N.Y. Comp. Codes R. & Regs. tit. 8 § 3.31

Current through Register Vol. 46, No. 50, December 11, 2024

Section 3.31 - Removal of trustees

The provisions of this section shall apply to a proceeding pursuant to Education Law section 226(4) for the removal of a trustee or trustees of a corporation (institution) created by the Board of Regents, for misconduct, incapacity, neglect of duty and/or failure or refusal of the institution to carry into effect its educational purposes.

(a)Initiation of proceeding.

An application seeking removal shall be made upon either a verified petition brought by a petitioner who is aggrieved by the actions of the trustee or trustees, or upon a proceeding brought by the Board of Regents of its own initiative. In the event such proceeding is instituted by the Board of Regents, it shall be commenced upon a vote by the Board and service of an order to show cause, and thereafter the procedure as set forth in this section shall be followed so far as applicable.

(b)Parties.

The party making an application upon a verified petition shall be known as petitioner and any adverse party, as respondent. After an application is made in accordance with these rules, no party shall be joined or be permitted to intervene, except by leave or direction of the Board of Regents as provided herein.

(c)Pleadings.

(1) Types of pleadings. There shall be a petition, an answer, and, if new material is alleged in the answer, a reply thereto. No other pleading will be permitted, except as provided in paragraph (2) of this subdivision.

(2) Additional pleadings. The Counsel and Deputy Commissioner for Legal Affairs of the State Education Department (the counsel) may permit or require the service and filing of additional pleadings upon such terms and conditions as he or she may specify. An additional pleading may be served upon all other parties and filed with the office of counsel only with the prior written permission of the counsel, granted upon application of the party desiring to submit such pleading. The proposed pleading shall accompany such application, and both the application and the proposed pleading shall be served upon all other parties in accordance with subdivision (g) of this section.

(3) Form of pleadings. All pleadings and affidavits shall be submitted in typewritten form, double spaced, on white paper 81/2 by 11 inches in size, and shall set forth the allegations of the parties in numbered paragraphs. Such pleadings shall be addressed "To the Board of Regents of the University of the State of New York/State Education Department", and shall be filed in accordance with the provisions of subdivision (h) of this section.

(d)Names of parties or attorneys to be endorsed on all papers.

All pleadings and papers submitted to the Board of Regents in connection with an application seeking removal shall be endorsed with the name, post office address and telephone number of the party submitting the same, or, if a party is represented by counsel, with the name, post office address and telephone number of such party's attorney.

(e)Verification.

(1) All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners. An answer shall be verified by the oath of the respondent submitting such answer. If two or more respondents are united in interest, verification of the answer shall be made by at least one of them who is familiar with the facts.

(2) Affidavit of verification. The affidavit of verification shall be in the following form:

STATE OF NEW YORK)

) ss.:...............................................................................................

COUNTY OF __)

__________ being duly sworn, deposes and says that (s)he is _______ in this proceeding; that (s)he has read the annexed ________ and knows the contents thereof; that the same is true to the knowledge of deponent except as to the matter therein stated to be alleged upon information and belief, and as to those matters (s)he believes it to be true.

__________.......................................................................................

...................................................................

(signature)

.................................................................................................

Subscribed and sworn to before me

this ____ day of __ 20 __

__________

(signature and title of officer)

(f)Oaths.

All oaths required by this section may be taken before any person authorized to administer oaths within the State of New York. The statement of an attorney admitted to practice in the courts of this State and appearing in an appeal as attorney of record or of counsel to the attorney of record, when subscribed and affirmed by him to be true under the penalty of perjury, may be served or filed in the appeal in lieu of and with the same force and effect as an affidavit.

(g)Service of pleadings and supporting papers.

(1) Petition. A copy of the petition, together with all of the petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a respondent cannot be found upon diligent search, by delivering and leaving the same at such respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the Counsel. Pleadings may be served by any person not a party to the proceeding and who is over the age of 18 years.

(2) Subsequent pleadings and papers. All subsequent pleadings and papers shall be served upon the adverse party, or if the adverse party is represented by counsel, upon such party's attorney. When the same attorney appears for two or more parties, only one copy need be served upon such attorney. Service of all pleadings subsequent to the petition shall be made by personal service, by United States mail or by private express delivery service. Service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the State. Service by private express delivery service shall be complete upon delivery of the paper enclosed in a properly addressed wrapper to an employee or agent of such private express delivery service or by deposit of such paper, properly addressed and wrapped, in a depository of such private express delivery service within the State. If the last day for service of any pleading or paper subsequent to the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

(h)Filing and fee.

