New York State
Ethics Commission


Advisory Opinion No. 94-10: Application of the financial disclosure requirements of Public Officers Law §73-a to State employees in the "Cancer Research Scientist" title series.

Introduction

The State Ethics Commission ("Commission") previously determined, in Advisory Opinion No. 91-10, that State employees serving as "Research Scientists" exercise responsibilities with respect to applying for grants and loans that preclude the Commission's granting of an exemption, under Executive Law §94(15), from the requirement that they file an annual financial disclosure statement. However, in that opinion, the Commission permitted the filing of a short form statement by Research Scientists.

It has come to the attention of the Commission that State employees serving in the "Cancer Research Scientist" title series were found to be exempt from filing financial disclosure statements. The Commission has reviewed the Civil Service job specification for the Cancer Research Scientist title series and found that it is nearly identical to the specification for the Research Scientist title series.

Therefore, the Commission, in the future, will require Cancer Research Scientists to file the same short form financial disclosure statement as is required of Research Scientists.

Applicable Law

State employees who receive annual compensation in excess of the filing rate (currently $57,509) must file with the Commission an annual statement of financial disclosure [Public Officers Law §73-a(1)(c)(ii)]. Cancer Research Scientists are among those State employees who receive in excess of the filing rate.

Executive Law §94(9)(k) provides that State employees who have not been designated as policymakers by their appointing authority but who are required to file a financial disclosure statement because they earn more than the filing rate may request an exemption from filing. An exemption can be granted if the public interest does not require disclosure and the applicant's duties do not involve certain responsibilities set forth in the statute. With regard to Cancer Research Scientists, the pertinent question is whether their potential job responsibility to negotiate, authorize or approve "the obtaining of grants of money or loans" prevents them from being exempted from the requirement that a financial disclosure statement be filed.

Background

On May 21, 1991, the Commission issued Advisory Opinion No. 91-10, establishing a two-part, short-form financial disclosure filing requirement for approximately 400 State employees serving in the "Research Scientist" series of titles. The Commission found that Research Scientists exercise responsibilities with respect to applying for grants and loans which are similar to those exercised by academics employed by the State and City University systems. The Commission had previously imposed, in Advisory Opinion No. 90-15, a short-form filing requirement for State University of New York ("SUNY") and City University of New York ("CUNY") academic employees. Thus, in Advisory Opinion No. 91-10, the Commission required Research Scientists to file with the Commission the same abbreviated, two-phase financial disclosure forms as are required of those academic employees.

This two-part filing system required all Research Scientists making more than the filing rate to file form "RS-1" with the Commission. Those who also applied for grants were required to also file form "RS-2," with certain information to be updated upon subsequent grant applications within each year. While the goal of the two-part filing was to save paperwork, with only those Research Scientists who applied for grants being required to file a form RS-2, the Commission learned from experience that almost 90% of all Research Scientists apply for grants, requiring the filing of both forms. After the conclusion of a two-year test period, RS-1 and RS-2 were combined to simplify the process.

On May 19, 1992, the Commission issued Advisory Opinion No. 92-5,/a>, revising Advisory Opinion 91-10 to require a single short-form filing from all Research Scientists (form "RS-3"), combining the questions that originally appeared in RS-1 and RS-2.

The history of those State employees serving in the "Cancer Research Scientist" series of titles is different. There are approximately 87 individuals in this title series who receive annual compensation in excess of the filing rate. These individuals serve as Cancer Research Scientists III (SG-25) through VII (SG-68). In 1989, the Public Employees Federation applied, on behalf of all individuals serving in these titles, for an exemption from the filing requirements, as authorized by Executive Law §94(9)(k). The Commission granted that request. Under the Commission's regulations, found in 19 NYCRR Part 935.3(g)(4), an exemption continues from year to year unless the Commission, upon review of its prior determination, determines that an exemption is no longer appropriate under the law. The Commission now undertakes such a review with respect to Cancer Research Scientists.

Discussion

The Commission has reviewed the Civil Service job specification for the Cancer Research Scientist title series,(1) and has found that the position description is nearly identical to that for the Research Scientist title series.(2)

Since the Commission previously determined, as noted above, that State employees serving in the Research Scientist series of titles exercise responsibilities--applying for grants and loans--that preclude the granting of an exemption from the requirement of the filing of a financial disclosure statement, the Commission hereby revokes the previously issued exemption for Cancer Research Scientists.

The Commission finds that State employees serving in the Cancer Research Scientist series of titles must meet financial disclosure filing requirements similar to those imposed on State employees serving in the Research Scientist series of titles. It will, therefore, require that, in the future, Cancer Research Scientists file abbreviated form RS-3.

Conclusion

Pursuant to the authority vested by Executive Law §94(15), the Commission hereby renders its opinion that Cancer Research Scientists are required to file with the Commission the same abbreviated financial disclosure form (form "RS-3") as required of Research Scientists.

The annual filing will track the same cycle that applies to all State employees required to file financial disclosure statements: the Commission will annually disseminate forms to Cancer Research Scientists to be filed on or before May 15 of each year, commencing in 1995.

Cancer Research Scientists who fail to file the required statement with the Commission, or who file a deficient statement, shall be subject to the penalties provided in Executive Law §94 for failure to file or in Public Officers Law §73-a for a deficient filing.

This opinion, until and unless amended or revoked, is binding on the Commission.

All concur:

Joseph M. Bress, Chair

Barbara A. Black
Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members

Dated: June 21, 1994


FORM CRS-3

(Rev. 6/94)

DISCLOSURE STATEMENT FOR
CERTAIN CANCER RESEARCH SCIENTISTS


REPORTING YEAR IS CALENDAR YEAR 1994

Pursuant to State Ethics Commission Advisory Opinion No. 94-10, this form satisfies the filing requirements of Public Officers Law §73-a. Information on this form is available for public inspection pursuant to the rules of the State Ethics Commission.


