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19 NYCRR 941.1 - Intent and purpose

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Executive Law section 94(14) authorizes the Joint Commission on Public Ethics to adopt rules governing the conduct of adjudicatory proceedings and appeals consistent with the New York State Administrative Procedure Act (SAPA). Moreover, the Joint Commission on Public Ethics’ proceedings are otherwise subject to SAPA. These regulations set forth rules for adjudicatory proceedings and appeals relating to: potential violations of the law that fall within the Joint Commission on Public Ethics’ jurisdiction, including investigatory matters pursuant to Executive Law section 94(13); appeals taken from denials of requests to delete or exempt certain information from a financial disclosure statement pursuant to Executive Law section 94(9)(h) or (i); or Public Officers Law section 73-a(3)(8)(b-1), (b-2), or (c); exempt certain individuals from filing a financial disclosure statement pursuant to Executive Law section 94(9)(k); and appeals taken from denials of applications for exemptions under article 1-A of the Legislative Law sections 1-h, 1-j and 19 NYCRR section 938.6.

19 NYCRR 941.2 - Definitions

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19 NYCRR 941.4 - Time and place of hearing and service of filings

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(a)The commission shall determine the time and place of hearing and shall, as practicable, take into account the convenience of the parties and the availability of witnesses.

(b)The time and place of hearing shall not be changed unless a party formally requests a change pursuant to the adjournment request procedure contained in section 941.8 of this Part and the hearing officer determines that sufficient cause has been set forth for such a change of time and place in a timely manner.

(c)Any written notice or filing by the respondent shall be served upon the hearing officer and the commission at the offices of the commission as specified in the notice of substantial basis investigation and hearing.

19 NYCRR 941.5 - Representation

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(a)Any person compelled to appear in person or who voluntarily appears in any hearing herein described shall be accorded the right to be accompanied, represented and advised by counsel. Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others in any hearing. However, any person appearing before the commission in a representative capacity will be required to establish his or her authority to act in such capacity.

(b)Any counsel or attorney for the respondent shall file with the commission a notice of appearance in a form provided by the commission.

19 NYCRR 941.6 - Selection of hearing officer

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(a)The commission shall maintain a list of independent hearing officers in accordance with the commission’s policies and procedures.

(b)The commission shall select at random from the list of independent hearing officers a hearing officer to preside over each hearing or appeal, when applicable.

(c)Such hearing officer shall not have any conflict of interest in the matter being heard before him or her. The hearing officer shall not sit as a hearing officer in a matter to which he or she is a party; or in which he or she has been attorney or counsel; or in which he or she is interested; or if he or she is related to any party or witness in the matter; or in any circumstance where there is conflict of interest.

(d)In the event of a hearing officer's death, resignation, removal, termination of employment, disability, or inability or failure to make a written finding and recommendation within the time period allowed after the completion of the hearing, the commission may direct that all of the evidence taken at the hearing be submitted to the commission for decision.

19 NYCRR 941.7 - Powers and duties of hearing officers

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(a)A hearing officer is authorized to do the following in any hearing to which the hearing officer is assigned:

(1)Administer oaths or affirmations.

(2)Sign and issue subpoenas in the name of the commission, at the request of any party or the direction of the commission, requiring attendance and testimony by witnesses and the production of books, papers, documents and other evidence. Subpoenas shall be regulated by the Civil Practice Law and Rules. Nothing herein contained shall affect the authority of an attorney for a party to issue such subpoenas under the provisions of the Civil Practice Law and Rules.

(3)When there is good cause to believe that the testimony of a potential witness will be unavailable at the time of hearing, testimony may be taken by deposition. The hearing officer shall allow the use of such depositions at the hearing.

(4)Regulate the course of the hearings, set the time and place for continued hearings and fix the time for filing of briefs and other documents for review by the hearing officer prior to the issuance of findings of fact and recommendations.

(5)Direct the parties to appear for pre-hearing conference and confer to consider the simplification or settlement of the issues and/or stipulations as to the underlying facts by consent of the parties.

(b)A hearing officer is authorized, in any hearing or appeal to which the hearing officer is assigned, to issue findings of fact, conclusions of law, and recommendations, as may be appropriate.

19 NYCRR 941.8 - Adjournment

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(a)A hearing officer shall grant an adjournment of any hearing conducted pursuant to these rules only for good cause.

