§ 3-104. State board of elections; enforcement powers.

1. (a) There shall be a unit known as the division of election law
enforcement established within the state board of elections. The head of
such unit shall be the chief enforcement counsel.

(b) The state board of elections shall have jurisdiction of, and be
responsible for, the execution and enforcement of the provisions of
article fourteen of this chapter and other statutes governing campaigns,
elections and related procedures; provided however that the chief
enforcement counsel shall have sole authority within the state board of
elections to investigate on his or her own initiative or upon complaint
alleged violations of such statutes and all complaints alleging
violations shall be forwarded to the division of election law
enforcement.

2. (a) Whenever a local board of elections shall determine, on its own
initiative or upon complaint, or otherwise, that there is substantial
reason to believe a violation of this chapter or any code or regulation
promulgated thereunder has been committed by a candidate or political
committee or other person or entity that files statements required by
article fourteen of this chapter solely with such local board, it shall
expeditiously make an investigation which shall also include
investigation of reports and statements made or failed to be made by the
complainant and any political committee supporting his 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 division of election law enforcement chief
enforcement counsel within ninety days of the start of such
investigation. The chief enforcement counsel may direct the local board
of elections at any time to suspend its investigation so that the
division of election law enforcement can investigate the matter.

(b) The chief enforcement counsel may request, and shall receive, the
assistance of the state police in any investigation it shall conduct.

3. Upon receipt of a complaint and supporting information alleging any
violation of this chapter, or upon his or her own initiative, the chief
enforcement counsel shall determine if an investigation should be
undertaken. The chief enforcement counsel shall, if necessary, obtain
additional information from the complainant or from other sources to
assist such counsel in making this determination. Such analysis shall
include the following: first, whether the allegations, if true, would
constitute a violation of this chapter and, second, whether the
allegations are supported by credible evidence. The chief enforcement
counsel may at any time ask that the board authorize him or her to
exercise the powers which the board is otherwise authorized to exercise
pursuant to subdivisions five and six of section 3-102 of this title.
The board shall vote on whether to grant or refuse to grant such
authority no later than twenty days after the chief enforcement counsel
makes such request. For purposes of considering and voting on such
request, the chief enforcement counsel shall be entitled to participate
in all matters related thereto and shall vote on the board's granting or
refusal to grant such request only when there is a tie. Should the board
not vote on such request within twenty days of its submission, or grant
the chief enforcement counsel's request, the chief enforcement counsel
shall be so empowered to act pursuant to subdivisions five and six of
section 3-102 of this title.

4. If the chief enforcement counsel determines that the allegations,
if true, would not constitute a violation of this chapter or that the
allegations are not supported by credible evidence, he or she shall
issue a letter forthwith to the complainant dismissing the complaint and
notice to the board.

5. (a) If, an individual has failed to cure pursuant to section
3-104-a of this title, or the chief enforcement counsel determines that
substantial reason exists to believe that a person, acting as or on
behalf of a candidate or political committee under circumstances
evincing an intent to violate such law that does not otherwise warrant
criminal prosecution, or has unlawfully violated any provision of this
chapter, the board shall assign a hearing officer, randomly from a list
of prospective hearing officers each of whom shall have been approved by
a majority vote of the board. The chief enforcement counsel shall
provide a written report to such hearing officer as to: (1) whether
substantial reason exists to believe a violation of this chapter has
occurred and, if so, the nature of the violation and any applicable
penalty, based on the nature of the violation; (2) whether the matter
should be resolved extra-judicially; and (3) whether a special
proceeding should be commenced in the supreme court to recover a civil
penalty. The hearing officer shall make findings of fact and conclusions
of law based on a preponderance of the evidence as to whether a
violation has been established and, if so, who is guilty of such
violation on notice to and with an opportunity for the individual or
entity accused of any violations to be heard. However, if the hearing
officer finds that on balance, the equities favor a dismissal of the
complaint, the hearing officer shall dismiss the charges. In determining
whether the equities favor a dismissal, the hearing officer shall
consider the following factors: (1) whether the complaint alleges a de
minimis violation of article fourteen of this chapter; (2) whether the
subject of the complaint has made a good faith effort to correct the
violation; and (3) whether the subject of the complaint has a history of
similar violations. For purposes of making any such findings under this
subdivision, proceedings before the hearing officer shall be governed by
article three of the state administrative procedure act. The chief
enforcement counsel shall adopt the report of the hearing officer and
may, in his or her discretion, commence a special proceeding in the
supreme court pursuant to sections 16-100, 16-114 and 16-116 of this
chapter should the findings of fact and conclusions of law support the
commencement of such proceeding or enter into an agreement to settle
such matter with the subject of the complaint. In the event the chief
enforcement counsel commences a special proceeding, the court shall
afford the subject of the compliant an opportunity to be heard and shall
be empowered to accept, reject or modify the findings of fact and
conclusions of law made by the hearing officer. If the board fails to
produce a list of eligible hearing officers, the chief enforcement
counsel may commence a special proceeding as provided herein in
accordance with recommendations made in his or her report.

(b) If the chief enforcement counsel determines that reasonable cause
exists to believe a violation warranting criminal prosecution has taken
place, the chief enforcement counsel shall present such findings to the
board. Within thirty days of such submission, the board shall vote on
whether to accept or reject such findings. For purposes of voting on
acceptance or rejection of findings by the chief enforcement counsel,
the chief enforcement counsel shall be entitled to participate in all
matters related to the review of his or her report and shall vote on its
acceptance or rejection only when there is a tie. Should the board fail
to vote to either accept or reject the findings within thirty days of
submission of such findings, or should the board accept the findings by
the chief enforcement counsel that there is reasonable cause to believe
that a violation warranting criminal prosecution has taken place, the
chief enforcement counsel shall, forthwith, and in any event no later
than seven calendar days of such failure to accept or reject the
findings by the board, refer such matter to the attorney general or
district attorney with jurisdiction over such matter to commence a
criminal action as such term is defined in the criminal procedure law.

6. Upon notification that a special proceeding has been commenced by a
party other than the state board of elections, pursuant to section
16-114 of this chapter, the chief enforcement counsel shall investigate
the alleged violations unless otherwise directed by the court.

7. The chief enforcement counsel shall prepare a report to be included
in the annual report of the board to the governor, the state board of
elections and legislature, summarizing the activities of the unit during
the previous year.

8. The state board of elections may promulgate rules and regulations
consistent with law to effectuate the provisions of this section.