Grygas v. New York State Ethics Com'n
| Decision Date | 06 April 1990 |
| Citation | 147 Misc.2d 312,554 N.Y.S.2d 779 |
| Parties | Daniel L. GRYGAS, Martin E. Schwartz, Madeline Schwartz, Oswald Sykes, Myron A. Hofer, Barbara Zaron and Organization of New York State Managerial/Confidential Employees, Inc., Petitioners-Plaintiffs, v. The NEW YORK STATE ETHICS COMMISSION; the Public Advisory Council to the New York State Ethics Commission; Edward V. Regan, as Administrative Head of the Department of Audit and Control; Patricia B. Adduci, as Commissioner of the New York State Department of Motor Vehicles; Richard C. Surles, as Commissioner of the New York State Office of Mental Health; and Cesar A. Perales, as Commissioner of the New York State Department of Social Services, Respondents-Defendants. |
| Court | New York Supreme Court |
Hinman, Straub, Pigors & Manning, P.C., Albany, for petitioners-plaintiffs.
Robert Abrams, Atty. Gen., New York State Dept. of Law, Albany, for respondents-defendants.
In Watkins v. New York State Ethics Commission, 147 Misc.2d 350, 554 N.Y.S.2d 955 (Albany County Supreme Court, Joseph Harris, J., decided March 21, 1990), this Court upheld the constitutionality of the Ethics in Government Act (L.1987, ch. 813), as it related to the financial disclosure requirements of Public Officers Law, section 73-a, against general attacks under the 1st, 4th, 5th, and 14th Amendments to the United States Constitution, and their counterparts under the New York State Constitution. This lawsuit, a combined CPLR, Article 78, proceeding, and an action for a Declaratory Judgment pursuant to CPLR, sec. 3001, continues the attack on the constitutionality of the Ethics in Government Act upon the following further grounds: (1) That the Legislature, in violation of the separation of powers provision of Article III, section 1, of the New York State Constitution, delegated to state agencies, and to the New York State Ethics Commission, the authority to determine which state employees are "policy makers" for the purpose of financial disclosure, without meaningful standards and guidelines, and that the designations of petitioners Grygas and Sykes by their respective appointing authorities as holding policy-making positions for purposes of financial disclosure under the Ethics in Government Act are arbitrary, capricious and irrational; (2) That the Ethics Commission has promulgated no procedures that substantially conform to the requirements of Article 3 of the State Administrative Procedure Act, as mandated by the Ethics in Government Act; and (3) That the New York State Ethics Commission denied the requests of petitioners Martin Schwartz and Oswald Sykes for exemption from financial disclosure without making findings of fact and without stating specific reasons or the basis for said determinations.
Petitioner Daniel L. Grygas is an employee of the Department of Audit and Control, holding the competitive civil service title of "Supervisor of Data Processing Operations"; petitioner Martin E. Schwartz is an The New York State Legislature enacted the "Ethics in Government Act" (hereinafter referred to as the "Ethics Law") as Chapter 813 of the Laws of 1987, and which is now encompassed in the Consolidated Laws as Executive Law, section 94 and Public Officers Law, section 73-a. The provisions relevant to this proceeding became effective January 1, 1989.
employee of the Department of Motor Vehicles, holding the competitive civil service title of "Senior Motor Vehicle Referee"; petitioner Oswald Sykes is an employee of the Office of Mental Health, holding the competitive civil service title of "Chief of Mental Health Treatment Services"; petitioner Myron A. Hofer is an employee[147 Misc.2d 314] of the Office of Mental Health, holding the competitive civil service title of "Psychiatrist III"; petitioner Barbara Zaron is an employee of the New York State Department of Social Services, holding the competitive civil service title of "Principal Social Services Program Specialist"; she sues individually and as President of petitioner Organization of New York State Managerial/Confidential Employees, Inc. ("OMCE"); a substantial percentage of OMCE's membership is required to file financial disclosure statements; all of the above individual petitioners are required to file a financial disclosure statement under the Ethics in Government Act; petitioner Madeline Schwartz is the spouse of petitioner Martin Schwartz, and although she is not required to file a financial disclosure statement, she contests the right of the Ethics Commission to compel from her spouse information pertaining to her private affairs. Each of the above petitioners has standing, in whole or in part, to bring this lawsuit. (See: Watkins v. New York State Ethics Commission, supra; Matter of Dairylea Co-op. v. Walkley, 38 N.Y.2d 6, 377 N.Y.S.2d 451, 339 N.E.2d 865)
Executive Law, sec. 94, established a New York State Ethics Commission (hereinafter referred to as the "Commission"), charged with administering the Ethics Law with respect to, inter alia, state officers and employees. The Ethics Law requires "officers and employees" of State agencies who receive annual compensation in excess of $30,000 1 per year or who hold policy-making positions, as annually determined by their appointing authority, to file with the Commission, by May 15 in each year, an "annual statement of financial disclosure" (hereinafter referred to as "Disclosure Statement"). This Disclosure Statement, the content of which is prescribed in Public Officers Law, sec. 73-a(3), compels a detailed and specific accounting of the assets and liabilities of the reporting individual and his or her spouse.
