Title 19 NYCRR Part 941
Adjudicatory Proceedings and Appeals Procedures
Sections
941.1 Intent and purpose (Amended by Emergency Adoption effective June 26, 2008.)
941.2 Definitions (Amended by Emergency Adoption effective June 26, 2008.)
941.3 Notice of reasonable cause (Amended by Emergency Adoption effective June 26, 2008.)
941.4 Notice of hearing (form) (Amended by Emergency Adoption effective June 26, 2008.)
941.5 Time and place of hearing
941.6 Evidence and proof (Amended by Emergency Adoption effective June 26, 2008.)
941.7 Representation
941.8 Oaths
941.9 Adjournments
941.10 Time limits
941.11 Decision after hearing or proceeding
941.12 Conduct of hearings
941.13 Hearing officer
941.14 Powers and duties of hearing officers
941.15 Decisions
941.16 Fines, penalties
941.17 Record of hearing
941.18 Privacy/confidentiality (Amended by Emergency Adoption effective June 26, 2008.)
941.19 Appeals from executive director's denials to delete or exempt certain information from the financial disclosure statement (Amended by Emergency Adoption effective June 26, 2008.)
Section 941.1 Intent and purpose.
Executive Law, section 94 subdivision (13) authorizes the Commission on Public Integrity to adopt rules governing the conduct of adjudicatory proceedings and appeals relating to the assessment of the civil penalties; rules relating to appeals taken pursuant to denials of requests to delete or exempt certain information from a financial disclosure statement authorized in paragraph (h) or paragraph (i) of subdivision (9) of section 94 of the Executive Law; and rules relating to appeals taken from hearing officer final decisions. In adjudicatory proceedings and appeals undertaken pursuant to the Ethics in Government Act, Section 107 of the Civil Service Law and Article one-A of the Legislative Law, as amended by the Public Employee Ethics Reform Act of 2007 (Chapter 14, Laws of 2007), it is the intention and purpose of the Commission on Public Integrity to afford all parties due process protection and fair and just resolution of all matters. The purpose of the Public Employee Ethics Reform Act of 2007 is to strengthen the public’s trust and confidence in government. Through effective enforcement, including adjudication, this purpose can be accomplished.
Section 941.2 Definitions.
(a) Appellant shall mean the recipient of a denial by the executive director for deletion or exemption of certain information from a financial disclosure statement who wishes to appeal or has appealed that denial to the members of the commission.
(b) Commission shall mean New York State Commission on Public Integrity established pursuant to section 94 of the Executive Law, which may delegate the authority to act as provided in these rules and regulations to its executive director.
(c) Executive director shall mean executive director of the Commission on Public Integrity as appointed pursuant to section 94(9)(a) of the Executive Law.
(d) Financial disclosure statement shall mean annual statement of financial disclosure which is required to be filed pursuant to section 73-a of the Public Officers Law.
(e) Hearing officer shall mean the presiding officer in adjudicatory hearings conducted pursuant to this Part.
(f) Hearing shall mean any adjudicatory proceeding held by the commission to determine whether a violation of sections 73, 73-a or 74 of the Public Officers Law, section 107 of the Civil Service Law or article one-A of the Legislative Law has occurred.
(g) Respondent shall mean any State officer or employee covered by the provisions of sections 73, 73-a or 74 of the Public Officers Law or section 107 of the Civil Service Law, or any lobbyist or client, as such terms are defined in article one-A of the Legislative Law, who is the subject of a hearing held by the commission.
Section 941.3 Notice of reasonable cause.
(a) If the commission, subsequent to an investigation of a possible violation of sections 73, 73-a or 74 of the Public Officers Law, section 107 of the Civil Service Law or article one-A of the Legislative Law, determines that there is reasonable cause to believe that a violation has occurred, it shall send a notice of reasonable cause:
(1) to the person who is the object of the investigation;
(2) to the complainant, if any;
(3) in the case of a statewide elected official, to the Temporary President of the Senate and the Speaker of the Assembly; and
(4) in the case of a State officer or employee, to the appointing authority for such person.
Section 941.4 Notice of hearing (form).
(a) Where the commission elects to go forward with a hearing to determine whether a civil penalty should be assessed for a violation of sections 73, 73-a or 74 of the Public Officers Law, section 107 of the Civil Service Law or article one-A of the Legislative Law, it shall serve a written notice, by certified mail or other appropriate method of service authorized under the Civil Practice Law and Rules, to the parties and their representatives of record at least 20 calendar days prior to the date of any hearing under these rules. The notice of hearing shall contain the following:
(1) a statement of the time and place of the hearing;
(2) a statement of the nature of the hearing;
(3) reference to particular statutes and rules relevant to the hearing;
(4) a short, plain language statement of the violations asserted; and
(5) a statement for hearing impaired parties and participants concerning the provision of deaf interpretation without charge.
