Bill Text: NY A00905 | 2021-2022 | General Assembly | Amended
Bill Title: Creates the office of the correctional ombudsman to achieve transparency, fairness, impartiality and accountability in New York state correctional facilities; relates to reports by coroners; designates investigators of the office of the correctional ombudsman as peace officers; authorizes the attorney general to investigate the alleged commission of any criminal offense committed by an employee of the department of corrections and community supervision in connection with his or her official duties; relates to the confidentiality of certain records; includes the office of the correctional ombudsman records within the definition of public safety agency records; makes related provisions.
Spectrum: Partisan Bill (Democrat 14-0)
Status: (Introduced - Dead) 2022-01-12 - print number 905a [A00905 Detail]
Download: New_York-2021-A00905-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 905--A 2021-2022 Regular Sessions IN ASSEMBLY (Prefiled) January 6, 2021 ___________ Introduced by M. of A. O'DONNELL, WEPRIN, BENEDETTO, ROZIC, LAVINE, CAHILL, ABINANTI, WALKER, REYES, EPSTEIN, GONZALEZ-ROJAS -- Multi- Sponsored by -- M. of A. GLICK, NOLAN, SIMON -- read once and referred to the Committee on Correction -- recommitted to the Commit- tee on Correction in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the correction law, in relation to creating the office of the correctional ombudsman; to amend the county law, in relation to reports by coroners; to amend the criminal procedure law, in relation to designating investigators of the office of the correctional ombuds- man as peace officers; to amend the education law, in relation to the certification of incarcerated individual populations; to amend the executive law, in relation to authorizing the attorney general to investigate the alleged commission of any criminal offense committed by an employee of the department of corrections and community super- vision in connection with his or her official duties; to amend the executive law, in relation to the division of criminal justice services; to amend the mental hygiene law, in relation to clinical records; to amend the public health law, in relation to the confiden- tiality of certain records; to amend the public officers law, in relation to including the office of the correctional ombudsman records within the definition of public safety agency records; and to amend the social services law, in relation to inspection and supervision The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The correction law is amended by adding a new article 3-A 2 to read as follows: 3 ARTICLE 3-A 4 OFFICE OF THE CORRECTIONAL OMBUDSMAN EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04476-02-2A. 905--A 2 1 Section 50. Definitions. 2 51. Office of the correctional ombudsman; organization. 3 52. Correctional oversight board. 4 53. Powers of the ombudsman. 5 54. Additional functions, powers and duties of the office of the 6 ombudsman. 7 55. Additional duties of the department and local correctional 8 facilities. 9 56. Obstructing an investigation by the correctional ombudsman. 10 § 50. Definitions. For the purposes of this article, the following 11 terms shall have the following meanings: 12 1. "Office" refers to the office of the correctional ombudsman. 13 2. "Ombudsman" refers to the commissioner of the office of the correc- 14 tional ombudsman. 15 § 51. Office of the correctional ombudsman; organization. In order to 16 achieve transparency, fairness, impartiality and accountability in our 17 state and local correctional facilities, there shall be an independent 18 office of the correctional ombudsman within the executive department. 19 The ombudsman shall report to the correctional oversight board estab- 20 lished pursuant to section fifty-two of this article, provided, however, 21 that administrative matters of general application within the executive 22 department shall be also applicable to the office. 23 1. Following the initial appointment of the members of the correction- 24 al oversight board established pursuant to section fifty-two of this 25 article, such board shall promptly nominate a full-time ombudsman and 26 notify the governor of such nomination. Nothing in this subdivision 27 shall prohibit the board from appointing an interim ombudsman if there 28 is a vacancy. 29 2. The governor, within thirty days after receiving written notice of 30 any nomination of an ombudsman made pursuant to subdivision one of this 31 section, may approve or disapprove such nomination. If the governor 32 approves such nomination, or fails to act on such nomination within such 33 thirty day period, the nominee shall thereupon commence his or her term 34 as ombudsman. If, within such thirty day period, the governor serves 35 upon the chair of such board a written notice disapproving such nomi- 36 nation, the nominee shall not be authorized to serve as ombudsman 37 provided, however, that such board may authorize an interim ombudsman 38 appointed pursuant to subdivision one of this section to serve or 39 continue to serve as interim ombudsman until such time as an ombudsman 40 is approved, or not timely disapproved, by the governor. Following any 41 disapproval, the board shall have sixty days to submit another nominee, 42 although such period may be extended, upon request of the board, by the 43 governor. A person appointed as interim ombudsman may exercise all of 44 the powers available to the ombudsman. 45 3. The ombudsman may not have worked for the department or for any 46 local correctional facility within the last ten years and may not hold 47 any public office or other employment. The ombudsman shall serve a six- 48 year term and may only be removed for good cause shown, after notice and 49 an opportunity to be heard, by a vote of two-thirds or more of the 50 twelve members of the board. 51 § 52. Correctional oversight board. 1. There is hereby created the 52 correctional oversight board hereinafter referred to in this section as 53 the "board". The purpose of such board shall be to monitor, study and 54 make efforts to improve the transparency, fairness, impartiality and 55 accountability in state and local correctional facilities and to appoint 56 the ombudsman. No current employee of the department or an employee ofA. 905--A 3 1 any local correctional facility shall be appointed to or serve on such 2 board. The board shall consist of twelve members who shall be appointed 3 as follows: 4 (a) one shall be the state inspector general; 5 (b) two shall be appointed by the governor on the recommendation of 6 the senate; 7 (c) two shall be appointed by the governor on the recommendation of 8 the assembly; 9 (d) two shall be appointed by the governor from a list of at least six 10 nominees submitted by non-profit agencies working in the fields of 11 re-entry or prisoner advocacy; 12 (e) one shall be appointed by the governor and shall be a former state 13 incarcerated individual; 14 (f) one shall be appointed by the governor and shall be a former 15 employee of the department who is no longer in state service; 16 (g) one shall be an attorney appointed by the governor from a list of 17 at least four nominees submitted by the state bar association; 18 (h) one shall be a medical professional appointed by the governor; and 19 (i) one shall be a mental health professional who works with the 20 justice center for the protection of people with special needs appointed 21 by the governor. 