New York Consolidated Laws SAP - State Administrative Procedure Act

[Admin]

What agency is excluded from NY State Administrative Procedure Act?

(The Office of Court Administration and the Judiciary are exempt from SAPA requirements requiring proposal review notices in the State Register.) Comments will be received and considered, and changes to the proposed rule may be made.Dec 8, 2022

[Admin]

Universal Citation: NY State APA § 103 (2012)

 
    §  103. Construction; severability.

1. (a) Except with respect to the
  provisions of paragraph (c) of this subdivision, or of paragraph (b)  of
  subdivision  one  and subdivision six of section two hundred two of this
  chapter, the provisions of this chapter shall not be construed to  limit
  or repeal additional requirements imposed by statute or otherwise.


    (b)  The  provisions  of section two hundred two of this chapter shall
  not relieve any agency from compliance with any statute requiring  that
  its  rules  be  filed  with  or approved by designated persons or bodies
  before such rules become effective.

    (c) Notwithstanding the requirements of any statute, when  adopting  a
  consensus  rule  as  defined  in  this  chapter,  an  agency  may in its
  discretion dispense with any statutory requirement for public hearing or
  publication of a notice in any newspaper or publication other  than  the
  state  register,  unless  such requirement is explicitly directed at the
  rule which is being adopted.

    2. The provisions of this  chapter  shall  not  be  deemed  to  repeal
  section six hundred fifty-nine of the labor law.

    3.  The  provisions  of  this chapter shall apply only to rule making,
  adjudicatory and  licensing  proceedings  commencing  on  or  after  the
  effective date of this chapter.

    4.  If any provision of this chapter or the application thereof to any
  person or circumstances is adjudged invalid  by  a  court  of  competent
  jurisdiction,  such  judgment shall not affect or impair the validity of
  the other provisions of the chapter or the application thereof to  other
  persons and circumstances.

[Admin]

 NY State APA § 104 (2012)

 
    § 104. Access to studies and data.  1. An agency, upon request, shall,
  within  thirty  days, make  available  for  inspection  and copying any
  scientific or statistical study, report or analysis, including any  such
  study,  report  or analysis prepared by a person or entity pursuant to a
  contract with the agency or funded in whole or in part through  a  grant
  from  the  agency  that  is used as the basis of a proposed rule and any
  supporting data; provided, however, that the agency  shall  provide  for
  inspection  only  of any such study, report or analysis due to copyright
  restrictions.

    2.  An  agency  that  contracts  with  a  person  or  entity  for  the
  performance  of a study or awards a grant for such purpose shall require
  as a condition or term of such contract or  grant  that  the  person  or
  entity  shall  provide  to the agency the study, any data supporting the
  study, and identity of the principal person  or  persons  who  performed
  such  study  for  disclosure  in  accordance with the provisions of this
  section and of article six of the public officers law.

[Admin]

Expert solutions

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NYLE - Administrative law
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    Flashcards

What is the separation of powers doctrine?

means the legislature cannot delegate its lawmaking power to an administrative agency


Can the legislature give administrative agencies lawmaking power?

Yes, the legislature can give administrative agencies lawmaking power


What power can the legislature give to administrative agencies?

the power to fill in the gaps in the legislative product by prescribing rules and regulations consistent with the enabling legislation


Does there need to be expressed authorisation from the legislature giving the administrative agency power?

No, there does not need to be a specific and detailed legislative expression authorising a particular administrative act, as long as the basic policy decision has been articulated by the legislature, the administrative rule or regulation is not inconsistent with the statutory language or its underlying purpose, and the administrative agency is not engaging in broad-based policy determinations


What is the Act governing statutory procedures?

State Administrative Procedure Act (SAPA)


What sections of SAPA are relevant for statutory procedures?
201, 202, and 203

What section of SAPA needs to be complied with when enacting an agency rule or regulation?

An agency rule or regulation must be enacted in substantial compliance with the procedural requirements of SAPA 202

What should the administrative agency do before adopting a new rule?

Prior to the adoption of a rule, an agency must submit notice of the proposed rule to the Secretary of State for publication in the State Register and afford the public an opportunity to submit written comments on the proposed rule


What should the notice to the Secretary of State include?


Amongst other things, the notice to the Secretary of State should include:
1. a statement of the statutory authority for the rule;
2. a complete text of the proposed rule, or if the rule exceeds a certain length, a description of the rule and the website address where the full text is posted;
3. a regulatory impact statement and flexibility analysis; and
4. the date, time and place of any public hearings
Which section of SAPA sets out the requirements that the notice shall include?
SAPA 202 [1] [f]


Is a public hearing required before the adoption of a rule?

