detailed estimate of the impact of diversion from dedicated mass
transit funds will have on the level of public transportation system
service, maintenance, security, and the current capital program.
Diversion of funds dedicated to the Niagara frontier
transportation authority to the general fund of the state is prohibited.
The director shall be prohibited from diverting revenues derived from
taxes and fees paid by the public into any fund created by law
including, but not limited to section ninety-nine-h of the state finance
law, as amended by chapter seven hundred forty-seven of the laws of two
thousand six, for the purpose of funding the Niagara frontier
transportation authority and any of its subsidiaries into the general
fund of the state or into any other fund maintained for the support of
another governmental purpose. No diversion of funds can occur contrary
to this section by an administrative act of the director or any other
person in the executive branch unless the governor declares a fiscal
emergency, and communicates such emergency to the temporary president of
the senate and speaker of the assembly, and a statute is enacted into
law authorizing a diversion that would otherwise be prohibited by this
section.
ARTICLE 9 Division of Military and Naval Affairs
Division of military and naval affairs. 1. Notwithstanding the
provisions of any other law, the head of the division of military and
naval affairs shall be the adjutant general who shall be appointed by
the governor and who, except when any one of such officers shall be in
the active service of the United States, shall be the commanding general
of the New York army national guard, the commander of the New York air
national guard or the commanding officer of the New York naval militia.
The governor may exercise and perform his functions, powers and duties
as commander-in-chief of the militia of the state in whole or in part
through such division.
2. The division of military and naval affairs shall include the
organized militia; the state reserve list; the state retired list; all
offices, headquarters, units, forces, commands, arsenals, depots,
armories, bureaus, agencies, bases, camps, ranges, and other military
(including air) and naval activities, property, installations,
structures, facilities and functions of the state and all military
(including air), naval and civilian personnel who may be serving or
employed therein.
3. The organization of the present office of the chief of staff is
continued as part of the division of military and naval affairs. The
powers and duties of such office and the bureaus thereof shall be
exercised and performed under the supervision, direction and control of
the chief of staff, subject to the approval of the adjutant general.
4. The adjutant general is hereby authorized to create, organize,
reorganize, convert, inactivate or disband such other offices,
headquarters, commands, bureaus and agencies for the performance of the
functions of the division as he may deem necessary, within the amount
appropriated therefor.
5. The adjutant general, in conjunction with the department of state,
shall establish and maintain on the division's website a public listing
of all approved not-for-profit corporations soliciting funds for or
otherwise benefiting the armed forces of the United States or of any
foreign country, or their auxiliaries, or of this or any other state or
territory.
Restoration and display of New York state's military battle
flags. 1. There is hereby established within the division of military
and naval affairs a temporary advisory committee on the restoration and
display of New York state's military battle flags (hereinafter referred
to as the "committee"). The committee shall have thirteen members as
follows: the adjutant general, the director of the New York state
military heritage museum, the commissioners of education and parks,
recreation and historic preservation and the commissioner of the
department of veterans' services, or their designated representatives,
two members appointed each by the governor, speaker of the assembly and
majority leader of the senate and one member each appointed by the
minority leaders of the senate and assembly and shall serve at the
pleasure of the appointing authority. Appointed members shall include
individuals with experience in restoration of historical memorabilia,
expertise in military history, or a background in historical restoration
or fine arts conservation. No appointed member shall be a member of the
executive, legislative or judicial branch of the state government at the
time of his/her appointment. The advisory committee shall meet at least
four times a year. No members shall receive any compensation, but
members who are not state officials may receive actual and necessary
expenses incurred in the performance of their duties.
2. The primary duties of the committee shall be to conduct a study,
make recommendations regarding the hiring of conservation personnel, and
the commencement of conservation and preservation of all the military
battle flags in the state's possession. The committee shall elect its
own chair, vice-chair and secretary from among its members. The
committee's duties shall include, but not be limited to, conducting a
comprehensive study and preparing a report including an evaluation of
different conservation options, a professional condition report and
options for conservation of individual items in the collection, and
recommendations regarding the display and storage of the collection. The
committee may:
(a) (i) establish project schedules and timetables; project expenses
including an estimate of total conservation, display interpretation, and
continuing management costs; and propose a budget for the recommended
expenses;
(ii) recommend specific conservation measures;
(iii) obtain a professional condition report and photograph of each
item in the collection; and
(iv) establish a plan for continuing management and conservation.
(b) Recommend hiring consultants as required, subject to budgetary
limitations.
(c) Recommend hiring a professional textile conservator or other
suitable professional to commence the conservation work within budgetary
limitations under the supervision of New York State's Military Heritage
museum curator.
(d) Coordinate and conduct fund raising activities for the
conservation, preservation, interpretation, display and continuing
management of the state's military battle flag collection, including:
(i) soliciting gifts, grants or donations of any kind; and
(ii) soliciting donations from businesses, individuals of all ages and
organizations.
All monetary grants, gifts, or donations, shall be deposited in the
trust fund.
(e) Advise the division of military and naval affairs on matters
related to the restoration and display of the state's military battle
flags.
3. (a) There is hereby established the New York state military battle
flags partnership trust fund (hereinafter referred to as "trust fund" or
"fund"). The fund shall be in the joint custody of the state comptroller
and commissioner of taxation and finance.
(b) Moneys in the fund shall consist of donations and any
appropriations by the legislature to match any such donations. Any
interest received by the comptroller on moneys on deposit in the trust
fund shall be retained in and become part of the trust fund.
(c) Money in the fund may be used for restoration and display of the
state's military battle flags. When all of the state's military battle
flags have been restored and provision has been made for their public
display subject to the approval of the advisory committee, any remaining
funds are to be used as needed for the maintenance and display of the
flags.
(d) The moneys of the fund shall be paid out on the audit and warrant
of the comptroller on vouchers certified or approved by the adjutant
general of the division of military and naval affairs.
4. The committee shall file an annual report of its activities and
provide a full accounting of the New York state military battle flags
partnership trust fund. This report shall be filed with the governor,
the speaker of the assembly and the majority leader of the senate no
later than the end of each state fiscal year.
ARTICLE 10 Office of General Services
Office of general services. There is hereby created an office
of general services in the executive department. The head of the office
of general services shall be the commissioner of general services. He
shall be appointed by the governor by and with the advice and consent of
the senate and hold office during the pleasure of the governor. He shall
receive a salary to be fixed by the governor within the amount
appropriated therefor. Such commissioner, subject to rules prescribed
by the governor, may establish such bureaus or divisions in the office
of general services as he may deem necessary and may appoint such
deputies, directors, assistants and other employees as may be needed for
the performance of his duties and may prescribe their powers and duties
and fix their compensation within the amount appropriated therefor. Such
office may have an office seal. The principal office of the office of
general services shall be in the city of Albany, and branch offices may
be established by direction of the governor, subject to appropriations
for their maintenance.
Such commissioner may adopt, amend or rescind rules and regulations
relating to the discharge of his functions, powers and duties and those
of the office of general services as prescribed by law. Nothing
contained herein shall limit or impair compliance with the requirements
of section one hundred sixty-three of the state finance law, with
respect to rules promulgated by the commissioner pursuant to such
section.
State agency employee vehicle efficiency. 1. For the purpose
of this section:
a. "state agency" means any department of the executive, any bureau,
commission, agency, board or other agency, any public authority, and the
judiciary and the legislature.
b. "state office" means any building or facility in the state wherein
one hundred or more employees, in aggregate, of any state agency are
located whether or not such office building or facility is owned, rented
or leased by the state.
2. Each state agency shall institute a program at each state office to
increase the average passenger occupancy per vehicle in commuting trips
between home and the work place. In the area designated as severe
non-attainment for ozone, as designated by the administrator of the
United States environmental protection agency, such increase shall be
not less than twenty-five percent above the average vehicle occupancy
standard for such trips as such standard is established in accordance
with the federal Clean Air Act, 42 U.S.C. Section 7401 et seq., as
amended by Public Law 101-549, November fifteenth, nineteen hundred
ninety, hereinafter referred to as "the Act", and regulations
promulgated pursuant thereto. Where parking for a state agency occurs on
properties under the jurisdiction of the office of general services, the
state agency shall institute such program in consultation with the
commissioner of general services. Where parking for a state office
occurs on properties not controlled by the office of general services,
each state agency shall be solely responsible for instituting such
program. When instituting such a program, a state agency shall take into
account the location of each facility, the availability of mass transit,
and the scheduling of employees at each work site using such facility.
Such program may include designation of parking spaces to be used
exclusively by multiple occupancy vehicles, provided that the number of
such spaces shall be determined with reference to the ability of users
of such facilities to engage in ride-sharing, provided, however, that
the designation of such spaces shall in no way displace handicapped
parking spaces established pursuant to section twelve hundred three-c of
the vehicle and traffic law. A plan for such program shall be completed
on or before November fifteenth, nineteen hundred ninety-five, and
implemented on or before November fifteenth, nineteen hundred
ninety-seven.
3. The provisions of this section shall not exclude any state agency
from any duty or responsibility to implement an employee trip reduction
program pursuant to section 7511a(d)(1)(B) of the Act. To the extent
permitted by the Act, programs instituted under this provision may be
used to comply with the employee trip reduction provisions of section
7511a(d)(1)(B) of the Act. Implementation of this section shall be
consistent with any agreements which may be made as a result of
collective bargaining or other negotiations between the state and its
affected employee unions.
State clean-fueled vehicle program. 1. There shall be created
within the office of general services a clean-fueled vehicle program,
with the purpose of acquiring clean-fueled vehicles for state use and
testing and evaluating clean-fueled vehicle technologies.
2. For the purposes of this section, the term "clean-fueled vehicle"
shall mean any motor vehicle as defined in section one hundred
twenty-five of the vehicle and traffic law, that uses electricity,
either stored or generated on-board, as its primary motive force or that
is fueled by compressed natural gas, propane, methanol, hydrogen or
ethanol.
3. The office of general services, in coordination with the New York
state energy research and development authority, and the department of
environmental conservation, shall be responsible for developing a state
clean-fueled vehicle strategy which shall determine how best to
incorporate clean-fueled vehicles into the state fleet. In developing
the strategy, the office of general services shall consider such factors
as: the duty to be performed by the vehicle, the terrain and climate of
the area of the state in which the vehicle is to be used, and other
factors the office of general services, in coordination with the New
York state energy research and development authority and the department
of environmental conservation, deem relevant.
4. The office of general services, in coordination with the New York
state energy research and development authority, the department of motor
vehicles and the department of environmental conservation, shall issue a
report to the governor and the legislature on or before April first,
nineteen hundred ninety-seven setting forth the state's strategy for the
acquisition and utilization of clean-fueled vehicles and shall update
such strategy periodically.
5. Such report shall include, at a minimum, a description of the
state's strategies to promote the use of clean-fueled vehicles by the
general public and in the state fleet. Such strategies shall include:
necessary amendments of state procurement policies to allow and
encourage acquisition of clean-fueled vehicles, development of policy
recommendations to establish incentives for acquisition of clean-fueled
vehicles for use by individuals and private fleets, expeditious review
of policies and procedures identified as barriers to clean-fueled
vehicle introduction, and revision of such policies and procedures as
appropriate. The report shall also assess existing infrastructure,
determine what changes are necessary to support a sustainable
clean-fueled vehicles market and recommend how best to implement those
changes. The report shall assess factors including but not limited to
the following: the availability and viability of existing or developing
technology, sufficient public recharging/refueling capability, standards
for recharging/refueling technologies, utility power quality, vehicle
registration considerations, public outreach and safety training,
battery recycling capability, insurance and liability considerations,
and clean-fueled vehicle acquisition incentives. The report shall also
determine the number of clean-fueled vehicles for immediate use in the
state fleet that can be supported by existing infrastructure.
6. Immediately after submission of the report defined in subdivision
five of this section, the office of general services shall begin a
project to implement the recommendations and strategies of such report.
7. The office of general services shall develop a specific plan to
procure and install necessary infrastructure for a sustainable state
clean-fueled vehicle fleet, including a time frame for such procurement
and installation. In developing such plan, the office of general
services shall consider to the greatest extent possible any steps which
will encourage the utilization of clean-fueled vehicles by the private
sector. The office of general services shall either begin to acquire and
install necessary infrastructure or issue requests for proposals for
such procurement and installation, no later than January first, nineteen
hundred ninety-eight, provided however, that no acquisition of
clean-fueled vehicles, or installation of associated infrastructure,
from the proceeds of bonds issued pursuant to the Clean Water/Clean Air
Bond Act of 1996, shall occur prior to April first, nineteen hundred
ninety-seven.
8. The office of general services shall develop a specific plan for
the procurement of clean-fueled vehicles for use in the state fleet.
Procurement of clean-fueled vehicles and utilization in the state fleet
using proceeds of bonds sold pursuant to the Clean Water/Clean Air Bond
Act of 1996 shall begin as soon as possible after the issuance of, and
in accordance with, the report defined in subdivision five of this
section.
9. The office of general services, department of economic development,
and the department of environmental conservation, shall evaluate the
potential for developing a private clean-fueled vehicle industry in the
state and submit recommendations from time to time to the legislature
and the governor for attracting such industry, by either established
motor vehicle producers or other companies, to the state.
General duties. The office of general services shall provide
coordinated services in support of state departments and agencies, and,
as specified, authorities, municipalities and not-for-profit
organizations, hereafter for the purposes of this section referred to as
agencies. Such support services shall (i) serve to conserve state
resources, (ii) benefit multiple agencies, and (iii) be consistent with
the needs and interests of the agencies receiving those services.
Support services may be delivered directly by the office of general
services or by other means which ensure the cost effectiveness of those
services. The commissioner of general services may recommend to the
governor new services which could be offered by the office of general
services, and that would reduce state or local expenditures and
facilitate the mission of agencies currently receiving or which could
receive such services.
Language translation services. 1. Each state agency that
provides direct public services in New York state shall translate all
vital documents relevant to services offered by the agency into the
twelve most common non-English languages spoken by limited-English
proficient individuals in the state, based on the data in the most
recent American Community Survey published by United States Census
Bureau. Agencies subject to this section, in their discretion, may offer
up to four additional languages beyond the twelve most common languages.
Such additional languages shall be decided by the state agency in
consultation with the office of general services and approved by the
office of general services based on the number of limited-English
proficient immigrants of five years or less in New York state in need of
language translation services according to the American Community
Survey, including the growth of recent arrival populations in the
geographic regions in which the agency's services are offered, the
population of limited-English proficient individuals served by the
agency, feedback from impacted community or advocacy groups, and any
other relevant data published by the United States Census Bureau.
2. Each agency subject to the provisions of this section shall
designate a language access coordinator who will work with the office of
general services to ensure compliance with the requirements of this
section.
3. Each agency subject to the provisions of this section shall develop
a language access plan and submit such plan to the office of general
services.
(a) An agency's initial language access plan shall be issued by the
agency within ninety days of the effective date of this section.
(b) Language access plans shall be updated and reissued every two
years on or before January first.
(c) Language access plans shall set forth, at a minimum:
(i) when and by what means the agency will provide or is already
providing language assistance services;
(ii) the titles of all available translated documents and the
languages into which they have been translated;
(iii) the number of public contact positions in the agency and the
number of bilingual employees in public contact positions, and the
languages such employees speak;
(iv) a training plan for agency employees which includes, at minimum,
annual training on the language access policies of the agency and
training in how to provide language assistance services;
(v) a plan for annual internal monitoring of the agency's compliance
with this section;
(vi) a description of how the agency intends to notify the public of
the agency's offered language assistance services;
(vii) an assessment of the agency's service populations to determine
whether additional languages of translation should be added beyond the
top twelve languages;
(viii) an explanation as to how the agency determined it would provide
any additional language beyond the top twelve languages required by this
section; and
(ix) the identity of the agency's language access coordinator.
4. Each agency subject to the provisions of this section shall:
(a) provide interpretation services between the agency and an
individual in each individual's primary language with respect to the
provision of services or benefits by the agency; and
(b) publish the agency's language access plan on the agency's website.
5. For purposes of this section, "vital document" means any paper or
digital document that contains information that is critical for
obtaining agency services or benefits or is otherwise required to be
completed by law.
6. The office of general services will ensure agency compliance with
this section and shall prepare an annual report, which shall be made
public on the office of general services website, detailing each
agency's progress and compliance with this section.
Additional duties of the commissioner. The commissioner of the
office of general services is authorized, within amounts appropriated
therefor by the legislature and subject to the written approval of the
attorney general, to pay and cause to be satisfied and discharged claims
for damage to personal or real property or for bodily injuries or
wrongful death caused in connection with the operation of a motor
vehicle (a) by officers or employees of the state, while acting within
the scope of their employment, or (b) by other authorized persons
providing service to state government while providing such service, or
(c) with relation to motor vehicles which are assigned on a permanent
basis with unrestricted use to state officers or employees, when caused
by such officer or employee or by a person requested to operate such
motor vehicle by such officer or employee in the course of or in
connection with the use of such motor vehicle by such officer or
employee. Such claims payments shall be made in accordance with a
contract with a private firm to process, adjust, investigate, negotiate,
settle, pay, and subrogate such claims on behalf of the state, as
specified in such contract, provided that such firm is duly licensed to
perform such services by the state department of financial services.
Notwithstanding any other provision of law, any such contract may
provide for the payment of benefits up to a maximum of fifty thousand
dollars for any occurrence in accordance with article fifty-one of the
insurance law and for such payments, not based on tort, the attorney
general's approval shall not be required. Notwithstanding any other
provision of law, any payment of other property damage or bodily injury
or wrongful death claims caused by a tort of such officers, employees,
or other authorized personnel shall not exceed a maximum of twenty-five
thousand dollars for each claimant in accordance with such terms,
conditions and requirements as shall be set forth in such contract. Any
agency or unit of an agency which is supported by any funding source
other than the general fund shall reimburse the general fund for all or
any portion of such payments made pursuant to this section which are
attributable to the other funding source.
Nothing contained in this section or in any contract provided for
herein shall impair any right or obligation in connection with any
executed contract of insurance entered into by the state separate and
apart from the authority granted herein. No moneys appropriated for the
purposes of this section shall be available for expenditure from such
appropriation until a certificate of approval has been issued by the
director of the budget and copies of such certificate filed with the
state comptroller, the chairman of the senate finance committee, and the
chairman of the assembly ways and means committee.
Additional duties of the commissioner regarding flood related
losses. In accordance with 44 CFR 75.11 of the code of federal
regulations, in the event that state-owned structures and their contents
are damaged as the result of flood related losses, flood, and/or flood
related hazards occurring in areas identified by the federal insurance
administrator as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO,
AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones, the commissioner of
general services shall pay an amount not less than the limits of
coverage that would be applicable if such state-owned structures and
their contents had been covered by standard flood insurance policies, as
defined in 44 CFR 59.1, for the repair, restoration, or replacement of
such state-owned structures and contents, and shall maintain and update,
not less frequently than annually, an inventory of all state-owned
structures and their contents within such zones.
Additional duties of the commissioner regarding information
on state boards. 1. As used in this section, "commissioner" means the
commissioner of general services and, "board" means any board,
commission, committee, council, task force or any similar state public
organization, required to be established pursuant to the state
constitution, state statutes or executive order, for the exercise of any
function of state government and to which members are appointed or
elected. "Board" does not include:
a. any informal advisory organization not established by law;
b. any joint standing committee of the legislature or any committee of
the assembly and/or senate composed entirely of members of the
legislature;
c. any court;
d. the board of trustees of any institution of higher education
financially supported in whole or in part by the state;
e. any entity of local government;
f. any public authority or public benefit corporation, a majority of
whose members are appointed by the governor or serve as members by
virtue of holding state offices to which they were appointed by the
governor, or any combination thereof; and
g. any board of elections.
2. The commissioner shall maintain a list of all state boards,
including state boards deemed active and regularly meeting on and after
the effective date of this section. The commissioner shall keep such
list on a website designated by the commissioner for the purpose of
public access, and such list shall have a link to the website for each
such board established pursuant to subdivision three of this section.
The designated website shall be updated annually.
3. Each board or the state agency that provides administrative support
or is otherwise affiliated with a board shall establish and maintain a
website available to the public and provide a link to such website to
the commissioner. Each board or the state agency that provides
administrative support or is otherwise affiliated with a board shall
annually on or before January first, update the information on its
website.
4. The website established by each board or the state agency that
provides administrative support or is otherwise affiliated with a board
shall include, but not be limited to:
a. statutory language, executive order or other legal basis or
authorization for the establishment of such board;
b. public information including departmental affiliation, contact
address, phone number, and website;
c. a brief description of the purpose of the board and its legally
required duties, including required reports or other products;
d. the size of board membership, current member names, and any
qualifications;
e. whether members of a board are eligible for payment of expenses or
other compensation in the performance of their duties as members of such
board and information on compensation and expenses incurred in the prior
and current fiscal years, as well as projected costs for the coming
fiscal year;
f. meeting minutes and agendas, dates and locations of all meetings
held, and to be held within six months, or a location, including but not
limited to another website, in which such information can be publicly
accessed;
g. geographic and other relevant qualifications of all current members
of the board, including the county in which the member resides and the
background or expertise the member possesses where such background or
expertise is required for membership on such board; and
h. any other information the commissioner may require. Nothing in this
section shall authorize the release or publication of any board member's
residential address.
5. Each board or the state agency that provides administrative support
or is otherwise affiliated with a board shall update on an annual basis
beginning November first, two thousand twenty-three on its website, all
vacancies, expired terms, terms expiring within one year, and the
process for filling such vacancies on such boards.
6. On or before January first, two thousand twenty-four, the
commissioner shall report to the governor, the speaker of the assembly,
the temporary president of the senate, the chair of the assembly
oversight, analysis and investigation committee and the chair of the
senate investigations and government operations committee on the status
of the list including but not limited to the number of boards reported
and verified. The commissioner shall also report on any impediments to
obtaining information.
ARTICLE 10-B New York State Office of Science, Technology and Academic Research
Definitions. As used in this article, the following terms shall
have the following meaning unless otherwise specified:
1. "Office" shall mean the New York state office of science,
technology and academic research.
2. "Advisory council" shall mean the advisory council of the New York
state office of science, technology, and academic research.
3. "Executive director" shall mean the executive director of the New
York state office of science, technology, and academic research.
4. "Research development program" shall mean the program established
by section two hundred nine-p of this article to encourage and enhance
the economic development role of academic institutions in New York
state. Such program shall include, but not be limited to, the faculty
development program, the capital facilities program, the incentive
program, and the centers for advanced technology development program.
5. "Primary host institution" shall mean, in a case where two or more
institutions form a partnership or consortium of research entities, one
institution must be designated the institution through which awards
shall be administered.
6. "Life sciences" shall mean those science disciplines relating to
the study of living organisms and vital processes.
7. "Enabling sciences" shall mean those science disciplines which may
be directly applied to life science research, including but not limited
to, engineering, material science, chemistry, computer science,
electronics, physics, bioinfomatics, nanotechnologies and applications
of microelectronics and micro-electromechanical devices.
8. "Project sponsor" shall mean any public, not-for-profit private or
academic research institution or any subsidiary thereof located in the
state of New York. A project sponsor may include a not-for-profit
corporation created on behalf of a public, not-for-profit private or
academic research institution.
9. "Construction" shall mean the erection, acquisition, alteration,
reconstruction, rehabilitation, improvement, equipping, enlargement or
extension of a life sciences and/or enabling sciences facility,
including land acquisition and the engineering, architectural, legal,
fiscal and economic investigations, studies, surveys, designs, plans,
drawings, specifications, procedures and other actions relating to a
life science or enabling science facility.
Transfer of powers of science and technology foundations.
Except as otherwise provided in section two hundred nine-f of this
article, the functions and powers possessed by and all of the
obligations and duties of the science and technology foundation as
established pursuant to article ten-A of the public authorities law
shall be transferred and assigned to, assumed by and devolved upon the
office. Such transfer shall occur no later than January thirty-first,
two thousand, provided, however, that such transfer may occur prior to
January thirty-first, two thousand pursuant to a memorandum of
understanding executed by the chairman of the science and technology
foundation and the executive director of the office, and provided that,
in the event that it is impractical to effectuate such transfer on or
before January thirty-first, two thousand, the chairperson of the
science and technology foundation and the executive director of the
office may upon notification to the governor, temporary president of the
senate, and speaker of the assembly on or before January fifteenth, two
thousand, execute a memorandum of understanding to govern the
expeditious transfer required pursuant to this section.
Abolition of science and technology foundation. Upon the
transfer pursuant to section two hundred nine-d of this article of the
functions and powers possessed by and all of the obligations and duties
of the science and technology foundation as established pursuant to
article ten-A of the public authorities law to the office, the science
and technology foundation shall be abolished, and sections thirty-one
hundred, thirty-one hundred three and thirty-one hundred nine of the
public authorities law shall be repealed.
Transfer of certain functions of the science and technology
foundation. 1. Transfer of the small business technology investment
fund. Upon the transfer pursuant to section two hundred nine-d of this
article of the functions and powers possessed by and all of the
obligations and duties of the science and technology foundation as
established pursuant to article ten-A of the public authorities law to
the office as prescribed by section two hundred nine-d of this article,
notwithstanding section twenty-eight of section one of chapter one
hundred seventy-four of the laws of nineteen hundred sixty-eight, the
administration of the small business technology investment fund shall be
transferred and assigned to, assumed by and devolved upon the urban
development corporation, and the administration of the small business
technology investment fund is hereby determined to be a corporate
purpose of the urban development corporation.
2. Transfer of certain assets and liabilities. Upon the transfer
pursuant to section two hundred nine-d of this article of the functions
and powers possessed by and all of the obligations and duties of the
science and technology foundation as established pursuant to article
ten-A of the public authorities law to the office as prescribed by
section two hundred nine-d of this article, all of the assets and
liabilities of the small business technology investment fund established
pursuant to appropriations made by various chapters of the law
including, but not limited to chapter fifty-three of the laws of
nineteen hundred eighty-one, chapter fifty-three of the laws of nineteen
hundred eighty-five, chapter fifty-three of the laws of nineteen hundred
eighty-six, chapter fifty-three of the laws of nineteen hundred
eighty-seven, chapter fifty-three of the laws of nineteen hundred
eighty-eight, chapter fifty-three of the laws of nineteen hundred
eighty-nine, chapter fifty-three of the laws of nineteen hundred ninety,
chapter fifty-three of the laws of nineteen hundred ninety-one, chapter
fifty-three of the laws of nineteen hundred ninety-two, chapter
fifty-three of the laws of nineteen hundred ninety-three, chapter
fifty-three of the laws of nineteen hundred ninety-four, and chapter
fifty-three of the laws of nineteen hundred ninety-five shall be
transferred to the urban development corporation.
3. Transfer of certain appropriations. Upon the transfer pursuant to
section two hundred nine-d of this article of the functions and powers
possessed by and all of the obligations and duties of the science and
technology foundation as established pursuant to article ten-A of the
public authorities law to the office as prescribed by section two
hundred nine-d of this article, appropriations enacted heretofore for
the small business technology investment fund made pursuant to various
chapters of the law including, but not limited to, chapter fifty-three
of the laws of nineteen hundred eighty-one, chapter fifty-three of the
laws of nineteen hundred eighty-five, chapter fifty-three of the laws of
nineteen hundred eighty-six, chapter fifty-three of the laws of nineteen
hundred eighty-seven, chapter fifty-three of the laws of nineteen
hundred eighty-eight, chapter fifty-three of the laws of nineteen
hundred eighty-nine, chapter fifty-three of the laws of nineteen hundred
ninety, chapter fifty-three of the laws of nineteen hundred ninety-one,
chapter fifty-three of the laws of nineteen hundred ninety-two, chapter
fifty-three of the laws of nineteen hundred ninety-three, chapter
fifty-three of the laws of nineteen hundred ninety-four, and chapter
fifty-three of the laws of nineteen hundred ninety-five, all
appropriations and reappropriations heretofore made to the science and
technology foundation, or segregated pursuant to law, to the extent of
remaining unexpended or unencumbered balances thereof, whether allocated
or unallocated and obligated or unobligated, shall be transferred and
made available to for use and expenditure by the urban development
corporation for the same purpose for which originally appropriated or
reappropriated and shall be payable on vouchers certified or approved by
the commissioner of taxation and finance, on audit and warrant of the
comptroller.
4. Transfer of certain records. Upon the transfer pursuant to section
two hundred nine-d of this article of the functions and powers possessed
by and all of the obligations and duties of the science and technology
foundation as established pursuant to article ten-A of the public
authorities law to the office as prescribed by section two hundred
nine-d of this article, all books, papers, records and property
pertaining to the small business technology investment fund shall be
maintained by the urban development corporation.
Transfer of assets and liabilities. Upon the transfer
pursuant to section two hundred nine-d of this article of the functions
and powers possessed by and all of the obligations and duties of the
science and technology foundation as established pursuant to article
ten-A of the public authorities law to the office as prescribed by
section two hundred nine-d of this article, except as otherwise provided
in section two hundred nine-f of this article, all assets and
liabilities of the science and technology foundation are hereby
transferred to and assumed by the office.
Continuity of authority. Upon the transfer pursuant to
section two hundred nine-d of this article of the functions and powers
possessed by and all of the obligations and duties of the science and
technology foundation as established pursuant to article ten-A of the
public authorities law to the office as prescribed by section two
hundred nine-d of this article, except as otherwise provided in section
two hundred nine-f of this article, for the purpose of succession to all
functions, powers, duties and obligations of the science and technology
foundation, the office shall be deemed and held to constitute the
continuation of such authority and not a different agency or authority.
Transfer of records. Upon the transfer pursuant to section
two hundred nine-d of this article of the functions and powers possessed
by and all of the obligations and duties of the science and technology
foundation as established pursuant to article ten-A of the public
authorities law to the office as prescribed by section two hundred
nine-d of this article, except as otherwise provided in section two
hundred nine-f of this article, all books, papers, records and property
pertaining to the science and technology foundation shall be transferred
to and maintained by the office.
Completion of unfinished business. Upon the transfer pursuant
to section two hundred nine-d of this article of the functions and
powers possessed by and all of the obligations and duties of the science
and technology foundation as established pursuant to article ten-A of
the public authorities law to the office as prescribed by section two
hundred nine-d of this article, except as otherwise provided in section
two hundred nine-f of this article, any business or other matter
undertaken or commenced by the science and technology foundation
pertaining to or connected with the functions, powers, obligations and
duties so transferred and assigned to the office may be conducted or
completed by the executive director of the office.
Terms occurring in laws, contracts or other documents. Upon
the transfer pursuant to section two hundred nine-d of this article of
the functions and powers possessed by and all of the obligations and
duties of the science and technology foundation as established pursuant
to article ten-A of the public authorities law to the office as
prescribed by section two hundred nine-d of this article, except as
otherwise provided in section two hundred nine-f of this article,
whenever the science and technology foundation and the chairperson
thereof, the functions, powers, obligations and duties of which are
transferred to the office are referred to or designated in any law,
contract or document pertaining to the functions, powers, obligations
and duties transferred and assigned pursuant to this article, such
reference or designation shall be deemed to refer to the office and its
executive director.
Existing rights and remedies preserved. Upon the transfer
pursuant to section two hundred nine-d of this article of the functions
and powers possessed by and all of the obligations and duties of the
science and technology foundation as established pursuant to article
ten-A of the public authorities law to the office as prescribed by
section two hundred nine-d of this article, except as otherwise provided
in section two hundred nine-f of this article, no existing right or
remedy of the state, including the science and technology foundation,
shall be lost, impaired or affected by reason of this article.
Pending actions and proceedings. Upon the transfer pursuant
to section two hundred nine-d of this article of the functions and
powers possessed by and all of the obligations and duties of the science
and technology foundation as established pursuant to article ten-A of
the public authorities law to the office as prescribed by section two
hundred nine-d of this article, except as otherwise provided in section
two hundred nine-f of this article, no action or proceeding pending on
the effective date of this article, brought by or against the science
and technology foundation or chairperson thereof shall be affected by
any provision of this article, but the same may be prosecuted or
defended in the name of the executive director of the office. In all
such actions and proceedings, the office, upon application to the court,
shall be substituted as a party.
Continuance of rules and regulations. Upon the transfer
pursuant to section two hundred nine-d of this article of the functions
and powers possessed by and all of the obligations and duties of the
science and technology foundation as established pursuant to article
ten-A of the public authorities law to the office as prescribed by
section two hundred nine-d of this article, except as otherwise provided
in section two hundred nine-f of this article, all rules, regulations,
acts, determinations and decisions of the science and technology
foundation, pertaining to the functions transferred and assigned by this
article to the office in force at the time of such transfer, assignment,
assumption or devolution shall continue in force and effect as rules,
regulations, acts, determinations and decisions of the office until duly
modified or repealed.
Transfer of appropriations heretofore made to the science and
technology foundation. Upon the transfer pursuant to section two hundred
nine-d of this article of the functions and powers possessed by and all
of the obligations and duties of the science and technology foundation
as established pursuant to article ten-A of the public authorities law
to the office as prescribed by section two hundred nine-d of this
article, except as otherwise provided in section two hundred nine-f of
this article, all appropriations and reappropriations which shall have
been made available as of the date of such transfer to the science and
technology foundation or segregated pursuant to law, to the extent of
remaining unexpended or unencumbered balances thereof, whether allocated
or unallocated and whether obligated or unobligated, shall be
transferred to and made available for use and expenditure by the office
for the same purposes for which originally appropriated or
reappropriated and shall be payable on vouchers certified or approved by
the commissioner of taxation and finance, on audit and warrant of the
comptroller. Payments of liabilities for expenses of personal service,
maintenance and operation which shall have been incurred as of the date
of such transfer by the science and technology foundation, and for
liabilities incurred and to be incurred in completing its affairs shall
also be made on vouchers certified or approved by the executive director
of the office, on audit and warrant of the comptroller.
Research development program. 1. There is hereby established
the research development program. The program shall include but need not
be limited to: the faculty development program, capital facility
program, incentive program, and centers for advanced technology
development program.
2. The office shall provide no later than March first, two thousand, a
strategic plan to the governor, the temporary president of the senate
and the speaker of the assembly which shall:
(a) establish criteria for the awarding of funds made available
through the research development program; all awards shall be made on a
competitive basis;
(b) provide a schedule for issuance of requests for proposals for the
research development program awards;
(c) provide a schedule for completion of review of proposals submitted
by institutions of higher education and research institutions to the
office;
(d) provide procedures for the issuance of awards from the research
development program.
3. The faculty development program is hereby created to assist
institutions of higher education and research institutions with the
retention and recruitment of research faculty. Funds appropriated for
this program shall be administered by the office pursuant to request for
proposals. Consideration for the allocation of awards shall be given to
all institutions of higher education and research institutions within
the state provided such institutions demonstrate to the satisfaction of
the advisory council a specific need for such funds and the manner in
which such award for the recruitment and retention of research faculty
would enhance the research capabilities and reputation of the
institution. Criteria for such awards shall include, but not be limited
to, the ability of the faculty member to leverage and attract federal
funds, venture capital and private industry funds, and the willingness
of the faculty member to pursue entrepreneurial enterprises resulting in
new business or the expansion of existing business in New York state.
The office shall promulgate rules and regulations to establish:
(a) the duration of grants for faculty awards;
(b) matching funds required from the academic and research
institutions;
(c) a schedule for an annual reduction of the faculty development
award, and a corresponding increase in the matching funds from the
academic or research institution; and
(d) other rules and regulations deemed necessary by the office for the
administration of this program.
3-a. The faculty development and technology transfer advisory council
shall be established by the commissioner of economic development to
review and recommend proposals submitted for consideration under
subdivisions three and five of this section. The council shall consist
of eleven members that shall include representatives from four different
universities, one national lab, two New York state incubators or New
York state innovation hot spots, two companies and two non-profits with
a statewide economic development mission. Each representative shall have
technology transfer experience. In addition, at least six members of the
council shall have a demonstrated background in bio-medicine,
biotechnology or other life sciences.
4. (a) The capital facility program shall provide financing for the
design, acquisition, construction, reconstruction, rehabilitation or
improvement of research and development facilities, including equipment.
Funds appropriated or reappropriated for the capital facility program by
chapter six hundred twenty-four of the laws of nineteen hundred
ninety-nine shall be awarded to no more than six primary host
institutions.
(b) Criteria for the issuance of awards by the advisory council shall
include but need not be limited to the following: potential future
growth and economic impact within New York state of the proposed
research to be undertaken at such facilities, available expertise at
such campus in the scientific discipline designated for the center for
advanced technology and/or the center's host campus, an evaluation of
the ability of the proposed research to be undertaken at such facilities
to aid existing business and to create new business in New York state,
and the ability of the proposal to leverage and attract federal funds,
venture capital and private industry funds.
(d) The capital facility program shall also provide financing for the
reconstruction, rehabilitation or improvement of existing laboratory
facilities. Funds available pursuant to this subdivision shall be
available for research facilities at all institutions of higher
education and research institutions in New York state.
(e) The office and the city university construction fund may contract
for the construction fund to design, construct, acquire, reconstruct,
rehabilitate and improve research and development facilities for those
primary host institutions which are senior colleges of the city
university of New York.
5. An incentive program is hereby created to provide additional
assistance to technology transfer or commercialization activities at
institutions of higher education and research institutions in the state
of New York for the purpose of encouraging technology transfer from
institutions of higher education and research institutions to businesses
and for commercialization within New York state. Funds appropriated for
this program shall be available for personal service expenses to enhance
the technology transfer abilities or commercialization of research of
higher education and research institutions to businesses within New York
state including but not limited to patent applications, the creation of
business and marketing plans, venture capital conferences and
non-capital costs associated with the development of real property owned
by such institution of higher education or research institution for
research and development purposes. Funds awarded under the incentive
program shall not exceed fifty percent of the cost of the purpose for
which such funds shall be applied. The faculty development and
technology transfer advisory council, as established by subdivision
three-a of this section, shall review and recommend proposals submitted
for consideration pursuant to this subdivision. Preference shall be
given to proposals developed in coordination with a private or public
medical school located in the state.
6. A center for advanced technology development program is created
whereby funds shall be awarded to centers for advanced technology for
the purpose of enhancing and expanding the existing role of the center
in the area for which it is designated. Funds appropriated for the
development program shall be awarded to such centers for advanced
technology. Criteria for the issuance of awards shall be established by
the office and shall include but need not be limited to the economic
development potential of the research undertaken at such center for
advanced technology, funding leveraged from other sources including
private interests and the federal government, potential of revenues
accruing to the institution of higher education or research institution
from the licensing of the products of research conducted at such center
of advanced technology and the interaction of such center with private
industry.
Gen*NY*sis program. 1. The Gen*NY*sis program is hereby
created to assist research and technology development programs in the
life sciences or in enabling sciences affiliated with public,
not-for-profit private or academic research institutions located within
New York state to develop and commercialize new discoveries for the
improvement of human, plant and animal health and to expand businesses
and employment in New York state.
2. Funds appropriated or transferred to the Gen*NY*sis program shall
be made available to project sponsors for the construction of life
sciences and/or enabling science facilities including, but not limited
to, equipment, laboratory facilities and laboratory equipment, incubator
facilities, manufacturing facilities, bioscience parks or any
combination thereof. Funds shall not be used for projects that are
already completed at the time of application.
3. Funding for each project shall be made available upon submission of
a Gen*NY*sis program and financing plan to the executive director and to
the director of the budget. Such program and financing plan shall be
prepared by the project sponsor and shall include, where applicable, a
description of the proposed project, a description of the consortium of
institutions/organizations involved including respective
responsibilities and contributions, the structure and governance of the
collaboration, efforts to obtain and administer corporate, federal
and/or foundation support, the scientific and technical quality of the
proposed research to be undertaken at such facility, the expected
increase in research activity in specified research areas derived from
such project, projections of discoveries from such research sponsor, and
an economic plan to further develop any discoveries from such project to
include the development of new businesses and jobs within New York state
or if such discovery is to be licensed to another entity, the terms
under which the project sponsor would undertake such licensing
agreements. The urban development corporation shall provide assistance
to the office, as requested by the executive director, with respect to
the evaluation of any economic plan or licensing terms.
4. Funding for each project shall not exceed seventy-five percent of
the cost of such project, provided that, in estimating the residual
percentage of funding, such funding provided by the project sponsor for
each project may include allocated funds (cash); in-kind personnel,
equipment or material donations; federal funds; significant financial
contributions to the project sponsor; university internal sources,
prorated operational costs; or any combinations thereof.
5. Project sponsors receiving awards pursuant to the Gen*NY*sis
program in an amount in excess of ten percent of the total cost of such
project as submitted in the program and financing plan pursuant to this
section shall, for a period not to exceed five years after the receipt
of such award, provide an annual report to the executive director, the
chairman of the senate finance committee and the chairman of the
assembly ways and means committee detailing the use of such award and
the progress of the project sponsor in meeting the criteria set forth in
paragraph three of this section as expressed in the program and
financing plan submitted for review to the executive director.
6. Notwithstanding any other law, rule or regulation to the contrary,
no more than three and one-half of one percent of any grant issued under
this program may be allocated to any grant recipient or to any
subsidiary or organization associated therewith for purposes which may
include, but not be limited to, any direct or indirect costs of
administering the program not contained in the application requesting
such funds, provided however, that no monies granted under the
Gen*NY*sis program may be used to supplant any direct or indirect costs
of the grant recipient.
James D. Watson investigator program. 1. The James D. Watson
investigator program is hereby created to recognize outstanding early
career scientists who demonstrate the potential for leadership at the
frontiers of knowledge in the life sciences and demonstrate an
entrepreneurial spirit to help foster economic development in New York
state into the future.
2. This program shall be administered by the executive director. Funds
shall be awarded to the institution at which the investigator is
employed on behalf of the recipient.
3. Within available funds, each award granted under the James D.
Watson investigator program shall equal two hundred thousand dollars
over a two year period. Selection of such awards shall be made pursuant
to an application process to be conducted no more than once annually.
Eligible recipients of such awards shall include researchers at
academic, public, or not-for-profit private research institutions
located within New York state. Such awards shall be provided for the
purpose of supporting the research activities of such researcher not
otherwise supported by the research institution. Such awards may be used
for the salaries of such investigators, the salaries of support research
personnel and for the purchase of equipment used directly in the pursuit
of research not otherwise provided by the research program at such
institution.
4. Eligible applicants for grants issued under this program shall be
full-time staff members who are United States citizens or legal
permanent residents, have been awarded their doctoral degrees, and have
less than five years of post-doctoral experience, and are conducting
research in the life sciences or in enabling sciences as defined in this
article. All applicants must demonstrate expertise in the life sciences
or in the enabling science discipline as stated in their application.
Preference shall be given to researchers who demonstrate a willingness
and ability to develop their research into economic development
opportunities in New York state.
5. No academic, public, or not-for-profit private research institution
shall receive more than one award per year. No more than three-fifths of
available awards in any year shall be granted to employees of public,
not-for-profit, private or academic research institutions within the
metropolitan commuter transportation district.
College applied research and technology (CART) program. In
order to encourage greater collaboration between private industry,
universities and colleges within the state in the development and
application of new technologies, the office is authorized to designate
such technological areas as the office identifies as having significant
potential for economic growth in New York state, or in which the
application of new technologies could significantly enhance the
productivity and stability of New York state businesses. Such
designations shall be made in accordance with the standards and criteria
set forth in subdivision two of this section. Colleges so designated
shall be eligible for support from the office in the manner provided for
in subdivision three of this section, and for such additional support as
may otherwise be provided by law.
1. As used in this section:
(a) "College applied research and technology center" or "CART" means a
college or college-affiliated research institute or a consortium of such
institutions, designated by the office, which conducts a continuing
program of basic and applied research, development, and technology
transfer in one or more technological areas, in collaboration with and
through the support of private business and industry; and
(b) "Applicant" means a college or college-affiliated research
institute or a consortium of such institutions which request designation
as a CART center in accordance with such requirements as are established
by the office for this purpose. For purposes of this section, applicant
shall not include any college or university that has a center for
advanced technology pursuant to subdivision three of section thirty-one
hundred two-b of the public authorities law.
2. The office shall:
(a) identify technological areas for which a CART center should be
designated, including technological areas that are related to industries
with significant potential for economic growth and development in New
York state, and technological areas that are related to the enhancement
of productivity in various industries located in New York state;
(b) establish criteria that applicants shall satisfy for designation
as a CART, including, but not limited to the following:
(i) an established record of research, development and instruction in
the area or areas of technology involved;
(ii) the capacity to conduct research and development activities in
collaboration with business and industry;
(iii) the capacity to secure substantial private and other
governmental funding for the proposed college or college-affiliated
research institute or a consortium of such institutions, in amounts at
least fifty percent of the total of support sought from the state;
(iv) the ability and willingness to cooperate with other institutions
in the state in conducting research and development activities, and in
disseminating research results;
(v) the ability and willingness to work with technical and community
colleges in the state to enhance the quality of technical education in
the area or areas of technology involved;
(vi) the ability and willingness to cooperate with the office and
other economic development agencies in promoting the growth and
development in New York state of industries based upon or benefiting
from the area or areas of technology involved;
(c) establish such requirements as it deems appropriate for the
format, content and filing of applications for designation as CART
centers; and
(d) establish such procedures as it deems appropriate for the
evaluation of applications for designation as a college applied research
and technology center, including the establishment of peer review panels
composed of nationally recognized experts in the technological areas and
industries to which the application is related.
3. (a) From such funds as may be appropriated for this purpose by the
legislature, the office may provide financial support, through contracts
or other means, to designated college applied research and technology
centers in order to enhance and accelerate the development of such
centers. Funds received pursuant to this subdivision may be used for
purchase of equipment and fixtures, employment of faculty and support
staff, provision of graduate fellowships, and other purposes approved by
the office, but may not be used for capital construction. In each case,
the amount provided by the office to a center shall be matched by
commitments of support from private and governmental, other than state,
sources in accordance with the following:
(i) for the academic year in which it is first funded as a designated
center, and the four subsequent years, the amount provided by the office
to a center shall be matched fifty percent by the center; and
(ii) upon a finding by the office that a technological area has
continued significant potential for enhancing economic growth in New
York state, or the application of technologies in the area could
significantly enhance the productivity and stability of New York state
businesses, the office shall initiate a redesignation process in
accordance with subdivision two of this section. Such redesignation
process shall be initiated by the office in such a manner that not more
than one-third of the centers in existence at the time of redesignation
shall become due for such redesignation at the same time.
(1) In the event a new center is selected in the redesignation
process, the office shall provide funds to such new center in accordance
with the funding match requirements set forth in this paragraph.
(2) In the event a previously designated center is redesignated in the
same area of technology, which redesignation is effective for the sixth
academic year following the first academic year of both designation and
funding, then, in that year and in each year thereafter, the office
shall provide funds of up to three hundred fifty thousand dollars to be
matched fifty percent by the center, amounts in excess of three hundred
fifty thousand dollars shall be matched seventy-five percent by the
center.
(3) In the event a currently designated center is not selected in the
redesignation process for an additional term, or upon a finding by the
office that the area of advanced technology does not have significant
potential for enhancing economic growth in New York state, or upon a
finding that the application of technologies in that area would not
significantly enhance the productivity and stability of New York state
businesses, then the office shall, in the fifth academic year following
such center's first both designation and funding, which year shall be
the final year of funding for such center, provide an amount of up to
two hundred fifty thousand dollars.
(b) Continued funding of the operations of each center shall be based
upon a showing that: the center continues to comply with the criteria
established by the office pursuant to paragraph (b) of subdivision two
of this section; a demonstration of assistance to small businesses in
New York state through research, technology transfer or other means as
approved by the office; compliance with the rules, regulations and
guidelines of the office; and, compliance with any contracts between the
office and the designated applied research center.
(c) Each center shall report on its activities to the office in a
manner and according to the schedule established by the office, and
shall provide such additional information as the office may require. The
office shall evaluate center operations using methods such as site
visits, reporting of specified information and peer review evaluations
using experts in the field of technology in which the center was
designated. The office shall notify each center of the results of its
evaluations and findings of deficiencies in the operation of such center
or its research, education, or technology transfer activities and shall
work with such centers to remedy such findings. If such factors are not
remedied, the office may withdraw the state funding support, in whole or
in part, or withdraw the center designation.
(d) In order to encourage that the results of center research benefit
New York state, designation and continued funding of each center shall
be contingent upon each center's establishing within its licensing
guidelines the following: after payment of the inventor's share, a
reduced payment due to the university of any royalty, income or other
consideration earned from the license or sale of intellectual property
rights created or developed at, or through the use of, the facilities of
the center by any person or entity if the manufacturing or use resulting
from such intellectual property rights occurs within New York state. The
office shall promulgate rules and regulations regarding the provisions
of the licensing guidelines described herein as they apply to such
reduced payment, and such provisions shall be subject to the approval of
the office.
4. From such funds as may be appropriated for this purpose by the
legislature, the office may provide grants to any one college or
college-affiliated research institution for purposes of planning and
program development aimed at enabling such college or college-affiliated
research institution to qualify for designation as a center. Such grants
shall be awarded on a competitive basis, and shall be available only to
those applicants which, in the judgment of the office, may reasonably be
expected to be designated as centers. No applicant shall receive more
than one such grant.
5. (a) From such funds as may be appropriated for the purpose of
incentive grants or other funds which may be available from the office
to enhance center activities in areas of crucial interest in the state's
economic development, the office may provide grants, on a competitive
basis, to centers for projects including, but not limited to, those
which:
(i) explore new technologies with commercial application conducted
jointly by two or more centers or a center and non-center university,
college or community college;
(ii) are aimed at enhancing or accelerating the process of bringing
new products, particularly those under development by new small
businesses, to the marketplace; or
(iii) increase technology transfer projects with the state's mature
manufacturing industries in applying technology in their manufacturing
processes or for new product development.
(b) State support for incentive grants may be matched on an individual
basis by the office, which may consider the type of project and the
availability of amounts from private, university and governmental, other
than state, sources.
6. (a) The office shall make a biannual report of the CART program to
the governor and the legislature not later than September first of every
other year. Such report shall include, but not be limited to, the
results of an evaluation of each center by the office, a description of
the achievement of each center, any deficiencies in the operation of
each center or its research, education and technology transfer
activities, remedial actions recommended by the office, remedial actions
taken by each center, a description of the small business assistance
provided by each center, a description of any incentive grant program
awarded a grant by the office and the achievements of such program, and
the amount of financial assistance provided by the office and the level
of matching funds provided by each center and the uses of such monies.
(b) Bi-annual reports shall include a discussion of any fields of
technology that the office has identified as having significant
potential for economic growth or improved productivity and stability of
New York state businesses and in which collaboration with a center for
advanced technology is encouraged.
ARTICLE 11 Division of State Police
Division of state police. The division of state police in the
executive department shall be known as the "New York State Police." The
head of the New York state police shall be the superintendent of state
police who shall be appointed by the governor by and with the advice and
consent of the senate, and hold office during his or her pleasure. The
superintendent shall be a member of the state police, shall receive as
salary such sum as may be appropriated by law, and shall accrue such
leave credits and be eligible for the same retirement benefits, service
credits and other benefits as any other member of the state police. If,
prior to appointment, the superintendent served as a member of the state
police, he or she, upon appointment, shall be entitled to continue to
accrue and receive such credits and benefits as he or she would have
been entitled to accrue and receive prior to appointment.
If, prior to his or her appointment, the superintendent shall have
served as a member of the State Police for a period of ten years or
more, he or she shall, provided he or she is not eligible for
retirement, upon termination of service as superintendent, be
reappointed, without examination, as a member of the state police in the
grade held by him or her prior to appointment as superintendent,
notwithstanding the absence of any vacancy in such grade. For the
purpose of determining the annual salary to be paid upon such
reappointment, the period of service as superintendent shall be counted
as service in the grade to which reappointed.
Employees. The superintendent may appoint such employees as may
be necessary and fix their compensation within such sum as may be
appropriated by law. Persons appointed to competitive positions within
the division who meet the definition of veteran or disabled veteran as
defined in section eighty-five of the civil service law shall be
entitled to additional credit and preference as conferred by that law
and in the same manner, except that, notwithstanding any law to the
contrary, with respect to any candidate applying for credit in a
competitive examination for original appointment as a disabled or
non-disabled veteran, such candidate may apply provisionally for such
credit while still an active member of the armed forces. The application
for provisional credit may be made at any time between the date of his
or her application for the competitive examination and the date the
eligible list is established. In cases where there has been a
provisional application, the superintendent shall grant final credit
only if the candidate renews his or her application within ninety days
following termination of the candidate's military duty, and the
candidate's period of eligibility on the list has not expired, and the
candidate satisfies the appropriate statutory requirements for
eligibility. Pending the granting of final credit, the candidate's
ranking on any eligible list shall reflect the provisional credit.
Equipment. The superintendent is authorized on behalf of the
state to purchase, lease or lease-purchase, within the amounts
appropriated therefor, necessary equipment and supplies, including but
not limited to, vehicles and aircraft subject to the approval of the
director of the budget, and uniforms; when any state property shall
become unfit for use it shall be disposed of in accordance with the
provisions of the finance law.
Acquisition of real property. 1. The superintendent shall from
time to time establish headquarters or substations in such localities as
he shall deem most suitable for the efficient performance of police duty
in the rural sections of the state, and for that purpose and for other
purposes of the division he may, when an appropriation therefor has been
made by the legislature, acquire, in the name of the people of the state
of New York, by lease, purchase, lease-purchase subject to the approval
of such lease-purchase agreement by the director of the budget or,
pursuant to the provisions of the eminant domain procedure law, any real
property which he may deem necessary therefor; provided, however, that
no such real property shall be so acquired by purchase or lease-purchase
unless the title thereto shall be approved by the attorney general.
2. Whenever real property is to be acquired pursuant to the eminent
domain procedure law, the superintendent shall cause to be made by the
state department of transportation an accurate acquisition map.
3. On the approval of such map by the superintendent of the division
of state police, the original tracing of such map shall be filed in the
main office of the division of state police pursuant to the provisions
of the eminent domain procedure law.
4. If the superintendent shall determine, prior to the filing of such
map in the office of the clerk or register of the county, that changes,
alterations or modifications of such map as filed in the main office of
the division of state police should be made, he or she shall, subject to
the provisions of article two of the eminent domain procedure law, if
applicable, direct the preparation by the department of transportation
of an amended map. On the approval of such amended map by the
superintendent, it shall be filed in the main office of the division of
state police and the amended map shall thereupon in all respects and for
all purposes supersede the map previously filed.
5. If the superintendent shall determine, prior to the filing of a
copy of such acquisition map in the office of the county clerk or
register as provided in section four hundred two of the eminent domain
procedure law, that such map should be withdrawn, he or she may file a
certificate of withdrawal in the offices of the division of state police
and of the department of law. Upon the filing of such certificate of
withdrawal, the map to which it refers shall be cancelled and all rights
thereunder shall cease and determine.
6. The superintendent shall deliver to the attorney general a copy of
such acquisition map, whereupon it shall be the duty of the attorney
general to advise and certify to the superintendent the names of the
owners of the property, easements, interests or rights described in the
said acquisition map, including the owners of any right, title or
interest therein pursuant to the requirements of section four hundred
three of the eminent domain procedure law.
7. If, at or after the vesting of title to such property in the people
of the state of New York as provided for in the eminent domain procedure
law, the superintendent shall deem it necessary to cause the removal of
an owner or occupant from any real property so acquired, he may cause
such owner or occupant to be removed therefrom by proceeding in
accordance with section four hundred five of the eminent domain
procedure law. The proceeding shall be brought in the name of the
superintendent as agent of the state and the attorney general shall
represent the petitioner in the proceedings. No execution shall issue
for costs, if any, awarded against the state or the superintendent, but
they shall be part of the costs of the acquisition of the real property
and be paid in like manner. Proceedings may be brought separately
against one or more of the owners or occupants of any such property, or
one proceeding may be brought against all or several of the owners or
occupants of any or all such property within the territorial
jurisdiction of the same court, justice or judge; precepts or final
orders shall be made for immediate removal of persons defaulting in
appearance or in answering, or withdrawing their answers, if any,
without awaiting the trial or decision of issues raised by contestants,
if any.
8. Upon making any agreement provided for in section three hundred
four of the eminent domain procedure law, the superintendent shall
deliver to the comptroller such agreement and a certificate stating the
amount due such owner or owners thereunder on account of such
appropriation of his or their property and the amounts so fixed shall be
paid out of the state treasury after audit by the comptroller from
moneys appropriated for the acquisition of such real property, but not
until there shall have been filed with the comptroller a certificate of
the attorney general showing the person or persons claiming the amount
so agreed upon to be legally entitled thereto.
9. Application for reimbursement of incidental expenses as provided in
section seven hundred two of the eminent domain procedure law shall be
made to the superintendent upon forms prescribed by him and shall be
accompanied by such information and evidence as the superintendent may
require. Upon approval of such application, the superintendent shall
deliver a copy thereof to the comptroller together with a certificate
stating the amount due thereof, and the amount so fixed shall be paid
out of the state treasury after audit by the comptroller from moneys
appropriated for the acquisition of property under this section.
10. The commissioner, with the approval of the director of the budget,
shall establish and may from time to time amend rules and regulations
authorizing the payment of actual reasonable and necessary moving
expenses of occupants of property acquired pursuant to this section; of
actual direct losses of tangible personal property as a result of moving
or discontinuing a business or farm operation, but not exceeding an
amount equal to the reasonable expenses that would have been required to
relocate such property, as determined by the commissioner; and actual
reasonable expenses in searching for a replacement business or farm; or
in hardship cases for the advance payment of such expenses and losses.
For the purposes of making payment of such expenses and losses only the
term "business" means any lawful activity conducted primarily for
assisting in the purchase, sale, resale, manufacture, processing or
marketing of products, commodities, personal property or services by the
erection and maintenance of an outdoor advertising display or displays,
whether or not such display or displays are located on the premises on
which any of the above activities are conducted. Such rules and
regulations may further define the terms used in this subdivision. In
lieu of such actual reasonable and necessary moving expenses, any such
displaced owner or tenant of residential property may elect to accept a
moving expense allowance, plus a dislocation allowance, determined in
accordance with a schedule prepared by the commissioner and made a part
of such rules and regulations. In lieu of such actual reasonable and
necessary moving expenses, any such displaced owner or tenant of
commercial property who relocates or discontinues his business or farm
operation may elect to accept a fixed relocation payment in an amount
equal to the average annual net earnings of the business or farm
operation, except that such payment shall be not less than two thousand
five hundred dollars nor more than ten thousand dollars. In the case of
a business, no such fixed relocation payment shall be made unless the
commissioner finds and determines that the business cannot be relocated
without a substantial loss of its existing patronage, and that the
business is not part of a commercial enterprise having at least one
other establishment, which is not being acquired by the state or the
United States, which is engaged in the same or similar business. In the
case of a business which is to be discontinued but for which the
findings and determinations set forth above cannot be made, the
commissioner may prepare an estimate of what the actual reasonable and
necessary moving expenses, exclusive of any storage charges, would be if
the business were to be relocated and enter into an agreed settlement
with the owner of such business for an amount not to exceed such
estimate in lieu of such actual reasonable and necessary moving
expenses. Application for payment under this subdivision shall be made
to the commissioner upon forms prescribed by him and shall be
accompanied by such information and evidence as the commissioner may
require. Upon approval of such application, the commissioner shall
deliver a copy thereof to the comptroller together with a certificate
stating the amount due thereunder, and the amount so fixed shall be paid
out of the state treasury after audit by the comptroller from moneys
appropriated for the acquisition of property under this section. As used
in this subdivision the term "commercial property" shall include
property owned by an individual, family, partnership, corporation,
association or a nonprofit organization and includes a farm operation.
As used in this subdivision the term "business" means any lawful
activity, except a farm operation, conducted primarily for the purchase,
sale, lease and rental of personal and real property, and for the
manufacture, processing, or marketing of products, commodities, or any
other personal property; for the sale of services to the public; or by a
nonprofit organization.
11. Authorization is hereby given to the commissioner to make
supplemental relocation payments, separately computed and stated, to
displaced owners and tenants of residential property acquired pursuant
to this section who are entitled thereto, as determined by him. The
commissioner, with the approval of the director of the budget, may
establish and from time to time amend rules and regulations providing
for such supplemental relocation payments. Such rules and regulations
may further define the terms used in this subdivision. In the case of
property acquired pursuant to this section which is improved by a
dwelling actually owned and occupied by the displaced owner for not less
than one hundred eighty days immediately prior to initiation of
negotiations for the acquisition of such property, such payment to such
owner shall not exceed fifteen thousand dollars. Such payment shall be
the amount, if any, which, when added to the acquisition payment equals
the average price, established by the commissioner on a class, group or
individual basis, required to obtain a comparable replacement dwelling
that is decent, safe and sanitary to accommodate the displaced owner,
reasonably accessible to public services and places of employment and
available on the private market, but in no event shall such payment
exceed the difference between acquisition payment and the actual
purchase price of the replacement dwelling. Such payment shall include
an amount which will compensate such displaced owner for any increased
interest costs which such person is required to pay for financing the
acquisition of any such comparable replacement dwelling. Such amount
shall be paid only if the dwelling acquired pursuant to this section was
encumbered by a bona fide mortgage which was a valid lien on such
dwelling for not less than one hundred eighty days prior to the
initiation of negotiations for the acquisition of such dwelling. Such
amount shall be equal to the excess in the aggregate interest and other
debt service costs of that amount of the principal of the mortgage on
the replacement dwelling which is equal to the unpaid balance of the
mortgage on the acquired dwelling, over the remainder term of the
mortgage on the acquired dwelling, reduced to discounted present value.
The discount rate shall be the prevailing interest rate paid on savings
deposits by commercial banks in the general area in which the
replacement dwelling is located. Any such mortgage interest differential
payment shall, notwithstanding the provisions of section twenty-six-b of
the general construction law, be in lieu of and in full satisfaction of
the requirements of such section. Such payment shall include reasonable
expenses incurred by such displaced owner for evidence of title,
recording fees and other closing costs incident to the purchase of the
replacement dwelling, but not including prepaid expenses. Such payment
shall be made only to a displaced owner who purchases and occupies a
replacement dwelling which is decent, safe and sanitary within one year
subsequent to the date on which he is required to move from the dwelling
acquired pursuant to this section or the date on which he receives from
the state final payment of all costs of the acquired dwelling, whichever
occurs later, except advance payment of such amount may be made in
hardship cases. In the case of property acquired pursuant to this
section from which an individual or family, not otherwise eligible to
receive a payment pursuant to the above provisions of this subdivision,
is displaced from any dwelling thereon which has been actually and
lawfully occupied by such individual or family for not less than ninety
days immediately prior to the initiation of negotiations for the
acquisition of such property, such payment to such individual or family
shall not exceed four thousand dollars. Such payment shall be the amount
which is necessary to enable such individual or family to lease or rent
for a period not to exceed four years, a decent, safe, and sanitary
dwelling of standards adequate to accommodate such individual or family
in areas not generally less desirable in regard to public utilities and
public and commercial facilities and reasonably accessible to his place
of employment, but shall not exceed four thousand dollars, or to make
the down payment, including reasonable expenses incurred by such
individual or family for evidence of title, recording fees, and other
closing costs incident to the purchase of the replacement dwelling, but
not including prepaid expenses, on the purchase of a decent, safe and
sanitary dwelling of standards adequate to accommodate such individual
or family in areas not generally less desirable in regard to public
utilities and public and commercial facilities, but shall not exceed
four thousand dollars, except if such amount exceeds two thousand
dollars, such person must equally match any such amount in excess of two
thousand dollars, in making the down payment. Such payments may be made
in installments as determined by the commissioner. Application for
payment under this subdivision shall be made to the commissioner upon
forms prescribed by him and shall be accompanied by such information and
evidence as the commissioner may require. Upon approval of such
application, the commissioner shall deliver a copy thereof to the
comptroller, together with a certificate stating the amount due
thereunder, and the amount so fixed shall be paid out of the state
treasury after audit by the comptroller from moneys appropriated for the
acquisition of property under this section.