22 2. All members of the board shall be appointed for terms of three 23 years with such terms to commence on August first, and expire July thir- 24 ty-first, provided, however, that the inspector general shall serve ex 25 officio. Initial appointments must be made within sixty days of the 26 effective date of this subdivision. Any member chosen to fill a vacancy 27 created otherwise than by expiration of term shall be appointed for the 28 unexpired term of the member whom he or she is to succeed. Vacancies 29 caused by expiration of a term or otherwise shall be filled promptly and 30 in the same manner as original appointments. Any member may be reap- 31 pointed for additional terms. A member of the board shall continue in 32 such position upon the expiration of his or her term until such time as 33 he or she is reappointed or his or her successor is appointed, as the 34 case may be. 35 3. Membership on the board shall not constitute the holding of an 36 office, and members of the board shall not be required to take and file 37 oaths of office before serving on the board. The board shall not have 38 the right to exercise any portion of the sovereign power of the state. 39 4. The board shall meet at least two times in each year. The first 40 meeting of the board shall be held within thirty days of the appointment 41 of the full board or within sixty days after the effective date of this 42 subdivision, whichever occurs earlier. Special meetings may be called by 43 the chair and shall be called by the chair upon the request of at least 44 five members of the board. The board may establish its own procedures 45 with respect to the conduct of its meetings and other affairs; provided, 46 however, that the quorum and majority provisions of section forty-one of 47 the general construction law shall govern all actions taken by the 48 board. 49 5. The members of the board shall receive no compensation for their 50 services but shall be allowed their actual and necessary expenses 51 incurred in the performance of their functions hereunder. 52 6. No member of the board shall be disqualified from holding any 53 public office or employment outside of the department, nor shall he or 54 she forfeit any such office or employment, by reason of his or her 55 appointment pursuant to this section, notwithstanding the provisions of 56 any other general, special or local law, ordinance or city charter.A. 905--A 4 1 7. The board shall make recommendations to the ombudsman for the 2 improvement of the department's policies and consult with and advise the 3 office of the correctional ombudsman in carrying out the duties and 4 responsibilities of such office. The ombudsman shall report to the 5 board fully on the activities of the office and shall seek board 6 approval on all major decisions or policy changes, including any stand- 7 ards or protocols adopted by the ombudsman for the inspection and moni- 8 toring of correctional facilities or the resolution of complaints 9 received by the office. 10 8. Each member of the board shall tour a state correctional facility 11 with the ombudsman at least annually. 12 § 53. Powers of the ombudsman. 1. The ombudsman shall have the 13 authority to hire and retain counsel to provide confidential advice or 14 to represent the ombudsman if the attorney general has a conflict in 15 representing the ombudsman in any litigation. 16 2. The office of the ombudsman shall not be located in the same build- 17 ing or buildings as the department but shall be wholly independent of 18 the department except that the department shall provide it with office 19 space, equipment and furnishings within any department facility as need- 20 ed to carry out its functions and duties. 21 3. The ombudsman may appoint such assistants, officers, investigators, 22 monitors, employees and consultants as he or she shall determine neces- 23 sary, prescribe their duties and powers, provide them with appropriate 24 training, fix their compensation and provide for reimbursement of their 25 expenses within the amounts appropriated therefor except that the 26 ombudsman shall not hire any person known to be directly or indirectly 27 involved in an open internal affairs investigation conducted by any 28 federal, state or local agency or who is a named defendant in a pending 29 federal or state lawsuit or criminal proceeding relating to his or her 30 prior work for a state, local or federal correctional or law enforcement 31 agency. The ombudsman may appoint a representative to carry out any of 32 his or her duties under this article except that the ombudsman must 33 attend meetings with the correctional oversight board. 34 4. The ombudsman may create, abolish, transfer and consolidate bureaus 35 and other units within the office as he or she may determine necessary 36 for the efficient operation of the office, subject to the approval of 37 the director of the budget. 38 5. The ombudsman may request and shall receive from any department, 39 division, bureau, commission or any other agency of the state or any 40 municipality or political subdivision thereof or any public authority 41 such assistance, information and data as will enable the office to carry 42 out its functions, powers and duties. 43 6. The ombudsman shall be responsible for the contemporaneous public 44 oversight of internal affairs and the disciplinary process of the 45 department of corrections and community supervision. The ombudsman 46 shall have discretion to provide oversight of any department investi- 47 gation relating to the well-being, treatment, discipline, safety or any 48 other matter concerning incarcerated individuals or persons under commu- 49 nity supervision as needed, including personnel investigations. 50 7. The ombudsman may review specific policies, practices, programs and 51 procedures of the department and of all local correctional facilities 52 that raise a significant correctional issue relevant to the well-being, 53 treatment, discipline, safety, rehabilitation or any other matter 54 concerning incarcerated individuals or persons under community super- 55 vision. The ombudsman is authorized to inspect, investigate or examine 56 all aspects of the department's operations and conditions, and of suchA. 905--A 5 1 operations and conditions of any local correctional facility, including, 2 but not limited to, staff recruitment, training, supervision, disci- 3 pline, incarcerated individuals deaths, medical and mental health care, 4 use of force, incarcerated individual violence, conditions of confine- 5 ment, incarcerated individuals disciplinary process, incarcerated indi- 6 viduals grievance process, substance-abuse treatment, educational, voca- 7 tional and other programming and re-entry planning. During the course of 8 a review the ombudsman shall identify areas of full and partial compli- 9 ance or noncompliance with departmental or local correctional facility 10 policies and procedures, specify deficiencies in the completion and 11 documentation of processes and recommend corrective actions, including, 12 but not limited to, additional training, additional policies or changes 13 in policies, as well as any other findings or recommendations he or she 14 deems appropriate. 