BILL NUMBER: S106

SPONSOR: KAMINSKY
 
TITLE OF BILL:  An act to amend the penal law, in relation to giving
and/or receiving unlawful benefits

 
PURPOSE:

This bill makes it a crime for public officials to receive or give any
benefit (i.e. gift) with a value in excess of $3,000 simply because of
that person's official position.

Under New York's current unlawful gratuity receiving and giving stat-
utes, a public official must engage in some form of official conduct to
be found guilty. This proposal would eliminate that requirement and make
this type of behavior a crime absent official action taken by the public
official.

 
SUMMARY OF PROVISIONS:

Section one of the bill amends the penal law to create a new crime for
              

giving unlawful benefits. A person is guilty of giving unlawful benefits
when he or she directly or indirectly gives, offers, or promises any
benefit in excess of three thousand dollars to a public official because
of that person's official position. Giving unlawful benefits would be
punishable as a class E felony.

Section two of the bill amends the penal law to create a new crime for
receiving unlawful benefits. A public official is guilty of receiving
unlawful benefits when he or she receives, directly, or indirectly, any
benefit with a value in excess of three thousand dollars simply because
of that person's official position. Receiving unlawful benefits would be
punishable as a class E felony.

Section three of the bill is the effective date.

 
JUSTIFICATION:

Currently, New York does not have a "pure" gift giving prohibition in
the penal law. This bill would create such a statute by not requiring
proof that a gratuity was given "for or because of any particular offi-
cial act. By making this change, the bill would effectively make it a
crime to give a public official a gift simply because of his or her
official position. This loophole in the law was recently highlighted in
the Supreme Court's decision in McDonnell v. United States - which
effectively held that the acts former Virginia Governor Bob McDonnell
undertook in exchange for gifts were not official enough to qualify as
"official" government acts for purposes of the bribery or theft of
honest services statutes.

At its most basic premise, politicians should not be accepting anything
of value, money or otherwise simply for doing their jobs. It is time we
make that abundantly clear by making the ability to give gifts to offi-
cials just for the sake of it illegal.

It should be noted this proposal was also made by the New York State Bar
Association Government Ethics Task Force in 2011.

 
LEGISLATIVE HISTORY:
S.11-A- 2017/2018
S.8169- 2016

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.