Advisory Opinion 04-08

New York State Ethics Commission
Alfred E. Smith State Office Bldg.
80 South Swan Street, 11th Floor, Suite 1147
Albany, NY 12210

INTRODUCTION

In Advisory Opinion No. 91-10, dated May 21, 1991, the New York State Ethics Commission ("Commission") concluded that because State employees in the Research Scientist series exercise responsibilities with respect to applying for grants and loans which are similar to academic employees employed by the State University (“SUNY”) and City University (“CUNY”) systems, Research Scientists would be able to meet their financial disclosure requirements by completing “the abbreviated, two-phase” financial disclosure forms similar to the ones that the Commission authorized for SUNY and CUNY academic employees.^{^[1]} (See, Advisory Opinion No. 90-15 .)

In Advisory Opinion No. 92-5, dated March 19, 1992, the Commission permanently adopted the short form process for Research Scientists. The Commission also found that, because 90% of the Research Scientists applied for grants on a regular basis as part of their job responsibilities, all would be required to file the four question disclosure statement. However, unlike SUNY and CUNY academic employees who were to file their forms with their campuses annually by November 15^th to comport with the academic calendar, Research Scientists were required to submit their forms annually to the Commission by May 15^th consistent with the deadline for other required filers.

In Advisory Opinion No. 03-06, the Commission revisited its earlier opinions, including the rationale which lead to the short form filing process and determined that it would end the financial disclosure process applied to SUNY academic employees created by Advisory Opinion No. 90-15 and rendered as permanent in Advisory Opinion No. 93-06. The Commission based its determination on the following: (1) an Office of State Comptroller (“OSC”) audit report which found lapses in the filing procedure and review of disclosure forms submitted by SUNY academic employees; (2) the exponential surge in externally funded grants to SUNY; (3) an increased emphasis by the State on collaborative efforts between business and academia to, in part, generate economic development and bring high technology to various regions of the State; (4) technological advances which now render electronic filing of financial disclosure statements an efficient alternative; and (5) the Commission’s statutorily-mandated oversight for detecting actual and potential conflicts of interest among all State employees.

In Advisory Opinion No. 04-04, the Commission similarly ended the abbreviated financial disclosure process for CUNY academic employees by requiring that they, too, complete the statutory form.

While the Research Scientist title series is not implicated by the OSC audit report referred to in Advisory Opinion No. 03-06, many of the conditions noted by the Commission in that opinion are also present with respect to Research Scientists. These conditions include significant funding by external grants, collaborative efforts involving government and the private sector, the inadequacies of the previously used abbreviated disclosure form, and the current availability and ease of electronic filing. ^[2]

As Research Scientists are similarly situated to their SUNY and CUNY counterparts and because there appears to be no convincing rationale, as discussed in Advisory Opinion No. 03-06, for retaining the short form filing process, the Commission concludes that the financial disclosure process created and embodied in Advisory Opinion Nos. 91-10 and 92-5 is hereby discontinued for State employees serving in the Research Scientist series.^{^[3]}

Beginning with the 2004 filing year,^{^[4]} Research Scientists, who earn in excess of the filing rate, will be required to complete the statutorily-mandated financial disclosure statement set forth in Public Officers Law §73-a, by May 15, 2005. Electronic filing of the financial disclosure statements, currently available to all State employees, will be made available to all Research Scientists. In addition, any Research Scientist who is not engaged in obtaining grants or any other activity as specified in Executive Law §94(9)(k), may seek an exemption from filing the statutory disclosure statement by filing an exemption request with the Commission by April 1^st of the year for which the request for exemption is made [see, 19 NYCRR Part 935.1(i)].^{^[5]}

This opinion, unless and until amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in their request for an opinion or related supporting documentation.

All Concur:
Paul Shechtman, Chair
Carl H. Loewenson, Jr.
Lynn Millane
Susan E. Shepard, Members

[1] A one question form was submitted by Research Scientists who did not apply for grants; a four question form was required for those who did.

[2] The ethical concerns surrounding external funding for Research Scientists was addressed, for example, in Advisory Opinion No. 97-22, where the Commission held that a Research Scientist, as an outside activity, could not serve as a consultant to a pharmaceutical company that had invested funds in a State laboratory which he oversees.

[3] The Commission notes that Research Scientists, who also serve in academic status, are exempt from the limitations on the receipt of honoraria and reimbursement for travel expenses to the extent that publication of books and articles, delivery of speeches or attending meetings or conferences are within the discipline of the individual involved (see, 19 NYCRR Part 930.7). While the previous short form did require honoraria in excess of $1,000 to be reported, travel reimbursement in excess of $1,000 was not required to be reported but is required in response to Question 10 on the statutory form.

[4] Public Officers Law §73-a(1)(c)(ii) requires employees of State agencies who are designated as policymakers by their appointing authority or who earn an annual salary in excess of the job rate of State Grade 24 [See, Public Officers Law §73-a(1)(l)] to file the annual statement of financial disclosure.

[5] Policymaking employees may not seek such an exemption [see, Executive Law §94(9)(k)].