12. The owner of any real property so acquired may present to the
court of claims, pursuant to section five hundred three of the eminent
domain procedure law a claim for the value of such property acquired and
for legal damages caused by such acquisition, as provided by law for the
filing of claims with the court of claims. Awards and judgments of the
court of claims shall be paid in the same manner as awards and judgments
of that court for the acquisition of lands generally and shall be paid
out of the state treasury after audit by the comptroller from moneys
appropriated for the acquisition of such real property.
13. If the superintendent shall determine subsequent to the
acquisition of a temporary easement in any real property that the
purposes for which such easement right was acquired have been
accomplished and that the exercise of such easement is no longer
necessary, he shall make his certificate that the exercise of such
easement is no longer necessary and that such easement right is
therefore terminated, released and extinguished. The superintendent
shall cause such certificate to be filed in the office of the department
of state and upon such filing all rights acquired by the state in such
property shall cease and determine. The superintendent shall cause a
certified copy of such certificate as so filed in the office of the
department of state to be mailed to the owner of the property affected,
as certified by the attorney general, if the place of residence of such
owner is known or can be ascertained by a reasonable effort and such
superintendent shall cause a further certified copy of such certificate
to be filed in the office of the recording officer of each county in
which the property affected or any part thereof is situated. On the
filing of such certified copy of such certificate with such recording
officer, it shall be his duty to record the same in his office in the
books used for recording deeds and to index the same against the name of
the people of the state of New York as grantor.
Establishment of training school. The superintendent may
establish and maintain a training school and make rules and regulations
for the conduct thereof; provided, however, that such regulations shall
provide that the children or surviving spouse of a state police officer
killed in the line of duty shall, if otherwise qualified, have a prior
and preferred right over other applicants to appointment to such
training school or academy.
Child abuse prevention. The superintendent shall, for all
members of the state police: (1) develop, maintain and disseminate
written policies and procedures pursuant to title six of article six of
the social services law and applicable provisions of article ten of the
family court act, regarding the mandatory reporting of child abuse or
neglect, reporting procedures and obligations of persons required to
report, provisions for taking a child into protective custody, mandatory
reporting of deaths, immunity from liability, penalties for failure to
report and obligations for the provision of services and procedures
necessary to safeguard the life or health of the child; and (2)
establish, and implement on an ongoing basis, a training program for all
current and new employees regarding the policies and procedures
established pursuant to this section.
Family offense intervention. The superintendent shall, for
all members of the state police including new and veteran officers,
develop, maintain and disseminate, in consultation with the state office
for the prevention of domestic violence, written policies and procedures
consistent with article eight of the family court act and applicable
provisions of the criminal procedure and domestic relations laws,
regarding the investigation of and intervention in incidents of family
offenses. Such policies and procedures shall make provision for
education and training in the interpretation and enforcement of New
York's family offense laws, including but not limited to:
(a) intake and recording of victim statements, and the prompt
translation of such statements if made in a language other than English,
in accordance with subdivision (c) of this section, on a standardized
"domestic violence incident report form" promulgated by the state
division of criminal justice services in consultation with the
superintendent and with the state office for the prevention of domestic
violence, and the investigation thereof so as to ascertain whether a
crime has been committed against the victim by a member of the victim's
family or household as such terms are defined in section eight hundred
twelve of the family court act and section 530.11 of the criminal
procedure law;
(b) the need for immediate intervention in family offenses including
the arrest and detention of alleged offenders, pursuant to subdivision
four of section 140.10 of the criminal procedure law, and notifying
victims of their rights, in their native language, if identified as
other than English, in accordance with subdivision (c) of this section,
including but not limited to immediately providing the victim with the
written notice provided in subdivision six of section 530.11 of the
criminal procedure law and subdivision five of section eight hundred
twelve of the family court act.
(c) The superintendent, in consultation with the division of criminal
justice services and the office for the prevention of domestic violence
shall determine the languages in which such translation required by
subdivision (a) of this section, and the notification required pursuant
to subdivision (b) of this section, shall be provided. Such
determination shall be based on the size of the New York state
population that speaks each language and any other relevant factor. Such
written notice required pursuant to subdivision (b) of this section
shall be made available to all state police officers in the state.
Elder abuse awareness. The superintendent, in cooperation
with the state office for the aging and the office of children and
family services, shall, for all members of the division of state police:
(1) develop, maintain and disseminate educational material relating to
abuse of adults, including physical abuse, sexual abuse, emotional
abuse, active neglect, passive neglect, self neglect, and financial
exploitation, as such terms are defined in section four hundred
seventy-three of the social services law, and identity theft, and (2)
establish and implement written procedures and policies in the event a
member of the division of state police encounters such abuse, including
the provision of information and referral.
Human trafficking awareness. The superintendent, in
consultation with the office of temporary and disability assistance and
the division of criminal justice services, shall: (1) develop, maintain
and disseminate to all members of the state police, including new and
veteran officers, written policies, procedures and educational materials
relating to human trafficking victims, including services available for
victims of human trafficking, as referenced in section four hundred
eighty-three-bb of the social services law; and (2) establish and
implement written procedures and policies in the event a member of the
division of state police encounters an individual believed to be a
victim of human trafficking, which shall include, but not be limited to,
the provision of information and/or referral to an appropriate provider
of social and legal services to human trafficking victims, in accordance
with such section four hundred eighty-three-bb.
Cardiopulmonary resuscitation training and retraining. 1. For
the purposes of this section, "cardiopulmonary resuscitation" shall have
the same meaning as provided in subdivision six of section six hundred
twenty-one of the general business law.
2. Each member of the division of state police shall be:
(a) trained in cardiopulmonary resuscitation during the training
process to become a trooper;
(b) retrained in cardiopulmonary resuscitation every two years; and
(c) required to demonstrate the satisfactory completion of training in
cardiopulmonary resuscitation.
Emergency situations involving people with autism spectrum
disorder and other developmental disabilities. The superintendent shall,
for all members of the state police:
1. Develop, maintain and disseminate, in consultation with the
commissioner of the office for people with developmental disabilities,
written policies and procedures consistent with section 13.43 of the
mental hygiene law, regarding the handling of emergency situations
involving individuals with autism spectrum disorder and other
developmental disabilities. Such policies and procedures shall make
provisions for the education and training of new and veteran police
officers on the handling of emergency situations involving individuals
with developmental disabilities; and
2. Recommend to the governor, rules and regulations with respect to
establishment and implementation on an ongoing basis of a training
program for all current and new police officers regarding the policies
and procedures established pursuant to this subdivision, along with
recommendations for periodic retraining of police officers.
Opioid antagonist awareness. The superintendent, in
cooperation with the department of health and the office of alcoholism
and substance abuse services, shall, for all members of the division of
state police: (1) develop, maintain and disseminate appropriate
instruction regarding section 60.49 of the criminal procedure law, and
(2) establish and implement written procedures and policies in the event
a member of the division of state police encounters a person who
possesses opioid antagonists.
* § 214-h. Extreme risk protection orders. The superintendent shall
for all members of the division of state police, including new and
veteran officers, develop, maintain and disseminate written policies and
procedures and educational materials regarding the availability of and
procedure for filing extreme risk protection orders under article
sixty-three-A of the civil practice law and rules, including the
requirements for police officers under section six thousand forty-one of
such law.
* NB There are 2 § 214-h's
Child-sensitive arrests. The superintendent, in consultation
with the office of children and family services, shall develop, maintain
and disseminate to all members of the state police written policies and
procedures, regarding child-sensitive arrest practices. Such policies
and procedures shall address situations in which the parent, guardian,
or other person legally charged with the care or custody of a child less
than eighteen years old is arrested. Such policies and procedures shall
include, but not be limited to:
(a) procedures regarding identification and documentation of whether
an arrestee is the parent, guardian or person legally charged with the
care or custody of a child;
(b) procedures to allow for the arrangement of temporary care for the
child of an arrested parent, guardian or other person legally charged
with the care or custody of such child, which may include allowing the
arrested parent, guardian or other person legally charged with the care
or custody of such child to place additional phone calls to arrange for
child care;
(c) appropriate actions that will allow law enforcement to assist in
minimizing the impact of the emotional harm caused by witnessing such
arrests; and
(d) information on the availability of access to community-based
providers of crisis intervention, child protection and other supportive
resources that could aid the child of an arrested parent, guardian or
other person legally charged with the care or custody of such child.
Critical incident policy. 1. As used in this section, the
following terms shall have the following meanings:
(a) "Critical incident" shall mean the following actions when
performed by a member or experienced by a member in the course of
official duties: (i) an action that directly causes serious physical
injury or death to another person or member; (ii) a discharge of a
firearm by a member directed at another person; (iii) a traffic accident
or incident involving a division vehicle, aircraft, or vessel that
results in serious physical injury or death; or (iv) any other incident
deemed appropriate by the superintendent or their designee.
(b) "Serious physical injury" shall mean an injury that, based on the
facts and circumstances reasonably known at the time of the incident,
appears to involve a substantial risk of death or an obvious and severe
impairment of a major bodily function, such that a reasonable person
would conclude the injury is life-threatening or significantly
life-altering, without regard to later medical findings, prognosis, or
outcome. The determination of a "serious physical injury" shall be made
by the superintendent or their designee based on the observable
conditions and available information at the time the supervisor arrives
at the scene of the critical incident, and shall not be affected by
subsequent medical evaluation or recovery. "Serious physical injury"
shall include, but not be limited to, suspected spinal cord injury or
paralysis, severe penetrating head injury, massive blood loss, or loss
of limb.
(c) "Directly involved" shall mean any member who was physically
present within the immediate proximity of a critical incident at the
time it occurred and whose direct exposure to the incident placed the
member within the immediate zone of operational engagement, regardless
of whether the member discharged a weapon or otherwise used force.
(d) "Primary member" means any directly involved member who
justifiably used deadly physical force during the critical incident, or
whose actions during the critical incident appear to be the most
immediate and substantial cause of death or serious physical injury to a
person.
2. The superintendent shall develop, maintain, and disseminate to all
members of the division of state police a critical incident paid leave
policy that provides for paid critical incident leave in accordance with
this section.
3. Such critical incident paid leave policy shall guarantee: (a) paid
critical incident leave of at least twenty calendar days for any primary
member whose official actions were the direct and proximate cause of the
death of another person; (b) paid critical incident leave of at least
ten calendar days for any other member directly involved in the critical
incident; and (c) paid critical incident leave under such other
circumstances the superintendent or their designee determines
appropriate. Such leave shall constitute a separate category of leave
and shall not count against vacation, sick, or personal leave accruals.
Such leave, where appropriate, shall be designated as family and medical
leave act and/or count against a member's workers' compensation leave
entitlement.
4. Critical incident paid leave shall begin as soon as possible after
the critical incident, provided that initial supervisory inquiries of
the involved members shall occur before leave commences. Critical
incident leave may only be delayed to ensure minimum necessary staffing
levels or protect community safety. Delays shall only be as long as
necessary to address such concerns. Upon agreement of the member and the
superintendent or their designee, the member shall be allowed to return
to duty prior to the completion of the period of critical incident
leave.
5. In any case where critical incident paid leave has been made to a
member, and it is thereafter determined that a critical incident did not
occur or that the member's actions that resulted in the serious physical
injury or death of another person were not justified, the superintendent
or their designee may order the deduction of equivalent vacation or
personal leave days and/or the withholding of future paid leave to such
member, provided that the amount of days deducted and/or withheld shall
not be more than the critical incident paid leave days that were
originally provided.
6. The superintendent shall be prohibited from taking any punitive
administrative action against any member granted critical incident leave
under this section solely on the basis of the provision of such leave
unless the leave was provided, at least in part, based upon the member's
fraud, deceit, or misrepresentation.
7. The superintendent is authorized to promulgate rules and
regulations to implement, administer, and enforce the provisions of this
section.
Organization; salaries; qualifications; appointment; term;
rules and regulations. 1. The New York state police shall, in addition
to the superintendent, consist of the following sworn members:
(a) a headquarters staff consisting of the following positions:
(1) one first deputy superintendent;
(2) one deputy superintendent who shall serve as field commander;
(3) one deputy superintendent in charge of administrative services;
(4) one deputy superintendent in charge of employee relations,
training and human resources;
(5) one deputy superintendent who shall serve as chief inspector in
charge of inspectional services and internal affairs;
(6) one counsel;
(7) seven assistant deputy superintendents, one of whom shall be
assigned to the uniform force, one to the bureau of criminal
investigation, two for administrative services, one for employee
relations, training and human resources, and two who shall serve as
deputy chief inspectors;
(8) one confidential assistant;
(9) one first assistant counsel and such assistant counsels and staff
attorneys as the superintendant may appoint;
(10) such inspectors as the superintendent may appoint;
(11) such majors, one of whom shall be the director of training and
commanding officer of the New York state police academy and one of whom
shall be in charge of the detail assigned for special duty with the
governor, as the superintendent may appoint;
(12) such captains as the superintendent may appoint;
(13) such technical lieutenants as the superintendent may appoint;
(14) one chief technical sergeant;
(15) such staff sergeants and technical sergeants as the
superintendent may appoint from time to time; and
(16) such additional members as the superintendent may deem necessary
for the adequate and proper administration of the New York state police.
(b) in addition to the headquarters staff there shall be not less than
ten troops each composed of:
(1) one major;
(2) not less than seven lieutenants; such lieutenants designated as
captains by the superintendent shall serve as zone commanders;
(3) one first sergeant;
(4) such sergeants as the superintendent may appoint within the sums
appropriated therefor; sergeants designated by the superintendent as
zone sergeants shall serve as assistant zone commanders;
(5) such technical sergeants as the superintendent may appoint from
time to time within the sums appropriated therefor;
(6) such corporals as shall hold office as such; and
(7) such troopers as the superintendent may appoint within the sums
appropriated therefor.
Appointment or assignment to such positions shall be made by the
superintendent who shall also fix the salaries for such positions
subject to the approval of the director of the budget within the sums
appropriated therefor.
The superintendent may appoint to the troops, within the sums
appropriated therefor, as members of the New York state police, such
numbers as may be required to carry out the purposes of the New York
state police, and he may also from time to time, within the sums
appropriated therefor, appoint such other additional personnel as may be
required for all necessary police purposes, including policing and
protecting the lands and parkways of the state.
2. a. Salary schedules for the titles of trooper, sergeant, technical
sergeant, station commander, zone sergeant, first sergeant, staff
sergeant, chief technical sergeant, lieutenant, technical lieutenant,
lieutenant BCI, captain, captain BCI and major:
(1) Effective April first, two thousand twenty-three, members of the
collective negotiating unit consisting of troopers in the division of
state police shall receive a basic annual salary pursuant to the
following schedule:
Orange, City of New Nassau and All Other
Putnam and York, Rockland Suffolk Locations
Dutchess and Westchester Counties
Counties Counties
Trainee 1 N/A N/A N/A $61,400
Step 1 $87,101 $88,401 $88,471 $86,861
Step 2 $92,406 $93,705 $94,045 $92,162
Step 3 $95,583 $96,880 $97,221 $95,339
Step 4 $99,348 $100,644 $100,986 $99,105
Step 5 $103,531 $104,829 $105,171 $103,289
(2) Effective April first, two thousand twenty-four, members of the
collective negotiating unit consisting of troopers in the division of
state police shall receive the basic annual salary pursuant to the
following schedule:
Orange, City of New Nassau and All Other
Putnam and York, Rockland Suffolk Locations
Dutchess and Westchester Counties
Counties Counties
Trainee 1 N/A N/A N/A $63,242
Step 1 $89,714 $91,053 $91,403 $89,467
Step 2 $95,178 $96,516 $96,866 $94,927
Step 3 $98,450 $99,786 $100,138 $98,199
Step 4 $102,328 $103,663 $104,016 $102,078
Step 5 $106,637 $107,974 $108,326 $106,388
(3) Effective April first, two thousand twenty-five, members of the
collective negotiating unit consisting of troopers in the division of
state police shall receive a basic annual salary pursuant to the
following schedule:
Orange, City of New Nassau and All Other
Putnam and York, Rockland Suffolk Locations
Dutchess and Westchester Counties
Counties Counties
Trainee 1 N/A N/A N/A $65,139
Step 1 $92,405 $93,785 $94,145 $92,151
Step 2 $98,033 $99,411 $99,772 $97,775
Step 3 $101,404 $102,780 $103,142 $101,145
Step 4 $105,398 $106,773 $107,136 $105,140
Step 5 $109,836 $111,213 $111,576 $109,580
(4) Effective April first, two thousand twenty-three, members of the
collective negotiating unit consisting of commissioned and
non-commissioned officers in the division of state police shall receive
a basic annual salary pursuant to the following schedule:
O/P/Du NYC/R/W Nass/Suff All Others
Sergeant and
Technical
Sergeant $121,949 $123,248 $123,589 $121,706
Station
Commander $125,889 $127,189 $127,528 $125,650
Zone
Sergeant $127,898 $129,193 $129,534 $127,657
First, Staff
and Chief
T/Sgt $134,479 $135,775 $136,116 $134,235
Lieutenant and
Technical
Lieutenant $145,735 $147,031 $147,371 $145,495
Lieutenant
BCI $148,590 $149,887 $150,228 $148,346
Captain $155,422 $156,719 $157,063 $155,180
Captain BCI $158,319 $159,614 $159,955 $158,074
Major $165,609 $166,904 $167,244 $165,363
(5) Effective April first, two thousand twenty-four, members of the
collective negotiating unit consisting of commissioned and
non-commissioned officers in the division of state police shall receive
a basic annual salary pursuant to the following schedule:
O/P/Du NYC/R/W Nass/Suff All Others
Sergeant and
Technical
Sergeant $125,607 $126,945 $127,297 $125,357
Station
Commander $129,666 $131,005 $131,354 $129,420
Zone
Sergeant $131,735 $133,069 $133,420 $131,487
First, Staff
and Chief
T/Sgt $138,513 $139,848 $140,199 $138,262
Lieutenant and
Technical
Lieutenant $150,107 $151,442 $151,792 $149,860
Lieutenant
BCI $153,048 $154,384 $154,735 $152,796
Captain $160,085 $161,421 $161,775 $159,835
Captain BCI $163,069 $164,402 $164,754 $162,816
Major $170,577 $171,911 $172,261 $170,324
(6) Effective April first, two thousand twenty-five, members of the
collective negotiating unit consisting of commissioned and
non-commissioned officers in the division of state police shall receive
a basic annual salary pursuant to the following schedule:
O/P/Du NYC/R/W Nass/Suff All Others
Sergeant and
Technical
Sergeant $129,375 $130,753 $131,116 $129,118
Station
Commander $133,556 $134,935 $135,295 $133,303
Zone
Sergeant $135,687 $137,061 $137,423 $135,432
First, Staff
and Chief
T/Sgt $142,668 $144,043 $144,405 $142,410
Lieutenant and
Technical
Lieutenant $154,610 $155,985 $156,346 $154,356
Lieutenant
BCI $157,639 $159,016 $159,377 $157,380
Captain $164,888 $166,264 $166,628 $164,630
Captain BCI $167,961 $169,334 $169,697 $167,700
Major $175,694 $177,068 $177,429 $175,434
b. The salary schedules in subparagraphs one, two, three and four of
paragraph a of this subdivision shall reflect a five-step progression
from the entry level, step 1 salary to the highest level, step 5, for
the position of trooper.
c. The salary schedules in paragraph a of this subdivision reflect the
basic annual salary for employees in those titles listed whose principal
place of employment, or in the case of a field employee, whose official
station as determined in accordance with the regulations of the state
comptroller is located in the locations listed in the salary schedule.
The salary schedules shall not be applicable to those members in the
title of Special Trooper.
2-a. The superintendent may also appoint a division physician who
shall be the medical consultant and chief medical examiner of the New
York state police, and assistant division physicians each of whom shall
be an assistant medical consultant and assistant chief medical examiner
of the New York state police.
3. The sworn members of the New York state police shall be appointed
by the superintendent and permanent appointees may be removed by the
superintendent only after a hearing. No person shall be appointed to the
New York state police force as a sworn member unless such person shall
be a citizen of the United States, between the ages of twenty-one and
forty-three years. Notwithstanding any other provision of law or any
general or special law to the contrary the time spent on military duty,
not exceeding a total of six years, shall be subtracted from the age of
any applicant who has passed their forty-third birthday, solely for the
purpose of permitting qualification as to age and for no other purpose.
Such limitations as to age however shall not apply to persons appointed
to the positions of counsel, first assistant counsel, assistant counsel,
and assistant deputy superintendent for employee relations nor to any
person appointed to the bureau of criminal investigation pursuant to
section two hundred sixteen of this article nor shall any person be
appointed unless such person has fitness and good moral character and
shall have passed a physical and mental examination based upon standards
provided by the rules and regulations of the superintendent.
Appointments shall be made for a probationary period which, in the case
of appointees required to attend and complete a basic training program
at the state police academy, shall include such time spent attending the
basic school and terminate one year after successful completion thereof.
All other sworn members shall be subject to a probationary period of one
year from the date of appointment. Following satisfactory completion of
the probationary period the member shall be a permanent appointee.
Voluntary resignation or withdrawal from the New York state police
during such appointment shall be submitted to the superintendent for
approval. Reasonable time shall be required to account for all equipment
issued or for debts or obligations to the state to be satisfied.
Resignation or withdrawal from the division during a time of emergency,
so declared by the governor, shall not be approved if contrary to the
best interest of the state and shall be a misdemeanor. No sworn member
removed from the New York state police shall be eligible for
reappointment. The superintendent shall make rules and regulations
subject to approval by the governor for the discipline and control of
the New York state police and for the examination and qualifications of
applicants for appointment as members thereto and such examinations
shall be held and conducted by the superintendent subject to such rules
and regulations. The superintendent is authorized to charge a fee of
twenty dollars as an application fee for any person applying to take a
competitive examination for the position of trooper, and a fee of five
dollars for any competitive examination for a civilian position. The
superintendent shall promulgate regulations subject to the approval of
the director of the budget, to provide for a waiver of the application
fee when the fee would cause an unreasonable hardship on the applicant
and to establish a fee schedule and charge fees for the use of state
police facilities.
3-a. Notwithstanding any other law, rule or regulation to the
contrary, the superintendent shall promulgate rules and regulations
subject to approval by the governor for the administration of
supplemental competitive examinations, to be given at not less than six
month intervals for two years following the application deadline date of
the regular competitive examination for the position of trooper, for
individuals who, on the application deadline date or on the date of the
regular competitive examination, are in the active military service and
are otherwise qualified to sit for such exam.
4. The comptroller is hereby authorized to deduct from the salary of
any member of the New York state police or any employee of the New York
state police who holds life or group insurance under any salary savings
plan of the insurer such amounts, for payment of the premium thereon, as
such member or employee may specify in writing filed with the
comptroller, and to transmit to the insurer the sums so deducted. Any
such written authorization may be withdrawn by such member or employee
at any time upon filing written notice of such withdrawal with the
comptroller. Notwithstanding the foregoing provisions of this
subdivision, the employee organization certified, pursuant to article
fourteen of the civil service law, to represent the collective
negotiating unit consisting of troopers in the division of state police
shall have exclusive payroll deduction of membership dues and premiums
for insurance and mass-merchandized automobile and homeowners' insurance
policies for members of such collective negotiating unit and the
employee organization certified to represent the collective negotiating
unit consisting of commissioned and non-commissioned officers and the
employee organization certified to represent the collective negotiating
unit consisting of investigators, senior investigators and investigative
specialists in the division of state police shall have exclusive payroll
deduction of premiums for insurance programs for members of such
collective negotiating unit for which it is so certified. Payroll
deductions for such dues and premiums for members of such collective
negotiating units shall not be authorized for any other employee
organization or group except by express written approval of such
appropriate certified employee organization.
5. Whenever the superintendent finds that under community wage
practices in private or other public employment in one or more areas or
locations in the state, wage rates of police officers in a given
location are substantially higher than the wage rates paid by the state,
he or she may, subject to the approval of the director of the budget,
authorize a pay differential to be added as an adjustment to the
established salary rates for the same or related occupations in the
state police in such areas or locations. A pay differential under this
subdivision shall be a percentage or a fixed dollar amount as prescribed
in each case by the superintendent subject to the approval of the
director of the budget. Such differentials shall be in addition to and
shall not be part of a member's basic annual salary, and shall not
affect or impair any performance advancement payments, performance
awards, longevity payments or other rights or benefits to which a member
may be entitled under the provisions of this chapter, provided, however,
that any differential payable pursuant to this subdivision shall be
included as compensation for retirement purposes. A pay differential
shall be terminated for any member when he or she ceases to be employed
in the position, or area or location for which such pay differential was
authorized. A pay differential shall remain in effect until terminated
by the superintendent, with the consent of the director of the budget or
until a new pay differential is authorized pursuant to this subdivision.
The director of the budget may adopt such regulations as he or she may
deem necessary to carry out the provisions of this subdivision.
Bureau of criminal investigation. 1. The superintendent may
continue, within the New York state police, a bureau of criminal
investigation and assign to it members of the New York state police in
such numbers and appoint to it such investigative specialists in such
numbers as may be required for the purpose of preventing, investigating
and detecting violations of the criminal laws of the state, and
conducting such other investigations as may be provided for by law.
Members of the New York state police assigned to the bureau of criminal
investigation and investigative specialists appointed to the bureau by
the superintendent shall be classified as (a) investigators; (b) senior
investigators; (c) lieutenants; (d) captains; provided, however, that
investigative specialists appointed to the bureau of criminal
investigation may be appointed as investigators or senior investigators
at salaries to be determined by the superintendent with the approval of
the director of the budget within the range from minimum to maximum
provided for in this section for the positions to which appointments are
made. Investigative specialists appointed to the bureau of criminal
investigation shall be deemed to be members of the New York state police
upon the filing by them of the constitutional oath of office, but shall
not be eligible for transfer to the uniform force unless otherwise
qualified under section two hundred fifteen of this article. The
superintendent may employ, from time to time, within the appropriation,
such skilled experts, scientists, technicians or other specially
qualified persons as he deems necessary to aid the bureau and the New
York state police in preventing or detecting crime, apprehending
criminals, or preparing and presenting evidence of violations of the
criminal laws of the state. Upon request of the head of any state
department, or of any police agency or of any district attorney within
the state, the superintendent may assign to such requesting authority
members of the state police attached to the bureau of criminal
investigation in such numbers and for such periods of time as he may
deem necessary for the purpose of investigating and detecting felonies
committed within the state. Members of the state police assigned or
appointed to the bureau of criminal investigation are empowered to
cooperate with departments of the United States government in the
investigation of violations of the federal laws of the grade of felony
within this state. The superintendent may, from time to time, establish
headquarters or stations in such localities of the state as he shall
deem most suitable for the efficient operation of the bureau of criminal
investigation.
2. (a) There shall be within the bureau of criminal investigation a
hate crime task force. The superintendent shall assign to it such
personnel as may be required for the purpose of preventing,
investigating, and detecting hate crimes as defined in article four
hundred eighty-five and sections 240.30 and 240.31 of the penal law.
When at all possible, the task force members shall assist and support
other law enforcement agencies in preventing, investigating, and
detecting offenses committed due to a perception or belief regarding the
race, color, national origin, ancestry, gender, religion, religious
practice, age, disability or sexual orientation of a person.
(b) The task force shall issue reports and publications, in
conjunction with the division of human rights and the division of
criminal justice services, in order to inform persons of all available
rights and remedies under the penal law as referenced in paragraph (a)
of this subdivision, as well as prohibitions against discrimination
because of age, race, creed, color, national origin, sexual orientation,
military status, sex, disability, familial status, domestic violence
victim status, genetic predisposition status, or marital status as those
terms are defined by article fifteen of this chapter.
(c) The first report issued by the hate crimes task force, as required
by paragraph (b) of this subdivision, shall be issued within ninety days
of the effective date of this subdivision. Subsequent reports shall be
issued annually thereafter.
3. * a. Salary schedules for investigators, senior investigators, and
investigative specialists in the division of state police.
(1) Effective April first, two thousand fourteen, members assigned to
the bureau of criminal investigation and investigative specialists
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Senior
Investigator Investigator
Nassau and Suffolk $108,280 $97,796
New York City, Rockland,
Westchester $107,996 $97,511
Orange, Putnam, Dutchess $106,909 $96,425
All other locations $106,707 $96,222
(2) Effective April first, two thousand fifteen, members assigned to
the bureau of criminal investigation and investigative specialists
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Senior
Investigator Investigator
Nassau and Suffolk $110,446 $99,752
New York City, Rockland,
Westchester $110,156 $99,461
Orange, Putnam, Dutchess $109,047 $98,354
All other locations $108,841 $98,146
(3) Effective April first, two thousand sixteen, members assigned to
the bureau of criminal investigation and investigative specialists
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Senior
Investigator Investigator
Nassau and Suffolk $112,103 $101,248
New York City, Rockland,
Westchester $111,808 $100,953
Orange, Putnam, Dutchess $110,683 $99,829
All other locations $110,474 $99,618
(4) Effective April first, two thousand seventeen, members assigned to
the bureau of criminal investigation and investigative specialists
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Senior
Investigator Investigator
Nassau and Suffolk $113,785 $102,767
New York City, Rockland,
Westchester $113,485 $102,467
Orange, Putnam, Dutchess $112,343 $101,326
All other locations $112,131 $101,112
* NB Effective until certain conditions are met as set forth in
chapter 182 of 2025 § 26
* a. Salary schedules for investigators, senior investigators, and
investigative specialists in the division of state police.
(1) Effective April first, two thousand twenty-three, members assigned
to the bureau of criminal investigation as investigators and
investigative specialists appointed to the bureau by the superintendent,
shall receive a basic annual salary pursuant to the following schedule:
Orange New York City
Putnam Rockland Nassau
YOS All Other Dutchess Westchester Suffolk
0-1 $109,305 $109,305 $109,305 $109,305
1-2 $112,519 $112,519 $112,519 $112,519
2-3 $114,985 $115,229 $116,525 $116,866
3-4 $114,985 $115,229 $116,525 $116,866
4-5 $114,985 $115,229 $116,525 $116,866
5-6 $114,985 $115,229 $116,525 $116,866
6+ $116,092 $116,334 $117,633 $117,974
(2) Effective April first, two thousand twenty-four, members assigned
to the bureau of criminal investigation as investigators and
investigative specialists appointed to the bureau by the superintendent,
shall receive a basic annual salary pursuant to the following schedule:
Orange New York City
Putnam Rockland Nassau
YOS All Other Dutchess Westchester Suffolk
0-1 $112,584 $112,584 $112,584 $112,584
1-2 $115,895 $115,895 $115,895 $115,895
2-3 $118,435 $118,686 $120,021 $120,372
3-4 $118,435 $118,686 $120,021 $120,372
4-5 $118,435 $118,686 $120,021 $120,372
5-6 $118,435 $118,686 $120,021 $120,372
6+ $119,575 $119,824 $121,162 $121,513
(3) Effective April first, two thousand twenty-five, members assigned
to the bureau of criminal investigation as investigators and
investigative specialists appointed to the bureau by the superintendent,
shall receive a basic annual salary pursuant to the following schedule:
Orange New York City
Putnam Rockland Nassau
YOS All Other Dutchess Westchester Suffolk
0-1 $119,372 $119,372 $119,372 $119,372
1-2 $119,372 $119,372 $119,372 $119,372
2-3 $121,988 $122,247 $123,622 $123,983
3-4 $121,988 $122,247 $123,622 $123,983
4-5 $121,988 $122,247 $123,622 $123,983
5-6 $121,988 $122,247 $123,622 $123,983
6+ $123,162 $123,419 $124,797 $125,158
(4) Effective April first, two thousand twenty-three, members assigned
to the bureau of criminal investigation as senior investigators
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Orange New York City
Putnam Rockland Nassau
YOS All Other Dutchess Westchester Suffolk
0-1 $127,515 $127,757 $129,056 $129,397
1-2 $127,515 $127,757 $129,056 $129,397
2-3 $127,515 $127,757 $129,056 $129,397
3-4 $127,515 $127,757 $129,056 $129,397
4-5 $127,515 $127,757 $129,056 $129,397
5-6 $127,515 $127,757 $129,056 $129,397
6+ $128,622 $128,864 $130,160 $130,502
(5) Effective April first, two thousand twenty-four, members assigned
to the bureau of criminal investigation as senior investigators
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Orange New York City
Putnam Rockland Nassau
YOS All Other Dutchess Westchester Suffolk
0-1 $131,340 $131,590 $132,928 $133,279
1-2 $131,340 $131,590 $132,928 $133,279
2-3 $131,340 $131,590 $132,928 $133,279
3-4 $131,340 $131,590 $132,928 $133,279
4-5 $131,340 $131,590 $132,928 $133,279
5-6 $131,340 $131,590 $132,928 $133,279
6+ $132,481 $132,730 $134,065 $134,417
(6) Effective April first, two thousand twenty-five, members assigned
to the bureau of criminal investigation as senior investigators
appointed to the bureau by the superintendent, shall receive a basic
annual salary pursuant to the following schedule:
Orange New York City
Putnam Rockland Nassau
YOS All Other Dutchess Westchester Suffolk
0-1 $135,280 $135,538 $136,916 $137,277
1-2 $135,280 $135,538 $136,916 $137,277
2-3 $135,280 $135,538 $136,916 $137,277
3-4 $135,280 $135,538 $136,916 $137,277
4-5 $135,280 $135,538 $136,916 $137,277
5-6 $135,280 $135,538 $136,916 $137,277
6+ $136,455 $136,712 $138,087 $138,450
(7) With respect to subparagraphs one, two, three, four, five and six
of this paragraph, members assigned to the bureau of criminal
investigation as investigators, investigative specialists and senior
investigators appointed to the bureau by the superintendent shall be
paid a basic annual salary consistent with their years of service in the
bureau and their principal place of employment, or, in the case of a
field employee, whose official station, as determined in accordance with
the regulations of the state comptroller, is located in the city of New
York or in the counties of Orange, Putnam, Dutchess, Rockland,
Westchester, Nassau, or Suffolk as depicted on the schedules contained
in subparagraphs one, two, three, four, five and six of this paragraph.
(8) When any member assigned to the bureau of criminal investigation
completes a year of service entitling them to move to a higher salary,
they shall be paid the higher salary at the start of the pay period
immediately following their completion of the required years of service
in the bureau that move them to the next higher salary.
* NB Effective upon certain conditions being met as set forth in
chapter 182 of 2025 § 26
Scientific crime detection laboratory. 1. The superintendent
may maintain a scientific crime detection laboratory, and may appoint,
employ or assign a director thereof, and such additional members or
employees as he may deem necessary for the proper maintenance and
operation of such scientific crime detection laboratory, within the
appropriation. The superintendent may also employ, from time to time,
within the appropriation, such skilled experts, scientists, technicians
or other specially qualified persons as he deems necessary to aid the
New York state police and the laboratory in preventing or detecting
crime, apprehending criminals, or preparing and presenting evidence of
violations of the criminal laws of the state.
2. The superintendent may, from time to time, establish headquarters
or stations in such localities of the state as he shall deem most
suitable for the efficient operation of the laboratory.
Salary increments. 1. A member whose annual basic salary is
prescribed by subparagraph one of paragraph a of subdivision two of
section two hundred fifteen of this article shall receive the minimum
salary of his position plus the number of increments which corresponds
to his years of service in such position, subject to the provisions of
this section, provided, however, that effective July first, nineteen
hundred seventy-one initial employment in the position of trooper shall
be at the training rate and progression of such members or any other
troopers paid at such training rate to the minimum salary of the
position of trooper shall be by means of an annual increment equal to
the difference between the training rate and the minimum salary of the
position of trooper subject to the conditions described in this
subdivision, except that on or after the date that the first
collectively negotiated agreement entered into after April first,
nineteen hundred eighty-one pursuant to article fourteen of the civil
service law covering the unit consisting of troopers in the division of
state police is executed in writing, initial employment in the position
of trooper shall be at training rate one and, such members shall advance
to training rate two effective on the first day of the next payroll
period following the member's anniversary date of appointment to the
division of state police, subject to the provisions of section
forty-four of the state finance law, provided the member's service in
the position has been satisfactory in the judgment of the
superintendent, and further progression of such members to the minimum
salary of the position of trooper shall be by means of an annual
increment subject to the conditions described in this subdivision.
Annual increments shall become effective on the first day of the next
payroll period following the member's anniversary date of appointment to
the division of state police, subject, however, to the provisions of
section forty-four of the state finance law. Except as provided below, a
member shall be eligible to receive an increment in such position on the
first day of the next payroll period following the member's anniversary
date of appointment to the division of state police, provided his
service in the position or positions held by the member during the
previous year has been satisfactory in the judgment of the
superintendent. No member shall receive an increment which would result
in the member receiving an annual salary in excess of the maximum salary
prescribed for his position, or the amount to which he may be entitled
pursuant to subdivisions two and five of this section. Notwithstanding
the foregoing provisions of this subdivision, members who are initially
employed in the position of trooper on or after October first, nineteen
hundred eighty-one shall be employed at training rate one and such
members shall advance to training rate two effective on the first day of
the payroll period immediately following their completion of one year of
service to the division, and further advancements of such members to
step one and subsequent steps shall be by means of an annual increment
to be effective on the first day of the payroll period following their
completion of each additional year of service; such advancement shall be
subject to the provisions of section forty-four of the state finance law
and shall be payable provided the member's service has been satisfactory
in the judgment of the superintendent. Notwithstanding the foregoing
provisions of this subdivision, on and after April first, nineteen
hundred ninety-six, members who are undergoing their initial training at
the New York state police academy shall receive the academy trainee
salary and effective upon graduation from such training shall advance to
trainee rate two and such members shall advance to step one effective on
the first day of the payroll period immediately following their
completion of one year of service to the division, and further
advancement of such members to subsequent steps shall be by means of an
annual increment to be effective on the first day of the payroll period
following their completion of each additional year of service; such
advancement shall be subject to the provisions of section forty-four of
the state finance law and shall be payable provided the member's service
has been satisfactory in the judgment of the superintendent.
2. (a)(1) Effective April first, two thousand twenty-three, all
members in the position of trooper in the division of state police,
which shall not include those in the title of special trooper, who on
their anniversary date of employment with the division of state police
have attained six or more years of such satisfactory service in the
division, shall be paid a longevity award according to the following
schedule for each year of such satisfactory service up to twenty-five
years:
Years of Service Amount per year
6-10 $556
11-15 $608
16-25 $659
(2) Effective April first, two thousand twenty-four, all members in
the position of trooper in the division of state police, which shall not
include those in the title of special trooper, who on their anniversary
date of employment with the division of state police have attained six
or more years of such satisfactory service in the division, shall be
paid a longevity award according to the following schedule for each year
of such satisfactory service up to twenty-five years:
Years of Service Amount per year
6-10 $573
11-15 $626
16-25 $679
(3) Effective April first, two thousand twenty-five, all members in
the position of trooper in the division of state police, which shall not
include those in the title of special trooper, who on their anniversary
date of employment with the division of state police have attained six
or more years of such satisfactory service in the division, shall be
paid a longevity award according to the following schedule for each year
of such satisfactory service up to twenty-five years:
Years of Service Amount per year
6-10 $590
11-15 $645
16-25 $699
(4) Individuals with greater than twenty-five years of service shall
continue to receive a longevity award at the twenty-five year amount.
Such payment shall commence in the pay period following such anniversary
date and shall be annualized and paid over the year-long period between
anniversary dates.
(b) The longevity amounts provided by this subdivision shall be in
addition to, and shall not be a part of, a member's annual basic salary,
and shall not impair any increments or other rights or benefits to which
a member may be entitled; provided, however, that longevity awards shall
be included as compensation for purposes of computation of overtime pay
and for retirement purposes. The provisions of this paragraph shall not
apply to members in the title of special trooper.
3. (a)(1) Effective April first, two thousand twenty-three, all
members in the collective negotiating unit consisting of commissioned
and non-commissioned officers in the division of state police, who on
their anniversary date of employment with the division of state police
have attained six or more years of such satisfactory service in the
division, shall be paid a longevity award according to the following
schedule for each year of such satisfactory service up to twenty-five
years:
Years of Service Amount per year
6-10 $556
11-15 $608
16-25 $659
(2) Effective April first, two thousand twenty-four, all members in
the collective negotiating unit consisting of commissioned and
non-commissioned officers in the division of state police, who on their
anniversary date of employment with the division of state police have
attained six or more years of such satisfactory service in the division,
shall be paid a longevity award according to the following schedule for
each year of such satisfactory service up to twenty-five years:
Years of Service Amount per year
6-10 $573
11-15 $626
16-25 $679
(3) Effective April first, two thousand twenty-five, all members in
the collective negotiating unit consisting of commissioned and
non-commissioned officers in the division of state police, who on their
anniversary date of employment with the division of state police have
attained six or more years of such satisfactory service in the division,
shall be paid a longevity award according to the following schedule for
each year of such satisfactory service up to twenty-five years:
Years of Service Amount per year
6-10 $590
11-15 $645
16-25 $699
(4) Individuals with greater than twenty-five years of service shall
continue to receive a longevity award at the twenty-five year amount.
Such payment shall commence in the pay period following such anniversary
date and shall be annualized and paid over the year-long period between
anniversary dates.
(b) Eligible members in the collective negotiating unit consisting of
commissioned and non-commissioned officers in the division of state
police, who are commissioned officers, effective April first, two
thousand, shall be paid supplemental longevities in addition to the
longevities provided for in paragraph (a) of this subdivision, in
accordance with the following schedule:
After five years following appointment as a commissioned officer -
five hundred dollars
After ten years following appointment as a commissioned officer - one
thousand dollars
After fifteen years following appointment as a commissioned officer -
one thousand five hundred dollars
Such payment shall commence in the pay period following such anniversary
date and shall be annualized and paid over the year-long period between
anniversary dates.
(c) The longevity amounts provided by this subdivision shall be in
addition to, and shall not be a part of, a member's annual basic salary,
and shall not impair any other rights or benefits to which a member may
be entitled; provided, however, that longevity awards shall be included
as compensation for purposes of computation of overtime pay and for
retirement purposes.
4. If a member is reassigned from the bureau of criminal investigation
to the uniform force in a competitive position, he shall be reassigned
to his permanent rank and, upon such reassignment, shall receive the
step entitlement, additional annual salary entitlement pursuant to
subdivision two of this section and additional increment pursuant to
subdivision three of this section of his permanent rank as he would have
earned in such rank had his service in the bureau of criminal
investigation been rendered continuously in his permanent rank to which
he is reassigned; provided, however, that the foregoing provisions of
this subdivision shall not create an entitlement to retroactive
payments.
* 5. (a) Members in the collective negotiating unit consisting of
investigators and senior investigators in the division of state police
who, effective April first, nineteen hundred ninety-eight, have attained
six or more years of satisfactory service with the division of state
police shall be paid a longevity award in accordance with the following
schedule. Thereafter, on their anniversary date of employment with the
division, such members shall move in the schedule appropriate to the
years of satisfactory service in the division they achieve on that
anniversary date.
Years of Service Longevity Benefit
6 $ 800
7 850
8 900
9 950
10 1,000
11 1,050
12 1,100
13 1,150
14 1,200
15 1,250
16 1,300
17 1,350
18 1,400
19 1,450
20 or more 1,500
Such payment shall commence in the pay period following such anniversary
date and shall be annualized and paid bi-weekly over the year-long
period between anniversary dates.
(b)(1) Effective April first, two thousand seven, all members of the
collective negotiating unit consisting of investigators, senior
investigators and investigative specialists in the division of state
police, who on their anniversary date of employment with the division of
state police have attained six or more years of such satisfactory
service in the division, shall be paid a longevity award according to
the following schedule for each year of such satisfactory service up to
twenty-five years:
Years of Service Amount per year
6-10 $430
11-15 $480
16-25 $530
(2) Effective April first, two thousand eight, all members of the
collective negotiating unit consisting of investigators, senior
investigators and investigative specialists in the division of state
police, who on their anniversary date of employment with the division of
state police have attained six or more years of such satisfactory
service in the division, shall be paid a longevity award according to
the following schedule for each year of such satisfactory service up to
twenty-five years:
Years of Service Amount per year
6-10 $460
11-15 $510
16-25 $560
(3) Effective April first, two thousand nine, all members of the
collective negotiating unit consisting of investigators, senior
investigators and investigative specialists in the division of state
police, who on their anniversary date of employment with the division of
state police have attained six or more years of such satisfactory
service in the division, shall be paid a longevity award according to
the following schedule for each year of such satisfactory service up to
twenty-five years:
Years of Service Amount per year
6-10 $500
11-15 $550
16-25 $600
(4) Effective April first, two thousand ten, all members of the
collective negotiating unit consisting of investigators, senior
investigators and investigative specialists in the division of state
police, who on their anniversary date of employment with the division of
state police have attained six or more years of such satisfactory
service in the division, shall be paid a longevity award according to
the following schedule for each year of such satisfactory service up to
twenty-five years:
Years of Service Amount per year
6-10 $540
11-15 $590
16-25 $640
(5) Individuals with greater than twenty-five years of service shall
continue to receive a longevity award at the twenty-five year amount.
Such payment shall commence in the pay period following such anniversary
date and shall be annualized and paid over the year-long period between
anniversary dates.
(c) The longevity amounts provided by this subdivision shall be in
addition to, and shall not be a part of, a member's annual basic salary,
and shall not impair any other rights or benefits to which a member may
be entitled; provided, however, that longevity awards shall be included
as compensation for purposes of computation of overtime pay and for
retirement purposes.
* NB Effective until certain conditions are met as set forth in
chapter 182 of 2025 § 26
* 5. (a) (1) Effective April first, two thousand twenty-three, all
members of the collective negotiating unit consisting of investigators,
senior investigators and investigative specialists in the division of
state police, who on their anniversary date of employment with the
division of state police have attained six or more years of such
satisfactory service in the division, shall be paid a longevity award
according to the following schedule for each year of such satisfactory
service up to twenty-five years:
Years of Service Amount per year
6-10 $556
11-15 $608
16-25 $659
(2) Effective April first, two thousand twenty-four, all members of
the collective negotiating unit consisting of investigators, senior
investigators and investigative specialists in the division of state
police, who on their anniversary date of employment with the division of
state police have attained six or more years of such satisfactory
service in the division, shall be paid a longevity award according to
the following schedule for each year of such satisfactory service up to
twenty-five years:
Years of Service Amount per year
6-10 $573
11-15 $626
16-25 $679
(3) Effective April first, two thousand twenty-five, all members of
the collective negotiating unit consisting of investigators, senior
investigators and investigative specialists in the division of state
police, who on their anniversary date of employment with the division of
state police have attained six or more years of such satisfactory
service in the division, shall be paid a longevity award according to
the following schedule for each year of such satisfactory service up to
twenty-five years:
Years of Service Amount per year
6-10 $590
11-15 $645
16-25 $699
(4) Individuals with greater than twenty-five years of service shall
continue to receive a longevity award at the twenty-five-year amount.
Such payment shall commence in the pay period following such anniversary
date and shall be annualized and paid over the year-long period between
anniversary dates.
(b) The longevity amounts provided by this subdivision shall be in
addition to, and shall not be a part of, a member's annual basic salary,
and shall not impair any increments or other rights or benefits to which
a member may be entitled; provided, however, that longevity awards shall
be included as compensation for purposes of computation of overtime pay
and for retirement purposes.
* NB Effective upon certain conditions being met as set forth in
chapter 182 of 2025, § 26
Holiday compensation. 1. Notwithstanding the provisions of
section one hundred thirty-five of the civil service law, members of the
division of state police, other than troopers attending the state police
academy for basic training, the division physician, assistant division
physicians, inspectors, deputy chief inspectors, confidential assistant
to the superintendent, the assistant deputy superintendents, the chief
inspector, the counsel, first assistant counsel, assistant counsels,
deputy superintendents, first deputy superintendent, state police
director of personnel, assistant director of personnel-state police and
the state police director of scientific laboratory shall effective April
first, nineteen hundred eighty-five for members in the collective
negotiating unit consisting of commissioned and non-commissioned
officers in the division of state police and effective June thirteenth,
nineteen hundred eighty-five for such other members receive annual
holiday compensation in an amount to be computed for each member by
dividing his annual basic salary by one thousand nine hundred ninety-two
hours to obtain an hourly rate of pay and multiplying such hourly rate
by fifty-two and four-tenths hours, adjusted to the next higher whole
dollar amount. Such compensation shall be in lieu of any other premium
which may be paid for work on a legal holiday and shall be included in
and be a part of the member's annual basic salary and on and after April
first nineteen hundred eighty-five for members in the collective
negotiating unit consisting of commissioned and non-commissioned
officers in the division of state police established pursuant to article
fourteen of the civil service law and on and after June thirteenth,
nineteen hundred eighty-five for such other members is included in the
annual basic salary schedules applicable to such members pursuant to
this article.
* 2. In addition to the compensation provided in subdivision one of
this section, members of the collective negotiating unit consisting of
investigators, senior investigators and investigative specialists in the
division of state police, on the payroll on November first of each year,
shall continue to receive holiday compensation, effective April first,
two thousand ten, in the amount of fifteen hundred thirty-six dollars.
Effective April first, two thousand fourteen, such amount shall be
increased to fifteen hundred sixty-seven dollars. Effective April first,
two thousand fifteen, such amount shall be increased to fifteen hundred
ninety-eight dollars. Effective April first, two thousand sixteen, such
amount shall be increased to sixteen hundred twenty-two dollars.
Effective April first, two thousand seventeen, such amount shall be
increased to sixteen hundred forty-six dollars. Such payments shall be
in addition to, and shall not be part of, the member's annual basic
salary, except for the purpose of retirement, and shall be made in a
separate check during the payroll period which includes December first
each year.
* NB Effective until certain conditions are met as set forth in
chapter 182 of 2025 § 26
* 2. In addition to the compensation provided in subdivision one of
this section, members of the collective negotiating unit consisting of
investigators, senior investigators and investigative specialists in the
division of state police, on the payroll on November first of each year,
shall receive holiday compensation as follows:
April 1, 2023 $1,835
April 1, 2024 $1,890
April 1, 2025 $1,947
Such payments shall be in addition to, and shall not be part of, the
member's annual basic salary, except for the purpose of retirement and,
effective May eighth, two thousand twenty-five, overtime, and shall be
made in a separate check during the payroll period which includes
December first each year.
* NB Effective upon certain conditions being met as set forth in
chapter 182 of 2025 § 26
Consumer product protection. 1. The superintendent, in
consultation with the commissioner of the division of criminal justice
services, shall establish a program to investigate actual and/or
suspected cases of consumer product tampering, as defined in sections
145.35, 145.40 and 145.45 of the penal law, within this state and may
assign such employees, as deemed necessary for the proper operation of
such program.
2. Such program shall provide that the state police may, upon request,
act as the coordinating agency responding to cases of suspected product
tampering. The superintendent in conjunction with the commissioner of
the division of criminal justice services, shall, by regulation,
establish uniform procedures that may be used by other agencies involved
in such cases.
3. The superintendent, in conjunction with the commissioner of the
division of criminal justice services, and with the cooperation of the
department of health, the department of agriculture and markets, and
other pertinent agencies, shall promulgate such additional rules and
regulations which in his/her discretion are necessary for the efficient
operation of this section. These regulations should include but not be
limited to the following:
a. the establishment of uniform procedures to be used whenever a law
enforcement or regulatory agency or other agency becomes involved in a
consumer product tampering incident. Such regulations shall require that
the state police provide direct investigative assistance or support
services to any law enforcement or regulatory agency upon request;
b. the establishment of a computerized central data base, located at
division headquarters, which will function as an information management
and retrieval system for matters involving consumer product tampering.
Notification of all consumer product tampering cases made to law
enforcement, regulatory agencies or other agencies shall be reported to
the central data base within five hours of such notification;
c. authorization, upon request, to use the scientific crime detection
laboratory to analyze evidence in connection with state police cases or
cases that originate with other law enforcement, regulatory agencies or
other agencies; and
d. establishment of a twenty-four hour consumer product tampering
phone line, to be set up at Headquarters' communication section in
Albany.
4. The superintendent, in cooperation with the division of criminal
justice services, shall make recommendations to the municipal police
training council for the establishment of a formalized consumer product
tampering training program for all law enforcement personnel.
Communication. There shall be established in the division of
state police, executive department, a basic coordinating police
communication system at the headquarters of the division of state police
and at such substations of the state police as shall be designated by
the superintendent of state police, for the purpose of prompt collection
and distribution of information throughout the state of New York as the
police problems of the state may require. This basic system shall be
known as the New York statewide police information network. Authority
is hereby granted to connect the basic system herein provided for,
directly or indirectly with other similar state, national or
international systems.
Installation, operation and maintenance of basic system;
personnel. The superintendent of state police is hereby authorized to
install, operate and maintain the basic system and to employ the
necessary personnel, within the appropriation, for its installation,
operation and maintenance; the persons so employed may be members of the
state police, or employees, particularly qualified for the duty they are
to perform.
Availability. The basic system herein provided for may be made
available for use by any department or division of the state government
and by any municipal, county, town, village, railroad or other special
police department lawfully maintained by any corporation in this state,
subject to the following terms and conditions: (a) application for
permission to connect with the basic system shall be made to the
superintendent of state police on forms to be provided by him; (b) such
application may be approved by the superintendent of state police if, as
and when in his discretion such connection is requisite and necessary
for the best interests of the entire system; (c) upon approval of such
application and before the applicant shall be connected with the basic
system, such applicant must agree to assume and pay all rentals for
sending and receiving stations or receiving stations only, as may be
authorized by the superintendent of state police for installation within
the jurisdiction of the applicant, and any and all costs of installation
and operation of such stations; (d) the state shall pay all rental for
necessary wire or circuit mileage required to connect such stations with
the basic system.
Orders, rules or regulations. The basic system herein provided
for shall remain at all times under the control of the superintendent of
state police and such control may be exercised by him through any member
of the state police as he shall designate for such purpose. The
superintendent of state police is hereby authorized to make and issue
such orders, rules or regulations for the use of this system as in his
discretion are necessary for efficient operation.
System of criminal justice information. 1. When any peace
officer or police agency within this state shall receive a complaint
that a felony involving the use of deadly physical force or a deadly
weapon has been committed, and if the perpetrator thereof be not
apprehended within thirty minutes after such complaint has been
received, or, in the case of any other felony, if the perpetrator
thereof be not apprehended within five hours, such police agency shall
cause information of such felony to be electronically entered into the
New York statewide police information network in accordance with the
rules for such entry promulgated by the superintendent of state police.
Police agencies not directly connected with the New York statewide
police information network shall transmit such information to the
nearest or most convenient electronic entry point, from which point it
will be immediately dispatched, in conformity with the orders, rules or
regulations governing the network.
2. Any warrant of arrest, bench warrant or superior court warrant of
arrest, as such terms are defined in section 1.20 of the criminal
procedure law, relating to any offense defined as a felony in
subdivision five of section 10.00 of the penal law, or a probation
warrant issued pursuant to section 410.40 of the criminal procedure law,
must be entered into the system no later than forty-eight hours from the
time it is received by the police officer or peace officer to whom it is
addressed if the subject of the warrant has not been apprehended prior
to that time.
3. When any police officer, peace officer or police agency in the
state shall receive a complaint of a missing child, as defined in
subdivision one of section eight hundred thirty-seven-e of this chapter,
such police officer, peace officer or police agency may, in his or her
discretion, as appropriate, cause information concerning such missing
child to be promptly dispatched over the police communication system.
Police agencies not connected with the basic system may transmit such
information to the nearest or most convenient electronic entry point,
from which point it may be promptly dispatched, in conformity with the
orders, rules or regulations governing the system. No dispatch or
transmission of a report concerning a missing child shall be required by
this subdivision if the investigating police department advises, in its
discretion, that the release of such information may jeopardize the
investigation or the safety of the child, or requests forbearance for
any reason.
Computer system to carry information of orders of protection
and warrants of arrest. 1. The superintendent, in consultation with the
division of criminal justice services, office of court administration,
and the office for the prevention of domestic violence, shall develop a
comprehensive plan for the establishment and maintenance of a statewide
computerized registry of all orders of protection issued pursuant to
articles four, five, six, eight and ten of the family court act, section
530.12 of the criminal procedure law and, insofar as they involve
victims of domestic violence as defined by section four hundred
fifty-nine-a of the social services law, section 530.13 of the criminal
procedure law and sections two hundred forty and two hundred fifty-two
of the domestic relations law and those orders of protection which a
court orders filed with the registry pursuant to subdivision five of
section 530.13 of the criminal procedure law, and any warrant arising
therefrom, extreme risk protection orders issued pursuant to article
sixty-three-A of the civil practice law and rules, and orders of
protection issued by courts of competent jurisdiction in another state,
territorial or tribal jurisdiction, special orders of conditions issued
pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one
of section 330.20 of the criminal procedure law insofar as they involve
a victim or victims of domestic violence as defined by subdivision one
of section four hundred fifty-nine-a of the social services law or a
designated witness or witnesses to such domestic violence, and all
warrants issued pursuant to sections one hundred fifty-three and eight
hundred twenty-seven of the family court act, and arrest and bench
warrants as defined in subdivisions twenty-eight, twenty-nine and thirty
of section 1.20 of the criminal procedure law, insofar as such warrants
pertain to orders of protection or temporary orders of protection;
provided, however, that warrants issued pursuant to section one hundred
fifty-three of the family court act pertaining to articles three and
seven of such act and section 530.13 of the criminal procedure law
except as provided for in this subdivision shall not be included in the
registry. The superintendent shall establish and maintain such registry
for the purposes of ascertaining the existence of orders of protection,
temporary orders of protection, warrants and special orders of
conditions, and for enforcing the provisions of paragraph (b) of
subdivision four of section 140.10 of the criminal procedure law.
2. The superintendent shall prescribe standardized forms for warrants
issued in connection with orders of protection and special orders of
conditions included in the statewide computerized registry. Except for
orders of protection issued by courts of competent jurisdiction in
another state, territorial or tribal jurisdiction, only those
standardized forms prescribed herein and pursuant to section eight
hundred fourteen-a of the family court act, subdivision three of section
two hundred forty of the domestic relations law, and subdivision twelve
of section 530.12 and subdivision one of section 530.13 of the criminal
procedure law shall be utilized in cases resulting in orders which must
be entered into the statewide computerized registry.
3. Whenever any court issues an order of protection or special order
of conditions, the sheriff's office or appropriate municipal police
department in the county in which the complainant or petitioner resides,
or if he or she resides within a city, the police department of such
city, which receives a copy of the order of protection or special order
of conditions from the clerk of the court or otherwise pursuant to law,
shall promptly transmit such information on the order of protection or
special order of conditions as required by rule and regulation over the
law enforcement communication system, including but not limited to: the
names of the parties to the proceeding giving rise to such order, the
date such order becomes effective, the date such order was served or
whether the defendant or respondent had actual knowledge of such order
because he or she was present in court when such order was issued, the
date such order is to expire, and the terms and conditions of such
order. When any peace officer, acting pursuant to his or her special
duties, or police officer receives a warrant issued by family court,
supreme court or by a criminal court pertaining to an order of
protection or special order of conditions, as described in subdivision
one of this section, the officer shall cause specific information on the
warrant as required by rule and regulation to be promptly dispatched
over the law enforcement communication system. For purposes of this
subdivision, municipal shall have the same meaning as municipality, as
defined in subdivision six of section eight hundred thirty-five of this
chapter. Notwithstanding the provisions of article fifty-four of the
civil practice law and rules, a person entitled to protection under an
order of protection issued by a court of competent jurisdiction in
another state, territorial or tribal jurisdiction, may file such order
without fee with the clerk of a court in this state having jurisdiction
over family, criminal or matrimonial proceedings; such order shall be
accompanied by a sworn affidavit that upon information and belief such
order is in effect as written and has not been vacated or modified. Upon
such filing, information regarding such order shall be transmitted to
the statewide computerized registry in accordance with this section,
provided, however, that such filing and registry entry shall not be
required for enforcement of such order.
4. Courts and law enforcement officials, including probation officers,
and employees of local correctional facilities and the department of
corrections and community supervision who are responsible for
monitoring, supervising or classification of incarcerated individuals or
parolees shall have the ability to disclose and share information with
respect to such orders and warrants consistent with the purposes of this
section, subject to applicable provisions of the family court act,
domestic relations law and criminal procedure law concerning the
confidentiality, sealing and expungement of records.
5. In no case shall the state or any state or local law enforcement
official or court official be held liable for any violations of rules
and regulations promulgated under this section, or for damages for any
delay or failure to file an order of protection or special order of
conditions, or to transmit information to the law enforcement
communication network pertaining to such orders or related family court
arrest warrants, or for acting in reliance upon such information. For
purposes of this subdivision law enforcement official shall include but
not be limited to an employee of a sheriff's office, or a municipal
police department or a peace officer acting pursuant to his or her
special duties.
6. The superintendent shall establish procedures for the prompt
removal of orders of protection and special orders of conditions from
the active files of the registry upon their expiration. The
superintendent shall establish procedures for prompt disclosure of such
orders and warrants consistent with the purposes of paragraph (a-1) of
subdivision one of section two hundred forty of the domestic relations
law and subdivision (e) of section six hundred fifty-one of the family
court act.
Reporting to New York state violent crimes analysis program.
1. Every law enforcement agency which receives a report of an actual or
attempted abduction or molestation shall notify the New York state
violent crimes analysis program, via the requirements of the New York
statewide police information network, of such report. Such program shall
make comparisons of data in its files, and report to the law enforcement
agency making an initial report, any similarities to other reports
received by such program. The violent crimes analysis program shall also
notify the unit of a law enforcement agency which investigates homicides
when a report reveals similarities, patterns or modus operandi which
appear in reports of homicides.
2. Notwithstanding any other provision of law to the contrary, every
law enforcement agency that accepts responsibility for investigating a
homicide or attempted homicide, the discovery of unidentified human
remains, a reported missing person case where circumstances indicate a
strong possibility of foul play, or a sexual assault or attempted sexual
assault, shall make a written report of such investigation to the New
York state violent crimes analysis program. Such program shall conduct a
computerized commonality analysis and provide the submitting law
enforcement agency the results of such analysis. Every written report
made to the violent crimes analysis program shall be in form and content
as determined and prescribed by such program, upon the approval of the
superintendent of state police. An initial written report shall be made
to the violent crimes analysis program within thirty days of
commencement of an investigation. The results of a computerized
commonality analysis shall be provided by such program to the submitting
law enforcement agency upon completion of such analysis in a timely
manner, as prescribed by the superintendent of state police.
