N.Y. Comp. Codes R. & Regs. tit. 18 § 493.11

Current through Register Vol. 46, No. 51, December 18, 2024

Section 493.11 - Removal of the hearing officer

A party to a hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing.

(a) The grounds for removing a hearing officer are that the hearing officer has:

(1) previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer;

(2) any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or

(3) displayed bias or partiality to any party to the hearing.

(b) The hearing officer may independently determine to remove himself or herself from presiding at the hearing on the grounds set forth in subdivision (a) of this section.

(c) The request for removal made by a party must:

(1) be made in good faith;

(2) be made in writing or orally on the record; and

(3) describe in detail the grounds for requesting that the hearing officer be removed.

(d) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove himself or herself from presiding at the hearing.

(e) If the hearing officer determines not to remove himself or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue and the request for removal will automatically be reviewed by the general counsel of the department or the general counsel's designee.

(f) The determination of the hearing officer not to remove himself or herself must be reviewed by the general counsel or the general counsel's designee. Such review must include review of written documents submitted by the parties and the transcript of the hearing.

(g) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing.

(h) The written determination of the general counsel or the general counsel's designee must be made a part of the record.

(i) If the hearing officer determines to remove himself or herself from presiding at the hearing, or if the general counsel or the general counsel's designee determines that the hearing officer should have removed himself or herself from presiding at the hearing, a new hearing, before a different hearing officer, will be scheduled to commence expeditiously.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 493.11