S T A T E O F N E W Y O R K
________________________________________________________________________
6776
I N S E N A T E
March 7, 2014
___________
Introduced by COMMITTEE ON RULES -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules
AN ACT to amend the election law, in relation to the state board of
elections chief enforcement counsel; and to amend the criminal proce-
dure law, in relation to the chief enforcement counsel of the state
board of elections
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 14-126 of the election law, as
amended by section 3 of part E of chapter 399 of the laws of 2011, is
amended to read as follows:
1. Any person who fails to file a statement required to be filed by
this article shall be subject to a civil penalty, not in excess of one
thousand dollars, to be recoverable in a special proceeding or civil
action to be brought by the state board of elections [or other board of
elections] CHIEF ENFORCEMENT COUNSEL PURSUANT TO SECTION 16-114 OF THIS
CHAPTER. Any person who, three or more times within a given election
cycle for such term of office, fails to file a statement or statements
required to be filed by this article, shall be subject to a civil penal-
ty, not in excess of ten thousand dollars, to be recoverable as provided
for in this subdivision.
S 2. Subdivision 3 of section 3-100 of the election law, as amended by
chapter 220 of the laws of 2005, is amended to read as follows:
3. The commissioners of the state board of elections shall have no
other public employment. The commissioners shall receive an annual sala-
ry of twenty-five thousand dollars, within the amounts made available
therefor by appropriation. The board shall, for the purposes of sections
seventy-three and seventy-four of the public officers law, be a "state
agency", and such commissioners shall be "officers" of the state board
of elections for the purposes of such sections. Within the amounts made
available by appropriation therefor, the state board of elections shall
appoint two co-executive directors, and such other staff members as are
necessary in the exercise of its functions, and may fix their compen-
sation. [Anytime after the effective date of the chapter of the laws of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14376-01-4
S. 6776 2
two thousand five which amended this subdivision, the] THE commissioners
or, in the case of a vacancy on the board, the commissioner of each of
the major political parties shall appoint one co-executive director.
Each co-executive director shall serve a term of four years. THE GOVER-
NOR SHALL APPOINT A CHIEF ENFORCEMENT COUNSEL TO HEAD THE DIVISION OF
ELECTION LAW ENFORCEMENT WHO SHALL HAVE A FIXED TERM OF FOUR YEARS, WITH
THE ADVICE AND CONSENT OF THE SENATE, WITH SUCH CONSENT DETERMINED BY A
VOTE OF THE SENATE WITHIN THIRTY DAYS OF THE NOMINATION BY THE GOVERNOR,
AND SHALL BE REMOVED ONLY FOR GOOD CAUSE AND SOLELY BY THE GOVERNOR.
THE CHIEF ENFORCEMENT COUNSEL SHALL HAVE SOLE AUTHORITY OVER PERSONNEL
DECISIONS WITHIN THE ENFORCEMENT UNIT. ALL HIRING DECISIONS MADE BY THE
CHIEF ENFORCEMENT COUNSEL SHALL BE MADE WITHOUT REGARD TO POLITICAL
PARTY AFFILIATION. ANY VACANCY IN THE OFFICE OF CO-EXECUTIVE DIRECTOR
shall be filled by the commissioners or, in the case of a vacancy on the
board, the commissioner of the same major political party as the vacat-
ing incumbent for the remaining period of the term of such vacating
incumbent.
S 3. Subdivision 3 and paragraph (c) of subdivision 9-A of section
3-102 of the election law, subdivision 3 as amended by chapter 9 of the
laws of 1978 and paragraph (c) of subdivision 9-A as added by chapter
430 of the laws of 1997, are amended to read as follows:
3. conduct any investigation necessary to carry out the provisions of
this chapter, PROVIDED, HOWEVER, THAT THE STATE BOARD OF ELECTIONS CHIEF
ENFORCEMENT COUNSEL, ESTABLISHED PURSUANT TO SECTION 3-100 OF THIS ARTI-
CLE, SHALL CONDUCT ANY INVESTIGATION NECESSARY TO ENFORCE THE PROVISIONS
OF THIS CHAPTER;
(c) establish [a] AN EDUCATIONAL AND training program on ALL REPORTING
REQUIREMENTS INCLUDING BUT NOT LIMITED TO the electronic reporting proc-
ess and make it EASILY AND READILY available to any such candidate or
committee;
S 4. Section 3-104 of the election law, subdivisions 1, 3, 4 and 5 as
redesignated and subdivision 2 as amended by chapter 9 of the laws of
1978, is amended to read as follows:
S 3-104. State board of elections; enforcement powers.
