Title 19 NYCRR Part 935
Procedure for Requesting an Exemption From Filing a Financial Disclosure Statement
Sections
935.1 Definitions
935.2 Procedure
935.3 Commission Action
935.1 Definitions.
(a) Annual compensation shall mean that basic annual salary which an individual receives to perform the duties of the position in which he or she serves. Payment of overtime, a one-time bonus, a performance award which does not become part of the basic annual salary, a lump sum payment for whatever purpose including retroactive payment for a salary increase, uniform or clothing allowance, tuition reimbursement or payment or similar one-time payment which does not become part of the individual's basic annual salary shall not be included in determining annual compensation.
(b) Appointing authority shall mean that individual or body which has the authority by law, rule or regulation to appoint a person to a position, or that individual or body to whom such authority may be properly delegated by law, rule or regulation.
(c) Commission shall mean the State Ethics Commission.
(d) Employee shall mean a State officer or employee of a State agency, as defined in subdivision (g) of this section, who serves in a position which has not been designated policymaking pursuant to §73-a of the Public Officers Law and who earns annual compensation in excess of the filing rate.
(e) Exemption shall mean a waiver from filing a financial disclosure statement pursuant to §73-a of the Public Officers Law.
(f) Filing rate shall mean the job rate of SG-24 as set forth in paragraph a of subdivision one of section one hundred thirty of the Civil Service Law as of April first of the year in which an annual statement of financial disclosure shall be filed.
(g) Financial disclosure statement shall mean that annual statement which must be filed pursuant to §73-a of the Public Officers Law.
(h) State agency shall mean any State department, or division, board, commission or bureau of any State department, any public benefit corporation, public authority or commission at least one of whose members is appointed by the Governor, or State University of New York or the City University of New York, including all their constituent units except community colleges and the independent institutions operating statutory or contract colleges on behalf of the State.
(i) Filing shall mean personal delivery to the offices of the commission for which the individual shall obtain a receipt, or service by certified mail, return receipt requested, postmarked by April 1st of the year for which the request for exemption is made. The date of postmark where service is by certified mail shall be determinative of the date of filing.
(j) Title shall mean the name of the position or job in which an employee serves.
(k) Job classification shall mean a series of titles which may be included under one classification standard or may be part of a promotional series which may be considered for exemption.
(l) Employee organization shall mean an employee organization which is recognized or certified pursuant to §204 of the Civil Service Law to represent public employees of a public employer.
935.2 Procedure.
(a) Each employee, individually, or employee organization or State agency, on behalf of persons who share the same job title or job classification, requesting an exemption from filing a financial disclosure statement, shall file such request with the commission by March 31st for statements due on or before May 15th. An employee who commences service or employment or whose job title changes on or after April 1 who wishes to seek an individual exemption may file such request with the commission within 30 days of commencing service or employment or changing job title. Such filing shall delay the employee's requirement to file a financial disclosure statement until the commission has acted on the request. In the event the commission denies the request, the employee shall have 15 days from receipt of the denial decision to file the financial disclosure statement.
(b) The request for exemption shall include the following information:
(1) name and address of the employee, if the request is on an individual basis, or the name of the employee organization filing or the name of State agency filing and the address and name of the individual authorized to file on behalf of the employee organization or State agency;
(2) the title(s) of the positions or the job classification(s) and a list of each State agency where such title(s) or job classification(s) is located, if known;
(3) a copy of the duties and specifications of the title(s) or job classification(s) for which an exemption is requested; and
(4) a statement to support the position of the filing individual or entity that the title(s) or job classification(s) do not involve the duties which would otherwise preclude an exemption from filing a financial disclosure statement.
(c) The request for exemption must be signed by the individual requesting such exemption or by the authorized representative of the employee organization or State agency which is requesting such an exemption on behalf of title(s) or job classification(s).