15 8. The ombudsman may place such members of his or her staff as he or 16 she deems appropriate as monitors in any correctional facility which, in 17 the judgment of the ombudsman, presents an imminent danger to the 18 health, safety or security of incarcerated individuals or employees of 19 such correctional facility or the public. 20 9. The ombudsman shall accept, with the approval of the governor, as 21 agent of the state any grant, including federal grants, or any gift for 22 any of the purposes of this article. Any moneys so received may be 23 expended by the ombudsman to effectuate any purpose of this article, 24 subject to the same limitations as to approval of expenditures and audit 25 as are prescribed for state moneys appropriated for the purposes of this 26 article. 27 10. The ombudsman may enter into contracts with any person, firm, 28 corporation, municipality, or governmental agency. 29 11. The ombudsman shall adopt, amend or rescind such rules and regu- 30 lations, in accordance with applicable state law, as may be necessary or 31 convenient to the performance of the functions, powers and duties of the 32 office. 33 12. The ombudsman shall do all other things necessary or convenient to 34 carry out its functions, powers and duties expressly set forth in this 35 article. 36 13. When exigent circumstances of unsafe or life threatening situ- 37 ations arise involving incarcerated individuals, staff, people on commu- 38 nity supervision or other individuals, the ombudsman shall notify the 39 governor, the temporary president of the senate and the speaker of the 40 assembly and commence an immediate review of such circumstances. Upon 41 completion of a review, the ombudsman shall prepare a complete written 42 report which shall be disclosed with the underlying materials that the 43 ombudsman deems appropriate to the commissioner, the requesting entity 44 and any appropriate law enforcement agency. 45 14. (a) The ombudsman shall interview and review all candidates for 46 appointment to serve as the superintendent of any state correctional 47 facility. The commissioner shall submit the names of such candidates to 48 the ombudsman who shall review such candidates' qualifications and 49 employ confidential procedures to evaluate the qualifications of each 50 candidate with regard to his or her ability to discharge the duties of 51 the office to which he or she is being appointed. Within ninety days of 52 the submission of a candidate's name, the ombudsman shall confidentially 53 advise the commissioner as to whether such candidate is well-qualified, 54 qualified or not qualified and the reasons therefor and may report, in 55 confidence, any other information that the ombudsman deems pertinent to 56 the qualification of the candidate. The ombudsman shall establish andA. 905--A 6 1 adopt rules and procedures regarding the review of candidates for the 2 position of superintendent and for maintaining the confidentiality of 3 any interviews, documents or other information relied upon in his or her 4 review. All such information shall be privileged and not subject to 5 disclosure. 6 (b) If the commissioner appoints a superintendent who the ombudsman 7 found was not qualified, the ombudsman shall make public that finding 8 after due notice to the appointee. Any candidate found to be not quali- 9 fied by the ombudsman shall have the right to withdraw from consider- 10 ation before the ombudsman makes such public finding and in that case 11 the finding shall not be published. Such notice and public finding 12 shall not constitute a waiver of privilege or breach of confidentiality 13 concerning the ombudsman's review of the appointee's qualifications 14 pursuant to this section. 15 15. Notwithstanding any law to the contrary, the ombudsman shall 16 periodically, but not less than every three years, conduct inspections 17 of each state and local correctional facility and shall periodically 18 review delivery of medical and mental health care at each correctional 19 facility. The ombudsman shall issue a public report on each correction- 20 al facility at least every three years. The ombudsman need not notify 21 the department or any local correctional facility before commencing such 22 inspection or review. 23 16. All records, correspondence, videotapes, audiotapes, photographs, 24 notes, electronic communications, books, memoranda, papers or other 25 documents or objects used as evidence to support a completed review or 26 investigation must be retained for three years after a report is issued 27 unless handed over to a law enforcement agency for criminal investi- 28 gation. No such documents or evidence shall be destroyed pending the 29 completion of an investigation or review. Such documents or evidence 30 shall be publicly available unless confidential and not subject to 31 disclosure under the freedom of information law or by court order. 32 17. Notwithstanding any other provision of the law the ombudsman shall 33 have complete access and authority to examine and reproduce any and all 34 past and current books, accounts, reports, medical and mental health 35 records, vouchers, correspondence files, computer files, computer data 36 bases, documents, video and audio tape recordings, statistics and 37 performance based outcome measures and any and all other past and 38 current records and to examine the bank accounts, money or property of 39 the department and of any local correctional facility. Any state office 40 or agency of a political subdivision of the state or other public entity 41 or employee or officer thereof possessing such records or property shall 42 permit access to, and examination and reproduction thereof, consistent 43 with the provisions of this article, upon the request of the ombudsman 44 or his or her designee. Access, examination and reproduction consistent 45 with the provision of this section shall not result in the waiver of any 46 confidentiality or privilege regarding any records or property. 47 18. The ombudsman may require any state, county or municipal employee 48 to be interviewed on a confidential basis. Such employee must comply 49 with the request to be interviewed and must be given time off from his 50 or her employment for the purposes of attending such an interview and 51 may be accompanied by counsel acting on his or her behalf. The ombudsman 52 may also conduct a confidential interview of any incarcerated individual 53 or other person upon consent. 54 19. The ombudsman may enter anywhere on the grounds of any department 55 facility or office or local correctional facility for the purposes ofA. 905--A 7 1 observation, inspection and investigation and shall have unfettered 2 access to all areas of the department and any facility at any time. 3 20. The ombudsman may cause the body of a deceased incarcerated indi- 4 vidual to undergo such examinations, including an autopsy, as he or she 5 deems necessary to determine the cause of death, irrespective of whether 6 any such examination or autopsy shall have been previously performed. 