Recommendations to the Public Campaign Financing Commission

By Risa S. Sugarman, Chief Enforcement Counsel

Division of Election Law Enforcement

New York State Board of Elections

I. EXECUTIVE SUMMARY

In 2013, the Moreland Commission to Investigate Public Corruption (“the Moreland

Commission”), charged with investigating corruption in government and proposing reforms to

address weaknesses in the law, issued findings and recommendations designed, in part, to create

meaningful enforcement of the Election Law. The Moreland Commission recommended

establishing an Election Law enforcement officer to conduct investigations independent of the

partisan political influence of the state board of elections (the “Board”). In response, the New

York legislature passed the Public Trust Act of 2014 (the “Act”), which stripped the

commissioners of the New York state board of elections of their authority to conduct investigations

of violations of the Election Law and vested that authority solely in the newly created office of the

chief enforcement counsel.

Despite being legislatively divested of the power and duty to conduct Election Law

enforcement investigations in 2014, the Board enacted regulations and policies in 2017 and 2018

designed to re-establish the Board’s partisan control over the conduct of enforcement

investigations.1 In using the rulemaking process to undermine the independence of the chief

enforcement counsel’s investigations, the Board ignored the language of the Public Trust Act of

2014 and the clear legislative intent to create an independent office of chief enforcement counsel

to conduct investigations free from the Board’s partisan influence.

In 2019, this Public Campaign Financing Commission has the opportunity to re-examine

1
Specifically, the Board created a “Documents Policy” designed to make enforcement documents public and amended
9 NYCRR § 6203 to re-establish control over the investigative process.
the effectiveness of election law enforcement and further improve the effectiveness and efficiency

of enforcement of campaign finance and other laws relating to elections and campaigns. The Chief

Enforcement Counsel recommends a return to the recommendations of the Moreland Commission

with the establishment of a new independent state office of election law enforcement within the

Executive Department to be headed by a chief enforcement counsel. The state office of election

law enforcement should be authorized to investigate alleged violations of the Election Law and

other statutes governing campaigns, elections, and related procedures and conduct compliance and

enforcement actions as appropriate.

The Chief Enforcement Counsel also recommends amendments to various sections of the

Election Law to provide for the imposition of civil penalties and to require the production of

documents by candidates, treasurers and political committees for investigative purposes.

II. BACKGROUND

In 2013, Governor Cuomo unveiled a series of Governor Program Bills that would address

a range of ethics issues plaguing New York’s government and elections process. Later in 2013,

Governor Cuomo created the Moreland Commission to investigate corruption in government and

propose reforms to address weaknesses in the law. The Moreland Commission investigated the

role money plays in the political system as well as weaknesses in the structure of the state board

of elections. The Commission also examined weaknesses in laws, regulations, and procedures and

their relationship to public corruption, conflicts of interest, and ethics in State government and

issued a report of its findings and recommendations.

With regard to the structure and function of the state board of elections, the Moreland

Commission found that despite being charged with the power and duty to investigate violations of

the election law, “[t]he Board almost never opens investigations into alleged Election Law

violations.” Moreover, the Moreland Commission found that the Board seldom exercised its

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statutory subpoena power – thereby “creat[ing] undue delays in the investigation of suspected

Election Law violations, increas[ing] the possibility that evidence could be destroyed or spoiled,

and increas[ing] the possibility of partisanship coloring enforcement.” (Preliminary Report of the

Moreland Commission to Investigate Public Corruption [2013], pp. 70, 83).

The Moreland Commission found that the Board’s lack of aggressive civil enforcement

eroded public confidence in New York’s political system and created an atmosphere conducive to

corruption. According to the report, “Even when NYSBOE undertakes enforcement-related

activity, it does so in an inefficient manner. In particular, NYSBOE uses a significant amount of

its enforcement resources on audits that are ill-conceived and wasteful. This illogical use of

resources is a key reason why the Board has failed to fulfill its duties, allowing corruption to

flourish. . . . The Board has adopted the inexplicable policy of treating everyone who fails to file

disclosure reports in the same fashion, regardless of the seriousness of the offenses or the

sophistication of the actors. By treating all non-filer violations the same, the Board fails to identify

large-scale violations or repeat violators of the campaign finance laws. During their informal

interviews with the Commission, both [Executive Directors] Brehm and Valentine admitted that

no effort is made within NYSBOE to identify the more significant violators and use NYSBOE’s

limited resources to focus attention on them. Moreover, it is unclear whether the Board has an

internal system for tracking non-filers on a year-to-year basis. (Preliminary Report of the Moreland

Commission to Investigate Public Corruption [2013], pp. 73, 76).

Following publication of the Moreland Commission’s findings and recommendations, the

Legislature enacted the Public Trust Act of 2014 – for the purpose of “strengthen[ing] the State’s

anti-corruption laws, reinvigorat[ing] enforcement of the election law, reform[ing] campaign

contribution limits, and enact[ing] a voluntary public campaign Financing program in order to

restore the public’s trust in State government” (Sponsor Memo for Senate Bill S6355 [Part H –

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The Public Trust Act], pp. 9-10). The Act removed the authority of the Board itself to conduct

investigations of violations of the Election Law, instead vesting that authority solely in a newly

created office of the chief enforcement counsel within the state board of elections (see Election

Law § 3-102 [3]). Pursuant to the Act, “the chief enforcement counsel [has] sole authority within

the state board of elections to investigate … alleged violations of [article fourteen of the Election

Law and other statutes governing campaigns, elections, and related procedures].” The Act made

the chief enforcement counsel the head of a newly created division of election law enforcement

(the “Division”) (Election Law § 3-104 [1]).