1. (A) THERE SHALL BE A UNIT KNOWN AS THE DIVISION OF ELECTION LAW
ENFORCEMENT ESTABLISHED WITHIN THE STATE BOARD OF ELECTIONS. THE HEAD OF
SUCH UNIT SHALL BE THE CHIEF ENFORCEMENT COUNSEL.
(B) The state board of elections shall have jurisdiction of, and be
responsible for, the execution and enforcement of the provisions of
article fourteen of this chapter and other statutes governing campaigns,
elections and related procedures; PROVIDED HOWEVER THAT THE CHIEF
ENFORCEMENT COUNSEL SHALL HAVE AUTHORITY WITHIN THE STATE BOARD OF
ELECTIONS TO INVESTIGATE ON HIS OR HER OWN INITIATIVE OR UPON COMPLAINT
ALLEGED VIOLATIONS OF SUCH STATUTES AND ALL COMPLAINTS ALLEGING
VIOLATIONS SHALL BE FORWARDED TO THE ENFORCEMENT DIVISION OF ELECTION
LAW ENFORCEMENT.
2. (A) Whenever [the state board of elections or other] A LOCAL board
of elections shall determine, on its own initiative or upon complaint,
or otherwise, that there is substantial reason to believe a violation of
this chapter or any code or regulation promulgated thereunder has
[occurred] BEEN COMMITTED BY A CANDIDATE OR POLITICAL COMMITTEE OR OTHER
PERSON OR ENTITY THAT FILES STATEMENTS REQUIRED BY ARTICLE FOURTEEN OF
THIS CHAPTER SOLELY WITH SUCH LOCAL BOARD, it shall expeditiously make
an investigation which shall also include investigation of reports and
statements made or failed to be made by the complainant and any poli-
tical committee supporting his candidacy if the complainant is a candi-
S. 6776 3
date or, if the complaint was made by an officer or member of a poli-
tical committee, of reports and statements made or failed to be made by
such political committee and any candidates supported by it. [The state
board of elections, in lieu of making such an investigation, may direct
the appropriate board of elections to make an investigation.] THE LOCAL
BOARD SHALL REPORT THE RESULTS OF ITS INVESTIGATION TO THE DIVISION OF
ELECTION LAW ENFORCEMENT CHIEF ENFORCEMENT COUNSEL WITHIN NINETY DAYS OF
THE START OF SUCH INVESTIGATION. THE CHIEF ENFORCEMENT COUNSEL MAY
DIRECT THE LOCAL BOARD OF ELECTIONS AT ANY TIME TO SUSPEND ITS INVESTI-
GATION SO THAT THE DIVISION OF ELECTION LAW ENFORCEMENT CAN INVESTIGATE
THE MATTER.
(B) The [state board of elections] CHIEF ENFORCEMENT COUNSEL may
request, and shall receive, the assistance of the state police in any
investigation it shall conduct.
[3. If, after an investigation, the state or other board of elections
finds reasonable cause to believe that a violation warranting criminal
prosecution has taken place, it shall forthwith refer the matter to the
district attorney of the appropriate county and shall make available to
such district attorney all relevant papers, documents, testimony and
findings relevant to its investigation.
4. The state or other board of elections may, where appropriate,
commence a judicial proceeding with respect to the filing or failure to
file any statement of receipts, expenditures, or contributions, under
the provisions of this chapter, and the state board of elections may
direct the appropriate other board of elections to commence such
proceeding.
5.] 3. UPON RECEIPT OF A COMPLAINT AND SUPPORTING INFORMATION ALLEGING
ANY OTHER VIOLATION OF THIS CHAPTER, THE CHIEF ENFORCEMENT COUNSEL SHALL
ANALYZE THE COMPLAINT TO DETERMINE IF AN INVESTIGATION SHOULD BE UNDER-
TAKEN. THE CHIEF ENFORCEMENT COUNSEL SHALL, IF NECESSARY, OBTAIN ADDI-
TIONAL INFORMATION FROM THE COMPLAINANT OR FROM OTHER SOURCES TO ASSIST
SUCH COUNSEL IN MAKING THIS DETERMINATION. SUCH ANALYSIS SHALL INCLUDE
THE FOLLOWING: FIRST, WHETHER THE ALLEGATIONS, IF TRUE, WOULD CONSTITUTE
A VIOLATION OF THIS CHAPTER AND, SECOND, WHETHER THE ALLEGATIONS ARE
SUPPORTED BY CREDIBLE EVIDENCE.
