(1) an entity as defined in Executive Law § 171-a(1) that is registered with the Office of the Attorney General, as required by Executive Law § 172, unless otherwise exempted from filing pursuant to Executive Law § 172-a; or

(2) an entity organized and operated exclusively for charitable purposes and qualified as an exempt organization by the United States Department of Treasury under section 501(c)(3) of the Internal Revenue Code; or

(3) a person who requests 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, provided the individual has submitted a form entitled “Charitable Solicitation for the Relief of an Individual” with the Charities Bureau of the Office of Attorney General prior to the event.

(1) State Officer or Employee as defined in subdivision (v) of this section;

(2) Legislative Employee as defined in subdivision (m) of this section; or

(3) Legislative Member as defined in subdivision (n) of this section.

(1) is regulated by, negotiates with, appears before in other than a Ministerial Matter, seeks to contract with or has contracts with, or does other business with: (i) the Legislative Member, the Legislative Employee, or the State Officer or Employee, in his or her official capacity; (ii) the State Agency with which the State Officer or Employee is employed or affiliated; or (iii) any other State Agency when the State Officer or Employee’s agency is to receive the benefits of the contract; or

(2) with respect to a Legislative Member or a Legislative Employee, is required to be listed on a statement of registration pursuant to § 1-e(a)(1) of article 1-A of the Legislative Law, or is the spouse or unemancipated child of any person required to be listed on a statement of registration pursuant to § 1-e(a)(1) of article 1-A of the Legislative Law; or

(3) with respect to State Officers and Employees, is required to be listed on a statement of registration pursuant to § 1-e(a)(1) of article 1-A of the Legislative Law and lobbies or attempts to influence actions, decisions, or policies of the State Agency with which the State Officer or Employee is employed or affiliated; or

(4) with respect to State Officers and Employees, is the spouse or unemancipated child of any individual satisfying the requirements of section 933.2(l)(3); or

(5) is involved in any action or proceeding, in which administrative and judicial remedies thereto have not been exhausted, and which is adverse to either: (i) the State Officer or Employee in his or her official capacity; or (ii) the State Agency with which the State Officer or Employee is employed or affiliated; or

(6) has received or applied for funds from the State Agency with which the Covered Person is employed or affiliated at any time during the previous 12 months up to and including the date of the proposed or actual receipt of the item or service of more than Nominal Value.

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

(1) Statewide elected officials (Governor, Lieutenant Governor, Comptroller, and Attorney General of the State of New York);

(2) Heads of civil departments and State departments and their respective deputies and assistants other than members of the Board of Regents of the University of the State of New York who receive no compensation or are compensated on a per diem basis;

(3) Officers and employees of statewide elected officials;

(4) Officers and employees of state departments, boards, bureaus, divisions, commissions, councils, or other State Agencies other than officers of such boards, commissions or councils who receive no compensation or are compensated on a per diem basis;

(5) Employees of public authorities (other than multi-state authorities), public benefit corporations, and commissions at least one of whose members of such public authorities, public benefit corporations, and commissions is appointed by the Governor; and

(6) Members or directors of public authorities (other than multi-state authorities), public benefit corporations, and commissions identified in section 933.2(v)(5) who receive compensation other than on a per diem basis.

(1) it is not reasonable to infer that the Gift was intended to influence the Covered Person; and

(2) the Gift could not reasonably be expected to influence the Covered Person in the performance of his or her official duties; and

(3) it is not reasonable to infer that the Gift was intended as a reward for any official action on the Covered Person’s part.

(1) it could reasonably be inferred that the Gift was offered or given with the intent to influence the Covered Person, or

(2) the Gift could reasonably be expected to influence the Covered Person 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 Covered Person for any official action on his or her part.

(1) Anything for which a Covered Person has paid fair market value.

(2) Anything for which the State has paid or secured by State contract.

(3) Rewards or prizes given to competitors in contests or events (including random drawings) offered to the general public or a segment of the general public defined on a basis other than status as a Covered Person.

(4) Contributions reportable under article fourteen of the Election Law, including contributions made in violation of that article of the Election Law.

(5) Food or beverage valued at fifteen dollars or less per occasion.

(6) Complimentary Attendance (including food and beverage) at a Bona Fide Charitable Event or a Bona Fide Political Event.

(7) Complimentary Attendance (including food and beverage) offered by the sponsor of a Widely Attended Event.