The Act also created investigative and criminal referral processes and a civil litigation

structure for violations of the Election Law that do not warrant criminal prosecution. The civil

litigation process requires an administrative hearing, at which the hearing officer has no authority

to impose penalties, followed by a court proceeding. The Act failed to include any requirement

that campaign finance filers make records available to the chief enforcement counsel for

examination during an investigation, despite the fact that the Election Law requires that records be

kept, and failed to provide for civil penalties for all non-criminal violations of the Election Law.

In response to the new laws, in a process begun in 2016, the Board adopted policies and

regulations in March 20172 and August 20183 designed to take back control of enforcement

investigations. The new rules allowed the politically partisan commissioners4 to exercise control

over key aspects of the chief enforcement counsel’s investigations, documents, and operations.

In May of 2016, following an investigation of unauthorized disclosure of confidential

2
March 13, 2017 the Board passed a ‘Documents Policy’ in response to the Inspector General’s report of May 2016
“Investigation of the Dissemination New York State Board of Election Enforcement Division Documents”
(https://ig.ny.gov/sites/default/files/pdfs/BOEREPORT5.31.16.pdf).
3
August 8, 2018 the Board passed amendments to the rules at 9 NYCRR part 6203.The amended rules were effective
on September 19, 2018.
4
The four commissioners are appointed by the governor – two from persons recommended by each of the two major
parties and two from persons recommended by the joint legislative leaders of each of the two major political parties
– without need for confirmation by either house of the legislature.
4
enforcement documents at the state board of elections, the New York State Inspector General

(“IG”) found5 that the Republican Public Information Officer (the “PIO”) of the state board of

elections disseminated confidential law enforcement investigation documents. The documents

released consisted of a letter and memorandum written by the Chief Enforcement Counsel and

addressed to the commissioners summarizing an investigation. The IG found that despite the fact

that these law enforcement investigation materials were labeled “privileged and confidential,” the

PIO disseminated the letter and memorandum to a journalist (who subsequently published the

documents in the New York Daily News) and to the deputy director of communications for the New

York State Senate Republican caucus. The IG’s report noted that “[p]ublic dissemination of the

materials required for the board to approve the Enforcement Division’s actions could compromise

the division’s investigations and undermine outside prosecutors’ ability to build successful cases”

(emphasis added). The IG recommended “that the SBOE adopt appropriate rules, regulations,

policies, and procedures establishing which Enforcement Division materials are privileged and

confidential, and how such materials should be handled to ensure the integrity of the Board of

Elections’ operations and enforcement matters” (emphasis added).

In response to the IG report, in March 2017 the Board created a “Documents Policy”

implementing new procedures designed to release confidential Division documents rather than to

ensure their confidentiality. The policy excluded the chief enforcement counsel from the process

of identifying and protecting confidential information and gave the commissioners sole authority

to determine whether and when enforcement documents provided to the Board would be released.

Furthermore, the policy ignored the ethical obligations required of investigative agencies and

prosecutors to seek justice in an unbiased, non-partisan manner, and not to use information

5
State of New York Office of the Inspector General – “Investigation of the Dissemination of New York State Board
of Elections Enforcement Division Documents,” May 2016,
(https://ig.ny.gov/sites/default/files/pdfs/BOEREPORT5.31.16.pdf).
5
obtained in the course of an investigation for personal or political gain.

In August 2018, the Board amended part 6203 of the Rules and Regulations of the State

Board of Elections to give the Board authority over the conduct of investigations not provided for

by law. For example, the new rules allowed the Board to decide when and to whom the chief

enforcement counsel could issue subpoenas, to later quash those subpoenas, and to require

disclosure of confidential investigative strategies and materials. Instead of creating regulations to

effectuate the language and intent of the Act passed by the Senate and Assembly, the Board created

entirely new processes that restored the Board’s partisan control over the investigative process.

The Board’s new policies and regulations undermine the statutorily-created independence of the

office of the chief enforcement counsel – gutting its ability to hold officials accountable without

partisan interference – and threaten the confidentiality of the investigative process.

As did many law enforcement officers, New York’s public corruption prosecutor – then

Attorney General Barbara D. Underwood – opposed the new regulations, issuing the following

statement:

“Gutting the Enforcement Counsel’s authority and independence will only serve to
encourage more corruption in New York. Our partnership with a strong,
independent Enforcement Counsel has allowed us to hold public officials to account
for breaking campaign finance laws and cheating New Yorkers. With today’s
[adopting] vote, that work is jeopardized by potential political interference in law
enforcement investigations. My office will continue to do everything in its power
to uphold New York’s election law – but we need our elected officials to provide
the tools to root out the rot in State government.”

To repair this broken system, the Chief Enforcement Counsel recommends a return to the

recommendations of the Moreland Commission with the establishment of a new independent state

office of election law enforcement within the Executive Department authorized to investigate

alleged violations of the Election Law and other statutes governing campaigns, elections, and

related procedures and to conduct compliance and enforcement actions as appropriate. The office

of election law enforcement should have authority to perform any acts necessary to carry out the
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purposes of the law, including but not limited to specific authority to: examine compliance with

the filings of campaign receipts and expenditures (Article 14); bring judicial proceedings to seek

determination of any question of fact or law arising as to any subject set forth in the Election Law

(Article 16); and, investigate violations of the elective franchise (Article 17).

The state office of election law enforcement should be headed by a chief enforcement

counsel, who shall conduct all investigations necessary to carry out the purposes of the law. The

dual role of this new office, which would investigate both civil and criminal violations, will require

a careful blend of confidentiality and public reporting. An announcement of an investigation by

the chief enforcement counsel could potentially have serious impacts on a campaign for public

office as well as on the course of the investigation. Therefore, there must be a fair balance between

protecting the confidentiality of individuals under investigation, witnesses, and litigants in civil

proceedings and the public’s right to disclosure around the agency’s enforcement activities.

