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 official activity expense payments 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 Officers Law section 73(5) prohibits subject persons from soliciting, accepting, or receiving a gift. 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 official activity expense payments by Covered Persons.

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

The change in terminology from “travel expenses” to Official Activity Expense Payments and Service Payments was made to reflect more accurately the breadth of the regulatory language concerning payments made in connection with a person’s official duties. The new Part 931 establishes the procedures and conditions for approval and acceptance of payments related to the attendance, registration, travel, lodging, and food for Covered Persons when such persons are engaged in activities or are providing services that are part of their official duties.

Part 931.1 provides the purpose and effect of the regulations.

Part 931.2 defines key terms in the regulations. It defines Official Activity as a Covered Person’s attendance or service at a meeting, conference, seminar, convention, or professional program that is part of his or her official duties and benefits the covered person’s State agency. The regulations define Service as any action or service performed by a Covered Person, including, but is not limited to, delivering a speech, writing, or publishing an article, or making a presentation. This Part also defines an Interested Source as 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 931.4, by the individual’s approving authority as to whether an Official Activity Expense Payment or Service Payment 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 931.3 sets forth the procedures a Covered Person and his approving authority are to follow when determining whether an Official Activity Expense Payment or Service Payment may be accepted. The approving authority must retain all completed and signed Official Activity Expense Payment or Service Payment approvals for a period of three years from the date of the Official Activity and must provide a copy of the Official Activity Expense Payment or Service Payment approval to the requesting individual.

Part 931.4 establishes the conditions for the approving authority to approve acceptance of an Official Activity Expense Payment by the covered individual and acceptance of a Service Payment, including an analysis for situations where the payment is from an Interested Source. In addition, the approving authority must consider whether performing the Official Activity and accepting the Official Activity Expense or Service Payment violates the Code of Ethics in Public Officers Law section 74. This Part also clarifies that an approved Service Payment is to be directed to the general fund of the State or to such fund as appropriate for a public authority, public benefit corporation, or commission not funded through a State general fund appropriation.

Part 931.5 explains that State agencies are free to adopt or implement rules, regulations, or procedures that are more restrictive than those in the Official Activity Expense Payments and Service Payments regulations.

Part 931.6 identifies the statutory provision, Executive Law section 94, that authorized 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 931.7 states that any individual who is required to file a financial disclosure statement pursuant to section 73-a of the Public Officers Law must report any Official Activity Expense Payment in excess of $1,000 (or all Official Activity Expense Payments 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 Official Activity Expense Payments or Service Payments they would give to individuals covered by the Official Activity 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 in Part 930, moving the reimbursement for travel expenses language of those regulations to a new Part 931, and modifying these regulations to be Official Activity Expense Payment and Service Payment regulations 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, Revised Rural Area Flexibility Analysis and Revised 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 four entities.

The first 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 of Interested Source individuals involved in administrative reviews or hearings and other routine agency proceedings; and (5) exclude individuals or entities which have applied for funds from the agency within the past year. The commenter also expressed concern that the Approving Authority may not possess and may not be able to obtain all necessary information regarding an Interested Source at the time of approval.

The commenter requested that the definition of “Official Activity” be amended to delete the phrase “and benefits the Covered Person’s State Agency” because it is unnecessary and confusing. The commenter also sought to have the definition of “Official Activity Expense Payment” amended to exclude travel reimbursement in the ordinary course of business, pursuant to State travel policies.

The commenter also asked for time-frames to submit Agency Head travel reimbursement approval requests to JCOPE and whether documents related to travel reimbursement approvals need to be retained for three years. The commenter also requested clarification as to whether payments of Official Activity Expense Payments are required to be made directly to the State, as would be done with Service Payments.

The Commission considered each of these comments and has determined that the regulations do not need to be substantively modified. 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 noted 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 Official Activity Expense and Service Payments in the regulations and the Public Officer Law.

The Commission is satisfied with the current definition of “Official Activity” and believes that the State agency is the appropriate entity to make the determination as to whether the activity will be of benefit. The Commission declined to amend the definition of “Official Activity Expense Payment” as suggested because all travel which satisfies the definition in Part 931 must be approved.

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, but otherwise supports the language in Part 931.

The Commission considered this comment and notes that Legislative members and employees are not covered by these regulations because this activity is under the purview of the Legislative Ethics Commission.

The third commenter requested clarification with respect to interpretation Part 931 with Part 933 regarding complimentary attendance at a Widely Attended Event. The commenter also asked whether a Covered Person would be required to report a payment or reimbursement on his Financial Disclosure Statement where there is no payment or reimbursement of a personal, out-of-pocket expense involved.

The Commission considered these comments. The commenter’s requests for clarifications will be addressed in guidance documents that the Commission expects to issue when the regulations become effective.

The fourth commenter requested clarification that a Service be related to a Covered Person’s official duties.

The Commission agrees with this comment and this non-substantive change is reflected in the final rules.