7 21. (a) In the exercise of its functions, powers and duties, the 8 ombudsman and any attorney employed by the office is authorized to issue 9 and enforce a subpoena and a subpoena duces tecum, administer oaths and 10 examine persons under oath, in accordance with and pursuant to the civil 11 practice law and rules. A person examined under oath pursuant to this 12 subdivision shall have the right to be accompanied by counsel who shall 13 advise the person of his or her rights subject to reasonable limitations 14 to prevent obstruction of, or interference with, the orderly conduct of 15 the examination. Notwithstanding any other provision of law, a subpoena 16 may be issued and enforced pursuant to this subdivision for the medical 17 records of an incarcerated individual of a correctional facility, 18 regardless of whether such medical records were made during the course 19 of the incarcerated individual's incarceration. 20 (b) In any case where a person in charge or control of a correctional 21 facility or an officer or employee thereof shall fail to comply with the 22 provisions of paragraph (a) of this subdivision, or in any case where a 23 coroner, coroner's physician or medical examiner shall fail to comply 24 with the provisions of subdivision six of section six hundred seventy- 25 seven of the county law, the ombudsman may apply to the supreme court 26 for an order directed to such person requiring compliance therewith. 27 Upon such application the court may issue such order as may be just and 28 a failure to comply with the order of the court shall be a contempt of 29 court and punishable as such. 30 22. The ombudsman shall not be compelled to testify or release records 31 without a court order that are otherwise exempt from public disclosure, 32 including documents pertaining to any investigation that has not been 33 completed or any identifying information, personal papers or correspond- 34 ence with any person who has requested assistance from the office unless 35 that person consents in writing to the release of such information, 36 papers or correspondence. 37 23. The ombudsman may hold public hearings. 38 § 54. Additional functions, powers and duties of the office of the 39 ombudsman. 1. The office may receive communications from any individual 40 who believes he or she may have information that may describe improper 41 governmental activities or wrongdoing within the department or any state 42 or local correctional facility. Incarcerated individual mail to and from 43 the ombudsman shall be treated in the same manner as legal mail and may 44 not be restricted by the department, the office of mental health or any 45 other entity. 46 (a) The ombudsman shall establish a toll-free telephone number for the 47 purpose of identifying any alleged wrongdoing by an employee of the 48 department or of any local correctional facility. This telephone number 49 shall be posted by the department and by local correctional facilities 50 in clear view of employees, incarcerated individuals and the public, and 51 incarcerated individuals shall be permitted to call such number during 52 normal hours for telephone usage or within twenty-four hours of admis- 53 sion to a special housing unit or other unit with restricted telephone 54 access. Telephone calls made to such toll-free number from a correction- 55 al facility shall not be recorded by the department or by the local 56 correctional facility and are protected confidential communications. TheA. 905--A 8 1 ombudsman shall also maintain a website with a complaint form that may 2 be filled out online and shall also accept complaints by mail or other 3 means alleging wrongdoing by an employee of the department. When 4 requested, the ombudsman shall initiate a review of any such alleged 5 wrongdoing which may result in an investigation of the alleged wrongdo- 6 ing at the ombudsman's discretion. 7 (b) At the conclusion of an investigation of a complaint, the ombuds- 8 man shall report his or her findings to the complainant and any person 9 designated to receive such findings by the complainant. If the ombudsman 10 does not investigate a complaint, he or she shall notify the complainant 11 and such other person of the decision not to investigate and the reasons 12 for the decision. If the complainant is deceased at the time of the 13 completion of an investigation, the ombudsman shall report his or her 14 findings to the complainant's next of kin when such person is known to 15 the ombudsman or to the department or local correctional facility. 16 (c) The ombudsman may act informally to resolve a complaint including 17 providing referrals or information to complainants, expediting individ- 18 ual matters, mediating or providing other assistance. 19 (d) All identifying information and any personal records or corre- 20 spondence from any person who initiated the review of such alleged 21 wrongdoing shall be confidential unless the person consents to disclo- 22 sure in writing. 23 (e) Where the ombudsman believes that an allegation of criminal 24 misconduct has been made by a complainant, he or she shall report such 25 allegation to the appropriate law enforcement agency. 26 2. Upon receiving a complaint of retaliation for complaining to or 27 cooperating with the ombudsman, the ombudsman shall commence an inquiry 28 into the complaint and conduct a formal investigation. Should the 29 ombudsman find that a complaint of retaliation is founded as a result of 30 an investigation, he or she shall so notify the department or local 31 correctional facility and make recommendations for corrective action to 32 be taken by the department or local correctional facility. The ombudsman 33 shall make the results and supporting evidence of its formal investi- 34 gation available to the division of human rights should an employee file 35 a retaliation complaint with such agency and consent to such disclosure 36 in writing. 37 3. To facilitate oversight, the office shall be immediately notified 38 by the department or local correctional facility of all unusual and 39 significant incidences including, but not limited to, riots or fights 40 involving multiple combatants, use of force, incarcerated individuals 41 deaths, serious physical assaults on employees or incarcerated individ- 42 uals, work stoppages and escapes and shall be given monthly aggregated 43 reports of unusual incidents and incarcerated individuals grievances by 44 the department and each local correctional facility. Employees of the 45 office shall be permitted to be present in any department internal 46 investigation or inquiry in any correctional facility. The office shall 47 be responsible for reporting such unusual and significant incidents and 48 the outcome of its investigations into such incidents to the public no 49 less than quarterly. 50 4. (a) The ombudsman shall annually prepare a public report and summa- 51 ry of all investigations and reviews, including a list of significant 52 problems discovered by the office, whether or not the recommendations 53 made by the office have been implemented, and a list of the office's 54 high priorities for the following year. The ombudsman shall submit such 55 report to the governor, the temporary president of the senate, and the 56 speaker of the assembly by December thirty-first of each year. SuchA. 