The Chief Enforcement Counsel also recommends amendments to various sections of the

Election Law to provide for the imposition of civil penalties for all violations, the production of

documents by candidates, treasurers and political committees for investigative purposes, and

effective law enforcement tools necessary for the office to function effectively.

III. RECOMMENDATIONS

1. CREATE AN INDEPENDENT STATE OFFICE OF ELECTION LAW ENFORCEMENT HEADED

BY A CHIEF ENFORCEMENT COUNSEL

The Chief Enforcement Counsel joins good government groups and bar associations in

recommending that the Commission create a new independent office outside the state board of

elections to oversee public financing and election law enforcement. However, we recommend that

the new independent office be headed by a chief enforcement counsel and not by a commission or

board as are the New York City Campaign Finance Board (“the CFB”) or the Hawaii Campaign

Spending Commission (“HCSC”), as has been suggested.

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 Commissions or boards like the CFB and HCSC, whose members are appointees of elected

officials or the judiciary, are ill-suited to controlling the conduct of criminal or civil investigations

or enforcement actions. In order to be fair, it is essential that law enforcement be conducted in a

nonpartisan, impartial, detailed manner without regard to the identities of the subjects of the

investigation, their party affiliations, or potential political ramifications that may result from the

investigation. Decisions concerning opening or closing an investigation, identifying the subjects

of the investigation, and determining when to utilize subpoenas or other investigative techniques

must fairly be governed only by the facts of the case and be made only by persons with sufficient

knowledge and investigative experience to make those decisions.

The course of an investigation is properly determined by the specific nature of the case

itself, and the facts must be followed as the case develops, without interruption. Investigations

into the conduct of candidates, treasurers, and political committees in relation to campaign finance

include but are not limited to violations of the election law. For example, violations of the penal

law may occur when false campaign finance reports are filed or when campaign funds are misused.

Each complaint and each investigation is different. For these reasons, it is essential that

investigations and enforcement actions be conducted by experienced law enforcement

professionals who are free from political interference or influence and not by boards or

commissions.

As a law enforcement professional with deep experience, the chief enforcement counsel is

uniquely qualified to determine in the first instance whether to go forward with a criminal

investigation and referral or civil enforcement. Those decisions, as well as determinations whether

and in what manner to pursue civil enforcement or litigation, should remain with the enforcement

counsel. Decisions whether to criminally prosecute a case are appropriately left to the United

States Attorney, District Attorney, or Attorney General with jurisdiction over the matter.

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 The entity – new or existing – charged with investigation and enforcement of violations of

the election law must be given a wide range of tools to oversee public financing of campaigns,

campaign finance reporting, and investigations into any violation of the election law or other

statutes related to the election process. To effectuate these changes, the following statutory

amendments are suggested.

Repeal Election Law sections 3-104 and 3-104-a and replace with new provisions creating

the state office of election law enforcement. Model legislation follows.

NEW YORK STATE OFFICE OF ELECTION LAW ENFORCEMENT

ESTABLISHMENT AND ORGANIZATION

Establishment and organization. 1. There is hereby created within the executive department

a New York state office of election law enforcement. The head of such office shall be the state

election law chief enforcement counsel (hereafter referred to as the “chief enforcement counsel”).

2. Notwithstanding any other provision of law, the governor shall appoint a chief

enforcement counsel to head the state office of election law enforcement, who shall have a fixed

term of five years commencing , and may only be removed by the governor for

substantial neglect of duty, gross misconduct in office, or the inability to discharge the powers or

duties of office, upon notice with an opportunity to be heard. The chief enforcement counsel shall

not hold any other public office, be a party officer while in office, or otherwise engage in outside

employment. The chief enforcement counsel shall be chosen by the governor which choice shall

be confirmed by each house of the legislature separately by a majority vote of the members elected

to each house of the legislature. The chief enforcement counsel shall have sole authority over

personnel decisions within the office. All hiring decisions made by the chief enforcement counsel

shall be made without regard to political party affiliation. The chief enforcement counsel may,

and without civil service examination shall, appoint and employ, and at pleasure remove, such

9
associate counsel, special investigators, accountants and other persons as the chief enforcement

counsel deems necessary, determine their duties and, with the approval of the governor, fix their

compensation. Any special investigator appointed pursuant to this chapter shall have all of the

powers of a peace officer as set forth in section 2.20 of the criminal procedure law, for the purpose

of enforcing the provisions of this chapter. The payments of salaries and compensation of such

officers and employees shall be made within the amounts made available by appropriation therefor.

JURISDICTION

The state office of election law enforcement shall have jurisdiction of, and be responsible

for, the execution and enforcement of the provisions of article fourteen of the election law and

other statutes governing campaigns, elections, and related procedures.

POWERS AND DUTIES

A. Pursuant to the provisions of this section, the state office of election law enforcement

shall have the power and duty to:

1. conduct all investigations necessary to enforce the provisions of article fourteen of the

election law and other statutes governing campaigns, elections, and related procedures;

2. cooperate with and assist prosecutors and other law enforcement officials in their

enforcement efforts against violations of the election law and other statutes governing campaigns,

elections, and related procedures;

3. receive and investigate complaints from any source, or upon self-initiative, concerning

allegations of

(a) violations of the provisions of Article 14 of the election law and other statutes governing

campaigns, elections and related procedures; and

(b) corruption, fraud, and criminal activity in violation of the election law and other statutes

governing campaigns, elections and related procedures;

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 4. determine with respect to such allegations whether civil or criminal prosecution, or

further investigation by an appropriate federal, state, or local agency is warranted, and assist in

such investigations;

5. prepare and release to the public written reports of such investigations, as appropriate

and to the extent permitted by law, subject to redaction to protect the confidentiality of witnesses

and deferred release of all or parts of such reports to protect the confidentiality of ongoing

investigations.