Statewide repository of data relating to unlawful
methamphetamine laboratories. The division of state police shall
maintain a statewide repository of data relating to unlawful
methamphetamine laboratories, and develop and implement a program to
provide for the collection of data and the reporting thereof by law
enforcement agencies. Data acquired by law enforcement agencies relating
to unlawful methamphetamine laboratories shall be sent to the repository
as soon as reasonably practicable. Data in the repository shall be made
available to law enforcement agencies for the purpose of assisting them
in combating the unlawful manufacture, preparation or production of
methamphetamine.
Discovery of an unlawful methamphetamine laboratory. 1.
Whenever a law enforcement agency discovers or recognizes the presence
of an unlawful methamphetamine laboratory, such agency shall, as soon as
reasonably practicable, notify, or cause to be notified, the division of
state police regarding the location of such laboratory.
2. Whenever the division of state police receives a report of an
unlawful methamphetamine laboratory, or discovers or recognizes the
presence of an unlawful methamphetamine laboratory, such division, as
soon as reasonably practicable shall notify, or cause to be notified,
the department of environmental conservation of such information.
Radio communication system. The superintendent may establish a
system of police radio communication and for such purpose may purchase
or lease all necessary equipment for the operation thereof within the
appropriation.
* § 223. Duties and powers of the superintendent of state police and
of members of the state police. 1. It shall be the duty of the
superintendent of the state police and of members of the state police to
prevent and detect crime and apprehend criminals. They shall also be
subject to the call of the governor and are empowered to co-operate with
any other department of the state or with local authorities. They shall
also collect and analyze information relating to prevention and
detection of terrorist threats and terrorist activities throughout the
state and share all such information subject to paragraph (g) of
subdivision two of section seven hundred nine of this chapter among the
division of homeland security and emergency services, and local, state,
and federal law enforcement agencies to ensure the coordination of
appropriate intelligence to assist in the early identification of and
response to potential terrorist threats and terrorist activities. They
shall have power to arrest, without a warrant, any person committing or
attempting to commit within their presence or view a breach of the peace
or other violation of law, to serve and execute warrants of arrest or
search issued by proper authority and to exercise all other powers of
police officers of the state of New York. Any such warrants issued by
any magistrate of the state may be executed by them in any part of the
state according to the tenor thereof without indorsement. But they shall
not exercise their powers within the limits of any city to suppress
rioting and disorder except by direction of the governor or upon the
request of the mayor of the city with the approval of the governor. Any
member of the rank of sergeant or above may take pre-arraignment bail
from any defendant in the amounts and under the circumstances and
conditions that police may take bail.
2. The superintendent may, by written order, designate a police
officer, as defined in paragraph (b), (c) or (d) of subdivision
thirty-four of section 1.20 of the criminal procedure law, to assist
members of the state police in order to more effectively address the
detection of crime and apprehension of criminals within the state and
its localities. Police officers so designated, while actively working
in conjunction with members of the state police either directly or as
part of a specific task force, shall be paid by and remain employees of
their particular county, city, town or village, but shall for purposes
of the criminal procedure law, have their geographic area of employment
deemed to be New York state.
* NB Effective until September 1, 2027
* § 223. Duties and powers of the superintendent of state police and
of members of the state police. It shall be the duty of the
superintendent of the state police and of members of the state police to
prevent and detect crime and apprehend criminals. They shall also be
subject to the call of the governor and are empowered to co-operate with
any other department of the state or with local authorities. They shall
also collect and analyze information relating to prevention and
detection of terrorist threats and terrorist activities throughout the
state and share all such information subject to paragraph (g) of
subdivision two of section seven hundred nine of this chapter among the
division of homeland security and emergency services and local, state,
and federal law enforcement agencies to ensure the coordination of
appropriate intelligence to assist in the early identification of and
response to potential terrorist threats and terrorist activities. They
shall have power to arrest, without a warrant, any person committing or
attempting to commit within their presence or view a breach of the peace
or other violation of law, to serve and execute warrants of arrest or
search issued by proper authority and to exercise all other powers of
police officers of the state of New York. Any such warrants issued by
any magistrate of the state may be executed by them in any part of the
state according to the tenor thereof without indorsement. But they shall
not exercise their powers within the limits of any city to suppress
rioting and disorder except by direction of the governor or upon the
request of the mayor of the city with the approval of the governor. Any
member of the rank of sergeant or above may take pre-arraignment bail
from any defendant in the amounts and under the circumstances and
conditions that police may take bail.
* NB Effective September 1, 2027
Verification of complaint. Where a summons has been served by a
member of the state police in lieu of arrest, in cases of violation of
the vehicle and traffic law or such ordinances, rules or regulations
enacted pursuant thereto or pursuant to any other law relating to
traffic, or in cases of violations of the navigation law or such
ordinances, rules or regulations enacted pursuant thereto or pursuant to
any other law relating to navigation, any major, any captain or any
lieutenant or sergeant of the state police assigned to the troop in
which the service of the summons is reported, is hereby authorized to
administer to such member all necessary oaths in connection with the
execution of the complaint to be presented in court by such member in
the prosecution of such offense.
Enforcement of conservation law. All the powers and duties now
conferred or imposed upon inspectors and game protectors under article
four of the conservation law, in relation to fish, birds and quadrupeds,
hereafter shall be exercised and performed by the state police,
inspectors and game protectors.
Lost and found property. The state police shall perform the
duties with respect to found property and found instruments provided in
article seven-b of the personal property law. The superintendent may
designate a member or members of the state police to accept and keep
custody of found property and instruments, may prescribe procedures for
determining the value and for estimating the net sum likely to be
realized by sale at public auction of lost property as defined in such
article, for disposition of derelict automobiles and other property
having no value or salvage value only and for sale of property as
authorized by such article and may prescribe rules not inconsistent with
such article seven-b with respect to form and manner of giving notices
and with respect to forms of reports of found property or instruments
and with respect to storage of found property.
Employment of state police in towns, villages, police
districts. 1. The governing board of any police district provided for
under article fourteen-a of the town law or of any town or of any
village, may from time to time respectively contract upon behalf of said
district, town or village with the superintendent of state police upon
behalf of the state for the regular assignment of state police to said
district, town or village upon the following terms and conditions: The
superintendent of state police shall detail such number of state police
officers as shall be agreed upon to such district, town or village for a
period of one year; the pay, maintenance and other expenses of such
detail for a period of one year shall be computed by the superintendent
of state police with the approval of the state comptroller pro rata upon
the total cost of the pay, maintenance and similar expenses of the whole
department; before such contract shall take effect the governing board
of said district, town or village shall deposit to the credit of the
division of state police in a depository to be designated by the state
comptroller with proper sureties, one half the sum of money so computed
and upon the first day of the sixth month during the continuance of said
contract shall likewise deposit the remainder of said sum; the
superintendent of state police, upon audit of the comptroller, shall
draw upon said depository for the pay, maintenance and other expenses of
said detail when due; said detail shall have all the powers and duties
and shall remain at all times under the authority and discipline of the
superintendent of state police as provided for state police assigned to
regular duty under this article.
2. The superintendent of state police is authorized to appoint
temporarily to the regular force provided for in this article, troopers,
non-commissioned officers and officers to fill the places of those
detailed under such agreements. In police districts the money to be
deposited as required hereunder shall be provided for as authorized
under article fourteen-a of the town law as added in nineteen hundred
and twenty; in towns and villages the money so deposited shall be raised
by taxation.
Disability benefits. The following benefits shall be paid by
the state on account of disability of a member of the division of state
police:
1. To every person now a member or who shall hereafter become a member
of the division of state police, who is now or who shall hereafter
become physically or mentally unable to perform his regular duties in a
manner satisfactory to the superintendent of the division of state
police there shall be paid during the period of such disability an
amount of not less than one-third nor more than one-half of his salary
including maintenance allowance, which amount within such limits shall
be determined by a board consisting of the superintendent of state
police, the attorney-general and the state comptroller. A member of the
New York state employees' retirement system who has heretofore served as
a member of the division of state police for a period of fifteen years
or more and who, following such a period of service, has heretofore been
retired for ordinary disability under the provisions of section
seventy-eight of the civil service law shall, notwithstanding the
provisions of section ninety-three of the civil service law, receive
from the state from appropriations made for the purpose of this section
such sum as will bring his retirement allowance under section
seventy-eight of the civil service law up to the amount which he would
have received under this subdivision if he were not a member of the New
York state employees' retirement system and were entitled to the
benefits provided for by this subdivision, to be determined in the
manner prescribed thereby.
2. The provisions of this section shall not apply in the case of any
member of the division of state police who is a member of the New York
state employees' retirement system unless he was retired by such system
for ordinary disability prior to May twenty-second, nineteen hundred
forty-two.
Death benefits. 1. The following benefit shall be paid by the
state on account of death of a member of the division of state police.
To the widow, until she be married again, or the dependent children
under the age of twenty-one years, or the dependent mother of every
member of the division of state police whose death has been heretofore
caused or shall hereafter be caused by injury or disease contracted in
the performance of duty there shall be paid annually as long as such
dependency continues upon certification of a board consisting of the
superintendent of state police, the attorney general and the state
comptroller, one-half the salary including maintenance allowance,
received by such member at the time of death.
2. Notwithstanding any law, rule or regulation to the contrary, where
an agreement between the state and an employee organization representing
members of the collective negotiating unit consisting of investigators,
senior investigators and investigative specialists of the division of
state police, or the collective negotiating unit consisting of troopers
in the division of state police or the collective negotiating unit
consisting of commissioned and non-commissioned officers of the division
of state police established pursuant to article fourteen of the civil
service law so provides, a survivor's benefit for a member in such
negotiating unit shall be paid in an amount as provided in such
agreement in the event that such employee dies subsequent to April
first, nineteen hundred eighty-five, as the result of an accidental
on-the-job injury, provided that it is finally determined by the
appropriate federal authorities that a public safety officer's death
benefit is not payable pursuant to sections three thousand seven hundred
ninety-six through three thousand seven hundred ninety-six-c of title
forty-two of the United States code, and provided further that a death
benefit is paid pursuant to the workers' compensation law. Such
survivor's benefit shall be paid to the member's surviving spouse and
dependent children in the same proportion as the death benefit provided
by the workers' compensation law is paid. In the event that the member
is not survived by a spouse or dependent children, the survivor's
benefit shall be paid to the estate of the member. Such survivor's
benefit shall be in addition to and not in place of any other survivor's
or death benefit payable on behalf of such member, except that such
benefit shall not be payable if a public safety officer's death benefit
is payable pursuant to sections three thousand seven hundred ninety-six
through three thousand seven hundred ninety-six-c of the United States
code.
3. Notwithstanding any law, rule or regulation to the contrary, where
an agreement between the state and an employee organization representing
members of the collective negotiating unit consisting of investigators,
senior investigators and investigative specialists of the division of
state police or the collective negotiating unit consisting of troopers
in the division of state police or the collective negotiating unit
consisting of commissioned and non-commissioned officers of the division
of state police established pursuant to article fourteen of the civil
service law so provides, the state shall provide the child or children
of such members for whom a survivor's benefit is paid pursuant to
subdivision two of this section, or for whom a federal public safety
officer's benefit is payable as specified in subdivision two of this
section, with full tuition up to the amount charged by the state
university of New York to attend any college or university provided,
however, such child or children meet the entrance requirements of such
college or university. Such child or children are those who are
designated by the workers' compensation board to receive a death benefit
pursuant to the workers' compensation law.
National instant criminal background checks. 1. (a) The
division is hereby authorized and directed to serve as a state point of
contact for implementation of 18 U.S.C. sec. 922 (t), all federal
regulations and applicable guidelines adopted pursuant thereto, and the
national instant criminal background check system for the purchase of
firearms and ammunition.
(b) Upon receiving a request from a licensed dealer pursuant to
section eight hundred ninety-six or eight hundred ninety-eight of the
general business law, the division shall initiate a background check by
(i) contacting the National Instant Criminal Background Check System
(NICS) or its successor to initiate a national instant criminal
background check, and (ii) consulting the statewide firearms license and
records database established pursuant to subdivision three of this
section, in order to determine if the purchaser is a person described in
sections 400.00 and 400.03 of the penal law, or is prohibited by state
or federal law from possessing, receiving, owning, or purchasing a
firearm or ammunition.
2. (a) The division shall report the name, date of birth and physical
description of any person prohibited from possessing a firearm pursuant
to 18 U.S.C. sec. 922(g) or (n) to the national instant criminal
background check system index, denied persons files.
(b) Information provided pursuant to this section shall remain
privileged and confidential, and shall not be disclosed, except for the
purpose of enforcing federal or state law regarding the purchase of
firearms or ammunition.
(c) Any background check conducted by the division, or delegated
authority, of any applicant for a permit, firearms identification card
license, ammunition sale, or registration, in accordance with the
requirements of section 400.00 of the penal law, shall not be considered
a public record and shall not be disclosed to any person not authorized
by law or this chapter to have access to such background check,
including the applicant. Any application for a permit, firearms
identification card, ammunition sale, or license, and any document
reflecting the issuance or denial of such permit, firearms
identification card, or license, and any permit, firearms identification
card, license, certification, certificate, form of register, or
registration statement, maintained by any state or municipal
governmental agency, shall not be considered a public record and shall
not be disclosed to any person not authorized by law to have access to
such documentation, including the applicant, except on the request of
persons acting in their governmental capacities for purposes of the
administration of justice.
3. The division shall create and maintain a statewide firearms license
and records database which shall contain records held by the division
and any records that it is authorized to request from the division of
criminal justice services, office of court administration, New York
state department of health, New York state office of mental health, and
other local entities. Such database shall be used for the certification
and recertification of firearm permits under section 400.02 of the penal
law, assault weapon registration under subdivision sixteen-a of section
400.00 of the penal law, and ammunition sales under section 400.03 of
the penal law. Such database shall also be used to initiate a national
instant criminal background check pursuant to subdivision one of this
section upon request from a licensed dealer. The division may create and
maintain additional databases as needed to complete background checks
pursuant to the requirements of this section.
4. The superintendent shall promulgate a plan to coordinate background
checks for firearm and ammunition purchases pursuant to this section and
to require any person, firm or corporation that sells, delivers or
otherwise transfers any firearm or ammunition to submit a request to the
division in order to complete the background checks in compliance with
federal and state law, including the National Instant Criminal
Background Check System (NICS), in New York state. Such plan shall
include, but shall not be limited to, the following features:
(a) The creation of a centralized bureau within the division to
receive and process all background check requests, which shall include a
contact center unit and an appeals unit. Staff may include but is not
limited to: bureau chief, supervisors, managers, different levels of
administrative analysts, appeals specialists and administrative
personnel. The division shall employ and train such personnel to
administer the provisions of this section.
(b) Procedures for carrying out the duties under this section,
including hours of operation.
(c) An automated phone system and web-based application system,
including a toll-free telephone number and/or web-based application
option for any licensed dealer requesting a background check in order to
sell, deliver or otherwise transfer a firearm which shall be operational
every day that the bureau is open for business for the purpose of
responding to requests in accordance with this section.
5. (a) Each licensed dealer that submits a request for a national
instant criminal background check pursuant to this section shall pay a
fee imposed by the bureau for performing such background check. Such fee
shall be allocated to the background check fund established pursuant to
section ninety-nine-pp of the state finance law. The amount of the fee
shall not exceed the total amount of direct and indirect costs incurred
by the bureau in performing such background check.
(b) The bureau shall transmit all moneys collected pursuant to this
paragraph to the state comptroller, who shall credit the same to the
background check fund.
6. On January fifteenth of each calendar year, the bureau shall submit
a report to the governor, the temporary president of the senate, and the
speaker of the assembly concerning:
a. the number of employees used by the bureau in the preceding year
for the purpose of performing background checks pursuant to this
section;
b. the number of background check requests received and processed
during the preceding calendar year, including the number of "proceed"
responses and the number and reasons for denials;
c. the calculations used to determine the amount of the fee imposed
pursuant to this paragraph.
7. Within sixty days of the effective date of this section, the
superintendent shall notify each licensed dealer holding a permit to
sell firearms of the requirement to submit a request to the division to
initiate a background check pursuant to this section as well as the
following means to be used to apply for background checks:
i. any person, firm or corporation that sells, delivers or otherwise
transfers firearms shall obtain a completed ATF 4473 form from the
potential buyer or transferee including name, date of birth, gender,
race, social security number, or other identification numbers of such
potential buyer or transferee and shall have inspected proper
identification including an identification containing a photograph of
the potential buyer or transferee.
ii. it shall be unlawful for any person, in connection with the sale,
acquisition or attempted acquisition of a firearm from any transferor,
to willfully make any false, fictitious oral or written statement or to
furnish or exhibit any false, fictitious, or misrepresented
identification that is intended or likely to deceive such transferor
with respect to any fact material to the lawfulness of the sale or other
disposition of such firearm under federal or state law. Any person who
violates the provisions of this subparagraph shall be guilty of a class
A misdemeanor.
8. Any potential buyer or transferee shall have thirty days to appeal
the denial of a background check, using a form established by the
superintendent. Upon receipt of an appeal, the division shall provide
such applicant a reason for a denial within thirty days. Upon receipt of
the reason for denial, the appellant may appeal to the attorney general.
Retirement for cause. a. The superintendent may recommend the
retirement for cause of any member of the New York state police who is
covered by the twenty year retirement plan set forth in section three
hundred eighty-one-b of the retirement and social security law, and who
has twenty-five or more years of creditable service under such plan. The
superintendent shall mail a written notice of such recommendation to the
member at his home address, which notice shall set forth the reasons for
the recommendation. At any time within thirty days after the mailing of
such recommendation, the member or any person authorized to act on his
behalf may serve a written demand for a review of the recommendation.
After the service of such demand the superintendent shall refer his
recommendation to the review panel established pursuant to this section,
the decision of which shall be subject to review only as provided in
article seventy-eight of the civil practice law and rules.
b. The said review panel shall consist of three persons who shall be
selected as follows. One person shall be selected by the superintendent.
One person shall be selected by the employee organization recognized or
certified to represent the member pursuant to the provisions of article
fourteen of the civil service law. The third person shall be selected by
the other two or, if they cannot agree, he shall be selected by the
public employment relations board. Each of the three persons so selected
shall be appointed by the superintendent and shall hold office until a
successor has been selected and appointed.
c. If the member does not serve a timely demand for a review of the
recommendation of the superintendent; or if the review panel shall adopt
the recommendation of the superintendent, the superintendent shall
certify the name of the member to the state comptroller for retirement
for cause.
d. As used in this section, the term retirement for cause shall mean a
retirement recommended by the superintendent after a finding by him that
a member is no longer capable of performing his duties satisfactorily.
Gun trafficking interdiction program. 1. There is hereby
created within the division of criminal justice services a gun
trafficking interdiction program to be administered by the commissioner
of the division of criminal justice services to distribute funds in
accordance with the provisions of this section for the purpose of
interdicting guns and components of guns illegally entering New York
with a focus on those "supplier" states from which substantial numbers
of guns illegally enter this state.
2. The superintendent of the division of state police, in cooperation
with the United States department of treasury, bureau of alcohol,
tobacco and firearms and district attorneys in New York state, shall
develop and implement a strategy for the interdiction of guns illegally
entering New York from supplier states. The strategy shall include
identifying and prosecuting gun traffickers and suppliers of such guns
who may be violating federal, state or local laws, and cooperating with
the United States department of treasury, bureau of alcohol, tobacco and
firearms and appropriate prosecutorial agencies and law enforcement
agencies in supplier states in the investigation and enforcement of such
laws. District attorneys are authorized to enter into collaborative
agreements with prosecutorial and other governmental agencies and
entities in supplier states in an effort to stop the movement of illegal
guns into New York.
3. The commissioner of the division of criminal justice services shall
award grant monies to district attorneys for programs which are designed
to interdict the flow of illegal guns across New York state borders. In
order to qualify for such grant monies, a district attorney must submit
an application to the commissioner of the division of criminal justice
services in accordance with guidelines prescribed by the division of
criminal justice services. The application shall identify a strategy and
implementation plan for preventing the entry of illegal guns across New
York's borders. Funds awarded under this section shall not be used to
supplant federal, state or local funds. No more than fifty percent of
the funds available pursuant to this section in any one fiscal year
shall be awarded for programs within a single city, county, town or
village.
4. The superintendent of the division of state police shall establish
and maintain within the division a criminal gun clearinghouse as a
central repository of information regarding all guns seized, forfeited,
found or otherwise coming into the possession of any state or local law
enforcement agency which are believed to have been used in the
commission of a crime. The superintendent of the division of state
police shall adopt and promulgate regulations prescribing reporting
procedures for such state or local law enforcement agencies, including
the form for reporting such information. In addition to any other
information which the superintendent of the division of state police may
require, the form shall require (a) the serial number or other
identifying information on the gun, if available and (b) a brief
description of the circumstances under which the gun came into the
possession of the law enforcement agency, including the crime which was
or may have been committed with the gun. Whenever a state or local law
enforcement agency seizes or recovers a gun that was unlawfully
possessed, recovered from a crime scene, or is reasonably believed to
have been used in or associated with the commission of a crime or is
otherwise recovered as an abandoned or discarded gun, the agency shall
report such seized or recovered gun to the criminal gun clearinghouse as
soon as practicable, but in no case more than twenty-four hours after
the agency has taken possession of such gun. Every report made to the
criminal gun clearinghouse will result in the prompt submission of a
request to the national tracing center of the bureau of alcohol,
tobacco, firearms and explosives to trace the movement of the subject
gun and such federal agency will be requested to provide the results of
such a trace to the superintendent of the division of state police and
to the law enforcement agency that submitted the clearinghouse report.
5. All state and local law enforcement agencies shall participate in
the bureau of alcohol, tobacco, firearms and explosives collective data
sharing program for the purpose of sharing gun trace reports among all
law enforcement agencies in the state on a reciprocal basis.
6. (a) The division of state police, in consultation with the division
of criminal justice services, shall publish quarterly reports on their
respective websites with information related to firearms, rifles and
shotguns used in the commission of crimes in the state of New York,
including but not limited to, information pertaining to the county and
state of origin of the firearm, rifle or shotgun, the county and state
where the firearm, rifle or shotgun was purchased, whether the firearm,
rifle or shotgun was purchased by the perpetrator of the crime or by
another individual, and whether the perpetrator had a license or permit
to possess such firearm, rifle or shotgun.
(b) Each political subdivision, municipality, commission, agency,
office, department, board and division in the state, to the extent not
inconsistent with other provisions of law, shall cooperate fully with
the division of state police and the division of criminal justice
services and shall furnish such information and assistance, in the form
and manner specified by the division of state police and the division of
criminal justice services, as may be required in the performance of
their function under this subdivision. If such information is not
readily available or accessible, the relevant local law enforcement
agency will make efforts to obtain such information, including but not
limited to the reporting requirements set forth in subdivision five of
this section. Such information shall be provided to the extent allowable
by federal, state or any other applicable law.
7. (a) Whenever a state or local law enforcement agency seizes or
recovers a gun that was unlawfully possessed, recovered from the scene
of a crime, or is reasonably believed to have been used or associated
with the commission of a crime, or is recovered by the agency as an
abandoned or discarded gun, the agency shall arrange for every such gun
that is determined to be suitable for test-firing and of a type that is
eligible for national integrated ballistic information network data
entry and correlation to be test-fired as soon as practicable, and the
results of that test-firing shall be submitted forthwith to the national
integrated ballistic information network to determine whether the gun is
associated or related to a crime, criminal event, or any individual
associated or related to a crime or criminal event or reasonably
believed to be associated or related to a crime or criminal event.
(b) Whenever a state or local law enforcement agency recovers any
ammunition cartridge case that is of a type that is eligible for
national integrated ballistic information network data entry and
correlation at a crime scene, or has reason to believe that such
recovered ammunition cartridge case is related to or associated with the
commission of a crime or the unlawful discharge of a gun, the agency
shall, as soon as practicable, arrange for the ballistics information to
be submitted to the national integrated ballistic information network.
8. Whenever a state or local law enforcement agency seizes or recovers
any gun, the agency shall promptly enter the make, model, caliber, and
serial number of the gun into the national crime information center
(NCIC) system to determine whether the gun was reported stolen.
9. The superintendent may adopt rules and regulations to effectuate
the provisions of this section.
Uniform identification cards for retired police officers. 1.
The superintendent shall develop and distribute uniform identification
cards to all sworn members of New York state police, upon such members'
retirement in good standing, which identification cards shall contain
all the following information:
(a) the individual's name;
(b) a description of the individual as a retired sworn member of the
New York state police;
(c) a state police photograph of the person;
(d) the New York State Police seal; and
(e) any other information the superintendent deems appropriate.
2. For purposes of this section "retirement in good standing" shall
mean that the sworn member of the New York state police retired from his
or her employment for reasons other than the avoidance of disciplinary
charges.
Sexual assault victims unit. There is hereby established within
the division of state police the sexual assault victims unit, which
shall be a specialized unit having advanced training in responding to
sexual assaults, including campus sexual assaults, and related crimes.
The sexual assault victims unit shall perform such tasks as determined
by the superintendent, which shall include but not be limited to
providing assistance, including forensic support services, to campus
police or local police or sheriff's departments, and providing training
to college campus communities.
Municipal gun buyback program. 1. There is hereby established
within the division of the state police a municipal gun buyback program.
Agencies approved by the superintendent may participate subject to
available appropriations and funds in the municipal gun buyback fund
established pursuant to section ninety-seven-cc of the state finance
law.
2. The division of state police shall administer the municipal gun
buyback program and promulgate rules and regulations the superintendent
deems necessary for the implementation of such program. Such rules shall
include, but not be limited to:
(a) the manner in which an agency may apply for funds to support a
municipal gun buyback program and the manner in which such funds will be
allocated and distributed;
(b) guidelines for the safe storage and disposal of firearms, rifles,
shotguns, and ammunition received as part of the program in the
possession of the participating agency, return of any recovered stolen
property to its rightful owner as appropriate, and retention for
evidence of any firearm, rifle, or shotgun suspected to have been used
in a crime;
(c) guidelines for an agency participating in the program to
coordinate with community groups within its jurisdiction; and
(d) guidelines for allowing individuals to surrender firearms, rifles
and shotguns and eligibility for monetary rewards.
3. The provisions of subparagraph (f) of paragraph one of subdivision
a of section 265.20 of the penal law shall apply to any person
voluntarily surrendering a firearm, rifle or shotgun pursuant to this
section.
4. Any agency shall be authorized to develop and implement its own
municipal gun buyback program provided it is otherwise permitted by law
and conforms to the rules and regulations promulgated by the
superintendent and outlined in subdivision two of this section.
5. For purposes of this section "agency" means the police force or
department of any county, city, town, or village or a county sheriff.
New York state police body-worn cameras program. 1. There is
hereby created within the division of state police a New York state
police body-worn cameras program. The purpose of the program is to
increase accountability and evidence for law enforcement and the
residents of the state by providing body-worn cameras to all state
police officers while on patrol.
2. The division of state police shall provide body-worn cameras, to be
worn by officers at all times, while on patrol. Such cameras shall
record:
(a) immediately before an officer exits a patrol vehicle to interact
with a person or situation, even if there is a dash camera inside such
vehicle which might also be recording the interaction;
(b) all uses of force, including any physical aggression and use of a
non-lethal or lethal weapon;
(c) all arrests and summonses;
(d) all interactions with people suspected of criminal activity;
(e) all searches of persons and property;
(f) any call to a crime in progress;
(g) investigative actions where there are interactions with members of
the public;
(h) any interaction with an emotionally disturbed person; and
(i) any instances where officers feel any imminent danger or the need
to document their time on duty.
3. The attorney general may investigate any instance where body
cameras fail to record an event pursuant to this section.
4. At the discretion of the officer, body-worn cameras may not record:
(a) sensitive encounters, including but not limited to speaking with a
confidential informant, or conducting a strip search; or
(b) when a member of the public asks such officer to turn off the
camera; provided, however, such officer may continue recording if he or
she thinks a record of that interaction should be generated.
5. The division of state police shall preserve recordings of such
body-worn cameras and perform all upkeep on equipment used in such
body-worn cameras. Such duties shall include:
(a) creating a secure record of all instances where there is recorded
video or audio footage;
(b) ensuring officers have sufficient storage capacity on their
cameras to allow for the recording of interactions required by this
section; and
(c) ensuring officers have access to body-worn cameras for the
recording of instances required by this section.
Firearms safety training, and licensing appeals. 1. The
superintendent shall, in conjunction with the commissioner of the
division of criminal justice services, promulgate policies and
procedures with regard to standardization of firearms safety training
required under subdivision nineteen of section 400.00 of the penal law,
which shall include the approval of course materials and the
promulgation of proficiency standards for live fire training.
2. The superintendent, in conjunction with the commissioner of the
division of criminal justice services, shall create an appeals board for
the purpose of hearing appeals as provided in subdivision four-a of
section 400.00 of the penal law and promulgate rules and regulations
governing such appeals.
Drones. 1. The terms used in this section shall have the same
meaning as given in section 280.00 of the penal law.
2. A police officer as defined by subdivision thirty-four of section
1.20 of the criminal procedure law, or a peace officer as defined by
section 2.10 of the criminal procedure law, acting within such peace
officer's geographical jurisdiction, may take reasonable and necessary
mitigation measures against a credible threat that a drone poses to the
safety or security of people and/or prohibited spaces. Such measures may
include but not be limited to any of the following:
(a) The use of detection, tracking, and identification methods of a
drone and/or drone operating system.
(b) The interception or disabling of a drone and/or drone operating
system through legal and safe methods, including but not limited to both
kinetic and non-kinetic mitigation measures.
(c) A law enforcement officer or agency may only use kinetic measures
when non-kinetic measures have or would reasonably be expected to fail,
provided that such kinetic measures are deployed using federally
approved technologies.
3. The superintendent shall, within six months of the effective date
of this section, promulgate rules and regulations for drone mitigation
by police officers and peace officers. Such rules and regulations shall
prioritize the use of the least destructive measures necessary to
mitigate the threat posed by the drone.
4. (a) A qualifying police officer or peace officer shall act pursuant
to subdivision two of this section only if: (i) the officer has
completed the training required by the superintendent or the
superintendent's designee, in addition to any other training and
certification required by federal law; (ii) the officer has reasonable
suspicion that the drone is operating in a nefarious manner or within a
prohibited space before using non-kinetic measures; and (iii) the
officer has probable cause a drone is operating in a nefarious manner or
within prohibited space before using kinetic measures. Any drone
mitigation measure employed must occur in accordance with the
regulations prescribed pursuant to subdivision three of this section and
in accordance with applicable federal law.
(b) Within forty-eight hours of utilizing any mitigation measures
authorized by this section, the agency employing the officer who
utilized such measures shall report such utilization to the
superintendent or the superintendent's designee, in the form and manner
prescribed by the superintendent, in addition to any reporting required
by federal law.
5. The superintendent may designate one or more areas of the state as
a space to test kinetic and non-kinetic mitigation measures.
6. The superintendent shall establish a registry known as "the New
York state blue list". Such registry shall include vetted and approved
vendors that comply with applicable federal requirements. Upon
publication of the registry, the state, its agencies, and any political
subdivisions of the state may only buy or lease drones and drone
mitigation technology from vendors listed on such registry.
ARTICLE 12 Office of Probation and Correctional Alternatives
Office of probation and correctional alternatives. 1. There
shall be in the division of criminal justice services an office of
probation and correctional alternatives, hereinafter referred to in this
article as "the office". The head of the office shall be the director of
probation and correctional alternatives, who shall be appointed by the
commissioner, subject to the approval of the governor.
2. The director shall serve as special advisor to the governor
regarding matters pertaining to probation and alternatives to
incarceration. The director shall, in consultation with the
commissioner, coordinate and make recommendations relating to the type
and nature of alternative to incarceration programs needed to reduce
incarceration where the purpose of such incarceration can be adequately
served by alternative programs and shall work with local probation
departments and the commissioner to enhance and develop probation
services and alternative to incarceration programs throughout the state.
3. The commissioner, in consultation with the director, shall appoint
staff and perform such other functions to ensure the efficient operation
of the office within the amounts made available therefor by
appropriation.
4. As used in this article, the term "director" shall mean the
director of the office of probation and correctional alternatives,
"office" shall mean the office of probation and correctional
alternatives, "commissioner" shall mean the commissioner of the division
of criminal justice services and "division" shall mean the division of
criminal justice services.
State probation commission. 1. There shall be a state probation
commission. It shall consist of the director and six other members to be
selected as follows:
(a) three shall be appointed by the governor from among persons who,
as members of the community, have demonstrated an interest and
involvement in the field of probation, to hold office at the pleasure of
the governor and until their successors are appointed;
(b) two shall be appointed by the governor from among the probation
administrators and probation officers actually employed in the field of
probation in this state who have demonstrated by work in a statewide
professional association, concerned generally with probation affairs
throughout the state, outstanding service to the field of probation, to
hold office at the pleasure of the governor and until their successors
are appointed; and
(c) one shall be the state administrator of the unified court system.
2. The present members of the state probation commission who were
appointed to such commission by the governor shall continue as the
members of said commission appointed pursuant to paragraph (a) of
subdivision one of this section at the pleasure of the governor, and
until their successors are appointed and have qualified. The director
shall be chairman of the commission. No member of said probation
commission shall receive any compensation for his or her services as a
member of such commission, but the members shall be entitled to their
actual necessary expenses incurred in the performance of their duties.
The commissioner may from time to time assign an employee of the
division to act as secretary to said probation commission. The duties of
the members of said probation commission shall be to attend the meetings
of such probation commission, at the time fixed by said commission, or
called by the chairman of said commission, and to consider all matters
relating to probation in the state, within the jurisdiction of the
office, and to advise and consult with the director in regard thereto.
Supervision of administration of local probation and
correctional alternatives. 1. The office shall exercise general
supervision over the administration of probation services throughout the
state, including probation in family courts and shall collect
statistical and other information and make recommendations regarding the
administration of probation services in the courts. The office shall
endeavor to secure the effective application of the probation system and
the enforcement of the probation laws and the laws relating to family
courts throughout the state. After consultation with the state probation
commission, the office shall recommend to the commissioner general rules
which shall regulate methods and procedure in the administration of
probation services, including investigation of defendants prior to
sentence, and children prior to adjudication, supervision, case work,
record keeping, and accounting, program planning and research so as to
secure the most effective application of the probation system and the
most efficient enforcement of the probation laws throughout the state.
Such rules shall provide that the probation investigations ordered by
the court in designated felony act cases under subdivision one of
section 351.1 of the family court act shall have priority over other
cases arising under articles three and seven of such act. When duly
adopted by the commissioner, such rules shall be binding upon all
probation officers and when duly adopted shall have the force and effect
of law, but shall not supersede rules that may be adopted pursuant to
the family court act. The office shall keep informed as to the work of
all probation officers and shall from time to time inquire into and
report upon their conduct and efficiency. The office may investigate the
work of any probation bureau or probation officer and shall have access
to all records and probation offices. The office may issue subpoenas to
compel the attendance of witnesses or the production of books and
papers. The office may administer oaths and examine persons under oath.
The office may recommend to the appropriate authorities the removal of
any probation officer. The office may from time to time publish reports
regarding probation including probation in family courts, and the
operation of the probation system including probation in family courts
and any other information regarding probation as the office may
determine provided expenditures for such purpose are within amounts
appropriated therefor.
2. The office shall exercise general supervision over the utilization
of correctional alternative programs throughout the state. The office
shall collect statistical and other information and make recommendations
regarding the availability, identification, coordination and utilization
of such programs. The office shall endeavor to facilitate communication
and coordination among and between correctional alternative programs and
probation services in order to assist in making effective use of such
programs. A correctional alternative program shall be deemed to refer to
those programs, including eligible programs as defined in paragraph b of
subdivision one of section two hundred sixty-one of this chapter, which
by themselves, or when used in conjunction with one or more programs or
with probation services, may serve as an alternative to a sentence or
disposition of incarceration or a portion thereof, and which shall serve
the interests of justice. The office shall further exercise general
supervision over the administration and implementation of alternatives
to incarceration service plans under the provisions of article
thirteen-A of this chapter. The office shall recommend to the
commissioner general rules and regulations which shall regulate methods
and procedures in the administration and funding of alternative to
incarceration service plans, and any other correctional alternative
program funded by the state through the division, including but not
limited to issuance of quarterly reports as specified by section two
hundred sixty-three of this chapter. When duly adopted by the
commissioner, such rules and regulations shall be binding upon all
counties and eligible programs that may be funded in such plans and when
duly adopted shall have the force and effect of law. The office shall
keep informed as to the development, implementation and utilization of
plans and funded eligible programs therein and shall from time to time
inquire into and report upon their work and efficiency. The office shall
investigate the work of any funded plan or eligible program and shall
have access to their records and offices for such purpose.
3. (a) The office shall have the authority to certify to the
commissioner those correctional alternative programs subject to
supervision of the office and determined to perform a criminal justice
function, as defined in subdivision ten of section eight hundred
thirty-five of this chapter, for the purpose of permitting access to
criminal history records for criminal justice purposes, subject to the
approval of the commissioner. Any such correctional alternative program
may apply for certification to the office in writing, on forms
prescribed by the office. Such application shall specify, at a minimum,
the following: the nature and scope of the program; the necessity for
access to such records related to their criminal justice function; the
names of employees, and their job titles or positions, for whom access
is being sought; and any other information the office deems necessary.
Certification shall include the designation of those employees of such
programs for whom access to such records is authorized. No designated
employee shall have access to such records until such person has
satisfactorily completed appropriate training, required by the division.
(b) Notwithstanding any other provision of law, probation departments
conducting investigations ordered by a court, for purposes of
determining custody, adoption, visitation, or guardianship shall have
access to criminal history records maintained by state law enforcement
agencies for criminal justice purposes.
4. The office shall recommend to the commissioner rules and
regulations which shall include guidelines and procedures on the
placement of sex offenders designated as level two or level three
offenders pursuant to article six-C of the correction law. Such
regulations shall instruct local probation departments to consider
certain factors when investigating and approving the residence of level
two or level three sex offenders sentenced to a period of probation.
Such factors shall include the following:
(a) the location of other sex offenders required to register under the
sex offender registration act, specifically whether there is a
concentration of registered sex offenders in a certain residential area
or municipality;
(b) the number of registered sex offenders residing at a particular
property;
(c) the proximity of entities with vulnerable populations;
(d) accessibility to family members, friends or other supportive
services, including but not limited to locally available sex offender
treatment programs with preference for placement of such individuals
into programs that have demonstrated effectiveness in reducing sex
offender recidivism and increasing public safety; and
(e) the availability of permanent, stable housing in order to reduce
the likelihood that such offenders will be transient.
Hostels and foster homes. 1. The office is hereby authorized to
provide or to pay for care in a hostel or foster home approved by the
office as suitable for such cases for any probationer or parolee under
the age of twenty-one years when the parole board or a judge of a court
determines that there is no other suitable home for such probationer or
parolee and that such probationer or parolee should be placed in such
hostel or foster home. In addition to payment for such care, when
ordered by the board or court, the office is authorized to provide or
pay for clothing and other necessities, including medical and
psychiatric treatment, required for the welfare of such probationer or
parolee. The office may also provide or contract for such care in any
suitable facility operated by a department of correction or by any other
public or voluntary social welfare agency, institution or organization.
A court with respect to such a probationer and the parole board with
respect to such a parolee shall, subject to regulation by the division
control admissions to and discharges from such hostels and foster homes.
When placement is made in any hostel or foster home, or in any facility
other than a public institution, such placement whenever practicable
shall be in a hostel, or facility operated by or in the home of a person
or persons of the same religious faith as the probationer or parolee.
2. The office shall have authority and the duty to stimulate programs
for the development of hostels and foster homes for the care of
probationers and parolees under the age of twenty-one years.
Probation staff training and development. The office of
probation and correctional alternatives shall conduct training programs
for city, county and state probation personnel, prepare and execute
programs of information and education to interest persons in the field
of probation as a vocation, encourage the development by schools within
the state of courses of study in fields related to and bearing upon
probation and engage in other activities of an educational or
informational nature designed to increase the number of qualified
probation personnel and improve the caliber of probation service within
the state. In order to effectuate the provisions of this section, the
office of probation and correctional alternatives shall be authorized to
prepare and disseminate printed materials, utilize media of public
information, cooperate with public and private institutions of learning
and employ qualified persons as lecturers or consultants on a fee basis
to supplement services to be performed by its personnel hereunder. Such
fees shall be payable out of funds appropriated for these purposes on
the audit and warrant of the comptroller on vouchers certified or
approved by the office.
State aid for probation services. 1. The program of state aid
to county probation services shall be administered by the division of
criminal justice services with the advice of the state probation
commission and the director of the office of probation and correctional
alternatives. Funds appropriated to the division for distribution as
state aid to county probation services and to the probation services of
New York city shall be distributed by the division in accordance with
rules and regulations adopted by the commissioner of the division of
criminal justice services after consultation with the state probation
commission and the director of the office of probation and correctional
alternatives.
2. State aid shall be granted to the city of New York and the
respective counties outside the city of New York for expenditures to be
incurred by the county or city in maintaining and improving local
probation services subject to amounts appropriated for this purpose.
State aid grants shall not be used for expenditures for capital
additions or improvements, or for debt service costs for capital
improvements.
State aid shall be granted by the commissioner of the division of
criminal justice services after consultation with the state probation
commission and the director of the office of probation and correctional
alternatives, provided the respective counties or the city of New York
conform to standards relating to the administration of probation
services as adopted by the commissioner of the division of criminal
justice services after consultation with the state probation commission
and the director of the office of probation and correctional
alternatives.
3. Applications from counties or the city of New York for state aid
under this section shall be made by filing with the division of criminal
justice services, a detailed plan, including cost estimates covering
probation services for the fiscal year or portion thereof for which aid
is requested. Included in such estimates shall be clerical costs and
maintenance and operation costs as well as salaries of probation
personnel and such other pertinent information as the commissioner of
the division of criminal justice services may require. Items for which
state aid is requested under this section shall be duly designated in
the estimates submitted. The commissioner of the division of criminal
justice services, after consultation with the state probation commission
and the director of the office of probation and correctional
alternatives, shall approve such plan if it conforms to standards
relating to the administration of probation services as specified in the
rules adopted by him or her.
4. An approved plan and compliance with standards relating to the
administration of probation services promulgated by the commissioner of
the division of criminal justice services shall be a prerequisite to
eligibility for state aid.
* The commissioner of the division of criminal justice services may
take into consideration granting additional state aid from an
appropriation made for state aid for county probation services for
counties or the city of New York when a county or the city of New York
demonstrates that additional probation services were dedicated to
intensive supervision programs and intensive programs for sex offenders.
The commissioner shall grant additional state aid from an appropriation
dedicated to juvenile risk intervention services coordination by
probation departments which shall include, but not be limited to,
probation services performed under article three of the family court
act. The administration of such additional grants shall be made
according to rules and regulations promulgated by the commissioner of
the division of criminal justice services. Each county and the city of
New York shall certify the total amount collected pursuant to section
two hundred fifty-seven-c of this chapter. The commissioner of the
division of criminal justice services shall thereupon certify to the
comptroller for payment by the state out of funds appropriated for that
purpose, the amount to which the county or the city of New York shall be
entitled under this section. The commissioner shall, subject to an
appropriation made available for such purpose, establish and provide
funding to probation departments for a continuum of evidence-based
intervention services for youth alleged or adjudicated juvenile
delinquents pursuant to article three of the family court act or for
eligible youth before or sentenced under the youth part in accordance
with the criminal procedure law. Such additional state aid shall be made
in an amount necessary to pay one hundred percent of the expenditures
for evidence-based practices and juvenile risk and evidence-based
intervention services provided to youth sixteen years of age or older
when such services would not otherwise have been provided absent the
provisions of a chapter of the laws of two thousand seventeen that
increased the age of juvenile jurisdiction.
* NB Effective until September 1, 2027
* The commissioner of the division of criminal justice services may
take into consideration granting additional state aid from an
appropriation made for state aid for county probation services for
counties or the city of New York when a county or the city of New York
demonstrates that additional probation services were dedicated to
intensive supervision programs and intensive programs for sex offenders.
The commissioner shall grant additional state aid from an appropriation
dedicated to juvenile risk intervention services coordination by
probation departments which shall include, but not be limited to,
probation services performed under article three of the family court
act. The administration of such additional grants shall be made
according to rules and regulations promulgated by the commissioner of
the division of criminal justice services. Each county and the city of
New York shall certify the total amount collected pursuant to section
two hundred fifty-seven-c of this chapter. The commissioner of the
division of criminal justice services shall thereupon certify to the
comptroller for payment by the state out of funds appropriated for that
purpose, the amount to which the county or the city of New York shall be
entitled under this section. The commissioner shall, subject to an
appropriation made available for such purpose, establish and provide
funding to probation departments for a continuum of evidence-based
intervention services for youth alleged or adjudicated juvenile
delinquents pursuant to article three of the family court act or for
eligible youth before or sentenced under the youth part in accordance
with the criminal procedure law.
* NB Effective September 1, 2027
* 5. Any county or city that does not have an approved plan pursuant
to section two hundred forty-three-a of this chapter may establish and
implement expedited procedures for the probation service to determine
that a child is the subject of a petition under article seven of the
family court act or at risk of being the subject of such a petition, and
for a social services official to determine eligibility for mandated
preventive services pursuant to paragraph (a) of subdivision one of
section four hundred nine-a of the social services law for a child who
is the subject of a petition pursuant to article seven of the family
court act, or is determined by an assessment unit to be at risk of being
the subject of a petition, and is determined by a social services
official to be at risk of placement into foster care.
* NB Effective until June 30, 2027
* 5. Any county or city that does not have an approved plan pursuant
to section two hundred forty-three-a of this chapter may establish and
implement expedited procedures for the probation service to determine
that a child is the subject of a petition under article seven of the
family court act or at risk of being the subject of such a petition, and
for a social services official to determine eligibility for mandated
preventive services pursuant to paragraph (a) of subdivision one of
section four hundred nine-a of the social services law for a child who
is the subject of a petition pursuant to article seven of the family
court act, or is determined by an assessment unit to be at risk of being
the subject of a petition, and is determined by a social services
official according to standards promulgated pursuant to section three
hundred ninety-eight-b of the social services law to be at risk of
placement into foster care.
* NB Effective June 30, 2027
6. The director, after consultation with the state probation
commission, may authorize or require the comptroller to withhold the
payment of state aid to any county, or the city of New York, in the
event that such county, or the city of New York, (a) fails to conform to
standards of probation administration as formulated by the director
pursuant to this section, (b) discontinues or fails to follow an
approved plan, or (c) fails to enforce in a satisfactory manner rules
promulgated pursuant to this section, or laws now in effect or hereafter
adopted which relate in any manner to the administration of probation
services.
Establishment of probation scholarships. The office, out of
moneys appropriated to it for that purpose, is authorized to grant
scholarships for graduate training in any course of study that would be
of substantial value in the field of probation at graduate schools
located within the state whose programs are registered by the regents.
Each such scholarship shall entitle the holder thereof to a sum not to
exceed four thousand dollars annually while in attendance at any of the
said schools for a period not to exceed two years of graduate
professional study.
Scholarships under this section shall be awarded only to residents of
the state of New York who hold a degree of bachelor of arts or bachelor
of science from a college or university, or the equivalent thereof.
The office, after consultation with the state probation commission,
shall recommend to the commissioner rules governing the award of such
scholarships, the publication of notices offering scholarships, the
issuance and cancellation of certificates entitling persons to the
benefits thereof, the use of such scholarships by the persons entitled
thereto, the courses that may be included under such scholarships, the
schools which may be attended under such scholarships, the rights and
duties of scholarship holders and of the schools which they attend, and
providing generally for the carrying into effect of the provisions of
this section; and may, by appropriate rule, require that holders of such
scholarships be available for employment in probation work in the state
of New York upon the completion of the training for which the
scholarship is provided. The office shall, after consultation with the
state probation commission, award such scholarships within such
established rules, and any scholarship may be revoked for cause.
Payments of money under this section may be made to the holder of the
scholarship or to the school or college attended under the scholarship,
on behalf of, and for the benefit of, the holder of the scholarship.
Payments of money shall be ordered by the comptroller upon vouchers of
the office certifying that the person named therein is entitled to
receive the sum either directly, or for his or her benefit.
Educational or training leaves of absence. The local director
of probation, chief probation officer, or other head of a probation
department, bureau or unit, if he is the appointing authority therefor,
or otherwise such appointing authority, with the approval of the board
of supervisors of the county or the appropriating body of the city
having jurisdiction, may grant any probation officer or officers
employed therein leave of absence, with or without pay, for attendance
at graduate schools located within the state whose programs are
registered by the regents to pursue any course of study or training that
is of substantial assistance in probation work, or to receive additional
training in another probation department, bureau or unit in New York
state. The time during which a probation officer is absent, pursuant to
such leave, shall not constitute an interruption of continuous
employment and such officer shall not be subjected, directly or
indirectly, to any loss or diminution of time service, increment,
vacation or holiday privileges, or any other right or privilege, by
reason of such absence, or be prejudiced, by reason of such absence,
with reference to continuance in office or employment, or promotion.
ARTICLE 12-A Probation Officers and Related Matters
Probation in the city of New York. 1. There is hereby created a
department of probation in and for the city of New York to have charge
of all probation work in the supreme, family and criminal courts in the
counties of Bronx, Kings, New York, Queens and Richmond.
2. The head of such department shall be a director of probation
appointed by the mayor of the city of New York to serve during the
pleasure of the mayor. The director shall have charge of the
administration of the department and shall be responsible for carrying
out the functions of the department including intake, investigation,
supervision, conciliation and pre-disposition social treatment in cases
coming to the courts referred to in this section. The director may,
from time to time, create, abolish, transfer and consolidate bureaus and
other units within the department as he may determine necessary for
efficient operation thereof. He also shall have the power to appoint and
remove such deputy directors, assistants, probation officers and other
employees as may be needed for the performance of the duties of the
department and may prescribe their duties and fix their compensation,
within appropriations made available therefor by the city of New York
and subject to all applicable civil service laws and rules and
regulations. The director may, in his discretion, appoint volunteer
probation officers, when necessary, provided they have the
qualifications required of salaried officers, but no such volunteer
probation officer shall receive pay from the public funds for his
services. The city of New York shall make the necessary appropriation
for the salaries of the director and of all officers and employees of
the department as referred to herein, as well for the expenses actually
and necessarily incurred by such director, officers and employees in the
performance of their duties.
3. The director shall discharge his powers and responsibilities in
accordance with all laws and rules applicable to probation and with the
general rules regulating methods and procedure in the administration of
probation as adopted from time to time pursuant to section two hundred
forty-three of this chapter. He may adopt departmental rules, not
inconsistent with law or the aforesaid general rules, to regulate the
policies, programs, standards, and methods of procedure in relation to
probation and the powers and duties of officers and employees as in his
judgment he deems proper.
4. The head of such probation department, out of moneys appropriated
to such department for that purpose, is authorized to grant scholarships
to employees in the probation service in such department, for graduate
training in the field of probation at graduate schools or departments of
social work located within the state whose programs are registered by
the regents and accredited by the council on social work education. Each
such scholarship shall entitle the holder thereof to a sum sufficient to
pay the cost of tuition, not to exceed two thousand dollars annually,
while in attendance at any of the said schools or departments for a
period not to exceed two years of graduate professional study.
Scholarships under this section shall be awarded to employees in the
probation service in such department who apply therefor in the order of
their seniority in their civil service titles.
5. Notwithstanding any other provision of law or of the New York city
charter or administrative code, any duly appointed officer or employee
of such probation department may reside in any county within the state.
Local probation departments. 1. Each county shall maintain or
provide for a probation agency or agencies to perform probation services
therein, including intake, investigation, pre-sentence reports,
supervision, conciliation, social treatment and such other functions as
are assigned to probation agencies pursuant to law.
2. The board of supervisors or county legislatures of a county may
establish a county probation department in which there may be merged and
consolidated the responsibility for carrying out the probation work for
all matters under the jurisdiction of the family court, the superior
courts and the local criminal courts in and for the county. In any
county where the board of supervisors or county legislatures does not
establish a probation department to perform all probation work in the
county, as hereinabove provided, separate probation departments to carry
out the probation work for matters under the jurisdiction of particular
courts may be established and there may be merged and consolidated
therein the probation work for matters under the jurisdiction of two or
more courts. Any probation department that does not perform all
probation work in the county shall be known as the probation department
for the court or courts it is to serve.
3. Two or more counties may by agreement between the local governing
bodies thereof provide for the establishment, operation and maintenance
of a joint county probation department. Any probation department so
established shall have charge of all probation work in and for all the
courts in said counties. If any such county or court therein included in
the agreement shall already have a probation service, such agreement
shall provide that all officers and employees in such service shall
retain their civil service status and be transferred to the joint county
probation service without further examination or qualification, provided
however that, subject to the civil service law, such agreement may
provide for the abolition of existing unnecessary offices or positions
and the transfer of officers and employees to comparable positions. Any
such agreement shall provide for the proportionate cost, including but
not limited to salaries and employer's retirement contributions, of such
joint county probation service to be borne by each county and may
provide that the treasurer of one county participating in such agreement
shall be the custodian of the moneys made available for expenditure for
the purposes of such joint county probation service and that such
treasurer may make payments from such moneys for such purposes upon
audit of the appropriate auditing officer or body of such county. Such
agreement may provide for such other matters as are necessary and proper
to effectuate the purposes of this subdivision.
4. A probation department established pursuant to this section shall
consist of a director of probation and such deputies, supervisors,
probation officers and other employees as may be appointed pursuant to
the provisions of this section and the provisions of section two hundred
fifty-seven of this chapter.
5. The director of each probation department, other than a joint
county department, shall be appointed by the chief executive officer of
the county. The director of a joint county probation department shall be
appointed by agreement between the chief executive officers of the
counties participating in such agreement or a majority of them and in
the event of a deadlock the director of the office of probation and
correctional alternatives shall participate in the making of the
decision. Where a county has no chief executive officer, the appointment
of, or agreement to appoint, the director shall be made by the chairman
of the board of supervisors or county legislatures. The director of a
probation department shall have the power to appoint all deputies,
supervisors, probation officers and other employees in such department
within appropriations made available therefor by the board of
supervisors or county legislatures. The board of supervisors or county
legislatures shall fix the salaries of all personnel in the department
and make the necessary appropriations therefor as well as for the
expenses actually and necessarily incurred by such officers and
employees in the performance of their duties. In the case of a joint
county department the salaries of personnel and the amounts of other
expenditures to be made available for operation of the department shall
be set forth in the agreement between the counties, and the boards of
supervisors or county legislatures shall make the appropriations
required for the respective proportionate costs thereof.
6. (a) Each probation agency or department and state operated
probation services shall provide for intake, investigation, supervision
and conciliation services relating to custody, visitation and paternity
proceedings and may provide for such services in support proceedings
under the provisions of articles four, five, five-A and six of the
family court act. For purposes of this subdivision, intake services: (i)
relating to support proceedings under article four and relating to
paternity proceedings under articles five and five-A of the family court
act, shall include referral to the office of temporary and disability
assistance's child support enforcement unit in cases where a person is
applying for or receiving public assistance or where a person chooses to
utilize the services of such unit; (ii) relating to support proceedings
under article four of the family court act, shall include services
rendered to the payors of support orders seeking to modify such orders.
(b) Each probation agency or department is authorized to enter into a
contract with the appropriate local social services district for the
performance of the functions of the support collection unit, in
accordance with the provisions of section one hundred eleven-h of the
social services law.
7. The provisions of this section shall not apply to any county that
is located wholly within a city; provided, however, that the provisions
of subdivision six of this section shall apply in like manner to any
county that is located wholly within a city.
Providing information to child protection services. Upon a
determination by a probation agency or department that its records
regarding an individual presently under the supervision of the agency or
department are relevant to an investigation of child abuse or
maltreatment conducted by a child protective service pursuant to title
six of article six of the social services law, the probation agency or
department shall provide the records or portions thereof determined to
be relevant to the child protective service conducting the
investigation. Each probation agency or department shall make provisions
for the transmission of records required to be provided under this
section.
Probation personnel; qualifications and duties. 1. Except as
may be otherwise specified in other provisions of law, all salaried
probation officers and their supervisors, including the director, of
every probation department, agency or service maintained by any county
or city shall be in the competitive class of the civil service. No
person shall be eligible for appointment as a probation officer or to a
position that involves the duty of supervising a probation officer, who
is under twenty-one years of age, or who has not had a high school
education, or equivalent education, or who is not physically, mentally
and morally fitted. Probation officers shall be selected because of
definite qualifications as to character, ability and training, and
primarily with respect to their capacity for rightly influencing human
behavior. The director of any probation department may appoint
non-salaried volunteer probation officers, provided they have the
qualifications required of salaried officers. The general rules
regulating methods and procedures in the administration of probation, as
may be adopted from time to time pursuant to section two hundred
forty-three of this chapter, may require additional minimum
qualifications for probation personnel and shall set forth procedures,
not inconsistent with this or other laws, to be followed in appointment
of all probation personnel.
2. The office of probation and correctional alternatives may when
necessary certify in writing the need of one or more salaried probation
officers to the official body charged with responsibility for
appropriating funds for support of government in the political
subdivision of the state wherein a probation department is located. Such
body shall then determine whether such need exists and if found to exist
it shall fix the salary of such probation officer and appropriate the
necessary funds, as well as provide for the necessary expenses of such
officer.
3. Each probation officer who collects or has custody of money, before
entering upon the duties of his or her office, shall execute a bond,
pursuant to the provisions of section eleven of the public officers law,
in a penal sum to be fixed by the local director of probation with
sufficient sureties approved thereby, conditioned for the honest
accounting for all money received by him or her as such probation
officer. In the discretion of the local director of probation, a
position scheduled bond covering all such probation officers may be
procured and executed in lieu of such individual bonds. The accounts of
all probation officers shall be subject to audit at any time by the
proper fiscal authorities and the office of probation and correctional
alternatives.
4. It shall be the duty of every probation officer to furnish to each
of his or her probationers a statement of the conditions of probation,
and to instruct him or her with regard thereto; to keep informed
concerning his or her conduct, habits, associates, employment,
recreation and whereabouts; to contact him or her at least once a month
pursuant to rules promulgated by the commissioner of the division of
criminal justice services; to aid and encourage him or her by friendly
advice and admonition; and by such other measures as may seem most
suitable to bring about improvement in his or her conduct, condition and
general attitude toward society. Probation officers shall report to the
head of the probation bureau or department who shall in turn report in
writing to the court and the office of probation and correctional
alternatives at least monthly or where there is no bureau or department,
directly to the court and the office of probation and correctional
alternatives concerning the conduct and condition of probationers; keep
records of their work as probation officers; keep accurate and complete
accounts of all money collected from probationers; give receipts
therefor and make prompt returns thereof at least monthly; aid in
securing employment; perform such other duties in connection with such
probationer as the court may direct or as required by the general rules
adopted pursuant to section two hundred forty-three of this chapter; and
make such reports to the office of probation and correctional
alternatives as it may require.
4-a. In the event a probationer ceases to participate in or is
unsuccessfully terminated from an alcohol or substance abuse program
ordered by the court as a condition of a sentence of probation pursuant
to section 410.10 of the criminal procedure law or section 65.10 of the
penal law, the probation officer shall immediately report said cessation
or termination to the local probation director. The local probation
director shall report said cessation or termination to the court within
ninety days, except where the probationer has resumed participation in
an alcohol or substance abuse program with the approval of the local
probation director. The local probation director shall include the fact
of any such report to the court in the next monthly written report to
the court and the state director of probation and correctional
alternatives as required pursuant to subdivision four of this section.
4-b. It shall be the duty of every probation officer to provide
written notice to probationers under the officer's supervision who may
be subject to any requirement to report to the office of victim services
any funds of a convicted person as defined in section six hundred
thirty-two-a of this chapter, the procedures for such reporting and any
potential penalty for a failure to comply.
5. Probation officers may require such reports by probationers as are
reasonable or necessary. Probation officers shall be peace officers.
6. (a) Notwithstanding subdivision one of this section, the director
of probation in counties with a population of more than three hundred
thousand, except counties wholly contained within a city, shall be in
the non-competitive class of civil service and shall be appointed by the
county executive with the approval of the local governing body. There
shall be one deputy director of probation, who shall be in the
non-competitive class of civil service. Such deputy shall be appointed
by the director of probation.
(b) No person shall be eligible for appointment as a director of
probation or deputy director of probation pursuant to subdivision one of
this section who does not meet the minimum qualification requirements
established for the position by the general rules regulating methods and
procedures in the administration of probation.
(c) The provisions of this subdivision shall not apply to any person
holding the office of director or deputy director of probation in any
such county on the effective date of this subdivision during the term of
such office.
Civil actions against local department volunteers. 1. For
the purposes of this section the term "volunteer" means a person
authorized by a local probation department's director of the volunteer
services program to participate in the local department's volunteer
services program.
2. A local probation department may provide an attorney for and pay
such attorney fees and expenses necessarily incurred in the defense of a
volunteer in any civil action commenced against him by reason of a claim
of alleged negligence or other act of such person arising out of and in
the course of participating in a local department volunteer services
program, and the local probation department may save harmless and
indemnify such person from financial loss arising out of any claim,
demand, suit of judgment by reason of the alleged negligence or other
act by such person provided that, at the time that such claim arose or
damages were sustained, such person was acting in the discharge of his
duties and within the scope of his authorized duties and that such claim
or cause of action or damages sustained did not result from the willful
and wrongful act or gross negligence of such person.
3. A local probation department which authorizes indemnification under
this section, however, shall not be subject to the obligations imposed
by this section unless such volunteer shall, within five days of the
time he is served with any summons, complaint, process, notice, demand
or pleading, deliver the original or a copy thereof to the local
department and unless such person shall cooperate fully with the local
probation department in the defense of said claim, demand or suit. Upon
such delivery the local probation department may assume control of the
representation of such person.
4. This section shall not in any way impair, limit or modify the
rights and obligations under any policy of insurance.
5. The benefits of this section shall inure only to volunteers and
shall not enlarge or diminish the rights of any other party.
Conditional releasees; duties of supervision. 1. It shall be
the duty of every probation officer to furnish each person who has been
ordered to his or her supervision pursuant to subdivision two of section
70.40 of the penal law, with a statement of the conditions of release
and to instruct such person with regard thereto; to keep informed
concerning such person's conduct, habits, associates, employments,
recreation and whereabouts; to contact such person pursuant to rules and
regulations promulgated by the division; to aid and encourage such
person by friendly advice and admonition and, by such other measures as
may seem most suitable, to bring about improvement in such person's
conduct, condition and general attitude toward society.
2. Probation officers shall report to the head of the local probation
department who shall in turn report in writing to the local conditional
release commission having custody of such person at least monthly
concerning the conduct and condition of persons conditionally released
pursuant to subdivision two of section 70.40 of the penal law; keep
records of their work as probation officers; keep accurate and complete
accounts of all money collected from such persons; give receipts
therefor and make prompt returns thereof at least monthly; aid in
securing employment; perform such other duties in connection with the
supervision of such persons as may be required by rules and regulations
promulgated by the division; and make any other reports to the division
as it may require.
3. If at any time during the period of supervision, a probation
officer has reasonable cause to believe a person conditionally released
pursuant to subdivision two of section 70.40 of the penal law has lapsed
into criminal ways or company, or has violated one or more conditions of
his or her release, such probation officer shall report such fact to a
member of the local conditional release commission having custody of
such person.