905--A 9 1 report shall be posted in electronic form on the office's public 2 website. The ombudsman shall be authorized to redact portions of such 3 report in a manner consistent with article six of the public officers 4 law or where disclosure is otherwise prohibited by law. 5 (b) Upon review of the cause of death and circumstances surrounding 6 the death of any incarcerated individual in a correctional facility, the 7 ombudsman shall submit its report thereon to the governor, the speaker 8 of the assembly, the temporary president of the senate, the chairperson 9 of the assembly correction committee, the chairperson of the senate 10 crime and correction committee, and the commissioner, and, where appro- 11 priate, make recommendations to prevent the recurrence of such deaths. 12 Such reports shall be published on the office's website and shall other- 13 wise be made available to the public. 14 (c) The ombudsman shall make an annual report to the governor, the 15 speaker of the assembly, the temporary president of the senate, the 16 chairperson of the assembly correction committee and the chairperson of 17 the senate crime and correction committee on the condition of systems 18 for the delivery of medical care to incarcerated individuals of correc- 19 tional facilities and, where appropriate, recommend such changes as it 20 shall deem necessary and proper to improve the quality and availability 21 of such medical care. Such report shall be published on the office's 22 website and shall otherwise be made available to the public. 23 (d) All public reports by the ombudsman shall not disclose information 24 where prohibited by law. 25 § 55. Additional duties of the department and local correctional 26 facilities. 1. State, county, or municipal employees operating within a 27 correctional facility must cooperate fully and promptly with the ombuds- 28 man. 29 2. The department or local correctional facility shall respond in 30 writing to any recommendations made by the ombudsman or his or her 31 designee within forty-five days and shall state with specificity its 32 reasons for failing to act on any such recommendation. Such writings 33 shall be made public by the ombudsman except that information which 34 would reveal confidential material that may not be released pursuant to 35 federal or state law shall be reacted by the ombudsman from any such 36 report or recommendation. 37 3. The commissioner or any sheriff shall immediately report to the 38 ombudsman the death of an incarcerated individual of any such facility 39 in such manner and form as the ombudsman shall prescribe and shall 40 provide him or her with an autopsy report when available. 41 § 56. Obstructing an investigation by the correctional ombudsman. A 42 person is guilty of obstructing an investigation by the correctional 43 ombudsman when, with intent to obstruct or impede an inquiry or investi- 44 gation by the correctional ombudsman appointed pursuant to section 45 fifty-three or fifty-four of this article, he or she knowingly destroys 46 or knowingly fails to permit access to, examination of, or reproduction 47 by the office of such correctional ombudsman, of any book, account, bank 48 account information, report, voucher, correspondence or correspondence 49 file, computer file, computer data base, document, video or audio 50 recording, statistic or performance based outcome measure, money, prop- 51 erty or any other record of the department of corrections and community 52 supervision or of any local correctional facility lawfully requested by 53 such correctional ombudsman. Obstructing an investigation by the 54 correctional ombudsman is a class A misdemeanor. 55 § 2. Section 2 of the correction law is amended by adding two new 56 subdivisions 35 and 36 to read as follows:A. 905--A 10 1 35. "Office" means the office of the correctional ombudsman. 2 36. "Ombudsman" means the commissioner of the office of the correc- 3 tional ombudsman. 4 § 3. Section 47 of the correction law, as amended by chapter 322 of 5 the laws of 2021, is amended to read as follows: 6 § 47. Functions, powers and duties of the board. 1. The board shall 7 have the following functions, powers and duties: 8 (a) Investigate and review the cause and circumstances surrounding the 9 death of any incarcerated individual of a local correctional facility. 10 (b) Visit and inspect any local correctional facility wherein an 11 incarcerated individual has died. 12 (c) Cause the body of the deceased to undergo such examinations, 13 including an autopsy, as in the opinion of the board, are necessary to 14 determine the cause of death, irrespective of whether any such examina- 15 tion or autopsy shall have previously been performed. 16 (d) Upon review of the cause of death and circumstances surrounding 17 the death of any incarcerated individual in a local correction facility, 18 the board shall submit its report thereon to the commission [and to], 19 the governor, the [chairman] speaker of the assembly and the temporary 20 president of the senate, the chairperson of the assembly committee on 21 correction and the [chairman] chairperson of the senate committee on 22 crime victims, crime and correction and, where appropriate, make recom- 23 mendations to prevent the recurrence of such deaths to the commission 24 and the administrator of the appropriate correctional facility. The 25 report provided to the governor, the [chairman] speaker of the assembly 26 and the temporary president of the senate, the chairperson of the assem- 27 bly committee on correction and the [chairman] chairperson of the senate 28 committee on crime victims, crime and correction shall not be redacted 29 except as otherwise required to protect confidential medical records and 30 behavioral health records in accordance with state and federal laws, 31 rules, and regulations. 32 (e) (i) Investigate and report to the commission on the condition of 33 systems for the delivery of medical care to incarcerated individuals of 34 local correctional facilities and where appropriate recommend such 35 changes as it shall deem necessary and proper to improve the quality and 36 availability of such medical care. 37 (ii) The board shall be responsive to inquiries from the next of kin 38 and other person designated as a representative of any incarcerated 39 individual whose death takes place during custody in a state correction- 40 al facility regarding the circumstances surrounding the death of such 41 incarcerated individual. Contact information for the next of kin and 42 designated representative shall be provided by the department to the 43 board from the emergency contact information previously provided by the 44 incarcerated individual to the department. 45 2. Every administrator of a local correctional facility shall imme- 46 diately report to the board the death of an incarcerated individual of 47 any such facility in such manner and form as the board shall prescribe, 48 together with an autopsy report. 49 § 4. Section 89-a of the correction law, as amended by chapter 409 of 50 the laws of 1991, subdivision 1 as amended by chapter 322 of the laws of 51 2021, is amended to read as follows: 52 § 89-a. [1.] Management of alternate correctional facilities. 1. 53 Superintendence, management and control of alternate correctional facil- 54 ities and the eligible incarcerated individuals housed therein shall be 55 as directed by the commissioner consistent with the following: an 56 alternate correctional facility shall be operated pursuant to rules andA. 905--A 11 1 regulations promulgated for such facilities by the commissioner in 2 consultation with the [state commission of correction] office of the 3 correctional ombudsman and the provisions of the operation agreement. 