Bill Text: NY S01302 | 2019-2020 | General Assembly | Introduced


Bill Title: Establishes a joint commission on public transparency and sexual harassment to adopt, amend and rescind rules and regulations defining sexual harassment for state agencies, offices, and branches of government and develop recommendations for the uniform distribution of such definitions and policies, and to receive complaints and referrals alleging violations by certain state officials.

Spectrum: Moderate Partisan Bill (Republican 7-1)

Status: (Introduced) 2019-01-14 - REFERRED TO FINANCE [S01302 Detail]

Download: New_York-2019-S01302-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1302
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 14, 2019
                                       ___________
        Introduced  by  Sens.  SERINO,  FELDER, HELMING, LANZA, LAVALLE, LITTLE,
          RANZENHOFER, RITCHIE -- read  twice  and  ordered  printed,  and  when
          printed to be committed to the Committee on Finance
        AN  ACT  to amend the public officers law, in relation to establishing a
          joint commission on public transparency and sexual harassment
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. The public officers law is amended by adding a new section
     2  75-b to read as follows:
     3    § 75-b. Commission on public transparency and sexual harassment.    1.
     4  When  used  in this section the following terms shall have the following
     5  meanings:
     6    (a) "statewide elected official" shall mean the  governor,  lieutenant
     7  governor, comptroller, or attorney general;
     8    (b) "state officer or employee" shall mean:
     9    (i)  heads  of state departments and their deputies and assistants who
    10  serve at the discretion of the statewide elected official; and
    11    (ii) officers and employees of statewide elected officials  who  serve
    12  at the discretion of the statewide elected official;
    13    (c)  "legislative  employee" shall mean any officer or employee of the
    14  legislature; and
    15    (d) "legislative member" shall mean a senator or member of the  assem-
    16  bly.
    17    2.  There  is  hereby  established  within  the  department of state a
    18  commission on public transparency  and  sexual  harassment  which  shall
    19  consist of eleven members and shall have and exercise the powers and the
    20  duties set forth in this section with respect to statewide elected offi-
    21  cials, state officers and employees, legislative employees, and legisla-
    22  tive  members.  This  section  shall  not  be  deemed to have revoked or
    23  rescinded any regulations or advisory opinions issued by the legislative
    24  ethics commission, the commission on public integrity, the state  ethics
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01315-01-9

        S. 1302                             2
     1  commission,  or  the  state  office  for human rights in effect upon the
     2  effective date of this section to the extent that  such  regulations  or
     3  opinions are not inconsistent with any law of this state, but such regu-
     4  lations and opinions shall apply only to matters over which such commis-
     5  sions  had  jurisdiction  at the time such regulations and opinions were
     6  promulgated or issued. The commission shall  undertake  a  comprehensive
     7  review  of the current sexual harassment policies in the legislature and
     8  executive agencies. The commission shall,  before  February  first,  two
     9  thousand  twenty,  report  to the governor and the legislature regarding
    10  this review and recommendations for any regulatory or statutory guidance
    11  for consistency and transparency.
    12    3. The commission shall consist of eleven members of whom three  shall
    13  be  appointed  by  the governor, four by the chief judge of the court of
    14  appeals, and one each by the speaker  of  the  assembly,  the  temporary
    15  president  of  the  senate,  the  minority leader of the senate, and the
    16  minority leader of the assembly. Of the three members appointed  by  the
    17  governor,  no  more  than  two  shall  be enrolled in the same political
    18  party, and two shall be attorneys  admitted  to  practice  law  in  this
    19  state.  Of the four members appointed by the chief judge of the court of
    20  appeals, no more than two shall be enrolled in the same political party,
    21  two shall be attorneys licensed to practice law in this state,  and  two
    22  shall  not  be  attorneys.  No  member  of the commission shall hold any
    23  office in any political party.   Members  of  the  commission  shall  be
    24  appointed  based  on  their  actual  experience  in the establishment of
    25  institutional policies, sexual  harassment  claims,  and  legal  matters
    26  regarding  sexual harassment issues, sex crimes, and reporting. Appoint-
    27  ing authorities shall coordinate appointments to  include,  but  not  be
    28  limited  to, an attorney actually employed in the area of sexual harass-
    29  ment litigation and similar legal matters who has demonstrated outstand-
    30  ing service and contributions to this legal area, a human  resources  or
    31  labor  relations  representative  who has demonstrated actual service in
    32  the establishment of effective sexual harassment policies in  the  work-
    33  place,  a  member of law enforcement who has work experience in relation
    34  to sex crimes and harassment, and a member of the  judicial  branch  who
    35  has had experience in the consideration of civil claims related to sexu-
    36  al harassment and sex discrimination. In the event that a vacancy arises
    37  with  respect  to a member of the commission first appointed pursuant to
    38  this section by a legislative leader, the  legislative  leaders  of  the
    39  same  political  party  in the same house shall appoint a member to fill
    40  such vacancy irrespective of whether that legislative leader's political
    41  party is in the majority or minority. No individual  shall  be  eligible
    42  for  appointment  as  a member of the commission who currently or within
    43  the last three years is or has been a  member  of  the  New  York  state
    44  legislature  or  has been a legislative employee, or a statewide officer
    45  or elected official or a commissioner of an executive  agency  appointed
    46  by  the governor, or has held judicial office. Members of the commission
    47  shall be residents of the state.
    48    4. Members of the commission shall serve  for  terms  of  five  years;
    49  provided,  however, that of the members first appointed by the governor,
    50  one shall serve for one year, one shall serve for  two  years,  and  one
    51  shall  serve for three years, as designated by the governor; the members
    52  first appointed by the temporary president of  the  senate  and  by  the
    53  speaker of the assembly shall serve for four years and the members first
    54  appointed  by  the minority leaders of the senate and the assembly shall
    55  serve for two years.