(b) A plain language summary of these rules shall accompany each notice of hearing which is sent to a party cited for a violation of sections 73, 73-a or 74 of the Public Officers Law, section 107 of the Civil Service Law or article one-A of the Legislative Law.
(c) The notice of hearing shall contain information concerning circumstances under which an adjournment may be granted and the result of failure to appear for a scheduled hearing.
(d) The notice of hearing shall inform the parties and their representatives of the right of each party to be represented, to testify, to produce witnesses, to present documentary evidence, and to examine opposing witnesses and evidence.
Section 941.5 Time and place of hearing.
(a) The notice of hearing shall inform the parties of the time and place of hearing.
(b) The time and place of hearing shall not be changed unless a party formally requests a change pursuant to the adjournment request procedure contained in section 941.10 of this Part and the hearing officer determines that sufficient cause has been set forth for such a change of time and place in a timely manner.
(c) The time and place of hearing shall, as much as practicable, take into account the convenience of the parties and the availability of witnesses.
Section 941.6 Evidence and proof.
(a) The formal rules of evidence do not apply with respect to any hearings under the commission’s jurisdiction. Objections to evidentiary offers may be made and shall be a part of the record. Subject to these rules, any party may, for the purpose of expediting the hearing, and when the interests of the parties will not be substantially prejudiced thereby, submit all or part of the evidence in written form.
(b) The hearing officer may exclude irrelevant or unduly repetitive evidence or cross examination from any hearing.
(c) The burden of proof shall be on the party who initiated the hearing unless otherwise provided by statute.
(d) No decision or determination by the hearing officer, the executive director or the commission shall be made except on consideration of the record as a whole or such portions thereof as may be cited by any party to the hearing and as supported by and in accordance with substantial evidence.
(e) Each party shall have the right of cross examination.
(f) Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the commission. When official notice is taken, every party shall be given notice thereof and shall on timely request be afforded an opportunity prior to decision to dispute the fact or its materiality.
Section 941.7 Representation.
Any person compelled to appear in person or who voluntarily appears in any hearing herein described shall be accorded the right to be accompanied, represented and advised by counsel. Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others in any hearing.
Section 941.8 Oaths.
(a) All oaths required by these rules may be taken before any person authorized to administer oaths within the State of New York.
(b) Oaths shall be administered to all witnesses who testify or appear in any hearing conducted pursuant to these rules.
Section 941.9 Adjournment.
(a) A hearing officer shall grant an adjournment of any hearing conducted pursuant to these rules only for good cause.
(b) Written requests for adjournment shall be submitted to the hearing officer of record in the hearing for which the adjournment is sought. The request must be accompanied by an affidavit which contains sufficient detail to allow the hearing officer to rule on the request.
Section 941.10 Time limits.
(a) Except by consent of the parties, every hearing conducted pursuant to these rules shall be brought to conclusion within 180 days of the date of the hearing specified in the notice of hearing. An adjournment or continuance granted at the request of the respondent or by mutual consent of the parties will extend the period of time for conclusion by the length of time the adjournment or continuance is granted.
(b) The commission, the executive director, or the hearing officer may, at any time prior to the expiration of the time limits delineated above, extend the time period by making a determination that the time provided is insufficient to complete the hearing and shall state sufficient reasons therefor. This extension shall not continue for a period longer than 90 days after the expiration of the original 180 day period during which the hearing should have been concluded.
(c) Parties to any hearing are required to file all papers, statements, proofs, and other evidence with the hearing officer, executive director or commission at a time to be designated by such officer. The hearing officer, executive director or the commission will grant an extension of time for filing such matters only upon formal request.
(d) Failure by the hearing officer, the executive director or the commission to adhere to time limits established by this section shall be reviewable under article 78 of the Civil Practice Law and Rules in a proceeding in the nature of mandamus.
Section 941.11 Decision after hearing.
(a) All final recommendations of the hearing officer and all of the decisions of the executive director and the commission shall be in writing or stated in the record and shall include findings of fact, conclusions of law, reasons for the decision and when appropriate, direct that specific action be taken by the commission. The final decisions of the commission and the executive director shall be binding upon the commission.
(b) The commission shall mail or deliver to each party to the hearing and to its representatives of record a copy of all recommendations of the hearing officer and all final decisions of the executive director and the commission.
(c) Except in matters ex parte, members or employees of the commission assigned to make a decision or to make findings of fact and conclusions of law in any hearing shall not communicate, directly or indirectly, in connection with any issue of law, with any person, party or its representative of record, except upon notice and opportunity for all parties to participate. Any such member or employee may communicate with other commission members or employees and may have the aid and advice of agency staff including counsel to the commission, other than staff which has been or is engaged in the investigative or prosecuting functions in connection with the case under consideration or factually related case.