(b)Unless for good cause shown, written requests for adjournment shall be submitted to the hearing officer of record in the hearing and a copy provided to the other party no later than five business days proceeding the hearing date. The request must be accompanied by an affidavit which contains sufficient detail to allow the hearing officer to rule on the request for such adjournment.

(c)No request for adjournment shall be considered granted until approved by the hearing officer.

19 NYCRR 941.9 - Time limits

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(a)At least seven days before the hearing, the commission shall provide to the respondent any additional evidence supporting the allegations that was not previously described in the notice sent pursuant to Executive Law section 13(a) in sufficient detail to enable the respondent to respond at the hearing.

(b)At least seven days before the hearing, the respondent shall provide the commission and hearing officer a list of possible witnesses and notice of any defenses to be presented, and supporting evidence, in sufficient detail to permit the staff of the commission to prepare for the hearing.

(c)Any other papers, statements, proofs, and evidence shall be provided to the other party and the hearing officer, in the hearing officer’s discretion and at a time to be designated by the hearing officer. The hearing officer, executive director or the commission may grant an extension of time for filing such matters only upon formal request.

(d)Except by consent of the parties, every hearing conducted pursuant to these rules shall be concluded within 180 days of the date of the hearing specified in the notice of substantial basis investigation and hearing. An adjournment or continuance granted at the request of the respondent or by mutual consent of the parties will extend the period of time for conclusion by the length of time the adjournment or continuance is granted.

(e)The commission, the executive director, or the hearing officer may, at any time before the time limits delineated above expire, extend such time period by making a determination that the time provided is insufficient to complete the hearing and shall state sufficient reasons therefor. This extension shall not continue for a period longer than 90 days after the expiration of the original 180 day period during which the hearing should have been concluded.

(f)Failure by the hearing officer, the executive director or the commission to adhere to time limits established by this section shall be reviewable under article 78 of the Civil Practice Law and Rules in a proceeding in the nature of mandamus.

19 NYCRR 941.10 - Conduct of hearings

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(a)All hearings and proceedings before the hearing officer or commission related thereto commenced under these rules are confidential in accordance with Executive Law section 94(13)(b).

(b)The respondent shall not be deprived of the opportunity to appear; however, failure to appear after service of notice shall not preclude a decision by the hearing officer and the commission, upon proof of service, to proceed with the scheduled hearing.

Proof of service shall consist of a certified mail receipt or affidavit of service.

(c)The hearing officer shall conduct all hearings under these rules and shall exercise the power and authority of presiding officers or hearing officers as defined by SAPA, any other pertinent statute and these regulations.

(d)The hearing officer may exclude from the hearing room or from further participation in the proceeding any person who engages in contemptuous conduct before the hearing officer.

19 NYCRR 941.11 - Oaths

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(a)All oaths required by these rules may be taken before any person authorized to administer oaths within the State of New York.

(b)Oaths shall be administered to all witnesses who testify or appear in any hearing conducted pursuant to these rules.

19 NYCRR 941.12 - Evidence and proof

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(a)The formal rules of evidence do not apply with respect to any hearings under the commission’s jurisdiction. Objections to evidentiary offers may be made and shall be a part of the record. Subject to these rules, any party may, for the purpose of expediting the hearing, and when the interests of the parties will not be substantially prejudiced thereby, submit all or part of the evidence in written form.

(b)The introduction of cumulative or irrelevant evidence shall be avoided and the hearing officer may curtail the testimony of any witness which he or she judges to be merely cumulative or irrelevant; however, the party offering such testimony may make a short avowal of the testimony which would be given and if the witness asserts that such avowal is true, this avowal shall be made part of the record.

(c)All evidence appearing in the record shall be deemed to have been validly introduced.

(d)The burden of proof shall be on the commission unless otherwise provided by statute.

(e)Each party shall have the right to give sworn testimony, to produce witnesses, to present documentary evidence and to examine opposing witnesses and evidence.

(f)The parties may, by agreement, stipulate as to any facts involved in the proceeding, provided that such stipulation is duly noted in the record.

(g)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 commission. When official notice is 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.

19 NYCRR 941.14 - Fines, penalties

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(a)The commission’s assessment of civil penalties made pursuant to Executive Law section 94(14) shall not preclude its referral of violations of law to a prosecutor for criminal prosecution.