(i) Widely Attended Event shall mean an event:

(A) which at least twenty-five individuals other than members, officers, or employees from the governmental entity in which the Covered Person serves attend or were, in good faith, invited to attend in person; and

(B) which is related to the attendee’s duties or responsibilities or allows the Covered Person to perform a ceremonial function appropriate to his or her position. For the purposes of this exclusion, a Covered Person’s duties or responsibilities shall include but not be limited to:

(1) For elected Covered Persons (or their staff attending with or on behalf of such elected officials) only, attending an event or a meeting at which more than one-half of the attendees, or persons invited in good faith to attend in person, are residents of the county, district, or jurisdiction from which the elected Covered Person was elected; or

(2) For all Covered Persons, attending an event or a meeting at which a speaker or attendee addresses an issue of public interest or concern as a significant activity at such event or meeting.

(I) For the purposes of Section 933.4(a)(7)(i)(B), Complimentary Attendance does not include registration or admission without charge to any entertainment, recreational, or sporting activity unless the presentation addressing the public interest or concern that is made by the speaker or attendee is delivered at such entertainment, recreational, or sporting activity.

(II) For the purposes of Section 933.4(a)(7)(i)(B), Complimentary Attendance does not include food and beverage unless such food or beverage are available to all participants as part of the Widely Attended Event.

(ii) Prior Written Notification Required for State Officers or Employees.

(8) Awards, Plaques, and Other Ceremonial Items.

(9) Honorary degrees bestowed upon a Covered Person by a public or private college or university.

(10) Promotional Items.

(11) Goods and Services and Discounts for Goods and Services.

(i) Goods and services, or discounts for goods and services, must be offered to the general public or a segment of the general public defined on a basis other than status as a Covered Person and offered on the same terms and conditions as the goods and services are offered to the general public or segment thereof.

(ii) Notwithstanding section 933.4(a)(11)(i), discounts made available to all Covered Persons fall within this exclusion.

(iii) Notwithstanding section 933.4(a)(11)(i), discounts made to a select group of Covered Persons may fall within this exclusion. The following non-exhaustive list of factors shall be considered when any discount is made available to a select group of Covered Persons to determine whether the discount would fall within this exclusion:

(A) the scope of the class of Covered Persons who are offered the discount;

(B) the amount and duration of the discount;

(C) whether the criterion for the offer is based on factors other than the Covered Person’s official duties and responsibilities; and

(D) For State Officers and Employees, whether the offeror is an Interested Source.

(12) Gifts from Friends or Family Members.

(i) Gifts from a Family Member or a person with a personal relationship with a Covered Person when it is reasonable to infer that the Gift was primarily motivated by the family or personal relationship. Personal Gifts may include an invitation to attend a personal or family social event.

(ii) In determining whether the Gift was primarily motivated by a family or personal relationship, the factors to be considered include but are not limited to:

(A) the history and nature of the relationship between the individual offering the Gift and the recipient, including whether items have previously been exchanged;

(B) whether the item was purchased by the individual offering the Gift; and

(C) whether the individual offering the Gift at the same time gave similar items to other Covered Persons.

(iii) The Gift shall not be considered to be motivated by a family or personal relationship if the individual or entity seeks to charge or deduct the value of such item as a business expense or seeks reimbursement from a client.

(13) Reimbursement of Expenses for Speakers at Informational Events.

(14) Provision of Local Transportation to Inspect Facilities.

(i) Provision of local transportation to inspect or tour facilities, operations, or property located in New York State, when such inspection or tour is related to the Covered Person’s official duties or responsibilities.

(ii) The payment or reimbursement for expenses for lodging or travel expenses to and from the locality where such facilities, operations, or property are located is not covered by this exclusion. The acceptance of such payment or reimbursement is governed by Part 931.

(15) Meals for Participants at a Professional or Educational Program.

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. Public Officers Law § 73(5) establishes the restrictions on soliciting, accepting, or receiving Gifts that apply to members of the Legislature, Legislative employees, Statewide elected officials, and State Officers and Employees as defined in Public Officers Law section 73 (referred to in the regulations as “Covered Persons”). (Public Officers Law § 73(5) utilizes the definition of “Gift” in Legislative Law Article 1-A, § 1-c(j).) Public Officers Law § 74 sets forth the Code of Ethics by which all State officers and employees must abide.

2. Legislative objectives: Currently, Covered Persons who look to JCOPE for guidance on how to apply the Gift restrictions must synthesize information from a number of different sources, including the statutory language and several advisory opinions from predecessor agencies. By setting forth the circumstances in which solicitation, acceptance, or receipt of a Gift is appropriate, these rules provide a comprehensive set of requirements for Covered Persons.