4 The commissioner shall operate such facility insofar as practicable in 5 the same manner as a general confinement facility which houses medium 6 security state incarcerated individuals. Nothing herein, however, shall 7 preclude the commissioner from enhancing staffing or programming to 8 accommodate the particular needs of eligible incarcerated individuals 9 pursuant to the operation agreement. No incarcerated individual shall be 10 housed in any alternate correctional facility until such facility has 11 been established in accordance with the provisions of section eighty- 12 nine of this article. The population in an alternate correctional facil- 13 ity shall not exceed its design capacity of approximately seven hundred 14 eligible incarcerated individuals except pursuant to variances permitted 15 by law, rule or regulation or court order. 16 2. Notwithstanding any other provisions of law, no variance authoriz- 17 ing an alternate correctional facility to exceed its design capacity 18 shall be granted after March fifteenth, nineteen hundred ninety-two 19 unless the mayor of the city of New York submits, together with the 20 variance request, a certificate of emergency demonstrating the need for 21 such variance and that reasonable alternatives to the granting of the 22 variance do not exist, and containing a detailed summary of measures 23 that will be taken to restore compliance with such design capacity. The 24 [chairman of the state commission of correction] commissioner of the 25 office of the correctional ombudsman shall transmit, in a timely manner, 26 notice of such request to the chairmen of the senate crime and 27 correction committee and the assembly correction committee. 28 § 5. Subdivision 1 of section 89-e of the correction law, as amended 29 by section 47 of part A of chapter 56 of the laws of 2010, is amended to 30 read as follows: 31 1. The alternate correctional facility review panel is hereby estab- 32 lished and shall consist of the commissioner, [the chairman of the state33commission of correction] the commissioner of the office of the correc- 34 tional ombudsman, the chairman of the board of parole, the director of 35 the office of probation and correctional alternatives, the commissioner 36 of correction of the city of New York, the president of the New York 37 State Sheriffs' Association Institute, Inc., and the president of the 38 Correctional Association of New York or their designees. The governor 39 shall appoint a chairman and vice-chairman from among the members. 40 § 6 Section 89-f of the correction law, as added by chapter 549 of the 41 laws of 1987, is amended to read as follows: 42 § 89-f. Oversight. The [state commission of correction] office of the 43 correctional ombudsman shall exercise the same powers and duties 44 concerning each alternate correctional facility as the [commission] 45 office is required to exercise concerning a New York state correctional 46 facility. The [commission] office shall prepare an annual report on each 47 alternate correctional facility which shall evaluate and assess the 48 department's compliance with all rules and regulations applicable to 49 that facility and the operation agreement and which shall include an 50 analysis of the frequency and severity of all unusual incidents and 51 assaults occurring in that facility. The annual reports shall be filed 52 with the governor, the mayor of the city of New York, the chairman of 53 the senate crime and correction committee, and the chairman of the 54 assembly committee on correction no later than the first day of June of 55 each year.A. 905--A 12 1 § 7. Subdivision 1 of section 112 of the correction law, as amended by 2 chapter 322 of the laws of 2021, is amended to read as follows: 3 1. The commissioner of corrections and community supervision shall 4 have the superintendence, management and control of the correctional 5 facilities in the department and of the incarcerated individuals 6 confined therein, and of all matters relating to the government, disci- 7 pline, policing, contracts and fiscal concerns thereof. He or she shall 8 have the power and it shall be his or her duty to inquire into all 9 matters connected with said correctional facilities and to report any 10 allegations of corruption, fraud, criminal activity, conflicts of inter- 11 est or abuse to the office of the correctional ombudsman for investi- 12 gation, as well as report to such office on other correctional issues, 13 including, but not limited to, staff recruitment, training, supervision, 14 discipline, incarcerated individual deaths, medical and mental health 15 care, use of force, incarcerated individual violence, conditions of 16 confinement, incarcerated individual disciplinary process, incarcerated 17 individual grievance process, substance-abuse treatment, educational, 18 vocational and other programming and re-entry planning. He or she shall 19 make such rules and regulations, not in conflict with the statutes of 20 this state, for the government of the officers and other employees of 21 the department assigned to said facilities, and in regard to the duties 22 to be performed by them, and for the government and discipline of each 23 correctional facility, as he or she may deem proper, and shall cause 24 such rules and regulations to be recorded by the superintendent of the 25 facility, and a copy thereof to be furnished to each employee assigned 26 to the facility. He or she shall also prescribe a system of accounts and 27 records to be kept at each correctional facility, which system shall be 28 uniform at all of said facilities, and he or she shall also make rules 29 and regulations for a record of photographs and other means of identify- 30 ing each incarcerated individual received into said facilities. He or 31 she shall appoint and remove, subject to the civil service law, subordi- 32 nate officers and other employees of the department who are assigned to 33 correctional facilities. 34 § 8. Subdivision 1 of section 146 of the correction law, as amended by 35 chapter 274 of the laws of 2019, is amended to read as follows: 36 1. The following persons shall be authorized to visit at pleasure all 37 correctional facilities: The governor and lieutenant-governor, commis- 38 sioner of general services, secretary of state, comptroller and attor- 39 ney-general, members of the commission of correction, any employee of, 40 or person under contract to, the office of the correctional ombudsman, 41 members of the correctional oversight board, members of the legislature 42 and their accompanying staff and any employee of the department as 43 requested by the member of the legislature if the member requests to be 44 so accompanied, provided that such request does not impact upon the 45 department's ability to supervise, manage and control its facilities as 46 determined by the commissioner, judges of the court of appeals, supreme 47 court and county judges, district attorneys and every clergyman or 48 minister, as such terms are defined in section two of the religious 49 corporations law, having charge of a congregation in the county wherein 50 any such facility is situated. No other person not otherwise authorized 51 by law shall be permitted to enter a correctional facility except by 52 authority of the commissioner of correction under such regulations as 53 the commissioner shall prescribe. 