N.Y. Comp. Codes R. & Regs. tit. 9 § 6218.4

Current through Register Vol. 46, No. 43, October 23, 2024

Section 6218.4 - Conduct of adjudicatory proceedings

(a) The hearing officer assigned shall set the time at which a hearing shall be held, and shall grant or deny adjournments or continuations thereof. To the extent practicable, adjournments shall be scheduled by the hearing officer upon consultation with all participants. Notices of adjournment or continuation shall be transmitted directly to the parties by the hearing officer.

(b) All adjudicatory proceedings will be conducted in accordance with the State Administrative Procedure Act, the Election Law, rules, regulations and opinions of the State Board and all other applicable legal authority. Such law, regulations, opinions and authority shall, as relevant, be binding on all determinations and findings of the hearing officer. In all instances, due process of law will be observed, including the creation of a transcription of any hearing.

(c) A respondent may request the hearing officer to direct the chief enforcement counsel to provide a more definite statement or particularization of an alleged violation in the report of the chief enforcement counsel. If the hearing officer determines such request is reasonable, the hearing officer shall direct the chief enforcement counsel to provide a more definite statement within a reasonable time frame.

(d) The hearing officer shall make findings of fact and conclusions of law based on a preponderance of the evidence as to whether a violation has been established and, if so, who is guilty of such violation on notice to and with an opportunity for the individual or entity accused of any violations to be heard. However, if the hearing officer finds that on balance, the equities favor a dismissal of the complaint, the hearing officer shall dismiss the charges. In determining whether the equities favor a dismissal, the hearing officer shall consider the following factors:

(1) whether the complaint alleges a de minimis violation(s) of article 14 of the Election Law;

(2) whether the subject of the complaint has made a good faith effort to correct the violation; and

(3) whether the subject of the complaint has a history of similar violations.

For purposes of making any such findings, proceedings before the hearing officer shall be governed by article 3 of the State Administrative Procedure Act and shall be made on a fair, equitable and uniform basis without regard to the status of the individual who is the subject of the report.

(e) Any party may submit proposed findings of fact within time limitations set by the hearing officer. Such findings of fact shall be captioned, titled as such, shall be consecutively numbered and shall be typed legibly on plain, white bond, standard weight paper, 81/2 x 11 inches in size. Such proposed findings of fact shall recite basic facts and not evidentiary facts and shall not be conclusions of law. A basic fact would be "John Jones visited Syracuse," and not "John Jones testified that he visited Syracuse," which is an evidentiary fact. A conclusion of law would be "John Jones has demonstrated untrustworthiness within the meaning of section 441-c of the Real Property Law." In general, it is expected that the complaint will allege the basic facts which would otherwise be contained in a statement of proposed findings of fact. In accordance with section 307(1) of the State Administrative Procedure Act, the person assigned to render a decision will rule on each finding of fact. Such decision maker will do so by marking the instrument setting forth the proposed findings of fact a part of the decision and noting in the margin thereof the ruling, i.e., "Found," "Not Found," "Irrelevant," "Evidentiary," "Conclusion of Law," which rulings may be abbreviated meaningfully. The body of the decision will contain such findings of fact as the decision maker deems relevant, but need not be expressed in the same language as presented in the proposed findings.

(f) The chief enforcement counsel shall adopt the report of the hearing officer and may, in his or her discretion, commence a special proceeding in the supreme court pursuant to sections 16-100, 16-114 or 16-116 of the Election Law should the findings of fact and conclusions of law provide a basis for the commencement of such proceeding or enter into an agreement to settle such matter with the subject of the complaint.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 6218.4

Adopted New York State Register November 10, 2015/Volume XXXVII, Issue 45, eff. 11/10/2015