No, a public hearing is not required before the adoption of a rule unless a statute specifically requires a hearing


When does the rule or regulation become effective?

A rule is not effective until it is filed with the Secretary of State and the notice of adoption is published in the State Register

What sections of SAPA require notice to the Secretary of State and publication in the State Register, for the rule to be effective?

SAPA 202 [5] and 203 require notice to Secretary of State and publication in the State Register for the adoption of the rule to be effective


Where are the rules and regulations of state agencies compiled?

The rules and regulations of all state agencies are published and compiled in the New York Codes, Rules and Regulations; Executive Law s102 (5)
Aside from the NYCRR where else are state rules and regulations published?
state rules and regulations are also published in the State Register


What is contained in art 102 of SAPA

The Acts definitions are contained in art 102

What article of SAPA contains provisions for adjudicatory proceedings?

Article 3 of SAPA contains provisions relating to adjudicatory proceedings

Are the procedures of Article 3 mandatory?

If the relevant enabling statute specifies a hearing on the record, then SAPA demands an adjudicatory proceeding and all of the procedures of Article 3 are mandatory upon the agency
Should the agency provide a hearing on the record before an impartial officer?

The agency must provide a party with a hearing on the record before an impartial officer having the power to administer oaths and issue subpeonas, it must keep a complete record of the proceeding, and the final determination must be in writing and include findings of fact and reasons for the decision.


What are the due process requirements under SAPA 301?

A party to an administrative proceeding must be afforded the due process protections of the Fourteenth Amendment and the New York State Constitution, i.e., a short and plain statement of the matters asserted, an opportunity for a hearing within a reasonable time, reasonable notice of such hearing, and an opportunity to present written argument on issues of law and evidence on issues of fact. Unlike the specificity requirements of an indictment in a criminal proceeding, the due process required for administrative misconduct need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him or her and to allow for the preparation of an adequate defense


Does the agency have discretion to adopt rules of discovery under SAPA 305

Yes. Each agency may adopt rules for discovery and depositions to the extent and in the manner appropriate to its proceedings, and the parties to the proceedings are subject to these rules.


Do the formal rules of evidence under the CPLR apply to administrative hearings?

No. The formal rules of evidence contained in the CPLR do not apply to administrative hearings, but rules of privilege do, and a party has the right to cross-examination.

[Admin]

What section of SAPA is relevant to the rules of evidence for administrative hearings
SAPA 306


Do the rules of privilege apply to administrative hearings?

Yes. The rules of privilege do apply to administrative hearings.
Are parties able to cross-examine during administrative hearings?
Yes. A party has the right to cross-examination


Who has the burden of proof?

Except as otherwise provided by statute, the burden of proof is on the party who initiates an administrative proceeding


What section of SAPA covers the burden of proof provision?

SAPA 306


What section of SAPA gives the right to representation?

SAPA 501


What does SAPA 501 provide for?

All persons

When do the doctrines of res judicata and collateral estoppel apply

These doctrines are generally applicable to quasi-judicial administrative determinations that are made pursuant to the adjudicatory authority of an agency employing procedures substantially similar to those used in a court of law. However, where a party is a nominal party or did not have a full and fair opportunity to litigate the material issue before the agency, the doctrines will not be applied.


Does the agency have power to acquire information?
Yes. Either by investigation or subpeona


What is an agency's administrative investigation power?

Administrative agencies have the power in furtherance of an investigation to issue subpoenas to compel the attendance of witnesses or the production of evidence. In order to justify a subpoena issued in furtherance of an investigation, the agency must make a preliminary showing that the information sought in the subpoena is reasonably related to a proper subject of inquiry and that there is some basis for inquisitorial action. Administrative hearings conducted in the course of an investigatory proceeding must comply with the due process procedures set forth in Civil Rights Law §73


Are administrative inspections of private commercial properties prohibited?

Yes. Administrative inspections of private commercial properties are prohibited by the Fourth Amendment prohibition against warrantless searches and seizures. There is an exception for warrantless inspection of closely regulated businesses


What is an agency's administrative subpoena power?

