New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle S - Division of Housing and Community Renewal › Chapter XI - Miscellaneous Provisions › Part 2658 - Limits On Administrative Expenses And Executive Compensation › Section 2658.6 - Waivers

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Waivers for
				  limit on executive compensation. The office or its designee and the Director of
				  the Division of the Budget may grant a waiver to the limits on executive
				  compensation in section
				  2658.5 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 subsection in its entirety.
(1) The application must be filed no later
				  than concurrent with the timely submission of the covered provider's EO No. 38
				  disclosure form required pursuant to 2658.7 of this Part for the reporting
				  period for which the waiver is requested. The application shall be transmitted
				  in the manner and form specified by the office or its designee and the Director
				  of the Division of the Budget. The office shall consider untimely waiver
				  applications where a reasonable cause for delay is shown.
(2) The following factors, in addition to any
				  other deemed relevant by the office or its 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
				  2658.5 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
				  2658.5 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 office or
				  its 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 office or its 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 office or its designee as a result of
				  additional relevant circumstances.
(5) Unless already publicly disclosed,
				  information provided by a covered provider to the office 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.