* § 257-c. Probation administrative fee. 1. Notwithstanding any other
provision of law, every county and the city of New York, may adopt a
local law requiring individuals currently serving or who shall be
sentenced to a period of probation upon conviction of any crime under
article thirty-one of the vehicle and traffic law to pay to the local
probation department with the responsibility of supervising the
probationer an administrative fee of thirty dollars per month. The
department shall waive all or part of such fee where, because of the
indigence of the offender, the payment of said surcharge would work an
unreasonable hardship on the person convicted, his or her immediate
family, or any other person who is dependent on such person for
financial support.
2. The provisions of subdivision six of section 420.10 of the criminal
procedure law shall govern for purposes of collection of the
administrative fee.
3. The probation administrative fee authorized by this section shall
not constitute nor be imposed as a condition of probation.
4. In the event of non-payment of any fees which have not been waived
by the local probation department, the county or the city of New York
may seek to enforce payment in any manner permitted by law for
enforcement of a debt.
5. Monies collected pursuant to this section shall be utilized for
probation services by the local probation department. Such moneys shall
not be considered by the division when determining state aid pursuant to
section two hundred forty-six of the executive law. Monies collected
shall not be used to replace federal funds otherwise utilized for
probation services.
* NB Expires September 1, 2027
Physical, mental and psychiatric examinations. Every county is
charged with the duty to provide when practicable clinical facilities,
and to adopt necessary rules for the use therefor, for such physical,
mental and psychiatric examinations and reports as may be within the
required scope of efficient probation investigation and supervision.
ARTICLE 12-B State Board of Parole
Definitions. When used in this article, the following terms
shall have the following meanings:
1. "Board" means the state board of parole.
2. "Commissioner" means the commissioner of the department of
corrections and community supervision.
3. "Community supervision" means the supervision of individuals
released into the community on temporary release, presumptive release,
parole, conditional release, post release supervision or medical parole.
4. "Department" means the department of corrections and community
supervision.
5. "Releasee" means an individual released from an institution under
the jurisdiction of the department into the community on temporary
release, presumptive release, parole, conditional release, post-release
supervision or medical parole.
6. "Technical violation" means any conduct that violates a condition
of community supervision in an important respect, other than the
commission of a new felony or misdemeanor offense under the penal law.
7. "Non-technical violation" means: (a) the commission of a new felony
or misdemeanor offense; or (b) conduct by a releasee who is serving a
sentence for an offense defined in article 130 of the penal law or
section 255.26 or 255.27 of such law, and such conduct violated a
specific condition reasonably related to such offense and efforts to
protect the public from the commission of a repeat of such offense.
8. "Absconding" means intentionally avoiding supervision by failing to
maintain contact or communication with the releasee's assigned community
supervision officer or area bureau office and to notify his or her
assigned community supervision officer or area bureau office of a change
in residence, and reasonable efforts by the assigned community
supervision officer to re-engage the releasee have been unsuccessful.
State board of parole; funding. The annual budget submitted
by the governor shall separately state the recommended appropriations
for the state board of parole. Upon enactment, these separately stated
appropriations for the state board of parole shall not be decreased by
interchange with any other appropriation, notwithstanding section
fifty-one of the state finance law.
State board of parole; organization. 1. There shall be in the
department a state board of parole which shall possess the powers and
duties hereinafter specified. The board shall function independently of
the department regarding all of its decision-making functions, as well
as any other powers and duties specified in this article, provided,
however, that administrative matters of general applicability within the
department shall be applicable to the board. Such board shall consist of
not more than nineteen members appointed by the governor with the advice
and consent of the senate. The term of office of each member of such
board shall be for six years; provided, however, that any member chosen
to fill a vacancy occurring otherwise than by expiration of term shall
be appointed for the remainder of the unexpired term of the member whom
he is to succeed. In the event of the inability to act of any member,
the governor may appoint some competent informed person to act in his
stead during the continuance of such disability.
2. Each member of the board shall either (a) have been awarded a
degree from an accredited four-year college or university or a graduate
degree from such college or university or accredited graduate school and
shall have had at least five years of experience in one or more of the
fields of criminology, administration of criminal justice, law
enforcement, sociology, law, social work, corrections, psychology,
psychiatry or medicine; or (b) have at least ten years of experience in
one or more of the fields of criminology, administration of criminal
justice, law enforcement, sociology, law, social work, corrections,
psychology, psychiatry or medicine.
3. The governor shall designate one of the members of the board as
chairman to serve in such capacity at the pleasure of the governor or
until the member's term of office expires and a successor is designated
in accordance with law, whichever first occurs. The chairman shall be
responsible for the administrative functions and daily operations of the
parole board and its staff, except as otherwise provided by law.
4. The members of the board shall not hold any other public office;
nor shall they, at any time of their appointment nor during their
incumbency, serve as a representative of any political party on an
executive committee or other governing body thereof, nor as an executive
officer or employee of any political committee, organization or
association.
5. Each member of the board shall receive for his services an annual
salary to be fixed by the governor within the amount appropriated
therefor. Each member of such board shall also receive his necessary
expenses actually incurred in the discharge of his duties.
6. Any member of the board may be removed by the governor for cause
after an opportunity to be heard.
7. Except as otherwise provided by law, a majority of the board shall
constitute a quorum for the transaction of all business of the board.
8. Members of the board shall devote their full time to their duties
and shall hold no other salaried public position.
State board of parole; functions, powers and duties. The
state board of parole shall: * 1. have the power and duty of determining
which incarcerated individuals serving an indeterminate or determinate
sentence of imprisonment may be released on parole, or on medical parole
pursuant to section two hundred fifty-nine-r or section two hundred
fifty-nine-s of this article, and when and under what conditions;
* NB Effective until September 1, 2027
* 1. have the power and duty of determining which incarcerated
individuals serving an indeterminate sentence of imprisonment may be
released on parole, or on medical parole pursuant to section two hundred
fifty-nine-r of this article, and when and under what conditions;
* NB Effective September 1, 2027
* 2. have the power and duty of determining the conditions of release
of the person who may be presumptively released, conditionally released
or subject to a period of post-release supervision under an
indeterminate or determinate sentence of imprisonment;
* NB Effective until September 1, 2027
* 2. have the power and duty of determining the conditions of release
of the person who may be conditionally released or subject to a period
of post-release supervision under an indeterminate or reformatory
sentence of imprisonment and of determining which incarcerated
individuals serving a definite sentence of imprisonment may be
conditionally released and when and under what conditions;
* NB Effective September 1, 2027
3. determine, as each incarcerated individual is received by the
department, the need for further investigation of the background of such
incarcerated individual. Upon such determination, the department shall
cause such investigation as may be necessary to be made as soon as
practicable, the results of such investigation together with all other
information compiled by the department and the complete criminal record
and family court record of such incarcerated individual to be filed so
as to be readily available when the parole of such incarcerated
individual is being considered;
4. establish written procedures for its use in making parole decisions
as required by law. Such written procedures shall incorporate risk and
needs principles to measure the rehabilitation of persons appearing
before the board, the likelihood of success of such persons upon
release, and assist members of the state board of parole in determining
which incarcerated individuals may be released to parole supervision;
5. through its members, officers and employees, study or cause to be
studied the incarcerated individuals confined in institutions over which
the board has jurisdiction, so as to determine their ultimate fitness to
be paroled;
6. have the power to revoke the community supervision status of any
person and to authorize the issuance of a warrant for the re-taking of
such persons;
8. have the power and perform the duty, when requested by the
governor, of reporting to the governor the facts, circumstances,
criminal records and social, physical, mental and psychiatric conditions
and histories of incarcerated individuals under consideration by the
governor for pardon or commutation of sentence and of applicants for
restoration of the rights of citizenship;
9. for the purpose of any investigation in the performance of duties
made by it or any member thereof, have the power to issue subpoenas, to
compel the attendance of witnesses and the production of books, papers,
and other documents pertinent to the subject of its inquiry;
10. have the power to authorize any members thereof and hearing
officers to administer oaths and take the testimony of persons under
oath;
11. make rules for the conduct of its work, a copy of such rules and
of any amendments thereto to be filed by the chairman with the secretary
of state;
12. to facilitate the supervision of all incarcerated individuals
released on community supervision the chairman of the state board of
parole shall consider the implementation of a program of graduated
sanctions, including but not limited to the utilization of a risk and
needs assessment instrument that would be administered to all
incarcerated individuals eligible for parole supervision. Such a program
would include various components including the use of alternatives to
incarceration for technical parole violations;
13. transmit a report of the work of the state board of parole for the
preceding calendar year to the governor and the legislature annually.
Such report shall include statistical information regarding the
demographics of persons granted release and considered for release to
community supervision or deportation, including but not limited to age,
gender, race, ethnicity, region of commitment and other relevant
categories of classification and commitment;
14. notwithstanding any other provision of law to the contrary, where
a person serving a sentence for an offense defined in article one
hundred thirty, one hundred thirty-five or two hundred sixty-three of
the penal law or section 255.25, 255.26 or 255.27 of the penal law and
the victim of such offense was under the age of eighteen at the time of
such offense or such person has been designated a level three sex
offender pursuant to subdivision six of section one hundred
sixty-eight-l of the correction law, is released on parole or
conditionally released pursuant to subdivision one or two of this
section, the board shall require, as a mandatory condition of such
release, that such sentenced offender shall refrain from knowingly
entering into or upon any school grounds, as that term is defined in
subdivision fourteen of section 220.00 of the penal law, or any other
facility or institution primarily used for the care or treatment of
persons under the age of eighteen while one or more of such persons
under the age of eighteen are present, provided however, that when such
sentenced offender is a registered student or participant or an employee
of such facility or institution or entity contracting therewith or has a
family member enrolled in such facility or institution, such sentenced
offender may, with the written authorization of his or her parole
officer and the superintendent or chief administrator of such facility,
institution or grounds, enter such facility, institution or upon such
grounds for the limited purposes authorized by the parole officer and
superintendent or chief officer. Nothing in this subdivision shall be
construed as restricting any lawful condition of supervision that may be
imposed on such sentenced offender.
15. Notwithstanding any other provision of law to the contrary, where
a person is serving a sentence for an offense for which registration as
a sex offender is required pursuant to subdivision two or three of
section one hundred sixty-eight-a of the correction law, and the victim
of such offense was under the age of eighteen at the time of such
offense or such person has been designated a level three sex offender
pursuant to subdivision six of section one hundred sixty-eight-l of the
correction law or the internet was used to facilitate the commission of
the crime, is released on parole or conditionally released pursuant to
subdivision one or two of this section, the board shall require, as
mandatory conditions of such release, that such sentenced offender shall
be prohibited from using the internet to access pornographic material,
access a commercial social networking website, communicate with other
individuals or groups for the purpose of promoting sexual relations with
persons under the age of eighteen, and communicate with a person under
the age of eighteen when such offender is over the age of eighteen,
provided that the board may permit an offender to use the internet to
communicate with a person under the age of eighteen when such offender
is the parent of a minor child and is not otherwise prohibited from
communicating with such child. Nothing in this subdivision shall be
construed as restricting any other lawful condition of supervision that
may be imposed on such sentenced offender. As used in this subdivision,
a "commercial social networking website" shall mean any business,
organization or other entity operating a website that permits persons
under eighteen years of age to be registered users for the purpose of
establishing personal relationships with other users, where such persons
under eighteen years of age may: (i) create web pages or profiles that
provide information about themselves where such web pages or profiles
are available to the public or to other users; (ii) engage in direct or
real time communication with other users, such as a chat room or instant
messenger; and (iii) communicate with persons over eighteen years of
age; provided, however, that, for purposes of this subdivision, a
commercial social networking website shall not include a website that
permits users to engage in such other activities as are not enumerated
herein.
15-a. Notwithstanding any other provision of law, where a person is
serving a sentence for a violation of section 120.03, 120.04, 120.04-a,
125.12, 125.13 or 125.14 of the penal law, or a felony as defined in
paragraph (c) of subdivision one of section eleven hundred ninety-three
of the vehicle and traffic law, if such person is released on parole or
conditional release the board shall require as a mandatory condition of
such release, that such person install and maintain, in accordance with
the provisions of section eleven hundred ninety-eight of the vehicle and
traffic law, an ignition interlock device in any motor vehicle owned or
operated by such person during the term of such parole or conditional
release for such crime. Provided further, however, the board may not
otherwise authorize the operation of a motor vehicle by any person whose
license or privilege to operate a motor vehicle has been revoked
pursuant to the provisions of the vehicle and traffic law.
16. determine which incarcerated individuals serving a definite
sentence of imprisonment may be conditionally released from an
institution in which he or she is confined in accordance with
subdivision two of section 70.40 of the penal law.
17. within amounts appropriated, appoint attorneys to serve as its
legal advisors. Such attorneys shall report directly to the board,
provided, however, that administrative matters of general applicability
within the department shall be applicable to such attorneys.
Hearing officers. 1. The state board of parole shall appoint
and shall have the power to remove, in accordance with the provisions of
the civil service law, hearing officers who shall be authorized to
conduct parole revocation proceedings. Hearing officers shall function
independently of the department regarding all of their decision-making
functions, and shall report directly to the board, provided, however,
that administrative matters of general applicability within the
department shall be applicable to all hearing officers. A hearing
officer conducting such proceedings shall, when delegated such authority
by the board in rules adopted by the board, be required to make a
written decision in accordance with standards and rules adopted by the
board. Nothing in this article shall be deemed to preclude a member of
the state board of parole from exercising all of the functions, powers
and duties of a hearing officer upon request of the chairman.
2. The board, acting in cooperation with the civil service commission,
shall establish standards, preliminary requisites and requisites to
govern the selection, appointment and removal of hearing officers. Such
standards and requisites shall be designed to assure that persons
selected as hearing officers have the ability to conduct parole
revocation proceedings fairly and impartially. Such standards shall not
require prior experience as a parole officer. The board shall have the
authority to establish procedures necessary to implement this section.
Institutional parole services. The department shall provide
institutional parole services. Such services shall include preparation
of reports and other data required by the state board of parole in the
exercise of its functions with respect to release on presumptive
release, parole, conditional release or post-release supervision of
incarcerated individuals. Additionally, the department shall determine
which incarcerated individuals are in need of a deaf language
interpreter or an English language interpreter, and shall inform the
board of such need within a reasonable period of time prior to an
incarcerated individual's scheduled appearance before the board.
Employees of the department who collect data, interview incarcerated
individuals and prepare reports for the state board of parole in
institutions under the jurisdiction of the department shall work under
the direct supervision of the deputy commissioner of the department in
charge of program services. Data and reports submitted to the board
shall address the statutory factors to be considered by the board
pursuant to the relevant provisions of section two hundred fifty-nine-i
of this article.
Parole eligibility for certain incarcerated individuals
sentenced for crimes committed prior to September first, nineteen
hundred sixty-seven. 1. The provisions of this subdivision shall apply
in any case where a person is under one or more of the following
sentences imposed pursuant to the penal law in effect prior to September
first, nineteen hundred sixty-seven:
(a) Life imprisonment for the crime of murder in the first degree
pursuant to section ten hundred forty-five or ten hundred forty-five-a
of such law;
(b) Life imprisonment for the crime of kidnapping pursuant to section
twelve hundred fifty of such law; or
(c) Death commuted to life imprisonment for the crime of murder in the
first degree or for the crime of kidnapping pursuant to one of the above
sections.
Any such person who is not otherwise or who will not sooner become
eligible for release on parole under such sentence shall be or become
eligible for release on parole after service of a minimum period of
imprisonment of twenty years.
2. The provisions of this subdivision shall apply in any case where a
person is under one or more of the following sentences imposed pursuant
to the penal law in effect prior to September first, nineteen hundred
sixty-seven:
(a) A minimum term of twenty years or more and a maximum of natural
life for the crime of murder in the second degree pursuant to section
ten hundred forty-eight of such law;
(b) A minimum term of twenty years or more and a maximum of natural
life for the crime of kidnapping imposed pursuant to section twelve
hundred fifty of such law;
(c) A minimum term of fifteen years or more and a maximum of natural
life for a third conviction of a felony under laws relating to narcotic
drugs pursuant to section nineteen hundred forty-one of such law; or
(d) A minimum term of fifteen years or more and a maximum of natural
life for a fourth conviction of a felony pursuant to section nineteen
hundred forty-two of such law.
Any person who is not otherwise or who will not sooner become eligible
for release on parole under such sentence shall be or become eligible
for release on parole after service of a minimum period of imprisonment
of fifteen years.
3. The provisions of this subdivision shall apply in any case where a
person is under a sentence imposed pursuant to the penal law in effect
prior to September first, nineteen hundred sixty-seven, other than a
sentence specified in subdivisions one and two of this section. Any
person who is not otherwise or who will not sooner become eligible for
release on parole shall be or become eligible for release on parole
under such sentence after service of a minimum period of imprisonment of
eight years and four months.
Notwithstanding the provisions of subdivisions one and two hereof,
incarcerated individuals convicted of murder, second degree, and
sentenced pursuant to the provisions of the penal law in effect prior to
September first, nineteen hundred sixty-seven, who are not otherwise or
who will not sooner become eligible for release on parole, shall be
eligible for release on parole under such sentence after service of a
minimum period of imprisonment of eight years and four months.
4. In calculating time required to be served prior to eligibility for
parole under the minimum periods of imprisonment established by this
section the following rules shall apply:
(a) Service of such time shall be deemed to have commenced on the day
the incarcerated individual was received in an institution under the
jurisdiction of the department pursuant to the sentence;
(b) Where an incarcerated individual is under more than one sentence,
(i) if the sentences run concurrently, the time served under
imprisonment on any of the sentences shall be credited against the
minimum periods of all the concurrent sentences, and (ii) if the
sentences run consecutively, the minimum periods of imprisonment shall
merge in and be satisfied by service of the period that has the longest
unexpired time to run;
(c) No credit shall be allowed for "good conduct and efficient and
willing performance of duties," under former section two hundred thirty
of the correction law, repealed by chapter four hundred seventy-six of
the laws of nineteen hundred seventy and continued in effect as to
certain incarcerated individuals, or under any other provision of law;
(d) Calculations with respect to "jail time" "time served under
vacated sentence" and interruption for "escape" shall be in accordance
with the provisions of subdivisions three, five and six of section 70.30
of the penal law as enacted by chapter ten hundred thirty of the laws of
nineteen hundred sixty-five, as amended.
5. The provisions of this section shall not be construed as
diminishing the discretionary authority of the board of parole to
determine whether or not an incarcerated individual is to be paroled.
Procedures for the conduct of the work of the state board of
parole.
2. Parole. * (a) (i) Except as provided in subparagraph (ii) of this
paragraph, at least one month prior to the date on which an incarcerated
individual may be paroled pursuant to subdivision one of section 70.40
of the penal law, a member or members as determined by the rules of the
board shall personally interview such incarcerated individual and
determine whether he or she should be paroled in accordance with the
guidelines adopted pursuant to subdivision four of section two hundred
fifty-nine-c of this article. If parole is not granted upon such review,
the incarcerated individual shall be informed in writing within two
weeks of such appearance of the factors and reasons for such denial of
parole. Such reasons shall be given in detail and not in conclusory
terms. The board shall specify a date not more than twenty-four months
from such determination for reconsideration, and the procedures to be
followed upon reconsideration shall be the same. If the incarcerated
individual is released, he or she shall be given a copy of the
conditions of parole. Such conditions shall where appropriate, include a
requirement that the parolee comply with any restitution order,
mandatory surcharge, sex offender registration fee and DNA databank fee
previously imposed by a court of competent jurisdiction that applies to
the parolee. The conditions shall indicate which restitution collection
agency established under subdivision eight of section 420.10 of the
criminal procedure law, shall be responsible for collection of
restitution, mandatory surcharge, sex offender registration fees and DNA
databank fees as provided for in section 60.35 of the penal law and
section eighteen hundred nine of the vehicle and traffic law. If the
incarcerated individual is released, he or she shall also be notified in
writing that his or her voting rights will be restored upon release.
(ii) Any incarcerated individual who is scheduled for presumptive
release pursuant to section eight hundred six of the correction law
shall not appear before the board as provided in subparagraph (i) of
this paragraph unless such incarcerated individual's scheduled
presumptive release is forfeited, canceled, or rescinded subsequently as
provided in such law. In such event, the incarcerated individual shall
appear before the board for release consideration as provided in
subparagraph (i) of this paragraph as soon thereafter as is practicable.
* NB Effective until September 1, 2027
* (a) At least one month prior to the expiration of the minimum period
or periods of imprisonment fixed by the court or board, a member or
members as determined by the rules of the board shall personally
interview an incarcerated individual serving an indeterminate sentence
and determine whether he or she should be paroled at the expiration of
the minimum period or periods in accordance with the procedures adopted
pursuant to subdivision four of section two hundred fifty-nine-c of this
article. If parole is not granted upon such review, the incarcerated
individual shall be informed in writing within two weeks of such
appearance of the factors and reasons for such denial of parole. Such
reasons shall be given in detail and not in conclusory terms. The board
shall specify a date not more than twenty-four months from such
determination for reconsideration, and the procedures to be followed
upon reconsideration shall be the same. If the incarcerated individual
is released, he or she shall be given a copy of the conditions of
parole. Such conditions shall where appropriate, include a requirement
that the parolee comply with any restitution order and mandatory
surcharge previously imposed by a court of competent jurisdiction that
applies to the parolee. The conditions shall indicate which restitution
collection agency established under subdivision eight of section 420.10
of the criminal procedure law, shall be responsible for collection of
restitution and mandatory surcharge as provided for in section 60.35 of
the penal law and section eighteen hundred nine of the vehicle and
traffic law. If the incarcerated individual is released, he or she shall
also be notified in writing that his or her voting rights will be
restored upon release.
* NB Effective September 1, 2027
(b) Persons presumptively released, paroled, conditionally released or
released to post-release supervision from an institution under the
jurisdiction of the department, the department of mental hygiene or the
office of children and family services shall, while on presumptive
release, parole, conditional release or post-release supervision, be in
the legal custody of the department until expiration of the maximum term
or period of sentence, or expiration of the period of supervision,
including any period of post-release supervision, or return to
imprisonment in the custody of the department, as the case may be.
(c) (A) Discretionary release on parole shall not be granted merely as
a reward for good conduct or efficient performance of duties while
confined but after considering if there is a reasonable probability
that, if such incarcerated individual is released, he or she will live
and remain at liberty without violating the law, and that his or her
release is not incompatible with the welfare of society and will not so
deprecate the seriousness of his or her crime as to undermine respect
for law. In making the parole release decision, the procedures adopted
pursuant to subdivision four of section two hundred fifty-nine-c of this
article shall require that the following be considered: (i) the
institutional record including program goals and accomplishments,
academic achievements, vocational education, training or work
assignments, therapy and interactions with staff and incarcerated
individuals; (ii) performance, if any, as a participant in a temporary
release program; (iii) release plans including community resources,
employment, education and training and support services available to the
incarcerated individual; (iv) any deportation order issued by the
federal government against the incarcerated individual while in the
custody of the department and any recommendation regarding deportation
made by the commissioner of the department pursuant to section one
hundred forty-seven of the correction law; (v) any current or prior
statement made to the board by the crime victim or the victim's
representative, where the crime victim is deceased or is mentally or
physically incapacitated; (vi) the length of the determinate sentence to
which the incarcerated individual would be subject had he or she
received a sentence pursuant to section 70.70 or section 70.71 of the
penal law for a felony defined in article two hundred twenty or article
two hundred twenty-one of the penal law; (vii) the seriousness of the
offense with due consideration to the type of sentence, length of
sentence and recommendations of the sentencing court, the district
attorney, the attorney for the incarcerated individual, the pre-sentence
probation report as well as consideration of any mitigating and
aggravating factors, and activities following arrest prior to
confinement; and (viii) prior criminal record, including the nature and
pattern of offenses, adjustment to any previous probation or parole
supervision and institutional confinement. The board shall provide toll
free telephone access for crime victims. In the case of an oral
statement made in accordance with subdivision one of section 440.50 of
the criminal procedure law, the parole board member shall present a
written report of the statement to the parole board. A crime victim's
representative shall mean the crime victim's closest surviving relative,
the committee or guardian of such person, or the legal representative of
any such person. Such statement submitted by the victim or victim's
representative may include information concerning threatening or
intimidating conduct toward the victim, the victim's representative, or
the victim's family, made by the person sentenced and occurring after
the sentencing. Such information may include, but need not be limited
to, the threatening or intimidating conduct of any other person who or
which is directed by the person sentenced. Any statement by a victim or
the victim's representative made to the board shall be maintained by the
department in the file provided to the board when interviewing the
incarcerated individual in consideration of release. A victim or
victim's representative who has submitted a written request to the
department for the transcript of such interview shall be provided such
transcript as soon as it becomes available.
(B) Where a crime victim or victim's representative as defined in
subparagraph (A) of this paragraph, or other person submits to the
parole board a written statement concerning the release of an
incarcerated individual, the parole board shall keep that individual's
name and address confidential.
(d) (i) Notwithstanding the provisions of paragraphs (a), (b) and (c)
of this subdivision, after the incarcerated individual has served his or
her minimum period of imprisonment imposed by the court, or at any time
after the incarcerated individual's period of imprisonment has commenced
for an incarcerated individual serving a determinate or indeterminate
term of imprisonment, provided that the incarcerated individual has had
a final order of deportation issued against him or her and provided
further that the incarcerated individual is not convicted of either an
A-I felony offense other than an A-I felony offense as defined in
article two hundred twenty of the penal law or a violent felony offense
as defined in section 70.02 of the penal law, if the incarcerated
individual is subject to deportation by the United States Bureau of
Immigration and Customs Enforcement, in addition to the criteria set
forth in paragraph (c) of this subdivision, the board may consider, as a
factor warranting earlier release, the fact that such incarcerated
individual will be deported, and may grant parole from an indeterminate
sentence or release for deportation from a determinate sentence to such
incarcerated individual conditioned specifically on his or her prompt
deportation. The board may make such conditional grant of early parole
from an indeterminate sentence or release for deportation from a
determinate sentence only where it has received from the United States
Bureau of Immigration and Customs Enforcement assurance (A) that an
order of deportation will be executed or that proceedings will promptly
be commenced for the purpose of deportation upon release of the
incarcerated individual from the custody of the department of
correctional services, and (B) that the incarcerated individual, if
granted parole or release for deportation pursuant to this paragraph,
will not be released from the custody of the United States Bureau of
Immigration and Customs Enforcement, unless such release be as a result
of deportation without providing the board a reasonable opportunity to
arrange for execution of its warrant for the retaking of such person.
(ii) An incarcerated individual who has been granted parole from an
indeterminate sentence or release for deportation from a determinate
sentence pursuant to this paragraph shall be delivered to the custody of
the United States Bureau of Immigration and Customs Enforcement along
with the board's warrant for his or her retaking to be executed in the
event of his release from such custody other than by deportation. In the
event that such person is not deported, the board shall execute the
warrant, effect his return to imprisonment in the custody of the
department and within sixty days after such return, provided that the
person is serving an indeterminate sentence and the minimum period of
imprisonment has been served, personally interview him or her to
determine whether he or she should be paroled in accordance with the
provisions of paragraphs (a), (b) and (c) of this subdivision. The
return of a person granted parole from an indeterminate sentence or
release for deportation from a determinate sentence pursuant to this
paragraph for the reason set forth herein shall not be deemed to be a
parole delinquency and the interruptions specified in subdivision three
of section 70.40 of the penal law shall not apply, but the time spent in
the custody of the United States Bureau of Immigration and Customs
Enforcement shall be credited against the term of the sentence in
accordance with the rules specified in paragraph (c) of that
subdivision. Notwithstanding any other provision of law, any
incarcerated individual granted parole from an indeterminate sentence or
release for deportation from a determinate sentence pursuant to this
paragraph who is subsequently committed to imprisonment in the custody
of the department for a felony offense committed after release pursuant
to this paragraph shall have his parole eligibility date on the
indeterminate sentence for the new felony offense, or his or her
conditional release date on the determinate sentence for the new felony
offense, as the case may be, extended by the amount of time between the
date on which such incarcerated individual was released from
imprisonment in the custody of the department pursuant to this paragraph
and the date on which such incarcerated individual would otherwise have
completed service of the minimum period of imprisonment on the prior
felony offense.
(e) Notwithstanding the requirements of paragraph (a) of this
subdivision, the determination to parole an incarcerated individual who
has successfully completed the shock incarceration program pursuant to
section eight hundred sixty-seven of the correction law may be made
without a personal interview of the incarcerated individual and shall be
made in accordance with procedures set forth in the rules of the board.
If parole is not granted, the time period for reconsideration shall not
exceed the court imposed minimum.
3. Revocation of presumptive release, parole, conditional release and
post-release supervision. (a) (i) If the parole officer having charge of
a presumptively released, paroled or conditionally released person or a
person released to post-release supervision or a person received under
the uniform act for out-of-state parolee supervision shall have probable
cause to believe that such person has committed a technical violation,
such parole officer shall report such fact to a member of the board, or
to any officer of the department designated by the board, and thereupon
a written notice of violation may be issued according to the terms of
subparagraph (iii) of paragraph (c) of this subdivision, and shall be
promptly served upon such person. If the releasee has failed to appear
as directed in response to a notice of violation and has failed to
appear voluntarily within forty-eight hours after such time and the
person would be subject to incarceration pursuant to subparagraph (xii)
of paragraph (f) of this subdivision should the violation be sustained
at a final revocation hearing, a warrant may be issued for the retaking
of such person and for his temporary detention pending a recognizance
hearing in accordance with the rules of the board. If the person has
intentionally failed to appear as directed in response to a notice of
violation and has intentionally failed to appear voluntarily within
forty-eight hours after such time and the person would not be subject to
incarceration pursuant to paragraph (f) of this subdivision should the
violation be sustained at a final revocation hearing, no warrant shall
issue and the violation shall be deemed sustained. Notice of that
decision shall be promptly served upon the releasee. In such case,
within one month of the date the notice of decision was served upon the
releasee, the releasee may move to vacate such a sustained violation if
the releasee can show by a preponderance of the evidence that the notice
of violation was not properly served or the failure to appear was
otherwise excusable. If the parole officer having charge of a person
under community supervision shall have probable cause to believe that
such person has committed a non-technical violation, such parole officer
shall report such fact to a member of the board, or to any officer of
the department designated by the board, and thereupon a notice of
violation may be issued or a warrant may be issued for the retaking of
such person and for his temporary detention in accordance with the rules
of the board. However, if a releasee has been determined to be currently
unfit to proceed to trial or is currently subject to a temporary or
final order of observation pursuant to article seven hundred thirty of
the criminal procedure law, no notice of violation or warrant shall be
issued. The issuance of a notice of violation, service of a notice of
violation, service of a notice of decision, and the retaking and
detention of any person for whom a warrant has been issued pursuant to
this subparagraph may be further regulated by rules and regulations of
the department not inconsistent with this article. A warrant issued
pursuant to this section shall constitute sufficient authority to the
superintendent or other person in charge of any jail, penitentiary,
lockup or detention pen to whom it is delivered to hold in temporary
detention the person named therein pending a recognizance hearing
pursuant to subparagraph (iv) of this paragraph. It shall not be a
condition of parole nor may a notice of violation or a warrant be issued
due to a releasee being in the company of or fraternizing with any
person the releasee knows has a criminal record or knows has been
adjudicated a youthful offender or due to conduct related to cannabis
that is lawful pursuant to the laws of New York.
(ii) A warrant issued for a presumptive release, a parole, a
conditional release or a post-release supervision violator may be
executed by any parole officer or any officer authorized to serve
criminal process or any peace officer, who is acting pursuant to his
special duties, or police officer. Any such officer to whom such warrant
shall be delivered is authorized and required to execute such warrant by
taking such person and having him detained as provided in this
paragraph.
(iii) Where the alleged violator is detained in another state pursuant
to such warrant and is not under parole supervision pursuant to the
uniform act for out-of-state parolee supervision or where an alleged
violator under parole supervision pursuant to the uniform act for
out-of-state parolee supervision is detained in a state other than the
receiving state, the warrant will not be deemed to be executed until the
alleged violator is detained exclusively on the basis of such warrant
and the department has received notification that the alleged violator
(A) has formally waived extradition to this state or (B) has been
ordered extradited to this state pursuant to a judicial determination.
The alleged violator will not be considered to be within the convenience
and practical control of the department until the warrant is deemed to
be executed.
(iv) Notwithstanding the provisions of any other law, upon execution
of a warrant issued pursuant to this section for any releasee alleged to
have committed a violation of a condition of release in an important
respect in the city of New York, the authorized officer shall present
the releasee to the criminal court of the city of New York or the
supreme court criminal term in the county where the violation is alleged
to have been committed for a recognizance hearing within twenty-four
hours of the execution of the warrant. If no such court of record is
available to conduct any business of any type within twenty-four hours
of the execution of the warrant, the recognizance hearing shall commence
on the next day such a court in the jurisdiction is available to conduct
any business of any type. For any releasee alleged to have committed a
violation of a condition of release in an important respect outside of
the city of New York, the authorized officer shall present the releasee
to a county court, district court or city court in the county or city
where the violation is alleged to have been committed for a recognizance
hearing. If no such court of record is available to conduct any business
of any type within twenty-four hours of the execution of the warrant,
the recognizance hearing shall commence on the next day such court is
available to conduct any business of any type.
(v) At a recognizance hearing, the department shall have the burden of
demonstrating to the court that the executed warrant was properly issued
and served pursuant to this section. The department shall be responsible
for presenting information to the court regarding the alleged violation
and the releasee's community supervision record. If the alleged
violation is the subject of a pending criminal prosecution, the
department shall coordinate with the office of the district attorney to
ensure information regarding the alleged violation and the releasee's
community supervision record is presented to the court. At a
recognizance hearing, the department shall have the burden of
demonstrating to the court that the executed warrant was properly issued
and served pursuant to this section. The department shall be responsible
for presenting information to the court regarding the alleged violation
and the releasee's community supervision record. If the alleged
violation is the subject of a pending criminal prosecution, the
department shall coordinate with the office of the district attorney to
ensure information regarding the alleged violation and the releasee's
community supervision record is presented to the court.
(vi) At a recognizance hearing, the court shall consider all available
evidence of the releasee's employment, family and community ties
including length of residency in the community, history of reporting in
a timely fashion to a parole or supervisory officer, and other
indicators of stability. At the conclusion of the recognizance hearing,
the court may order that the releasee be detained pending a preliminary
or final revocation hearing only upon a finding that the releasee
currently presents a substantial risk of willfully failing to appear at
the preliminary or final revocation hearings and that no non-monetary
condition or combination of conditions in the community will reasonably
assure the releasee's appearance at the preliminary or final revocation
hearing. Otherwise, the court shall release the releasee on the least
restrictive non-monetary conditions that will reasonably assure the
releasee's appearance at subsequent preliminary or revocation hearings,
with a presumption of release on recognizance. The court shall explain
its decision on the record or in writing. If non-monetary conditions of
release are imposed, the releasee shall not be required to pay for any
part of the cost of such conditions.
(vii) The alleged violator shall have a right to representation by
counsel at the recognizance hearing. In any case, including when a court
is called upon to evaluate the capacity of an alleged violator to
participate in a recognizance proceeding, where such person is
financially unable to retain counsel, the court in which any criminal
case against the individual is pending, or if there is no such case
pending, the criminal court of the city of New York, the county court or
district court in the county where the violation is alleged to have
occurred or where the hearing is to be held, shall assign counsel in
accordance with the county or city plan for representation placed in
operation pursuant to article eighteen-B of the county law.
(viii) If the violation charge involves conduct that would constitute
a new felony or misdemeanor offense, such recognizance hearing may be
held at the same time as a proceeding pursuant to article five hundred
thirty of the criminal procedure law for any warrants issued by the
department prior to such proceeding. If at the proceeding pursuant to
article five hundred thirty of the criminal procedure law the court
imposes bail on the new alleged criminal offense or commits the releasee
to the custody of the sheriff pursuant to article five hundred thirty of
the criminal procedure law and the releasee secures release by paying
bail or under non-monetary conditions or by operation of law, then the
releasee shall not be detained further based solely on the warrant
issued by the department. If the department issues a warrant for a
non-technical violation for alleged criminal conduct that has already
been the subject of a court's order pursuant to article five hundred
thirty of the criminal procedure law, then within twenty-four hours of
execution of the warrant the releasee shall be provided a recognizance
hearing pursuant to this subparagraph, provided, however, that if no
court as defined in subparagraph (iv) of this paragraph is available to
conduct any business of any type within twenty-four hours of the
execution of the warrant, then the recognizance hearing shall commence
on the next day such court is available to conduct any business of any
type.
(b) A person who shall have been taken into custody pursuant to this
subdivision for violation of one or more conditions of presumptive
release, parole, conditional release or post-release supervision shall,
insofar as practicable, be incarcerated in the county or city in which
the arrest occurred.
(c) (i) (A) For any alleged technical violation for which a notice of
violation was issued or a person was released on recognizance pursuant
to subparagraph (iv) of paragraph (a) of this subdivision, the
department shall within ten days of the issuance of the notice of
violation or the order of release on recognizance afford the person a
preliminary revocation hearing before a hearing officer designated by
the department. Such hearing officer shall not have had any prior
supervisory involvement over the alleged violator. Such hearing shall
not be held at a correctional facility, detention center or local
correctional facility. The hearing shall be scheduled and held in a
courthouse, in cooperation with the chief administrator of the courts
and the chief administrator's designees, provided, however, that if such
a courthouse is not reasonably available for such hearing, the
department may designate a suitable office or other similar facility
that is not a correctional facility, detention center or local
correctional facility for such hearing.
(B) For any alleged violation for which a court issued an order
detaining a person, within five days of the issuance of such order to
detain or execution of a warrant for the violation, the department shall
afford such person a preliminary hearing before a hearing officer
designated by the department. Such hearing officer shall not have had
any prior supervisory involvement over the alleged violator. For any
alleged violation for which a person was released on recognizance,
within ten days of the issuance of the order of release on recognizance,
the department shall afford such person a preliminary revocation
hearing.
(ii) The preliminary presumptive release, parole, conditional release
or post-release supervision revocation hearing shall be scheduled and
held in a courthouse, in cooperation with the chief administrator of the
courts and the chief administrator's designees, provided, however, that
if such a courthouse is not reasonably available for such hearing, the
department may designate a suitable office or other similar facility
that is not a correctional facility, detention center or local
correctional facility for such hearing.
(iii) The alleged violator shall, at the time a notice of violation is
issued or at the time of a recognizance hearing, be given written notice
of the time, place and purpose of the preliminary hearing, or if no
preliminary hearing is required pursuant to this section, of the final
revocation hearing. The notice shall state what conditions of community
supervision are alleged to have been violated, and in what manner; that
such person shall have the right to appear and speak in his or her own
behalf; that he or she shall have the right to introduce letters and
documents; that he or she may present witnesses who can give relevant
information to the hearing officer; that he or she has the right to
confront the witnesses against him or her; that such person shall have
the right to representation by counsel at any preliminary and final
revocation hearings; and the name and contact details for institutional
defenders or assigned private counsel, as applicable. Adverse witnesses
may be compelled to attend the preliminary hearing unless the prisoner
has been convicted of a new crime while on supervision or unless the
hearing officer finds good cause for their non-attendance. As far as
practicable or feasible, any additional documents having been collected
or prepared that are relevant to the charge shall be delivered to the
alleged violator.
(iv) The standard of proof at the preliminary hearing shall be a
preponderance of the evidence to believe that the releasee has violated
one or more conditions of his or her community supervision in an
important respect. Proof of conviction of a crime committed while under
supervision shall constitute prima facie evidence of a violation of a
condition of community supervision for the purposes of this
subparagraph.
(v) At the preliminary hearing, the hearing officer shall review the
violation charges with the alleged violator, direct the presentation of
evidence concerning the alleged violation, receive the statements of
witnesses and documentary evidence on behalf of the prisoner, and allow
cross examination of those witnesses in attendance.
(vi) At the conclusion of the preliminary hearing, the hearing officer
shall inform the alleged violator of his or her decision as to whether
there is probable cause to believe that the presumptive releasee,
parolee, conditional releasee or person on post-release supervision has
violated one or more conditions of his or her release in an important
respect. Based solely on the evidence adduced at the hearing, the
hearing officer shall determine whether there is probable cause to
believe that such person has violated his or her presumptive release,
parole, conditional release or post-release supervision in an important
respect. The hearing officer shall in writing state the reasons for his
or her determination and the evidence relied on. A copy of the written
findings shall be sent to both the alleged violator and his or her
counsel.
(vii) If the hearing officer is satisfied that there is no probable
cause to believe that such person has violated one or more conditions of
release in an important respect, he or she shall dismiss the notice of
violation and direct such person be restored to supervision.
(viii) If the hearing officer is satisfied that there is probable
cause to believe that such person has violated one or more conditions of
release in an important respect, he or she shall so find.
(ix) If the hearing officer finds by a preponderance of the evidence
that such person has violated one or more conditions of community
supervision in an important respect, the releasee shall, at the
conclusion of the preliminary hearing be given written notice of the
time, place and purpose of the final revocation hearing. The notice
shall state what conditions of community supervision are alleged to have
been violated, when, where and in what manner; that such person shall
have the right to representation by counsel at any final revocation
hearing; that such person shall have the right to appear and speak in
his or her own behalf; that he or she shall have the right to introduce
letters and documents; that he or she may present witnesses who can give
relevant information to the hearing officer; that he or she has the
right to confront the witnesses against him or her; and the name and
contact details for institutional defenders or assigned private counsel,
as applicable. Any additional documents having been collected or
prepared that support the charges shall be delivered to the releasee.
Adverse witnesses may be compelled to attend the final revocation
hearing unless the prisoner has been convicted of a new crime while on
supervision or unless the hearing officer finds good cause for their
non-attendance.
(x) The alleged violator shall have a right to representation by
counsel at the preliminary hearing. In any case, including when a court
is called upon to evaluate the capacity of an alleged violator in a
preliminary proceeding, where such person is financially unable to
retain counsel, the criminal court of the city of New York, the county
court or district court in the county where the violation is alleged to
have occurred or where the hearing is held, shall assign counsel in
accordance with the county or city plan for representation placed in
operation pursuant to article eighteen-B of the county law.
* (d) If a finding of probable cause is made pursuant to this
subdivision either by a determination at a preliminary hearing or by the
waiver thereof, or if the releasee has been convicted of a new crime
while under presumptive release, parole, conditional release or
post-release supervision, the board's rules shall provide for (i)
declaring such person to be delinquent as soon as practicable and shall
require reasonable and appropriate action to make a final determination
with respect to the alleged violation or (ii) ordering such person to be
restored to presumptive release, parole, conditional release or
post-release supervision under such circumstances as it may deem
appropriate or (iii) when a presumptive releasee, parolee, conditional
releasee or person on post-release supervision has been convicted of a
new felony committed while under such supervision and a new
indeterminate or determinate sentence has been imposed, the board's
rules shall provide for a final declaration of delinquency. The
incarcerated individual shall then be notified in writing that his or
her release has been revoked on the basis of the new conviction and a
copy of the commitment shall accompany said notification. The
incarcerated individual's next appearance before the board shall be
governed by the legal requirements of said new indeterminate or
determinate sentence, or shall occur as soon after a final reversal of
the conviction as is practicable.
* NB Effective until September 1, 2027
* (d) If a finding of probable cause is made pursuant to this
subdivision either by determination at a preliminary hearing or by the
waiver thereof, or if the releasee has been convicted of a new crime
while under his present parole or conditional release supervision, the
board's rules shall provide for (i) declaring such person to be
delinquent as soon as practicable and shall require reasonable and
appropriate action to make a final determination with respect to the
alleged violation or (ii) ordering such person to be restored to parole
supervision under such circumstances as it may deem appropriate or (iii)
when a parolee or conditional releasee has been convicted of a new
felony committed while under his or her present parole or conditional
release supervision and a new indeterminate sentence has been imposed,
the board's rules shall provide for a final declaration of delinquency.
The incarcerated individual shall then be notified in writing that his
or her release has been revoked on the basis of the new conviction and a
copy of the commitment shall accompany said notification. The
incarcerated individual's next appearance before the board shall be
governed by the legal requirements of said new indeterminate sentence,
or shall occur as soon after a final reversal of the conviction as is
practicable.
* NB Effective September 1, 2027
(e) (i) If the alleged violator requests a local revocation hearing,
he or she shall be given a revocation hearing reasonably near the place
of the alleged violation or arrest if he or she has not been convicted
of a crime committed while under supervision. However, the board may, on
its own motion, designate a case for a local revocation hearing.
(ii) If there are two or more alleged violations, the hearing may be
conducted near the place of the violation chiefly relied upon as a basis
for the issuance of the warrant as determined by the board.
(iii) If a local revocation hearing is not ordered pursuant to
subparagraph (i) of this paragraph the alleged violator shall be given a
revocation hearing upon his or her return to a state correctional
facility.
(f) (i) For any releasee charged with a violation at a preliminary
hearing:
(A) If a court issued an order detaining a person after a finding by a
preponderance of the evidence that such person committed a violation
then within thirty days of the finding by a preponderance of the
evidence determination at the preliminary hearing, the department shall
afford such person a final revocation hearing in person before a hearing
officer designated by the department. Such hearing officer shall not
have had any prior supervisory involvement over the alleged violator.
(B) (1) If a notice of violation was issued or such person was
released on recognizance the department shall within forty-five days of
the issuance of the notice of violation or the order of release on
recognizance afford the person a final revocation hearing before a
hearing officer designated by the department. Such hearing officer shall
not have had any prior supervisory involvement over the alleged
violator.
(2) The final revocation hearing shall not be held at a correctional
facility, detention center or local correctional facility. Such hearing
shall be scheduled and held in a courthouse, in cooperation with the
chief administrator of the courts and the chief administrator's
designees, provided, however, that if such a courthouse is not
reasonably available for such hearing, the department may designate a
suitable office or other similar facility that is not a correctional
facility, detention center or local correctional facility for such
hearing.
(3) The department shall have six months from the date of the
effective date of the chapter of the laws of two thousand twenty-one
that amended this paragraph to begin to hold such hearings at allowable
locations.
(C) However, if an alleged violator requests and receives any
postponement of his or her revocation hearing, or consents to a
postponed revocation proceeding initiated by the board, or if an alleged
violator, by his actions otherwise precludes the prompt conduct of such
proceedings, the time limit may be extended.
(ii) The revocation hearing shall be conducted by a presiding officer
who may be a member or a hearing officer designated by the board in
accordance with rules of the board.
(iii) Both the alleged violator and an attorney who has filed a notice
of appearance on his or her behalf in accordance with the rules of the
board of parole shall be given written notice of the date, place and
time of the hearing pursuant to subparagraph (ix) of paragraph (c) of
this subdivision.
(iv) The alleged violator shall be given written notice of the rights
enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
well as of his or her right to present mitigating evidence relevant to
restoration to presumptive release, parole, conditional release or
post-release supervision and his or her right to counsel.
(v) The alleged violator shall have a right to representation by
counsel at the revocation hearing. In any case, including when a
superior court is called upon to evaluate the capacity of an alleged
violator in a revocation proceeding, where such person is financially
unable to retain counsel, the criminal court of the city of New York,
the county court or district court in the county where the violation is
alleged to have occurred or where the hearing is held, shall assign
counsel in accordance with the county or city plan for representation
placed in operation pursuant to article eighteen-B of the county law. He
or she shall have the right to confront and cross-examine adverse
witnesses, unless there is good cause for their non-attendance as
determined by the presiding officer; present witnesses and documentary
evidence in defense of the charges; and present witnesses and
documentary evidence relevant to the question whether reincarceration of
the alleged violator is appropriate.
(vi) At the revocation hearing, the charges shall be read and the
alleged violator shall be permitted to plead not guilty, guilty, guilty
with explanation or to stand mute. As to each charge, evidence shall be
introduced through witnesses and documents, if any, in support of that
charge. At the conclusion of each witness's direct testimony, he or she
shall be made available for cross-examination. If the alleged violator
intends to present a defense to the charges or to present evidence of
mitigating circumstances, the alleged violator shall do so after
presentation of all the evidence in support of a violation of
presumptive release, parole, conditional release or post-release
supervision.
(vii) All persons giving evidence at the revocation hearing shall be
sworn before giving any testimony as provided by law.
(viii) At the conclusion of the hearing the presiding officer may
sustain any or all of the violation charges or may dismiss any or all
violation charges. He or she may sustain a violation charge only if the
charge is supported by clear and convincing evidence. Conduct that
formed the basis of an arrest shall not form a basis of a sustained
parole violation if a court has adjudicated the matter with an
acquittal, adjournment in contemplation of dismissal, or violation.
(ix) If the presiding officer is not satisfied that there is clear and
convincing evidence in support of the violation, he or she shall dismiss
the violation, cancel the delinquency and restore the person to
presumptive release, parole, conditional release or post-release
supervision.
(x) If the presiding officer is satisfied that there is clear and
convincing evidence that the alleged violator violated one or more
conditions of release in an important respect, he or she shall so find.
For each sustained technical violation the presiding officer shall
direct that no earned time credits shall be awarded for the thirty day
period commencing from the date of the sustained violation. For any
absconding violation found, the presiding officer shall direct that no
earned time credits shall be awarded for the entire time period during
which a releasee was found to have absconded from supervision.
(xi) Incarceration shall not be imposed for any technical violation,
except as provided in subparagraph (xii) of this paragraph.
(xii) For each violation found, the presiding officer may (A) direct
that the releasee be restored to supervision; (B) as an alternative to
reincarceration, direct the releasee receive re-entry services in the
community from qualified nonprofit agencies; or (C) direct the
violator's reincarceration and for non-technical violations fix a date
for consideration by the board for re-release on presumptive release, or
parole or conditional release, as the case may be; or (D) for
non-technical violations in the case of persons released to a period of
post-release supervision, direct the violator's reincarceration up to
the balance of the remaining period of post-release supervision, not to
exceed five years; provided, however, that a defendant serving a term of
post-release supervision for a conviction of a felony sex offense
defined in section 70.80 of the penal law may be subject to a further
period of imprisonment up to the balance of the remaining period of
post-release supervision, shall apply for technical violations; and the
following limitations:
(1) Absconding. For absconding up to seven days reincarceration may be
imposed for the first violation, up to fifteen days reincarceration may
be imposed for the second violation, and up to thirty days
reincarceration may be imposed for the third or any subsequent
violation;
(2) Sanctions for certain technical violations. Reincarceration shall
not be imposed for a sustained technical violation that involves: (a)
violating curfew; (b) alcohol use, provided however that incarceration
is permissible for alcohol use if the person is subject to community
supervision due to a conviction for driving under the influence of
alcohol; (c) drug use, provided, however incarceration is permissible
for drug use if the person is subject to community supervision due to a
conviction for driving under the influence of drugs; (d) failing to
notify parole officer of a change in employment or program status; (e)
failing to pay surcharges and fees; (f) obtaining a driver's license or
driving a car with a valid driver's license, provided however
incarceration is permissible if either action is explicitly prohibited
by the person's conviction; (g) failing to notify community supervision
officer of contact with any law enforcement agency, provided however,
incarceration is permissible if the person intended to hide illegal
behavior; (h) failing to obey other special conditions, provided however
that incarceration is permissible if the failure cannot be addressed in
the community and all reasonable community-based means to address the
failure have been exhausted; and
(3) Sanctions for all other technical violations. For all other
technical violations, no period of reincarceration may be imposed for
the first and second substantiated technical violations for which
incarceration may be imposed; up to seven days reincarceration may be
imposed for the third substantiated technical violation for which
incarceration may be imposed; up to fifteen days reincarceration may be
imposed for the fourth substantiated technical violation for which
incarceration may be imposed; up to thirty days reincarceration may be
imposed for the fifth and subsequent substantiated technical violations
for which incarceration may be imposed.
(xiii) If a warrant was executed pursuant to subparagraph (iv) of
paragraph (a) of this subdivision by a criminal court and the court
released the person pending a preliminary or final revocation hearing,
any period of reincarceration imposed pursuant to this paragraph shall
be counted from the date of issuance of a determination after a final
revocation hearing that the person has violated one or more conditions
of community supervision, and the time between execution of the warrant
and release of the person pending a preliminary or final revocation
hearing shall count toward any period of reincarceration imposed
pursuant to this paragraph. If a releasee is committed to the custody of
the sheriff pursuant to article five hundred thirty of the criminal
procedure law, any time the person spent confined in a correctional
facility or local correctional facility shall be credited toward any
period of reincarceration imposed pursuant to this paragraph. In all
cases, the presiding officer shall impose the least restrictive
reasonable sanction. Any periods of reincarceration imposed pursuant to
this section shall run concurrently if more than one violation is
sustained. If a period of reincarceration is imposed pursuant to this
paragraph, the releasee shall be released from custody upon expiration
of the period or the end of the releasee's period of community
supervision, whichever shall be sooner. For the violator serving an
indeterminate sentence who while re-incarcerated has not been found by
the department to have committed a serious disciplinary infraction, such
violator shall be re-released on the date fixed at the revocation
hearing. For the violator serving an indeterminate sentence who has been
found by the department to have committed a serious disciplinary
infraction while re-incarcerated, the department shall refer the
violator to the board for consideration for re-release to community
supervision. Upon such referral the board may waive the personal
interview between a member or members of the board and the violator to
determine the suitability for re-release when the board directs that the
violator be re-released upon expiration of the time assessment. The
board shall retain the authority to suspend the date fixed for
re-release based on the violator's commission of a serious disciplinary
infraction and shall in such case require a personal interview be
conducted within a reasonable time between a panel of members of the
board and the violator to determine suitability for re-release. If an
interview is required, the board shall notify the violator in advance of
the date and time of such interview in accordance with the rules and
regulations of the board.
(xiv) If the presiding officer sustains any violations, such officer
must prepare a written statement, to be made available to the alleged
violator and his or her counsel, indicating the evidence relied upon and
the reasons for revoking presumptive release, parole, conditional
release or post-release supervision, and for the disposition made. The
presiding officer shall also advise the alleged violator in a written
statement that revocation will result in loss of the right to vote while
he or she is serving the remainder of his or her felony sentence in a
correctional facility and that the right to vote will be restored upon
his or her release.
(xv) If at any time during a revocation proceeding the alleged
violator, his or her counsel, or an employee of the department contends,
or if it reasonably appears to the hearing officer, that the alleged
violator is an incapacitated person as that term is defined in
subdivision one of section 730.10 of the criminal procedure law and no
judicial determination has been made that the alleged violator is an
incapacitated person, the revocation proceeding shall be temporarily
stayed until the superior court determines whether or not the person is
fit to proceed. The matter shall be promptly referred to the superior
court for determination of the alleged violator's fitness to proceed in
a manner consistent with the provisions of article seven hundred thirty
of the criminal procedure law, provided however that the superior court
shall immediately appoint counsel for any unrepresented alleged violator
eligible for appointed counsel under subparagraph (v) of this paragraph.
The court shall decide whether or not the alleged violator is
incapacitated within thirty days of the referral from the hearing
officer. If the court determines that the alleged violator is not an
incapacitated person, the court shall order that the matter be returned
to the board of parole for continuation and disposition of the
revocation proceeding. If the court determines that the alleged violator
is an incapacitated person and if no felony charges are pending against
the alleged violator, the court shall issue a final order of observation
committing such person to the custody of the commissioner of mental
health or the commissioner of developmental disabilities for care and
treatment in an appropriate institution in a manner consistent with
subdivision one of section 730.40 of the criminal procedure law. If a
final order of observation has been issued pursuant to this section, the
hearing officer shall dismiss the violation charges and such dismissal
shall act as a bar to any further proceeding under this section against
the alleged violator for such violations. If felony criminal charges are
pending at any time against an alleged violator who has been referred to
superior court for a fitness evaluation but before a determination of
fitness has been made pursuant to this section, the court shall decide
whether or not the alleged violator is incapacitated pursuant to article
seven hundred thirty of the criminal procedure law and the revocation
proceeding shall be held in abeyance until such decision has been
reached. The hearing officer shall adopt the capacity finding of the
court and either terminate the revocation process if an order of
observation has been made by the court or proceed with the revocation
hearing if the alleged violator has been found not to be an
incapacitated person.
(g) Revocation of presumptive release, parole, conditional release or
post-release supervision shall not prevent re-parole or re-release
provided such re-parole or re-release is not inconsistent with any other
provisions of law. When there has been a revocation of the period of
post-release supervision imposed on a felony sex offender who owes three
years or more on such period imposed pursuant to subdivision two-a of
section 70.45 of the penal law, and a time assessment of three years or
more has been imposed, the violator shall be reviewed by the board of
parole and may be restored to post-release supervision only after
serving three years of the time assessment, and only upon a
determination by the board of parole made in accordance with the
procedures set forth in this section. Even if the hearing officer has
imposed a time assessment of a certain number of years of three years or
more, the violator shall not be released at or before the expiration of
that time assessment unless the board authorizes such release, the
period of post-release supervision expires, or release is otherwise
authorized by law. If a time assessment of less than three years was
imposed upon such a defendant, the defendant shall be released upon the
expiration of such time assessment, unless he or she is subject to
further imprisonment or confinement under any other law.
(h) If the alleged violation is not sustained and the alleged violator
is restored to supervision, the interruptions specified in subdivision
three of section 70.40 of the penal law shall not apply, but the time
spent in custody in any state or local correctional institution shall be
credited against the term of the sentence in accordance with the rules
specified in paragraph (c) of such subdivision.
(i) Where there is reasonable cause to believe that a presumptive
releasee, parolee, conditional releasee or person under post-release
supervision has absconded from supervision the board may declare such
person to be delinquent. This paragraph shall not be construed to deny
such person a preliminary revocation hearing upon his retaking, nor to
relieve the department of any obligation it may have to exercise due
diligence to retake the alleged absconder, nor to relieve the parolee or
releasee of any obligation he may have to comply with the conditions of
his release.
4. Appeals. (a) Except for determinations made upon preliminary
hearings upon allegations of violation of presumptive release, parole,
conditional release or post-release supervision, all determinations made
pursuant to this section may be appealed in accordance with rules
promulgated by the board. Any board member who participated in the
decision from which the appeal is taken may not participate in the
resolution of that appeal. The rules of the board may specify a time
within which any appeal shall be taken and resolved.
(b) Upon an appeal to the board, the incarcerated individual may be
represented by an attorney. Where the incarcerated individual is
financially unable to provide for his or her own attorney, upon request
an attorney shall be assigned pursuant to the provisions of subparagraph
(v) of paragraph (f) of subdivision three of this section.
(c) All board of parole administrative appeal findings and
recommendations shall be published within one hundred twenty days of the
determination on a publicly accessible website that includes a
word-searchable database. The department of corrections and community
supervision shall provide electronic or print copies of such findings
and recommendations to all correctional facility law libraries on a
quarterly basis. Copies of such individual findings and recommendations
shall also be made available upon written request to the department of
corrections and community supervision. Information which would reveal
confidential material that may not be released pursuant to federal or
state law shall be redacted from any such website or findings and
recommendations.
4-a. Appeals from non-technical violation findings. (a)
Notwithstanding the provisions of any other law, when in a violation
proceeding brought pursuant to this section, any of the charges
sustained by the hearing officer would constitute a misdemeanor or
felony if such charge were or had been brought in a criminal court, the
releasee may, in lieu of an administrative appeal to the board pursuant
to subdivision four of this section, appeal such determination to the
lowest level of the following courts serving the jurisdiction in which
the hearing was held or in which any such sustained conduct was alleged
to have occurred: city court, district court, county court or supreme
court; provided, however, that if any such misdemeanor or felony charge
was prosecuted in any city, district, county or supreme court, such
appeal shall be filed in that court.
(b) The appeal shall be commenced by the filing of a notice of appeal
in the same manner as an appeal to the appellate division as set forth
in paragraphs (a), (b), (d) and (e) of subdivision one and subdivision
six of section 460.10 of the criminal procedure law. Counsel shall be
assigned to the individual, if unable to afford counsel, by the court
before which the appeal is taken or is to be taken. Such court may stay
such determination pending the appeal, in a manner consistent with the
provisions of section 460.50 of the criminal procedure law or as
otherwise authorized. Within thirty days after receiving such a notice
of appeal, the board shall serve on the individual or counsel and file
with such court a transcript of the proceedings before the hearing
officer prepared pursuant to paragraph (a) of subdivision six of this
section, and copies of the documents, photographs and records considered
by the hearing officer, and provide access to any other evidence
considered by the hearing officer who made such determination.
(c) The appeal shall be perfected in the manner set forth in section
460.70 of the criminal procedure law, other provisions of law generally
applicable to criminal appeals, and authorized rules implementing this
section promulgated by the chief administrator of the courts. The
department shall have responsibility for presenting the department's
position through any submissions to the court on the appeal. The
department shall coordinate with relevant district attorneys to ensure
appropriate information may be provided to the court. The district
attorney of the jurisdiction may appear on any such appeal without the
necessity of a motion or order of the court.
(d) On such appeal, the reviewing city, district, county or supreme
court shall consider de novo the issues raised by the appellant,
including but not limited to the following: (a) whether any sustained
violation charge should have been sustained; (b) whether reduction or
dismissal of the alleged violation charge or charges is warranted, in
accordance with the principles set forth in section 170.40 or section
210.40 of the criminal procedure law or otherwise; and (c) whether any
time assessment and other authorized sanction imposed by the hearing
officer should be vacated, reduced or, notwithstanding any law, rule or
regulation to the contrary, ordered to run concurrently with any other
sentence, time assessment, or period of reincarceration imposed.
5. Actions of the board. Any action by the board or by a hearing
officer pursuant to this article shall be deemed a judicial function and
shall not be reviewable if done in accordance with law.
6. Record of proceedings. (a) (i) The board shall provide for the
making of a verbatim record of each parole release interview, except
where a decision is made to release the incarcerated individual to
parole supervision, and each preliminary and final revocation hearing,
except when the decision of the presiding officer after such hearings
result in a dismissal of all charged violations of parole, conditional
release or post release supervision.
(ii) Notwithstanding the provisions of subparagraph (i) of this
paragraph, the board shall provide for the making of a verbatim record
of each parole release interview in all proceedings where the
incarcerated individual is a detained sex offender as such term is
defined in subdivision (g) of section 10.03 of the mental hygiene law.
Such record shall be provided to the office of mental health for use by
the multidisciplinary staff and the case review panel pursuant to
section 10.05 of the mental hygiene law.
(b) The chairman of the board of parole shall maintain records of all
parole interviews and hearings for a period of twenty-five years from
the date of the parole release interview or until expiration of the
maximum term of sentence.
7. Deaf person before the board. Whenever any deaf person participates
in an interview, parole release hearing, preliminary hearing or
revocation hearing, there shall be appointed a qualified interpreter who
is certified by a recognized national or New York state credentialing
authority to interpret the proceedings to and the statements or
testimony of such deaf person. The department shall determine a
reasonable fee for all such interpreting services, the cost of which
shall be a charge upon the department.
8. Foreign born or non-English speaking person before the board. Upon
notification from the department pursuant to section two hundred
fifty-nine-e of this article, or upon the request of any foreign born or
non-English speaking person who is scheduled to participate in an
interview, parole release hearing, preliminary hearing or revocation
hearing, there shall be appointed from the New York state office of
general services statewide administrative services contract, a qualified
interpreter to interpret the proceedings to and the statements or
testimony of such person. The board shall determine a reasonable fee for
all such interpreting services, the cost of which shall be a charge upon
the board of parole. No such request or appointment shall cause a delay
of release from incarceration of such person.