54 § 9. The closing paragraph of section 853 of the correction law, as 55 added by chapter 757 of the laws of 1981, is amended to read as follows:A. 905--A 13 1 The department shall also forward to the [state commission of2correction] office of the correctional ombudsman quarterly reports 3 including, but not limited to, the information identified in subdivi- 4 sions (a), (b), (d), (e), (f) and (g) of this section and such other 5 information requested by the [commission] office or available to the 6 department with respect to such programs. 7 § 10. Section 854 of the correction law, as added by chapter 691 of 8 the laws of 1977, is amended to read as follows: 9 § 854. Evaluation and recommendation. In recognition of the need for 10 an independent evaluation of, and recommendations with respect to, 11 temporary release, the [commission of correction] office of the correc- 12 tional ombudsman shall evaluate and assess the administration and opera- 13 tion of all temporary release programs conducted pursuant to this arti- 14 cle and shall submit to the governor and the legislature by March first, 15 [nineteen hundred seventy-eight] two thousand twenty-four, its findings 16 together with any recommendations with respect to the proper operation 17 or the improvement of such temporary release programs. 18 § 11. Section 857 of the correction law, as added by chapter 691 of 19 the laws of 1977, is amended to read as follows: 20 § 857. Complaint and abuse review. Any person may submit to the 21 [commission of correction] office of the correctional ombudsman any 22 complaint he or she may have concerning programmatic abuses. The 23 [commission of correction] office shall evaluate such complaints and, 24 where indicated, conduct any needed investigation. If the [commission] 25 office concludes that a complaint is valid, the [commission] ombudsman 26 shall make recommendations to the department for corrective action. 27 Where the [commission] office believes sufficient evidence exists to 28 support a criminal charge, the [commission] office shall report such 29 evidence to the appropriate law enforcement agencies. 30 § 12. Subdivision 6 of section 677 of the county law, as amended by 31 chapter 322 of the laws of 2021, is amended to read as follows: 32 6. Notwithstanding section six hundred seventy of this article or any 33 other provision of law, the coroner, coroner's physician or medical 34 examiner shall promptly provide the chairman of the correction medical 35 review board or the commissioner of the office of the correctional 36 ombudsman and the commissioner of corrections and community supervision, 37 as appropriate, with copies of any autopsy report, toxicological report 38 or any report of any examination or inquiry prepared with respect to any 39 death occurring to an incarcerated individual of a correctional facility 40 as defined by subdivision three of section forty of the correction law 41 within his or her county; and shall promptly provide the executive 42 director of the justice center for the protection of people with special 43 needs with copies of any autopsy report, toxicology report or any report 44 of any examination or inquiry prepared with respect to the death of any 45 service recipient occurring while he or she was a resident in any facil- 46 ity operated, licensed or certified by any agency within the department 47 of mental hygiene, the office of children and family services, the 48 department of health or the state education department. If the toxico- 49 logical report is prepared pursuant to any agreement or contract with 50 any person, partnership, corporation or governmental agency with the 51 coroner or medical examiner, such report shall be promptly provided to 52 the chairman of the correction medical review board, the commissioner of 53 the office of the correctional ombudsman, the commissioner of 54 corrections and community supervision or the executive director of the 55 justice center for people with special needs, as appropriate, by such 56 person, partnership, corporation or governmental agency.A. 905--A 14 1 § 13. Section 2.10 of the criminal procedure law is amended by adding 2 a new subdivision 86 to read as follows: 3 86. Investigators of the office of the correctional ombudsman. 4 § 14. Subdivision 2 of section 285 of the education law, as amended by 5 chapter 322 of the laws of 2021, is amended to read as follows: 6 2. The commissioner is authorized to expend up to one hundred seven- 7 ty-five thousand dollars annually to provide grants to public library 8 systems operating under an approved plan of service for provision of 9 services to county jail facilities. Such formula grants shall assist the 10 library system in making available to the incarcerated individual popu- 11 lation of such facility or facilities the library resources of such 12 system. Such grants shall be available to each public library system in 13 such manner as to insure that the ratio of the amount each system is 14 eligible to receive equals the ratio of the number of incarcerated indi- 15 viduals served by the county jail facility to the total number of incar- 16 cerated individuals served by county jail facilities in the state as of 17 July first of the year preceding the calendar year in which the state 18 aid to public library systems is to be paid. Incarcerated individual 19 populations shall be certified by the [New York state commission of20correction] office of the correctional ombudsman. The commissioner shall 21 adopt any regulations necessary to carry out the purposes and provisions 22 of this subdivision. 23 § 15. Section 63 of the executive law is amended by adding a new 24 subdivision 18 to read as follows: 25 18. Investigate the alleged commission of any criminal offense or 26 offenses committed by an employee of the department of corrections and 27 community supervision or of any local correctional facility in 28 connection with the performance of his or her official duties, and pros- 29 ecute any such person or persons believed to have committed such crimi- 30 nal offense or offenses in connection with the performance of his or her 31 official duties. The attorney general may only exercise the jurisdiction 32 provided by this subdivision upon a written finding that such jurisdic- 33 tion is necessary because: (a) of a lack of alternative prosecutorial 34 resources to adequately investigate and prosecute such criminal offense 35 or offenses, or (b) the exercise of such jurisdiction is necessary to 36 ensure the confidence of the public in the judicial system. In all such 37 proceedings, the attorney general may appear in person or by his or her 38 deputy or assistant before any court or grand jury and exercise all of 39 the powers and perform all of the duties with respect to such actions or 40 proceedings which the district attorney would otherwise be authorized or 41 required to exercise or perform. 