B. The chief enforcement counsel shall have the power to:

1. conduct hearings at any place within the state, administer oaths or affirmations, subpoena

witnesses, compel their attendance, examine them under oath or affirmation, and require the

production of any books, records, documents or other evidence the chief enforcement counsel

deems relevant or material to an investigation;

2. apply for search warrants pursuant to article six hundred ninety of the criminal procedure

law;

3. designate assistants to exercise the powers of the chief enforcement counsel;

4. request and shall receive from the division of state police, state and other boards of

elections and election officers, the state department of taxation and finance, the state department

of labor, the temporary state commission of investigation, and from every department, division,

board, bureau, commission or other agency of the state, or of any political subdivision thereof,

cooperation, assistance, information, and records sought without subpoena in connection with the

performance of the duties of the office;

5. refer any investigation to the New York State Attorney General or other agency for

further investigation or prosecution;

6. institute such judicial proceedings as may be necessary to enforce compliance with any

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provision of the election law or any regulation promulgated thereunder including, but not limited

to, application, on notice served upon the respondent in the manner directed by the court at least

six hours prior to the time of return thereon, to a justice of the supreme court within the judicial

district in which an alleged violation of any such provision or regulation occurred or is threatened,

for an order prohibiting the continued or threatened violation thereof or for such other or further

relief as the court may deem just and proper;

7. confer immunity in accordance with the provisions of section 50.20 of the criminal

procedure law, in any investigation relating to any crime or offense with respect to which, by

express provisions of statute, a competent authority is authorized to confer immunity; provided,

however, that such immunity shall be conferred only after the attorney general and appropriate

district attorney are afforded the opportunity to be heard respecting any objections which either

may have to the conferring thereof;

8. promulgate rules and regulations consistent with law to effectuate the provisions of this

section;

9. perform any other functions that are necessary or appropriate to fulfill the duties and

responsibilities of office.

C. Every witness attending before such chief enforcement counsel or assistant shall be

examined privately, and the particulars of such examination shall not be made public. If a person

subpoenaed to attend upon such inquiry fails to obey the command of a subpoena without

reasonable cause, or if a person in attendance upon such inquiry shall, without reasonable cause,

refuse to be sworn or to be examined or to answer a question or to produce a book or paper, when

ordered so to do by the officer conducting such inquiry, that person shall be guilty of a class A

misdemeanor.

D. Whenever a local board of elections shall determine, on its own initiative or upon

12
complaint, or otherwise, that there is substantial reason to believe a violation of the election law

or any code or regulation promulgated thereunder has been committed by a candidate or political

committee or other person or entity that files statements required by article fourteen of the election

law solely with such local board, it shall expeditiously make an investigation of the alleged

violation, and shall also conduct an investigation of reports and statements made or failed to be

made by the complainant and any political committee supporting the complainant’s candidacy if

the complainant is a candidate or, if the complaint was made by an officer or member of a political

committee, of reports and statements made or failed to be made by such political committee and

any candidates supported by it. The local board shall report the results of its investigation to the

state office 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 investigation so that the office of election law enforcement can investigate the

matter.

E. Upon notification that a special proceeding has been commenced by a party other than

office of election law enforcement, pursuant to section 16-114 of the election law, the chief

enforcement counsel shall investigate the alleged violations unless otherwise directed by the court.

The state office of election law enforcement shall be a necessary party in any such proceeding.

F. The chief enforcement counsel shall prepare a report to the governor, and legislature,

summarizing the activities of the office during the previous year.

2. AMEND OTHER SECTIONS OF THE ELECTION LAW AND RELATED STATUTES

ARTICLE 14 OF THE ELECTION LAW

The election law governs who must file financial disclosures, the content of the disclosures,

and the times and places the disclosures must be filed.

Section 14-118 requires that every political committee have a treasurer and a depository,

13
and that a treasurer and a candidate keep detailed, bound accounts of all receipts, transfers, loans,

liabilities, contributions, and expenditures, made by the committee or candidate, and any officers,

members or agents acting under its authority or in their behalf. No officer, member or agent of a

political committee shall receive any receipt, transfer or contribution, or make any expenditure or

incur any liability until the committee chooses a treasurer or depository and files their names in

accordance with the provisions of the law. All accounts must be retained for a period of five years

from the date of the filing of the final statement with respect to the election to which they pertain.

Section 14-107 sets forth requirements for independent expenditure disclosures.

Section 14-122 details requirements for accounting to treasurers or candidates of receipts

and expenditures.

The Act created investigative and criminal referral processes and a civil litigation structure

for violations of the Election Law that do not warrant criminal prosecution. However, no provision

was included to require that campaign finance filers make records available to the chief

enforcement counsel for examination during an investigation. The Act also failed to provide for

civil penalties for all non-criminal violations of the Election Law. These and other sections of the

election law must be amended to remove reference to the state board of elections and identify the

independent agency tasked to conduct enforcement. The chief enforcement counsel recommends

the addition, deletion, and amendments as described below. These recommendations include

suggestions on some but not all the required amendments. Amended and added language is

indicated in red, and deletions are indicated by strike through.

Amend section 14-107 (8) (b) to remove reference to the state board of elections.

ELECTION LAW § 14-107 (8) (b) INDEPENDENT EXPENDITURE REPORTING

8. (a) All criminal liability related to this section shall require knowing and willful

violations in accordance with section 14-126 of this article.