3. Needs and benefits: The rulemaking is necessary to regulate and clarify the requirements for Covered Persons covered by the Gift restrictions set forth in Public Officers Law § 73(5). The regulations provide clear guidance to questions about who is covered by the Gift restrictions, what qualifies as a Gift, and what requirements apply to these individuals.

Part 933.1 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 933.2 defines key terms in the regulations. The final 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 final 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.” This Part also defines an “Interested Source,” which is a person or entity who has certain specified relationships with State persons or entities. This definition is central to a determination in Part 933.3 as to when a Gift is permissible or presumptively impermissible. Finally, Part 933.2 defines precisely which aspects of the regulations apply to various State officers and employees depending on whether or not the individual is a Member of the Legislature or is a legislative employee.

Part 933.3 specifies when a Gift can be solicited, received, or accepted by a Covered Person. These rules are designed to provide Covered Persons with an established structure within which to determine whether it is appropriate to accept, receive, or solicit a Gift. Pursuant to Part 933.3(a), if a Gift is from an Interested Source, it is presumptively impermissible to solicit, receive, or accept the Gift, unless certain criteria are met. Specifically, 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 Covered Person; and (2) the Gift could not reasonably be expected to influence the Covered Person in the performance of his or her 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 Covered Person’s part.

Under Part 933.3(b), if the Gift is not from an Interested Source, it is permissible to solicit, receive, or accept the Gift 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 Covered Person; or (2) the Gift could reasonably be expected to influence the Covered Person 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 Covered Person for any official action on his part.

In Part 933.3(c), the final regulations state that a Covered Person is not relieved of his obligations under Public Officers Law § 74 with respect to the solicitation, receipt, or acceptance of multiple items, services, or any other things of value that, individually, are permissible Gifts.

Part 933.3(d) provides that a Covered Person cannot direct an impermissible Gift to a third party, including a charitable organization. Finally, Part 933.3(e) explains that a Gift that is permissible under Parts 933.3(a) or (b) satisfies the Covered Person’s obligations under Public Officers Law § § 73 and 74 with respect to the Gift.

Part 933.4 sets forth and clarifies the exclusions from the definition of Gift. Both the definition and the exclusions are contained in Legislative Law Article 1-A, § 1-c(j) and are incorporated by reference into Public Officers Law § 73(5). The final regulations amend aspects of the Widely Attended Event exclusion (Part 933.4(a)(7)). The initial proposed regulations required that an individual seeking to avail himself of the exclusion receive written approval from his State Agency. In response to comments received, the final regulations no longer require prior approval; rather, an individual must notify his State Agency prior to attending the event. Additionally, the final regulations 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 933.4(b) clarifies that a Covered Person must consider the requirements in Public Officers Law § 74 before soliciting, receiving, or accepting any item or service that falls under the exclusions from the definition of Gift contained in Part 933.4(a).

Part 933.5 states that a Covered Person must consider the requirements of Public Officers Law § 74 before soliciting, receiving, or accepting multiple items, services, or any other things of value that, individually, are not Gifts solely because each has less than Nominal Value.

Part 933.6 identifies the statutory provision, Executive Law § 94, that authorizes JCOPE to investigate possible violations of Public Officers Law §§ 73 and 74 and their corresponding regulations and to take appropriate action as authorized in these statutes.

Part 933.7 explains that State agencies are free to adopt or implement rules, regulations, or procedures that are more restrictive than those in the Gift regulations.

4. Costs:

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

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

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

5. Local government mandate: The final regulations impose, 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 individuals covered by the Gift regulations.

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

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

8. Alternatives: JCOPE could promulgate a formal advisory opinion or other guidance, 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.

Changes made to the last published proposed rule do not necessitate revision to the previously published Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.

The Commission received public comments from two entities.

The first commenter suggested that the Part be revised to reflect which Advisory Opinions are inconsistent with the regulations and will therefore be superseded in whole or in part by the regulations. This commenter also raised concerns about potential inadvertent violations of the regulations due to uncertainty, for example, as to whether an entity is a Charitable Organization or an Interested Source. An exclusion from the definition of Interested Source for individuals involved in administrative reviews or hearings or other routine agency proceedings was also suggested. Additionally, the commenter requested that the definition of an Interested Source be amended either to exclude entities which make “routine purchases” from a State agency or which make purchases below a “threshold amount.”

