Part 940 prohibits the publishing of public service announcements featuring certain State officers and employees (“Covered Officials”) during the 90-day period preceding any statewide election. The purpose of this rule is to prevent the unwarranted use of one’s State position for a personal benefit, such as increased public exposure close to a statewide election.

JCOPE promulgated these rules in accordance with the State Administrative Procedure Act, as the Notice of Proposed Rulemaking was published in the State Register on May 14, 2014. As a result of public comments received, technical, non-substantive revisions to the rules have been incorporated into the attached version of Part 940. The earliest possible date that these rules can be finally adopted is when the Notice of Adoption will be published in the August 13, 2014 issue of the State Register.

JCOPE determined that it is necessary for the preservation of the general welfare that this rule be effective prior to August 13, 2014. Therefore, as authorized by § 202(6) of the State Administrative Procedure Act, these new rules should be adopted on an emergency basis making Part 940 immediately effective upon filing with the Department of State.

As previously stated, Part 940 prohibits the publishing of public service announcements featuring Covered Officials during the 90-day period preceding any statewide election. This emergency adoption is necessary to apply these rules to the upcoming primary election on September 9, 2014 and to the general election on November 4, 2014. By immediately setting forth when Covered Officials are restricted from appearing in public service announcements, this emergency rule will serve the public interest in the upcoming election cycle.

In light of these concerns, JCOPE seeks to make this rule effective on an emergency basis until the rule becomes final, which will occur with the issuance of the State Register on August 13, 2014.

1. Statutory authority: Executive Law § 94(9)(d-1) directs the Joint Commission on Public Ethics (“JCOPE”) to promulgate regulations relating to public service announcements, and section 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 certain individuals affiliated with the State, including Statewide elected officials, State officers, employees, members of the Legislature, and Legislative employees. (Public Officers Law § 73(5) utilizes the definition of “Gift” in Legislative Law Article 1-A, § 1-c(j).) Public Officers Law § 74 contains the Code of Ethics by which all State officers and employees must abide.

2. Legislative objectives: Currently, New York State does not provide specific guidance to State employees and Legislative Members and employees who appear in public service announcements. By clarifying the circumstances in which a State employee or officer’s appearance in a public service announcement is appropriate, the regulations promote the proper use of these announcements.

3. Needs and benefits: The proposed rulemaking is necessary to regulate and clarify that, ordinarily, the appearance of a State officer or employee or Legislative Member or employee in a Public Service Announcement (as that term is defined in the regulations) does not constitute a “Gift” to that individual under the Public Officers Law, the Legislative Law, or 19 NYCRR Parts 933 and 934. The regulations also provide that the appearance in a Public Service Announcement by a Member of the Legislature or certain State officers and employees who are candidates for State public office may, in certain circumstances, constitute a violation of Public Officers Law § 74. Thus, the regulations promote Public Service Announcements, while discouraging their use as campaign tools for elective office. The regulations provide clear guidance to questions about what constitutes a Public Service Announcement, who is covered by these regulations, and what requirements apply to these individuals in connection with their appearance in Public Service Announcements.

Part 940.1 provides the purpose and effect of the regulations.

Part 940.2 defines key terms in the regulations. In particular Part 940.2(c) defines a “Covered Official” as an individual who holds any one of the following positions or offices: Governor, Lieutenant Governor, Comptroller, or Attorney General of the State of New York; any elected member of the New York State Legislature; or any head and/or executive director of a State Agency. Part 940.2(b) defines “Candidate” according to New York Election Law § 14-100. Part 940.2(a) defines “Appear” to mean to “appear (by likeness, picture, or voice), be named, or otherwise identified or referenced.”

Part 940.3 defines a Public Service Announcement as a communication that meets all of the criteria listed therein. Among the criteria are following:

• The communication (i) is designed to promote programs, activities or services of nonprofit organizations or federal, state or local governments or (ii) imparts information generally regarded as serving the public interest;

• The communication is sponsored or paid for by (i) a person or (ii) an organization or entity with a mission or history that includes providing outreach and public service announcements to the community;

• The communication is not paid for or controlled by (i) a Covered Official who is a Candidate and who appears in the communication, or (ii) his or her party or party committee, or any organization affiliated with the covered official or his or her party or party committee;

• The communication does not constitute “lobbying” or “lobbying activities,” as those terms are defined in Legislative Law Article 1-A;

• The communication (i) does not promote or support a Covered Official who is a Candidate or criticize or oppose an individual running against such Covered Official and (ii) could not reasonably be interpreted to be an appeal to vote for such Covered Official or to vote against an individual running opposed to such Covered Official.

Part 940.3(b) provides a non-exhaustive list of examples of Public Service Announcements, which include communications regarding nonprofit or governmental outreach or awareness activities on such topics as energy conservation, emergency or other disaster relief, or job training and job fairs.

Part 940.3(c) provides a non-exhaustive list of communications that are not regulated or restricted under the regulations. This list includes: news, editorials, and opinions that are published by an entity that regularly publishes news to the public or to subscribers and is not controlled by the Covered Official appearing in the story or the Covered Official’s political party; State agency and legislative web sites; communications from Members of the Legislature officials; and personal communications from Covered Officials.

Part 940.4 clarifies that paying for the production or Publishing of a Public Service Announcement is not considered a gift, as that term is defined in Public Officers Law § 73(5), Legislative Law Article 1-A, or 19 NYCRR Parts 933 or Part 934.

Part 940.5(a) provides that a knowing and intentional appearance by a Covered Official in a Public Service Announcement within the ninety days prior to an election in which the Covered official is a Candidate may be a violation of Public Officers Law § 74(3)(d), as well as any other applicable provision, and would subject the Covered Official to the penalties contained therein.

Part 940.5(b) provides that during a state of emergency, an appearance by a Covered Official in a Public Service Announcement during the ninety days prior to an election would not be considered a violation of the Public Officers Law, as long as the Public Service Announcement relates to the emergency.

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 Public Service Announcements they would like to create and disseminate.

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 Emergency Adoption 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 public service announcement regulations may, indirectly, affect when certain state employees and officers can appear in public service announcements on behalf of local governments or sponsored by small businesses, 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 Emergency Adoption because the proposed rulemaking 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 public service announcement regulations define what constitutes a public service announcement and sets forth the limitations on when certain state employees and officers who are also candidates for public office can appear in public service announcements. Rural areas are not affected in any way.

A Job Impact Statement is not submitted with this Notice of Emergency Adoption 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 public service announcement regulations define what constitutes a public service announcement and sets forth the limitations on when certain state employees and officers who are also candidates for public office can appear in public service announcements. This regulation neither applies nor relates to economic development or employment opportunities.

The Commission received public comments from two entities and one individual. The first entity provided two comments. The first comment was a proposal that the Regulations follow advice issued by the House Ethics Committee, which requires that Public Service Announcements (“PSAs”) not include any personal, political or campaign information, and not link or refer to any websites created by campaign or campaign-related entities, such as political parties and campaign committees. This suggestion was incorporated into the regulation. The second comment sought a clarification in Part 940.3(a)(2) that a PSA cannot be sponsored or paid for by an entity whose only activity is to produce and pay for a PSA. Language in the regulation was revised to clarify this definition. The second entity requested that for purposes of administrative consistency, the date restriction in Part 940.5(a) be changed from 90 days before an election to 30 days before a primary campaign and 60 days before a general election. The Commission deems the 90-day period to be a reasonable restriction on the appearance of covered officials in PSAs, as opposed to other types of communications. The individual commenter proposed that the title be changed for purposes of clarity to “Public Service Announcements and Covered Officials.”