9. The board shall promulgate rules and regulations to facilitate the
presence of nonprofit service providers able to offer relevant
community-based services to releasees at all preliminary and final
revocation hearings for the purpose of helping people subject to
community supervision successfully complete such supervision and avoid
future such supervision, and to help ensure presiding officers impose
the least restrictive reasonable sanction for any violation of community
supervision.
Discharge of sentence. 1. Except where a determinate sentence
was imposed for a felony other than a felony defined in article two
hundred twenty or article two hundred twenty-one of the penal law, if
the board of parole is satisfied that an absolute discharge from
presumptive release, parole, conditional release or release to a period
of post-release supervision is in the best interests of society, the
board may grant such a discharge prior to the expiration of the full
term or maximum term to any person who has been on unrevoked community
supervision for at least three consecutive years. A discharge granted
under this section shall constitute a termination of the sentence with
respect to which it was granted. No such discharge shall be granted
unless the board is satisfied that the parolee or releasee, otherwise
financially able to comply with an order of restitution and the payment
of any mandatory surcharge, sex offender registration fee or DNA
databank fee previously imposed by a court of competent jurisdiction,
has made a good faith effort to comply therewith.
2. The chairman of the board of parole shall promulgate rules and
regulations governing the issuance of discharges from community
supervision pursuant to this section to assure that such discharges are
consistent with public safety.
3. Notwithstanding any other provision of this section to the
contrary, where a term of post-release supervision in excess of five
years has been imposed on a person convicted of a crime defined in
article one hundred thirty of the penal law, including a sexually
motivated felony, the board of parole may grant a discharge from
post-release supervision prior to the expiration of the maximum term of
post-release supervision. Such a discharge may be granted only after
the person has served at least five years of post-release supervision,
and only to a person who has been on unrevoked post-release supervision
for at least three consecutive years. No such discharge shall be granted
unless the board of parole or the department acting pursuant to its
responsibility under subdivision one of section two hundred one of the
correction law consults with any licensed psychologist, qualified
psychiatrist, or other mental health professional who is providing care
or treatment to the supervisee; and the board: (a) determines that a
discharge from post-release supervision is in the best interests of
society; and (b) is satisfied that the supervisee, otherwise financially
able to comply with an order of restitution and the payment of any
mandatory surcharge, sex offender registration fee, or DNA data bank fee
previously imposed by a court of competent jurisdiction, has made a good
faith effort to comply therewith. Before making a determination to
discharge a person from a period of post-release supervision, the board
of parole may request that the commissioner of the office of mental
health arrange a psychiatric evaluation of the supervisee. A discharge
granted under this section shall constitute a termination of the
sentence with respect to which it was granted.
4. Notwithstanding any other provision of law, a person granted
discharge pursuant to subdivision one of this section shall be provided
a certificate of relief from disabilities pursuant to section seven
hundred three of the correction law or a certificate of good conduct
pursuant to section seven hundred three-b of the correction law, as
applicable.
Access to records and institutions. 1. All case files shall
be maintained by the department for use by the department and board. The
department and board and authorized officers and employees thereof shall
have complete access to such files and the board of parole shall have
the right to make such entries as the board of parole shall deem
appropriate in accordance with law.
2. The board shall make rules for the purpose of maintaining the
confidentiality of records, information contained therein and
information obtained in an official capacity by officers, employees or
members of the board of parole.
3. Members of the board and officers and employees of the department
providing community supervision services and designated by the
commissioner shall have free access to all incarcerated individuals
confined in institutions under the jurisdiction of the department, the
office of children and family services and the department of mental
hygiene in order to enable them to perform their functions, provided,
however, that the department of mental hygiene may temporarily restrict
such access where it determines, for significant clinical reasons, that
such access would interfere with its care and treatment of the mentally
ill incarcerated individual. If under the provisions of this subdivision
an incarcerated individual is not accessible for release consideration
by the board, that incarcerated individual shall be scheduled to see the
board in the month immediately subsequent to the month within which he
or she was not available.
4. Upon a determination by the department and board of parole that
records regarding an individual presently under the supervision of the
department are relevant to an investigation of child abuse or
maltreatment conducted by a child protective service pursuant to title
six of article six of the social services law, the department and board
shall provide the records determined to be relevant to the child
protective service conducting the investigation. The department and
board shall promulgate rules for the transmission of records required to
be provided under this section.
Cooperation. 1. It shall be the duty of the commissioner of
corrections and community supervision to ensure that all officers and
employees of the department shall at all times cooperate with the board
of parole and shall furnish to such members of the board and employees
of the board such information as may be appropriate to enable them to
perform their independent decision making functions. It is also his or
her duty to ensure that the functions of the board of parole are not
hampered in any way, including but not limited to: a restriction of
resources including staff assistance; limited access to vital
information; and presentation of an incarcerated individual's
information in a manner that may inappropriately influence the board in
its decision making. Where an incarcerated individual has appeared
before the board prior to having completed any program assigned by the
department, and such program remains incomplete by no fault of the
incarcerated individual, and where the board has denied such
incarcerated individual release pursuant to paragraph (a) of subdivision
two of section two hundred fifty-nine-i of this article, the department
shall prioritize such an incarcerated individual's placement into the
assigned program.
2. The official in charge of each institution wherein any person is
confined under a definite sentence of imprisonment, all officers and
employees thereof and all other public officials shall at all times
cooperate with the board of parole, and shall furnish to such board, its
officers and employees such information as may be required by the board
to perform its functions hereunder. The members of the board, its
officers and employees shall at all times be given free access to all
persons confined in any such institution under such sentence and shall
be furnished with appropriate working space in such institution for such
purpose without charge therefor.
3. It shall be the duty of the clerk of the court, the commissioner of
mental hygiene and all probation officers and other appropriate
officials to send such information as may be in their possession or
under their control to the chairman of the board upon request in order
to facilitate the work of the board.
Compacts with other states for out-of-state parolee
supervision. 1. The governor is hereby authorized and directed to enter
into a compact on behalf of the state of New York with any state of the
United States legally joining therein in the form substantially as
follows:
A COMPACT
Entered into by and among the contracting states, signatories hereto,
with the consent of the Congress of the United States of America,
granted by an act entitled "An act granting the consent of Congress to
any two or more states to enter into agreements or compacts for
cooperative effort and mutual assistance in the prevention of crime and
for other purposes."
The contracting states solemnly agree:
(1) That it shall be competent for the duly constituted judicial and
administrative authorities of a state party to this compact (herein
called "sending state") to permit any person convicted of an offense
within such state and placed on probation or released on parole to
reside in any other state party to this compact (herein called
"receiving state") while on probation or parole, if
(a) Such person is in fact a resident of or has his family residing
within the receiving state and can obtain employment there;
(b) Though not a resident of the receiving state and not having his
family residing there, the receiving state consents to such person being
sent there.
Before granting such permission, opportunity shall be granted to the
receiving state to investigate the home and prospective employment of
such person.
A resident of the receiving state, within the meaning of this section,
is one who has been an actual inhabitant of such state continuously for
more than one year prior to his coming to the sending state and has not
resided within the sending state more than six continuous months
immediately preceding the commission of the offense for which he has
been convicted.
(2) That each receiving state will assume the duties of visitation of
and supervision over probationers or parolees of any sending state and
in the exercise of those duties will be governed by the same standards
that prevail for its own probationers and parolees.
(3) That duly accredited officers of a sending state may at all times
enter a receiving state and there apprehend and retake any person on
probation or parole. For that purpose no formalities will be required
other than establishing the authority of the officer and the identity of
the person to be retaken. All legal requirements to obtain extradition
of fugitives from justice are hereby expressly waived on the part of
states party hereto, as to such persons. The decision of the sending
state to retake a person on probation or parole shall be conclusive upon
and not reviewable within the receiving state; provided, however, that
if at the time when a state seeks to retake a probationer or parolee
there should be pending against him within the receiving state any
criminal charge, or he should be suspected of having committed within
such state a criminal offense, he shall not be retaken without the
consent of the receiving state until discharged from prosecution or from
imprisonment for such offense.
(4) That the duly accredited officers of the sending state will be
permitted to transport prisoners being retaken through any and all
states parties to this compact, without interference.
(5) That the governor of each state may designate an officer who,
acting jointly with like officers of other contracting states, if and
when appointed, shall promulgate such rules and regulations as may be
deemed necessary to more effectively carry out the terms of this
compact.
(6) That this compact shall become operative immediately upon its
ratification by any state as between it and any other state or states so
ratifying. When ratified it shall have the full force and effect of law
within such state, the form of ratification to be in accordance with the
laws of the ratifying state.
(7) That this compact shall continue in force and remain binding upon
each ratifying state until renounced by it. The duties and obligations
hereunder of a renouncing state shall continue as to parolees or
probationers residing therein at the time of withdrawal until retaken or
finally discharged by the sending state. Renunciation of this compact
shall be by the same authority which ratified it, by sending six months'
notice in writing of its intention to withdraw from the compact to the
other states party hereto.
2. The chairman of the board of parole shall have power and shall be
charged with the duty of promulgating such rules and regulations as may
be deemed necessary to carry out the terms of a compact entered into by
the state pursuant to this section.
3. If any section, sentence, subdivision or clause of this section is
for any reason held invalid or to be unconstitutional, such decision
shall not affect the validity of the remaining portions of this section.
4. This section may be cited as the uniform act for out-of-state
parolee supervision.
* § 259-mm. Interstate compact for adult offender supervision. The
interstate compact for adult offender supervision as set forth in this
section is hereby adopted, enacted into law and entered into with all
other jurisdictions joining therein. The compact shall be as follows:
INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION
ARTICLE I. Purpose.
ARTICLE II. Definitions.
ARTICLE III. The compact commission.
ARTICLE IV. The state council.
ARTICLE V. Powers and duties of the interstate commission.
ARTICLE VI. Organization and operation of the interstate commission.
ARTICLE VII. Activities of the interstate commission.
ARTICLE VIII. Rulemaking functions of the interstate commission.
ARTICLE IX. Oversight, enforcement and dispute resolution by the
interstate commission.
ARTICLE X. Finance.
ARTICLE XI. Compacting states, effective date and amendment.
ARTICLE XII. Withdrawal, default, termination and judicial enforcement.
ARTICLE XIII. Severability and construction.
ARTICLE XIV. Binding effect of compact and other laws.
ARTICLE I
PURPOSE
The compacting states to this interstate compact recognize that each
state is responsible for the supervision of adult offenders in the
community who are authorized pursuant to the bylaws and rules of this
compact to travel across state lines both to and from each compacting
state in such a manner as to track the location of offenders, transfer
supervision authority in an orderly and efficient manner, and when
necessary return offenders to the originating jurisdictions. The
compacting states also recognize that Congress, by enacting the Crime
Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged
compacts for cooperative efforts and mutual assistance in the prevention
of crime. It is the purpose of this compact and the interstate
commission created pursuant to this compact, through means of joint and
cooperative action among the compacting states: to provide the framework
for the promotion of public safety and protect the rights of victims
through the control and regulation of the interstate movement of
offenders in the community; to provide for the effective tracking,
supervision and rehabilitation of these offenders by the sending and
receiving states; and to equitably distribute the costs, benefits and
obligations of the compact among the compacting states. In addition,
this compact will: create an interstate commission which will establish
uniform procedures to manage the movement between states of adults
placed under community supervision and released to the community under
the jurisdiction of courts, paroling authorities, corrections or other
criminal justice agencies which will promulgate rules to achieve the
purpose of this compact; ensure an opportunity for input and timely
notice to victims and to jurisdictions where defined offenders are
authorized to travel or to relocate across state lines; establish a
system of uniform data collection, access to information on active cases
by authorized criminal justice officials, and regular reporting of
compact activities to heads of state councils, state executive, judicial
and legislative branches, and criminal justice administrators; monitor
compliance with rules governing interstate movement of offenders and
initiate interventions to address and correct non-compliance; and
coordinate training and education regarding regulations of interstate
movement of offenders for officials involved in such activity. The
compacting states recognize that there is no "right" of any offender to
live in another state and that duly accredited officers of a sending
state may at all times enter a receiving state and there apprehend and
retake any offender under supervision subject to the provisions of this
compact and bylaws and rules promulgated thereto. It is the policy of
the compacting states that the activities conducted by the interstate
commission created by this compact are the formation of public policies
and are therefore public business.
ARTICLE II
DEFINITIONS
As used in this compact, unless the context clearly requires a
different construction:
(a) "Adult" means both individuals legally classified as adults and
juveniles treated as adults by court order, statute or operation of law.
(b) "By-laws" means those by-laws established by the interstate
commission for its governance, or for directing or controlling the
interstate commission's actions or conduct.
(c) "Compact administrator" means the individual in each compacting
state appointed pursuant to the terms of this compact responsible for
the administration and management of the state's supervision and
transfer of offenders subject to the terms of this compact, the rules
adopted by the interstate commission and policies adopted by the state
council under this compact.
(d) "Compacting state" means any state which has enacted the enabling
legislation for this compact.
(e) "Commissioner" means the voting representative of each compacting
state appointed pursuant to article III of this compact.
(f) "Interstate commission" means the interstate commission for adult
offender supervision established by this compact.
(g) "Member" means the commissioner of a compacting state or designee,
who shall be a person officially connected with the commissioner.
(h) "Non-compacting state" means any state which has not enacted the
enabling legislation for this compact.
(i) "Offender" means an adult placed under, or subject to, supervision
as the result of the commission of a criminal offense and released to
the community under the jurisdiction of courts, paroling authorities,
corrections or other criminal justice agencies.
(j) "Person" means any individual, corporation, business enterprise or
other legal entity, either public or private.
(k) "Rules" means acts of the interstate commission, duly promulgated
pursuant to article VIII of this compact, substantially affecting
interested parties in addition to the interstate commission, which shall
have the force and effect of law in the compacting states.
(l) "State" means a state of the United States, the District of
Columbia and any other territorial possessions of the United States.
(m) "State council" means the resident members of the state council
for interstate adult offender supervision created by each state under
article IV of this compact.
ARTICLE III
THE COMPACT COMMISSION
The compacting states hereby create the "interstate commission for
adult offender supervision". The interstate commission shall be a body
corporate and joint agency of the compacting states. The interstate
commission shall have all the responsibilities, powers and duties set
forth in this compact, including the power to sue and be sued, and such
additional powers as may be conferred upon it by subsequent action of
the respective legislatures of the compacting states in accordance with
the terms of this compact.
The interstate commission shall consist of commissioners selected and
appointed by resident members of a state council for interstate adult
offender supervision for each state. In addition to the commissioners
who are the voting representatives of each state, the interstate
commission shall include individuals who are not commissioners but who
are members of interested organizations; such non-commissioner members
must include a member of the national organizations of governors,
legislators, state chief justices, attorneys general and crime victims.
All non-commissioner members of the interstate commission shall be
ex-officio (nonvoting) members. The interstate commission may provide in
its by-laws for such additional, ex-officio, non-voting members as it
deems necessary.
Each compacting state represented at any meeting of the interstate
commission is entitled to one vote. A majority of the compacting states
shall constitute a quorum for the transaction of business, unless a
larger quorum is required by the by-laws of the interstate commission.
The interstate commission shall meet at least once each calendar year.
The chairperson may call additional meetings and, upon the request of
twenty-seven or more compacting states, shall call additional meetings.
Public notice shall be given of all meetings and meetings shall be open
to the public.
The interstate commission shall establish an executive committee which
shall include commission officers, members and others as shall be
determined by the by-laws. The executive committee shall have the power
to act on behalf of the interstate commission during periods when the
interstate commission is not in session, with the exception of
rulemaking and/or amendment to the compact. The executive committee
oversees the day-to-day activities managed by the executive director and
interstate commission staff; administers enforcement and compliance with
the provisions of the compact, its by-laws and as directed by the
interstate commission and performs other duties as directed by the
commission or set forth in the by-laws.
ARTICLE IV
THE STATE COUNCIL
Each member state shall create a state council for interstate adult
offender supervision which shall be responsible for the appointment of
the commissioner who shall serve on the interstate commission from that
state. Each state council shall appoint as its commissioner the compact
administrator from that state to serve on the interstate commission in
such capacity under or pursuant to applicable law of the member state.
While each member state may determine the membership of its own state
council, its membership must include at least one representative from
the legislative, judicial and executive branches of government, victims
groups and compact administrators. Each compacting state retains the
right to determine the qualifications of the compact administrator who
shall be appointed by the state council or by the governor in
consultation with the legislature and the judiciary. In addition to
appointment of its commissioner to the national interstate commission,
each state council shall exercise oversight and advocacy concerning its
participation in interstate commission activities and other duties as
may be determined by each member state including but not limited to,
development of policy concerning operations and procedures of the
compact within that state. The compact administrator shall be appointed
by the governor in consultation with the temporary president of the
senate, the speaker of the assembly and the chief judge of the court of
appeals. The state council shall appoint the compact administrator to
serve on the interstate commission pursuant to this section.
ARTICLE V
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The interstate commission shall have the following powers:
(a) to adopt a seal and suitable by-laws governing the management and
operation of the interstate commission;
(b) to promulgate rules which shall have the force and effect of
statutory law and shall be binding in the compacting states to the
extent and in the manner provided in this compact;
(c) to oversee, supervise and coordinate the interstate movement of
offenders subject to the terms of this compact and any by-laws adopted
and rules promulgated by the compact commission;
(d) to enforce compliance with compact provisions, interstate
commission rules, and by-laws using all necessary and proper means,
including but not limited to, the use of judicial order;
(e) to establish and maintain offices;
(f) to purchase and maintain insurance and bonds;
(g) to borrow, accept or contract for services of personnel,
including, but not limited to, members and their staffs;
(h) to establish and appoint committees and hire staff which it deems
necessary for the carrying out of its functions including, but not
limited to, an executive committee as required by article III of this
compact which shall have the power to act on behalf of the interstate
commission in carrying out its powers and duties pursuant to this
compact;
(i) to elect or appoint such officers, attorneys, employees, agents or
consultants, and to fix their compensation, define their duties and
determine their qualifications; and to establish the interstate
commission's personnel policies and programs relating to, among other
things, conflicts of interest, rates of compensation and qualifications
of personnel;
(j) to accept any and all donations and grants of money, equipment,
supplies, materials and services, and to receive, utilize and dispose of
same;
(k) to lease, purchase, accept contributions or donations of, or
otherwise to own, hold, improve or use any property, real, personal or
mixed;
(l) to sell, convey, mortgage, pledge, lease, exchange, abandon or
otherwise dispose of any property, real, personal or mixed;
(m) to establish a budget and make expenditures and levy dues as
provided in article X of this compact;
(n) to sue and be sued;
(o) to provide for dispute resolution among compacting states;
(p) to perform such functions as may be necessary or appropriate to
achieve the purposes of this compact;
(q) to report annually to the legislatures, governors, judiciary and
state councils of the compacting states concerning the activities of the
interstate commission during the preceding year. Such reports shall also
include any recommendations that may have been adopted by the interstate
commission;
(r) to coordinate education, training and public awareness regarding
the interstate movement of offenders for officials involved in such
activity; and
(s) to establish uniform standards for the reporting, collecting and
exchanging of data.
ARTICLE VI
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
(a) By-laws. The interstate commission shall, by a majority of the
members, within twelve months of the first interstate commission
meeting, adopt by-laws to govern its conduct as may be necessary or
appropriate to carry out the purposes of the compact, including, but not
limited to:
1. establishing the fiscal year of the interstate commission;
2. establishing an executive committee and such other committees as
may be necessary;
3. providing reasonable standards and procedures:
a. for the establishment of committees, and
b. governing any general or specific delegation of any authority or
function of the interstate commission;
4. providing reasonable procedures for calling and conducting meetings
of the interstate commission, and ensuring reasonable notice of each
such meeting;
5. establishing the titles and responsibilities of the officers of the
interstate commission;
6. providing reasonable standards and procedures for the establishment
of the personnel policies and programs of the interstate commission.
Notwithstanding any civil service or other similar laws of any
compacting state, the by-laws shall exclusively govern the personnel
policies and programs of the interstate commission;
7. providing a mechanism for winding up the operations of the
interstate commission and the equitable return of any surplus funds that
may exist upon the termination of the compact after the payment and/or
reserving of all of its debts and obligations;
8. providing transition rules for "start up" administration of the
compact; and
9. establishing standards and procedures for compliance and technical
assistance in carrying out the compact.
(b) Officers and staff. The interstate commission shall, by a majority
of the members, elect from among its members a chairperson and a vice
chairperson, each of whom shall have such authorities and duties as may
be specified in the by-laws. The chairperson or, in his or her absence
or disability, the vice chairperson, shall preside at all meetings of
the interstate commission. The officers so elected shall serve without
compensation or remuneration from the interstate commission; provided
that, subject to the availability of budgeted funds, the officers shall
be reimbursed for any actual and necessary costs and expenses incurred
by them in the performance of their duties and responsibilities as
officers of the interstate commission.
The interstate commission shall, through its executive committee,
appoint or retain an executive director for such period, upon such terms
and conditions and for such compensation as the interstate commission
may deem appropriate. The executive director shall serve as secretary to
the interstate commission, and hire and supervise such other staff as
may be authorized by the interstate commission, but shall not be a
member.
(c) Corporate records of the interstate commission. The interstate
commission shall maintain its corporate books and records in accordance
with the by-laws.
(d) Qualified immunity, defense and indemnification. The members,
officers, executive director and employees of the interstate commission
shall be immune from suit and liability, either personally or in their
official capacity, for any claim for damage to or loss of property or
personal injury or other civil liability cause or arising out of any
actual or alleged act, error or omission that occurred within the scope
of interstate commission employment, duties or responsibilities;
provided, that nothing in this subdivision shall be construed to protect
any such person from suit and/or liability for any damage, loss, injury
or liability caused by the intentional or willful and wanton misconduct
of any such person. The interstate commission shall defend the
commissioner of a compacting state, or his or her representatives or
employees, or the interstate commission's representatives or employees,
in any civil action seeking to impose liability, arising out of any
actual or alleged act, error or omission that occurred within the scope
of interstate commission employment, duties or responsibilities, or that
the defendant had a reasonable basis for believing occurred within the
scope of interstate commission employment, duties or responsibilities;
provided, that the actual or alleged act, error or omission did not
result from intentional wrongdoing on the part of such person.
The interstate commission shall indemnify and hold the commissioner of
a compacting state, the appointed designee or employees, or the
interstate commission's representatives or employees, harmless in the
amount of any settlement or judgment obtained against such persons
arising out of any actual or alleged act, error or omission that
occurred within the scope of interstate commission employment, duties or
responsibilities, or that such persons had a reasonable basis for
believing occurred within the scope of interstate commission employment,
duties or responsibilities, provided, that the actual or alleged act,
error or omission did not result from gross negligence or intentional
wrongdoing on the part of such person.
ARTICLE VII
ACTIVITIES OF THE INTERSTATE COMMISSION
The interstate commission shall meet and take such actions as are
consistent with the provisions of this compact.
Except as otherwise provided in this compact and unless a greater
percentage is required by the by-laws, in order to constitute an act of
the interstate commission, such act shall have been taken at a meeting
of the interstate commission and shall have received an affirmative vote
of a majority of the members present.
Each member of the interstate commission shall have the right and
power to cast a vote to which that compacting state is entitled and to
participate in the business and affairs of the interstate commission. A
member shall vote in person on behalf of the state and shall not
delegate a vote to another member state. However, a state council shall
appoint another authorized representative, in the absence of the
commissioner from that state, to cast a vote on behalf of the member
state at a specified meeting. The by-laws may provide for members'
participation in meetings by telephone or other means of
telecommunication or electronic communication. Any voting conducted by
telephone, or other means of telecommunication or electronic
communication shall be subject to the same quorum requirements of
meetings where members are present in person.
The interstate commission shall meet at least once during each
calendar year. The chairperson of the interstate commission may call
additional meetings at any time and, upon the request of a majority of
the members, shall call additional meetings.
The interstate commission's by-laws shall establish conditions and
procedures under which the interstate commission shall make its
information and official records available to the public for inspection
or copying. The interstate commission may exempt from disclosure any
information or official records to the extent they would adversely
affect personal privacy rights or proprietary interests. In promulgating
such rules, the interstate commission may make available to law
enforcement agencies records and information otherwise exempt from
disclosure, and may enter into agreements with law enforcement agencies
to receive or exchange information or records subject to nondisclosure
and confidentiality provisions.
Public notice shall be given of all meetings and all meetings shall be
open to the public, except as set forth in the rules or as otherwise
provided in the compact. The interstate commission shall promulgate
rules consistent with the principles contained in the "Government in
Sunshine Act," 5 U.S.C. Section 552(b), as may be amended. The
interstate commission and any of its committees may close a meeting to
the public where it determines by a two-thirds vote that an open meeting
would be likely to:
(a) relate solely to the interstate commission's internal personnel
practices and procedures;
(b) disclose matters specifically exempted from disclosure by statute;
(c) disclose trade secrets or commercial or financial information
which is privileged or confidential;
(d) involve accusing any person of a crime, or formally censuring any
person;
(e) disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
(f) disclose investigatory records compiled for law enforcement
purposes;
(g) disclose information contained in or related to examination,
operating or condition reports prepared by, or on behalf of or for the
use of, the interstate commission with respect to a regulated entity for
the purpose of regulation or supervision of such entity;
(h) disclose information, the premature disclosure of which would
significantly endanger the life of a person or the stability of a
regulated entity; or
(i) specifically relate to the interstate commission's issuance of a
subpoena, or its participation in a civil action or proceeding.
For every meeting closed pursuant to this article, the interstate
commission's chief legal officer shall publicly certify that, in his or
her opinion, the meeting may be closed to the public, and shall
reference each relevant exemptive provision. The interstate commission
shall keep minutes which shall fully and clearly describe all matters
discussed in any meeting and shall provide a full and accurate summary
of any actions taken, and the reasons therefor, including a description
of each of the views expressed on any item and the record of any
rollcall vote (reflected in the vote of each member on the question).
All documents considered in connection with any action shall be
identified in such minutes.
The interstate commission shall collect standardized data concerning
the interstate movement of offenders as directed through its by-laws and
rules which shall specify the data to be collected, the means of
collection and data exchange and reporting requirements.
ARTICLE VIII
RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
The interstate commission shall promulgate rules in order to
effectively and efficiently achieve the purposes of the compact
including transition rules governing administration of the compact
during the period in which it is being considered and enacted by the
states.
Rulemaking shall occur pursuant to the criteria set forth in this
article and the by-laws and rules adopted pursuant thereto. Such
rulemaking shall substantially conform to the principles of the federal
Administrative Procedure Act, 5 U.S.C.S. section 551 et seq., and the
Federal Advisory Committee Act, 5 U.S.C.S. app. 2, section 1 et seq., as
may be amended (hereinafter referred to as "APA"). All rules and
amendments shall become binding as of the date specified in each rule or
amendment.
If a majority of the legislatures of the compacting states rejects a
rule, by enactment of a statute or resolution in the same manner used to
adopt the compact, then such rule shall have no further force and effect
in any compacting state.
When promulgating a rule, the interstate commission shall:
(a) publish the proposed rule stating with particularity the text of
the rule which is proposed and the reason for the proposed rule;
(b) allow persons to submit written data, facts, opinions and
arguments, which information shall be publicly available;
(c) provide an opportunity for an informal hearing; and
(d) promulgate a final rule and its effective date, if appropriate,
based on the rulemaking record.
Not later than sixty days after a rule is promulgated, any interested
person may file a petition in the United States District Court for the
District of Columbia or in the Federal District Court where the
interstate commission principal office is located for judicial review of
such rule. If the court finds that the interstate commission's action is
not supported by substantial evidence, (as defined in the APA), in the
rulemaking record, the court shall hold the rule unlawful and set it
aside. Subjects to be addressed within twelve months after the first
meeting must at a minimum include:
1. notice to victims and opportunity to be heard;
2. offender registration and compliance;
3. violations/returns;
4. transfer procedures and forms;
5. eligibility for transfer;
6. collection of restitution and fees from offenders;
7. data collection and reporting;
8. the level of supervision to be provided by the receiving state;
9. transition rules governing the operation of the compact and the
interstate commission during all or part of the period between the
effective date of the compact and the date on which the last eligible
state adopts the compact; and
10. mediation, arbitration and dispute resolution.
The existing rules governing the operation of the previous compact
superceded by this compact shall be null and void twelve months after
the first meeting of the interstate commission created pursuant to this
compact.
Upon determination by the interstate commission that an emergency
exists, it may promulgate an emergency rule which shall become effective
immediately upon adoption, provided that the usual rulemaking procedures
provided hereunder shall be retroactively applied to said rule as soon
as reasonably possible, in no event later than ninety days after the
effective date of the rule.
ARTICLE IX
OVERSIGHT, ENFORCEMENT AND DISPUTE RESOLUTION BY THE
INTERSTATE COMMISSION
(a) Oversight. The interstate commission shall oversee the interstate
movement of adult offenders in the compacting states and shall monitor
such activities being administered in non-compacting states which may
significantly affect compacting states.
The courts and executive agencies in each compacting state shall
enforce this compact and shall take all actions necessary and
appropriate to effectuate the compact's purposes and intent. In any
judicial or administrative proceeding in a compacting state pertaining
to the subject matter of this compact which may affect the powers,
responsibilities or actions of the interstate commission, the interstate
commission shall be entitled to receive all service of process in any
such proceeding, and shall have standing to intervene in the proceeding
for all purposes.
(b) Dispute resolution. The compacting states shall report to the
interstate commission on issues or activities of concern to them, and
cooperate with and support the interstate commission in the discharge of
its duties and responsibilities.
The interstate commission shall attempt to resolve any disputes or
other issues which are subject to the compact and which may arise among
compacting states and non-compacting states.
The interstate commission shall enact a by-law or promulgate a rule
providing for both mediation and binding dispute resolution for disputes
among the compacting states.
(c) Enforcement. The interstate commission, in the reasonable exercise
of its discretion, shall enforce the provisions of this compact using
any or all means set forth in article XII, subdivision (b), of this
compact.
ARTICLE X
FINANCE
The interstate commission shall pay or provide for the payment of the
reasonable expenses of its establishment, organization and ongoing
activities.
The interstate commission shall levy on and collect an annual
assessment from each compacting state to cover the cost of the internal
operations and activities of the interstate commission and its staff
which must be in a total amount sufficient to cover the interstate
commission's annual budget as approved each year. The aggregate annual
assessment amount shall be allocated based upon a formula to be
determined by the interstate commission, taking into consideration the
population of the state and the volume of interstate movement of
offenders in each compacting state and shall promulgate a rule binding
upon compacting states which governs said assessment.
The interstate commission shall not incur any obligations of any kind
prior to securing the funds adequate to meet the same; nor shall the
interstate commission pledge the credit of any of the compacting states,
except by and with the authority of the compacting state.
The interstate commission shall keep accurate accounts of all receipts
and disbursements. The receipts and disbursements of the interstate
commission shall be subject to the audit and accounting procedures
established under its by-laws. However, all receipts and disbursements
of funds handled by the interstate commission shall be audited yearly by
a certified or licensed public accountant and the report of the audit
shall be included in and become part of the annual report of the
interstate commission.
ARTICLE XI
COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
Any state, as defined in article II of this compact, is eligible to
become a compacting state. The compact shall become effective and
binding upon legislative enactment of the compact into law by no less
than thirty-five of the states. The initial effective date shall be the
later of July first, two thousand three, or upon enactment into law by
the thirty-fifth jurisdiction. Thereafter it shall become effective and
binding, as to any other compacting state and in the state of New York,
upon enactment of the compact into law by that state. The governors of
non-member states or their designees will be invited to participate in
interstate commission activities on a non-voting basis prior to adoption
of the compact by all states and territories of the United States.
Amendments to the compact may be proposed by the interstate commission
for enactment by the compacting states. No amendment shall become
effective and binding upon the interstate commission and the compacting
states unless and until it is enacted into law by unanimous consent of
the compacting states.
ARTICLE XII
WITHDRAWAL, DEFAULT, TERMINATION AND JUDICIAL ENFORCEMENT
(a) Withdrawal. Once effective, the compact shall continue in force
and remain binding upon each and every compacting state; provided, that
a compacting state may withdraw from the compact ("withdrawing state")
by enacting a statute specifically repealing the statute which enacted
the compact into law.
The effective date of withdrawal is the effective date of the repeal.
The withdrawing state shall immediately notify the chairperson of the
interstate commission in writing upon the introduction of legislation
repealing this compact in the withdrawing state. The interstate
commission shall notify the other compacting states of the withdrawing
state's intent to withdraw within sixty days of its receipt thereof.
The withdrawing state is responsible for all assessments, obligations
and liabilities incurred through the effective date of withdrawal,
including any obligations, the performance of which extend beyond the
effective date of withdrawal. Reinstatement following withdrawal of any
compacting state shall occur upon the withdrawing state reenacting the
compact or upon such later date as determined by the interstate
commission.
(b) Default. If the interstate commission determines that any
compacting state has at any time defaulted ("defaulting state") in the
performance of any of its obligations or responsibilities under this
compact, the by-laws or any duly promulgated rules the interstate
commission may impose any or all of the following penalties:
1. Fines, fees and costs in such amounts as are deemed to be
reasonable as fixed by the interstate commission;
2. Remedial training and technical assistance as directed by the
interstate commission;
3. Suspension and termination of membership in the compact. Suspension
shall be imposed only after all other reasonable means of securing
compliance under the by-laws and rules have been exhausted. Immediate
notice of suspension shall be given by the interstate commission to the
governor, the chief justice or chief judicial officer of the state, the
majority and minority leaders of the defaulting state's legislature, and
the state council.
The grounds for default include, but are not limited to, failure of a
compacting state to perform such obligations or responsibilities imposed
upon it by this compact, interstate commission by-laws, or duly
promulgated rules. The interstate commission shall immediately notify
the defaulting state in writing of the penalty imposed by the interstate
commission on the defaulting state pending a cure of the default. The
interstate commission shall stipulate the conditions and the time period
within which the defaulting state must cure its default. If the
defaulting state fails to cure the default within the time period
specified by the interstate commission, in addition to any other
penalties imposed herein, the defaulting state may be terminated from
the compact upon an affirmative vote of a majority of the compacting
states and all rights, privileges and benefits conferred by this compact
shall be terminated from the effective date of suspension. Within sixty
days of the effective date of termination of a defaulting state, the
interstate commission shall notify the governor, the chief justice or
chief judicial officer, the majority and minority leaders of the
defaulting state's legislature, and the state council of such
termination.
The defaulting state is responsible for all assessments, obligations
and liabilities incurred through the effective date of termination
including any obligations, the performance of which extends beyond the
effective date of termination.
The interstate commission shall not bear any costs relating to the
defaulting state unless otherwise mutually agreed upon between the
interstate commission and the defaulting state.
Reinstatement following termination of any compacting state requires
both a reenactment of the compact by the defaulting state and the
approval of the interstate commission pursuant to the rules.
(c) Judicial enforcement. The interstate commission may, by majority
vote of the members, initiate legal action in the United States District
Court for the District of Columbia or, at the discretion of the
interstate commission, in the federal district where the interstate
commission has its offices to enforce compliance with the provisions of
the compact, its duly promulgated rules and by-laws, against any
compacting state in default. In the event judicial enforcement is
necessary the prevailing party shall be awarded all costs of such
litigation including reasonable attorneys' fees.
(d) Dissolution of compact. The compact dissolves effective upon the
date of the withdrawal or default of the compacting state which reduces
membership in the compact to one compacting state.
Upon the dissolution of this compact, the compact becomes null and
void and shall be of no further force or effect, and the business and
affairs of the interstate commission shall be wound up and any surplus
funds shall be distributed in accordance with the by-laws.
ARTICLE XIII
SEVERABILITY AND CONSTRUCTION
The provisions of this compact shall be severable, and if any phrase,
clause, sentence or provision is deemed unenforceable, the remaining
provisions of the compact shall be enforceable.
The provisions of this compact shall be liberally constructed to
effectuate its purposes.
ARTICLE XIV
BINDING EFFECT OF COMPACT AND OTHER LAWS
(a) Other laws. Nothing in this compact prevents the enforcement of
any other law of a compacting state that is not inconsistent with this
compact.
All compacting states' laws conflicting with this compact are
superseded to the extent of the conflict.
(b) Binding effect of the compact. All lawful actions of the
interstate commission, including all rules and by-laws promulgated by
the interstate commission, are binding upon the compacting states.
All agreements between the interstate commission and the compacting
states are binding in accordance with their terms.
Upon the request of a party to a conflict over meaning or
interpretation of interstate commission actions, and upon a majority
vote of the compacting states, the interstate commission may issue
advisory opinions regarding such meaning or interpretation.
In the event any provision of this compact exceeds the constitutional
limits imposed on the legislature of any compacting state, the
obligations, duties, powers or jurisdiction sought to be conferred by
such provision upon the interstate commission shall be ineffective and
such obligations, duties, powers or jurisdiction shall remain in the
compacting state and shall be exercised by the agency thereof to which
such obligations, duties, powers or jurisdiction are delegated by law in
effect at the time this compact becomes effective.
* NB Repealed September 1, 2027
Interstate hearings for parole violations. 1. For the
purposes of this section, "preliminary violation hearing" means a
hearing to determine whether there are reasonable grounds to believe
that a person released on parole has violated the conditions of his
parole.
2. Whenever there is reasonable cause to believe that a person
released on parole in another state but under the parole supervision of
this state pursuant to section two hundred fifty-nine-m of this article
has violated the conditions thereof, a member or designee of the board
of parole, upon request of the sending state, may conduct a preliminary
violation hearing unless such hearing is waived by the parolee.
3. Whenever there is reasonable cause to believe that a person
released on parole in this state but under the parole supervision of
another state pursuant to section two hundred fifty-nine-m of this
article has violated the conditions thereof, any person duly authorized
in such other state to conduct preliminary violation hearings, upon
request of the chairman of the board of parole, may conduct such
hearing, unless such hearing is waived by the parolee. The preliminary
violation hearing and the determinations made thereat shall have the
same force and effect as preliminary violation hearing conducted in this
state by the board of parole or a member, hearing officer or panel
thereof.
4. Whenever a preliminary violation hearing is conducted in another
state pursuant to this section, the alleged violator must be afforded a
final hearing within ninety days from the date of his return to this
state.
Interstate detention. (1) Notwithstanding any other provision
of law, a defendant subject to section two hundred fifty-nine-mm of this
article, may be detained as authorized by the interstate compact for
adult offender supervision.
(2) A defendant shall be detained at a local correctional facility,
except as otherwise provided in subdivision three of this section.
(3) (a) A defendant sixteen years of age or younger, who allegedly
commits a criminal act or violation of his or her supervision on or
after October first, two thousand eighteen or (b) a defendant seventeen
years of age or younger who allegedly commits a criminal act or
violation of his or her supervision on or after October first, two
thousand nineteen, shall be detained in a juvenile detention facility.
Civil actions against board personnel. 1. No civil action
shall be brought in any court of the state, except by the attorney
general on behalf of the state, against any officer or employee of the
board of parole or former division of parole, in his personal capacity,
for damages arising out of any act done or the failure to perform any
act within the scope of the employment and in the discharge of the
duties by such officer or employee.
2. Any claim for damages arising out of any act done or the failure to
perform any act within the scope of the employment and in the discharge
of the duties of any officer or employee of the board of parole or
former division of parole shall be brought and maintained in the court
of claims as a claim against the state.
3. The state shall save harmless and indemnify any officer or employee
of the board of parole or former division of parole from financial loss
resulting from a claim filed in a court of the United States for damages
arising out of an act done or the failure to perform any act that was
(a) within the scope of the employment and in the discharge of the
duties of such officer or employee, and (b) not done or omitted with the
intent to violate any rule or regulation of the department, board or
former division or of any statute or governing case law of the state or
of the United States at the time the damages were sustained; provided
that the officer or employee shall comply with the provisions of
subdivision four of section seventeen of the public officers law.
4. (a) The provisions of this section shall supplement, and be
available in addition to, the provisions of section seventeen of the
public officers law and, insofar as this section is inconsistent with
section seventeen of the public officers law, the provisions of this
section shall be controlling.
(b) The provisions of this section shall not be construed in any way
to impair, modify or abrogate any immunity available to any officer or
employee of the board of parole or former division of parole under the
statutory or decisional law of the state or the United States.
5. This section shall not in any way impair, limit or modify the
rights and obligations of any insurer under any policy of insurance.
6. The benefits of subdivision three hereof shall inure only to
officers and employees of the board of parole or former division of
parole and shall not enlarge or diminish the rights of any other party.
7. This section shall apply with respect to claims arising on or after
the effective date of this section. Claims arising prior thereto shall
be governed by section seventeen of the public officers law or section
twenty-four of the correction law as the case may be.
Release on medical parole for terminally ill incarcerated
individuals. 1. * (a) The board shall have the power to release on
medical parole any incarcerated individual serving an indeterminate or
determinate sentence of imprisonment who, pursuant to subdivision two of
this section, has been certified to be suffering from a terminal
condition, disease or syndrome and to be so debilitated or incapacitated
as to create a reasonable probability that he or she is physically or
cognitively incapable of presenting any danger to society, provided,
however, that no incarcerated individual serving a sentence imposed upon
a conviction for murder in the first degree or an attempt or conspiracy
to commit murder in the first degree shall be eligible for such release,
and provided further that no incarcerated individual serving a sentence
imposed upon a conviction for any of the following offenses shall be
eligible for such release unless in the case of an indeterminate
sentence he or she has served at least one-half of the minimum period of
the sentence and in the case of a determinate sentence he or she has
served at least one-half of the term of his or her determinate sentence:
murder in the second degree, manslaughter in the first degree, any
offense defined in article one hundred thirty of the penal law or an
attempt to commit any of these offenses. Solely for the purpose of
determining medical parole eligibility pursuant to this section, such
one-half of the minimum period of the indeterminate sentence and
one-half of the term of the determinate sentence shall not be credited
with any time served under the jurisdiction of the department prior to
the commencement of such sentence pursuant to the opening paragraph of
subdivision one of section 70.30 of the penal law or subdivision two-a
of section 70.30 of the penal law, except to the extent authorized by
subdivision three of section 70.30 of the penal law.
* NB Effective until September 1, 2027
* (a) The board shall have the power to release on medical parole any
incarcerated individual serving an indeterminate or determinate sentence
of imprisonment who, pursuant to subdivision two of this section, has
been certified to be suffering from a terminal condition, disease or
syndrome and to be so debilitated or incapacitated as to create a
reasonable probability that he or she is physically or cognitively
incapable of presenting any danger to society, provided, however, that
no incarcerated individual serving a sentence imposed upon a conviction
for murder in the first degree or an attempt or conspiracy to commit
murder in the first degree shall be eligible for such release, and
provided further that no incarcerated individual serving a sentence
imposed upon a conviction for any of the following offenses shall be
eligible for such release unless in the case of an indeterminate
sentence he or she has served at least one-half of the minimum period of
the sentence and in the case of a determinate sentence he or she has
served at least one-half of the term of his or her determinate sentence:
murder in the second degree, manslaughter in the first degree, any
offense defined in article one hundred thirty of the penal law or an
attempt to commit any of these offenses. Solely for the purpose of
determining medical parole eligibility pursuant to this section, such
one-half of the minimum period of the indeterminate sentence and
one-half of the term of the determinate sentence shall not be credited
with any time served under the jurisdiction of the department prior to
the commencement of such sentence pursuant to the opening paragraph of
subdivision one of section 70.30 of the penal law or subdivision two-a
of section 70.30 of the penal law, except to the extent authorized by
subdivision three of section 70.30 of the penal law.
* NB Effective September 1, 2027
(b) Such release shall be granted only after the board considers
whether, in light of the incarcerated individual's medical condition,
there is a reasonable probability that the incarcerated individual, if
released, will live and remain at liberty without violating the law, and
that such release is not incompatible with the welfare of society and
will not so deprecate the seriousness of the crime as to undermine
respect for the law, and shall be subject to the limits and conditions
specified in subdivision four of this section. Except as set forth in
paragraph (a) of this subdivision, such release may be granted at any
time during the term of an incarcerated individual's sentence,
notwithstanding any other provision of law.
(c) The board shall afford notice to the sentencing court, the
district attorney and the attorney for the incarcerated individual that
the incarcerated individual is being considered for release pursuant to
this section and the parties receiving notice shall have fifteen days to
comment on the release of the incarcerated individual. Release on
medical parole shall not be granted until the expiration of the comment
period provided for in this paragraph.
2. (a) The commissioner, on the commissioner's own initiative or at
the request of an incarcerated individual, or an incarcerated
individual's spouse, relative or attorney, may, in the exercise of the
commissioner's discretion, direct that an investigation be undertaken to
determine whether a diagnosis should be made of an incarcerated
individual who appears to be suffering from a terminal condition,
disease or syndrome. Any such medical diagnosis shall be made by a
physician licensed to practice medicine in this state pursuant to
section sixty-five hundred twenty-four of the education law. Such
physician shall either be employed by the department, shall render
professional services at the request of the department, or shall be
employed by a hospital or medical facility used by the department for
the medical treatment of incarcerated individuals. The diagnosis shall
be reported to the commissioner and shall include but shall not be
limited to a description of the terminal condition, disease or syndrome
suffered by the incarcerated individual, a prognosis concerning the
likelihood that the incarcerated individual will not recover from such
terminal condition, disease or syndrome, a description of the
incarcerated individual's physical or cognitive incapacity which shall
include a prediction respecting the likely duration of the incapacity,
and a statement by the physician of whether the incarcerated individual
is so debilitated or incapacitated as to be severely restricted in his
or her ability to self-ambulate or to perform significant normal
activities of daily living. This report also shall include a
recommendation of the type and level of services and treatment the
incarcerated individual would require if granted medical parole and a
recommendation for the types of settings in which the services and
treatment should be given.
(b) The commissioner, or the commissioner's designee, shall review the
diagnosis and may certify that the incarcerated individual is suffering
from such terminal condition, disease or syndrome and that the
incarcerated individual is so debilitated or incapacitated as to create
a reasonable probability that he or she is physically or cognitively
incapable of presenting any danger to society. If the commissioner does
not so certify then the incarcerated individual shall not be referred to
the board for consideration for release on medical parole. If the
commissioner does so certify, then the commissioner shall, within seven
working days of receipt of such diagnosis, refer the incarcerated
individual to the board for consideration for release on medical parole.
However, no such referral of an incarcerated individual to the board
shall be made unless the incarcerated individual has been examined by a
physician and diagnosed as having a terminal condition, disease or
syndrome as previously described herein at some time subsequent to such
incarcerated individual's admission to a facility operated by the
department of correctional services.
(c) When the commissioner refers an incarcerated individual to the
board, the commissioner shall provide an appropriate medical discharge
plan established by the department. The department is authorized to
request assistance from the department of health and from the county in
which the incarcerated individual resided and committed his or her
crime, which shall provide assistance with respect to the development
and implementation of a discharge plan, including potential placements
of a releasee. The department and the department of health shall jointly
develop standards for the medical discharge plan that are appropriately
adapted to the criminal justice setting, based on standards established
by the department of health for hospital medical discharge planning. The
board may postpone its decision pending completion of an adequate
discharge plan, or may deny release based on inadequacy of the discharge
plan.
3. Any certification by the commissioner or the commissioner's
designee pursuant to this section shall be deemed a judicial function
and shall not be reviewable if done in accordance with law.
4. (a) Medical parole granted pursuant to this section shall be for a
period of six months.
(b) The board shall require as a condition of release on medical
parole that the releasee agree to remain under the care of a physician
while on medical parole and in a hospital established pursuant to
article twenty-eight of the public health law, a hospice established
pursuant to article forty of the public health law or any other
placement that can provide appropriate medical care as specified in the
medical discharge plan required by subdivision two of this section. The
medical discharge plan shall state that the availability of the
placement has been confirmed, and by whom. Notwithstanding any other
provision of law, when an incarcerated individual who qualifies for
release under this section is cognitively incapable of signing the
requisite documentation to effectuate the medical discharge plan and,
after a diligent search no person has been identified who could
otherwise be appointed as the incarcerated individual's guardian by a
court of competent jurisdiction, then, solely for the purpose of
implementing the medical discharge plan, the facility health services
director at the facility where the incarcerated individual is currently
incarcerated shall be lawfully empowered to act as the incarcerated
individual's guardian for the purpose of effectuating the medical
discharge.
(c) Where appropriate, the board shall require as a condition of
release that medical parolees be supervised on intensive caseloads at
reduced supervision ratios.
(d) The board shall require as a condition of release on medical
parole that the releasee undergo periodic medical examinations and a
medical examination at least one month prior to the expiration of the
period of medical parole and, for the purposes of making a decision
pursuant to paragraph (e) of this subdivision, that the releasee provide
the board with a report, prepared by the treating physician, of the
results of such examination. Such report shall specifically state
whether or not the parolee continues to suffer from a terminal
condition, disease, or syndrome, and to be so debilitated or
incapacitated as to be severely restricted in his or her ability to
self-ambulate or to perform significant normal activities of daily
living.
(e) Prior to the expiration of the period of medical parole the board
shall review the medical examination report required by paragraph (d) of
this subdivision and may again grant medical parole pursuant to this
section; provided, however, that the provisions of paragraph (c) of
subdivision one and subdivision two of this section shall not apply.
(f) If the updated medical report presented to the board states that a
parolee released pursuant to this section is no longer so debilitated or
incapacitated as to create a reasonable probability that he or she is
physically or cognitively incapable of presenting any danger to society
or if the releasee fails to submit the updated medical report then the
board may not make a new grant of medical parole pursuant to paragraph
(e) of this subdivision. Where the board has not granted medical parole
pursuant to such paragraph (e) the board shall promptly conduct through
one of its members, or cause to be conducted by a hearing officer
designated by the board, a hearing to determine whether the releasee is
suffering from a terminal condition, disease or syndrome and is so
debilitated or incapacitated as to create a reasonable probability that
he or she is physically or cognitively incapable of presenting any
danger to society and does not present a danger to society. If the board
makes such a determination then it may make a new grant of medical
parole pursuant to the standards of paragraph (b) of subdivision one of
this section. At the hearing, the releasee shall have the right to
representation by counsel, including the right, if the releasee is
financially unable to retain counsel, to have the appropriate court
assign counsel in accordance with the county or city plan for
representation placed in operation pursuant to article eighteen-B of the
county law.
(g) The hearing and determination provided for by paragraph (f) of
this subdivision shall be concluded within the six month period of
medical parole. If the board does not renew the grant of medical parole,
it shall order that the releasee be returned immediately to the custody
of the department.
(h) In addition to the procedures set forth in paragraph (f) of this
subdivision, medical parole may be revoked at any time upon any of the
grounds specified in paragraph (a) of subdivision three of section two
hundred fifty-nine-i of this article, and in accordance with the
procedures specified in subdivision three of section two hundred
fifty-nine-i of this article.
(i) A releasee who is on medical parole and who becomes eligible for
parole pursuant to the provisions of subdivision two of section two
hundred fifty-nine-i of this article shall be eligible for parole
consideration pursuant to such subdivision.
5. A denial of release on medical parole or expiration of medical
parole in accordance with the provisions of paragraph (f) of subdivision
four of this section shall not preclude the incarcerated individual from
reapplying for medical parole or otherwise affect an incarcerated
individual's eligibility for any other form of release provided for by
law.
6. To the extent that any provision of this section requires
disclosure of medical information for the purpose of processing an
application or making a decision, regarding release on medical parole or
renewal of medical parole, or for the purpose of appropriately
supervising a person released on medical parole, and that such
disclosure would otherwise be prohibited by article twenty-seven-F of
the public health law, the provisions of this section shall be
controlling.
7. The commissioner and the chairman of the board shall be authorized
to promulgate rules and regulations for their respective agencies to
implement the provisions of this section.
8. Any decision made by the board pursuant to this section may be
appealed pursuant to subdivision four of section two hundred
fifty-nine-i of this article.
9. The chairman shall report annually to the governor, the temporary
president of the senate and the speaker of the assembly, the
chairpersons of the assembly and senate codes committees, the
chairperson of the senate crime and corrections committee, and the
chairperson of the assembly corrections committee the number of
incarcerated individuals who have applied for medical parole; the number
who have been granted medical parole; the nature of the illness of the
applicants, the counties to which they have been released and the nature
of the placement pursuant to the medical discharge plan; the categories
of reasons for denial for those who have been denied; the number of
releasees who have been granted an additional period or periods of
medical parole and the number of such grants; the number of releasees on
medical parole who have been returned to imprisonment in the custody of
the department and the reasons for return.
10. Notwithstanding any other provision of law, in the case of an
incarcerated individual whose terminal condition, disease or syndrome
meets the criteria for medical parole as set forth in paragraph (a) of
subdivision one of this section, and who is not serving a sentence for
one or more offenses set forth in paragraph (i) of subdivision one of
section eight hundred six of the correction law which would render such
incarcerated individual ineligible for presumptive release, the granting
of medical parole shall be determined by the commissioner provided that
a release of such incarcerated individual shall be in accordance with
subdivision eleven of this section. In such case, the provisions that
would have applied to and the procedures that would have been followed
by the board of parole pursuant to this section shall apply to and be
followed by the commissioner.
11. (a) After the commissioner has made a determination to grant
medical parole pursuant to subdivision ten of this section, the
commissioner shall notify the chairperson of the board of parole, or
their designee who shall be a member of the board of parole, and provide
him or her with all relevant records, files, information and
documentation, which includes but is not limited to the criminal
history, medical diagnosis and treatment pertaining to the terminally
ill incarcerated individual no more than five days from the date of the
determination. (b) The chairperson or his or her designee shall either
accept the commissioner's grant of medical parole, in which case the
incarcerated individual may be released by the commissioner, or conduct
further review. This decision or review shall be made within five days
of the receipt of the relevant records, files, information and
documentation from the commissioner. The chairperson's further review
may include, but not be limited to, an appearance by the terminally ill
incarcerated individual before the chairperson or his or her designee.
(c) After this further review, the chairperson shall either accept the
commissioner's grant of medical parole, in which case the incarcerated
individual may be released by the commissioner, or the chairperson shall
schedule an appearance for the terminally ill incarcerated individual
before the board of parole.
In the event the terminally ill incarcerated individual is scheduled
to make an appearance before the board of parole pursuant to this
subdivision, the matter shall be heard by a panel that does not include
the chairperson or any member of the board of parole who was involved in
the review of the commissioner's determination.
Release on medical parole for incarcerated individuals
suffering significant debilitating illnesses. 1. (a) The board shall
have the power to release on medical parole any incarcerated individual
serving an indeterminate or determinate sentence of imprisonment who,
pursuant to subdivision two of this section, has been certified to be
suffering from a significant and permanent non-terminal condition,
disease or syndrome that has rendered the incarcerated individual so
physically or cognitively debilitated or incapacitated as to create a
reasonable probability that he or she does not present any danger to
society, provided, however, that no incarcerated individual serving a
sentence imposed upon a conviction for murder in the first degree or an
attempt or conspiracy to commit murder in the first degree shall be
eligible for such release, and provided further that no incarcerated
individual serving a sentence imposed upon a conviction for any of the
following offenses shall be eligible for such release unless in the case
of an indeterminate sentence he or she has served at least one-half of
the minimum period of the sentence and in the case of a determinate
sentence he or she has served at least one-half of the term of his or
her determinate sentence: murder in the second degree, manslaughter in
the first degree, any offense defined in article one hundred thirty of
the penal law or an attempt to commit any of these offenses. Solely for
the purpose of determining medical parole eligibility pursuant to this
section, such one-half of the minimum period of the indeterminate
sentence and one-half of the term of the determinate sentence shall not
be credited with any time served under the jurisdiction of the
department prior to the commencement of such sentence pursuant to the
opening paragraph of subdivision one of section 70.30 of the penal law
or subdivision two-a of section 70.30 of the penal law, except to the
extent authorized by subdivision three of section 70.30 of the penal
law.
(b) Such release shall be granted only after the board considers
whether, in light of the incarcerated individual's medical condition,
there is a reasonable probability that the incarcerated individual, if
released, will live and remain at liberty without violating the law, and
that such release is not incompatible with the welfare of society and
will not so deprecate the seriousness of the crime as to undermine
respect for the law, and shall be subject to the limits and conditions
specified in subdivision four of this section. In making this
determination, the board shall consider: (i) the nature and seriousness
of the incarcerated individual's crime; (ii) the incarcerated
individual's prior criminal record; (iii) the incarcerated individual's
disciplinary, behavioral and rehabilitative record during the term of
his or her incarceration; (iv) the amount of time the incarcerated
individual must serve before becoming eligible for release pursuant to
section two hundred fifty-nine-i of this article; (v) the current age of
the incarcerated individual and his or her age at the time of the crime;
(vi) the recommendations of the sentencing court, the district attorney
and the victim or the victim's representative; (vii) the nature of the
incarcerated individual's medical condition, disease or syndrome and the
extent of medical treatment or care that the incarcerated individual
will require as a result of that condition, disease or syndrome; and
(viii) any other relevant factor. Except as set forth in paragraph (a)
of this subdivision, such release may be granted at any time during the
term of an incarcerated individual's sentence, notwithstanding any other
provision of law.
(c) The board shall afford notice to the sentencing court, the
district attorney, the attorney for the incarcerated individual and,
where necessary pursuant to subdivision two of section two hundred
fifty-nine-i of this article, the crime victim, that the incarcerated
individual is being considered for release pursuant to this section and
the parties receiving notice shall have thirty days to comment on the
release of the incarcerated individual. Release on medical parole shall
not be granted until the expiration of the comment period provided for
in this paragraph.
2. (a) The commissioner, on the commissioner's own initiative or at
the request of an incarcerated individual, or an incarcerated
individual's spouse, relative or attorney, may, in the exercise of the
commissioner's discretion, direct that an investigation be undertaken to
determine whether a diagnosis should be made of an incarcerated
individual who appears to be suffering from a significant and permanent
non-terminal and incapacitating condition, disease or syndrome. Any such
medical diagnosis shall be made by a physician licensed to practice
medicine in this state pursuant to section sixty-five hundred
twenty-four of the education law. Such physician shall either be
employed by the department, shall render professional services at the
request of the department, or shall be employed by a hospital or medical
facility used by the department for the medical treatment of
incarcerated individuals. The diagnosis shall be reported to the
commissioner and shall include but shall not be limited to a description
of the condition, disease or syndrome suffered by the incarcerated
individual, a prognosis concerning the likelihood that the incarcerated
individual will not recover from such condition, disease or syndrome, a
description of the incarcerated individual's physical or cognitive
incapacity which shall include a prediction respecting the likely
duration of the incapacity, and a statement by the physician of whether
the incarcerated individual is so debilitated or incapacitated as to be
severely restricted in his or her ability to self-ambulate or to perform
significant normal activities of daily living. This report also shall
include a recommendation of the type and level of services and treatment
the incarcerated individual would require if granted medical parole and
a recommendation for the types of settings in which the services and
treatment should be given.
(b) The commissioner, or the commissioner's designee, shall review the
diagnosis and may certify that the incarcerated individual is suffering
from such condition, disease or syndrome and that the incarcerated
individual is so debilitated or incapacitated as to create a reasonable
probability that he or she is physically or cognitively incapable of
presenting any danger to society. If the commissioner does not so
certify then the incarcerated individual shall not be referred to the
board for consideration for release on medical parole. If the
commissioner does so certify, then the commissioner shall, within seven
working days of receipt of such diagnosis, refer the incarcerated
individual to the board for consideration for release on medical parole.
However, no such referral of an incarcerated individual to the board of
parole shall be made unless the incarcerated individual has been
examined by a physician and diagnosed as having a condition, disease or
syndrome as previously described herein at some time subsequent to such
incarcerated individual's admission to a facility operated by the
department.
(c) When the commissioner refers an incarcerated individual to the
board, the commissioner shall provide an appropriate medical discharge
plan established by the department. The department is authorized to
request assistance from the department of health and from the county in
which the incarcerated individual resided and committed his or her
crime, which shall provide assistance with respect to the development
and implementation of a discharge plan, including potential placements
of a releasee. The department and the department of health shall jointly
develop standards for the medical discharge plan that are appropriately
adapted to the criminal justice setting, based on standards established
by the department of health for hospital medical discharge planning. The
board may postpone its decision pending completion of an adequate
discharge plan, or may deny release based on inadequacy of the discharge
plan.
3. Any certification by the commissioner or the commissioner's
designee pursuant to this section shall be deemed a judicial function
and shall not be reviewable if done in accordance with law.
4. (a) Medical parole granted pursuant to this section shall be for a
period of six months.
(b) The board shall require as a condition of release on medical
parole that the releasee agree to remain under the care of a physician
while on medical parole and in a hospital established pursuant to
article twenty-eight of the public health law, a hospice established
pursuant to article forty of the public health law or any other
placement, including a residence with family or others, that can provide
appropriate medical care as specified in the medical discharge plan
required by subdivision two of this section. The medical discharge plan
shall state that the availability of the placement has been confirmed,
and by whom. Notwithstanding any other provision of law, when an
incarcerated individual who qualifies for release under this section is
cognitively incapable of signing the requisite documentation to
effectuate the medical discharge plan and, after a diligent search no
person has been identified who could otherwise be appointed as the
incarcerated individual's guardian by a court of competent jurisdiction,
then, solely for the purpose of implementing the medical discharge plan,
the facility health services director at the facility where the
incarcerated individual is currently incarcerated shall be lawfully
empowered to act as the incarcerated individual's guardian for the
purpose of effectuating the medical discharge.
(c) Where appropriate, the board shall require as a condition of
release that medical parolees be supervised on intensive caseloads at
reduced supervision ratios.
(d) The board shall require as a condition of release on medical
parole that the releasee undergo periodic medical examinations and a
medical examination at least one month prior to the expiration of the
period of medical parole and, for the purposes of making a decision
pursuant to paragraph (e) of this subdivision, that the releasee provide
the board with a report, prepared by the treating physician, of the
results of such examination. Such report shall specifically state
whether or not the parolee continues to suffer from a significant and
permanent non-terminal and debilitating condition, disease, or syndrome,
and to be so debilitated or incapacitated as to be severely restricted
in his or her ability to self-ambulate or to perform significant normal
activities of daily living.
(e) Prior to the expiration of the period of medical parole the board
shall review the medical examination report required by paragraph (d) of
this subdivision and may again grant medical parole pursuant to this
section; provided, however, that the provisions of paragraph (c) of
subdivision one and subdivision two of this section shall not apply.
(f) If the updated medical report presented to the board states that a
parolee released pursuant to this section is no longer so debilitated or
incapacitated as to create a reasonable probability that he or she is
physically or cognitively incapable of presenting any danger to society
or if the releasee fails to submit the updated medical report then the
board may not make a new grant of medical parole pursuant to paragraph
(e) of this subdivision. Where the board has not granted medical parole
pursuant to such paragraph (e) the board shall promptly conduct through
one of its members, or cause to be conducted by a hearing officer
designated by the board, a hearing to determine whether the releasee is
suffering from a significant and permanent non-terminal and
incapacitating condition, disease or syndrome and is so debilitated or
incapacitated as to create a reasonable probability that he or she is
physically or cognitively incapable of presenting any danger to society
and does not present a danger to society. If the board makes such a
determination then it may make a new grant of medical parole pursuant to
the standards of paragraph (b) of subdivision one of this section. At
the hearing, the releasee shall have the right to representation by
counsel, including the right, if the releasee is financially unable to
retain counsel, to have the appropriate court assign counsel in
accordance with the county or city plan for representation placed in
operation pursuant to article eighteen-B of the county law.