(d) The commission shall maintain the final decision in each hearing where a notice of civil assessment has been imposed, indexed by name or party and subject matter. The index and the notice of civil assessment, if any, shall be made available for public inspection and copying except as provided in section 941.17 of this Part. Such decisions shall be so filed and indexed within 60 days after having been rendered.
Section 941.12 Conduct of hearings.
(a) The hearing officer, exercising discretion, may elect to conduct any hearing under these rules ex parte after a showing that respondent and its representative of record have been notified by certified mail of the pending hearing or otherwise served with notice of the hearing. The respondent shall at no time be deprived of the opportunity to appear; however, failure to appear after service of notice shall not preclude a decision by the hearing officer and the commission, upon proof of service, to proceed with the scheduled hearing. Proof of service shall consist of a signed certified mail receipt or signed affidavit.
Section 941.13 Hearing officer.
(a) A hearing officer designated by the executive director shall conduct all hearings under these rules and shall exercise the power and authority of presiding officers or hearing officers as defined by the State Administrative Procedure Act (SAPA), any other pertinent statute and these regulations. The hearing officer shall be an individual who has in no way been involved with the case in question.
Section 941.14 Powers and duties of hearing officers.
(a) A hearing officer is authorized to do the following in any hearing to which assigned:
(1) Administer oaths or affirmations.
(2) Sign and issue subpoenas in the name of the commission, at the request of any party or the direction of the commission, requiring attendance and giving of testimony by witnesses and the production of books, papers, documents and other evidence. Subpoenas shall be regulated by the Civil Practice Law and Rules. Nothing herein contained shall affect the authority of an attorney for a party to issue such subpoenas under the provisions of the Civil Practice Law and Rules.
(3) Provide for the taking of testimony by deposition as agreed by both parties where a potential witness is unavailable to testify in a hearing.
(4) Regulate the course of the hearings, set the time and place for continued hearings and fix the time for filing of briefs and other documents for review by the hearing officer prior to the issuance of findings of fact and recommendations.
(5) Direct the parties to appear and confer to consider the simplification or settlement of the issues and/or stipulations as to the underlying facts by consent of the parties.
(6) Prepare findings of fact and recommendations.
Section 941.15 Decisions.
(a) At the close of the hearing, the hearing officer shall make findings of fact and a recommendation as to the appropriate penalty to be assessed or any other action to be taken. The hearing officer shall transmit proposed findings of fact and recommendation to the parties and their representatives and to the commission for approval.
(b) The parties shall have an opportunity to respond in writing in the form of a brief to the findings of fact and recommendation of the hearing officer. The briefs shall be directed to the commission for its consideration within 10 days of the hearing officer’s transmittal of the findings of fact and recommendation to the commission. The briefs may not include or discuss evidence which is not a part of the official record of the hearing.
(c) The commission shall have 60 days from receipt of the briefs, or as soon thereafter as possible, in which to issue a final decision. The commission may adopt the findings of fact and recommendation of the hearing officer in whole or in part, or it may reverse, remand and/or dismiss the hearing officer’s finding of fact and recommendation based upon the record produced at the hearing.
Section 941.16 Fines, penalties.
(a) The commission’s assessment of civil penalties made pursuant to section 94(13) of the Executive Law shall not preclude its referral of other violations of law to a prosecutor for criminal prosecution.
(b) If the alleged violation has been established, and the commission determines in light of all the circumstances that the violation is not serious enough to warrant assessment of a civil penalty, the commission, in its discretion, may take such other action as appropriate including, but not limited to, a written admonition or a recommendation that disciplinary action be taken. The commission may forward a copy of such admonition or recommendation for disciplinary action to the individual’s appointing authority, as appropriate.
Section 941.17 Record of hearing.
(a) The record in hearings under these rules shall include:
(1) all notices, pleadings, motions, and intermediate rulings;
(2) evidence presented;
(3) a statement of matters officially noticed except matters so obvious that a statement of them would serve no useful purpose;
(4) questions and offers of proof, objections thereto, and rulings thereon;
(5) proposed findings and exceptions, if any; and
(6) any decision, determination, opinion, order or report rendered.
(b) The commission shall make available a complete record of all hearings in which the commission has issued a final decision to any party to that hearing. The commission shall make this record available upon reasonable notice and written request prior to the commencement of any judicial review. The commission shall charge the reasonable cost of preparing such record to the requesting party.
(c) A written transcript for all hearings conducted pursuant to these rules shall be provided to any party to a hearing. This transcript shall be made available upon reasonable notice and written request following the conclusion of the hearing. The commission shall charge the requesting party for the reasonable cost of preparing such transcript.
Section 941.18 Privacy/confidentiality.
