New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle U - Division of Criminal Justice Services › Chapter IV - General › Part 6157 - Limits On Administrative Expenses And Executive Compensation › Section 6157.5 - Waivers

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Waivers for
				  limit on executive compensation. The commissioner or his or her designee and
				  the Director of the Division of the Budget may grant a waiver to the limits on
				  executive compensation in section
				  6157.4 
				  of this Part for executive compensation for one or more covered executives, or
				  for one or more positions, during the reporting period and, where appropriate,
				  for a longer period upon a showing of good cause. To be considered, an
				  application for such a waiver must comply with this subdivision in its
				  entirety.
(1) The application must be filed
				  no later than concurrent with the timely submission of the covered provider's
				  Executive Order No. 38 disclosure form required pursuant to section
				  6157.6  of the Part for
				  the reporting period for which the waiver is requested. The application shall
				  be transmitted in the manner and form specified by the commissioner or his or
				  her designee and the Director of the Division of the Budget. The commissioner
				  or his or her designee shall consider untimely waiver applications where a
				  reasonable cause for such delay is shown.
(2) The following factors, in addition to any
				  other deemed relevant by the commissioner or his or her designee and the
				  Director of the Division of the Budget, shall be considered in the
				  determination of whether to grant a waiver:
(i) the extent to which the executive
				  compensation that is the subject of the waiver is comparable to that given to
				  comparable executives in other providers of the same size and within the same
				  program service sector and the same or comparable geographic area;
(ii) the extent to which the covered provider
				  would be unable to provide the program services reimbursed with State funds or
				  State-authorized payments at the same levels of quality and availability
				  without obtaining reimbursement for executive compensation given to a covered
				  executive in excess of the limits in section
				  6157.4 
				  of this Part;
(iii) the nature,
				  size, and complexity of the covered provider's operations and the program
				  services provided;
(iv) the
				  provider's review and approval process for the executive compensation that is
				  the subject of the waiver, including whether such process involved a review and
				  approval by the board of directors or other governing body (if such a board or
				  body exists), whether such review was conducted by at least two independent
				  directors or independent members of the governing body, whether such review
				  included an assessment of comparability data including a compensation survey,
				  and contemporaneous substantiation of the deliberation and decision to approve
				  such executive compensation;
(v)
				  the qualifications and experience possessed by or required for the covered
				  executive(s) or position(s), respectively; and
(vi) the provider's efforts, if any, to
				  secure executives with the same levels of experience, expertise, and skills for
				  the positions of covered executives at lower levels of compensation.
(3) A waiver to the limits set
				  forth in section
				  6157.4 
				  of this Part shall be granted only where a covered provider has demonstrated
				  good cause supporting such a waiver, and has provided any documentation
				  requested by the commissioner or his or her designee or the Director of the
				  Division of the Budget to support such a waiver. Unless additional information
				  has been requested but not received from the covered provider, a decision on a
				  timely submitted waiver application shall be provided no later than 60 calendar
				  days after submission of the application.
(4) If granted, a waiver to a covered
				  provider shall remain in effect for the period of time specified by the
				  commissioner or his or her designee and the Director of the Division of the
				  Budget for the covered executive position(s) at issue, but shall be deemed
				  revoked when:
(i) the executive compensation
				  that is the subject of the waiver increases by more than five percent in any
				  calendar year; or
(ii) upon notice
				  provided at the discretion of the commissioner or his or her designee as a
				  result of additional relevant circumstances.
(5) Unless already publicly disclosed,
				  information provided by a covered provider to the division in connection with a
				  waiver application regarding the limits on executive compensation shall not be
				  subject to public disclosure under the State's Freedom of Information
				  Law.