(d) (1) An individual who files a request for exemption, must also file a copy of such request with his or her appointing authority and an employee organization which files a request for exemption must also file a copy with all agencies where the title(s) or job classification(s) are located.
(2) The appointing authority, or any State agency where the job title or classification exists, within seven working days, may file a written objection to such a request with the commission based solely on the grounds that the duties of the title(s) or job classification(s) do not permit an exemption to be granted. The objection shall also be filed with the individual or employee organization, as appropriate.
(3) The individual or employee organization, as appropriate, may, within seven working days, file a written response to the objection of the appointing authority or State agency with the commission. The written response shall also be filed with the appointing authority.
(4) Should no filing under paragraph (2) or (3) of this section occur within the time limits provided, the commission may act upon the request for exemption based on the material available to it.
935.3 Commission action.
(a) Upon receipt of a request for an exemption from filing a financial disclosure statement, the commission shall review the material filed to determine whether the duties of the title(s) or job classification(s) include any of the duties which are set forth in §94(k) of the Executive Law, without further inquiry. If no further information is required, the commission shall render its decision on the request before it.
(b) If the commission determines that additional information concerning the content of the duties of a title or job classification is necessary before a determination on an exemption can be made, it may forward the duties description and/or the job title(s) or job classification(s) for which a request for exemption has been filed to the Director of Classification and Compensation for positions in the service of the State of New York or to the authorized individual for other State agencies who is responsible to classify and allocate positions for those State agencies, for a determination of the content of such title(s) or job classification(s).
(c) The Director of Classification and Compensation for the State of New York or the authorized individual for other State agencies shall review the duties of the title(s) or job classification(s) referred by the commission and shall provide information to the commission as to whether the duties of the title(s) or job classification(s) for which an exemption is requested include any of the duties which are set forth in §94(9)(k) of the Executive Law.
(d) (1) Upon a determination that the title(s) or job classification(s) do not include the duties which would otherwise exclude such an exemption, the commission shall, if it determines it is in the public interest, grant such exemption on an individual, title or job classification basis as requested, except as provided in paragraph (3) of this subdivision.
(2) Upon a determination that the title(s) or job classification(s) do include such duties, the commission shall deny the request for an exemption except as provided in paragraph (3) of this subdivision.
(3) Where the commission determines that it is in the public interest to require that an individual file a financial disclosure statement even though the duties may not exclude an exemption, or where the commission determines that the duties of a position require the filing of a disclosure statement and the requirement to file the disclosure statement as set forth in §73-a of the Public Officers Law may not be in the public interest, the commission may require the individual(s) who serve in such title(s) or job classification(s) to file a short form financial disclosure statement which shall contain only that information from the financial disclosure statement required by §73-a which the commission determines is appropriate and necessary for that title or job classification.
(e) The commission shall notify the requesting individual or the employee organization or State agency, as appropriate, of its determination on a request for exemption.
(f) Pending a determination of a request for exemption, an individual serving in a title or job classification for which an exemption has been requested or an individual who has requested an exemption on his or her own behalf shall be required to submit a financial disclosure statement with the commission on or before May 15th of each year in which such a statement is required. The party requesting the exemption may, under compelling circumstances, apply to the commission for an extension to submit a financial disclosure statement until the exemption request is acted upon by the commission. Only in special circumstances as determined by the commission will an extension for submission of a disclosure statement because of a pending exemption request be granted.
(g) Once an exemption has been granted to an individual or to a title or titles or a job classification, an individual, as long as he or she serves in that title or job classification, will not be required to submit a financial disclosure statement in any subsequent year for which one would otherwise be required unless:
(1) the individual is appointed or promoted to a new title or job classification in which such a filing is required; or
(2) the duties of the title or job classification change to include duties which would preclude an exemption from filing a financial disclosure statement; or
(3) the individual serves in a position which is designated as policymaking by his or her appointing authority; or
(4) the commission, upon review of its determination to grant such exception, determines the exemption is no longer appropriate under the law or this rule and regulation.