(a) Notwithstanding the provisions of article 6 of the Public Officers Law the only records of the commission which shall be available for public inspection and copying are:
(1) the information set forth in the annual statement of financial disclosure filed pursuant to section 73-a of the Public Officers Law, except the categories of value or amount, any other item of information deleted or exempted pursuant to paragraph (h) or (i) of subdivision 9 of section 94 of the Executive Law and all information that is the subject or part of a request or appeal seeking deletion or exemption pursuant to section 941.19 of this Part, which shall remain confidential;
(2) notices of delinquency sent under subdivision 11 of section 94 of the Executive Law;
(3) notices of reasonable cause sent under paragraph (b) of subdivision 12 of section 94 of the Executive Law;
(4) notices of civil assessment imposed under section 94 of the Executive Law which shall include a description of the nature of the alleged wrongdoing, the procedural history of the complaint, the findings and determinations made by the commission, and any sanction imposed;
(5) the terms of any settlement or compromise of a complaint or referral which includes a fine, penalty or other remedy; and
(6) those required to be held or maintained publicly available pursuant to article one-A of the Legislative Law.
(b) Notwithstanding the provisions of article 7 of the Public Officers Law, no meeting or proceeding of the commission, including any proceeding contemplated under paragraph (h) or (i) of subdivision 9 of section 94 of the Executive Law, shall be open to the public, except as expressly provided otherwise by the commission or as is required by article one-A of the Legislative Law.
(c) Information which would reveal confidential material protected by Federal or State statute, shall be deleted from any final decision, order, determination or declaration issued by the commission.
Section 941.19 Appeals from executive director’s denials to delete or exempt certain information from financial disclosure statements.
(a) Grounds for appeal of the executive director’s denial to delete or exempt certain information from the financial disclosure statement.
(1) Any person required to file a financial disclosure statement whose written request for deletion of one or more items of information as provided in Executive Law section 94(9)(h) has been denied in writing by the executive director, may file a written appeal of such denial, called a notice of appeal, within 15 calendar days of receipt of such denial, with the members of the commission pursuant to these rules.
(2) Any person required to file a financial disclosure statement whose written request for exemption from any requirement to report one or more items of information that pertain to such person’s spouse or unemancipated children as provided in Executive Law section 94(9)(i) has been denied in writing by the executive director, may file a written appeal of the denial within 15 days of receipt of such denial, with the members of the commission pursuant to these rules.
(b) Confidentiality of information related to the executive director’s denials to grant deletion or exemption requests.
(1) Pending any application for deletion or exemption to the executive director or notice of appeal filed with the members of the commission, all information which is the subject or a part of the application or appeal shall remain confidential. Upon an adverse determination by the members of the commission, the reporting individual may request, within five calendar days of receipt of an adverse determination, and upon such request the commission shall provide, that any information which is the subject or part of the application remain confidential for a period of thirty days following notice of such determination. In the event that the reporting individual resigns from office and holds no other office subject to the jurisdiction of the commission, the information shall not be made public and shall be expunged in its entirety.
(c) Notice and procedure for appeal from the executive director’s denial to grant a deletion or exemption request.
(1) A notice of appeal must be filed with the members of the commission within 15 calendar days of receipt by the appellant of a denial by the executive director. The notice of appeal must be in writing, must provide a clear statement of the reasons for appeal, and shall be addressed to the chairman of the commission at the address provided on a document accompanying the denial by the executive director which shall include such information and the procedure for appeals.
(2) Upon receipt of the notice of appeal by the chairman of the commission, the chairman, or his/her designee, shall issue a notice of docketing which sets forth a time and date for submission only of written arguments and documentary evidence in support of the appellant’s position. This time and date shall be no sooner than 15 days after receipt of the notice of appeal and no later than 30 days thereafter.
(d) Record on appeal.
(1) The members of the commission shall consider the record provided by the executive director and the written submissions of the appellant in making a determination on the appeal of the executive director’s denial. The members of the commission may request the appellant to file additional information.
(2) The formal rules of evidence shall not apply in the appeals process.
(3) The burden is on the appellant to show that the executive director made an erroneous determination in deciding not to grant appellant’s deletion or exemption request.
(e) Decision on appeal from executive director’s denials.
(1) The members of the commission shall review the written appeal filed pursuant to these rules, and shall render a decision by a majority vote of a quorum being present. Such decision shall be based upon the entire record submitted to the executive director and the written submission of the appellant.
(2) The written decision of the members of the commission shall affirm, reverse, remand and/or dismiss the decision of the executive director and, as appropriate, shall set forth a concise statement of the reasons for the commission members’ decision and shall be issued within 60 days of the receipt of the written notice of appeal filed with the commission members pursuant to these rules, or as soon thereafter as possible.