4. IF THE CHIEF ENFORCEMENT COUNSEL DETERMINES THAT THE ALLEGATIONS,
IF TRUE, WOULD NOT CONSTITUTE A VIOLATION OF THIS CHAPTER OR THAT THE
ALLEGATIONS ARE NOT SUPPORTED BY CREDIBLE EVIDENCE, HE OR SHE SHALL
ISSUE A LETTER TO THE COMPLAINANT DISMISSING THE COMPLAINT.
5. THE CHIEF ENFORCEMENT COUNSEL SHALL HAVE THE POWER TO FULLY INVES-
TIGATE VIOLATIONS OF THIS CHAPTER, INCLUDING THE POWER TO ISSUE SUBPOE-
NAS AND TO APPLY FOR SEARCH WARRANTS PURSUANT TO ARTICLE SIX HUNDRED
NINETY OF THE CRIMINAL PROCEDURE LAW, AND, EXCEPT IN EXIGENT CIRCUM-
STANCES, SHALL GIVE PRIOR NOTICE OF THE APPLICATION TO THE DISTRICT
ATTORNEY OF THE COUNTY IN WHICH SUCH A WARRANT IS TO BE EXECUTED, AND IN
SUCH EXIGENT CIRCUMSTANCES SHALL GIVE SUCH NOTICE AS SOON THEREAFTER AS
IS PRACTICABLE; PROVIDED, HOWEVER THAT THE FAILURE TO GIVE NOTICE OF A
SEARCH WARRANT APPLICATION TO A DISTRICT ATTORNEY SHALL NOT BE A GROUND
TO SUPPRESS THE EVIDENCE SEIZED IN EXECUTING THE WARRANT. THE CHIEF
ENFORCEMENT COUNSEL SHALL BE FURTHER AUTHORIZED TO USE THE FULL INVESTI-
GATIVE POWERS OF THE STATE BOARD OF ELECTIONS, AS PROVIDED FOR IN SUBDI-
VISIONS THREE, FOUR, FIVE AND SIX OF SECTION 3-102 OF THIS TITLE.
6. THE CHIEF ENFORCEMENT COUNSEL MAY, AFTER CONSULTATION WITH THE
DISTRICT ATTORNEY AS TO THE TIME AND PLACE OF SUCH ATTENDANCE OR APPEAR-
ANCE, ATTEND IN PERSON ANY TERM OF THE COUNTY COURT OR SUPREME COURT
HAVING APPROPRIATE JURISDICTION, INCLUDING AN EXTRAORDINARY SPECIAL OR
S. 6776 4
TRIAL TERM OF THE SUPREME COURT WHEN ONE IS APPOINTED PURSUANT TO
SECTION ONE HUNDRED FORTY-NINE OF THE JUDICIARY LAW, OR APPEAR BEFORE
THE GRAND JURY THEREOF, FOR THE PURPOSE OF MANAGING AND CONDUCTING IN
SUCH COURT OR BEFORE SUCH JURY A CRIMINAL ACTION OR PROCEEDING CONCERNED
WITH A CRIMINAL VIOLATION OF THIS CHAPTER. THE CHIEF ENFORCEMENT COUN-
SEL MAY REPRESENT, AND SHALL RECEIVE, THE ASSISTANCE OF THE STATE POLICE
IN ANY INVESTIGATION HE OR SHE SHALL CONDUCT. IN SUCH CASE, SUCH CHIEF
ENFORCEMENT COUNSEL OR HIS OR HER ASSISTANT SO ATTENDING MAY EXERCISE
ALL THE POWERS AND PERFORM ALL THE DUTIES IN RESPECT OF SUCH ACTIONS OR
PROCEEDINGS WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE BE AUTHORIZED OR
REQUIRED TO EXERCISE OR PERFORM.
7. (A) IF THE CHIEF ENFORCEMENT COUNSEL DETERMINES THAT SUBSTANTIAL
REASON EXISTS TO BELIEVE THAT A PERSON, ACTING AS OR ON BEHALF OF A
CANDIDATE OR POLITICAL COMMITTEE UNDER CIRCUMSTANCES EVINCING AN INTENT
TO VIOLATE SUCH LAW THAT DOES NOT OTHERWISE WARRANT CRIMINAL PROSE-
CUTION, HAS UNLAWFULLY ACCEPTED A CONTRIBUTION IN EXCESS OF A CONTRIB-
UTION LIMITATION ESTABLISHED IN ARTICLE FOURTEEN OF THIS CHAPTER OR HAS
UNLAWFULLY VIOLATED ANY PROVISION OF THIS CHAPTER, THE CHIEF ENFORCEMENT
COUNSEL SHALL SELECT A HEARING OFFICER, FROM A LIST OF PROSPECTIVE HEAR-
ING OFFICERS EACH APPROVED BY A TWO-THIRDS MAJORITY VOTE OF THE BOARD,
TO WHOM HE OR SHALL SHALL PROVIDE A WRITTEN REPORT AS TO: (1) WHETHER
SUBSTANTIAL REASON EXISTS TO BELIEVE A VIOLATION OF THIS CHAPTER HAS
OCCURRED AND, IF SO, THE NATURE OF THE VIOLATION AND ANY APPLICABLE
PENALTY, BASED ON THE NATURE OF THE VIOLATION; (2) WHETHER THE MATTER
SHOULD BE RESOLVED EXTRA-JUDICIALLY; AND (3) WHETHER A SPECIAL PROCEED-
ING SHOULD BE COMMENCED IN THE SUPREME COURT TO RECOVER A CIVIL PENALTY.