(b)If the alleged violation has been established, and the commission determines in light of all the circumstances that the violation is not serious enough to warrant assessment of a civil penalty, the commission, in its discretion, may take such other action as appropriate including, but not limited to, a written admonition or a recommendation that disciplinary action be taken. The commission may forward a copy of such admonition or recommendation for disciplinary action to the individual’s appointing authority, as appropriate.

19 NYCRR 941.15 - Record of hearing

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(a)The record in hearings under these rules shall include:

(1)all notices, pleadings, motions, and 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; and

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

(b)The commission shall make available a complete record of all hearings in which the commission has issued a final decision to any party to that hearing. The commission shall make this record available upon reasonable notice and written request before the commencement of any judicial review. The commission shall charge the reasonable cost of preparing such record to the requesting party.

(c)A written transcript for all hearings conducted pursuant to these rules shall be provided to any party to a hearing. This transcript shall be made available upon reasonable notice and written request following the conclusion of the hearing. The commission shall charge the requesting party for the reasonable cost of preparing such transcript.

19 NYCRR 941.16 - Privacy/confidentiality

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19 NYCRR 941.17 - Appeals from executive director’s denials related to financial disclosure statements

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19 NYCRR 941.18 - Appeals from denial of an application for exemptions under article 1-A of the Legislative Law sections 1-h, 1-j and section 938.6 of this Title

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(a)An appeal of a denial of an application for exemption to a judicial hearing officer, pursuant to article 1-A of the Legislative Law section 1-h and Part 938 of this Title is available only to a client filer who submitted an application under section 938.4(a) of this Title. A client filer who submitted an application under section 938.4(b) of this Title is not entitled to such an appeal.

(b)A client filer may appeal a denial of an application for exemption. A notice of appeal must be in writing and include the original application for exemption together with any supporting materials that were submitted pursuant to section 938.5 of this Title. The written notice of appeal must be received by the commission no later than 15 business days after the date of the denial. Any notice of appeal received by the commission later than 15 business days after the date of the denial will not be considered and the client filer will be deemed to have waived the right to appeal.

(c)If the client filer appeals and such appeal is denied, the client filer shall, within five business days of the date of the denial of the appeal, amend the client semi-annual report to include the required information relating to the subject of the application for exemption.

(d)Appeal procedure and standard of review.

(1)Upon receipt of a notice of appeal in accordance with subdivision (b) of this section, the commission shall assign the matter to a hearing officer.

(2)The hearing officer shall review the entire record, which shall consist of the original application for exemption together with any supporting materials that were submitted pursuant to subdivision (b) of this section and the commission’s written denial.

(3)The hearing officer may reverse the commission’s denial only if such denial is clearly erroneous in view of the evidence in the record.

(4)The hearing officer’s final decision shall be in writing and shall affirm, reverse, or remand the decision of the commission and shall set forth a concise statement of the reasons for the judicial hearing officer’s decision. The hearing officer shall issue the final decision within 15 business days of the hearing officer’s receipt of the materials identified in this section.

(5)A decision by the hearing officer to affirm or reverse the commission’s denial of an exemption shall be considered a final determination by the commission.

19 NYCRR 941.19 - General provisions

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(a)All final recommendations of the hearing officer and all of the decisions of the executive director and the commission shall be in writing or stated in the record and shall include findings of fact, conclusions of law, reasons for the decision and when appropriate, direct that specific action be taken by the commission. The final decisions of the commission shall be binding upon the commission.

(b)Except in matters

ex parte , members or employees of the commission assigned to make, or assist in making a decision or findings of fact and conclusions of law in any hearing shall not communicate, directly or indirectly, in connection with any issue of law, with any person, party or its representative of record, except upon notice and opportunity for all parties to participate. Any such member or employee may communicate with other commission members or employees and may seek the aid and advice of agency staff, including counsel to the commission, 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.

(c)The commission shall maintain all substantial basis investigation reports and notices of civil assessments and make them publicly available as required by law.

19 NYCRR 941.20 - Savings clause

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All matters where the commission has issued a substantial basis investigation report will be governed by the laws and adjudicatory rules in effect when such substantial basis investigation report was issued. All other matters and investigations will be governed by the provisions of this Part.

19 NYCRR 941.21 - [Repealed]

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