9 NYCRR Part 9977 - Executive Department

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9 NYCRR 9977.1 - Intent and purpose

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

The Temporary State Commission on Local Government Ethics has statutory authority to adopt rules and regulations governing the conduct of adjudicatory proceedings and appeals relating to the assessment of the civil penalties authorized by General Municipal Law, section 813(13) and the conduct of hearings held under section 813(12)(a) of that law; rules relating to appeals taken from denials by the Public Advisory Council of requests to delete or exempt certain items of information from the annual statement of financial disclosure as authorized in General Municipal Law, section 813(9)(h)-(i); and rules relating to appeals taken from final decisions made after a hearing. In adjudicatory proceedings and appeals undertaken pursuant to the Ethics in Government Act, it is the intention and purpose of the Temporary Commission on Local Government Ethics to afford all parties due process protection and fair and just resolution of all matters. The purpose of the Ethics in Government Act is to restore public trust and confidence in government. Effective enforcement, including adjudication, will help to accomplish that purpose.

9 NYCRR 9977.2 - Definitions

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Appellant shall mean the recipient of an adverse determination by the Public Advisory Council who wishes to appeal or has appealed that adverse decision to the commission.

(b)Commission shall mean the Temporary State Commission on Local Government Ethics, established under General Municipal Law, section 813.

(c)Ethics in Government Act shall mean chapter 813 of the Laws of 1987, as amended.

(d)Executive director shall mean executive director of the commission, as appointed pursuant to section 813(9)(a) of the General Municipal Law.

(e)Annual statement shall mean the annual statement of financial disclosure which is required to be filed with the commission pursuant to local law, ordinance, or resolution or filed pursuant to General Municipal Law, section 811 or 812.

(f)Hearing officer shall mean the presiding officer in adjudicatory hearings or proceedings conducted pursuant to these regulations.

9 NYCRR 9977.3 - Notice of reasonable cause

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt

If the commission, subsequent to an investigation of a possible violation of a duly adopted code of ethics, local law, ordinance, or resolution or General Municipal Law, section 811 or 812, and after compliance with the provisions of General Municipal Law, section 813(12)(a), determines that there is reasonable cause to believe that a violation has occurred, it shall send a notice of reasonable cause:

(a)to the subject of the investigation;

(b)to the complainant, if any; and

(c)in the case of a local officer or employee, to the appointing authority for such person.

9 NYCRR 9977.4 - Notice of hearing or proceeding (form)

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt

(a)Where the commission elects to go forward with a proceeding to determine whether a civil penalty should be assessed pursuant to General Municipal Law, section 813(13), or to take such other action as may be authorized by law, the commission shall serve a written notice, by certified mail or other appropriate method of service authorized under the Civil Practice Law and Rules, to the parties and their representatives of record at least 20 calendar days prior to the date of any hearing or proceeding under these rules. The Notice of Hearing or proceeding shall contain the following:

(1)a statement of the time and place of the hearing or proceeding;

(2)a statement of the nature of the hearing or proceeding;

(3)reference to the particular statutes and rules relevant to the hearing or proceeding;

(4)a short, plain language statement of the violations asserted; and

(5)a statement for hearing impaired parties and participants concerning the provision of deaf interpretation services without charge.

(b)A plain language summary of these rules shall accompany each notice of hearing or proceeding which is sent pursuant to these regulations.

(c)The notice of hearing or proceeding shall contain information concerning circumstances under which an adjournment may be granted and the result of failure to appear for a scheduled hearing or proceeding.

(d)The notice of hearing or proceeding shall inform the parties and their representatives of the right of each party to be represented, to testify, to produce witnesses, to present documentary evidence, and to examine opposing witnesses and evidence.

9 NYCRR 9977.5 - Time and place of hearing or proceeding

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The time and place of the hearing or proceeding shall be contained in the notice of hearing or proceeding.

(b)The time and place of the hearing or proceeding shall not be changed unless a party formally requests a change pursuant to the adjournment request procedure contained in section 9977.10 of this Part.

(c)The time and place of the hearing or proceeding shall, as far as practicable, take into account the convenience of the parties and the availability of witnesses.

9 NYCRR 9977.6 - Statement of charges (plain language summary)

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

For any hearing or proceeding in which a violation of a code of ethics, local law, ordinance, or resolution or of General Municipal Law, section 811 or 812 is alleged, the notice of hearing or proceeding shall contain a plain language statement of the violations which are the subject of the hearing or proceeding.

9 NYCRR 9977.7 - Evidence and proof

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The formal rules of evidence do not apply to adjudicatory hearings or proceedings conducted pursuant to these rules. However, the rules of privilege recognized by law shall be given effect. 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 or proceeding 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 hearing officer may exclude irrelevant or unduly repetitive evidence or cross-examination from any hearing or proceeding.

(c)The burden of proof shall be on the party who initiated the hearing or proceeding, unless otherwise provided by statute.

(d)No decision or determination by the hearing officer, the executive director, or the commission shall be made except on consideration of the record as a whole, or such portions thereof as may be cited by any party to the hearing or proceeding and as supported by and in accordance with substantial evidence.

(e)Each party shall have the right of cross-examination.

(f)Official notice may be taken of all facts of which judicial notice may 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.

(g)All findings of fact shall be based exclusively on the evidence in the record and on matters officially noticed.

9 NYCRR 9977.8 - Representation

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

Any person compelled to appear in person, or who voluntarily appears in any hearing or proceeding conducted according to these rules, 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 or proceeding herein.

9 NYCRR 9977.9 - Oaths

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(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 or proceeding conducted pursuant to these rules.

9 NYCRR 9977.10 - Adjournments

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Adjournment of any hearing or proceeding conducted pursuant to these rules shall be granted only for good cause.

(b)Written requests for adjournment shall be submitted to the hearing officer in the hearing or proceeding for which the adjournment is sought. The request must be accompanied by an affidavit which contains sufficient detail to allow the hearing officer to rule on the request.

9 NYCRR 9977.11 - Time limits

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Under these rules adjudicatory proceedings shall be conducted in an expeditious manner with all due regard for the rights of the parties concerned. Every effort should be made by the parties to effectuate a speedy disposition of the case.

(b)Parties to any hearing or proceeding are required to file all papers, statements, proofs, and other evidence with the hearing officer at a time to be designated by the officer. An extension of time for filing those items will be granted by the hearing officer only upon formal request.

9 NYCRR 9977.12 - Decision after hearing or proceeding

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)All final recommendations of the hearing officer, and all decisions and determinations 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, and reasons for the decision or determination and, when appropriate, shall direct that specific action be taken by the parties. The final decisions or determinations of the commission and the executive director shall be binding upon the commission.

(b)A copy of all final decisions and determinations of the executive director and the commission and recommendations of the hearing officer shall be made available to the parties to the hearing or proceeding, and shall be delivered or mailed forthwith to each party and to its representative of record.

(c)Except as required for the disposition of ex parte matters authorized by law, members or employees of the commission assigned to make a determination or decision, or to make findings of fact and conclusions of law in any hearing or 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 its representative, except upon notice and opportunity for all parties to participate. