https://law.justia.com/codes/new-york/2012/sap/article-3 (https://law.justia.com/codes/new-york/2012/sap/article-3)
2012 New York Consolidated Laws
SAP - State Administrative Procedure Act
Article 3 - (301 - 307) ADJUDICATORY PROCEEDINGS
301 - Hearings.
302 - Record.
303 - Presiding officers.
304 - Powers of presiding officers.
305 - Disclosure.
306 - Evidence.
307 - Decisions, determinations and orders.
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New York Consolidated Laws, State Administrative Procedure Act - SAP § 100. Legislative intent
Current as of January 01, 2021 | Updated by FindLaw Staff
The legislature hereby finds and declares that the administrative rulemaking, adjudicatory and licensing processes among the agencies of state government are inconsistent, lack uniformity and create misunderstanding by the public. In order to provide the people with simple, uniform administrative procedures, an administrative procedure act is hereby enacted.
This act guarantees that the actions of administrative agencies conform with sound standards developed in this state and nation since their founding through constitutional, statutory and case law.
It insures that equitable practices will be provided to meet the public interest.
It is further found that in the public interest it is desirable for state agencies to meet the requirements imposed by the administrative procedure act. Those agencies which will not have to conform to this act have been exempted from the act, either specifically by name or impliedly by definition
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.
Universal Citation: NY State APA § 301 (2012)
§ 301. Hearings. 1. In an adjudicatory proceeding, all parties shall
be afforded an opportunity for hearing within reasonable time.
2. All parties shall be given reasonable notice of such hearing, which
notice shall include
(a) a statement of the time, place, and nature of
the hearing;
(b) a statement of the legal authority and jurisdiction
under which the hearing is to be held;
(c) a reference to the particular
sections of the statutes and rules involved, where possible;
(d) a short
and plain statement of matters asserted; and
(e) a statement that
interpreter services shall be made available to deaf persons, at no
charge, pursuant to this section.
Upon application of any party, a more
definite and detailed statement shall be furnished whenever the agency
finds that the statement is not sufficiently definite or not
sufficiently detailed.
The finding of the agency as to the sufficiency
of definiteness or detail of the statement or its failure or refusal to
furnish a more definite or detailed statement shall not be subject to
judicial review.
Any statement furnished shall be deemed, in all
respects, to be a part of the notice of hearing.
3. Agencies shall adopt rules governing the procedures on adjudicatory
proceedings and appeals, in accordance with provisions of article two of
this chapter, and shall prepare a summary of such procedures in plain
language.
Agencies shall make such summaries available to the public
upon request, and a copy of such summary shall be provided to any party
cited by the agency for violation of the laws, rules or orders enforced
by the agency.
4. All parties shall be afforded an opportunity to present written
argument on issues of law and an opportunity to present evidence and
such argument on issues of fact, provided however that nothing contained
herein shall be construed to prohibit an agency from allowing parties to
present oral argument within a reasonable time.
In fixing the time and
place for hearings and oral argument, due regard shall be had for the
convenience of the parties.
5. Unless precluded by statute, disposition may be made of any
adjudicatory proceeding by stipulation, agreed settlement, consent
order, default, or other informal method.
6. Whenever any deaf person is a party to an adjudicatory proceeding
before an agency, or a witness therein, such agency in all instances
shall appoint a qualified interpreter who is certified by a recognized
national or New York state credentialing authority to interpret the
proceedings to, and the testimony of, such deaf person. The agency
conducting the adjudicatory proceeding shall determine a reasonable fee
for all such interpreting services which shall be a charge upon the
agency.
.....
Universal Citation: NY State APA § 302 (2012)
§ 302. Record. 1. The record in an adjudicatory proceeding shall
include: (a) all notices, pleadings, motions, intermediate rulings; (b)
evidence presented; (c) a statement of matters officially noticed except
matters so obvious that a statement of them would serve no useful
purpose;
(d) questions and offers of proof, objections thereto, and
rulings thereon;
(e) proposed findings and exceptions, if any;
(f) any findings of fact, conclusions of law or other recommendations made by a
presiding officer; and
(g) any decision, determination, opinion, order
or report rendered.
2. The agency shall make a complete record of all adjudicatory
proceedings conducted before it.
For this purpose, unless otherwise
required by statute, the agency may use whatever means it deems
appropriate, including but not limited to the use of stenographic
transcriptions or electronic recording devices.
Upon request made by
any party upon the agency within a reasonable time, but prior to the
time for commencement of judicial review, of its giving notice of its
decision, determination, opinion or order, the agency shall prepare the
record together with any transcript of proceedings within a reasonable
time and shall furnish a copy of the record and transcript or any part
thereof to any party as he may request.
Except when any statute provides
otherwise, the agency is authorized to charge not more than its cost for
the preparation and furnishing of such record or transcript or any part
thereof, or the rate specified in the contract between the agency and a
contractor if prepared by a private contractor.
3. Findings of fact shall be based exclusively on the evidence and on
matters officially noticed.
....
Universal Citation: NY State APA § 303 (2012)
§ 303. Presiding officers. Except as otherwise provided by statute,
the agency, one or more members of the agency, or one or more hearing
officers designated and empowered by the agency to conduct hearings
shall be presiding officers.
Hearings shall be conducted in an impartial manner.