        S. 1302                             3
     1    5. Members of the commission shall designate a chair from the  member-
     2  ship  thereof  for a term of two years or until his or her term expires,
     3  whichever period is shorter. The chair or a member of the commission may
     4  call a meeting.
     5    6.  Any  vacancy  occurring  on  the commission shall be filled within
     6  thirty days of its occurrence in the same manner  as  the  member  whose
     7  vacancy  is  being  filled  was  appointed. A person appointed to fill a
     8  vacancy occurring other than by expiration of a term of office shall  be
     9  appointed for the unexpired term of the member he or she succeeds.
    10    7. Members of the commission may be removed by the appointing authori-
    11  ty  solely  for substantial neglect of duty, gross misconduct in office,
    12  violation of the confidentiality, inability to discharge the  powers  or
    13  duties  of  office  or a violation of this section, after written notice
    14  and opportunity for a reply.
    15    8. Members of the commission shall be reimbursed  for  all  reasonable
    16  expenses actually and necessarily incurred by him or her in the perform-
    17  ance of his or her duties under this section.
    18    9. Eight members shall constitute a quorum.
    19    10. The commission shall:
    20    (a)  adopt,  amend  and  rescind rules and regulations defining sexual
    21  harassment for state agencies, offices, and branches of  government  and
    22  develop  recommendations for the uniform distribution of the definitions
    23  and policies developed pursuant to this section;
    24    (b) make available forms for complaints of sexual harassment  and  sex
    25  discrimination  involving statewide elected officials, state officers or
    26  employees, legislative members and employees;
    27    (c) review sexual harassment filing procedures in accordance with  the
    28  provisions of this section;
    29    (d)  receive  complaints  and referrals alleging violations of section
    30  two hundred ninety-six of the executive law, or  provisions  of  article
    31  one  hundred  thirty of the penal law by a statewide elected official, a
    32  state officer or employee, legislative employee or legislative member;
    33    (e) immediately report any allegations that, if true, would constitute
    34  a crime, to law enforcement for investigation;
    35    (f) for all other matters the commission  shall  determine  whether  a
    36  complaint  is "founded" or "unfounded" and shall issue a recommendation,
    37  in accordance with the  confidentiality  provisions  contained  in  this
    38  section  and  consistent  with all other laws, including awards to crime
    39  victims under article twenty-two of the executive law, to the appointing
    40  authority as to the basis of the claims, recommendations for appropriate
    41  resolution, and whether the commission approves of  the  use  of  public
    42  monies,  including  funds of the legislature, to resolve specific claims
    43  raised by the claimant. The recommendations of the commission  shall  be
    44  fully  and properly considered by the appointing authority but shall not
    45  be binding. There shall be  a  rebuttable  presumption  assumed  by  the
    46  commission that any statewide elected official, state officer or employ-
    47  ee,  or  legislative member or employee who makes a good faith effort at
    48  reporting or addressing sexual harassment shall not be held individually
    49  liable under any claim or settlement;
    50    (g) prepare an annual report  to  the  governor  and  the  legislature
    51  summarizing  the  activities  of the commission during the previous year
    52  including, but  not  limited  to,  (i)  an  accounting  of  founded  and
    53  unfounded  claims  of  sexual harassment organized by legislative branch
    54  and executive office or  agency,  and  (ii)  where  a  matter  has  been
    55  resolved,  the  date  and nature of the disposition and any sanctions or

