1. Statutory authority: Executive Law section 94(9)(c) generally directs the Joint Commission on Public Ethics (“JCOPE”) to adopt, amend, and rescind rules and regulations to govern JCOPE’s various procedures. Executive Law section 94(17)(a) directs JCOPE to promulgate rules concerning limitations on the receipt of gifts and Honoraria by “Statewide Elected Officials” and “State Officers and Employees” as those terms are defined in Public Officers Law section 73(1) (hereinafter referred to as “Covered Persons”). Public Offices Law section 73(5) prohibits subject persons from soliciting, accepting, or receiving a gift. Public Officers Law section 73(5-a) places certain limitations on Covered Persons from accepting Honoraria. The Code of Ethics in Public Officers Law section 74 establishes standards intended to prevent the use of an individuals’ official position or authority for personal benefit.

2. Legislative objectives: To provide guidance and procedures regarding the acceptance of Honoraria by certain Covered Persons.

3. Needs and benefits: JCOPE’s predecessor agencies created regulations regarding Honoraria and payments for expenses related to official activity in Part 930. The proposed rulemaking will clarify these rules by separating the regulations governing Honoraria (set forth in Part 930) from the regulations governing payments for expenses related to official activity, including officially related travel expenses (proposed herein in Part 931). The regulations set forth in Part 931 govern payments for expenses related to the official activities of Covered Persons.

Part 930.1 provides the purpose and effect of the regulations.

Part 930.2 defines key terms in the regulations. It defines an “Honorarium” as a fee or any other compensation made to a Covered Person in consideration for a service performed that is not part of his or her official duties. Such services include, but are not limited to, delivering a speech, writing or publishing an article, or participating in any public or private conference, convention, meeting, or similar event. This Part also defines an “Interested Source,” which is a person or entity who has certain defined relationships with State persons or entities. This definition is central to a determination made, pursuant to Part 930.5, by the individual’s approving authority as to whether an Honorarium can be approved. In the case of most Covered Persons, the approving authority is the individual’s agency. In the case of Statewide elected officials and heads of agencies and certain departments, the approving authority is JCOPE.

Part 930.3 specifies that, in accordance with Public Officers Law section 73(5-a)(b), a Statewide Elected Official or a head of a civil department may not, directly or indirectly, solicit, accept, or receive any payment made in consideration for any speech given at a public or private conference, convention, meeting, social event, meal, or like gathering.

Part 930.4 sets forth the procedures a Covered Person and his approving authority are to follow when determining whether an Honorarium may be accepted. The approving authority must retain all completed and signed Honorarium approvals for a period of three years from the receipt date of the Honorarium and must provide a copy of the Honorarium approval to the requesting individual.

Part 930.5 establishes the conditions for the approving authority to approve acceptance of the Honorarium by the Covered Person, including an analysis for situations where the Honorarium is from an Interested Source. In addition, the approving authority must consider whether performing the service for which the Honorarium is offered and accepting the Honorarium violate the Code of Ethics in Public Officers Law section 74.

Part 930.6 explains that State agencies are free to adopt or implement rules, regulations, or procedures that are more restrictive than those in the Honoraria regulations.

Part 930.7 creates an exemption from the Honorarium processes in sections 930.4 and 930.5 for: (1) a member of the faculty (including an adjunct member of the faculty) at the State University of New York and the City University of New York, including all constituent units (except community colleges of the State University of New York and the independent institutions operating statutory or contract colleges on behalf of the State), and (2) a State officer or employee serving in specified research and scientific titles, provided the service performed by the member of the faculty is within the subject matter of his or her official academic discipline.

Part 930.8 identifies the statutory provision, Executive Law section 94, that authorizes JCOPE to investigate possible violations of Public Officers Law sections 73 and 74 and their corresponding regulations and to take appropriate action as authorized in these statutes.

Part 930.9 states that any individual who is required to file a financial disclosure statement pursuant to section 73-a of the Public Officers Law, including those persons qualifying for an exemption under Part 930.7, must report any Honorarium in excess of $1,000 (or all Honoraria the aggregate total of which exceed $1,000 received from a single offeror) in his or her financial disclosure statement for the applicable year.

4. Costs:

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

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

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

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

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

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

8. Alternatives: JCOPE could promulgate a formal advisory opinion or other guidance. However, amending the existing Honoraria regulations and moving the reimbursement for travel expenses language to new Part 931 through the formal rulemaking process provide more clarity to affected parties.

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

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

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 three entities.

The first commenter asked why the phrase “which payment, fee or other compensation is made as a gratuity, or as on award or honor” was removed from the current definition of Honorarium in Part 930 and suggested that the definition of Honorarium should be revised to exclude payments made for purposes unrelated to an Honorarium. The commenter also opined that the removal of the exception for Honoraria received from religious, self-help, and civic groups under otherwise acceptable circumstances was eliminated “may require further inquiry into the private activities of State employees.”

Additionally, the commenter requested that, to avoid inadvertent violations, the definition of an Interested Source be amended to (1) clarify when a party “negotiates” with a State agency; (2) exclude entities who make “routine purchases” from a State agency or who make purchases below a “threshold amount;” (3) clarify the statement “any other State Agency when the Covered Person’s agency is to receive the benefits of the contract;” (4) exclude from the definition individuals involved in administrative reviews or hearings and other routine agency proceedings; and (5) exclude from the definition individuals or entities which have applied for funds from the agency within the past year.

The commenter also asked for time-frames to submit Agency Head Honoraria approval requests to JCOPE and whether documents related to Honoraria approvals need to be retained for three years. Finally, the commenter supported the Commission’s position to include both adjunct SUNY/CUNY faculty and State employees in the Research Scientist title series in the exemption from Honoraria restrictions.

The Commission considered each of these comments and has determined that the regulations do not need to be substantively modified. The Commission believes that its definition of Honorarium together with the approval process is more than sufficient to restrict the receipt of Honoraria by covered persons so as to comport with Public Officers Law § 74. The deletion of the exception for religious, self-help, and civic groups was made so that these types of organizations would be required to go through the same approval analysis as all other payment sources. The Commission does not believe that this change will place an undue burden on State agencies.

As for the comment 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 Honoraria in the regulations and the Public Officer Law.

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 was concerned that the draft regulations would not apply to members of the Legislature and legislative employees. The commenter also suggested that the regulations should only apply to future conduct.

The Commission considered each of these comments. Legislative members and employees are not covered by these regulations because the receipt of Honoraria for these persons is under the purview of the Legislative Ethics Commission. The Commission agrees that the regulations are prospective only.

The third commenter offered non-substantive clerical suggested changes, most of which were adopted.