Officers presiding at administrative hearings are authorised to issue subpoenas at the request of any party (SAPA 304). Statutes governing adjudicatory proceedings before particular agencies may independently confer subpoena power, and if there is a specific statutory grant, the agency's power to issue subpoenas is derived solely from such grant. In that absence of a statutory grant of subpoena power, agencies and attorneys of record for any party to the proceeding are granted the general subpoena power afforded courts and attorneys under CPLR 2302. A request to withdraw or modify a subpoena must first be made to the person who issued it, and motions to quash or enforce administrative subpoenas are not part of the hearing process and must be made in supreme court (CPLR 2304)


What SAPA provisions authorises agencies to issue subpoenas?

SAPA 304


What CPLR provisions apply to the issuance of subpoenas
CPLR 2302 and 2304


What are the preconditions to judicial review?

1. Standing
2. Exhaustion
3. Ripeness
4. Finality

What is Standing?

Judicial review is available to persons who have suffered an unfavourable administrative decision and those that have a stake in the outcome of the administrative process, but whose injury is less direct. There is a two-step test for evaluating standing claims: (1) a party must show some harmful effect, whether economic or non-economic, and (2) the interest sought to be protected must be arguably within the zone of interest to be protected by the statute under which the agency has acted.

[Admin]

What is meant by Exhaustion of administrative remedies?

A party must attempt to obtain whatever administrative relief might be available before proceeding to the courts. The major exceptions are agency actions that are challenged as either unconditional or wholly beyond the agency's grant of power. If a par

What is Ripeness?

If a party to an administrative adjudication pursues all avenues of relief open within the agency without a satisfactory result, the case is ripe for judicial review. Pre-enforcement review is available only if the challenge is purely legal and further factual development would not contribute to the accurate resolution of the controversy

What is Finality?

A party must wait until all phases of the agency adjudication are complete before judicial review can be had. Interlocutory relief in the nature of prohibition is rarely available and requires grave or irreparable harm. Unless a shorter time is provided in the law authorising the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to review becomes final and binding upon the petitioner.


What CPLR Article provides the judicial proceeding and procedure used to challenge agency determinations?

Article 78 of CPLR.

What are the proceedings under Article 78 CPLR?

Proceedings under Article 78 are special proceedings, subject to specific procedural requirements (CPLR 7804)
What section of the CPLR provides for actions for declaratory judgements?
CPLR 3001


What is the difference between Article 78 and CPLR 3001?

Actions for declaratory judgement under CPLR 3001 are generally not subject to the procedural strictures of Article 78 and are appropriate vehicles for challenging agency actions that cannot be reviewed by Article 78

Can a court review an agency's interpretation of the law?

A court's review of an agency's interpretation of law is limited.


Are agencies entitled to deference in matters of statutory interpretation?

Yes. New York administrative agencies are entitled to deference in matters of statutory interpretation of legislation governing the agency and in issuing decisions within the agency's own special expertise.


What is the standard of review? when the court reviews the agency's interpretation of the law?

The standard of review is whether an agency's decision is supported by a rational basis or was affected by an error of law or was arbitrary and capricious or an abuse of discretion

What sections of SAPA and CPLR apply to findings of fact?

SAPA 307 [1] and CPLR 7803 [4]

Findings of fact made after a formal adjudicatory hearing


Determinations of fact made after a formal adjudicatory hearing must be made on the record as a whole and be supported by substantial evidence SAPA 307 [1] CPLR 7803 [4].

Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion.

What is meant by substantial evidence in relation to finding of fact?

Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion.

[Admin]

Where does substantial evidence sit with preponderance and beyond a reasonable doubt?

It is less than a preponderance of the evidence or evidence beyond a reasonable doubt.


If subsequent review is needed of a finding of fact, who reviews it?

Subsequent review is by the Appellate Division and is confined to the administrative record CPLR 7804 [g]


What about agency determinations involving findings of fact made without a quasi-judicial hearing require by statute or law, what standard of review are they subject to?

Agency determinations involving findings of fact made without a quasi-judicial hearing required by statute or law are also subject to a rational basis or arbitrary and capricious standard of review


When does the court's review end?

Once the court has determined that a rational basis exists for an agency's determination, its review is ended.


When can an agency's discretionary acts or policy decisions be set aside?

An agency's discretionary acts and policy decisions may be set aside only if there is no rational basis for the exercise of discretion or the act complained of is arbitrary or capricious


When is an action arbitrary or capricious?

An action is arbitrary or capricious if it is "taken without sound basis in reason or regard to the facts"

When may an administrative disciplinary penalty be set aside?

Administrative disciplinary penalties may be set aside only if such punishment constitutes an abuse of discretion. The penalty must be upheld unless it is so disproportionate to the offense in light of all the circumstances as to shock one's sense of fairness


How is "agency" defined in Public Officers Law §86?