(g) The hearing and determination provided for by paragraph (f) of
this subdivision shall be concluded within the six month period of
medical parole. If the board does not renew the grant of medical parole,
it shall order that the releasee be returned immediately to the custody
of the department of correctional services.
(h) In addition to the procedures set forth in paragraph (f) of this
subdivision, medical parole may be revoked at any time upon any of the
grounds specified in paragraph (a) of subdivision three of section two
hundred fifty-nine-i of this article, and in accordance with the
procedures specified in subdivision three of section two hundred
fifty-nine-i of this article.
(i) A releasee who is on medical parole and who becomes eligible for
parole pursuant to the provisions of subdivision two of section two
hundred fifty-nine-i of this article shall be eligible for parole
consideration pursuant to such subdivision.
5. A denial of release on medical parole or expiration of medical
parole in accordance with the provisions of paragraph (f) of subdivision
four of this section shall not preclude the incarcerated individual from
reapplying for medical parole or otherwise affect an incarcerated
individual's eligibility for any other form of release provided for by
law.
6. To the extent that any provision of this section requires
disclosure of medical information for the purpose of processing an
application or making a decision, regarding release on medical parole or
renewal of medical parole, or for the purpose of appropriately
supervising a person released on medical parole, and that such
disclosure would otherwise be prohibited by article twenty-seven-F of
the public health law, the provisions of this section shall be
controlling.
7. The commissioner and the chair of the board shall be authorized to
promulgate rules and regulations for their respective agencies to
implement the provisions of this section.
8. Any decision made by the board pursuant to this section may be
appealed pursuant to subdivision four of section two hundred
fifty-nine-i of this article.
9. The chair of the board shall report annually to the governor, the
temporary president of the senate and the speaker of the assembly, the
chairpersons of the assembly and senate codes committees, the
chairperson of the senate crime and corrections committee, and the
chairperson of the assembly corrections committee the number of
incarcerated individuals who have applied for medical parole under this
section; the number who have been granted medical parole; the nature of
the illness of the applicants, the counties to which they have been
released and the nature of the placement pursuant to the medical
discharge plan; the categories of reasons for denial for those who have
been denied; the number of releasees who have been granted an additional
period or periods of medical parole and the number of such grants; the
number of releasees on medical parole who have been returned to
imprisonment in the custody of the department and the reasons for
return.
* § 259-t. Permitted activities. Where any person is granted
presumptive release, parole, conditional release, release to
post-release supervision or any other type of supervised release, the
state board of parole shall not deem a person to be in violation of and
the state board of parole shall not terminate such granted presumptive
release, parole, conditional release, release to post-release
supervision or any other type of supervised release solely because such
person engaged in bona fide work for an employer, including travel time
to or from bona fide work, during curfew times set by conditions of
probation, parole, presumptive release, conditional release or release
to post-release supervision. For purposes of this section, bona fide
work is work performed as an employee for an employer, as defined in
section two of the labor law.
* NB There are 2 § 259-t's
ARTICLE 13 Division of Housing
Division of housing and community renewal. The commissioner of
housing and community renewal appointed pursuant to the provisions of
the public housing law, shall be the head of the division of housing and
community renewal and shall have and exercise all the functions, powers
and duties vested in him by that or any other law. The commissioner of
housing and community renewal shall receive a salary to be fixed by the
governor within the amount appropriated therefor.
ARTICLE 13-A Alternatives to Incarceration Service Plans
* § 261. Alternatives to incarceration service plans. 1. As used in
this article:
a. "Service plan" or "plan" means a county plan designed to identify
and provide eligible programs as determined by either an advisory board
established pursuant to this article, or by an existing criminal justice
coordinating council, provided, however, the membership of such council
includes a majority of those persons set forth in subdivision two of
this section, provided that one person shall be the chief administrative
officer. The following factors considered, utilized and incorporated in
the plan shall include but not be limited to:
(i) an analysis of the jail population to assist in determining
incarceration practices and trends, including, if submitting an approved
amendment pursuant to section two hundred sixty-six of this article, an
analysis of the relationship between alcohol, drugs and crime and the
effects of alcohol and substance abuse on the local criminal justice
system and jail, probation and alternatives to incarceration
populations, consistent with planning guidelines established by the
office; the types and nature of alternative programming needed, and
appropriate eligibility requirements;
(ii) an analysis of recent overcrowding problems and measures taken by
the county to relieve them;
(iii) a summary of existing alternatives programs and/or related
services and previous efforts made by the county to develop alternatives
to incarceration and if an approved amendment is submitted, pursuant to
section two hundred sixty-six of this article, a summary of existing
alcohol and substance abuse programs;
(iv) a comprehensive plan for the development of alternatives programs
that addresses the specific needs identified in subparagraph (i) of this
paragraph and furthers the county's long-range goals in the area of
alternatives to incarceration;
(v) specific proposals for the use of state aid available under this
chapter, including a description of services to be provided,
characteristics of the target populations, steps to be taken to identify
eligible participants, the goals and objectives to be accomplished
through the proposals;
(vi) a detailed time frame for the implementation and evaluation of
the specific proposals described in subparagraph (v) of this paragraph;
(vii) a summary of those criteria by which the office and the state
commission of correction may measure the proposal's impact on jail
overcrowding; and
(viii) any other information which the office may request consistent
with the purposes of this chapter.
Nothing in this article shall prohibit the development of regional
programs by two or more counties.
b. "Eligible programs" means existing programs, enhancement of
existing programs or initiation of new programs or, if submitting an
approved amendment pursuant to section two hundred sixty-six of this
article, eligible alcohol and substance abuse programs as defined in
paragraph c of this subdivision which serve to assist the court, public
officers or others in identifying and avoiding the inappropriate use of
incarceration. Such programs may be administered by either the county or
private, community-based organizations and may include, but shall not be
limited to: new or enhanced specialized probation services which exceed
those probation services otherwise required to be performed in
accordance with applicable law, rule or regulation of the division of
criminal justice services subject to the provisions of this article; a
pre-trial alternative to detention program, including a comprehensive
pre-arraignment program which screens all defendants and ensures that
the court is fully advised of the availability of alternatives based
upon the defendant's suitability and needs prior to its determination
regarding the issuance of a securing order, or an effective bail review
program; alternatives to post-adjudicatory incarceration programs,
including community service, substance abuse or alcohol intervention
programs; and management information systems designed to improve the
county's ability to identify appropriate persons for alternatives to
detention or incarceration, as well as for improved classification of
persons within jail. For purposes of this paragraph, community service
programs may place persons performing community service at worksites
identified by the commissioner of the department of environmental
conservation and the commissioner of the office of parks, recreation and
historic preservation.
c. "Eligible alcohol and substance abuse programs" means eligible
programs which serve to assist the courts, public officers and others in
identifying and avoiding inappropriate incarceration by providing
services to offenders who have or have had a history of alcohol or
substance abuse and who, having been charged with or convicted of a
felony are also at risk of incarceration as a pre-trial detainee, a
determinate sentenced offender, an indeterminate sentenced offender, a
probation violator, or a parole violator. Such services may include, but
shall not be limited to programs and services that provide treatment,
care or rehabilitative services, either residential or out-patient, to
such offenders, or programs and services that provide for the purpose of
developing individualized service plans to address such offender's
alcohol or substance abuse problem, or programs and services that
provide referrals and other linkages to alcohol or substance abuse
programs to such offenders.
d. "Inappropriate incarceration" means instances where a person is or
is about to be confined or otherwise held in custody prior to trial on a
criminal charge, or pursuant to a sentence imposed upon conviction for
an offense, or pursuant to any criminal court order of commitment, and
where the purposes of such confinement would be adequately served by an
alternative to incarceration.
e. "Approved plan" means a plan submitted by the county executive upon
approval by the advisory board or council and by the local legislative
body, which has been determined by the office to meet the requirements
set forth in paragraph a of this subdivision.
f. "Approved amendment" means an amendment submitted by the county
executive upon approval by the advisory board or council and by the
local legislative body, which has been determined by the division to
meet the requirements set forth in section 266 of this article to
provide eligible alcohol and substance abuse programs.
g. "Advisory board" means that body established pursuant to this
section or a criminal justice coordinating council whose members include
the chief administrative officer and a majority of the members set forth
in subdivision two of this section.
h. "County executive" means a county administrator, county manager,
county director or county president and in cities with a population of
one million or more, the mayor.
i. "Office" means the office of probation and correctional
alternatives.
2. Every advisory board established for purposes of this article shall
include the following persons or their representatives:
a. County court judge, as appointed by the administrative judge for
that county; in cities with a population of one million or more, a
supreme court judge, as appointed by the administrative judge for that
city;
b. Police court, district court, town court or village court judge, as
appointed by the administrative judge of that county; in cities with a
population of one million or more, a criminal court judge, as appointed
by the administrative judge for that city;
c. The district attorney; in cities with a population of one million
or more, the district attorney shall be selected by the district
attorneys of the five boroughs to represent their joint views;
d. A representative of each of the agencies providing legal services
to those unable to afford counsel in criminal cases, not to exceed two;
e. County legislator or member of the county board of supervisors or,
in cities of one million of more, city councilman who chairs a public
safety committee, or the committee best designed to deal with this
subject, should such a committee exist;
f. County director of probation; in cities with a population of one
million or more, the commissioner of the department of probation;
g. Chief administrative officer;
h. A representative of local police agencies, other than the chief
administrative officer, selected by the heads of all such agencies to
represent their joint views; in cities with a population of one million
or more, the police commissioner;
i. Representative of a private organization operating within a county
who has experience and involvement in alternatives to incarceration
programs or pre-trial service programs, as designated by the county
executive;
j. Ex-offender and a crime victim, each designated by the county
executive;
k. County executive;
l. The director of community services as defined in section 41.03 of
the mental hygiene law; and
m. An individual within a county who provides state certified alcohol
and/or substance abuse treatment programs or services.
Prior to any official action by the board, all members shall be
designated. The chairperson shall be the county executive or his or her
duly designated representative. In cities with a population of one
million or more, a single advisory board shall be established.
* NB Repealed September 1, 2027
* § 262. Office assistance; plan; approval. 1. Upon request of either
the county executive or the advisory board, through the chairperson, the
office shall assist the county in the development of its plan by
providing technical assistance either directly or through contract with
persons or organizations which have expertise in the area of pre-trial
services or alternatives to incarceration programs.
2. Upon development of a proposed plan but at least thirty days prior
to approval by the board, public comment shall be solicited for
consideration by the board prior to final action.
3. Upon approval by the board, by a majority of its members, any
county outside the city of New York acting through its county executive,
and upon approval of the local legislative body, may submit a proposed
service plan to the office for approval. The city of New York acting
through the mayor and upon approval by the board of estimate may submit
a proposed service plan to the office for approval.
4. a. Each such plan shall be submitted to the office no later than
one hundred eighty days after the effective date of the chapter of the
laws of nineteen hundred eighty-eight which amended this paragraph and
added these words or by the first day of April of each subsequent year
and shall provide that upon approval it shall become effective. Annual
renewals of service plans are required and shall be submitted to the
office no later than the first day of April of each year following
submission of the original plan. A plan may be amended from time to time
by the advisory board, subject to the approval of the local legislative
body and the office. The office may recommend amendments to a plan,
subject to the approval of the advisory board and the local legislative
body. Reasons for such amendments may include but shall not be limited
to the addition or deletion of eligible programs with due consideration
to their utilization by the court, their effect on diverting the jail
bound population, reducing the overcrowding problem and their
cost-effectiveness.
b. The office shall either approve or deny the plan no later than
sixty days following its submission. If the plan is denied, the office
shall notify the county executive in writing of such denial and the
reasons therefor and shall specify any measures which should be
undertaken to secure the approval of the office. Nothing herein shall
prohibit the amendment of a plan to overcome the office's stated reasons
for denial or the resubmission of such proposed plan for approval.
* NB Repealed September 1, 2027
* § 263. Reports. The advisory board, through its chairperson, shall
submit to the office a quarterly report relative to the status of
compliance with the plan, pursuant to rules and regulations promulgated
by the commissioner of the division of criminal justice services upon
recommendation of the office. The report shall include, but not be
limited to: compliance with specific goals and objectives as reflected
in the plan; ability of programs to meet performance criteria;
compliance with timetables; utilization by the court of the programs
included in the plan; effect of such programs on diverting the jail
bound population and reducing the over crowding problem; and any other
information requested by the office and available to the advisory board
with respect to this article.
* NB Repealed September 1, 2027
* § 264. Noncompliance with plan. 1. If at any time the office
determines that a county plan is not being complied with, it shall
notify the advisory board through the chairperson and the state
commission of correction in writing of such fact, and it shall withhold
any portion of state funds not theretofore allocated. Such notice shall
state the particular reasons for the determination and demand compliance
with the plan within sixty days of the notice, setting forth the
specific actions deemed necessary to secure compliance. If compliance is
forthcoming the board and the state commission of correction shall be
notified of such fact in writing and any state funds heretofore withheld
shall be released. If compliance with the plan is not fulfilled within
such time or within a thirty day extension period as authorized herein,
the office shall notify the advisory board through the chairperson and
the state commission of correction. Upon such notification, the county
shall be deemed in noncompliance with the approved plan and the
provisions of subdivision eight of section five hundred-b of the
correction law shall be applied.
An extension may be granted by the office for a thirty day period upon
a request by the board through the chairperson, where the office
determines it to be appropriate, setting forth specific reasons for a
need for an extension and the steps which shall be undertaken to be in
compliance at the end of such period.
Any notification by the office of non-compliance pursuant to this
section shall be deemed a final determination for purposes of judicial
review.
2. The advisory board, through its chairperson, may reapply for
continuation of its approved plan or modified plan, provided it
certifies that it has complied with the specific actions deemed
necessary by the office to secure compliance. Within thirty days of
receipt of the application the office shall verify compliance with its
notice and notify the board and the state commission of correction of
its decision.
* NB Repealed September 1, 2027
* § 265. Further authority of the office; state assistance. 1. In
administering the provisions of this article, the office may perform
such other and further acts and recommend to the commissioner of the
division of criminal justice services such rules and regulations it
deems necessary, proper or desirable to carry out the purpose of this
article and not otherwise inconsistent with the other provisions of this
article, chapter or any other provision of law. This shall include, but
not be limited to, the office's consultation with the chief
administrative judge of the office of court administration, the chairman
of the state commission of correction and the commissioner of alcoholism
and substance abuse services.
2. a. For the purpose of carrying out this article state assistance of
not less than fourteen million dollars shall be made available to cities
with a population of one million or more and to counties outside such
cities in amounts to be determined; provided, however, that of the total
amount available herein, not less than seven million dollars shall be
made available as follows:
(i) for each county with a population under one hundred thousand
persons, a minimum of twenty thousand dollars or that percentage of the
total dollar amount available which is equal to the percentage that the
population of such county bears to the total population of the state
determined on the basis of the most recent available federal census,
whichever is greater;
(ii) for each county with a population over one hundred thousand and
under three hundred thousand persons, a minimum of sixty thousand
dollars or that percentage of the total dollar amount available which is
equal to the percentage that the population of such county bears to the
total population of the state determined on the basis of the most recent
available federal census, whichever is greater;
(iii) for each county with a population over three hundred thousand
persons not entirely included within a city, that percentage of the
total dollar amount available which is equal to the percentage that the
population of such county bears to the total population of the state
determined on the basis of the most recent available federal census; and
(iv) for each city with a population of one million or more, the
amount of the total dollar amount available by this paragraph remaining
after the deduction of the amounts apportioned pursuant to the preceding
subparagraphs of this paragraph.
b. Except as provided in section two hundred sixty-six of this
article, applications for such assistance must be made and submitted no
later than one hundred eighty days after the effective date of the
chapter of the laws of nineteen hundred eighty-eight which amended this
paragraph and added these words or by the first day of April of each
subsequent year and shall be either approved or denied by the office no
later than sixty days following such submission. Any part of the moneys
so made available and not apportioned pursuant to a plan approved and
contract entered into with the office within the time limits required
shall be apportioned by the office in its discretion to such a city or
counties on a need basis, taking into consideration incarcerated
individual population or prior commitment by a county in the development
of alternatives to detention or incarceration programs.
3. The office may receive applications from and may enter into
contracts with municipalities to undertake implementation of the service
plan and any such municipality may enter into a contract with the office
and with such private organization or organizations for such purpose.
Except as provided in section two hundred sixty-six of this article, any
such contract may include such provisions as may be agreed upon by the
parties thereto, but shall include in substance at least the following:
a. An estimate of the reasonable cost and need of the programs as
approved by the office;
b. In the first year of the approved service plan an agreement by the
office to reimburse to the municipality up to fifty percent of the
state's share of the costs at the initial approval of the plan; one-half
of the remaining fifty percent of the state's share shall be allocated
to municipalities during the implementation of the plan, provided there
is substantial compliance with timetables and any other provisions of
the plan deemed necessary by the office. The balance of the state's
share of the costs shall be allocated to the municipality in a manner
determined by the office. In any subsequent year, the office shall
reimburse to the municipality the state's share of actual costs incurred
under the plan. In no event shall the state's share exceed fifty percent
of the total cost of the plan, nor shall it be used to replace current
expenditures by the municipality for such alternatives programs.
However, in determining the amount of the municipal share of the cost of
a program, the office shall reduce the amount of the municipal share by
an amount equal to the costs incurred by such municipality on
implementation of any of the plan's provisions during the year
immediately preceding approval of the plan by the office. Any such
amount resulting in a reduction of the municipal share shall not be
considered in calculating the municipal share of any future program;
c. An agreement by the municipality to provide for the payment of the
municipality's share of the cost of the program or programs and to
proceed expeditiously with, and complete, the program or programs, as
approved by the commission;
d. Any costs in excess of the amount provided for in this subdivision
will be the responsibility of the municipality except as otherwise
provided in this article;
e. An agreement that, in the event federal assistance, which was not
included in the calculation of the state or municipal payment, becomes
available to the municipality, the amount of the state payment shall be
recalculated with the inclusion of one-half of such federal assistance
and the amount of the municipality's payment shall be recalculated with
the inclusion of one-half of such federal assistance; and
f. An agreement that in the event of private financial assistance,
which was not included in the calculation of the municipal payment and
which becomes available to the municipality, such financial assistance
shall result in a reduction of the municipal share by said amount.
* NB Repealed September 1, 2027
* § 266. Additional authority of the office; state assistance;
approved amendments for eligible alcohol and substance abuse programs.
1. Counties and the city of New York may submit approved amendments
for alcohol and substance abuse programs as defined in this article as
part of or in addition to an approved plan. In accordance with this
article, nothing in this section shall prohibit the development of
regional alcohol and substance abuse programs by two or more counties or
cities with a population of one million or more.
2. Such approved amendments shall include a statement by the county or
the city of New York indicating such municipality's understanding that
funding for eligible alcohol and substance abuse programs shall be in
accordance with subdivision four of this section and the municipality's
commitment to meet the funding requirements as set forth in such
subdivision.
3. For the purposes of carrying out the purpose of this section, of
the amount made available in paragraph a of subdivision two of section
two hundred sixty-five, state assistance of not less than seven million
dollars shall be made available for approved amendments. Of this amount,
no more than forty percent shall be made available for such state
assistance to cities with a population of one million or more. The
remaining amount shall be made available for such state assistance to
counties outside such cities. The office shall apportion the amount
available for approved amendments on an as needed basis, taking into
consideration the analysis of the relationship between alcohol, drugs
and crime, as required in this article, as well as other factors as may
be required by the office.
4. The office may receive approved amendments and may amend approved
plans in accordance with such approved amendments at any time. The
office may enter into contracts to undertake the implementation of the
approved amendments and any such municipality may enter into contracts
with the office and with private organizations for such implementation.
Any such contracts may include such provisions as may be agreed upon by
the parties thereto, but shall include at least the following:
a. An estimate of the reasonable costs and need for the eligible
alcohol and substance abuse programs;
b. An agreement by the office to reimburse the municipality in
accordance with the following:
(i) In the first year of implementation and operation of the eligible
alcohol and substance abuse program, the office shall reimburse to the
municipality one hundred percent of the costs incurred, provided that,
upon approval of the contract and consistent with implementation plans
approved by the office, up to one-half of the state's share of the cost
of such program may be immediately allocated to the municipality for
purposes of implementation of the program. The balance of the state's
share of the costs shall be allocated to the municipality in a manner
determined by the office.
(ii) In the second year of operation of such eligible alcohol and
substance abuse program, such program shall be included in the approved
service plan submitted by the municipality and the office shall
reimburse to the municipality seventy-five percent of the costs of
approved expenditures. Municipalities shall provide at least twenty-five
percent of costs of approved expenditures of the contract.
(iii) In the third and any subsequent year of operation of such
alcohol and substance abuse program, such program shall be included in
the approved service plan submitted by the municipality and the office
shall reimburse to the municipality fifty percent of the costs of
approved expenditures. Municipalities shall provide at least fifty
percent of costs of approved expenditures of the contract.
In no event shall the state's share be used to replace expenditures
previously incurred by the municipality for such alcohol and substance
abuse programs;
c. An agreement by the municipality to provide for the payment of the
municipality's share of the costs of the alcohol and substance abuse
program or programs, and to proceed expeditiously with, and implement,
such program or programs, as approved by the office; and
d. Any costs in excess of the amount provided for in this subdivision
shall be the responsibility of the municipality, except as otherwise
provided in this article.
* NB Repealed September 1, 2027
* § 267. Office reports. The office shall submit to the governor, the
temporary president of the senate, the speaker of the assembly, the
chairman of the senate crime and correction committee and the chairman
of the assembly committee on codes by October first of each year its
evaluation and assessment of this alternatives planning and programming
effort by the counties. Such report shall include, but not be limited
to, the status of the development of such plans, the approval and
implementation of such plans, the success of the programs, in terms of
their utilization, effect on jail population, results of the analyses
provided counties and the city of New York on the relationship between
alcohol, drugs and crime and the success of the eligible alcohol and
substance abuse programs and sentencing decisions together with any
recommendations with respect to the proper operation or improvement of
planning and implementation of effective alternatives to detention and
alternatives to incarceration programs in counties.
* NB Repealed September 1, 2027
ARTICLE 14 Division of Alcoholic Beverage Control
Division of alcoholic beverage control; state liquor authority.
The head of the alcoholic beverage control division shall be the state
liquor authority whose members shall consist of a chairman and two
commissioners, who shall be appointed by the governor, by and with the
advice and consent of the senate.
Not more than two members of the state liquor authority shall belong
to the same political party. All of said members shall be citizens and
residents of the state. Such members shall be appointed to serve for a
term of three years each and until their successors have been appointed
and qualified.
Salaries; expenses. The chairman and the other members of the
authority shall receive a salary to be fixed by the governor within the
amounts appropriated therefor. Each member of the authority shall also
be entitled to his expenses actually and necessarily incurred by him in
the performance of his duties.
Removal. Any member of the authority may be removed by the
governor for cause after an opportunity to be heard. A statement of the
cause of his removal shall be filed by the governor in the office of the
secretary of state.
Vacancies; quorum. (a) In the event of a vacancy caused by
death, resignation, removal or disability of a commissioner, the vacancy
shall be filled by the governor by and with the advice and consent of
the senate for the unexpired term.
(b) In the event of a vacancy caused by the death, resignation,
removal or disability of the chairman, the vacancy shall be filled by
the governor by and with the advice and consent of the senate for the
unexpired term. Notwithstanding any other provision of law to the
contrary, the governor shall designate one of the commissioners to serve
as acting chairman for a period not to exceed six months or until a
successor chairman has been confirmed by the senate, whichever comes
first. Upon the expiration of the six month term, if the governor has
nominated a successor chairman, but the senate has not acted upon the
nomination, the acting chairman can continue to serve as acting chairman
for an additional ninety days or until the governor's successor chairman
nomination is confirmed by the senate, whichever comes first.
(c) The governor shall provide immediate written notice to the
temporary president of the senate of the designation of a commissioner
as acting chairman.
(d) If (i) the governor has not nominated a successor chairman upon
the expiration of the six month term or (ii) the senate does not confirm
the governor's successor nomination within the additional ninety days,
the commissioner designated as acting chairman shall no longer be able
to serve as acting chairman and the governor is prohibited from
extending the powers of that acting chairman or from designating another
commissioner to serve as acting chairman.
(e) A commissioner serving as the acting chairman of the authority
shall be deemed a state officer for purposes of section seventy-three of
the public officers law.
(f) A majority of the members of the authority shall constitute a
quorum for the purpose of conducting the business thereof and a majority
vote of all the members in office shall be necessary for action.
Provided, however, that a commissioner designated as an acting chairman
pursuant to subdivision two of section fourteen of this chapter shall
have only one vote for purposes of conducting the business of the
authority.
Officers; employees; offices. The authority shall have power to
appoint any necessary deputies, counsels, assistants, investigators, and
other employees within the limits provided by appropriation.
Investigators so employed by the authority shall be deemed to be peace
officers for the purpose of enforcing the provisions of the alcoholic
beverage control law or judgements or orders obtained for violation
thereof, with all the powers set forth in section 2.20 of the criminal
procedure law. The authority shall continue to have its principal office
in the city of Albany, and may maintain a branch office in the cities of
New York and Buffalo and such other places as it may deem necessary.
ARTICLE 15 Human Rights Law
Purposes of article. 1. This article shall be known as the
"Human Rights Law".
2. It shall be deemed an exercise of the police power of the state for
the protection of the public welfare, health and peace of the people of
this state, and in fulfillment of the provisions of the constitution of
this state concerning civil rights.
3. The legislature hereby finds and declares that the state has the
responsibility to act to assure that every individual within this state
is afforded an equal opportunity to enjoy a full and productive life and
that the failure to provide such equal opportunity, whether because of
discrimination, prejudice, intolerance or inadequate education,
training, housing or health care not only threatens the rights and
proper privileges of its inhabitants but menaces the institutions and
foundation of a free democratic state and threatens the peace, order,
health, safety and general welfare of the state and its inhabitants. A
division in the executive department is hereby created to encourage
programs designed to insure that every individual shall have an equal
opportunity to participate fully in the economic, cultural and
intellectual life of the state; to encourage and promote the development
and execution by all persons within the state of such state programs; to
eliminate and prevent discrimination in employment, in places of public
accommodation, resort or amusement, in educational institutions, in
public services, in housing accommodations, in commercial space and in
credit transactions and to take other actions against discrimination as
herein provided; and the division established hereunder is hereby given
general jurisdiction and power for such purposes.
Equality of opportunity a civil right.
1. The opportunity to obtain employment without discrimination because
of age, race, creed, color, national origin, sexual orientation, gender
identity or expression, military status, sex, marital status, or
disability, is hereby recognized as and declared to be a civil right.
2. The opportunity to obtain education, the use of places of public
accommodation and the ownership, use and occupancy of housing
accommodations and commercial space without discrimination because of
age, race, creed, color, national origin, sexual orientation, gender
identity or expression, military status, sex, marital status, or
disability, as specified in section two hundred ninety-six of this
article, is hereby recognized as and declared to be a civil right.
3. The opportunity to obtain medical treatment of an infant
prematurely born alive in the course of an abortion shall be the same as
the rights of an infant born spontaneously.
Definitions. When used in this article:
1. The term "person" includes one or more individuals, partnerships,
associations, corporations, legal representatives, trustees, trustees in
bankruptcy, or receivers.
2. The term "employment agency" includes any person undertaking to
procure employees or opportunities to work.
3. The term "labor organization" includes any organization which
exists and is constituted for the purpose, in whole or in part, of
collective bargaining or of dealing with employers concerning
grievances, terms or conditions of employment, or of other mutual aid or
protection in connection with employment.
4. The term "unlawful discriminatory practice" includes only those
practices specified in sections two hundred ninety-six, two hundred
ninety-six-a, two hundred ninety-six-c and two hundred ninety-six-d of
this article.
5. The term "employer" shall include all employers within the state.
For the purposes of this article, (a) the state of New York shall be
considered an employer of any employee or official, including any
elected official, of the New York state executive, legislature, or
judiciary, including persons serving in any judicial capacity, and
persons serving on the staff of any elected official in New York state,
(b) a city, county, town, village or other political subdivision of
the state of New York shall be considered an employer of any employee or
official, including any elected official, of such locality's executive,
legislature or judiciary, including persons serving in any local
judicial capacity, and persons serving on the staff of any local elected
official.
6. The term "employee" in this article does not include any individual
employed by his or her parents, spouse, or child.
7. The term "commissioner", unless a different meaning clearly appears
from the context, means the state commissioner of human rights; and the
term "division" means the state division of human rights created by this
article.
8. The term "national origin" shall, for the purposes of this article,
include "ancestry."
9. The term "place of public accommodation, resort or amusement" shall
include, regardless of whether the owner or operator of such place is a
state or local government entity or a private individual or entity,
except as hereinafter specified, all places included in the meaning of
such terms as: inns, taverns, road houses, hotels, motels, whether
conducted for the entertainment of transient guests or for the
accommodation of those seeking health, recreation or rest, or
restaurants, or eating houses, or any place where food is sold for
consumption on the premises; buffets, saloons, barrooms, or any store,
park or enclosure where spirituous or malt liquors are sold; ice cream
parlors, confectionaries, soda fountains, and all stores where ice
cream, ice and fruit preparations or their derivatives, or where
beverages of any kind are retailed for consumption on the premises;
wholesale and retail stores and establishments dealing with goods or
services of any kind, dispensaries, clinics, hospitals, bath-houses,
swimming pools, laundries and all other cleaning establishments, barber
shops, beauty parlors, theatres, motion picture houses, airdromes, roof
gardens, music halls, race courses, skating rinks, amusement and
recreation parks, trailer camps, resort camps, fairs, bowling alleys,
golf courses, gymnasiums, shooting galleries, billiard and pool parlors;
garages, all public conveyances operated on land or water or in the air,
as well as the stations and terminals thereof; travel or tour advisory
services, agencies or bureaus; public halls, public rooms, public
elevators, and any public areas of any building or structure. Such term
shall not include kindergartens, primary and secondary schools, high
schools, academies, colleges and universities, extension courses, and
all educational institutions under the supervision of the regents of the
state of New York; any such kindergarten, primary and secondary school,
academy, college, university, professional school, extension course or
other education facility, supported in whole or in part by public funds
or by contributions solicited from the general public; or any
institution, club or place of accommodation which proves that it is in
its nature distinctly private. In no event shall an institution, club or
place of accommodation be considered in its nature distinctly private if
it has more than one hundred members, provides regular meal service and
regularly receives payment for dues, fees, use of space, facilities,
services, meals or beverages directly or indirectly from or on behalf of
a nonmember for the furtherance of trade or business. An institution,
club, or place of accommodation which is not deemed distinctly private
pursuant to this subdivision may nevertheless apply such selective
criteria as it chooses in the use of its facilities, in evaluating
applicants for membership and in the conduct of its activities, so long
as such selective criteria do not constitute discriminatory practices
under this article or any other provision of law. For the purposes of
this section, a corporation incorporated under the benevolent orders law
or described in the benevolent orders law but formed under any other law
of this state or a religious corporation incorporated under the
education law or the religious corporations law shall be deemed to be in
its nature distinctly private.
No institution, club, organization or place of accommodation which
sponsors or conducts any amateur athletic contest or sparring exhibition
and advertises or bills such contest or exhibition as a New York state
championship contest or uses the words "New York state" in its
announcements shall be deemed a private exhibition within the meaning of
this section.
10. The term "housing accommodation" includes any building, structure,
or portion thereof which is used or occupied or is intended, arranged or
designed to be used or occupied, as the home, residence or sleeping
place of one or more human beings. The term "housing accommodation" also
includes any accessory dwelling unit, defined as any attached or a
detached residential dwelling unit that provides complete independent
living facilities for one or more persons which is located on a lot with
a proposed or existing primary residence and shall include permanent
provisions for living, sleeping, eating, cooking, and sanitation on the
same lot as the single-family or multi-family dwelling.
11. The term "publicly-assisted housing accommodations" shall include
all housing accommodations within the state of New York in
(a) public housing,
(b) housing operated by housing companies under the supervision of the
commissioner of housing,
(c) housing constructed after July first, nineteen hundred fifty,
within the state of New York
(1) which is exempt in whole or in part from taxes levied by the state
or any of its political subdivisions,
(2) which is constructed on land sold below cost by the state or any
of its political subdivisions or any agency thereof, pursuant to the
federal housing act of nineteen hundred forty-nine,
(3) which is constructed in whole or in part on property acquired or
assembled by the state or any of its political subdivisions or any
agency thereof through the power of condemnation or otherwise for the
purpose of such construction, or
(4) for the acquisition, construction, repair or maintenance of which
the state or any of its political subdivisions or any agency thereof
supplies funds or other financial assistance,
(d) housing which is located in a multiple dwelling, the acquisition,
construction, rehabilitation, repair or maintenance of which is, after
July first, nineteen hundred fifty-five, financed in whole or in part by
a loan, whether or not secured by a mortgage, the repayment of which is
guaranteed or insured by the federal government or any agency thereof,
or the state or any of its political subdivisions or any agency thereof,
provided that such a housing accommodation shall be deemed to be
publicly assisted only during the life of such loan and such guaranty or
insurance; and
(e) housing which is offered for sale by a person who owns or
otherwise controls the sale of ten or more housing accommodations
located on land that is contiguous (exclusive of public streets), if (1)
the acquisition, construction, rehabilitation, repair or maintenance of
such housing accommodations is, after July first, nineteen hundred
fifty-five, financed in whole or in part by a loan, whether or not
secured by a mortgage, the repayment of which is guaranteed or insured
by the federal government or any agency thereof, or the state or any of
its political subdivisions or any agency thereof, provided that such a
housing accommodation shall be deemed to be publicly assisted only
during the life of such loan and guaranty or insurance, or (2) a
commitment, issued by a government agency after July first, nineteen
hundred fifty-five, is outstanding that acquisition of such housing
accommodations may be financed in whole or in part by a loan, whether or
not secured by a mortgage, the repayment of which is guaranteed or
insured by the federal government or any agency thereof, or the state or
any of its political subdivisions or any agency thereof.
12. The term "multiple dwelling", as herein used, means a dwelling
which is occupied, as a rule, for permanent residence purposes and which
is either sold, rented, leased, let or hired out, to be occupied as the
residence or home of three or more families living independently of each
other. A "multiple dwelling" shall not be deemed to include a hospital,
convent, monastery, asylum or public institution, or a fireproof
building used wholly for commercial purposes except for not more than
one janitor's apartment and not more than one penthouse occupied by not
more than two families. The term "family," as used herein, means either
a person occupying a dwelling and maintaining a household, with not more
than four boarders, roomers or lodgers, or two or more persons occupying
a dwelling, living together and maintaining a common household, with not
more than four boarders, roomers or lodgers. A "boarder," "roomer" or
"lodger" residing with a family means a person living within the
household who pays a consideration for such residence and does not
occupy such space within the household as an incident of employment
therein. Within the context of this definition, the terms "multiple
dwelling" and "multi-family dwelling" are interchangeable.
13. The term "commercial space" means any space in a building,
structure, or portion thereof which is used or occupied or is intended,
arranged or designed to be used or occupied for the manufacture, sale,
resale, processing, reprocessing, displaying, storing, handling,
garaging or distribution of personal property; and any space which is
used or occupied, or is intended, arranged or designed to be used or
occupied as a separate business or professional unit or office in any
building, structure or portion thereof.
14. The term "real estate broker" means any person, firm or
corporation who, for another and for a fee, commission or other valuable
consideration, lists for sale, sells, at auction or otherwise,
exchanges, buys or rents, or offers or attempts to negotiate a sale, at
auction or otherwise, exchange, purchase or rental of an estate or
interest in real estate, or collects or offers or attempts to collect
rent for the use of real estate, or negotiates, or offers or attempts to
negotiate, a loan secured or to be secured by a mortgage or other
incumbrance upon or transfer of real estate. In the sale of lots
pursuant to the provisions of article nine-a of the real property law,
the term "real estate broker" shall also include any person,
partnership, association or corporation employed by or on behalf of the
owner or owners of lots or other parcels of real estate, at a stated
salary, or upon a commission, or upon a salary and commission, or
otherwise, to sell such real estate, or any parts thereof, in lots or
other parcels, and who shall sell or exchange, or offer or attempt or
agree to negotiate the sale or exchange, of any such lot or parcel of
real estate.
15. The term "real estate salesperson" means a person employed by a
licensed real estate broker to list for sale, sell or offer for sale, at
auction or otherwise, to buy or offer to buy or to negotiate the
purchase or sale or exchange of real estate, or to negotiate a loan on
real estate, or to lease or rent or offer to lease, rent or place for
rent any real estate, or who collects or offers or attempts to collect
rent for the use of real estate for or in behalf of such real estate
broker.
16. The term "necessary party" means any person who has such an
interest in the subject matter of a proceeding under this article, or
whose rights are so involved, that no complete and effective disposition
can be made without his or her participation in the proceeding.
17. The term "parties to the proceeding" means the complainant,
respondent, necessary parties and persons permitted to intervene as
parties in a proceeding with respect to a complaint filed under this
article.
18. The term "hearing examiner" means an employee of the division who
shall be assigned for stated periods to no other work than the conduct
of hearings under this article;
19. The term "discrimination" shall include segregation and
separation.
20. The term "credit", when used in this article means the right
conferred upon a person by a creditor to incur debt and defer its
payment, whether or not any interest or finance charge is made for the
exercise of this right.
21. The term "disability" means (a) a physical, mental or medical
impairment resulting from anatomical, physiological, genetic or
neurological conditions which prevents the exercise of a normal bodily
function or is demonstrable by medically accepted clinical or laboratory
diagnostic techniques or (b) a record of such an impairment or (c) a
condition regarded by others as such an impairment, provided, however,
that in all provisions of this article dealing with employment, the term
shall be limited to disabilities which, upon the provision of reasonable
accommodations, do not prevent the complainant from performing in a
reasonable manner the activities involved in the job or occupation
sought or held.
21-a. "Predisposing genetic characteristic" shall mean any inherited
gene or chromosome, or alteration thereof, and determined by a genetic
test or inferred from information derived from an individual or family
member that is scientifically or medically believed to predispose an
individual or the offspring of that individual to a disease or
disability, or to be associated with a statistically significant
increased risk of development of a physical or mental disease or
disability.
21-b. "Genetic test" shall mean a test for determining the presence or
absence of an inherited genetic characteristic in an individual,
including tests of nucleic acids such as DNA, RNA and mitochondrial DNA,
chromosomes or proteins in order to identify a predisposing genetic
characteristic.
21-e. The term "reasonable accommodation" means actions taken which
permit an employee, prospective employee or member with a disability, or
a pregnancy-related condition, to perform in a reasonable manner the
activities involved in the job or occupation sought or held and include,
but are not limited to, provision of an accessible worksite, acquisition
or modification of equipment, support services for persons with impaired
hearing or vision, job restructuring and modified work schedules;
provided, however, that such actions do not impose an undue hardship on
the business, program or enterprise of the entity from which action is
requested.
21-f. The term "pregnancy-related condition" means a medical condition
related to pregnancy or childbirth that inhibits the exercise of a
normal bodily function or is demonstrable by medically accepted clinical
or laboratory diagnostic techniques, including but not limited to
lactation; provided, however, that in all provisions of this article
dealing with employment, the term shall be limited to conditions which,
upon the provision of reasonable accommodations, do not prevent the
complainant from performing in a reasonable manner the activities
involved in the job or occupation sought or held; and provided further,
however, that pregnancy-related conditions shall be treated as temporary
disabilities for the purposes of this article.
22. The term "creditor", when used in this article, means any person
or financial institution which does business in this state and which
extends credit or arranges for the extension of credit by others. The
term creditor includes, but is not limited to, banks and trust
companies, private bankers, foreign banking corporations and national
banks, savings banks, licensed lenders, savings and loan associations,
credit unions, sales finance companies, insurance premium finance
agencies, insurers, credit card issuers, mortgage brokers, mortgage
companies, mortgage insurance corporations, wholesale and retail
merchants and factors.
23. The term "credit reporting bureau", when used in this article,
means any person doing business in this state who regularly makes credit
reports, as such term is defined by subdivision e of section three
hundred seventy-one of the general business law.
24. The term "regulated creditor", when used in this article, means
any creditor, as herein defined, which has received its charter,
license, or organization certificate, as the case may be, from the
department of financial services or which is otherwise subject to the
supervision of the department of financial services.
25. The term "superintendent", when used in this article, means the
head of the department of financial services appointed pursuant to
section two hundred two of the financial services law.
26. The term "familial status", when used in this article, means:
(a) any person who is pregnant or has a child or is in the process of
securing legal custody of any individual who has not attained the age of
eighteen years, or
(b) one or more individuals (who have not attained the age of eighteen
years) being domiciled with:
(1) a parent or another person having legal custody of such individual
or individuals, or
(2) the designee of such parent.
27. The term "sexual orientation" means heterosexuality,
homosexuality, bisexuality or asexuality, whether actual or perceived.
28. The term "military status" when used in this article means a
person's participation in the military service of the United States or
the military service of the state, including but not limited to, the
armed forces of the United States, the army national guard, the air
national guard, the New York naval militia, the New York guard, and such
additional forces as may be created by the federal or state government
as authorized by law.
29. The term "reserve armed forces", when used in this article, means
service other than permanent, full-time service in the military forces
of the United States including but not limited to service in the United
States Army Reserve, the United States Naval Reserve, the United States
Marine Corps Reserve, the United States Air Force Reserve, or the United
States Coast Guard Reserve.
30. The term "organized militia of the state", when used in this
article, means service other than permanent, full-time service in the
military forces of the state of New York including but not limited to
the New York army national guard, the New York air national guard, the
New York naval militia and the New York guard.
34. The term "victim of domestic violence" shall have the same meaning
as is ascribed to such term by section four hundred fifty-nine-a of the
social services law.
35. The term "gender identity or expression" means a person's actual
or perceived gender-related identity, appearance, behavior, expression,
or other gender-related characteristic regardless of the sex assigned to
that person at birth, including, but not limited to, the status of being
transgender.
36. The term "lawful source of income" shall include, but not be
limited to, child support, alimony, foster care subsidies, income
derived from social security, or any form of federal, state, or local
public assistance or housing assistance including, but not limited to,
section 8 vouchers, or any other form of housing assistance payment or
credit whether or not such income or credit is paid or attributed
directly to a landlord, and any other forms of lawful income. The
provisions of this subdivision shall not be construed to prohibit the
use of criteria or qualifications of eligibility for the sale, rental,
leasing or occupancy of publicly-assisted housing accommodations where
such criteria or qualifications are required to comply with federal or
state law, or are necessary to obtain the benefits of a federal or state
program. A publicly assisted housing accommodation may include
eligibility criteria in statements, advertisements, publications or
applications, and may make inquiry or request information to the extent
necessary to determine eligibility.
37. The term "race" shall, for the purposes of this article include
traits historically associated with race, including but not limited to,
hair texture and protective hairstyles.
38. The term "private employer" as used in section two hundred
ninety-seven of this article shall include any person, company,
corporation, labor organization or association. It shall not include the
state or any local subdivision thereof, or any state or local
department, agency, board or commission.
39. The term "protective hairstyles" shall include, but not be limited
to, such hairstyles as braids, locks, and twists.
40. The term "educational institution" shall mean:
(a) any education corporation or association which holds itself out to
the public to be non-sectarian and exempt from taxation pursuant to the
provisions of article four of the real property tax law; or
(b) any for-profit entity that operates a college, university,
licensed private career school or certified English as a second language
school which holds itself out to the public to be non-sectarian and
which is not exempt from taxation pursuant to the provisions of article
four of the real property tax law; or
(c) any public school, including any school district, board of
cooperative educational services, public college or public university.
41. The term "citizenship or immigration status" means the citizenship
of any person or the immigration status of any person who is not a
citizen of the United States. Nothing in this article shall preclude
verification of citizenship or immigration status where required by law,
nor shall an adverse action based on verification of citizenship or
immigration status be prohibited where such adverse action is required
by law.
42. The term "real estate appraisal" shall have the same meaning as in
subdivision two of section one hundred sixty-a of this chapter.
Provided, however, that (a) real estate appraisals subject to this
article include those performed by any person or entity whose business
holds itself out as engaging in residential real estate appraisals,
regardless of whether or not such person or entity is certified or
licensed to provide real estate appraisals pursuant to the provisions of
article six-E of this chapter, and (b) for the purposes of this article,
the real estate appraisal includes all oral communications and all
written comments and other documents submitted as support for the
estimate, opinion of value, or analysis.
Division of human rights. 1. There is hereby created in the
executive department a division of human rights hereinafter in this
article called the division. The head of such division shall be a
commissioner hereinafter in this article called the commissioner, who
shall be appointed by the governor, by and with the advice and consent
of the senate and shall hold office at the pleasure of the governor. The
commissioner shall be entitled to his or her expenses actually and
necessarily incurred by him or her in the performance of his or her
duties.
2. The commissioner may establish, consolidate, reorganize or abolish
such bureaus and other organizational units within the division as he or
she determines to be necessary for efficient operation.
General policies of division. The division shall formulate
policies to effectuate the purposes of this article and may make
recommendations to agencies and officers of the state or local
subdivisions of government in aid of such policies and purposes.
Statewide campaign for the acceptance, inclusion, tolerance
and understanding of diversity. 1. The division shall develop and
implement a statewide campaign to increase awareness and promote the
acceptance, inclusion, tolerance and understanding of the diversity of
people of this state, including, but not limited to diversity based on
religion, race, color, creed, sex, ethnicity, national origin, age,
disability, sexual orientation, gender identity or expression. In the
development and implementation of such campaign, the division shall
adopt as its purpose, the combatting of bias, hatred and discrimination
in all their forms and the prevention of discrimination based on
religion, race, color, creed, sex, ethnicity, national origin, age,
disability, sexual orientation, gender identity or expression.
2. In order to effectuate the purpose of the campaign the division
shall:
a. coordinate and cooperate with public and private organizations,
including, but not limited to, local governments, community groups,
school districts, churches, charitable organizations, foundations and
other relevant groups;
b. develop educational materials to be published on the website of the
division, social media campaigns or other means determined to be the
most effective at reaching the public in a cost effective manner;
c. make information regarding such campaign available on the website
of the division; and
d. utilize other resources the division deems appropriate and any
other resources, private or public, identified by the division.
General powers and duties of division. The division, by and
through the commissioner or his or her duly authorized officer or
employee, shall have the following functions, powers and duties:
1. To establish and maintain its principal office, and such other
offices within the state as it may deem necessary.
2. To function at any place within the state.
3. To appoint such officers, attorneys, clerks and other employees and
agents, consultants and special committees as it may deem necessary, fix
their compensation within the limitations provided by law, and prescribe
their duties.
4. To obtain upon request and utilize the services of all governmental
departments and agencies.
5. To adopt, promulgate, amend and rescind suitable rules and
regulations to carry out the provisions of this article, and the
policies and practices of the division in connection therewith.
6. (a) To receive, investigate and pass upon complaints alleging
violations of this article.
(b) Upon its own motion, to test and investigate and to make, sign and
file complaints alleging violations of this article and to initiate
investigations and studies to carry out the purposes of this article.
7. To hold hearings, to provide where appropriate for
cross-interrogatories, subpoena witnesses, compel their attendance,
administer oaths, take the testimony of any person under oath, and in
connection therewith, to require the production for examination of any
books or papers relating to any matter under investigation or in
question before the division. The division may make rules as to the
issuance of subpoenas which may be issued by the division at any stage
of any investigation or proceeding before it.
In any such investigation or hearing, the commissioner, or an officer
duly designated by the commissioner to conduct such investigation or
hearing, may confer immunity in accordance with the provisions of
section 50.20 of the criminal procedure law.
8. To create such advisory councils, local, regional or state-wide, as
in its judgment will aid in effectuating the purposes of this article
and of section eleven of article one of the constitution of this state,
and the division may empower them to study the problems of
discrimination in all or specific fields of human relationships or in
specific instances of discrimination because of age, race, creed, color,
national origin, sexual orientation, gender identity or expression,
military status, sex, disability or marital status and make
recommendations to the division for the development of policies and
procedures in general and in specific instances. The advisory councils
also shall disseminate information about the division's activities to
organizations and individuals in their localities. Such advisory
councils shall be composed of representative citizens, serving without
pay, but with reimbursement for actual and necessary traveling expenses;
and the division may make provision for technical and clerical
assistance to such councils and for the expenses of such assistance.
9. To develop human rights plans and policies for the state and assist
in their execution and to make investigations and studies appropriate to
effectuate this article and to issue such publications and such results
of investigations and research as in its judgement will tend to inform
persons of the rights assured and remedies provided under this article,
to promote good-will and minimize or eliminate discrimination because of
age, race, creed, color, national origin, sexual orientation, gender
identity or expression, military status, sex, disability or marital
status.
10. To render each year to the governor and to the legislature a full
written report of all its activities and of its recommendations.
11. To inquire into incidents of and conditions which may lead to
tension and conflict among racial, religious and nationality groups and
to take such action within the authority granted by law to the division,
as may be designed to alleviate such conditions, tension and conflict.
12. To furnish any person with such technical assistance as the
division deems appropriate to further compliance with the purposes or
provisions of this article.
13. To promote the creation of human rights agencies by counties,
cities, villages or towns in circumstances the division deems
appropriate.
14. To accept, with the approval of the governor, as agent of the
state, any grant, including federal grants, or any gift for any of the
purposes of this article. Any moneys so received may be expended by the
division to effectuate any purpose of this article, subject to the same
limitations as to approval of expenditures and audit as are prescribed
for state moneys appropriated for the purposes of this article.
15. To adopt an official seal.
16. To have concurrent jurisdiction with the New York city commission
on human rights over the administration and enforcement of title C of
chapter one of the administrative code of the city of New York.
17. To establish a dedicated telephone line to provide assistance to
individuals with complaints of housing discrimination. Such assistance
shall include, but not be limited to, directing individuals to resources
available to the public regarding housing discrimination. The division
shall operate such dedicated telephone line during regular business
hours and shall post the telephone number for such dedicated phone line
on the website of the division. The commissioner is hereby authorized
and directed to promulgate rules and regulations to effectuate the
purposes of this subdivision.
18. To establish a toll free confidential hotline to provide
individuals with complaints of workplace sexual harassment counsel and
assistance. The division shall operate this hotline during regular
business hours and disseminate information about this hotline in order
to ensure public knowledge of the hotline, including by working with the
department of labor to ensure that information on the hotline is
included in any materials employers must post or provide to employees
regarding sexual harassment. The division will work with organizations
representing attorneys, including but not limited to the New York state
bar association, to recruit attorneys experienced in providing counsel
related to sexual harassment matters who can provide pro bono assistance
and counsel to individuals that contact the hotline. The hotline shall
comply with all of the requirements for a program operated under the New
York Rules of Professional Conduct, 12 NYCRR, Rule 6.5 (Participation in
limited pro bono legal service programs). Attorneys may not solicit, or
permit employees or agents of the attorneys to solicit on the attorney's
behalf, further representation of any individuals they advise through
the hotline relating to discussed sexual harassment complaint.
Unlawful discriminatory practices. 1. It shall be an unlawful
discriminatory practice:
(a) For an employer or licensing agency, because of an individual's
age, race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, disability, predisposing genetic characteristics, familial
status, marital status, or status as a victim of domestic violence, to
refuse to hire or employ or to bar or to discharge from employment such
individual or to discriminate against such individual in compensation or
in terms, conditions or privileges of employment.
(b) For an employment agency to discriminate against any individual
because of age, race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, disability, predisposing genetic characteristics,
familial status, marital status, or status as a victim of domestic
violence, in receiving, classifying, disposing or otherwise acting upon
applications for its services or in referring an applicant or applicants
to an employer or employers.
(c) For a labor organization, because of the age, race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, disability,
predisposing genetic characteristics, familial status, marital status,
or status as a victim of domestic violence, of any individual, to
exclude or to expel from its membership such individual or to
discriminate in any way against any of its members or against any
employer or any individual employed by an employer.
(d) For any employer or employment agency to print or circulate or
cause to be printed or circulated any statement, advertisement or
publication, or to use any form of application for employment or to make
any inquiry in connection with prospective employment, which expresses
directly or indirectly, any limitation, specification or discrimination
as to age, race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, disability, predisposing genetic characteristics,
familial status, marital status, or status as a victim of domestic
violence, or any intent to make any such limitation, specification or
discrimination, unless based upon a bona fide occupational
qualification; provided, however, that neither this paragraph nor any
provision of this chapter or other law shall be construed to prohibit
the department of civil service or the department of personnel of any
city containing more than one county from requesting information from
applicants for civil service examinations concerning any of the
aforementioned characteristics, other than sexual orientation, for the
purpose of conducting studies to identify and resolve possible problems
in recruitment and testing of members of minority groups to ensure the
fairest possible and equal opportunities for employment in the civil
service for all persons, regardless of age, race, creed, color, national
origin, citizenship or immigration status, sexual orientation or gender
identity or expression, military status, sex, disability, predisposing
genetic characteristics, familial status, or marital status.
(e) For any employer, labor organization or employment agency to
discharge, expel or otherwise discriminate against any person because he
or she has opposed any practices forbidden under this article or because
he or she has filed a complaint, testified or assisted in any proceeding
under this article.
(f) Nothing in this subdivision shall affect any restrictions upon the
activities of persons licensed by the state liquor authority with
respect to persons under twenty-one years of age.
(g) For an employer to compel an employee who is pregnant to take a
leave of absence, unless the employee is prevented by such pregnancy
from performing the activities involved in the job or occupation in a
reasonable manner.
(h) For an employer, licensing agency, employment agency or labor
organization to subject any individual to harassment because of an
individual's age, race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, disability, predisposing genetic characteristics,
familial status, marital status, status as a victim of domestic
violence, or because the individual has opposed any practices forbidden
under this article or because the individual has filed a complaint,
testified or assisted in any proceeding under this article, regardless
of whether such harassment would be considered severe or pervasive under
precedent applied to harassment claims. Such harassment is an unlawful
discriminatory practice when it subjects an individual to inferior
terms, conditions or privileges of employment because of the
individual's membership in one or more of these protected categories.
The fact that such individual did not make a complaint about the
harassment to such employer, licensing agency, employment agency or
labor organization shall not be determinative of whether such employer,
licensing agency, employment agency or labor organization shall be
liable. Nothing in this section shall imply that an employee must
demonstrate the existence of an individual to whom the employee's
treatment must be compared. It shall be an affirmative defense to
liability under this subdivision that the harassing conduct does not
rise above the level of what a reasonable victim of discrimination with
the same protected characteristic or characteristics would consider
petty slights or trivial inconveniences.
1-a. It shall be an unlawful discriminatory practice for an employer,
labor organization, employment agency or any joint labor-management
committee controlling apprentice training programs:
(a) To select persons for an apprentice training program registered
with the state of New York on any basis other than their qualifications,
as determined by objective criteria which permit review;
(b) To deny to or withhold from any person because of race, creed,
color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex, age,
disability, familial status, marital status, or status as a victim of
domestic violence, the right to be admitted to or participate in a
guidance program, an apprenticeship training program, on-the-job
training program, executive training program, or other occupational
training or retraining program;
(c) To discriminate against any person in his or her pursuit of such
programs or to discriminate against such a person in the terms,
conditions or privileges of such programs because of race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, age, disability,
familial status, marital status, or status as a victim of domestic
violence;
(d) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for such programs or to make any inquiry in connection with
such program which expresses, directly or indirectly, any limitation,
specification or discrimination as to race, creed, color, national
origin, citizenship or immigration status, sexual orientation, gender
identity or expression, military status, sex, age, disability, familial
status, marital status, or status as a victim of domestic violence, or
any intention to make any such limitation, specification or
discrimination, unless based on a bona fide occupational qualification.
2. (a) It shall be an unlawful discriminatory practice for any person,
being the owner, lessee, proprietor, manager, superintendent, agent or
employee of any place of public accommodation, resort or amusement,
because of the race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, disability, marital status, or status as a victim
of domestic violence, of any person, directly or indirectly, to refuse,
withhold from or deny to such person any of the accommodations,
advantages, facilities or privileges thereof, including the extension of
credit, or, directly or indirectly, to publish, circulate, issue,
display, post or mail any written or printed communication, notice or
advertisement, to the effect that any of the accommodations, advantages,
facilities and privileges of any such place shall be refused, withheld
from or denied to any person on account of race, creed, color, national
origin, citizenship or immigration status, sexual orientation, gender
identity or expression, military status, sex, disability or marital
status, or that the patronage or custom thereat of any person of or
purporting to be of any particular race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, sex or marital status, or having a
disability is unwelcome, objectionable or not acceptable, desired or
solicited.
(b) Nothing in this subdivision shall be construed to prevent the
barring of any person, because of the sex of such person, from places of
public accommodation, resort or amusement if the division grants an
exemption based on bona fide considerations of public policy; nor shall
this subdivision apply to the rental of rooms in a housing accommodation
which restricts such rental to individuals of one sex.
(c) For the purposes of paragraph (a) of this subdivision,
"discriminatory practice" includes:
(i) a refusal to make reasonable modifications in policies, practices,
or procedures, when such modifications are necessary to afford
facilities, privileges, advantages or accommodations to individuals with
disabilities, unless such person can demonstrate that making such
modifications would fundamentally alter the nature of such facilities,
privileges, advantages or accommodations;
(ii) a refusal to take such steps as may be necessary to ensure that
no individual with a disability is excluded or denied services because
of the absence of auxiliary aids and services, unless such person can
demonstrate that taking such steps would fundamentally alter the nature
of the facility, privilege, advantage or accommodation being offered or
would result in an undue burden;
(iii) a refusal to remove architectural barriers, and communication
barriers that are structural in nature, in existing facilities, and
transportation barriers in existing vehicles and rail passenger cars
used by an establishment for transporting individuals (not including
barriers that can only be removed through the retrofitting of vehicles
or rail passenger cars by the installation of a hydraulic or other
lift), where such removal is readily achievable;
(iv) where such person is a local or state government entity, a
refusal to remove architectural barriers, and communication barriers
that are structural in nature, in existing facilities, and
transportation barriers in existing vehicles and rail passenger cars
used by an establishment for transporting individuals (not including
barriers that can only be removed through the retrofitting of vehicles
or rail passenger cars by the installation of a hydraulic or other
lift), where such removal does not constitute an undue burden; except as
set forth in paragraph (e) of this subdivision; nothing in this section
would require a public entity to: necessarily make each of its existing
facilities accessible to and usable by individuals with disabilities;
take any action that would threaten or destroy the historical
significance of an historic property; or to make structural changes in
existing facilities where other methods are effective in achieving
compliance with this section; and
(v) where such person can demonstrate that the removal of a barrier
under subparagraph (iii) of this paragraph is not readily achievable, a
failure to make such facilities, privileges, advantages or
accommodations available through alternative methods if such methods are
readily achievable.
(d) For the purposes of this subdivision:
(i) "Readily achievable" means easily accomplishable and able to be
carried out without much difficulty or expense. In determining whether
an action is readily achievable, factors to be considered include:
(A) the nature and cost of the action needed under this subdivision;
(B) the overall financial resources of the facility or facilities
involved in the action; the number of persons employed at such facility;
the effect on expenses and resources or the impact otherwise of such
action upon the operation of the facility;
(C) the overall financial resources of the place of public
accommodation, resort or amusement; the overall size of the business of
such a place with respect to the number of its employees; the number,
type and location of its facilities; and
(D) the type of operation or operations of the place of public
accommodation, resort or amusement, including the composition, structure
and functions of the workforce of such place; the geographic
separateness, administrative or fiscal relationship of the facility or
facilities in question to such place.
(ii) "Auxiliary aids and services" include:
(A) qualified interpreters or other effective methods of making
aurally delivered materials available to individuals with hearing
impairments;
(B) qualified readers, taped texts or other effective methods of
making visually delivered materials available to individuals with visual
impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
(iii) "Undue burden" means significant difficulty or expense. In
determining whether an action would result in an undue burden, factors
to be considered shall include:
(A) The nature and cost of the action needed under this article;
(B) The overall financial resources of the site or sites involved in
the action; the number of persons employed at the site; the effect on
expenses and resources; legitimate safety requirements that are
necessary for safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation of the site;
(C) The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent corporation
or entity;
(D) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number, type,
and location of its facilities; and
(E) If applicable, the type of operation or operations of any parent
corporation or entity, including the composition, structure, and
functions of the workforce of the parent corporation or entity.
(iv) "Reasonable modifications in policies, practices, procedures"
includes modification to permit the use of a service animal by a person
with a disability, consistent with federal regulations implementing the
Americans with Disabilities Act, Title III, at 28 CFR 36.302(c).
(e) Paragraphs (c) and (d) of this subdivision do not apply to any air
carrier, the National Railroad Passenger Corporation, or public
transportation facilities, vehicles or services owned, leased or
operated by the state, a county, city, town or village, or any agency
thereof, or by any public benefit corporation or authority.
2-a. It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, assignee, or managing agent of publicly-assisted
housing accommodations or other person having the right of ownership or
possession of or the right to rent or lease such accommodations:
(a) To refuse to sell, rent or lease or otherwise to deny to or
withhold from any person or group of persons such housing accommodations
because of the race, creed, color, disability, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, age, sex, marital status, status as a
victim of domestic violence, lawful source of income or familial status
of such person or persons, or to represent that any housing
accommodation or land is not available for inspection, sale, rental or
lease when in fact it is so available.
(b) To discriminate against any person because of his or her race,
creed, color, disability, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, age, sex, marital status, status as a victim of domestic
violence, lawful source of income or familial status in the terms,
conditions or privileges of any publicly-assisted housing accommodations
or in the furnishing of facilities or services in connection therewith.
(c) To cause to be made any written or oral inquiry or record
concerning the race, creed, color, disability, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, membership in the reserve armed forces of the United
States or in the organized militia of the state, age, sex, marital
status, status as a victim of domestic violence, lawful source of income
or familial status of a person seeking to rent or lease any
publicly-assisted housing accommodation; provided, however, that nothing
in this subdivision shall prohibit a member of the reserve armed forces
of the United States or in the organized militia of the state from
voluntarily disclosing such membership.
(c-1) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for the purchase, rental or lease of such housing
accommodation or to make any record or inquiry in connection with the
prospective purchase, rental or lease of such a housing accommodation
which expresses, directly or indirectly, any limitation, specification
or discrimination as to race, creed, color, national origin, citizenship
or immigration status, sexual orientation, gender identity or
expression, military status, sex, age, disability, marital status,
status as a victim of domestic violence, lawful source of income or
familial status, or any intent to make any such limitation,
specification or discrimination.
(d) (1) To refuse to permit, at the expense of the person with a
disability, reasonable modifications of existing premises occupied or to
be occupied by the said person, if the modifications may be necessary to
afford the said person full enjoyment of the premises, in conformity
with the provisions of the New York state uniform fire prevention and
building code, except that, in the case of a rental, the landlord may,
where it is reasonable to do so, condition permission for a modification
on the renter's agreeing to restore the interior of the premises to the
condition that existed before the modification, reasonable wear and tear
excepted.