Upon the filing in good faith by a party of a timely
and sufficient affidavit of personal bias or disqualification of a
presiding officer, the agency shall determine the matter as part of the
record in the case, and its determination shall be a matter subject to
judicial review at the conclusion of the adjudicatory proceeding.
Whenever a presiding officer is disqualified or it becomes impractical
for him to continue the hearing, another presiding officer may be
assigned to continue with the case unless it is shown that substantial
prejudice to the party will result therefrom.
.....
Universal Citation: NY State APA § 305 (2012)
§ 305. Disclosure. Each agency having power to conduct adjudicatory
proceedings may adopt rules providing for discovery and depositions to
the extent and in the manner appropriate to its proceedings.
....
Universal Citation: NY State APA § 306 (2012)
§ 306. Evidence. 1. Irrelevant or unduly repetitious evidence or
cross-examination may be excluded.
Except as otherwise provided by
statute, the burden of proof shall be on the party who initiated the
proceeding.
No decision, determination or order shall be made except
upon consideration of the record as a whole or such portion thereof as
may be cited by any party to the proceeding and as supported by and in
accordance with substantial evidence.
Unless otherwise provided by any
statute, agencies need not observe the rules of evidence observed by
courts, but shall give effect to the rules of privilege recognized by
law.
Objections to evidentiary offers may be made and shall be noted in
the record.
Subject to these requirements, an agency may, for the
purpose of expediting hearings, and when the interests of parties will
not be substantially prejudiced thereby, adopt procedures for the
submission of all or part of the evidence in written form.
2. All evidence, including records and documents in the possession of
the agency of which it desires to avail itself, shall be offered and
made a part of the record, and all such documentary evidence may be
received in the form of copies or excerpts, or by incorporation by
reference.
In case of incorporation by reference, the materials so
incorporated shall be available for examination by the parties before
being received in evidence.
3. A party shall have the right of cross-examination.
4. 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 agency.
When official notice is taken of a material fact not
appearing in the evidence in the record and of which judicial notice
could not be 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.
....
....
Universal Citation: NY State APA § 307 (2012)
§ 307. Decisions, determinations and orders. 1. A final decision,
determination or order adverse to a party in an adjudicatory proceeding
shall be in writing or stated in the record and shall include findings
of fact and conclusions of law or reasons for the decision,
determination or order.
Findings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit statement of
the underlying facts supporting the findings.
If, in accordance with
agency rules, a party submitted proposed findings of fact, the decision,
determination or order shall include a ruling upon each proposed
finding.
A copy of the decision, determination or order shall be
delivered or mailed forthwith to each party and to his attorney of
record.
2. Unless required for the disposition of ex parte matters authorized
by law, members or employees of an agency assigned to render a decision
or to make findings of fact and conclusions of law in an adjudicatory
proceeding shall not communicate, directly or indirectly, in connection
with any issue of fact, with any person or party, nor, in connection
with any issue of law, with any party or his representative, except upon
notice and opportunity for all parties to participate.
Any such agency member (a) may communicate with other members of the agency, and (b) may
have the aid and advice of agency staff 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.
This subdivision does not apply (a) in determining applications for
initial licenses for public utilities or carriers; or (b) to proceedings
involving the validity or application of rates, facilities, or practices
of public utilities or carriers.
3. (a) Each agency shall maintain an index by name and subject of all
written final decisions, determinations and orders rendered by the
agency in adjudicatory proceedings.
For purposes of this subdivision,
such index shall also include by name and subject all written final
decisions, determinations and orders rendered by the agency pursuant to
a statute providing any party an opportunity to be heard, other than a
rule making.
Such index and the text of any such written final
decision, determination or order shall be available for public
inspection and copying.
Each decision, determination and order shall be
indexed within sixty days after having been rendered.
(b) An agency may delete from any such index, decision, determination
or order any information that, if disclosed, would constitute an
unwarranted invasion of personal privacy under the provisions of
subdivision two of section eighty-nine of the public officers law and
may also delete at the request of any person all references to trade
secrets that, if disclosed, would cause substantial injury to the
competitive position of such person.
Information which would reveal
confidential material protected by federal or state statute, shall be
deleted from any such index, decision, determination or order.
2012 New York Consolidated Laws
SAP - State Administrative Procedure Act
Article 1 - (100 - 104) GENERAL PROVISIONS
100 - Legislative intent.
101 - Short title.
102 - Definitions.
102-A - Small business regulation guides.
103 - Construction; severability.
104 - Access to studies and data.
2012 New York Consolidated Laws
SAP - State Administrative Procedure Act
Article 1 - (100 - 104) GENERAL PROVISIONS
100 - Legislative intent.
Universal Citation: NY State APA § 100 (2012)
§ 100. Legislative intent. The legislature hereby finds and declares
that the administrative rulemaking, adjudicatory and licensing processes
among the agencies of state government are inconsistent, lack uniformity
and create misunderstanding by the public. In order to provide the
people with simple, uniform administrative procedures, an administrative
procedure act is hereby enacted.
This act guarantees that the actions of
administrative agencies conform with sound standards developed in this
state and nation since their founding through
constitutional,
statutory
and case law.
It insures that equitable practices will be provided to
meet the public interest.
It is further found that in the public interest it is desirable for
state agencies to meet the requirements imposed by the administrative
procedure act.
Those agencies which will not have to conform to this
act have been exempted from the act, either specifically by name or
impliedly by definition.
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
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.
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.
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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.
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.
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.
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
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
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.
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
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.
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.