By setting forth the circumstances in which lobbyists and clients of lobbyists, as well as their family members, can offer or give gifts to public officials or their families, these rules provide a comprehensive set of requirements. These regulations provide clear guidance to questions concerning who is covered by these requirements, what qualifies as a gift and what as an exclusion, and what requirements apply to the covered individuals.

1. Statutory authority: Executive Law § 94(17)(a) directs the Joint Commission on Public Ethics (“JCOPE”) to promulgate rules concerning limitations on the receipt of Gifts, and § 94(9)(c) authorizes JCOPE to adopt, amend, and rescind rules and regulations to govern JCOPE procedures. Legislative Law Article 1-A, § 1-c(j) defines a “Gift” and sets forth exclusions from the definition of Gift. Legislative Law Article 1-A, § 1-m prohibits, except in certain limited circumstances, individuals or entities who are required to be listed on a statement of registration – referred to as “Lobbyists” and/or “Clients” – or certain of their family members from offering or giving Gifts to “Public Officials” (i.e., generally, persons covered by Public Officers Law § 73) or certain of their family members.

2. Legislative objectives: To regulate and clarify the prohibition on the offering and giving of Gifts to public officials by lobbyists and their clients.

3. Needs and benefits: The proposed rulemaking is necessary to regulate and clarify the prohibition on the offering and giving of Gifts to Public Officials by Lobbyists and their Clients. The regulations provide clear guidance concerning who is a Public Official, who is prohibited from offering and giving a Gift to a Public Official, and what qualifies as a Gift.

Part 934.1 provides the purpose and effect of the regulations. The Part clarifies that the regulations supersede prior Advisory Opinions issued by predecessor agencies to the extent such Advisory Opinions are inconsistent with the regulations.

Part 934.2 defines key terms in the regulations. In particular, the draft revised regulations amend the definition of Nominal Value. The initial proposed regulations defined the term as an item or service (or anything else of value) with a fair market value of ten dollars or less. The revised proposed regulations note that the term is not defined in the Public Officers Law or Legislative Law Article 1-A, but that the Commission “generally deems an item or service with a fair market value of fifteen dollars or less as having a Nominal Value.”

Part 934.3 incorporates various statutory provisions concerning the offering or giving of a Gift to a Public Official. These rules are designed to provide Lobbyists and Clients with an established structure within which to determine whether the giving or offering of Gift to public officials is appropriate. Part 934.3(a) specifies that a Gift offered or given by a Lobbyist or Client to a Public Official is presumptively impermissible unless certain criteria are met. The presumption is overcome (making the Gift permissible) only when: (1) it would not be reasonable to infer that the Gift was intended to influence the Public Official; and (2) the Gift could not reasonably be expected to influence the Public Official in the performance of his official duties; and (3) it would not be reasonable to infer that the Gift was intended as a reward for any official action on the Public Official’s part.

Pursuant to Part 934.3(b), the offering or giving of a Gift from a Lobbyist or a Client to the spouse or unemancipated child of a Public Official is permissible unless, under the circumstances, any one of the following criteria is met: (1) it could reasonably be inferred that the Gift was offered or given with the intent to influence the Public Official; or (2) the Gift could reasonably be expected to influence the Public Official in the performance of his or her official duties; or (3) it could reasonably be inferred that the Gift was offered or given with the intent to reward the Public Official for any official action on his or her part.

Finally, the draft revised regulations include new language – found in Part 934.3(c) – that incorporates the statutory provision regarding the offering or giving of a Gift from a spouse or unemancipated child of a Lobbyist or a Client to a Public Official. Such a Gift is permissible unless, under the circumstances, any one of the following criteria is met: (1) it could reasonably be inferred that the Gift was offered or given with the intent to influence the Public Official; or (2) the Gift could reasonably be expected to influence the Public Official in the performance of his or her official duties; or (3) it could reasonably be inferred that the Gift was offered or given with the intent to reward the Public Official for any official action on his or her part.

Part 934.3(d) sets forth the statutory exception that a Lobbyist or Client is permitted to give a Gift to officers, members, or directors of boards, commissions, councils, public authorities, or public benefit corporations who receive no compensation or are compensated on a per diem basis as long as the Lobbyist or Client does not appear, and does not have any matters pending before, the entity on which the recipient sits.

Part 934.3(e) articulates the rule that a Lobbyist or Client may not offer or give an impermissible Gift to a third party, including a charitable organization, on behalf of or at the direction of, a Public Official.

Finally, Part 934.3(f) addresses a Lobbyist or Client giving or offering multiple Gifts to the same person. The revised draft Part 934.3(f) states that even if each Gift is permissible on its own, the fact that multiple Gifts are offered or given may create a reasonable basis to infer that the Gifts are, in fact, impermissible.

Part 934.4 sets forth and clarifies the statutory exclusions from the definition of Gifts, which are contained in Legislative Law Article 1-A, § 1-c(j). In particular, the draft revised regulations amend aspects of the Widely Attended Event exclusion to clarify the conditions under which entertainment, recreational, and sporting activities, as well as food and beverage, are considered to be part of the Widely Attended Event and therefore covered by the exclusion.

Part 934.5 identifies the statutory provision, Executive Law § 94, that authorized JCOPE to investigate possible violations of § 1-m of article 1-A of the Legislative Law and its corresponding regulations and to take appropriate action as authorized in these statutes.

4. Costs:

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

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

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

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

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

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

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

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

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

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with this Notice of Proposed Rulemaking because the proposed rulemaking will not impose any adverse economic impact on small businesses or local governments, nor will it require or impose any reporting, record-keeping or other affirmative acts on the part of these entities for compliance purposes. The New York State Joint Commission on Public Ethics notes that while the gift regulations may affect what items and services certain small businesses and local governments can offer or give to public officials, this does not impose extensive record-keeping requirements or other adverse economic impacts on these entities.

A Rural Area Flexibility Analysis is not submitted with this Notice of Proposed Rule Making since the proposed rule making will not impose any adverse economic impact on rural areas, nor will compliance require or impose any reporting, record-keeping, or other affirmative acts on the part of rural areas. The Joint Commission on Public Ethics makes these findings based on the fact that the gift regulations affect what items or services lobbyists and clients of lobbyists can offer or give to public officials. Rural areas are not affected in any way.

A Job Impact Statement is not submitted with this Notice of Proposed Rule Making because the proposed rulemaking will have no impact on jobs or employment opportunities. The Joint Commission on Public Ethics makes these findings based on the fact that the gift regulations affect what items or services lobbyists and clients of lobbyists can offer or give to public officials. This regulation does not apply nor relate to economic development or employment opportunities.

The Commission received public comments from one entity. This commenter supported the Commission’s finding that in order for a Gift to be allowable, all criteria in the proposed regulatory regime must be met. It went on to support the clarification that Gifts may also not be made on behalf of the spouse or unemancipated child of a public official to a third party. The commenter did urge the Commission to provide uniformity regarding items of Nominal Value and food and beverages so that the monetary value is the same, rather than ten dollars and fifteen dollars, respectively.

The Commission was generally of the view that, with respect to dollar amount thresholds, there should be consistency within the regulations. Accordingly, it amended the definition of Nominal Value to include the following language: “The Commission … generally deems an item or service with a fair market value of fifteen dollars or less as having a Nominal Value.”