(2) To refuse to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford a person with a disability equal opportunity to use and enjoy a
dwelling, including the use of an animal as a reasonable accommodation
to alleviate symptoms or effects of a disability, and including
reasonable modification to common use portions of the dwelling, or
(3) In connection with the design and construction of covered
multi-family dwellings for first occupancy after March thirteenth,
nineteen hundred ninety-one, a failure to design and construct dwellings
in accordance with the accessibility requirements of the New York state
uniform fire prevention and building code, to provide that:
(i) The public use and common use portions of the dwellings are
readily accessible to and usable by disabled persons with disabilities;
(ii) All the doors are designed in accordance with the New York state
uniform fire prevention and building code to allow passage into and
within all premises and are sufficiently wide to allow passage by
persons in wheelchairs; and
(iii) All premises within covered multi-family dwelling units contain
an accessible route into and through the dwelling; light switches,
electrical outlets, thermostats, and other environmental controls are in
accessible locations; there are reinforcements in the bathroom walls to
allow later installation of grab bars; and there are usable kitchens and
bathrooms such that an individual in a wheelchair can maneuver about the
space, in conformity with the New York state uniform fire prevention and
building code.
(e) Nothing in this subdivision shall restrict the consideration of
age in the rental of publicly-assisted housing accommodations if the
division grants an exemption based on bona fide considerations of public
policy for the purpose of providing for the special needs of a
particular age group without the intent of prejudicing other age groups.
(f) Nothing in this subdivision shall be deemed to restrict the rental
of rooms in school or college dormitories to individuals of the same
sex.
3. (a) It shall be an unlawful discriminatory practice for an
employer, licensing agency, employment agency or labor organization to
refuse to provide reasonable accommodations to the known disabilities,
or pregnancy-related conditions, of an employee, prospective employee or
member in connection with a job or occupation sought or held or
participation in a training program.
(b) Nothing contained in this subdivision shall be construed to
require provision of accommodations which can be demonstrated to impose
an undue hardship on the operation of an employer's, licensing agency's,
employment agency's or labor organization's business, program or
enterprise.
In making such a demonstration with regard to undue hardship the
factors to be considered include:
(i) The overall size of the business, program or enterprise with
respect to the number of employees, number and type of facilities, and
size of budget;
(ii) The type of operation which the business, program or enterprise
is engaged in, including the composition and structure of the workforce;
and
(iii) The nature and cost of the accommodation needed.
(c) Nothing in this subdivision regarding "reasonable accommodation"
or in the chapter of the laws of two thousand fifteen which added this
paragraph shall alter, diminish, increase, or create new or additional
requirements to accommodate protected classes pursuant to this article
other than the additional requirements as explicitly set forth in such
chapter of the laws of two thousand fifteen.
(d) The employee must cooperate in providing medical or other
information that is necessary to verify the existence of the disability
or pregnancy-related condition, or that is necessary for consideration
of the accommodation. The employee has a right to have such medical
information kept confidential.
3-a. It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency to refuse to hire or employ or
license or to bar or to terminate from employment an individual eighteen
years of age or older, or to discriminate against such individual in
promotion, compensation or in terms, conditions, or privileges of
employment, because of such individual's age.
(b) For any employer, licensing agency or employment agency to print
or circulate or cause to be printed or circulated any statement,
advertisement or publication, or to use any form of application for
employment or to make any inquiry in connection with prospective
employment, which expresses, directly or indirectly, any limitation,
specification or discrimination on account of age respecting individuals
eighteen years of age or older, or any intent to make any such
limitation, specification, or discrimination.
(c) For any employer, licensing agency or employment agency to
discharge or otherwise discriminate against any person because he or she
has opposed any practices forbidden under this article or because he or
she has filed a complaint, testified or assisted in any proceeding under
this article.
(d) Notwithstanding any other provision of law, no employee shall be
subject to termination or retirement from employment on the basis of
age, except where age is a bona fide occupational qualification
reasonably necessary to the normal operation of a particular business,
where the differentiation is based on reasonable factors other than age,
or as otherwise specified in paragraphs (e) and (f) of this subdivision
or in article fourteen-A of the retirement and social security law.
(e) Nothing contained in this subdivision or in subdivision one of
this section shall be construed to prevent the compulsory retirement of
any employee who has attained sixty-five years of age, and who, for a
two-year period immediately before retirement, is employed in a bona
fide executive or a high policymaking position, if such employee is
entitled to an immediate nonforfeitable annual retirement benefit from a
pension, profit-sharing, savings, or deferred compensation plan, or any
combination of such plans, of the employer of such employee, which
equals, in the aggregate, at least forty-four thousand dollars; provided
that for the purposes of this paragraph only, the term "employer"
includes any employer as otherwise defined in this article but does not
include (i) the state of New York, (ii) a county, city, town, village or
any other political subdivision or civil division of the state, (iii) a
school district or any other governmental entity operating a public
school, college or university, (iv) a public improvement or special
district, (v) a public authority, commission or public benefit
corporation, or (vi) any other public corporation, agency,
instrumentality or unit of government which exercises governmental power
under the laws of the state. In applying the retirement benefit test of
this paragraph, if any such retirement benefit is in a form other than a
straight life annuity with no ancillary benefits, or if employees
contribute to any such plan or make rollover contributions, such benefit
shall be adjusted in accordance with rules and regulations promulgated
by the division, after an opportunity for public hearing, so that the
benefit is the equivalent of a straight life annuity with no ancillary
benefits under a plan to which employees do not contribute and under
which no rollover contributions are made.
(f) Nothing contained in this subdivision, in subdivision one of this
section or in article fourteen-A of the retirement and social security
law shall be construed to prevent the compulsory retirement of any
employee who has attained seventy years of age and is serving under a
contract for unlimited tenure, or a similar arrangement providing for
unlimited tenure, at a nonpublic institution of higher education. For
purposes of such subdivisions or article, the term "institution of
higher education" means an educational institution which (i) admits as
regular students only persons having a certificate of graduation from a
school providing secondary education, or the recognized equivalent of
such a certificate, (ii) is lawfully authorized to provide a program of
education beyond secondary education, and (iii) provides an educational
program for which it awards a bachelor's degree or provides not less
than a two-year program which is acceptable for full credit toward such
a degree.
(g) In the event of a conflict between the provisions of this
subdivision and the provisions of article fourteen-A of the retirement
and social security law, the provisions of article fourteen-A of such
law shall be controlling.
But nothing contained in this subdivision, in subdivision one of this
section or in article fourteen-A of the retirement and social security
law shall be construed to prevent the termination of the employment of
any person who, even upon the provision of reasonable accommodations, is
physically unable to perform his or her duties or to affect the
retirement policy or system of any employer where such policy or system
is not merely a subterfuge to evade the purposes of said subdivisions or
said article; nor shall anything in such subdivisions or such article be
deemed to preclude the varying of insurance coverages according to an
employee's age.
The provisions of this subdivision shall not affect any restriction
upon the activities of persons licensed by the state liquor authority
with respect to persons under twenty-one years of age.
3-b. It shall be an unlawful discriminatory practice for any real
estate broker, real estate salesperson or employee or agent thereof or
any other individual, corporation, partnership or organization for the
purpose of inducing a real estate transaction from which any such person
or any of its stockholders or members may benefit financially, to
represent that a change has occurred or will or may occur in the
composition with respect to race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, sex, disability, marital status, status
as a victim of domestic violence, or familial status of the owners or
occupants in the block, neighborhood or area in which the real property
is located, and to represent, directly or indirectly, that this change
will or may result in undesirable consequences in the block,
neighborhood or area in which the real property is located, including
but not limited to the lowering of property values, an increase in
criminal or anti-social behavior, or a decline in the quality of schools
or other facilities.
4. It shall be an unlawful discriminatory practice for an educational
institution to deny the use of its facilities to any person otherwise
qualified, or to permit the harassment of any student or applicant, by
reason of his race, color, religion, disability, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, sex, age, marital status, or status as a
victim of domestic violence, except that any such institution which
establishes or maintains a policy of educating persons of one sex
exclusively may admit students of only one sex.
5. (a) It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, assignee, or managing agent of, or other person
having the right to sell, rent or lease a housing accommodation,
constructed or to be constructed, or any agent or employee thereof:
(1) To refuse to sell, rent, lease or otherwise to deny to or withhold
from any person or group of persons such a housing accommodation because
of the race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, age, disability, marital status, status as a victim of
domestic violence, lawful source of income or familial status of such
person or persons, or to represent that any housing accommodation or
land is not available for inspection, sale, rental or lease when in fact
it is so available.
(2) To discriminate against any person because of race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, age, disability,
marital status, status as a victim of domestic violence, lawful source
of income or familial status in the terms, conditions or privileges of
the sale, rental or lease of any such housing accommodation or in the
furnishing of facilities or services in connection therewith.
(3) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for the purchase, rental or lease of such housing
accommodation or to make any record or inquiry in connection with the
prospective purchase, rental or lease of such a housing accommodation
which expresses, directly or indirectly, any limitation, specification
or discrimination as to race, creed, color, national origin, citizenship
or immigration status, sexual orientation, gender identity or
expression, military status, sex, age, disability, marital status,
status as a victim of domestic violence, lawful source of income or
familial status, or any intent to make any such limitation,
specification or discrimination.
(4) (i) The provisions of subparagraphs one and two of this paragraph
shall not apply (1) to the rental of a housing accommodation in a
building which contains housing accommodations for not more than two
families living independently of each other, if the owner resides in one
of such housing accommodations, (2) to the restriction of the rental of
all rooms in a housing accommodation to individuals of the same sex or
(3) to the rental of a room or rooms in a housing accommodation, if such
rental is by the occupant of the housing accommodation or by the owner
of the housing accommodation and the owner resides in such housing
accommodation or (4) solely with respect to age and familial status to
the restriction of the sale, rental or lease of housing accommodations
exclusively to persons sixty-two years of age or older and the spouse of
any such person, or for housing intended and operated for occupancy by
at least one person fifty-five years of age or older per unit. In
determining whether housing is intended and operated for occupancy by
persons fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C.
3607 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,
shall apply. However, such rental property shall no longer be exempt
from the provisions of subparagraphs one and two of this paragraph if
there is unlawful discriminatory conduct pursuant to subparagraph three
of this paragraph.
(ii) The provisions of subparagraphs one, two, and three of this
paragraph shall not apply (1) to the restriction of the rental of all
rooms in a housing accommodation to individuals of the same sex, (2) to
the rental of a room or rooms in a housing accommodation, if such rental
is by the occupant of the housing accommodation or by the owner of the
housing accommodation and the owner resides in such housing
accommodation, or (3) solely with respect to age and familial status to
the restriction of the sale, rental or lease of housing accommodations
exclusively to persons sixty-two years of age or older and the spouse of
any such person, or for housing intended and operated for occupancy by
at least one person fifty-five years of age or older per unit. In
determining whether housing is intended and operated for occupancy by
persons fifty-five years of age or older, Sec. 807(b) (2) (c) (42 U.S.C.
3607 (b) (2) (c)) of the federal Fair Housing Act of 1988, as amended,
shall apply.
(b) It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, or managing agent of, or other person having the
right of ownership or possession of or the right to sell, rent or lease,
land or commercial space:
(1) To refuse to sell, rent, lease or otherwise deny to or withhold
from any person or group of persons land or commercial space because of
the race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, age, disability, marital status, status as a victim of
domestic violence, or familial status of such person or persons, or to
represent that any housing accommodation or land is not available for
inspection, sale, rental or lease when in fact it is so available;
(2) To discriminate against any person because of race, creed, color,
national origin, citizenship or immigration status, sexual orientation,
gender identity or expression, military status, sex, age, disability,
marital status, status as a victim of domestic violence, or familial
status in the terms, conditions or privileges of the sale, rental or
lease of any such land or commercial space; or in the furnishing of
facilities or services in connection therewith;
(3) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for the purchase, rental or lease of such land or commercial
space or to make any record or inquiry in connection with the
prospective purchase, rental or lease of such land or commercial space
which expresses, directly or indirectly, any limitation, specification
or discrimination as to race, creed, color, national origin, citizenship
or immigration status, sexual orientation, gender identity or
expression, military status, sex, age, disability, marital status,
status as a victim of domestic violence, or familial status; or any
intent to make any such limitation, specification or discrimination.
(4) With respect to age and familial status, the provisions of this
paragraph shall not apply to the restriction of the sale, rental or
lease of land or commercial space exclusively to persons fifty-five
years of age or older and the spouse of any such person, or to the
restriction of the sale, rental or lease of land to be used for the
construction, or location of housing accommodations exclusively for
persons sixty-two years of age or older, or intended and operated for
occupancy by at least one person fifty-five years of age or older per
unit. In determining whether housing is intended and operated for
occupancy by persons fifty-five years of age or older, Sec. 807(b) (2)
(c) (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988,
as amended, shall apply.
(c) It shall be an unlawful discriminatory practice for any real
estate broker, real estate salesperson or employee or agent thereof:
(1) To refuse to sell, rent or lease any housing accommodation, land
or commercial space to any person or group of persons or to refuse to
negotiate for the sale, rental or lease, of any housing accommodation,
land or commercial space to any person or group of persons because of
the race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, age, disability, marital status, status as a victim of
domestic violence, lawful source of income or familial status of such
person or persons, or to represent that any housing accommodation, land
or commercial space is not available for inspection, sale, rental or
lease when in fact it is so available, or otherwise to deny or withhold
any housing accommodation, land or commercial space or any facilities of
any housing accommodation, land or commercial space from any person or
group of persons because of the race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, sex, age, disability, marital status,
lawful source of income or familial status of such person or persons.
(2) To print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for the purchase, rental or lease of any housing
accommodation, land or commercial space or to make any record or inquiry
in connection with the prospective purchase, rental or lease of any
housing accommodation, land or commercial space which expresses,
directly or indirectly, any limitation, specification, or discrimination
as to race, creed, color, national origin, citizenship or immigration
status, sexual orientation, gender identity or expression, military
status, sex, age, disability, marital status, status as a victim of
domestic violence, lawful source of income or familial status; or any
intent to make any such limitation, specification or discrimination.
(3) With respect to age and familial status, the provisions of this
paragraph shall not apply to the restriction of the sale, rental or
lease of any housing accommodation, land or commercial space exclusively
to persons fifty-five years of age or older and the spouse of any such
person, or to the restriction of the sale, rental or lease of any
housing accommodation or land to be used for the construction or
location of housing accommodations for persons sixty-two years of age or
older, or intended and operated for occupancy by at least one person
fifty-five years of age or older per unit. In determining whether
housing is intended and operated for occupancy by persons fifty-five
years of age or older, Sec. 807 (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c))
of the federal Fair Housing Act of 1988, as amended, shall apply.
(d) It shall be an unlawful discriminatory practice for any real
estate board, because of the race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, age, sex, disability, marital status,
status as a victim of domestic violence, lawful source of income or
familial status of any individual who is otherwise qualified for
membership, to exclude or expel such individual from membership, or to
discriminate against such individual in the terms, conditions and
privileges of membership in such board.
(e) It shall be an unlawful discriminatory practice for the owner,
proprietor or managing agent of, or other person having the right to
provide care and services in, a private proprietary nursing home,
convalescent home, or home for adults, or an intermediate care facility,
as defined in section two of the social services law, heretofore
constructed, or to be constructed, or any agent or employee thereof, to
refuse to provide services and care in such home or facility to any
individual or to discriminate against any individual in the terms,
conditions, and privileges of such services and care solely because such
individual is a blind person. For purposes of this paragraph, a "blind
person" shall mean a person who is registered as a blind person with the
commission for the visually handicapped and who meets the definition of
a "blind person" pursuant to section three of chapter four hundred
fifteen of the laws of nineteen hundred thirteen entitled "An act to
establish a state commission for improving the condition of the blind of
the state of New York, and making an appropriation therefor".
(f) The provisions of this subdivision, as they relate to age, shall
not apply to persons under the age of eighteen years.
(g) It shall be an unlawful discriminatory practice for any person
offering or providing housing accommodations, land or commercial space
as described in paragraphs (a), (b), and (c) of this subdivision to make
or cause to be made any written or oral inquiry or record concerning
membership of any person in the state organized militia in relation to
the purchase, rental or lease of such housing accommodation, land, or
commercial space, provided, however, that nothing in this subdivision
shall prohibit a member of the state organized militia from voluntarily
disclosing such membership.
(h) It shall be an unlawful discriminatory practice for any person to
discriminate against any individual in making real estate appraisal
services available or to base a real estate appraisal, estimate, or
opinion of value on the race, creed, color, national origin, citizenship
or immigration status, sexual orientation, gender identity or
expression, military status, sex, age, disability, marital status,
status as a victim of domestic violence, lawful source of income, or
familial status of either the prospective owners or occupants of the
real property, the present owners or occupants of the real property, or
the present owners or occupants of the real properties in the vicinity
of the property. Nothing in this section shall prohibit a real estate
appraiser from taking into consideration factors other than race, creed,
color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex, age,
disability, marital status, status as a victim of domestic violence,
lawful source of income, or familial status.
5-a. (a) For any case alleging housing discrimination under this
article, an unlawful discriminatory practice may be established by a
practice's discriminatory effect, even if such practice was not
motivated by a discriminatory intent. The practice may still be lawful
if supported by a legally sufficient justification, as defined in
paragraph (c) of this subdivision.
(b) For the purposes of this subdivision, a practice has a
discriminatory effect where it actually or predictably results in a
disparate impact on a group of persons or creates, increases,
reinforces, or perpetuates segregated housing patterns because of race,
creed, color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex, age,
disability, marital status, status as a victim of domestic violence,
lawful source of income or familial.
(c) (1) A legally sufficient justification exists where the challenged
practice:
(i) is necessary to achieve one or more substantial, legitimate,
nondiscriminatory interests of the respondent; and
(ii) those interests could not be served by another practice that has
a less discriminatory effect.
(2) A legally sufficient justification shall be supported by evidence
and may not be hypothetical or speculative. The burdens of proof for
establishing each of the two elements of a legally sufficient
justification are set forth in paragraph (d) of this subdivision.
(d) (1) The complainant shall have the burden of proving that a
challenged practice caused or predictably will cause a discriminatory
effect.
(2) Once the complainant satisfies the burden of proof set forth in
subparagraph one of this paragraph, the respondent shall have the burden
of proving that the challenged practice is necessary to achieve one or
more substantial, legitimate, nondiscriminatory interests of the
respondent.
(3) If the respondent satisfies the burden of proof set forth in
subparagraph two of this paragraph, the complainant may still prevail
upon proving that the substantial, legitimate, nondiscriminatory
interests supporting the challenged practice could be served by another
practice that has a less discriminatory effect.
(e) A demonstration that a practice is supported by a legally
sufficient justification, as defined in paragraph (c) of this
subdivision, may not be used as a defense against a claim of intentional
discrimination.
(f) Nothing in this subdivision shall be construed or interpreted as
limiting, restricting, overriding, or supplanting any broader
interpretation of the discriminatory practices described in this article
or the availability of liability under this article.
5-b. (a) For any case alleging employment discrimination under this
article, an unlawful discriminatory practice may be established by a
practice's discriminatory effect, even if such practice was not
motivated by a discriminatory intent. The practice may still be lawful
if supported by a legally sufficient justification, as defined in
paragraph (c) of this subdivision.
(b) For the purposes of this subdivision, a practice has a
discriminatory effect where it actually or predictably results in a
disparate impact on a group of persons, because of their membership in a
class protected under this section.
(c) (i) A legally sufficient justification exists where the challenged
practice:
(A) is job related for the position in question and consistent with
business necessity; and
(B) that the business necessity could not be served by another
practice that has a less discriminatory effect.
(ii) A legally sufficient justification shall be supported by evidence
and may not be hypothetical or speculative. The burdens of proof for
establishing each of the two elements of a legally sufficient
justification are set forth in paragraph (d) of this subdivision.
(d) (i) The complainant shall have the burden of proving that a
challenged practice caused or predictably will cause a discriminatory
effect.
(ii) Once the complainant satisfies the burden of proof set forth in
subparagraph one of this paragraph, the respondent shall have the burden
of proving that the challenged practice is job related for the position
in question and consistent with business necessity.
(iii) If the respondent satisfies the burden of proof set forth in
subparagraph two of this paragraph, the complainant may still prevail
upon proving that the business necessity could be served by another
practice that has a less discriminatory effect.
(e) A demonstration that a practice is supported by a legally
sufficient justification, as defined in paragraph (c) of this
subdivision, may not be used as a defense against a claim of intentional
discrimination.
(f) Nothing in this subdivision shall be construed or interpreted as
limiting, restricting, overriding, or supplanting any broader
interpretation of the discriminatory practices described in this article
or the availability of liability under this article.
6. It shall be an unlawful discriminatory practice for any person to
aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or to attempt to do so.
7. It shall be an unlawful discriminatory practice for any person
engaged in any activity to which this section applies to retaliate or
discriminate against any person because such person has (i) opposed any
practices forbidden under this article, (ii) filed a complaint,
testified, or assisted in any proceeding under this article, or (iii)
requested a reasonable accommodation under this article. Retaliation may
include, but is not limited to, disclosing an employee's personnel files
because such employee has (i) opposed any practices forbidden under this
article, (ii) filed a complaint, testified, or assisted in any
proceeding under this article, or (iii) requested a reasonable
accommodation under this article, except where such disclosure is made
in the course of commencing or responding to a complaint in any
proceeding under this article or any other civil or criminal action or
other judicial or administrative proceeding as permitted by applicable
law.
8. It shall be an unlawful discriminatory practice for any party to a
conciliation agreement made pursuant to section two hundred ninety-seven
of this article to violate the terms of such agreement.
9. (a) It shall be an unlawful discriminatory practice for any fire
department or fire company therein, through any member or members
thereof, officers, board of fire commissioners or other body or office
having power of appointment of volunteer firefighters, directly or
indirectly, by ritualistic practice, constitutional or by-law
prescription, by tacit agreement among its members, or otherwise, to
deny to any individual membership in any volunteer fire department or
fire company therein, or to expel or discriminate against any volunteer
member of a fire department or fire company therein, because of the
race, creed, color, national origin, citizenship or immigration status,
sexual orientation, gender identity or expression, military status, sex,
marital status, status as a victim of domestic violence, or familial
status, of such individual.
(b) Upon a complaint to the division, as provided for under
subdivision one of section two hundred ninety-seven of this article, and
in the event the commissioner finds that an unlawful discriminatory
practice has been engaged in, the board of fire commissioners or other
body or office having power of appointment of volunteer firefighters
shall be served with any order required, under subdivision four of
section two hundred ninety-seven of this article, to be served on any or
all respondents requiring such respondent or respondents to cease and
desist from such unlawful discriminatory practice and to take
affirmative action. Such board shall have the duty and power to appoint
as a volunteer firefighter, notwithstanding any other statute or
provision of law or by-law of any volunteer fire company, any individual
whom the commissioner has determined to be the subject of an unlawful
discriminatory practice under this subdivision. Unless such board has
been found to have engaged in an unlawful discriminatory practice,
service upon such board of such order shall not constitute such board or
its members as a respondent nor constitute a finding of an unlawful
discriminatory practice against such board or its members.
10. (a) It shall be an unlawful discriminatory practice for any
employer, or an employee or agent thereof, to impose upon a person as a
condition of obtaining or retaining employment, including opportunities
for promotion, advancement or transfers, any terms or conditions that
would require such person to violate or forego a sincerely held practice
of his or her religion, including but not limited to the observance of
any particular day or days or any portion thereof as a sabbath or other
holy day in accordance with the requirements of his or her religion or
the wearing of any attire, clothing, or facial hair in accordance with
the requirements of his or her religion, unless, after engaging in a
bona fide effort, the employer demonstrates that it is unable to
reasonably accommodate the employee's or prospective employee's
sincerely held religious observance or practice without undue hardship
on the conduct of the employer's business. Notwithstanding any other
provision of law to the contrary, an employee shall not be entitled to
premium wages or premium benefits for work performed during hours to
which such premium wages or premium benefits would ordinarily be
applicable, if the employee is working during such hours only as an
accommodation to his or her sincerely held religious requirements.
Nothing in this paragraph or paragraph (b) of this subdivision shall
alter or abridge the rights granted to an employee concerning the
payment of wages or privileges of seniority accruing to that employee.
(b) Except where it would cause an employer to incur an undue
hardship, no person shall be required to remain at his or her place of
employment during any day or days or portion thereof that, as a
requirement of his or her religion, he or she observes as his or her
sabbath or other holy day, including a reasonable time prior and
subsequent thereto for travel between his or her place of employment and
his or her home, provided however, that any such absence from work
shall, wherever practicable in the reasonable judgment of the employer,
be made up by an equivalent amount of time and work at some other
mutually convenient time, or shall be charged against any leave with pay
ordinarily granted, other than sick leave, provided further, however,
that any such absence not so made up or charged, may be treated by the
employer of such person as leave taken without pay.
(c) It shall be an unlawful discriminatory practice for an employer to
refuse to permit an employee to utilize leave, as provided in paragraph
(b) of this subdivision, solely because the leave will be used for
absence from work to accommodate the employee's sincerely held religious
observance or practice.
(d) As used in this subdivision: (1) "undue hardship" shall mean an
accommodation requiring significant expense or difficulty (including a
significant interference with the safe or efficient operation of the
workplace or a violation of a bona fide seniority system). Factors to be
considered in determining whether the accommodation constitutes an undue
economic hardship shall include, but not be limited to:
(i) the identifiable cost of the accommodation, including the costs of
loss of productivity and of retaining or hiring employees or
transferring employees from one facility to another, in relation to the
size and operating cost of the employer;
(ii) the number of individuals who will need the particular
accommodation to a sincerely held religious observance or practice; and
(iii) for an employer with multiple facilities, the degree to which
the geographic separateness or administrative or fiscal relationship of
the facilities will make the accommodation more difficult or expensive.
Provided, however, an accommodation shall be considered to constitute
an undue hardship if it will result in the inability of an employee to
perform the essential functions of the position in which he or she is
employed.
(2) "premium wages" shall include overtime pay and compensatory time
off, and additional remuneration for night, weekend or holiday work, or
for standby or irregular duty.
(3) "premium benefit" shall mean an employment benefit, such as
seniority, group life insurance, health insurance, disability insurance,
sick leave, annual leave, or an educational or pension benefit that is
greater than the employment benefit due the employee for an equivalent
period of work performed during the regular work schedule of the
employee.
In the case of any employer other than the state, any of its political
subdivisions or any school district, this subdivision shall not apply
where the uniform application of terms and conditions of attendance to
employees is essential to prevent undue economic hardship to the
employer. In any proceeding in which the applicability of this
subdivision is in issue, the burden of proof shall be upon the employer.
If any question shall arise whether a particular position or class of
positions is excepted from this subdivision by this paragraph, such
question may be referred in writing by any party claimed to be
aggrieved, in the case of any position of employment by the state or any
of its political subdivisions, except by any school district, to the
civil service commission, in the case of any position of employment by
any school district, to the commissioner of education, who shall
determine such question and in the case of any other employer, a party
claiming to be aggrieved may file a complaint with the division pursuant
to this article. Any such determination by the civil service commission
shall be reviewable in the manner provided by article seventy-eight of
the civil practice law and rules and any such determination by the
commissioner of education shall be reviewable in the manner and to the
same extent as other determinations of the commissioner under section
three hundred ten of the education law.
11. Nothing contained in this section shall be construed to bar any
religious or denominational institution or organization, or any
organization operated for charitable or educational purposes, which is
operated, supervised or controlled by or in connection with a religious
organization, from limiting employment or sales or rental of housing
accommodations or admission to or giving preference to persons of the
same religion or denomination or from taking such action as is
calculated by such organization to promote the religious principles for
which it is established or maintained.
12. Notwithstanding the provisions of subdivisions one, one-a and
three-a of this section, it shall not be an unlawful discriminatory
practice for an employer, employment agency, labor organization or joint
labor-management committee to carry out a plan, approved by the
division, to increase the employment of members of a minority group (as
may be defined pursuant to the regulations of the division) which has a
state-wide unemployment rate that is disproportionately high in
comparison with the state-wide unemployment rate of the general
population. Any plan approved under this subdivision shall be in writing
and the division's approval thereof shall be for a limited period and
may be rescinded at any time by the division.
13. It shall be an unlawful discriminatory practice (i) for any person
to boycott or blacklist, or to refuse to buy from, sell to or trade
with, or otherwise discriminate against any person, because of the race,
creed, color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex, status
as a victim of domestic violence, disability, or familial status, or of
such person, or of such person's partners, members, stockholders,
directors, officers, managers, superintendents, agents, employees,
business associates, suppliers or customers, or (ii) for any person
wilfully to do any act or refrain from doing any act which enables any
such person to take such action. This subdivision shall not apply to:
(a) Boycotts connected with labor disputes; or
(b) Boycotts to protest unlawful discriminatory practices.
14. In addition to reasonable modifications in policies, practices, or
procedures, including those defined in subparagraph (iv) of paragraph
(d) of subdivision two of this section or reasonable accommodations for
persons with disabilities as otherwise provided in this section,
including the use of an animal as a reasonable accommodation, it shall
be an unlawful discriminatory practice for any person engaged in any
activity covered by this section to deny access or otherwise to
discriminate against a blind person, a person who is deaf or hard of
hearing or a person with another disability because he or she is
accompanied by a dog that has been trained to work or perform specific
tasks for the benefit of such person by a professional guide dog,
hearing dog or service dog training center or professional guide dog,
hearing dog or service dog trainer, or to discriminate against such
professional guide dog, hearing dog or service dog trainer engaged in
such training of a dog for use by a person with a disability, whether or
not accompanied by the person for whom the dog is being trained.
15. It shall be an unlawful discriminatory practice for any person,
agency, bureau, corporation or association, including the state and any
political subdivision thereof, to deny any license or employment to any
individual by reason of his or her having been convicted of one or more
criminal offenses, or by reason of a finding of a lack of "good moral
character" which is based upon his or her having been convicted of one
or more criminal offenses, when such denial is in violation of the
provisions of article twenty-three-A of the correction law. Further,
there shall be a rebuttable presumption in favor of excluding from
evidence the prior incarceration or conviction of any person, in a case
alleging that the employer has been negligent in hiring or retaining an
applicant or employee, or supervising a hiring manager, if after
learning about an applicant or employee's past criminal conviction
history, such employer has evaluated the factors set forth in section
seven hundred fifty-two of the correction law, and made a reasonable,
good faith determination that such factors militate in favor of hire or
retention of that applicant or employee. No person, agency, bureau,
corporation, association, the state or any political subdivision
thereof, shall require an individual to provide a copy of his or her
criminal history record that he or she obtained pursuant to the rules
and regulations of the division of criminal justice services.
16. It shall be an unlawful discriminatory practice, unless
specifically required or permitted by statute, for any person, agency,
bureau, corporation or association, including the state and any
political subdivision thereof, to make any inquiry about, whether in any
form of application or otherwise, or to act upon adversely to the
individual involved, any arrest or criminal accusation of such
individual not then pending against that individual which was followed
by a termination of that criminal action or proceeding in favor of such
individual, as defined in subdivision two of section 160.50 of the
criminal procedure law, or by an order adjourning the criminal action in
contemplation of dismissal, pursuant to section 170.55, 170.56, 210.46,
210.47, or 215.10 of the criminal procedure law, or by a youthful
offender adjudication, as defined in subdivision one of section 720.35
of the criminal procedure law, or by a conviction for a violation sealed
pursuant to section 160.55 of the criminal procedure law or by a
conviction which is sealed pursuant to section 160.59 or 160.58 of the
criminal procedure law, or by a conviction which is sealed pursuant to
section 160.57 of the criminal procedure law, except where such
conviction record is accessed pursuant to subparagraph (vii), (viii), or
(xvi) of paragraph (d) of subdivision one of section 160.57 of the
criminal procedure law, in connection with the licensing, housing,
employment, including volunteer positions, or providing of credit or
insurance to such individual; provided, further, that no person shall be
required to divulge information pertaining to any arrest or criminal
accusation of such individual not then pending against that individual
which was followed by a termination of that criminal action or
proceeding in favor of such individual, as defined in subdivision two of
section 160.50 of the criminal procedure law, or by an order adjourning
the criminal action in contemplation of dismissal, pursuant to section
170.55 or 170.56, 210.46, 210.47 or 215.10 of the criminal procedure
law, or by a youthful offender adjudication, as defined in subdivision
one of section 720.35 of the criminal procedure law, or by a conviction
for a violation sealed pursuant to section 160.55 of the criminal
procedure law, or by a conviction which is sealed pursuant to section
160.58 or 160.59 of the criminal procedure law, or by a conviction which
is sealed pursuant to section 160.57 of the criminal procedure law,
except where such conviction record is accessed pursuant to subparagraph
(vii), (viii), or (xvi) of paragraph (d) of subdivision one of section
160.57 of the criminal procedure law. An individual required or
requested to provide information in violation of this subdivision may
respond as if the arrest, criminal accusation, or disposition of such
arrest or criminal accusation did not occur. The provisions of this
subdivision shall not apply to the licensing activities of governmental
bodies in relation to the regulation of guns, firearms and other deadly
weapons or in relation to an application for employment as a police
officer or peace officer as those terms are defined in subdivisions
thirty-three and thirty-four of section 1.20 of the criminal procedure
law; provided further that the provisions of this subdivision shall not
apply to an application for employment or membership in any law
enforcement agency with respect to any arrest or criminal accusation
which was followed by a youthful offender adjudication, as defined in
subdivision one of section 720.35 of the criminal procedure law, or by a
conviction for a violation sealed pursuant to section 160.55 of the
criminal procedure law, or by a conviction which is sealed pursuant to
section 160.58 or 160.59 of the criminal procedure law, or by a
conviction which is sealed pursuant to section 160.57 of the criminal
procedure law. For purposes of this subdivision, an action which has
been adjourned in contemplation of dismissal, pursuant to section 170.55
or 170.56, 210.46, 210.47 or 215.10 of the criminal procedure law, shall
not be considered a pending action, unless the order to adjourn in
contemplation of dismissal is revoked and the case is restored to the
calendar for further prosecution.
17. Nothing in this section shall prohibit the offer and acceptance of
a discount to a person sixty-five years of age or older for housing
accommodations.
18. It shall be an unlawful discriminatory practice for the owner,
lessee, sub-lessee, assignee, or managing agent of, or other person
having the right of ownership of or possession of or the right to rent
or lease housing accommodations:
(1) To refuse to permit, at the expense of a person with a disability,
reasonable modifications of existing premises occupied or to be occupied
by the said person, if the modifications may be necessary to afford the
said person full enjoyment of the premises, in conformity with the
provisions of the New York state uniform fire prevention and building
code except that, in the case of a rental, the landlord may, where it is
reasonable to do so, condition permission for a modification on the
renter's agreeing to restore the interior of the premises to the
condition that existed before the modification, reasonable wear and tear
excepted.
(2) To refuse to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford said person with a disability equal opportunity to use and enjoy
a dwelling, including the use of an animal as a reasonable accommodation
to alleviate symptoms or effects of a disability, and including
reasonable modification to common use portions of the dwelling, or
(3) In connection with the design and construction of covered
multi-family dwellings for first occupancy after March thirteenth,
nineteen hundred ninety-one, a failure to design and construct dwellings
in accordance with the accessibility requirements for multi-family
dwellings found in the New York state uniform fire prevention and
building code to provide that:
(i) The public use and common use portions of the dwellings are
readily accessible to and usable by persons with disabilities;
(ii) All the doors are designed in accordance with the New York state
uniform fire prevention and building code to allow passage into and
within all premises and are sufficiently wide to allow passage by
persons in wheelchairs; and
(iii) All premises within covered multi-family dwelling units contain
an accessible route into and through the dwelling; light switches,
electrical outlets, thermostats, and other environmental controls are in
accessible locations; there are reinforcements in the bathroom walls to
allow later installation of grab bars; and there are usable kitchens and
bathrooms such that an individual in a wheelchair can maneuver about the
space, in conformity with the New York state uniform fire prevention and
building code.
19. (a) Except as provided in paragraph (b) of this subdivision, it
shall be an unlawful discriminatory practice of any employer, labor
organization, employment agency, licensing agency, or its employees,
agents, or members:
(1) to directly or indirectly solicit, require, or administer a
genetic test to a person, or solicit or require information from which a
predisposing genetic characteristic can be inferred as a condition of
employment, preemployment application, labor organization membership, or
licensure; or
(2) to buy or otherwise acquire the results or interpretation of an
individual's genetic test results or information from which a
predisposing genetic characteristic can be inferred or to make an
agreement with an individual to take a genetic test or provide genetic
test results or such information.
(b) An employer may require a specified genetic test as a condition of
employment where such a test is shown to be directly related to the
occupational environment, such that the employee or applicant with a
particular genetic anomaly might be at an increased risk of disease as a
result of working in said environment.
(c) Nothing in this section shall prohibit the genetic testing of an
employee who requests a genetic test and who provides written and
informed consent to taking a genetic test for any of the following
purposes:
(1) pursuant to a workers' compensation claim;
(2) pursuant to civil litigation; or
(3) to determine the employee's susceptibility to potentially
carcinogenic, toxic, or otherwise hazardous chemicals or substances
found in the workplace environment only if the employer does not
terminate the employee or take any other action that adversely affects
any term, condition or privilege of employment pursuant to the genetic
test results.
(d) If an employee consents to genetic testing for any of the
aforementioned allowable reasons, he or she must be given and sign an
authorization of consent form which explicitly states the specific
purpose, uses and limitations of the genetic tests and the specific
traits or characteristics to be tested.
21. Nothing in this section shall prohibit the offer and acceptance of
a discount for housing accommodations to a person with a disability, as
defined in subdivision twenty-one of section two hundred ninety-two of
this article.
22. (a) It shall be an unlawful discriminatory practice for an
employer or licensing agency, because of any individual's status as a
victim of domestic violence, to refuse to hire or employ or license or
to bar or to discharge from employment such individual or to
discriminate against such individual in compensation or in terms,
conditions or privileges of employment.
(b) It shall be an unlawful discriminatory practice for an employer or
employment agency to print or circulate or cause to be printed or
circulated any statement, advertisement or publication, or to use any
form of application for employment or to make any inquiry in connection
with prospective employment which expresses, directly or indirectly, any
limitation, specification or discrimination as to status as a victim of
domestic violence, or any intent to make any such limitation,
specification or discrimination; provided, however, that no provision of
this subdivision shall be construed to prohibit the employer from making
any inquiry or obtaining information for the purpose of providing
assistance to, or a reasonable accommodation in accordance with the
provisions of this subdivision to, a victim of domestic violence.
(c)(1) It shall be an unlawful discriminatory practice for an employer
to refuse to provide a reasonable accommodation to an employee who is
known by the employer to be a victim of domestic violence, limited to
those accommodations set forth in subparagraph two of this paragraph,
when such employee must be absent from work for a reasonable time,
unless such absence would cause an undue hardship to the employer as set
forth in subparagraph three of this paragraph, provided, however that
the employer may require an employee to charge any time off pursuant to
this section against any leave with pay ordinarily granted, where
available, unless otherwise provided for in a collective bargaining
agreement or existing employee handbook or policy, and any such absence
that cannot be charged may be treated as leave without pay. An employee
who must be absent from work in accordance with subparagraph two of this
paragraph shall be entitled to the continuation of any health insurance
coverage provided by the employer, to which the employee is otherwise
entitled during any such absence.
(2) An employer is required to provide a reasonable accommodation to
an employee who is a victim of domestic violence who must be absent from
work for a reasonable time, in accordance with the provisions of
subparagraph one of this paragraph, limited to the following:
(i) Seeking medical attention for injuries caused by domestic violence
including for a child who is a victim of domestic violence, provided
that the employee is not the perpetrator of the domestic violence
against the child; or
(ii) Obtaining services from a domestic violence shelter, program, or
rape crisis center as a result of domestic violence; or
(iii) Obtaining psychological counseling related to an incident or
incidents of domestic violence, including for a child who is a victim of
domestic violence, provided that the employee is not the perpetrator of
the domestic violence against the child; or
(iv) Participating in safety planning and taking other actions to
increase safety from future incidents of domestic violence, including
temporary or permanent relocation; or
(v) Obtaining legal services, assisting in the prosecution of the
offense, or appearing in court in relation to the incident or incidents
of domestic violence.
(3) An employer is required to provide a reasonable accommodation for
an employee's absence in accordance with the provisions of subparagraphs
one and two of this paragraph unless the employer can demonstrate that
the employee's absence would constitute an undue hardship to the
employer. A determination of whether such an absence will constitute an
undue hardship shall include consideration of factors such as:
(i) The overall size of the business, program or enterprise with
respect to the number of employees, number and type of facilities, and
size of budget; and
(ii) The type of operation in which the business, program or
enterprise is engaged, including the composition and structure of the
workforce.
(4) An employee who must be absent from work in accordance with the
provisions of subparagraph one of this paragraph shall provide the
employer with reasonable advance notice of the employee's absence,
unless such advance notice is not feasible.
(5) An employee who must be absent from work in accordance with the
provisions of subparagraph one of this paragraph and who cannot feasibly
give reasonable advance notice of the absence in accordance with
subparagraph four of this paragraph must, within a reasonable time after
the absence, provide a certification to the employer when requested by
the employer.
Such certification shall be in the form of:
(i) A police report indicating that the employee or his or her child
was a victim of domestic violence;
(ii) A court order protecting or separating the employee or his or her
child from the perpetrator of an act of domestic violence;
(iii) Other evidence from the court or prosecuting attorney that the
employee appeared in court; or
(iv) Documentation from a medical professional, domestic violence
advocate, health care provider, or counselor that the employee or his or
her child was undergoing counseling or treatment for physical or mental
injuries or abuse resulting in victimization from an act of domestic
violence.
(6) Where an employee has a physical or mental disability resulting
from an incident or series of incidents of domestic violence, such
employee shall be treated in the same manner as an employee with any
other disability, pursuant to the provisions of this section which
provide that discrimination and refusal to provide reasonable
accommodation of disability are unlawful discriminatory practices.
(d) To the extent allowed by law, employers shall maintain the
confidentiality of any information regarding an employee's status as a
victim of domestic violence.
Unlawful discriminatory practices in relation to credit. 1.
It shall be an unlawful discriminatory practice for any creditor or any
officer, agent or employee thereof:
a. In the case of applications for credit with respect to the
purchase, acquisition, construction, rehabilitation, repair or
maintenance of any housing accommodation, land or commercial space to
discriminate against any such applicant because of the race, creed,
color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, age, sex,
marital status, status as a victim of domestic violence, disability, or
familial status of such applicant or applicants or any member,
stockholder, director, officer or employee of such applicant or
applicants, or of the prospective occupants or tenants of such housing
accommodation, land or commercial space, in the granting, withholding,
extending or renewing, or in the fixing of the rates, terms or
conditions of, any such credit;
b. To discriminate in the granting, withholding, extending or
renewing, or in the fixing of the rates, terms or conditions of, any
form of credit, on the basis of race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, age, sex, marital status, status as a
victim of domestic violence, disability, or familial status;
c. To use any form of application for credit or use or make any record
or inquiry which expresses, directly or indirectly, any limitation,
specification, or discrimination as to race, creed, color, national
origin, citizenship or immigration status, sexual orientation, gender
identity or expression, military status, age, sex, marital status,
status as a victim of domestic violence, disability, or familial status;
d. To make any inquiry of an applicant concerning his or her capacity
to reproduce, or his or her use or advocacy of any form of birth control
or family planning;
e. To refuse to consider sources of an applicant's income or to
subject an applicant's income to discounting, in whole or in part,
because of an applicant's race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender identity
or expression, military status, age, sex, marital status, status as a
victim of domestic violence, childbearing potential, disability, or
familial status;
f. To discriminate against a married person because such person
neither uses nor is known by the surname of his or her spouse.
This paragraph shall not apply to any situation where the use of a
surname would constitute or result in a criminal act.
2. Without limiting the generality of subdivision one of this section,
it shall be considered discriminatory if, because of an applicant's or
class of applicants' race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, age, sex, marital status, status as a victim of
domestic violence, disability, or familial status, (i) an applicant or
class of applicants is denied credit in circumstances where other
applicants of like overall credit worthiness are granted credit, or (ii)
special requirements or conditions, such as requiring co-obligors or
reapplication upon marriage, are imposed upon an applicant or class of
applicants in circumstances where similar requirements or conditions are
not imposed upon other applicants of like overall credit worthiness.
3. It shall not be considered discriminatory if credit
differentiations or decisions are based upon factually supportable,
objective differences in applicants' overall credit worthiness, which
may include reference to such factors as current income, assets and
prior credit history of such applicants, as well as reference to any
other relevant factually supportable data; provided, however, that no
creditor shall consider, in evaluating the credit worthiness of an
applicant, aggregate statistics or assumptions relating to race, creed,
color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex,
marital status, status as a victim of domestic violence or disability,
or to the likelihood of any group of persons bearing or rearing
children, or for that reason receiving diminished or interrupted income
in the future.
3-a. It shall not be an unlawful discriminatory practice to consider
age in determining credit worthiness when age has a demonstrable and
statistically sound relationship to a determination of credit
worthiness.
4. a. If so requested by an applicant for credit, a creditor shall
furnish such applicant with a statement of the specific reasons for
rejection of the applicant's application for credit.
b. If so requested in writing by an individual who is or was married,
a creditor or credit reporting bureau shall maintain in its records a
separate credit history for any such individual. Such separate history
shall include all obligations as to which such bureau has notice with
respect to which any such person is or was individually or jointly
liable.
5. No provision of this section providing spouses the right to
separately apply for credit, borrow money, or have separate credit
histories maintained shall limit or foreclose the right of creditors,
under any other provision of law, to hold one spouse legally liable for
debts incurred by the other.
6. Any person claiming to be aggrieved by an unlawful discriminatory
practice engaged in by a regulated creditor, in lieu of the procedure
set forth in section two hundred ninety-seven of this article, may file
a verified complaint with the superintendent, as provided hereinafter;
provided, however, that the filing of a complaint with either the
superintendent or the division shall bar subsequent recourse to the
other agency, as well as to any local commission on human rights, with
respect to the grievance complained of.
7. In the case of a verified complaint filed with the superintendent
the following procedures shall be followed:
a. After receipt of the complaint, the superintendent shall make a
determination within thirty days of whether there is probable cause to
believe that the person named in the complaint has engaged in or is
engaging in an unlawful discriminatory practice. If the superintendent
determines there is no such probable cause, the complaint shall be
dismissed. If the superintendent determines that there is such probable
cause, he or she shall attempt to resolve such complaint by conference
and conciliation. If conciliation is achieved, the terms shall be
recorded in a written agreement signed by the creditor and complainant,
a copy of which shall be forwarded to the commissioner.
b. If conciliation is not achieved, the superintendent or his or her
designated representative shall conduct a hearing with respect to the
alleged violation of this section. All interested parties shall be
entitled to adequate and timely notice of the hearing. Such parties
shall have the right to be represented by counsel or by other
representatives of their own choosing; to offer evidence and witnesses
in their own behalf and to cross-examine other parties and witnesses; to
have the power of subpoena exercised in their behalf; and to have access
to a written record of such hearing. The superintendent or his or her
representative shall not be bound by the strict rules of evidence
prevailing in courts of law or equity. The testimony taken shall be
under oath and a record shall be made of the proceedings. A written
decision shall be made by the superintendent or his or her designated
representative separately setting forth findings of fact and conclusions
of law. A copy of such decision shall be forwarded to the commissioner.
c. If the superintendent finds that a violation of this section has
occurred, the superintendent shall issue an order which shall do one or
more of the following:
(1) impose a fine in an amount not to exceed ten thousand dollars for
each violation, to be paid to the people of the state of New York;
(2) award compensatory damages to the person aggrieved by such
violation;
(3) for a claim of sex discrimination only, award reasonable
attorney's fees attributable to such claim to any prevailing party;
provided, however, that a prevailing respondent or defendant in order to
recover such reasonable attorney's fees must make a motion requesting
such fees and show that the action or proceeding brought was frivolous.
In no case shall attorney's fees be awarded to the department, nor shall
the department be liable to a prevailing party for attorney's fees. In
order to find the action or proceeding to be frivolous, the
superintendent must find in writing one or more of the following:
(a) the action or proceeding was commenced, used or continued in bad
faith, solely to delay or prolong the resolution of the litigation or to
harass or maliciously injure another; or
(b) the action or proceeding was commenced or continued in bad faith
without any reasonable basis and could not be supported by a good faith
argument for an extension, modification or reversal of existing law. If
the action or proceeding was promptly discontinued when the party or
attorney learned or should have learned that the action or proceeding
lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.
(4) require the regulated creditor to cease and desist from such
unlawful discriminatory practices;
(5) require the regulated creditor to take such further affirmative
action as will effectuate the purposes of this section, including, but
not limited to, granting the credit which was the subject of the
complaint.
d. Any complainant, respondent or other person aggrieved by any order
or final determination of the superintendent may obtain judicial review
thereof.
8. Where the superintendent makes a determination that a regulated
creditor has engaged in or is engaging in discriminatory practices, the
superintendent is empowered to issue appropriate orders to such creditor
pursuant to the banking law. Such orders may be issued without the
necessity of a complaint being filed by an aggrieved person.
9. Whenever any creditor makes application to the superintendent of
financial services to take any action requiring consideration by the
superintendent of the public interest and the needs and convenience
thereof, or requiring a finding that the financial responsibility,
experience, charter, and general fitness of the applicant, and of the
members thereof if the applicant be a co-partnership or association, and
of the officers and directors thereof if the applicant be a corporation,
are such as to command the confidence of the community and to warrant
belief that the business will be operated honestly, fairly, and
efficiently, such creditor shall certify to the superintendent
compliance with the provisions of this section. In the event that the
records of the department of financial services show that such creditor
has been found to be in violation of this section, such creditor shall
describe what action has been taken with respect to its credit policies
and procedures to remedy such violation or violations. The
superintendent shall, in approving the foregoing applications and making
the foregoing findings, give appropriate weight to compliance with this
section.
10. Any complaint filed with the superintendent pursuant to this
section shall be so filed within one year after the occurrence of the
alleged unlawful discriminatory practice.
11. The superintendent is hereby empowered to promulgate rules and
regulations hereunder to effectuate the purposes of this section.
12. The provisions of this section, as they relate to age, shall not
apply to persons under the age of eighteen years.
Unlawful discriminatory practices relating to interns. 1. As
used in this section, "Intern" means a person who performs work for an
employer for the purpose of training under the following circumstances:
a. the employer is not committed to hire the person performing the
work at the conclusion of the training period;
b. the employer and the person performing the work agree that the
person performing the work is not entitled to wages for the work
performed; and
c. the work performed:
(1) provides or supplements training that may enhance the
employability of the intern;
(2) provides experience for the benefit of the person performing the
work;
(3) does not displace regular employees; and
(4) is performed under the close supervision of existing staff.
2. It shall be an unlawful discriminatory practice for an employer to:
a. refuse to hire or employ or to bar or to discharge from internship
an intern or to discriminate against such intern in terms, conditions or
privileges of employment as an intern because of the intern's age, race,
creed, color, national origin, citizenship or immigration status, sexual
orientation, gender identity or expression, military status, sex,
disability, predisposing genetic characteristics, marital status, or
status as a victim of domestic violence;
b. discriminate against an intern in receiving, classifying, disposing
or otherwise acting upon applications for internships because of the
intern's age, race, creed, color, national origin, citizenship or
immigration status, sexual orientation, gender identity or expression,
military status, sex, disability, predisposing genetic characteristics,
marital status, or status as a victim of domestic violence;
c. print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of
application for employment as an intern or to make any inquiry in
connection with prospective employment, which expresses directly or
indirectly, any limitation, specification or discrimination as to age,
race, creed, color, national origin, citizenship or immigration status,
sexual orientation, gender identity or expression, military status, sex,
disability, predisposing genetic characteristics, marital status or
status as a victim of domestic violence, or any intent to make any such
limitation, specification or discrimination, unless based upon a bona
fide occupational qualification; provided, however, that neither this
paragraph nor any provision of this chapter or other law shall be
construed to prohibit the department of civil service or the department
of personnel of any city containing more than one county from requesting
information from applicants for civil service internships or
examinations concerning any of the aforementioned characteristics, other
than sexual orientation, for the purpose of conducting studies to
identify and resolve possible problems in recruitment and testing of
members of minority groups to ensure the fairest possible and equal
opportunities for employment in the civil service for all persons,
regardless of age, race, creed, color, national origin, citizenship or
immigration status, sexual orientation, military status, sex,
disability, predisposing genetic characteristics, marital status or
status as a victim of domestic violence;
d. to discharge, expel or otherwise discriminate against any person
because he or she has opposed any practices forbidden under this article
or because he or she has filed a complaint, testified or assisted in any
proceeding under this article; or
e. to compel an intern who is pregnant to take a leave of absence,
unless the intern is prevented by such pregnancy from performing the
activities involved in the job or occupation in a reasonable manner.
3. It shall be an unlawful discriminatory practice for an employer to:
a. engage in unwelcome sexual advances, requests for sexual favors, or
other verbal or physical conduct of a sexual nature to an intern when:
(1) submission to such conduct is made either explicitly or implicitly
a term or condition of the intern's employment;
(2) submission to or rejection of such conduct by the intern is used
as the basis for employment decisions affecting such intern; or
(3) such conduct has the purpose or effect of unreasonably interfering
with the intern's work performance by creating an intimidating, hostile,
or offensive working environment; or
b. subject an intern to unwelcome harassment based on age, sex, race,
creed, color, sexual orientation, gender identity or expression,
military status, disability, predisposing genetic characteristics,
marital status, status as a victim of domestic violence, national
origin, or citizenship or immigration status, or where such harassment
has the purpose or effect of unreasonably interfering with the intern's
work performance by creating an intimidating, hostile, or offensive
working environment.
4. Nothing in this section shall affect any restrictions upon the
activities of persons licensed by the state liquor authority with
respect to persons under twenty-one years of age.
5. Nothing in this section shall create an employment relationship
between an employer and an intern for the purposes of articles six,
seven, eighteen or nineteen of the labor law.
Unlawful discriminatory practices relating to non-employees.
It shall be an unlawful discriminatory practice for an employer to
permit unlawful discrimination against non-employees in its workplace.
An employer may be held liable to a non-employee who is a contractor,
subcontractor, vendor, consultant or other person providing services
pursuant to a contract in the workplace or who is an employee of such
contractor, subcontractor, vendor, consultant or other person providing
services pursuant to a contract in the workplace, with respect to an
unlawful discriminatory practice, when the employer, its agents or
supervisors knew or should have known that such non-employee was
subjected to an unlawful discriminatory practice in the employer's
workplace, and the employer failed to take immediate and appropriate
corrective action. In reviewing such cases involving non-employees, the
extent of the employer's control and any other legal responsibility
which the employer may have with respect to the conduct of the person
who engaged in the unlawful discriminatory practice shall be considered.
Procedure. 1. Any person claiming to be aggrieved by an
unlawful discriminatory practice may, by himself or herself or his or
her attorney-at-law, make, sign and file with the division a complaint
in writing under oath or by declaration which shall state the name and
address of the person alleged to have committed the unlawful
discriminatory practice complained of and which shall set forth the
particulars thereof and contain such other information as may be
required by the division. The commissioner of labor or the attorney
general, or the executive director of the justice center for the
protection of people with special needs, or the division on its own
motion may, in like manner, make, sign and file such complaint. In
connection with the filing of such complaint, the attorney general is
authorized to take proof, issue subpoenas and administer oaths in the
manner provided in the civil practice law and rules. Any employer whose
employees, or some of them, refuse or threaten to refuse to cooperate
with the provisions of this article, may file with the division a
verified complaint asking for assistance by conciliation or other
remedial action.
2. a. After the filing of any complaint, the division shall promptly
serve a copy thereof upon the respondent and all persons it deems to be
necessary parties, and make prompt investigation in connection
therewith. Within one hundred eighty days after a complaint is filed,
the division shall determine whether it has jurisdiction and, if so,
whether there is probable cause to believe that the person named in the
complaint, hereinafter referred to as the respondent, has engaged or is
engaging in an unlawful discriminatory practice. If it finds with
respect to any respondent that it lacks jurisdiction or that probable
cause does not exist, the commissioner shall issue and cause to be
served on the complainant an order dismissing such allegations of the
said complaint as to such respondent.
b. Notwithstanding the provisions of paragraph a of this subdivision,
with respect to housing discrimination only, after the filing of any
complaint, the division shall, within thirty days after receipt, serve a
copy thereof upon the respondent and all persons it deems to be
necessary parties, and make prompt investigation in connection
therewith. Within one hundred days after a complaint is filed, the
division shall determine whether it has jurisdiction and, if so, whether
there is probable cause to believe that the person named in the
complaint, hereinafter referred to as the respondent, has engaged or is
engaging in an unlawful discriminatory practice. If it finds with
respect to any respondent that it lacks jurisdiction or that probable
cause does not exist, the commissioner shall issue and cause to be
served on the complainant an order dismissing such allegations of the
said complaint as to such respondent.
3. a. If in the judgment of the division the circumstances so warrant,
it may, at any time after the filing of the complaint, endeavor to
eliminate such unlawful discriminatory practice by conference,
conciliation and persuasion. Each conciliation agreement shall include
provisions requiring the respondent to refrain from the commission of
unlawful discriminatory practices in the future and may contain such
further provisions as may be agreed upon by the division, the
complainant, and the respondent, including a provision for the entry in
the supreme court in any county in the judicial district where the
alleged unlawful discriminatory practice was committed, or where any
respondent resides or maintains an office for the transaction of
business, or where the housing accommodation, land or commercial space
specified in the complaint is located, of a consent decree embodying the
terms of the conciliation agreement. The division shall not disclose
what has transpired in the course of such endeavors.
b. If a conciliation agreement is entered into, the division shall
issue an order embodying such agreement and serve a copy of such order
upon all parties to the proceeding, and if a party to any such
proceeding is a regulated creditor, the division shall forward a copy of
the order embodying such agreement to the superintendent.
c. If the division finds that noticing the complaint for hearing would
be undesirable, the division may, in its unreviewable discretion, at any
time prior to a hearing before a hearing examiner, dismiss the complaint
on the grounds of administrative convenience. However, in cases of
housing discrimination only, an administrative convenience dismissal
will not be rendered without the consent of the complainant. The
division may, subject to judicial review, dismiss the complaint on the
grounds of untimeliness if the complaint is untimely or on the grounds
that the election of remedies is annulled.
4. a. Within two hundred seventy days after a complaint is filed, or
within one hundred twenty days after the court has reversed and remanded
an order of the division dismissing a complaint for lack of jurisdiction
or for want of probable cause, unless the division has dismissed the
complaint or issued an order stating the terms of a conciliation
agreement not objected to by the complainant, the division shall cause
to be issued and served a written notice, together with a copy of such
complaint, as the same may have been amended, requiring the respondent
or respondents to answer the charges of such complaint and appear at a
public hearing before a hearing examiner at a time not less than five
nor more than fifteen days after such service and at a place to be fixed
by the division and specified in such notice. The place of any such
hearing shall be the office of the division or such other place as may
be designated by the division. The case in support of the complaint
shall be presented by one of the attorneys or agents of the division
and, at the option of the complainant, by his or her attorney. With the
consent of the division, the case in support of the complainant may be
presented solely by his or her attorney. No person who shall have
previously made the investigation, engaged in a conciliation proceeding
or caused the notice to be issued shall act as a hearing examiner in
such case. Attempts at conciliation shall not be received in evidence.
At least two business days prior to the hearing the respondent shall,
and any necessary party may, file a written answer to the complaint,
sworn to subject to the penalties of perjury, with the division and
serve a copy upon all other parties to the proceeding. A respondent who
has filed an answer, or whose default in answering has been set aside
for good cause shown may appear at such hearing in person or otherwise,
with or without counsel, cross examine witnesses and the complainant and
submit testimony. The complainant and all parties shall be allowed to
present testimony in person or by counsel and cross examine witnesses.
The hearing examiner may in his or her discretion permit any person who
has a substantial personal interest to intervene as a party, and may
require that necessary parties not already parties be joined. The
division or the complainant shall have the power reasonably and fairly
to amend any complaint, and the respondent and any other party shall
have like power to amend his or her answer. The hearing examiner shall
not be bound by the strict rules of evidence prevailing in courts of law
or equity. The testimony taken at the hearing shall be under oath and a
record made.
b. If the respondent fails to answer the complaint, the hearing
examiner designated to conduct the hearing may enter the default and the
hearing shall proceed on the evidence in support of the complaint. Such
default may be set aside only for good cause shown upon equitable terms
and conditions.
c. Within one hundred eighty days after the commencement of such
hearing, a determination shall be made and an order served as
hereinafter provided. If, upon all the evidence at the hearing, the
commissioner shall find that a respondent has engaged in any unlawful
discriminatory practice as defined in this article, the commissioner
shall state findings of fact and shall issue and cause to be served on
such respondent an order, based on such findings and setting them forth,
and including such of the following provisions as in the judgment of the
division will effectuate the purposes of this article: (i) requiring
such respondent to cease and desist from such unlawful discriminatory
practice; (ii) requiring such respondent to take such affirmative
action, including (but not limited to) hiring, reinstatement or
upgrading of employees, with or without back pay, restoration to
membership in any respondent labor organization, admission to or
participation in a guidance program, apprenticeship training program,
on-the-job training program or other occupational training or retraining
program, the extension of full, equal and unsegregated accommodations,
advantages, facilities and privileges to all persons, granting the
credit which was the subject of any complaint, evaluating applicants for
membership in a place of accommodation without discrimination based on
race, creed, color, national origin, sex, disability or marital status,
and without retaliation or discrimination based on opposition to
practices forbidden by this article or filing a complaint, testifying or
assisting in any proceeding under this article; (iii) awarding of
compensatory damages to the person aggrieved by such practice; (iv)
awarding of punitive damages, in cases of employment discrimination
related to private employers, and, in cases of housing discrimination,
with damages in housing discrimination cases in an amount not to exceed
ten thousand dollars, to the person aggrieved by such practice; (v)
requiring payment to the state of profits obtained by a respondent
through the commission of unlawful discriminatory acts described in
subdivision three-b of section two hundred ninety-six of this article;
and (vi) assessing civil fines and penalties, in an amount not to exceed
fifty thousand dollars, to be paid to the state by a respondent found to
have committed an unlawful discriminatory act, or not to exceed one
hundred thousand dollars to be paid to the state by a respondent found
to have committed an unlawful discriminatory act which is found to be
willful, wanton or malicious; (vii) requiring a report of the manner of
compliance. If, upon all the evidence, the commissioner shall find that
a respondent has not engaged in any such unlawful discriminatory
practice, he or she shall state findings of fact and shall issue and
cause to be served on the complainant an order based on such findings
and setting them forth dismissing the said complaint as to such
respondent. A copy of each order issued by the commissioner shall be
delivered in all cases to the attorney general, the secretary of state,
if he or she has issued a license to the respondent, and such other
public officers as the division deems proper, and if any such order
issued by the commissioner concerns a regulated creditor, the
commissioner shall forward a copy of any such order to the
superintendent. A copy of any complaint filed against any respondent who
has previously entered into a conciliation agreement pursuant to
paragraph a of subdivision three of this section or as to whom an order
of the division has previously been entered pursuant to this paragraph
shall be delivered to the attorney general, to the secretary of state if
he or she has issued a license to the respondent and to such other
public officers as the division deems proper, and if any such respondent
is a regulated creditor, the commissioner shall forward a copy of any
such complaint to the superintendent.
d. The division shall establish rules of practice to govern, expedite
and effectuate the foregoing procedure and its own actions thereunder.
e. Any civil penalty imposed pursuant to this subdivision shall be
separately stated, and shall be in addition to and not reduce or offset
any other damages or payment imposed upon a respondent pursuant to this
article. In cases of employment discrimination where the employer has
fewer than fifty employees, such civil fine or penalty may be paid in
reasonable installments, in accordance with regulations promulgated by
the division. Such regulations shall require the payment of reasonable
interest resulting from the delay, and in no case permit installments to
be made over a period longer than three years.