THE HEARING OFFICER SHALL MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW
BASED ON A PREPONDERANCE OF THE EVIDENCE AS TO WHETHER A VIOLATION HAS
BEEN ESTABLISHED AND WHO IS GUILTY OF SUCH VIOLATION ON NOTICE TO AND
WITH AN OPPORTUNITY FOR THE INDIVIDUAL OR ENTITY ACCUSED OF ANY
VIOLATIONS TO BE HEARD. THE CHIEF ENFORCEMENT COUNSEL SHALL ADOPT SUCH
REPORT AND COMMENCE A SPECIAL PROCEEDING IN THE SUPREME COURT PURSUANT
TO SECTIONS 16-100, 16-114 AND 16-116 OF THIS CHAPTER SHOULD THE FIND-
INGS OF FACT AND CONCLUSIONS OF LAW SUPPORT THE COMMENCEMENT OF SUCH
PROCEEDING. IF THE BOARD OF ELECTIONS FAILS TO PRODUCE A LIST OF ELIGI-
BLE HEARING OFFICERS, THE CHIEF ENFORCEMENT COUNSEL MAY COMMENCE A
SPECIAL PROCEEDING AS PROVIDED HEREIN IN ACCORDANCE WITH RECOMMENDATIONS
MADE IN HIS OR HER REPORT.
(B) IF THE CHIEF ENFORCEMENT COUNSEL DETERMINES, THAT REASONABLE CAUSE
EXISTS TO BELIEVE A VIOLATION WARRANTING CRIMINAL PROSECUTION HAS TAKEN
PLACE, THE CHIEF ENFORCEMENT COUNSEL SHALL COMMENCE A CRIMINAL ACTION OR
REFER SUCH MATTER TO THE ATTORNEY GENERAL OR DISTRICT ATTORNEY WITH
JURISDICTION OVER SUCH MATTER TO COMMENCE A CRIMINAL ACTION AS SUCH TERM
IS DEFINED IN THE CRIMINAL PROCEDURE LAW.
8. UPON NOTIFICATION THAT A SPECIAL PROCEEDING HAS BEEN COMMENCED BY A
PARTY OTHER THAN THE STATE BOARD OF ELECTIONS, PURSUANT TO SECTION
16-114 OF THIS CHAPTER, THE CHIEF ENFORCEMENT COUNSEL SHALL INVESTIGATE
THE ALLEGED VIOLATIONS UNLESS OTHERWISE DIRECTED BY THE COURT.
9. THE CHIEF ENFORCEMENT COUNSEL SHALL PREPARE A REPORT, TO BE
INCLUDED IN THE ANNUAL REPORT TO THE GOVERNOR, THE STATE BOARD OF
ELECTIONS AND LEGISLATURE, SUMMARIZING THE ACTIVITIES OF THE UNIT DURING
THE PREVIOUS YEAR.
10. The state board of elections may promulgate rules and regulations
consistent with law to effectuate the provisions of this section.
S. 6776 5
S 5. Subdivision 32 of section 1.20 of the criminal procedure law, as
amended by section 4 of part A of chapter 501 of the laws of 2012, is
amended to read as follows:
32. "District attorney" means a district attorney, an assistant
district attorney or a special district attorney, and, where appropri-
ate, the attorney general, an assistant attorney general, a deputy
attorney general, a special deputy attorney general, [or] the special
prosecutor and inspector general for the protection of people with
special needs or his or her assistants when acting pursuant to their
duties in matters arising under article twenty of the executive law, OR
THE CHIEF ENFORCEMENT COUNSEL OF THE STATE BOARD OF ELECTIONS WHEN
ACTING PURSUANT TO HIS OR HER DUTIES IN MATTERS ARISING UNDER THE
ELECTION LAW.
S 6. This act shall take effect on the ninetieth day after it shall
have become a law.