(1) Within five days after the service of any pleading or paper, the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234. The affidavit of service shall be in substantially the following form and shall indicate the name and official character of the person upon whom service is made:

FORM FOR AFFIDAVIT OF

PERSONAL SERVICE

STATE OF NEW YORK)

) ss.:...............................................................................................................

COUNTY OF ___)

_________ being duly sworn, deposes and says that (s)he is over the age of eighteen years and is not a party in this proceeding; that on the ___ day of _____, 20__, at No. _____Street, in the (city/village/town) of ______, county of ______, State of New York, (s)he served the annexed ________ on ______ by delivering to and leaving with said _______ at said time and place a true copy thereof.

Deponent further says (s)he knew the person so served to be the said ______, who is _____ in said district.

__________.........................................................................................

.....................................................................................................................

(Signature)

................................................................................................................

Subscribed and sworn to before me

this ____ day of __ 20 __

__________

(Signature and title of officer)

FORM FOR AFFIDAVIT OF

SERVICE BY MAIL

STATE OF NEW YORK)

) ss.:...............................................................................................

COUNTY OF ___)

_________ being duly sworn, deposes and says that (s)he is over the age of eighteen years and is not a party in this proceeding; that on the

___...............................................................................................................................

...................................................................................................................

day of _____, 20 __, deponent served the within upon _______ in this action, at _______, the address designated by ______ for that purpose, by depositing a true copy of the same by mail, enclosed in a post paid properly addressed wrapper, in ____ a post office _______official depository under the exclusive care and custody of the United States Post Office Department within the State of New York.

__________

(Signature)

Subscribed and sworn to before me

this ____ day of __ 20 __

__________

(Signature and title of officer)

FORM FOR AFFIDAVIT OF SERVICE OF

PRIVATE EXPRESS DELIVERY SERVICE

STATE OF NEW YORK)

) ss.:.......................................................................................................

COUNTY OF ___)

_________, being duly sworn, deposes and says that (s)he is over the age of eighteen years and is not a party in this proceeding; that on the ___ day of _____, 20 __, deponent served the within upon ______ in this action, at ______, the address designated by ____ for that purpose, (by delivering a true copy of the same, enclosed in a properly addressed wrapper, to an employee/agent of ____ (name of private express delivery service) ____, for delivery to said party at said address) OR (by depositing a true copy of the same, enclosed in a properly addressed wrapper, in a depository of ___ (name of private express delivery service) ___ within the state, for delivery to said party at said address)...................................................................

__________...........................................................................................

........................................................................................................

(Signature)

Subscribed and sworn to before me

this ____ day of __ 20 __

__________

(Signature and title of officer)

(2) Filing fee. A fee of $20, payable to the State Education Department, shall accompany the filing of a petition. The requirement of a filing fee may be waived, at the discretion of the counsel, upon application by a petitioner in the form of an affidavit by petitioner or petitioner's attorney. Such affidavit shall set forth the amount and sources of all income of petitioner, whether taxable or not; shall list all property held by petitioner, including real estate, personal property and bank accounts, together with the total value of each category; and shall state that the petitioner is unable to pay the fee necessary to initiate the proceeding.

(i)Contents of petition.

(1) The petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. The relief granted by the Board of Regents may extend beyond the relief requested in the petition. Such statement of claim must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of. The petition must distinctly state the alleged misconduct, incapacity, neglect of duty and/or failure or refusal of the institution to carry into effect its educational purposes, together with the facts by which such charges are established; such facts must be set forth with such certainty as to time, place and all other pertinent details, so as to furnish sufficient information for the respondent to adequately prepare and present a defense to the charges.

(2) The petition must include a notice to the respondent(s) in substantially the following form:

PLEASE TAKE NOTICE that the petition and affidavits, copies of which are herewith served upon you, will be presented to the Board of Regents at Albany, and application thereon made for your removal as trustee of ____(name of institution) ____, and that you are required to transmit your answer to such application, duly verified, with an affidavit of service of a copy thereof upon petitioner, to the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234, or the charges contained in such petition and affidavit will be deemed to be admitted by you.

Please take further notice that your answer must conform with the provisions of section 3.31 of the Rules of the Board of Regents relating to proceedings seeking the removal of trustees of corporations created by the Board of Regents, copies of which are available from the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234. An answer to the petition must be served upon petitioner, or if he or she be represented by counsel, upon petitioner's counsel, within 20 days after the service of the petition, and that a copy of such answer must, within five days after such service, be filed with the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234.

__________................................................................................................................

....................................................................................................................................

(signature)

....................................................................................................................................

__________.................................................................................................................

P.O. Address

...............................................................................................................................

(j)Contents of answer.

The answer of each respondent shall contain a clear and concise statement of respondent's defenses to each claim in numbered paragraphs corresponding to the numbered paragraphs in the petition, and shall either admit, deny or deny knowledge of information sufficient to form a belief as to the truth of the allegations of the petition. In addition, each respondent may set forth affirmative defenses. If more than one respondent has been named and served and if common questions of law or fact are involved, the respondents, if otherwise united in interest, may submit a joint answer to the petition.

(k)Service of answer and supporting papers.

Each respondent upon whom a copy of the petition has been served shall, within 20 days from the time of such service, answer the same, either by concurring in a statement of facts with the petitioner or by service in the manner set forth in paragraph (g)(2) of this section of an answer, together with all of respondent's affidavits, exhibits and other supporting papers, except a memorandum of law. The date upon which personal service was made upon respondent shall be excluded in computation of the 20-day period.

(l)Reply.

The petitioner shall reply to each affirmative defense contained in an answer. The reply, together with any affidavits which shall be limited to support of such reply, shall be served within 10 days after service of the answer to which it responds in the manner set forth in paragraph (g)(2) of this section. If the answer has been served by mail upon petitioner or petitioner's counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period.

(m)Limitation of time for initiation of proceeding.

If, in the sound discretion of the Board of Regents, petitioner has unduly delayed in filing a petition, the Board of Regents may dismiss the petition.

(n)Amicus curiae.

The Counsel may, in his or her sole discretion and upon written application submitted at or before oral argument, permit interested persons or organizations to submit memoranda of law amicus curiae in connection with a pending proceeding. Those permitted to submit memoranda amicus curiae shall not be considered parties to the proceeding and shall not be entitled to receive copies of pleadings and papers pertaining thereto or to participate in any hearings held in connection with such proceedings.

(o)Extensions of time to answer or reply.

No extension of time to answer the petition or to reply to an answer will be granted by the counsel unless timely application is made therefor, upon notice to all parties. Such application shall be in writing, addressed to the office of counsel, must be postmarked not later than five days prior to the date on which the time to answer or reply will expire, and shall set forth in full the reasons for the request. The time to answer a pleading may not be extended solely by stipulation of the parties or their counsel.

(p)Memoranda of law.

Memoranda of law, consisting of the parties' arguments of law, shall be submitted by each party to the proceeding. The petitioner shall serve a copy of petitioner's memorandum of law upon every other party to the proceeding in the manner provided by paragraph (g)(2) of this section, and shall file such memorandum of law, with proof of service thereof, in accordance with subdivision (h) of this section, within 20 days after service of the answer. Each respondent shall serve a copy of respondent's memorandum of law, upon every other party in the manner provided by paragraph (g)(2) of this section and shall file such memorandum of law with proof of service thereof in accordance with subdivision (h) of this section, within 30 days after service of the answer. Where the answer is served upon petitioner or petitioner's counsel by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner's memorandum of law must be served and filed. Reply memoranda shall be served and filed, with proof of service, in accordance with paragraph (g)(2) and subdivision (h) of this section, within 10 days after service of the adverse party's memorandum of law. Where the adverse party's memorandum is served by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of such 10-day period for service of the reply memorandum. The counsel, in his or her sole discretion, may permit the late filing of memoranda of law upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the proceeding, together with proof of service of a copy of such application upon all other parties to the appeal. Failure to comply with the filing deadlines set forth herein and in subdivisions (k) and (l) are grounds for rejection of said papers.

(q)Additional affidavits, exhibits and other supporting papers.

The counsel may permit or require the service and filing of affidavits, exhibits and other supporting papers, in addition to those served in accordance with subdivisions (g), (k) and (l) of this section, upon such terms and conditions as the counsel may specify. Such affidavits, exhibits and other supporting papers may be served upon all other parties and filed with the office of counsel only with the prior permission of the counsel, granted upon application of the party desiring to submit such document. The affidavits, exhibits and other supporting papers shall accompany such application, and the application, together with the affidavits, exhibits and other supporting papers, shall be served upon all other parties in accordance with paragraph (g)(2) of this section.

(r)Records and reports.

Consistent with the provisions of subclause (u)(2)(vi)(a)(3) of this section, the Board of Regents may, in its discretion, in the determination of the proceeding, take into consideration any official records or reports on file in the State Education Department which relate to the issues involved in such proceeding.

(s)Review by counsel.

Upon the filing of the pleadings, memoranda of law and any additional affidavits, exhibits and other supporting papers, the counsel shall review the entire record. The counsel may request from the parties and/or independently obtain additional information, through visitation of the institution by the department or an independent third party or otherwise. Such information may, in the counsel's discretion, be made a part of the record after notice and an opportunity to respond is provided to the parties.

(t)Recommendation.