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 (b) A knowing and willful violation of the provisions of subdivisions three and four

of this section shall subject the person to a civil penalty equal to five thousand dollars or the

cost of the communication, whichever is greater, in a special proceeding or civil action brought

by the state office of election law enforcement [the board].

Amend section 14-116 of article fourteen to change the required filing deadline for limited

liability companies (“LLCs”) to identify their direct and indirect owners and to remove reference

to the state board of elections. The statute presently requires this filing only once by the thirty-first

of December in the year the contribution is made. However, candidates, political committees, and

treasurers are required to file attributions to direct and indirect owners of contributions by LLCs

throughout the year and assure that they have not received contributions in excess of the aggregate

contribution limits imposed on these entities. Delaying the required filing by the LLCs, and failing

to require an amended filing when any changes to the information disclosed occur, puts an undue

and sometimes impossible burden on the recipient of a contribution to ascertain the required

information in a timely manner.

ELECTION LAW § 14-116 (3) - POLITICAL CONTRIBUTIONS BY CERTAIN ORGANIZATIONS

3. Each limited liability company that makes an expenditure, or contribution, for

political purposes shall file with the state board of elections, by December thirty-first] at the time

of their first contribution of the year in which the expenditure is made, on the form prescribed

by the state board of elections, a statement disclosing the identity of all direct and indirect

owners of the membership interests in the limited liability company and the proportion of each

direct or indirect member's ownership interest in the limited liability company. Any change in

the information required in any statement shall be reported, in an amended statement filed

in the same manner as the original statement, within two days after the change occurs.

Add the requirement to disclose the Committee’s Employer Identification Number (“EIN”)

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assigned by the Internal Revenue Service (“IRS”) as part of the filing required by section 14-118

(1), remove the filing exemption for constituted and political action committees, add a new

subsection four to section 14-118 of article fourteen to authorize the chief enforcement counsel as

part of any investigation to demand records required to be kept and require the production of such

documents upon demand, and amend other subsections to remove reference to the state board of

elections.

ELECTION LAW § 14-118 - TREASURER AND DEPOSITORY OF POLITICAL COMMITTEE ;

FILING OF NAME AND ADDRESS

Treasurer and depository of political committee; filing of name and address. 1. Every

political committee shall have a treasurer and a depository, and shall cause the treasurer to keep

detailed, bound accounts of all receipts, transfers, loans, liabilities, contributions and

expenditures, made by the committee or any of its officers, members or agents acting under its

authority or in its behalf. All such accounts shall be retained by a treasurer for a period of five

years from the date of the filing of the final statement with respect to the election, primary election

or convention to which they pertain. No officer, member or agent of any political committee shall

receive any receipt, transfer or contribution, or make any expenditure or incur any liability until

the committee shall have chosen a treasurer and depository and filed their names and the

committee’s Employer Identification Number (“EIN”) in accordance with this subdivision.

There shall be filed in the office in which the committee is required to file its statements under

section 14-110 of this article, within five days after the choice of a treasurer and depository, a

statement giving the name and address of the treasurer chosen, the name and address of any person

authorized to sign checks by such treasurer, the name and address of the depository chosen, the

committee’s EIN, assigned by the United States Internal Revenue Service, and the candidate

or candidates or ballot proposal or proposals the success or defeat of which the committee is to aid

or take part; provided, however, [that such statement shall not be required of a constituted
16
committee and provided further] that a political action committee which makes no

expenditures, to aid or take part in the election or defeat of a candidate, other than in the form of

contributions, shall [ not be required to list the candidates being supported or opposed by

such committee and shall ]also disclose the name and employer for any individual who exerts

operational control over the political action committee as well as any salaried employee of the

political action committee. Such statement shall be signed by the treasurer and all other persons

authorized to sign checks. Any change in the information required in any statement shall be

reported, in an amended statement filed in the same manner and in the same office as an original

statement filed under this section, within two days after it occurs, except that any change to the

mailing address on any such statement filed at the state board may also be made in any manner

deemed acceptable by the state board. Only a banking organization authorized to do business in

this state may be designated a depository hereunder.

3. (a) Every candidate who receives or expends any money or other valuable thing or incurs

any liability to pay money or its equivalent shall keep and retain detailed, bound accounts as

provided in subdivision one of this section.

(b) Every candidate required to file sworn statements pursuant to subdivision one of

section 14-104 of this article, other than a candidate who has filed a statement in lieu thereof

at or before the first filing period as set forth in that section, shall file, in the office or offices

in which he or she is required to file his or her statements under section 14-110 of this article, on

a form prescribed by the state board for such purposes, a statement providing the name and

address of the depository at which they maintain the accounts from which he or she conducts his

or her own campaign financial activity and the tax identification number assigned to such

accounts.

4. The state office of election law enforcement may request and shall be provided

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with any additional information the chief enforcement counsel deems relevant or material to

an investigation. Such additional information shall include, but not be limited to, records

required to be made, kept, or filed pursuant this chapter. The chief enforcement counsel

may request, and the candidate or treasurer or other agent of a political committee shall

produce for inspection and copying, any such records requested within 10 days of such

request.

Amend Article 14 section 14-124 (3) to clarify that housekeeping funds shall not be

expended for the purpose of supporting or opposing the campaign or election of a candidate or for

candidate-related expenditures.

ELECTION LAW SECTION 14-124 (3)

3. The contribution and receipt limits of this article shall not apply to monies received

and expenditures made by a party committee or constituted committee to maintain a permanent

headquarters and staff and carry on ordinary activities which are not for the [express] purpose of

promoting the candidacy of specific candidates in any way, including in support of or opposition

to any campaign or election of a candidate or other candidate-related expenditures, provided

that such monies described in this subdivision shall be deposited in a segregated account.

Add a new section 14-126 (8) to Article 14 to provide for civil penalties for refusal to

provide records requested by the chief enforcement counsel.

ELECTION LAW section 14-126 (8) VIOLATIONS AND PENALTIES

Any person who fails to comply with a request for records made pursuant to

subdivision four of section 14-118 of this article shall be subject to a civil penalty up to one

thousand dollars for each violation to be recoverable in a special proceeding or civil action

brought by the state office of election law enforcement.

Amend Article 14 section 14-126 (1) (b) to remove references to the state board of

18
elections.

ELECTION LAW § 14-126 (1) (b) - VIOLATIONS AND PENALTIES

(b) All payments received by the state office of election law enforcement [state board

of elections] pursuant to this section shall be retained in the appropriate accounts as designated by

the division of the budget for enforcement activities by the state office of election law

enforcement [board of elections].

Amend section 14-126 (2) to allow civil penalties for those who, with intent to violate the

law, unlawfully contribute in excess of a contribution limit established by the Election Law.

Section 14-126 (2) currently provides for civil penalties only for the receipt of contributions in

excess of contribution limits. The conduct must be intentional. The candidate or committee must

refund the excess amount and is subject to a fine recoverable in an action brought by the chief

enforcement counsel. The statute has no such civil penalty or proceeding for the contributor.

Section 14-126 (5) provides for analogous criminal penalties for ANY person who

knowingly and willfully contributes, accepts or aids or participates in the acceptance of a

contribution in excess of the contribution limits. The violation of this section is a class A

misdemeanor. This section should remain the same.

The following proposed change would make section 14-126 (2) consistent with section 14-

126 (5), which provides for criminal penalties for both contributing and accepting contributions in

excess of contribution limits.

ELECTION LAW § 14-126 (2) - VIOLATIONS AND PENALTIES

Any person who, [acting as or on behalf of a candidate or political committee, ]under

circumstances evincing an intent to violate such law, unlawfully contributes, accepts, or aids or

participates in the contribution or acceptance of a contribution in excess of a contribution

limitation established in this article, shall be required to refund or cause to be refunded the excess

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amount [such excess amount] and shall be subject to a civil penalty equal to the excess amount

plus a fine of up to ten thousand dollars, to be recoverable in a special proceeding or civil action

to be brought by the state office of election law enforcement [state board of elections chief

enforcement counsel].

Amend Section 14-126 (6) to make clear that using an agent acting on behalf of a candidate

or political committee to orchestrate any type of expenditures, including contributions, for the

purpose of evading contribution limits is proscribed by this section and to remove reference to the

obsolete term “unauthorized committee.”

ELECTION LAW § 14-126 (6) - VIOLATIONS AND PENALTIES

14-126 (6) Any person who shall, acting on behalf of a candidate or political committee,

knowingly and willfully:

(a) solicit, organize or coordinate the formation [of] or activities of one or more

[unauthorized] committees not specifically authorized by the candidate as the state office of

election law enforcement may provide,

(b) make expenditures, including contributions, in connection with the nomination for

election or election of any candidate, or

(c) solicit any person to make any such expenditures, including contributions,

for the purpose of evading the contribution limitations of this article shall be guilty of a class E

felony.

Add a new section to section 14-126 of article 14 providing for imposition of civil penalties

for violations of law not otherwise described. Election Law section 17-168 (Crimes against the

elective franchise not otherwise provided for) imposes criminal liability for violations of the

Election Law not specifically mentioned. Section 17-168 states, “Any person who knowingly and

wilfully violates any provision of this chapter, which violation is not specifically covered by any

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of the previous sections of this article, is guilty of a misdemeanor.” Similarly, section 14-126 (4)

provides, “. . . any person who knowingly and willfully violates any other provision of [article 14]

shall be guilty of a misdemeanor.” However, the law contains no similar provision for the

imposition of civil penalties for violations not otherwise specifically prescribed.

ELECTION LAW § 14-126 (9) - VIOLATIONS AND PENALTIES

14-126 (9) Any person who intentionally violates any provision of this chapter, which

violation is not specifically covered by any other section of this article, shall be subject to a

civil penalty up to ten thousand dollars, to be recoverable in a special proceeding or civil

action brought by the state office of election law enforcement.

Amend section 14-130 of the election law to prohibit the use of campaign funds to pay

attorneys’ fees incurred by a candidate, limit spending after the public office holder leaves office,

and repeal paragraph 6.

ELECTION LAW SECTION 14-130 (3) (VIII) - CAMPAIGN FUNDS FOR PERSONAL USE

(3) (viii) payment of attorneys’ fees incurred or any fines or penalties assessed

against the candidate pursuant to this chapter or in connection with a criminal conviction or by

the joint commission on public ethics pursuant to section ninety-four of the executive law or

sections seventy-three or seventy-three-a of the public officers law or the legislative ethics

commission pursuant to section eighty of the legislative law;

ELECTION LAW SECTION 14-130 (5) - CAMPAIGN FUNDS FOR PERSONAL USE

(5) Nothing in this section shall prohibit an elected public officeholder, while in office,

from using campaign contributions to facilitate, support, or otherwise assist in the execution or

performance of the duties of his or her public office.

Repeal ELECTION LAW SECTION 14-130 (6) - CAMPAIGN FUNDS FOR PERSONAL USE

[6. The state board of elections shall issue advisory opinions upon request regarding

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expenditures that may or may not be considered personal use of contributions. Any

formal or informal advisory opinions issued by a majority vote of the commissioners of the

state board of elections shall be binding on the board, the chief enforcement counsel

established by subdivision three-a of section 3-100 of this chapter, and in any subsequent

civil or criminal action or proceeding or administrative proceeding.]

ELECTION LAW ARTICLE 16 – JUDICIAL PROCEEDINGS

Amend section 16-120 (1) – Multiple sections of the Election Law provide for the

imposition of penalties. The language of section 16-120 (1) seems to limit the jurisdiction of the

supreme court or a justice thereof to impose penalties to violations of subdivision one and two of

14-126. The courts’ jurisdiction should extend to all sections of the election law that provide for

the imposition of civil penalties.

ELECTION LAW § 16-120 - ENFORCEMENT PROCEEDINGS

Enforcement proceedings. 1. The supreme court or a justice thereof, in a proceeding

instituted by the state office of election law enforcement [state board of elections], may impose

[a] civil penalt[y]ies, and fines, as provided for [in subdivisions one and two of section 14-126

of this chapter] in this chapter.

3. CONFER APPROPRIATE LAW ENFORCEMENT AUTHORITY ON STATE OFFICE OF

ELECTION LAW ENFORCEMENT

AMEND OTHER STATUTES

The following amendments are submitted to the Commission to enhance cooperation by

the state office of election law enforcement with other law enforcement agencies, provide

necessary authority and investigative tools to the state office of election law enforcement, and

extend the limitations period for the prosecution of Election Law misdemeanors to three years.

Amend Criminal Procedure Law section 2.10 (35)

CRIMINAL PROCEDURE LAW SECTION 2.10 (35) - PEACE OFFICERS

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 2.10 Persons designated as peace officers

Notwithstanding the provisions of any general, special or local law or charter to the

contrary, only the following persons shall have the powers of, and shall be peace officers:

...

35. Special investigators employed by the state office of election law enforcement to

carry out the duties assigned pursuant to section ___________ of the executive law.

Amend Criminal Procedure Law section 1.20 (34) by adding a new paragraph (w)

CRIMINAL PROCEDURE LAW SECTION 1.20 (34) (w) - POLICE OFFICERS

34. “Police officer.” The following persons are police officers:

...

(w) A special investigator employed in the state office of election law enforcement,

while performing the duties assigned pursuant to section ______ of the executive law, for the

purpose of applying for and executing search warrants under article six hundred ninety of this

chapter, and for the purpose of executing warrants of arrest relating to the respective crimes

specified in subdivision thirty-five of section 2.10 of this title.

Amend Criminal Procedure Law section 30.10 (3) to add a new subdivision (h)

CRIMINAL PROCEDURE LAW SECTION 30.10 (3) – TIMELINESS OF PROSECUTIONS; PERIODS

OF LIMITATION

(3) (h) A prosecution for any misdemeanor set forth in the election law must be

commenced within three years after the commission thereof.

4. INSTITUTE A PROCESS FOR AUTOMATIC IMPOSITION OF PENALTIES FOR FAILURE TO

REGISTER AND FAILURE TO FILE

If the goal is to encourage compliance by imposing penalties on those candidates, treasurers

and committees that do not register or do not file the required statements, neither the present system

of hearing officer proceedings and civil litigation nor the prior system of using auto-pilot litigation

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to sue filers after every late report is the best system to accomplish that goal. As the Moreland

Commission noted, treating all non-filer violations the same by suing everyone after each

delinquent filing fails to identify large-scale violations or repeat violators of the campaign finance

laws and unfairly punishes inadvertent non-filings and unsophisticated candidates and treasurers.

Instituting a procedure for the automatic imposition of penalties for missed filings, such as that

utilized when a taxpayer fails to file a tax return, would better encourage compliance than the

cumbersome election enforcement process now in place or the mass lawsuit model that existed

before. To be fair, however, a system of automatic penalty assessment would need to include

sufficient safeguards and discretion to abate such penalties.

Candidates, treasurers, and committees potentially subject to enforcement range from the

statewide offices such as governor to candidates for local offices such as town council or highway

superintendent. Treasurers vary from experienced professional accountants to neighbors and

friends with little or no campaign experience. Any automatic penalty procedure should be based

on the following principles.

• The candidate and treasurer as agents of an authorized committee, and the committee, must

be responsible for filing and subject to penalties for failure to file.

• Make clear that that a candidate is subject to penalties for their own failure to file

disclosures if the candidate has authorized a political committee to fulfill the candidate’s

filing obligation but the committee failed to do so.

• Penalties should apply to violations concerning all statements, including registration and

disclosure statements, as well as all other required filings, such as 24-hour notices and

political communications, required by the Election Law.

• Email addresses, and prompt updating in case of change, must be required for candidates

and treasurers.

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 • Notice of filing deadlines should be readily available to candidates and treasurers via an

online dashboard.

• Filers who failed to timely file should be immediately notified by automated email message

of the missed filing and dates on which potential penalties may be imposed. Accurate

computerized lists of non-filers should be published on the website.

• Notice of intent to impose penalty must be transmitted by email and regular mail before

the imposition of a penalty.

• Imposition of penalties should occur after a set time period for compliance after notice.

• Notice of imposition of penalties should be made by email and regular mail.

• Penalties should be assessed based on the history of the candidate, treasurer and committee.