42 § 16. Paragraph (a) of subdivision 1 of section 169 of the executive 43 law, as amended by section 9 of part A of chapter 60 of the laws of 44 2012, is amended to read as follows: 45 (a) commissioner of corrections and community supervision, commission- 46 er of the office of the correctional ombudsman, commissioner of educa- 47 tion, commissioner of health, commissioner of mental health, commission- 48 er of developmental disabilities, commissioner of children and family 49 services, commissioner of temporary and disability assistance, chancel- 50 lor of the state university of New York, commissioner of transportation, 51 commissioner of environmental conservation, superintendent of state 52 police, commissioner of general services, commissioner of the division 53 of homeland security and emergency services and the executive director 54 of the state gaming commission;A. 905--A 15 1 § 17. Subdivision 9 of section 837-a of the executive law, as added by 2 section 4 of part Q of chapter 56 of the laws of 2009, is amended to 3 read as follows: 4 9. In consultation with the state commission of correction, the office 5 of the correctional ombudsman and the municipal police training council, 6 establish and maintain basic and other correctional training programs 7 for such personnel employed by correctional facilities as the commis- 8 sioner shall deem necessary. Such basic correctional training program 9 shall be satisfactorily completed by such personnel prior to their 10 undertaking their duties or within one year following the date of their 11 appointment or at such times as the commissioner may prescribe. 12 Provided, however, the commissioner may, after consultation with the 13 state commission of correction or the office of the correctional ombuds- 14 man, exempt from such requirement personnel employed by any correctional 15 facility which, in the opinion of the commissioner, maintains a basic 16 correctional training program of a standard equal to or higher than that 17 established and maintained by the division; or revoke in whole or in 18 part such exemption, if in his or her opinion the standards of the basic 19 correctional training program maintained by such facility are lower than 20 those established pursuant to this article. 21 § 18. Subdivision (c) of section 33.13 of the mental hygiene law is 22 amended by adding a new paragraph 19 to read as follows: 23 19. to the office of the correctional ombudsman. 24 § 19. Subdivision 1 of section 2782 of the public health law is 25 amended by adding a new paragraph (t) to read as follows: 26 (t) an employee or agent of the office of the correctional ombudsman 27 in order to carry out the office's functions, powers and duties with 28 respect to the protected individual, pursuant to article three-A of the 29 correction law. 30 § 20. Paragraph (a) of subdivision 2 of section 2786 of the public 31 health law, as amended by chapter 312 of the laws of 2020, is amended to 32 read as follows: 33 (a) Each state agency authorized pursuant to this article to obtain 34 confidential HIV related information and the board of correction of the 35 city of New York shall, in consultation with the department of health, 36 promulgate regulations: (1) to provide [safequards] safeguards to 37 prevent discrimination, abuse or other adverse actions directed toward 38 protected individuals; (2) to prohibit the disclosure of such informa- 39 tion except in accordance with this article; (3) to seek to protect 40 individuals in contact with the protected individual when such contact 41 creates a significant risk of contracting or transmitting HIV infection 42 through the exchange of body fluids[,]; and (4) to establish criteria 43 for determining when it is reasonably necessary for a provider of a 44 health or social service or the state agency or a local government agen- 45 cy to have or to use confidential HIV related information for super- 46 vision, monitoring, investigation, or administration and for determining 47 which employees and agents may, in the ordinary course of business of 48 the agency or provider, be authorized to access confidential HIV related 49 information pursuant to the provisions of paragraphs (l) and (m) of 50 subdivision one and subdivision six of section twenty-seven hundred 51 eighty-two of this article; and provided further that such regulations 52 shall be promulgated by the chairperson of the commission of correction 53 or the office of the correctional ombudsman where disclosure is made 54 pursuant to paragraphs (n) [and], (o), or (t) of subdivision one of 55 section twenty-seven hundred eighty-two of this article.A. 905--A 16 1 § 21. Subdivision 8 of section 92 of the public officers law, as 2 amended by section 135 of subpart B of part C of chapter 62 of the laws 3 of 2011, is amended to read as follows: 4 (8) Public safety agency record. The term "public safety agency 5 record" means a record of the state commission of correction, the office 6 of the correctional ombudsman, the temporary state commission of inves- 7 tigation, the department of corrections and community supervision, the 8 office of children and family services, the office of victim services, 9 the office of probation and correctional alternatives or the division of 10 state police or of any agency or component thereof whose primary func- 11 tion is the enforcement of civil or criminal statutes if such record 12 pertains to investigation, law enforcement, confinement of persons in 13 correctional facilities or supervision of persons pursuant to criminal 14 conviction or court order, and any records maintained by the division of 15 criminal justice services pursuant to sections eight hundred thirty-sev- 16 en, eight hundred thirty-seven-a, eight hundred thirty-seven-b, eight 17 hundred thirty-seven-c, eight hundred thirty-eight, eight hundred thir- 18 ty-nine, and eight hundred forty-five of the executive law and by the 19 department of state pursuant to section ninety-nine of the executive 20 law. 21 § 22. Subdivision 1 of section 460-c of the social services law, as 22 amended by chapter 838 of the laws of 1987, is amended to read as 23 follows: 24 1. Excepting state institutions for the education and support of the 25 blind, the deaf and the dumb, facilities subject to the approval, visi- 26 tation and inspection of the state department of mental hygiene, the 27 office of the correctional ombudsman or the state commission of 28 correction, facilities operated by or under the supervision of the divi- 29 sion for youth and facilities subject to the supervision of the depart- 30 ment of health pursuant to article twenty-eight of the public health 31 law, the department shall inspect and maintain supervision over all 32 public and private facilities or agencies whether state, county, munici- 33 pal, incorporated or not incorporated which are in receipt of public 34 funds, which are of a charitable, eleemosynary, correctional or reforma- 35 tory character, including facilities or agencies exercising custody of 36 dependent, neglected, abused, maltreated, abandoned or delinquent chil- 37 dren, agencies engaged in the placing-out or boarding-out of children as 38 defined in section three hundred seventy-one of this chapter, homes or 39 shelters for unmarried mothers, residential programs for victims of 40 domestic violence as defined in subdivision [five] four of section four 41 hundred fifty-nine-a of this chapter and adult care facilities. 42 § 23. This act shall take effect one year after it shall have become a 43 law.