Upon completion and review of the record by the counsel, the appropriate standing committee of the Board of Regents, as designated by the Chancellor of the Board of Regents, shall, after consultation with the counsel, make a recommendation to the full Board of Regents as to whether or not a hearing should be conducted pursuant to Education Law section 226(4). In determining whether a hearing is to be conducted, the Board of Regents may accept or reject the recommendations of the standing committee. The Board of Regents may determine that a hearing is not required where, among other things, petitioner has not raised facts which, if proven true, would warrant removal under Education Law section 226. If the board determines that a hearing is not required, it shall issue a written decision dismissing the application and such decision shall constitute the final determination of the board in such proceeding.

(u)Hearing.

If the board determines that a hearing is required, the chancellor shall designate no fewer than three members of the Board of Regents to convene as a panel to conduct a hearing in the proceeding to consider removal of the trustee or trustees. The chancellor shall designate one of the panel members to be panel chair.

(1) Notice. Respondent trustee or trustees shall be given at least 10 days notice in writing of the time and place of such hearing.

(2) Hearing procedures.

(i) Motions. The panel chair, at his or her discretion, may entertain and rule upon dispositive motions.

(ii) Discovery. Formal discovery procedures and formal procedures for bills of particulars shall not apply. However, the panel chair may provide for discovery and depositions to the extent and in the manner appropriate to the proceedings. Depositions may be permitted at the discretion of the panel chair upon a finding that they are likely to provide information relevant and material to the issues presented and to expedite the proceeding.

(iii) Subpoenas. Subpoenas may be issued by the panel chair or, with the consent of the panel chair, by any attorney for a party who has been duly admitted to the practice of law in the State of New York. Parties requesting the panel chair to issue a subpoena shall submit a written request describing with particularity the persons or items for which a subpoena is sought and establishing the necessity therefor. Subpoenas shall be served in any manner permitted by the Civil Practice Law and Rules. The party on whose behalf a subpoena is issued shall be responsible for serving the subpoena and for payment of all required fees.

(iv) Evidence.

(a) The panel chair shall make evidentiary rulings as may be necessary. Technical rules of evidence followed by a court of law need not be applied. Irrelevant or unduly repetitious evidence and/or cross- examination may be excluded at the discretion of the panel chair.

(b) Burden of proof/standard of proof. The petitioner shall have the burden of establishing the facts upon which petitioner seeks relief. The petitioner shall establish such facts and demonstrate by substantial evidence a legal right to the relief sought.

(v) Conduct of hearing.

(a) Each party shall have the right to present evidence and cross-examine witnesses.

(b) Before any evidence is offered, the petitioner and respondent may make an opening statement.

(c) The panel chair shall determine the order in which parties shall present evidence but shall generally require that the party with the burden of proof present its case first. Petitioner may present a rebuttal case with respect to any affirmative defenses presented by respondent. At the discretion of the panel chair, rebuttal cases may be allowed in other situations.

(d) The panel chair or hearing stenographer shall administer an oath or affirmation to each witness, who shall first be questioned by the party calling the witness (direct examination) and then examined by the opposing party (cross- examination). The panel chair, in his or her discretion, may allow redirect and recross of a witness. Members of the panel may also question witnesses.

(e) The panel chair shall determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the hearing in order to achieve an expeditious and fair disposition of the matters at issue, including the scheduling and duration of the hearing.

(f) At the conclusion of the evidentiary hearing, the panel chair may give the parties an opportunity to make a closing statement and/or to file briefs.

(vi) Record of hearing.

(a) The record shall include:

(1) all notices, pleadings, motions, 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;

(6) any findings of fact, conclusions of law or other recommendations made by the panel chair; and

(7) any decision, determination, opinion, order or report rendered.

(b) Testimony given and other proceedings at a hearing must be recorded verbatim. For this purpose and consistent with respondent's rights, the panel chair may use whatever means he or she deems appropriate, including, but not limited to, the use of stenographic transcriptions or recording devices. At the panel chair's discretion, part or all of the transcripts may also be required in electronic or other form.

(c) The Board of Regents 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 or she may request. The board of Regents shall 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.

(d) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

(e) At any time prior to the issuance of the panel recommendation, the panel chair may direct that the hearing record be reopened to consider significant new evidence.

(3) Panel recommendation and board determination. Upon conclusion of the evidentiary hearing, the panel shall make a written recommendation to the Board of Regents, which may adopt or reject the recommendation, or remand to the panel for further proceedings. The decision of the board shall be in writing and shall constitute the final determination of the board.

(4) Decisions to be filed. A copy of the decision of the Board of Regents with respect to the proceeding will be forwarded by the office of counsel to all the parties to the proceeding, or, if they be represented by counsel, to counsel for the respective parties, with instructions for service and filing as may be appropriate. A copy will also be sent those persons or organizations who have been granted leave to submit memoranda amicus curiae.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 3.31