5. REVISE THE HEARING OFFICER PROCESS, PROVIDE FOR PENALTIES FOR ALL
VIOLATIONS, AND AUTHORIZE HEARING OFFICERS TO IMPOSE PENALTIES

Proposals have been submitted to the Commission suggesting revisions to the election law,

including the hearing officer process provided for in section 3-104 (5). As explained above, the

chief enforcement counsel supports an independent state office of election law enforcement headed

by a chief enforcement counsel instead of a campaign finance board. In addition, the chief

enforcement counsel supports retaining the hearing officer process but revising the manner in

which administrative hearings are conducted under article three of the Election Law. It is

suggested that the hearing officer process be revised to streamline procedures, institute civil

penalties for all violations that may be imposed by a hearing officer, and establish a threshold for

public hearings.6

6
See New York City Bar Association – Safeguarding New York’s Election: The Unfinished Business of the Moreland
Commission to Investigate Public Corruption, https://www.nycbar.org/member-and-career-
services/committees/reports-listing/reports/detail/safeguarding-new-yorks-elections-post-moreland-commission.
Reinvent Albany - 18 Policy Recommendations for a Strong NYS Public Financing System - Revised and Updated,
https://reinventalbany.org/2019/09/reinvent-albany-presents-18-recommendations-to-state-public-campaign-
financing-and-elections-commission/. Testimony to the Public Campaign Financing Commission on Creating an
25
 Under the current statutory scheme, the hearing officer process is an intensive and fact-

specific process that requires the chief enforcement counsel to file a detailed report to the hearing

officer alleging (1) whether substantial reason exists to believe a violation of election law 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

proceeding should be commenced in the supreme court to recover a civil penalty. Each case

prepared for a hearing officer proceeding must be researched as to the individual committee,

candidate, and treasurer. Reviews must be made of committee registrations, filing histories, and

historical compliance or lack of compliance. The report submitted to the hearing officer must

establish that the equities do not favor a dismissal based on whether the violations committed by

the candidate, treasurer, or committee were de minimis, whether the subjects of the complaint

made a good faith effort to correct the violations, and whether the subjects of the complaint have

a history of similar violations.

Election Law section 3-104-a (2) (failure to cure a deficiency) provides one of the bases

for commencing an administrative proceeding pursuant to section 3-104 (5) (a). The law does not,

however, clearly provide for civil penalties for failure to cure a deficiency. As a result, if the chief

enforcement counsel commences a hearing officer proceeding for failure to cure a deficiency, the

chief enforcement counsel would be required to allege, in the second and third prongs of the

detailed report, that the matter must be resolved extra-judicially and that a special proceeding could

not be commenced in the supreme court to recover a civil penalty. Commencing an administrative

proceeding in these circumstances would be fruitless and a waste of resources.

In addition, a hearing officer appointed by the state board of elections currently lacks any

authority to impose penalties for violations found. Therefore, administrative proceedings filed by

Effective and Independent Campaign Finance Board, https://reinventalbany.org/wp-content/uploads/2019/09/Sept-

18-2019-RA-Testimony-to-Public-Financing-Comm-Enforcement.pdf.
26
the chief enforcement counsel do not result in any penalty being imposed by the hearing officer.

If the hearing officer finds that violations occurred, the chief enforcement counsel must then bring

a civil action or special proceeding in Supreme Court and start the process over again seeking

imposition of penalties by the court.

It is recommended that the Commission retain a streamlined administrative hearing process

within the state office of election law enforcement in which hearing officers are empowered to

determine violations, impose penalties based on the severity of the violations alleged, and limit in-

person public hearings based on an established threshold. If this change is made, every section of

the Election Law providing for penalties to be imposed in a special proceeding or civil action

should add the option of an administrative proceeding.

6. WHEN CONSIDERING FUSION VOTING, EXAMINE THE USE OF PLACEHOLDER

CANDIDATES

The Commission is also examining the issue of fusion voting. The chief enforcement

counsel takes no position on this issue except to request that the Commission examine the practice

of using placeholder candidates. The New York Court of Appeals has long recognized that “A

plan to utilize a stand-in candidate who intends to decline in order to permit a Committee to Fill

Vacancies to control a designation, if sufficiently established as a means of circumventing the

policy of the Election Law, may be held invalid.”7 However, the Court also recognized in Matter

of Mahoney v. Moynihan that, “In considering the facts, the general practice of the parties,

particularly the minor parties, to substitute candidates is so prevalent that no one is or should be

deceived. The situation, of course, would be quite different if there were evidence, beyond the

practice itself, to establish actual deception of the voters or members of the party involved. As for

the policy of the Election Law, since the Legislature has known of the practice of substitution of

7
Matter of Fabestein v. Suchman, 26 NY2d 564, 567 (1970).
27
candidates without fraud these many decades, if the practice violates legislative policy, the

Legislature should speak to it by appropriate amendment of the Election Law” (emphasis added).

It is recommended that the Commission address this issue.

IV. CONCLUSION

The time for change in New York Election Law enforcement has come. Establishing an

independent non-partisan election enforcement office with jurisdiction over campaign finance,

including public financing, and enforcement will change the way the campaign finance laws are

enforced.

The state board of elections has demonstrated its intent to inject partisan interference into

the independent enforcement of the election law. The Moreland Commission, made up of a cross-

section of experienced stakeholders of the criminal justice system, recommended the “creat[ion

of] a structurally independent enforcement agency . . . [which] would be independent of the current

Board of Elections . . . would be structured to promote political independence, and

professionalism, and would be a much stronger Election Law watchdog . . . . All election law

enforcement would benefit from a non-partisan, structurally independent, professional enforcer

whose sole purpose is safeguarding the integrity of our elections and our political system . . . .

Campaign Finance and election law enforcement raises a set of interpretation and enforcement

issues that are quite different from voter registration, holding elections, and tallying the results –

the other duties of the Board of Elections. The [Moreland] Commission believes that the

enforcement of state election law related to campaigns should be separated out from the

implementation of elections. Both jobs will be done better if they are separated. With enforcement

handled by an independent agency, the Board of Elections can focus on its constitutional duty as

an elections administrator.” (Preliminary Report of the Moreland Commission to Investigate

Public Corruption [2013], pp. 85).

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 The Public Campaign Financing Commission has the unique opportunity to create such an

independent enforcement agency and establish a comprehensive system of laws governing

elections in New York State. The integrity of the election system is at stake, and the public

deserves nothing less.

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