(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) Statewide elected officials (the Governor, Lieutenant Governor, Comptroller, or Attorney General of the State of New York) and their officers and employees;

(2) Members, officers, and employees of the New York State Legislature;

(3) Heads of State departments and their 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;

(4) Officers and employees of state departments, boards, bureaus, divisions, commissions, councils, or other state agencies;

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

(6) Municipal officers and employees (including officers or employees of a municipality as defined § 1-c(k) of article 1-A of the Legislative Law), whether paid or unpaid. Municipal officers and employees also includes members of any administrative board, commission, or other agency thereof, and in the case of a county, shall include any officer or employee paid from county funds. No person shall be deemed to be a municipal officer or employee solely by reason of being a volunteer fireman or civil defense volunteer, except a fire chief or assistant fire chief.

(1) it is not 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 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 Public Official’s part.

(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.

(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.

(1) on behalf of a Public Official (or a Public Official’s spouse or unemancipated child), when such Gift cannot be offered or given to such Public Official (or the spouse or unemancipated child of such Public Official) under section 934.3(a); or

(2) at the designation or recommendation of a Public Official (or a Public Official’s spouse or unemancipated child), when such Gift cannot be offered or given to such Public Official (or the spouse or unemancipated child of such Public Official) under section 934.3(a).

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

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

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

(4) Complimentary Attendance (including food and beverage) offered by a Lobbyist or Client who is 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 Public Official 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 Public Official to perform a ceremonial function appropriate to his or her position. For the purposes of this exclusion, a Public Official’s duties or responsibilities shall include but not be limited to:

(1) For an elected Public Official (or his or her staff attending with or on behalf of such elected official) 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 Public Official 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 934.4(a)(4)(i)(B), Complimentary Attendance does not include registration or admission without charge to any entertainment, recreational, or sporting activity unless the presentation addressing the issue of 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 934.4(a)(4)(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.

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

(6) Honorary degrees bestowed upon a Public Official by a public or private college or university.

(7) Promotional Items.

(8) 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 Public Official 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 934.4(a)(8)(i), discounts made available to all Public Officials fall within this exclusion.

(iii) Notwithstanding section 934.4(a)(8)(i), discounts made to a select group of Public Officials 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 Public Officials to determine whether the discount would fall within this exclusion:

(A) the scope of the class of Public Officials who are offered the discount;

(B) the amount and duration of the discount; and

(C) whether the criterion for the offer is based on factors other than the Public Official’s official duties and responsibilities.

(9) Gifts from Friends or Family Members.

(i) Gifts, including an invitation to attend a personal or family social event, from a Client or Lobbyist (or the Client’s or Lobbyist’s spouse or unemancipated child) when all of the following criteria are met:

(A) the Client or Lobbyist (or the Client’s or Lobbyist’s spouse or unemancipated child) is a Family Member or a person with a personal relationship with a Public Official; and

(B) it is reasonable to infer that the Gift was primarily motivated by the family or personal relationship.

(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 Public Officials.

(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.

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

(11) 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 Public Official’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.

(12) 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. 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 defined in Legislative Law Article 1-A) or certain of their family members.

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

3. Needs and benefits: The final rulemaking is necessary to regulate and clarify the restrictions 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 restricted 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 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.”

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 a Gift to public officials is permissible. 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 final 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 final Part 934.3(f) states that a Gift that is otherwise permissible may be prohibited if it is one of multiple Gifts from the same person, entity, or organization if, under the circumstances, it could be reasonable to infer that the multiple Gifts, collectively, (i) were given with the intent to influence the Public Official; or (ii) could reasonably be expected to influence the Public Official in the performance of his or her official duties; or (iii) were offered or given with the intent to reward the Public Official for any official action on his or her part.

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 final regulations amend aspects of the Widely Attended Event exclusion where the sponsor of the Widely Attended Event is a Lobbyist or the Client of a Lobbyist. The amendments 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 final 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.

Changes made to the last published 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 one entity. This commenter offered a number of technical amendments. The commenter also suggested including examples in the regulations to help clarify certain provisions. Additionally, the commenter suggested that the provision relating to multiple Gifts should be amended to include either a specific time frame or dollar amount. Finally, the commenter stated that the regulations would benefit from a clear statement regarding the consequences, for both donors and recipients, of a violation.

The Commission considered these comments and adopted nearly all the technical amendments. With respect to the inclusion of examples, the Commission expects to issue guidance documents when the regulations become effective. As for the comments concerning the inclusion of 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. Finally, the consequences for impermissible Gift-giving are plainly articulated in the Public Officers Law.