The information contained in Disclosure Statements will be available for public inspection except the categories listing the value or amount of any asset or liability or any item which is deleted for purposes of public disclosure in accordance with procedures hereinafter described. Executive Law, sec. 94(17)(a)(1).
The Ethics Law requires the Commission to promulgate guidelines to assist appointing authorities in determining which employees hold "policy-making" positions for the purpose of the statute. Executive Law, sec. 94(9)(d). Pursuant to this direction, the Commission did issue "Guidelines for Determination of Persons in Policy-Making Positions (hereinafter referred to as "Guidelines").
Each appointing authority is required annually to determine which employees hold "policy-making" positions and to file a written list of such positions with the Commission. Public Officers Law, sec. 73-a(1)(c)(ii).
State employees earning in excess of $30,000 (now $53,171) per year, who are not designated by their appointing authority as policy-makers may apply to the Commission for an exemption from the financial disclosure filing requirement. Those who must file a Disclosure Statement by reason Exemptions may be granted, pursuant to Executive Law, sec. 94(9)(k), where in the discretion of the Commission, the public interest does not require disclosure and the applicant's duties do not involve the negotiation, authorization or approval of:
of being designated a policy-maker are not eligible to apply for an exemption.
(i) contracts, leases, franchises, revocable consents, concessions, variances, special permits or licenses as defined in Section 73 of the Public Officers Law;
(ii) the purchase, sale, rental or lease of real property, goods or services or a contract therefor;
(iii) the obtaining of grants of money or loans; or
(iv) the adoption or repeal of any rule or regulation having the force and effect of law.
The positions held respectively by petitioners Grygas, Sykes, Hofer and Zaron, have been designated by their respective appointing authorities as "policy-making", and accordingly these petitioners are not eligible to apply for an exemption from financial disclosure under Executive Law, sec. 94(9)(k). The position held by petitioner Martin Schwartz was not designated as "policy-making"; thus as an employee receiving a salary in excess of the threshold he was required to file a Disclosure Statement and was eligible to file for an exemption; he did so, and his application was denied without any finding of fact in support of the determination.
The Public Advisory Council established by the Ethics Law is empowered to permit an employee required to file a Disclosure Statement to request a deletion of items of information on the copy of the Disclosure Statement made available for public inspection where the information will have no material bearing on the discharge of the persons official duties, or an exemption from reporting items of information pertaining to one's spouse or children where the spouse objects to providing the information, and where the information will have no material bearing on the discharge of that person's official duties. Executive Law, sections 94(18)(h)(1) and (2).
Petitioner Hofer filed a request with the Public Advisory Council for deletion of certain items in his Disclosure Statement from public disclosure. As of the submission of this case, said request had not been acted upon.
Petitioners contend that the Ethics Law violates the separation of powers doctrine set forth in Article III, section 1, of the New York State Constitution, alleging that it improperly delegates the authority to state agencies and to the Ethics Commission to determine which state employees are "policy-makers" without at the same time providing any meaningful standards or guiding principles. This contention is without merit.
Petitioners fall prey to the age-old fallacy known colloquially as mixing apples and oranges. The improper delegation of legislative power doctrine is primarily a substantive concept prohibiting an administrative agency from "making law." Such is not the instant case. In the instant case it is the Legislature itself that has determined the...
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