5. Any complaint filed pursuant to this section must be so filed
within three years after the alleged unlawful discriminatory practice.
6. At any time after the filing of a complaint with the division
alleging an unlawful discriminatory practice under this article, if the
division determines that the respondent is doing or procuring to be done
any act tending to render ineffectual any order the commissioner may
enter in such proceeding, the commissioner may apply to the supreme
court in any county where the alleged unlawful discriminatory practice
was committed, or where any respondent resides or maintains an office
for the transaction of business, or if the complaint alleges an unlawful
discriminatory practice under subdivision two-a or paragraph (a), (b) or
(c) of subdivision five of section two hundred ninety-six of this
article, where the housing accommodation, land or commercial space
specified in the complaint is located, or, if no supreme court justice
is available in such county, in any other county within the judicial
district, for an order requiring the respondents or any of them to show
cause why they should not be enjoined from doing or procuring to be done
such act. The order to show cause may contain a temporary restraining
order and shall be served in the manner provided therein. On the return
date of the order to show cause, and after affording all parties an
opportunity to be heard, if the court deems it necessary to prevent the
respondents from rendering ineffectual an order relating to the subject
matter of the complaint, it may grant appropriate injunctive relief upon
such terms and conditions as it deems proper.
7. Not later than one year from the date of a conciliation agreement
or an order issued under this section, and at any other times in its
discretion, the division shall investigate whether the respondent is
complying with the terms of such agreement or order. Upon a finding of
non-compliance, the division shall take appropriate action to assure
compliance.
8. No officer, agent or employee of the division shall make public
with respect to a particular person without his consent information from
reports obtained by the division except as necessary to the conduct of a
proceeding under this section.
9. Any person claiming to be aggrieved by an unlawful discriminatory
practice shall have a cause of action in any court of appropriate
jurisdiction for damages, including, in cases of employment
discrimination related to private employers and housing discrimination
only, punitive damages, and such other remedies as may be appropriate,
including any civil fines and penalties provided in subdivision four of
this section, unless such person had filed a complaint hereunder or with
any local commission on human rights, or with the superintendent
pursuant to the provisions of section two hundred ninety-six-a of this
article, provided that, where the division has dismissed such complaint
on the grounds of administrative convenience, on the grounds of
untimeliness, or on the grounds that the election of remedies is
annulled, such person shall maintain all rights to bring suit as if no
complaint had been filed with the division. At any time prior to a
hearing before a hearing examiner, a person who has a complaint pending
at the division may request that the division dismiss the complaint and
annul his or her election of remedies so that the human rights law claim
may be pursued in court, and the division may, upon such request,
dismiss the complaint on the grounds that such person's election of an
administrative remedy is annulled. Notwithstanding subdivision (a) of
section two hundred four of the civil practice law and rules, if a
complaint is so annulled by the division, upon the request of the party
bringing such complaint before the division, such party's rights to
bring such cause of action before a court of appropriate jurisdiction
shall be limited by the statute of limitations in effect in such court
at the time the complaint was initially filed with the division. Any
party to a housing discrimination complaint shall have the right within
twenty days following a determination of probable cause pursuant to
subdivision two of this section to elect to have an action commenced in
a civil court, and an attorney representing the division of human rights
will be appointed to present the complaint in court, or, with the
consent of the division, the case may be presented by complainant's
attorney. A complaint filed by the equal employment opportunity
commission to comply with the requirements of 42 USC 2000e-5(c) and 42
USC 12117(a) and 29 USC 633(b) shall not constitute the filing of a
complaint within the meaning of this subdivision. No person who has
initiated any action in a court of competent jurisdiction or who has an
action pending before any administrative agency under any other law of
the state based upon an act which would be an unlawful discriminatory
practice under this article, may file a complaint with respect to the
same grievance under this section or under section two hundred
ninety-six-a of this article. In cases of housing discrimination only, a
person whose complaint has been dismissed by the division after
investigation for lack of jurisdiction or lack of probable cause may
file the same cause of action in a court of appropriate jurisdiction
pursuant to this section, unless judicial review of such dismissal has
been sought pursuant to section two hundred ninety-eight of this
article. The attorney general shall have the power to commence an action
or proceeding in the supreme court of the state of New York, if, upon
information or belief, the attorney general is of the opinion that an
employer has been, is, or is about to violate the provisions regarding
unlawful discriminatory retaliation pursuant to subdivision seven of
section two hundred ninety-six of this article. Nothing in this section
shall in any way limit rights or remedies which are otherwise available
under law to the attorney general or any other person authorized to
bring an action under this section.
10. In an action or proceeding at law under this section or section
two hundred ninety-eight of this article, the commissioner or the court
may in its discretion award reasonable attorney's fees to any prevailing
or substantially prevailing party; provided, however, that a prevailing
respondent or defendant in order to recover such reasonable attorney's
fees must make a motion requesting such fees and show that the action or
proceeding brought was frivolous; and further provided that in a
proceeding brought in the division of human rights, the commissioner may
only award attorney's fees as part of a final order after a public
hearing held pursuant to subdivision four of this section. In no case
shall attorney's fees be awarded to the division, nor shall the division
be liable to a prevailing or substantially prevailing party for
attorney's fees, except in a case in which the division is a party to
the action or the proceeding in the division's capacity as an employer.
Expert witness fees may be awarded in the same manner as attorney's
fees. In cases of employment discrimination, a respondent shall only be
liable for attorney's fees under this subdivision if the respondent has
been found liable for having committed an unlawful discriminatory
practice. In order to find the action or proceeding to be frivolous, the
court or the commissioner must find in writing one or more of the
following:
(a) the action or proceeding was commenced, used or continued in bad
faith, solely to delay or prolong the resolution of the litigation or to
harass or maliciously injure another; or
(b) the action or proceeding was commenced or continued in bad faith
without any reasonable basis and could not be supported by a good faith
argument for an extension, modification or reversal of existing law. If
the action or proceeding was promptly discontinued when the party or
attorney learned or should have learned that the action or proceeding
lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.
Judicial review and enforcement. Any complainant, respondent or
other person aggrieved by an order of the commissioner which is an order
after public hearing, a cease and desist order, an order awarding
damages, an order dismissing a complaint, or by an order of the division
which makes a final disposition of a complaint may obtain judicial
review thereof, and the division may obtain an order of court for its
enforcement and for the enforcement of any order of the commissioner
which has not been appealed to the court, in a proceeding as provided in
this section. Such proceeding shall be brought in the supreme court in
the county wherein the unlawful discriminatory practice which is the
subject of the order occurs or wherein any person required in the order
to cease and desist from an unlawful discriminatory practice or to take
other affirmative action resides or transacts business. Such proceeding
shall be initiated by the filing of a notice of petition and petition in
such court. Thereafter, at a time and in a manner to be specified by
rules of court, the division shall file with the court a written
transcript of the record of all prior proceedings. Upon the filing of a
notice of petition and petition, the court shall have jurisdiction of
the proceeding and of the questions determined therein, except that
where the order sought to be reviewed was made as a result of a public
hearing held pursuant to paragraph a of subdivision four of section two
hundred ninety-seven of this article, the court shall make an order
directing that the proceeding be transferred for disposition to the
appellate division of the supreme court in the judicial department
embracing the county in which the proceeding was commenced. The court
shall have power to grant such temporary relief or restraining order as
it deems just and proper, and to make and enter upon the pleadings,
testimony, and proceedings set forth in such transcript an order
enforcing, modifying, and enforcing as so modified, or setting aside in
whole or in part such order. No objection that has not been urged in
prior proceedings shall be considered by the court, unless the failure
or neglect to urge such objection shall be excused because of
extraordinary circumstances. Any party may move the court to remit the
case to the division in the interests of justice for the purpose of
adducing additional specified and material evidence and seeking findings
thereon, provided he or she shows reasonable grounds for the failure to
adduce such evidence in prior proceedings. The findings of facts on
which such order is based shall be conclusive if supported by sufficient
evidence on the record considered as a whole. All such proceedings shall
be heard and determined by the court and any appeal taken from its
judgment or order shall be reviewed by the appropriate appellate court
as expeditiously as possible and with lawful precedence over other
matters. The jurisdiction of the courts over these proceedings, as
provided for herein, shall be exclusive and their judgments and orders
shall be final, subject to appellate review in the same manner and form
and with the same effect as provided for appeals from a judgment in a
special proceeding. The division's copy of the testimony shall be
available at all reasonable times to all parties for examination without
cost and for the purposes of judicial review of such order. Any appeal
under this section and any proceeding, if instituted under article
seventy-eight of the civil practice law and rules to which the division
or the board is a party shall be heard on the record without requirement
of printing. The division may appear in court by one of its attorneys. A
proceeding under this section when instituted by any complainant,
respondent or other person aggrieved must be instituted within sixty
days after the service of such order. In cases of housing discrimination
only, a complaint dismissed after investigation for lack of jurisdiction
or lack of probable cause may either be appealed pursuant to this
section or the same cause of action may be filed in a court of
appropriate jurisdiction pursuant to section two hundred ninety-seven of
this article.
Application of article to certain acts committed outside the
state of New York. 1. The provisions of this article shall apply as
hereinafter provided to an act committed outside this state against a
resident of this state or against a corporation organized under the laws
of this state or authorized to do business in this state, if such act
would constitute an unlawful discriminatory practice if committed within
this state.
2. If a resident person or domestic corporation violates any provision
of this article by virtue of the provisions of this section, this
article shall apply to such person or corporation in the same manner and
to the same extent as such provisions would have applied had such act
been committed within this state except that the penal provisions of
such article shall not be applicable.
3. If a non-resident person or foreign corporation violates any
provision of this article by virtue of the provisions of this section,
such person or corporation shall be prohibited from transacting any
business within this state. Except as otherwise provided in this
subdivision, the provisions of section two hundred ninety-seven of this
article governing the procedure for determining and processing unlawful
discriminatory practices shall apply to violations defined by this
subdivision insofar as such provisions are or can be made applicable. If
the division of human rights has reason to believe that a non-resident
person or foreign corporation has committed or is about to commit
outside of this state an act which if committed within this state would
constitute an unlawful discriminatory practice and that such act is in
violation of any provision of this article by virtue of the provisions
of this section, it shall serve a copy of the complaint upon such person
or corporation by personal service either within or without the state or
by registered mail, return receipt requested, directed to such person or
corporation at his or her or its last known place of residence or
business, together with a notice requiring such person or corporation to
appear at a hearing, specifying the time and place thereof, and to show
cause why a cease and desist order should not be issued against such
person or corporation. If such person or corporation shall fail to
appear at such hearing or does not show sufficient cause why such order
should not be issued, the division shall cause to be issued and served
upon such person or corporation an order to cease or desist from the act
or acts complained of. Failure to comply with any such order shall be
followed by the issuance by the division of an order prohibiting such
person or corporation from transacting any business within this state. A
person or corporation who or which transacts business in this state in
violation of any such order is guilty of a class A misdemeanor. Any
order issued pursuant to this subdivision may be vacated by the division
upon satisfactory proof of compliance with such order. All orders issued
pursuant to this subdivision shall be subject to judicial review in the
manner prescribed by article seventy-eight of the civil practice law and
rules.
Penal provision. Any person, employer, labor organization or
employment agency, who or which shall wilfully resist, prevent, impede
or interfere with the division or any of its employees or
representatives in the performance of duty under this article, or shall
wilfully violate an order of the division or commissioner, shall be
guilty of a misdemeanor and be punishable by imprisonment in a
penitentiary, or county jail, for not more than one year, or by a fine
of not more than five hundred dollars, or by both; but procedure for the
review of the order shall not be deemed to be such wilful conduct.
Construction. The provisions of this article shall be construed
liberally for the accomplishment of the remedial purposes thereof,
regardless of whether federal civil rights laws, including those laws
with provisions worded comparably to the provisions of this article,
have been so construed. Exceptions to and exemptions from the provisions
of this article shall be construed narrowly in order to maximize
deterrence of discriminatory conduct. Nothing contained in this article
shall be deemed to repeal any of the provisions of the civil rights law
or any other law of this state relating to discrimination; but, as to
acts declared unlawful by section two hundred ninety-six of this
article, the procedure herein provided shall, while pending, be
exclusive; and the final determination therein shall exclude any other
state civil action based on the same grievance of the individual
concerned. If such individual institutes any action based on such
grievance without resorting to the procedure provided in this article,
he or she may not subsequently resort to the procedure herein.
Separability. If any clause, sentence, paragraph or part of
this article or the application thereof to any person or circumstances,
shall, for any reason, be adjudged by a court of competent jurisdiction
to be invalid, such judgment shall not affect, impair or invalidate the
remainder of this article.
ARTICLE 15-A Participation By Minority Group Members and Women With Respect to State Contracts
* § 310. Definitions. As used in this article, the following terms
shall have the following meanings:
1. "Certified business" shall mean a business verified as a minority
or women-owned business enterprise pursuant to section three hundred
fourteen of this article.
2. "Contracting agency" shall mean a state agency which is a party or
a proposed party to a state contract or, in the case of a state contract
described in paragraph (c) of subdivision thirteen of this section,
shall mean the New York state housing finance agency, housing trust fund
corporation or affordable housing corporation, whichever has made or
proposes to make the grant or loan for the state assisted housing
project.
3. "Contractor" shall mean an individual, a business enterprise,
including a sole proprietorship, a partnership, a corporation, a
not-for-profit corporation, or any other party to a state contract, or a
bidder in conjunction with the award of a state contract or a proposed
party to a state contract.
4. "Director" shall mean the director of the division of minority and
women's business development in the department of economic development.
5. "Large county" shall mean a county having a population in excess of
two hundred eighty-five thousand according to the most recent federal
decennial census, provided however, that a county having a population in
excess of two hundred eighty-five thousand according to the nineteen
hundred eighty federal decennial census shall continue to be a large
county thereafter notwithstanding a later census showing a population of
less than two hundred eighty-five thousand for such county.
6. "Metropolitan area" shall mean a city with a population of one
million or more and a county having a population in excess of one
million and immediately contiguous to such city.
7. "Minority-owned business enterprise" shall mean a business
enterprise, including a sole proprietorship, partnership, limited
liability company or corporation that is:
(a) at least fifty-one percent owned by one or more minority group
members;
(b) an enterprise in which such minority ownership is real,
substantial and continuing;
(c) an enterprise in which such minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise;
(d) an enterprise authorized to do business in this state and
independently owned and operated;
(e) an enterprise owned by an individual or individuals, whose
ownership, control and operation are relied upon for certification, with
a personal net worth that does not exceed fifteen million dollars, and
such other amount as the director shall set forth in regulations, as
adjusted annually on the first of January for inflation according to the
consumer price index of the previous year; and
(f) an enterprise that is a small business pursuant to subdivision
twenty of this section.
8. "Minority group member" shall mean a United States citizen or
permanent resident noncitizen who is and can demonstrate membership in
one of the following groups:
(a) Black persons having origins in any of the Black African racial
groups;
(b) Hispanic/Latino persons of Mexican, Puerto Rican, Dominican,
Cuban, Central or South American of either Indian or Hispanic origin,
regardless of race;
(c) Native American or Alaskan native persons having origins in any of
the original peoples of North America.
(d) Asian and Pacific Islander persons having origins in any of the
Far East countries, South East Asia, the Indian subcontinent or the
Pacific Islands.
9. "Utilization plan" shall mean a plan prepared by a contractor and
submitted in connection with a proposed state contract. The utilization
plan shall identify certified minority or women-owned business
enterprises, if known, that have committed to perform work in connection
with the proposed state contract as well as any such enterprises, if
known, which the contractor intends to use in connection with the
contractor's performance of the proposed state contract. The plan shall
specifically contain a list, including the name, address and telephone
number, of each certified enterprise with which the contractor intends
to subcontract.
10. "Office" shall mean the division of minority and women's business
development in the department of economic development.
11. "State agency" shall mean (a) (i) any state department, or (ii)
any division, board, commission or bureau of any state department, or
(iii) the state university of New York and the city university of New
York, including all their constituent units except community colleges
and the independent institutions operating statutory or contract
colleges on behalf of the state, or (iv) a board, a majority of whose
members are appointed by the governor or who serve by virtue of being
state officers or employees as defined in subparagraph (i), (ii) or
(iii) of paragraph (i) of subdivision one of section seventy-three of
the public officers law:
(b) a "state authority," as defined in subdivision one of section two
of the public authorities law, and the following:
Albany County Airport Authority;
Albany Port District Commission;
Alfred, Almond, Hornellsville Sewer Authority;
Battery Park City Authority;
Cayuga County Water and Sewer Authority;
(Nelson A. Rockefeller) Empire State Plaza Performing Arts
Center Corporation;
Industrial Exhibit Authority;
Livingston County Water and Sewer Authority;
Long Island Power Authority;
Long Island Rail Road;
Long Island Market Authority;
Manhattan and Bronx Surface Transit Operating Authority;
Metro-North Commuter Railroad;
Metropolitan Suburban Bus Authority;
Metropolitan Transportation Authority;
Natural Heritage Trust;
New York City Transit Authority;
New York Convention Center Operating Corporation;
New York State Bridge Authority;
New York State Olympic Regional Development Authority;
New York State Thruway Authority;
Niagara Falls Public Water Authority;
Niagara Falls Water Board;
Port of Oswego Authority;
Power Authority of the State of New York;
Roosevelt Island Operating Corporation;
Schenectady Metroplex Development Authority;
State Insurance Fund;
Staten Island Rapid Transit Operating Authority;
State University Construction Fund;
Syracuse Regional Airport Authority;
Triborough Bridge and Tunnel Authority.
Upper Mohawk valley regional water board.
Upper Mohawk valley regional water finance authority.
Upper Mohawk valley memorial auditorium authority.
Urban Development Corporation and its subsidiary corporations.
(c) the following only to the extent of state contracts entered into
for its own account or for the benefit of a state agency as defined in
paragraph (a) or (b) of this subdivision:
Dormitory Authority of the State of New York;
Facilities Development Corporation;
New York State Energy Research and Development Authority;
New York State Science and Technology Foundation.
12. "State assisted housing project" shall mean, for such projects
which receive from the New York state housing finance agency, the
affordable housing corporation, the housing trust fund corporation or
the division of housing and community renewal a grant or loan for all or
part of the total project cost:
(a) a "permanent housing project for homeless families" or "project"
as defined in subdivision five of section sixty-four of the private
housing finance law;
(b) a "project" as defined in subdivision twelve of section one
thousand one hundred one of the private housing finance law provided
said project is located in a large county and consists of more than
twelve residential units at a single site;
(c) "affordable home ownership development programs" or "project" as
defined in subdivision eight of section one thousand one hundred eleven
of the private housing finance law provided said project is located in a
metropolitan area as herein defined and consists of more than twelve
residential units at a single site;
(d) a "turnkey/enhanced rental project" or "project" as defined in
subdivision two of section one thousand one hundred six-a of the private
housing finance law;
(e) "infrastructure improvements" as defined in subdivision two of
section one thousand one hundred thirty-one of the private housing
finance law, to the extent that such "infrastructure improvements" are
applied for in connection with a state assisted housing project as
defined in paragraphs (a) through (d) of this subdivision and provided
further that the applicant for such infrastructure improvements and for
such state assisted housing project are identical.
13. "State contract" shall mean: (a) a written agreement or purchase
order instrument, providing for a total expenditure in excess of
twenty-five thousand dollars, whereby a contracting agency is committed
to expend or does expend funds in return for labor, services including
but not limited to legal, financial and other professional services,
supplies, equipment, materials or any combination of the foregoing, to
be performed for, on behalf of, or rendered or furnished to the
contracting agency; (b) a written agreement in excess of one hundred
thousand dollars whereby a contracting agency is committed to expend or
does expend funds for the acquisition, construction, demolition,
replacement, major repair or renovation of real property and
improvements thereon; and (c) a written agreement in excess of one
hundred thousand dollars whereby the owner of a state assisted housing
project is committed to expend or does expend funds for the acquisition,
construction, demolition, replacement, major repair or renovation of
real property and improvements thereon for such project.
14. "Subcontract" shall mean an agreement providing for a total
expenditure in excess of twenty-five thousand dollars for the
construction, demolition, replacement, major repair, renovation,
planning or design of real property and improvements thereon between a
contractor and any individual or business enterprise, including a sole
proprietorship, partnership, corporation, or not-for-profit corporation,
in which a portion of a contractor's obligation under a state contract
is undertaken or assumed, but shall not include any construction,
demolition, replacement, major repair, renovation, planning or design of
real property or improvements thereon for the beneficial use of the
contractor.
15. "Women-owned business enterprise" shall mean a business
enterprise, including a sole proprietorship, partnership, limited
liability company or corporation that is:
(a) at least fifty-one percent owned by one or more United States
citizens or permanent resident noncitizens who are women;
(b) an enterprise in which the ownership interest of such women is
real, substantial and continuing;
(c) an enterprise in which such women ownership has and exercises the
authority to control independently the day-to-day business decisions of
the enterprise;
(d) an enterprise authorized to do business in this state and
independently owned and operated;
(e) an enterprise owned by an individual or individuals, whose
ownership, control and operation are relied upon for certification, with
a personal net worth that does not exceed fifteen million dollars, and
such other amount as the director shall set forth in regulations, as
adjusted annually on the first of January for inflation according to the
consumer price index of the previous year; and
(f) an enterprise that is a small business pursuant to subdivision
twenty of this section.
A firm owned by a minority group member who is also a woman may be
certified as a minority-owned business enterprise, a women-owned
business enterprise, or both, and may be counted towards either a
minority-owned business enterprise goal or a women-owned business
enterprise goal, in regard to any contract or any goal, set by an agency
or authority, but such participation may not be counted towards both
such goals. Such an enterprise's participation in a contract may not be
divided between the minority-owned business enterprise goal and the
women-owned business enterprise goal.
16. "Statewide advocate" shall mean the person appointed by the
director to serve in the capacity of the minority and women-owned
business enterprise statewide advocate and procurement ombudsman.
17. "Commissioner" shall mean the commissioner of the department of
economic development.
18. "Lessee" shall mean an individual, a business enterprise,
including a sole proprietorship, a partnership, a corporation, a
not-for-profit corporation, or any other party to a lease with a state
agency as defined in subdivision eleven of this section, or a respondent
in conjunction with the award of such a lease or a proposed lessee with
a state agency as defined in subdivision eleven of this section.
19. "Personal net worth" shall mean the aggregate adjusted net value
of the assets of an individual remaining after total liabilities are
deducted. Personal net worth includes the individual's share of assets
held jointly with said individual's spouse and does not include the
individual's ownership interest in the certified minority and
women-owned business enterprise, the individual's equity in his or her
primary residence, ownership interest in a holding company established
for the exclusive and sole purpose of leasing machinery, equipment, or
vehicles exclusively to the certified minority or women-owned business
enterprise that is majority owned by the minority group member or woman
relied upon for certification, and the holding company does not own any
other assets of any kind, or up to seven hundred fifty thousand dollars
of the present cash value of any qualified retirement savings plan or
individual retirement account held by the individual less any penalties
for early withdrawal.
20. "Small business" as used in this section, unless otherwise
indicated, shall mean a business which has a significant business
presence in the state, is independently owned and operated, not dominant
in its field and employs, based on its industry, a certain number of
persons as determined by the director, but not to exceed three hundred,
except during a declared state disaster emergency as defined pursuant to
section twenty-eight of this chapter, not to exceed three hundred
employees who work thirty or more hours per week over the period of
fifty-two weeks for a total of one thousand five hundred sixty hours
worked, taking into consideration factors which include, but are not
limited to, federal small business administration standards pursuant to
13 CFR part 121 and any amendments thereto. The director may issue
regulations on the construction of the terms in this definition. For
purposes of this subdivision, an employee may break from employment for
up to thirteen weeks without the fifty-two week lookback period
resetting.
21. "The disparity study" shall refer to the disparity study
commissioned by the department of economic development, pursuant to
section three hundred twelve-a of this article, and published on June
thirtieth, two thousand seventeen.
22. "Diversity practices" shall mean the contractor's practices and
policies with respect to:
(a) utilizing or mentoring certified minority and women-owned business
enterprises in contracts awarded by a state agency or other public
corporation, as subcontractors and suppliers; and
(b) entering into partnerships, joint ventures or other similar
arrangements with certified minority and women-owned business
enterprises as defined in this article or other applicable statute or
regulation governing an entity's utilization of minority or women-owned
business enterprises.
23. "Provisional MWBE Certification" shall mean minority and
women-owned business enterprise certification status which shall not
exceed one year, but which may be renewed by the director.
* NB Repealed July 1, 2028
* § 311. Division of minority and women's business development. 1. The
head of the division of minority and women's business development shall
be the director who shall be appointed by the governor and hold office
at the pleasure of the commissioner. It shall be the duty of the
director of the division of minority and women's business development to
assist the governor in the formulation and implementation of laws and
policies relating to minority and women-owned business enterprises.
2. The director may appoint such deputies, assistants, and other
employees as may be needed for the performance of the duties prescribed
herein subject to the provisions of the civil service law and the rules
and regulations of the civil service commission. The director may
request and shall receive from any department, division, board, bureau,
executive commission or agency of the state such assistance as may be
necessary to carry out the provisions of this article.
3. The director shall have the following powers and duties:
(a) to encourage and assist contracting agencies in their efforts to
increase participation by minority and women-owned business enterprises
on state contracts and subcontracts so as to facilitate the award of a
fair share of such contracts to them;
(b) to develop standardized forms and reporting documents necessary to
implement this article;
(c) to conduct educational programs consistent with the purposes of
this article;
(d) to review periodically the practices and procedures of each
contracting agency with respect to compliance with the provisions of
this article, and to require them to file periodic reports with the
division of minority and women's business development as to the level of
minority and women-owned business enterprises participation in the
awarding of agency contracts for goods and services;
(d-1) to require all contracting state agencies to develop a four-year
growth plan to determine a means of promoting and increasing
participation by minority-owned and women-owned business enterprises
with respect to state contracts and subcontracts. Every four years,
beginning September fifteenth, two thousand twenty, each contracting
state agency shall submit a four-year growth plan as part of its annual
report to the governor and legislature pursuant to section one hundred
sixty-four of this chapter.
(e) on January first of each year report to the governor and the
chairpersons of the senate finance and assembly ways and means
committees on the level of minority and women-owned business enterprises
participating in each agency's contracts for goods and services and on
activities of the office and effort by each contracting agency to
promote employment of minority group members and women, and to promote
and increase participation by certified businesses with respect to state
contracts and subcontracts so as to facilitate the award of a fair share
of state contracts to such businesses. The comptroller shall assist the
division in collecting information on the participation of certified
business for each contracting agency. Such report may recommend new
activities and programs to effectuate the purposes of this article;
(f) to prepare and update, no less than annually, a directory of
certified minority and women-owned business enterprises which shall,
wherever practicable, (i) make publicly available records of all
certifications and recertifications, (ii) be divided into categories of
labor, services, supplies, equipment, materials and recognized
construction trades, and (iii) indicate areas or locations of the state
where such enterprises are available to perform services;
(g) to appoint independent hearing officers who by contract or terms
of employment shall preside over adjudicatory hearings pursuant to
section three hundred fourteen of this article for the office and who
are assigned no other work by the office;
(h) to make publicly available on the division's website records of
all revocations of certification for convictions for fraudulently
misrepresenting the status of minority or women-owned business
enterprises or for evidence of fraudulent conduct with regard to
participation of a minority or women-owned business enterprise in the
performance of state contracts and the reasoning for such revocations
after a final determination has been made, provided that information
falling into the categories enumerated in paragraphs (a) through (j) of
subdivision two of section eighty-seven of the public officers law shall
be withheld;
(i) notwithstanding the provisions of section two hundred ninety-six
of this chapter, to file a complaint pursuant to the provisions of
section two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the provisions of
paragraph (a), (b) or (c) of subdivision one of section two hundred
ninety-six of this chapter where such violation is unrelated, separate
or distinct from the state contract as expressed by its terms;
(j) to streamline the state certification process to accept federal
and municipal corporation certifications;
(k) to make publicly available on the division's website records of
all waivers of compliance reported pursuant to paragraph (b) of
subdivision six of section three hundred thirteen of this article,
including the reasoning for denial of such waivers after a final
determination has been made, provided that information falling into the
categories enumerated in paragraphs (a) through (j) of subdivision two
of section eighty-seven of the public officers law shall be withheld;
(l) to work in conjunction with the industrial commissioner pursuant
to paragraph (j) of subdivision one of section eight hundred eleven of
the labor law to assist contractors in identifying minority group
members and women who are participating in apprenticeship agreements
under article twenty-three of the labor law; and
(m) to coordinate with appropriate offices, agencies, or authorities,
where applicable, to conduct site visits or perform inspections of
financial records of minority or women-owned business enterprises in
accordance with this article and the regulations of the director.
4. The director shall provide assistance to, and facilitate access to
programs serving certified businesses as well as applicants to ensure
that such businesses benefit, as needed, from technical, managerial and
financial, and general business assistance; training; marketing;
organization and personnel skill development; project management
assistance; technology assistance; bond and insurance education
assistance; and other business development assistance. The director
shall maintain a toll-free number at the department of economic
development to be used to answer questions concerning the MWBE
certification process. In addition, the director may, either
independently or in conjunction with other state agencies:
(a) develop a clearinghouse of information on programs and services
provided by entities that may assist such businesses;
(b) review bonding and paperwork requirements imposed by contracting
agencies that may unnecessarily impede the ability of such businesses to
compete; and
(c) seek to maximize utilization by minority and women-owned business
enterprises of available federal resources including but not limited to
federal grants, loans, loan guarantees, surety bonding guarantees,
technical assistance, and programs and services of the federal small
business administration.
(d) conduct outreach events, training workshops, seminars, and other
such educational programs throughout the state, including all regional
offices, to state agencies, external stakeholders, and the public, to
promote awareness and utilization of minority and women-owned business
enterprises; and
(e) identify and establish mentorship opportunities and other business
development programs to increase capacity and better prepare MWBEs for
bidding on contracts with state agencies upon successful completion of
the mentorship opportunity. Such mentorship opportunities shall be
intended to ensure that mentor and mentee are connected based on a
commercially useful function.
* NB Repealed July 1, 2028
* § 311-a. Minority and women-owned business enterprise statewide
advocate. 1. There is hereby established within the division of minority
and women's business an office of the minority and women-owned business
enterprise statewide advocate. The statewide advocate shall be appointed
by the commissioner with the advice of the small business advisory board
as established in section one hundred thirty-three of the economic
development law and shall serve in the unclassified service of the
director..
2. The advocate shall act as a liaison for minority and women-owned
business enterprises (MWBEs) to assist them in obtaining technical,
managerial, financial and other business assistance for certified
businesses and applicants. The advocate shall receive and investigate
complaints brought by or on behalf of MWBEs concerning certification
delays and instances of violations of the requirements of this article
by contractors and by state agencies. The statewide advocate may assist
certified businesses and applicants in the certification process. Other
functions of the statewide advocate shall be directed by the
commissioner. The advocate may request and the director may appoint
staff and employees of the division of minority and women business
development to support the administration of the office of the statewide
advocate.
3. The statewide advocate shall conduct periodic audits of state
contracting agencies' compliance with the requirements of section three
hundred fifteen of this article, such audits shall include a review of
the books and records of state contracting agencies concerning, among
other things, annual agency expenditures, annual participation of
minority and women-owned business enterprises as prime contractors and
subcontractors in state contracting agencies' state contracts, and
documentation of state contracting agencies' good faith efforts to
maximize minority and women-owned business enterprise participation in
such agencies' contracting.
4. The statewide advocate shall investigate complaints by certified
minority-owned business enterprises or women-owned business enterprises
concerning a procuring governmental entity's failure to comply with the
requirements of section three hundred fifteen of this article.
5. The statewide advocate shall report to the director and
commissioner by November fifteenth on an annual basis on all activities
related to fulfilling the obligations of the office of the statewide
advocate including, but not limited to: (a) the number of complaints
investigated; (b) the resolution of complaints, as applicable; and (c)
information regarding audits conducted pursuant to this subdivision. The
director shall include the unedited text of the statewide advocate's
report within the reports submitted by the department of economic
development to the governor and the legislature.
* NB Repealed July 1, 2028
* § 312. Equal employment opportunities for minority group members and
women. 1. All state contracts and all documents soliciting bids or
proposals for state contracts shall contain or make reference to the
following provisions:
(a) The contractor will not discriminate against employees or
applicants for employment because of race, creed, color, national
origin, sex, age, disability or marital status, and will undertake or
continue existing programs of affirmative action to ensure that minority
group members and women are afforded equal employment opportunities
without discrimination. For purposes of this article affirmative action
shall mean recruitment, employment, job assignment, promotion,
upgradings, demotion, transfer, layoff, or termination and rates of pay
or other forms of compensation.
(b) At the request of the contracting agency, the contractor shall
request each employment agency, labor union, or authorized
representative of workers with which it has a collective bargaining or
other agreement or understanding, to furnish a written statement that
such employment agency, labor union or representative will not
discriminate on the basis of race, creed, color, national origin, sex,
age, disability or marital status and that such union or representative
will affirmatively cooperate in the implementation of the contractor's
obligations herein.
(c) The contractor shall state, in all solicitations or advertisements
for employees, that, in the performance of the state contract, all
qualified applicants will be afforded equal employment opportunities
without discrimination because of race, creed, color, national origin,
sex, age, disability or marital status.
2. The contractor will include the provisions of subdivision one of
this section in every subcontract, except as provided in subdivision six
of this section, in such a manner that the provisions will be binding
upon each subcontractor as to work in connection with the state
contract.
3. The provisions of this section shall not be binding upon
contractors or subcontractors in the performance of work or the
provision of services or any other activity that are unrelated, separate
or distinct from the state contract as expressed by its terms.
4. In the implementation of this section, the contracting agency shall
consider compliance by a contractor or subcontractor with the
requirements of any federal law concerning equal employment opportunity
which effectuates the purpose of this section. The contracting agency
shall determine whether the imposition of the requirements of the
provisions hereof duplicate or conflict with any such law and if such
duplication or conflict exists, the contracting agency shall waive the
applicability of this section to the extent of such duplication or
conflict.
5. The director shall promulgate rules and regulations to ensure that
contractors and subcontractors undertake programs of affirmative action
and equal employment opportunity as required by this section. Such rules
and regulations as they pertain to any particular agency shall be
developed after consultation with contracting agencies. Such rules and
regulations may require a contractor, after notice in a bid
solicitation, to submit an equal employment opportunity program after
bid opening and prior to the award of any contract, and may require the
contractor or subcontractor to submit compliance reports relating to the
contractor's or subcontractor's operation and implementation of any
equal employment opportunity program in effect as of the date the
contract is executed. The contracting agency may recommend to the
director that the director take appropriate action according to the
procedures set forth in section three hundred sixteen of this article
against the contractor for noncompliance with the requirements of this
section. The contracting agency shall be responsible for monitoring
compliance with this section.
6. The requirements of this section shall not apply to any employment
outside this state or application for employment outside this state or
solicitations or advertisements therefor, or any existing programs of
affirmative action regarding employment outside this state and the
effect of contract provisions required by subdivision one of this
section shall be so limited.
* NB Repealed July 1, 2028
* § 312-a. Study of minority and women-owned business enterprises. 1.
The director of the division of minority and women-owned business
development is authorized and directed to recommission a statewide
disparity study regarding the participation of minority and women-owned
business enterprises in state contracts since the amendment of this
article to be delivered to the governor and legislature no later than
August fifteenth, two thousand twenty-four. The study shall be prepared
by an entity independent of the department and selected through a
request for proposal process. The purpose of such study is:
(a) to determine whether there is a disparity between the number of
qualified minority and women-owned businesses ready, willing and able to
perform state contracts for commodities, services and construction, and
the number of such contractors actually engaged to perform such
contracts, and to determine what changes, if any, should be made to
state policies affecting minority and women-owned business enterprises;
(b) to determine whether there is a disparity between the number of
qualified minorities and women ready, willing and able, with respect to
labor markets, qualifications and other relevant factors, to participate
in contractor employment, management level bodies, including boards of
directors, and as senior executive officers within contracting entities
and the number of such group members actually employed or affiliated
with state contractors in the aforementioned capacities, and to
determine what changes, if any, should be made to state policies
affecting minority and women group populations with regard to state
contractors' employment and appointment practices relative to diverse
group members. Such study shall include, but not be limited to, an
analysis of the history of minority and women-owned business enterprise
programs and their effectiveness as a means of securing and ensuring
participation by minorities and women, and a disparity analysis by
market area and region of the state. Such study shall distinguish
between minority males, minority females and non-minority females in the
statistical analysis; and
(c) such study shall also include an analysis of the utilization on
state agency contracts of businesses owned by an Indian nation or tribe,
as such term is defined in section two of the Indian law, whether a
disparity exists between availability of such businesses to participate
on state agency contracts and utilization, and, if so, the feasibility
of authorizing an Indian nation or tribe owned businesses to become
certified as a participant in the minority and women-owned business
enterprise program.
2. The director of the division of minority and women's business
development is directed to transmit the disparity study to the governor
and the legislature not later than August fifteenth, two thousand
twenty-four, and to post the study on the website of the department of
economic development.
3. The director of the division of minority and women-owned business
development is authorized and directed to commission a policy study
analyzing potential ways to improve the effectiveness of the state
minority and women-owned business enterprise program in order to better
help minority and women-owned businesses, to be delivered to the
governor and legislature. The study shall be prepared by an entity
independent of the department of economic development and selected
through a request for proposal process. The purpose of such study shall
be to provide recommendations to further strengthen and increase the
effectiveness of the state minority and women-owned business enterprise
program. The director of the division of minority and women's business
development is directed to transmit the policy study to the governor and
the legislature not later than May first, two thousand twenty-seven, and
to post the study on the website of the department of economic
development.
* NB Repealed July 1, 2028
* § 313. Opportunities for minority and women-owned business
enterprises. 1. Goals and requirements for agencies and contractors.
Each agency shall structure procurement procedures for contracts made
directly or indirectly to minority and women-owned business enterprises,
in accordance with the findings of the disparity study, consistent with
the purposes of this article, to attempt to achieve the recommended
results with regard to total annual statewide procurement in the
following industries:
(a) construction industry for certified minority-owned business
enterprises;
(b) construction industry for certified women-owned business
enterprises;
(c) construction related professional services industry for certified
minority-owned business enterprises;
(d) construction related professional services industry for certified
women-owned business enterprises;
(e) non-construction related services industry for certified
minority-owned business enterprises;
(f) non-construction related services industry for certified
women-owned business enterprises;
(g) commodities industry for certified minority-owned business
enterprises;
(h) commodities industry for certified women-owned business
enterprises;
(i) overall agency total dollar value of procurement for certified
minority-owned business enterprises;
(j) overall agency total dollar value of procurement for certified
women-owned business enterprises; and
(k) overall agency total dollar value of procurement for certified
minority, women-owned business enterprises.
1-a. The director shall ensure that each state agency has been
provided with an electronic copy of the disparity study.
1-b. Each agency shall develop and adopt agency-specific goals based
on the findings of the disparity study.
1-c. The goals set pursuant to subdivision one of this section shall
be consistent with the findings of the disparity study.
2. The director shall promulgate rules and regulations based on
subdivision one of this section and the findings of the disparity study
that provide measures and procedures to ensure that certified minority
and women-owned businesses shall be given the opportunity for maximum
feasible participation in the performance of state contracts and to
assist in the agency's identification of those state contracts for which
minority and women-owned certified businesses may best bid to actively
and affirmatively promote and assist their participation in the
performance of state contracts so as to facilitate the agency's
achievement of the maximum feasible portion of the goals for state
contracts to such businesses.
2-a. The director shall promulgate rules and regulations that will
accomplish the following:
(a) provide for the certification and decertification of minority and
women-owned business enterprises for all agencies through a single
process that meets applicable requirements;
(b) require that each contract solicitation document accompanying each
solicitation set forth the expected degree of minority and women-owned
business enterprise participation based, in part, on:
(i) the potential subcontract opportunities available in the prime
procurement contract;
(ii) the availability, as contained within the study, of certified
minority and women-owned business enterprises to respond competitively
to the potential subcontract opportunities as reflected in the
division's directory of certified minority and women-owned business
enterprises; and
(iii) the findings of the disparity study;
(c) require that each agency provide a current list of certified
minority business enterprises to each prospective contractor or direct
them to the division's directory of certified minority and women-owned
business enterprises for such purpose;
(d) allow a contractor that is a certified minority-owned or
women-owned business enterprise to use the work it performs to meet
requirements for use of certified minority-owned or women-owned business
enterprises as subcontractors;
(e) establish criteria for agencies to credit the participation of
minority and women-owned business enterprises towards the achievement of
the minority and women-owned business enterprise participation goals on
a state contract based on the commercially useful function provided by
each minority and women-owned business enterprise on the contract;
(f) provide for joint ventures, which a bidder may count toward
meeting its minority and women-owned business enterprise participation;
(g) consistent with subdivision six of this section, provide for
circumstances under which an agency may waive obligations of the
contractor relating to minority and women-owned business enterprise
participation;
(h) require that an agency verify that minority and women-owned
business enterprises listed in a successful bid are actually
participating to the extent listed in the project for which the bid was
submitted;
(i) provide for the collection of statistical data by each agency
concerning actual minority and women-owned business enterprise
participation;
(j) require each agency to consult the most current disparity study
when calculating agency-wide and contract specific participation goals
pursuant to this article; and
Such rules shall set forth the maximum personal net worth of a
minority group member or woman who may be relied upon to certify a
business as a minority-owned business enterprise or women-owned business
enterprise, and may establish different maximum levels of personal net
worth for minority group members and women on an industry-by-industry
basis for such industries as the director shall determine. Such
regulations relating to the classification of the industry-by-industry
personal net worth thresholds above the fifteen million dollar threshold
shall consider the personal net worth of the owners of both certified
and non-certified businesses, including but not limited to, prime
contractors and subcontractors, as well as any such other factors needed
to establish such thresholds. The provisions of the regulations
pertaining to personal net worth shall, to the extent practicable, be
implemented by June thirtieth, two thousand twenty and shall consider
adjustments for inflation annually on January first of the previous year
according to the consumer price index.
3. Solely for the purpose of providing the opportunity for meaningful
participation by certified businesses in the performance of state
contracts as provided in this section, state contracts shall include
leases of real property by a state agency to a lessee where: the terms
of such leases provide for the construction, demolition, replacement,
major repair or renovation of real property and improvements thereon by
such lessee; and the cost of such construction, demolition, replacement,
major repair or renovation of real property and improvements thereon
shall exceed the sum of one hundred thousand dollars. Reports to the
director pursuant to section three hundred fifteen of this article shall
include activities with respect to all such state contracts. Contracting
agencies shall include or require to be included with respect to state
contracts for the acquisition, construction, demolition, replacement,
major repair or renovation of real property and improvements thereon,
such provisions as may be necessary to effectuate the provisions of this
section in every bid specification and state contract, including, but
not limited to: (a) provisions requiring contractors to make a good
faith effort to solicit active participation by enterprises identified
in the directory of certified businesses; (b) requiring the parties to
agree as a condition of entering into such contract, to be bound by the
provisions of section three hundred sixteen of this article; and (c)
requiring the contractor to include the provisions set forth in
paragraphs (a) and (b) of this subdivision in every subcontract in a
manner that the provisions will be binding upon each subcontractor as to
work in connection with such contract. Provided, however, that no such
provisions shall be binding upon contractors or subcontractors in the
performance of work or the provision of services that are unrelated,
separate or distinct from the state contract as expressed by its terms,
and nothing in this section shall authorize the director or any
contracting agency to impose any requirement on a contractor or
subcontractor except with respect to a state contract.
4. In the implementation of this section, the contracting agency shall
(a) consult the findings contained within the disparity study evidencing
relevant industry specific disparities in the utilization of minority
and women-owned businesses relative to their availability;
(b) implement a program that will enable the agency to evaluate each
contract to determine the appropriate goal for participation by
minority-owned business enterprises and women-owned business
enterprises;
(c) consider where practicable, the severability of construction
projects and other bundled contracts; and
(d) consider compliance with the requirements of any federal law
concerning opportunities for minority and women-owned business
enterprises which effectuates the purpose of this section. The
contracting agency shall determine whether the imposition of the
requirements of any such law duplicate or conflict with the provisions
hereof and if such duplication or conflict exists, the contracting
agency shall waive the applicability of this section to the extent of
such duplication or conflict.
5. (a) Contracting agencies shall administer the rules and regulations
promulgated by the director in a good faith effort to achieve the
maximum feasible participation by minority and women owned business
enterprises adopted pursuant to this article and the regulations of the
director. Such rules and regulations: shall require a contractor to
submit a utilization plan after bids are opened, when bids are required,
but prior to the award of a state contract; shall require the
contracting agency to review the utilization plan submitted by the
contractor and to post the utilization plan and any waivers of
compliance issued pursuant to subdivision six of this section on the
website of the contracting agency; shall require the contracting agency
to notify the contractor in writing within a period of time specified by
the director as to any deficiencies contained in the contractor's
utilization plan; shall require remedy thereof within a period of time
specified by the director; shall require the contractor to submit
compliance reports relating to the operation and implementation of any
utilization plan; shall not allow any automatic waivers but shall allow
a contractor to apply for a partial or total waiver of the minority and
women-owned business enterprise participation requirements pursuant to
subdivisions six and seven of this section; shall allow a contractor to
file a complaint with the director pursuant to subdivision eight of this
section in the event a contracting agency has failed or refused to issue
a waiver of the minority and women-owned business enterprise
participation requirements or has denied such request for a waiver; and
shall allow a contracting agency to file a complaint with the director
pursuant to subdivision nine of this section in the event a contractor
is failing or has failed to comply with the minority and women-owned
business enterprise participation requirements set forth in the state
contract where no waiver has been granted.
(b) The rules and regulations promulgated pursuant to this subdivision
regarding a utilization plan shall provide that where enterprises have
been identified within a utilization plan, a contractor shall attempt,
in good faith, to utilize such enterprise at least to the extent
indicated. A contracting agency may require a contractor to indicate,
within a utilization plan, what measures and procedures he or she
intends to take to comply with the provisions of this article, but may
not require, as a condition of award of, or compliance with, a contract
that a contractor utilize a particular enterprise in performance of the
contract.
(c) The rules and regulations promulgated pursuant to this subdivision
regarding compliance reports shall provide that such reports shall
include a standardized prepayment declaration, to be completed before
each payment to a contractor, in which: (i) a representative of the
contractor lists any business that was or shall be relied upon for
credit toward minority and women-owned business enterprise participation
and states under penalty of perjury that such business or businesses
appeared on the division's directory of certified minority and
women-owned business enterprises at the time of contracting and that
each business performed or shall perform a commercially useful function
on the contract; and (ii) a representative of any business that was or
shall be relied upon for credit toward minority and women-owned business
enterprise participation states under penalty of perjury that it
appeared on the division's directory of certified minority and
women-owned business enterprises at the time of contracting and
performed or shall perform a commercially useful function on the
contract. Such standardized prepayment declarations shall be submitted
electronically on a centralized state registry designated by the
division prior to any payment to a contractor. The rules and regulations
promulgated pursuant to this subdivision may also require the contractor
or subcontractor to submit documentation, as needed, to support any
statements made in such standardized prepayment declarations.
(d) Without limiting other grounds for the disqualification of bids or
proposals on the basis of non-responsibility, a contracting agency may
disqualify the bid or proposal of a contractor as being non-responsible
for failure to remedy notified deficiencies contained in the
contractor's utilization plan within a period of time specified in
regulations promulgated by the director after receiving notification of
such deficiencies from the contracting agency. Where failure to remedy
any notified deficiency in the utilization plan is a ground for
disqualification, that issue and all other grounds for disqualification
shall be stated in writing by the contracting agency. Where the
contracting agency states that a failure to remedy any notified
deficiency in the utilization plan is a ground for disqualification the
contractor shall be entitled to an administrative hearing, on a record,
involving all grounds stated by the contracting agency. Such hearing
shall be conducted by the appropriate authority of the contracting
agency to review the determination of disqualification. A final
administrative determination made following such hearing shall be
reviewable in a proceeding commenced under article seventy-eight of the
civil practice law and rules, provided that such proceeding is commenced
within thirty days of the notice given by certified mail return receipt
requested rendering such final administrative determination. Such
proceeding shall be commenced in the supreme court, appellate division,
third department and such proceeding shall be preferred over all other
civil causes except election causes, and shall be heard and determined
in preference to all other civil business pending therein, except
election matters, irrespective of position on the calendar. Appeals
taken to the court of appeals of the state of New York shall be subject
to the same preference.
6. (a) Where it appears that a contractor cannot, after a good faith
effort, comply with the minority and women-owned business enterprise
participation requirements set forth in a particular state contract, a
contractor may file a written application with the contracting agency
requesting a partial or total waiver of such requirements setting forth
the reasons for such contractor's inability to meet any or all of the
participation requirements together with an explanation of the efforts
undertaken by the contractor to obtain the required minority and
women-owned business enterprise participation. In implementing the
provisions of this section, the contracting agency shall consider the
number and types of minority and women-owned business enterprises
available to provide goods or services required under the contract in
the region in which the state contract is to be performed, the total
dollar value of the state contract, the scope of work to be performed
and the project size and term. If, based on such considerations, the
contracting agency determines there is not a reasonable availability of
contractors on the list of certified business to furnish services for
the project, it shall issue a waiver of compliance to the contractor. In
making such determination, the contracting agency shall first consider
the availability of other business enterprises located in the region and
shall thereafter consider the financial ability of minority and
women-owned businesses located outside the region in which the contract
is to be performed to perform the state contract.
(b) Upon the issuance of all waivers of compliance as provided in
paragraph (a) of this subdivision, the contracting agency shall: (i)
report the issuance of the waiver to the director; and (ii) publish on
the contracting agency's website on a monthly basis, if practicable, but
no less than on a quarterly basis, in a location easily accessible to
the general public: (1) information identifying the contract, including
the value of the contract; (2) the name of the contractor receiving the
waiver; (3) the date of the waiver; (4) whether the waiver was a partial
or total waiver; and (5) the specific contract provisions to which the
waiver applies.
7. For purposes of determining a contractor's good faith effort to
comply with the requirements of this section or to be entitled to a
waiver therefrom the contracting agency shall consider:
(a) whether the contractor has advertised in general circulation
media, trade association publications, and minority-focus and
women-focus media and, in such event, (i) whether or not certified
minority or women-owned businesses which have been solicited by the
contractor exhibited interest in submitting proposals for a particular
project by attending, or having attended, a pre-bid conference, if any,
scheduled by the state agency awarding the state contract with certified
minority and women-owned business enterprises; and
(ii) whether certified businesses which have been solicited by the
contractor have responded in a timely fashion to the contractor's
solicitations for timely competitive bid quotations prior to the
contracting agency's bid date; and
(b) whether the contractor provided timely written notification of
subcontracting opportunities on the state contract to appropriate
certified businesses that appear in the directory of certified
businesses prepared pursuant to paragraph (f) of subdivision three of
section three hundred eleven of this article; and
(c) whether the contractor can reasonably structure the amount of work
to be performed under subcontracts in order to increase the likelihood
of participation by certified businesses.
8. In the event that a contracting agency fails or refuses to issue a
waiver to a contractor as requested within twenty days after having made
application therefor pursuant to subdivision six of this section or if
the contracting agency denies such application, in whole or in part, the
contractor may file a complaint with the director pursuant to section
three hundred sixteen of this article setting forth the facts and
circumstances giving rise to the contractor's complaint together with a
demand for relief. The contractor shall serve a copy of such complaint
upon the contracting agency by personal service or by certified mail,
return receipt requested. The contracting agency shall be afforded an
opportunity to respond to such complaint in writing.
9. If, after the review of a contractor's minority and women-owned
business utilization plan or review of a periodic compliance report and
after such contractor has been afforded an opportunity to respond to a
notice of deficiency issued by the contracting agency in connection
therewith, it appears that a contractor is failing or refusing to comply
with the minority and women-owned business participation requirements as
set forth in the state contract and where no waiver from such
requirements has been granted, the contracting agency may file a written
complaint with the director pursuant to section three hundred sixteen of
this article setting forth the facts and circumstances giving rise to
the contracting agency's complaint together with a demand for relief.
The contracting agency shall serve a copy of such complaint upon the
contractor by personal service or by certified mail, return receipt
requested. The contractor shall be afforded an opportunity to respond to
such complaint in writing.
* NB Repealed July 1, 2028
* § 313-a. Diversity practices of state contractors. The director
shall promulgate rules and regulations setting forth measures and
procedures to require all contracting agencies, where practicable,
feasible and appropriate, to assess the diversity practices of
contractors submitting bids or proposals in connection with the award of
a state contract. Such rules and regulations shall take into account:
the nature of the labor, services, supplies, equipment or materials
being procured by the state agency; the method of procurement required
to be used by a state agency to award the contract and minority and
women-owned business utilization plans required to be submitted pursuant
to sections three hundred twelve and three hundred thirteen of this
article; and such other factors as the director deems appropriate or
necessary to promote the award of state contracts to contractors having
sound diversity practices. Such assessment shall not in any way permit
the automatic rejection of a bid or procurement contract proposal based
on lack of adherence to diversity practices. Each bid or proposal shall
be analyzed on an individual per bid or per proposal basis with the
contractor's diversity practices considered as only a part of a wider
consideration of several factors when deciding to award or decline to
award a bid or proposal. The director shall develop the rules and
regulations required hereunder only after consultation with the state
procurement council established by section one hundred sixty-one of the
state finance law.
* NB Repealed July 1, 2028
* § 314. Statewide certification program. 1. The director shall
promulgate rules and regulations providing for the establishment of a
statewide certification program including rules and regulations
governing the approval, denial or revocation of any such certification
including revocations for convictions for fraudulently misrepresenting
the status of minority or women-owned business enterprises. Such rules
shall set forth the maximum personal net worth of a minority group
member or woman who may be relied upon to certify a business as a
minority-owned business enterprise or women-owned business enterprise
with a minimum personal net worth threshold of fifteen million dollars,
and may thereafter establish different maximum levels of personal net
worth for minority group members and women on an industry-by-industry
basis for such industries as the director shall determine. Such
regulations relating to the classification of the industry-by-industry
personal net worth thresholds above the fifteen million dollar threshold
shall consider the personal net worth of the owners of both certified
and non-certified businesses, including but not limited to, prime
contractors and subcontractors, as well as any such other factors needed
to establish such thresholds. Such rules and regulations shall include,
but not be limited to, such matters as may be required to ensure that
the established procedures thereunder shall at least be in compliance
with the code of fair procedure set forth in section seventy-three of
the civil rights law, and consistent with the provisions of article
twenty-three-A of the correction law.
2. For the purposes of this article, the office shall be responsible
for verifying businesses as being owned, operated, and controlled by
minority group members or women and for certifying such verified
businesses. The director shall prepare a directory of certified
businesses for use by contracting agencies and contractors in carrying
out the provisions of this article. The director shall periodically, but
no less than annually, update the directory.
2-a. (a) The director shall establish a procedure enabling the office
to accept New York municipal corporation certification verification for
minority and women-owned business enterprise applicants in lieu of
requiring the applicant to complete the state certification process. The
director shall promulgate rules and regulations to set forth criteria
for the acceptance of municipal corporation certification. All eligible
municipal corporation certifications shall require business enterprises
seeking certification to meet the following standards:
(i) have at least fifty-one percent ownership by a minority or a
women-owned enterprise and be owned by United States citizens or
permanent resident noncitizens;
(ii) be an enterprise in which the minority and/or women-ownership
interest is real, substantial and continuing;
(iii) be an enterprise in which the minority and/or women-ownership
has and exercises the authority to control independently the day-to-day
business decisions of the enterprise;
(iv) be an enterprise authorized to do business in this state;
(v) be subject to a physical site inspection to verify the fifty-one
percent ownership requirement;
(vi) be owned by an individual or individuals, whose ownership,
control and operation are relied upon for certification, with a personal
net worth that does not exceed fifteen million dollars and such other
amount as the director shall set forth in regulations, as adjusted
annually for inflation according to the consumer price index; and
(vii) be an enterprise that is a small business pursuant to
subdivision twenty of section three hundred ten of this article.
(b) The director shall work with all municipal corporations that have
a municipal minority and women-owned business enterprise program to
develop standards to accept state certification to meet the municipal
corporation minority and women-owned business enterprise certification
standards.
(c) The director shall establish a procedure enabling the division to
accept federal certification verification for minority and women-owned
business enterprise applicants, provided said standards comport with
those required by the state minority and women-owned business program,
in lieu of requiring the applicant to complete the state certification
process. The director shall promulgate rules and regulations to set
forth criteria for the acceptance of federal certification.
2-b. The director shall establish a procedure enabling an applicant
who was a military service member to prove his or her race or ethnicity,
date of birth, place of birth and verification of address for purposes
of certification of the applicant's business as a minority-owned
business by submission of the DD Form 214 issued to the applicant by the
United States department of defense upon such applicant's retirement,
separation, or discharge from active duty in the armed forces of the
United States, provided the DD Form 214 contains such information, in
lieu of requiring the applicant to otherwise prove his or her race or
ethnicity. The director shall promulgate rules and regulations to set
forth criteria for the acceptance of the DD Form 214 by the office.
2-c. (a) Each business applying for minority or women-owned business
enterprise certification pursuant to this section must agree to allow:
(i) the department of taxation and finance to share its tax information
with the division; and (ii) the department of labor to share its tax and
employer information with the division.
(b) Such information provided pursuant to paragraph (a) of this
subdivision shall be kept confidential by the division as such
information is kept by the department of taxation and finance or the
department of labor and use of such information shall be limited to the
certification application process, or other uses approved or consented
to by the business enterprise or applicant.
3. Following application for certification pursuant to this section,
the director shall provide the applicant with written notice of the
status of the application, including notice of any outstanding
deficiencies, within twenty-one days. Within forty-five days of
submission of a final completed application, the director shall provide
the applicant with written notice of a determination by the office
approving or denying such certification and, in the event of a denial a
statement setting forth the reasons for such denial. Upon a
determination denying or revoking certification, the business enterprise
for which certification has been so denied or revoked shall, upon
written request made within thirty days from receipt of notice of such
determination, be entitled to a hearing before an independent hearing
officer designated for such purpose by the director. In the event that a
request for a hearing is not made within such thirty day period, such
determination shall be deemed to be final. The independent hearing
officer shall conduct a hearing and upon the conclusion of such hearing,
issue a written recommendation to the director to affirm, reverse or
modify such determination of the director. Such written recommendation
shall be issued to the parties. The director, within thirty days, by
order, must accept, reject or modify such recommendation of the hearing
officer and set forth in writing the reasons therefor. The director
shall serve a copy of such order and reasons therefor upon the business
enterprise by personal service or by certified mail return receipt
requested. The order of the director shall be subject to review pursuant
to article seventy-eight of the civil practice law and rules.
4. The director may, after performing an availability analysis and
upon a finding that industry-specific factors coupled with personal net
worth or small business eligibility requirements pursuant to
subdivisions nineteen and twenty of section three hundred ten of this
article, respectively, have led to the significant exclusion of
businesses owned by minority group members or women in that industry,
grant provisional MWBE certification status to applicants from that
designated industry, provided, however, that all other eligibility
requirements pursuant to subdivision seven or fifteen of section three
hundred ten of this article, as applicable, are satisfied. Any
industry-based determination made under this section by the director
shall be made widely available to the public and posted on the
division's website.
5. (a) With the exception of provisional MWBE certification, as
provided for in subdivision twenty-three of section three hundred ten of
this article, all minority and women-owned business enterprise
certifications shall be valid for a period of five years.
(b) Within eighteen months of the expiration of a minority and
women-owned business enterprise certification and the submission of a
new and completed application for minority and women-owned business
enterprise certification, if there is no change in the ownership or
capital contribution relied upon for certification of the enterprise and
no material change in the nature or management of the enterprise from
the time of approval of a previous minority and women-owned business
enterprise certification that was approved within the previous six years
and six months, if such application is compliant with 5 NYCRR 144 then
there shall be a rebuttable presumption that the previous minority-owned
business enterprise satisfies the requirements of paragraphs (a) and (b)
of subdivision seven of section three hundred ten of this article and
that the previous women-owned business enterprise satisfies the
requirements of paragraphs (a) and (b) of subdivision fifteen of section
three hundred ten of this article.
(c) The division in its discretion may review applications subject to
this rebuttable presumption and issue such determination pursuant to all
applicable laws and regulations. Any presumption of minority and
women-owned business enterprise certification shall expire upon the
final determination of an application for certification.
* NB Repealed July 1, 2028
* § 315. Responsibilities of contracting agencies. 1. Each contracting
agency shall be responsible for monitoring state contracts under its
jurisdiction, and recommending matters to the office respecting
non-compliance with the provisions of this article so that the office
may take such action as is appropriate to ensure compliance with the
provisions of this article, the rules and regulations of the director
issued hereunder and the contractual provisions required pursuant to
this article. All contracting agencies shall comply with the rules and
regulations of the office and are directed to cooperate with the office
and to furnish to the office such information and assistance as may be
required in the performance of its functions under this article.
2. Each contracting agency shall provide to prospective bidders a
current copy of the directory of certified businesses, and a copy of the
regulations required pursuant to sections three hundred twelve and three
hundred thirteen of this article at the time bids or proposals are
solicited.
2-a. To the extent practicable, upon completion of the restrictive
period of a procurement, each contracting agency when notifying a
contractor of a winning bid award shall also notify any minority or
women-owned business enterprise identified in the contractor's submitted
utilization plan of such contractor's receipt of the winning bid award.
3. Each contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall be
submitted no later than May fifteenth of every year and shall include
such information as is necessary for the director to determine whether
the contracting agency and any contractor to the contracting agency have
complied with the purposes of this article, including, without
limitation, a summary of all waivers of the requirements of subdivisions
six and seven of section three hundred thirteen of this article allowed
by the contracting agency during the period covered by the report,
including a description of the basis of the waiver request and the
rationale for granting any such waiver and any instances in which the
contract agency has deemed a contractor to have committed a violation
pursuant to section three hundred sixteen of this article and such other
information as the director shall require. Each agency shall also
include in such annual report whether or not it has been required to
prepare a remedial plan, and, if so, the plan and the extent to which
the agency has complied with each element of the plan.
4. The division of minority and women's business development shall
issue an annual report which: (a) summarizes the report submitted by
each contracting agency pursuant to subdivision three of this section;
(b) contains such compar