        S. 1302                             4
     1  recommendations  of  the  commission,  subject  to  the  confidentiality
     2  requirements of this section;
     3    (h)  provide notification to any person who has filed a sexual harass-
     4  ment claim of the determination of the commission's review  as  well  as
     5  the individual's right to appeal the commission's determination pursuant
     6  to subdivision twelve of this section;
     7    (i) appoint an executive director who shall act in accordance with the
     8  policies of the commission. The appointment and removal of the executive
     9  director shall be made solely by a vote of a majority of the commission,
    10  which majority shall include at least one member appointed by the gover-
    11  nor  from  each  of  the  two  major  political  parties, and one member
    12  appointed by a legislative leader from each of the two  major  political
    13  parties. The commission may delegate authority to the executive director
    14  to  act in the name of the commission between meetings of the commission
    15  provided such delegation is in writing, the specific powers to be deleg-
    16  ated are enumerated, and the commission shall not delegate any decisions
    17  specified in this section that require a vote   of the  commission.  The
    18  executive director shall be appointed without regard to political affil-
    19  iation and solely on the basis of fitness to perform the duties assigned
    20  by this article, and shall be a qualified, independent professional. The
    21  commission  may  remove  the  executive  director  for  neglect of duty,
    22  misconduct in office, violation of the confidentiality, or inability  or
    23  failure to discharge the powers or duties of office, including the fail-
    24  ure to follow the lawful instructions of the commission;
    25    (j)  review  and  approve a staffing plan provided and prepared by the
    26  executive director which shall contain, at a  minimum,  a  list  of  the
    27  various  units  and divisions as well as the number of positions in each
    28  unit, titles and their duties, and salaries,  as  well  as  the  various
    29  qualifications  for  each position including, but not limited to, educa-
    30  tion and prior experience for each position;
    31    (k) appoint such other staff as are necessary to carry out its  duties
    32  under this section; and
    33    (l)  develop  and  administer  an online sexual harassment orientation
    34  course to be made available across the legislative and executive branch-
    35  es for the purposes of a uniform and consistent  policy  across  govern-
    36  ment.
    37    11.  (a)  When  an individual becomes a member or staff of the commis-
    38  sion, that individual shall be required to sign a non-disclosure  state-
    39  ment.
    40    (b)  Except  as  otherwise  required  or  provided  by  law, testimony
    41  received or any other information obtained by a commissioner or staff of
    42  the commission shall not be disclosed by  any  such  individual  to  any
    43  person  or  entity  outside  the  commission  during the pendency of any
    44  matter. Any confidential communication to any person or  entity  outside
    45  the  commission  related  to the matters before the commission may occur
    46  only as authorized by the commission.
    47    (c) The commission shall establish procedures necessary to prevent the
    48  unauthorized disclosure of any information received by any member of the
    49  commission or staff of the commission. Any breaches  of  confidentiality
    50  shall  be  investigated  by the inspector general and appropriate action
    51  shall be taken. Any commissioner or person employed  by  the  commission
    52  who intentionally and without authorization releases confidential infor-
    53  mation received by the commission shall be guilty of a class A misdemea-
    54  nor.
    55    12. The commission shall be deemed to be an agency of the state within
    56  the  meaning  of article three of the state administrative procedure act

        S. 1302                             5
     1  and shall adopt rules governing the conduct of adjudicatory  proceedings
     2  and  appeals  taken  pursuant  to  a  proceeding commenced under article
     3  seventy-eight of the civil  practice  law  and  rules  relating  to  the
     4  assessment  of  penalties  or  findings authorized in this section. Such
     5  rules, which shall not be subject to the approval  requirements  of  the
     6  state administrative procedure act, shall provide for due process proce-
     7  dural  mechanisms  substantially  similar  to those set forth in article
     8  three of the state administrative procedure act but such mechanisms need
     9  not be identical in terms of scope.
    10    § 2. This act shall take effect immediately and shall apply to settle-
    11  ments entered into on and after such date.
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