Every "agency" defined very broadly as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature"


What does §87 of Public Officers Law state about records?

Every "agency" as defined in §86 of the Public Officers Law, must make available for public inspection and copying all records, except those records or portions thereof that fall within certain enumerated exceptions


What section of the Public Officers Law specifies what records the state legislature must make?

Public Officer Law §88 specifies the records that the state legislature must make available for public inspection and copying


Does access to governmental records under the FOIL depend on the purpose for which the records are sought?

Access to governmental records under Freedom of Information Law does not depend on the purpose for which the records are sought

[Admin]

What is the Open Meetings Law?

The Open Meetings Law requires public bodies (excepting judicial or quasi-judicial proceedings and political committees) to conduct all portions of any meeting in venues open to the general public on reasonable advance notice to the public, unless the public body calls an executive session (Public Officer Law §103). An executive session may be called only by a motion on majority vote of the public body in public session, and the motion must identify the general topics to be discussed in the executive session (Public Officers Law §105). The permitted topics include discussions regarding proposed or pending litigation, matters involving law enforcement and criminal investigations, employment and personnel matters, and the proposed acquisition of real property when publicity would affect the property's market value.
For Open Meetings, when may an executive session be called?
An executive session may be called only by a motion on majority vote of the public body in public session, and the motion must identify the general topics to be discussed in the executive session (Public Officers Law §105).


For Open Meetings, what topics are permitted?

The permitted topics include discussions regarding proposed or pending litigation, matters involving law enforcement and criminal investigations, employment and personnel matters, and the proposed acquisition of real

[Admin]

repeat of crucial parts

Are the procedures of Article 3 mandatory?

If the relevant enabling statute specifies a hearing on the record, then SAPA demands an adjudicatory proceeding and all of the procedures of Article 3 are mandatory upon the agency


Should the agency provide a hearing on the record before an impartial officer?

The agency must provide a party with a hearing on the record before an impartial officer having the power to administer oaths and issue subpeonas, it must keep a complete record of the proceeding, and the final determination must be in writing and include findings of fact and reasons for the decision.

[Admin]

What are the due process requirements under SAPA 301?

A party to an administrative proceeding must be afforded the due process protections of the Fourteenth Amendment and the New York State Constitution, i.e., a short and plain statement of the matters asserted, an opportunity for a hearing within a reasonable time, reasonable notice of such hearing, and an opportunity to present written argument on issues of law and evidence on issues of fact.

 Unlike the specificity requirements of an indictment in a criminal proceeding, the due process required for administrative misconduct need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him or her and to allow for the preparation of an adequate defense

[Admin]

Do the formal rules of evidence under the CPLR apply to administrative hearings?

No. The formal rules of evidence contained in the CPLR do not apply to administrative hearings, but rules of privilege do, and a party has the right to cross-examination.

[Admin]

LII Electronic Code of Federal Regulations (e-CFR) Title 34 - Education Subtitle B - Regulations of the Offices of the Department of Education CHAPTER II - OFFICE OF ELEMENTARY AND SECONDARY EDUCATION, DEPARTMENT OF EDUCATION PART 222 - IMPACT AID PROGRAMS Subpart J - Impact Aid Administrative Hearings and Judicial Review Under Section 8011 of the Act § 222.156 How is an administrative hearing conducted?

34 CFR § 222.156 - How is an administrative hearing conducted?

§ 222.156 How is an administrative hearing conducted?

Administrative hearings under this subpart are conducted as follows:

(a) The administrative hearing is conducted by an ALJ appointed under 5 U.S.C. 3105, who issues rules of procedure that are proper and not inconsistent with this subpart.

(b) The parties may introduce all relevant evidence on the issues stated in the applicant's request for hearing or on other issues determined by the ALJ during the proceeding. The application in question and all amendments and exhibits must be made part of the hearing record.

(c) Technical rules of evidence, including the Federal Rules of Evidence, do not apply to hearings conducted under this subpart, but the ALJ may apply rules designed to assure production of the most credible evidence available, including allowing the cross-examination of witnesses.

(d) Each party may examine all documents and other evidence offered or accepted for the record, and may have the opportunity to refute facts and arguments advanced on either side of the issues.

(e) A transcript must be made of the oral evidence unless the parties agree otherwise.

(f) Each party may be represented by counsel.

(g) The ALJ is bound by all applicable statutes and regulations and may neither waive them nor rule them invalid.