Currently, individuals covered by the gift statutes who look to JCOPE for guidance on how to apply those statutes must synthesize information from a number of different sources, including the statutory language and multiple 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. The regulations provide clear guidance to questions concerning who is covered by the gift statutes, what qualifies as a gift or as an exception, and what requirements apply to these individuals.

1. Statutory authority: Executive Law section 94(17)(a) directs the Joint Commission on Public Ethics (“JCOPE”) to promulgate rules concerning limitations on the receipt of gifts, and section 94(9)(c) authorizes JCOPE to adopt, amend, and rescind rules and regulations to govern JCOPE procedures. Public Officers Law section 73(5) establishes the restrictions on soliciting, accepting or receiving gifts that apply to certain individuals affiliated with the State, including Statewide elected officials, State officers, employees, members of the Legislature, and Legislative employees. (Public Officers Law section 73(5) utilizes the definition of “gift” in Legislative Law Article 1-A, section 1-c(j).) 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: Currently, individuals covered by the gift statutes who look to JCOPE for guidance on how to apply those statutes 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 proposed rulemaking is necessary to regulate and clarify the requirements for State officers and employees and Legislative members and employees covered by the gift prohibition set forth in Public Officers Law section 73(5). The regulations provide clear guidance to questions about who is covered by the gift prohibition, 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. It defines a “gift” as an item or service (or anything else of value) with a fair market value of more than ten dollars. 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 presumptively permissible or impermissible. Finally, this Part defines precisely to whom the regulations apply (referred to as “covered persons” in the regulations).

Part 933.3 specifies when a gift can be solicited, received, or accepted by a covered person. 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 individual subject to the gift regulations; and (2) the gift could not reasonably be expected to influence the 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 person’s part.

If the gift is not from in interested source, it is presumptively permissible to solicit, receive or accept the gift. This presumption is overcome (making the gift impermissible) when: (1) it could reasonably be inferred that the Gift was offered or given with the intent to influence the covered person, or (2) it 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.

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.

This Part also discusses the propriety of receiving multiple gifts from the same person within a 12-month period. Part 933.3 states that even if each gift might be permissible on its own, the fact that multiple gifts are offered may create a reasonable basis to infer that the gifts are, in fact, impermissible. This Part also explains that a covered person cannot direct an impermissible gift to a third party, including a charitable organization.

Part 933.4 sets forth and clarifies the statutory exclusions from the definition of gift. Both the definition and the exclusions are contained in Legislative Law Article 1-A, section 1-c(j) and are incorporated by reference into Public Officers Law section 73(5). This Part also clarifies that covered persons must consider the requirements of the Code of Ethics in Public Officers Law section 74 before soliciting, receiving, or accepting any item or service, including the items enumerated as exclusions to the definition of “gift.”

Part 933.5 clarifies that covered persons must consider the requirements of Public Officers Law section 74 before soliciting, receiving, or accepting any item or service, that is not a gift because its fair market value is less than ten dollars.

Part 933.6 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 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 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 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.

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, indirectly, affect what items and services certain small businesses and local governments can offer or give to certain individuals employed by or otherwise affiliated with the state, 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 certain state employees and officers, among others affiliated with the state, can solicit, accept or receive. 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 this finding based on the fact that the gift regulations apply only to what items or services certain state employees and officers, among others affiliated with the state, can solicit, accept or receive. This regulation does not apply nor relate to economic development or employment opportunities.