Name
 
Title of Position
 
Department
 
Facility
 

USE ADDITIONAL SHEETS IF NECESSARY

1. List any office, trusteeship, directorship, partnership, or position of any type, whether or not compensated, held by you or your spouse with any firm, corporation, association, partnership or other organization. DO NOT LIST THE AMOUNT OF COMPENSATION.

 
  NONE


                                   Name and Address
Self/Spouse                 of Organization                 Position                Description                

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

2. List the source and describe the nature of your spouse's income in excess of $1,000 and sources of any income you have earned in excess of $1,000 outside of State employment including honoraria, consultant or lecture fees. DO NOT LIST THE AMOUNT OF COMPENSATION.

 
  NONE


Self/Spouse                                     Source                                         Nature                

________________________________________________________________________

________________________________________________________________________

3. List the name of warrants or stocks, and investment interests including any interests in limited or general partnerships owned by you or your spouse or both. DO NOT LIST THE VALUE.

 
  NONE


Self/Spouse                             Issuing Entity                

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

4. If you are presently working with grant or contract funding or are applying for such funding, list the source and a description of the nature of the sponsored work.

 
  NONE


Source                             Title/Description                

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


I affirm that the above information is true and correct.

___________________________________________________            _______________

                    Signature                                                                                         Date



INFORMATION AND INSTRUCTIONS

WHO MUST FILE

The Ethics in Government Act of 1987, as amended, imposes a financial disclosure filing requirement on State employees who receive annual compensation at a rate equal to or in excess of the job rate for SG-24 (this year, $57,509) and who have not been exempted. The State Ethics Commission has concluded, in its Advisory Opinion No. 94-10, that individuals serving in cancer research scientists titles are not exempt from filing, but must submit a short-form financial disclosure statement in place of the statutorily prescribed statement.

WHEN TO FILE: By May 15, 1995, or within 30 days of appointment to a Cancer Research Scientist title earning annual compensation at a rate equal to or in excess of $57,509.

WHERE TO FILE:

State Ethics Commission
39 Columbia Street
Albany, New York 12207-2717

FILING ASSISTANCE: If you have any questions concerning the completion of this form, you may write to the State Ethics Commission at the above address, or call 1-800-87-ETHIC (1-800-873-8442).

VIOLATIONS:  If you knowingly and wilfully fail to file this form, or give information which you know to be false on the statement, you shall be subject to a civil penalty in an amount not to exceed $10,000.



INSTRUCTIONS TO THE QUESTIONS

The information to be provided is for calendar year January 1 through December 31, 1994.

You must respond to each question. Do not leave any items on the form blank. If a question does not pertain to you, or if you do not have any information to provide in response to a question, indicate this by checking the "none" box. If you fail to respond to each question your form will be returned to you as incomplete.

Question 1

Report your positions and your spouse's positions in any firm, corporation, association, partnership or other organization, except a political party or political organization. You do NOT have to report if you or your spouse are only members of the organization and hold no other offices in the organization.

If the entity is a partnership, indicate whether you are a general or limited partner. A "partnership" is defined as an association of two or more persons who carry on business for profit as co-owners and are personally liable for all debts of the partnership. A limited partner contributes capital only, does not participate in the management and operation of the business and assumes no liability beyond the capital contributed.

If the entity is a corporation, whether for profit or not-for-profit, you must report it if you or your spouse is a director, officer (i.e., President, Vice President, Secretary, Treasurer), or member of any board, executive committee or any other committee of the corporation.

You do NOT have to report your position in an organization if the sole purpose of the organization is religious, social (e.g., boy or girl scouts, athletic groups, alumni or other school associations), political, civic, school associations or self-help (e.g., Alcoholic Anonymous, Neighborhood Watchdog) unless the organization, during the reporting year, received or applied for funds from the State of New York, and you held such an office during the reporting year. You do NOT have to report your position in a union or employee organization which represents employees in your State agency. Do NOT list uncompensated honorary positions.

Question 2

Remember to report income received by, or paid to, you or your spouse in excess of $1,000 from each source during the reporting year.

Report any income, in excess of $1,000, which you derived from activities occurring or work performed during the reporting year and which will not be paid to you until after the reporting year, including profit sharing. DO NOT REPORT THE AMOUNT.

The term "spouse" means your husband or wife, unless you are living separate and apart with the intention of terminating the marriage or providing for permanent separation, or unless separated pursuant to a judicial order, decree or judgment or a legally binding separation agreement. In the case of such intention to terminate, providing for permanent separation or otherwise legal separation, you do not have to report your spouse's information. Indicate whether a judicial order, decree or judgment, or a legally binding separation agreement, or other proof of separation exists.

Question 3

Report the type of securities held by you, your spouse or both of you. Securities such as mutual funds may be listed by broker and nature of investment, rather than by individual security name.

A "warrant" is a certificate entitling the owner to buy a specified amount of stock at a specified time(s) for a specified price. It differs from a stock option only in that options are granted to employees and warrants are sold to the public.

Question 4

Provide a summary describing the nature of each project supported by a grant or contract. Use continuation pages or attachments to the CRS-3 as necessary.


Endnotes

1. New York State Department of Civil Service, Classification Standard for Occ. Code 6163100.

2. New York State Department of Civil Service, Classification Standard for Occ. Code 6162000.



URL: http://www.nysl.nysed.gov/edocs/ethics/94-10.htm