N.Y. Comp. Codes R. & Regs. tit. 22 § 7400.3

Current through Register Vol. 46, No. 51, December 18, 2024

Section 7400.3 - Requesting an exemption from reporting one or more items of information which pertain to an employee's spouse or unemancipated children; statement of m

(a) Definitions.

(1) Commission shall mean the Ethics Commission for the Unified Court System.

(2) Employee shall mean a State-paid judge, justice, officer or employee of the Unified Court System.

(3) File shall mean to make delivery to the offices of the commission personally, electronically or by mail. The filing date shall be the date the document filed is received in the offices of the commission.

(4) Financial disclosure statement shall mean the annual statement approved by the Chief Judge pursuant to subdivision 4 of section 211 of the Judiciary Law.

(5) Job title shall mean the title of the position to which an employee has been elected or appointed.

(6) Rule shall mean Part 40 of the Rules of the Chief Judge of the State of New York (22 NYCRR).

(7) Spouse shall mean husband or wife of the employee filing a financial disclosure statement unless the husband or wife has been living separate and apart from such employee during the entire reporting year:

(i) pursuant to a judicial order, decree or judgment or a legally binding separation agreement; or

(ii) with the intention of terminating the marriage or remaining permanently separated.

(8) Unemancipated child shall mean any son, daughter, stepson or stepdaughter of the employee filing a financial disclosure statement who is under the age of 18 and unmarried.

(b) Scope. Pursuant to section 40.1(i)(7) of the rule, the commission shall permit an employee who is required to file a financial disclosure statement to request an exemption from the requirement to report one or more items of information which pertain to the employee's spouse or unemancipated children. This request will be granted by the commission upon a finding by a majority of the total number of its members without vacancy that the employee's spouse, on his or her own behalf or on behalf of an unemancipated child, or the employee on behalf of an unemancipated child, objects to providing the information necessary to make such disclosure, and that the information that would otherwise be required to be reported will have no material bearing on the discharge of the employee's official duties.

(c) Procedure.

(1) An employee may request an exemption from any requirement to report one or more items of information that pertain to his or her spouse or unemancipated children by filing a written request with the commission on or before:

(i) April 1st of the year in which such exemption is requested, if he or she is employed by the Unified Court System on January 1st, or commences employment from January 2nd through April 15th, of that year; or

(ii) 15 days from the date that the employee commences employment (which includes a change to a new job title that requires him or her to file) if he or she commences employment with the Unified Court System from April 16th through December 31st of the year in which the exemption is requested.

(2) The request for the exemption shall include:

(i) the name, home address, work address, work telephone number, and job title of the employee requesting the exemption;

(ii) the specific information the spouse or employee objects to reporting on the employee's financial disclosure statement;

(iii) a statement that the employee or his or her spouse objects to reporting the information on the financial disclosure statement, giving specific reasons and justifications therefor;

(iv) a statement in support of the employee's claim that the information that would otherwise be required to be reported on the financial disclosure statement will have no material bearing on the discharge of the employee's official duties, giving specific reasons and justifications therefor; and

(v) documentation supporting the aforesaid statements may be annexed to the request.

(3) The request for exemption must be signed by the employee requesting the exemption.

(d) Commission action.

(1) Upon receipt of a request for an exemption from the requirement to report one or more items of information which pertain to an employee's spouse or unemancipated children, the commission shall review the material filed to determine whether an objection has been made by the appropriate person to the reporting of the information, and whether the information for which an exemption is requested will have a material bearing on the discharge of the employee's official duties.

(2) If the commission determines that additional information would be useful, it may request such information from the employee requesting the exemption. Such additional information must be filed with the commission within the time limit set forth in the commission's written request. If the commission has not received such information within the said time limit, it may render its decision on the information available. The commission, in its discretion, may request a meeting with the employee, or his or her spouse, to discuss the exemption request.

(3) Unless the commission decides by a majority of the total members of the commission without vacancy that the employee or his or her spouse objects to providing the information necessary to make disclosure, and that the information that would otherwise be required to be reported will have no material bearing on the discharge of the employee's official duties, the commission shall deny the request for exemption. In applying the material bearing standard to decide exemption requests, the commission weighs competing public and private interests including the following:

(i) whether the disclosure of the information could pose a safety threat to the employee or his or her family, and the nature of that threat, including its seriousness and imminence;

(ii) whether the information may relate in a substantial and important way to the employee's official duties;

(iii) whether the information could reveal or relate to an actual or potential conflict of interest;

(iv) the employee's role in the judicial, administrative or managerial process of the Unified Court System;

(v) in the case of a spousal/child exemption request, whether the filer has access, or can obtain access, to the information required to be reported;

(vi) whether the standard is being applied in the case of a spousal/child exemption request or a deletion request. The employee's burden is far greater when seeking an exemption request. The granting of an exemption request means that the relevant information will not be reported at all on the financial disclosure statement, while the granting of a deletion request means that the information will be reported on the financial disclosure statement, but deleted from the copy made available to the public; and

(vii) such other factors as may be relevant.

If an employee requests a spousal exemption on the grounds that he or she has no knowledge of his or her spouse's assets or income, and that his or her spouse refuses to supply this information to him or her, the employee must so state specifically in the form of an affidavit. The employee must, at a minimum, convince the commission that his or her spouse refuses to provide the information, that he or she has no other source regarding this information, and that he or she has made a bona fide attempt to obtain, and cannot obtain, the information. Other potentially relevant, but not necessarily controlling, matters include the circumstances of, and reasons for, a spouse's refusal to provide the employee with the relevant information, the duration and consistency over time of his or her spouse's refusal to disclose such information to the employee, and whether the employee and his or her spouse file or have filed joint Federal, State or local tax returns. If the employee and his or her spouse have filed a joint tax return, the employee must at a minimum report such information as is available from that return. Judiciary Law, section 211(4) and Part 40 of this Title establish a strong public policy favoring disclosure. Thus employees otherwise required to file, who have requested exemptions, must demonstrate that an individual exception to this policy is warranted.

(4) The commission shall give written notice of its decision to the employee requesting the exemption of its decision.

(e) Statement of marital status. If the husband or wife of the employee filing a financial disclosure statement is not a spouse as hereinbefore defined, the employee shall file with his or her financial disclosure statement a statement signed by the employee indicating that he or she has been living separate and apart from his or her husband or wife for the entire reporting year with the intention of terminating the marriage or remaining permanently separated. This statement shall set forth the date of the separation and the current address of the employee's husband or wife.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 7400.3