The commenter further suggested that the 12-month time frame for receiving multiple Gifts be retained. The commenter also questioned why the regulations no longer require prior State agency approval to attend a Widely Attended Event and, instead, state that prior notification is all that is required. In addition, the commenter reiterated its position to include an exception to the definition of Gift for items or services given for customary or special occasions. Moreover, the commenter requested that the term “generally deem” be stricken from the definition of “Nominal Value” in order to provide more clarity to State employees.

Finally, clarification was sought regarding situations where (i) a State employee is a member of a professional organization that lobbies the employee’s State agency (and is therefore an Interested Source) and wishes to participate in events the organization conducts for its members; and (ii) a charity doing business with the State offers a State employee complimentary attendance to a Charitable Event.

The Commission considered each of these comments and has determined that the regulations do not need to be further modified. The Commission believes that its statement as to which Advisory Opinions are superseded by the regulations is understandable in its current form. As for the comments indicating the regulations may invite inadvertent violations because they require a State employee to have knowledge about facts that may not be within his purview, the Commission notes that the Public Officers Law has a “knowing and intentional” standard for violations. Consequently, there is little concern that a State employee will be found to have “inadvertently” violated the prohibitions on Gifts in the regulations and the Public Officer Law.

The Commission is satisfied that its definition of “nominal value” effectuates the intent of the statutory language. Agencies are free to adopt more a more restrictive definition if they deem it appropriate to do so. The Commission has previously rejected the suggestion to exclude from the definition of a Gift items or services given for customary or special occasions. In the Commission’s estimation this exclusion is overbroad. Rather, it is the Commission’s view that the existing exclusion for items or services given by individuals with a personal relationship to the State employee is better tailored to cover the scenarios contemplated by the requested exclusion.

As for a time period for the receipt of multiple Gifts, the Commission chose not to include a time period in order to permit an analysis under the totality of the circumstances. With respect to the notification requirement to attend a Widely Attended Event, the Commission’s decision to remove the approval requirement was based on comments that a mandated pre-approval process could be overly burdensome to some agencies. Each agency, of course, is generally free to adopt policies that may be more restrictive than the regulations and mandate procedures beyond those prescribed in the regulations.

The comments with respect to exclusions from the definition of an Interested Source also do not necessitate changes to the regulations. The definition of Interested Source is necessarily broad. The fact that the regulations and the Public Officers Law require violations of the Gift prohibitions to be knowing and intentional before a penalty can be imposed ensures that individuals will not involuntarily expose themselves to liability. Additionally, the presumption against receiving Gifts from an Interested Source can, given the proper circumstances, be overcome, as both the regulations and the Public Officers Law recognize that in some instances, a Gift from an Interested Source may be accepted by a State employee.

Finally, the commenter’s request for clarification on the application of the regulations to specific scenarios will be addressed in guidance documents that the Commission expects to issue when the regulations become effective.

The second commenter expressed a desire for the regulations to contain a per se prohibition on the acceptance or receipt of Gifts from Interested Sources rather than the presumption that such Gifts are prohibited. The commenter opined that this aspect of the regulations would likely create uncertainty as to what is permissible and present enforcement difficulties. The commenter also suggested that the regulations be revised to include 12-month time frame or a particular dollar value in the section pertaining to the receipt of multiple Gifts. Additionally, the commenter requested that the regulations reinstate the requirement of prior agency approval to attend a Widely Attended Event.

The commenter further suggested that the regulations be amended to include a requirement that a State employee must obtain approval before availing himself or herself of exclusion for discounts contained in the regulations. Finally, the commenter suggested that the regulations be amended to include language indicating the consequences for impermissible Gift-giving by “donors” to Covered Persons.

Once again, the Commission considered each of these comments. The Commission remains of the view that the elimination of per se prohibition and its replacement with a rule that Gifts from an Interested Source are presumptively prohibited better comports with the language of the statute. As for a time period or dollar amount for the receipt of multiple Gifts, the Commission chose not to include either in order to permit an analysis under the totality of the circumstances.

With respect to the notification requirement to attend a Widely Attended Event, the Commission’s decision to remove the approval requirement was based on comments that a mandated pre-approval process could be overly burdensome to some agencies. Each agency, of course, is generally free to adopt policies that may be more restrictive than the regulations and mandate procedures beyond those prescribed in the regulations. In a similar vein, the Commission believes that a pre-approval requirement with respect to the “discount” exclusion in the regulations may create an undue burden on State agencies.

The comment regarding “donors” is unclear. The statute itself clearly states the penalties for failure to comply its provisions. Finally, the Commission expects to issue guidance documents when the regulations become effective that will address a number of questions the commenter presented.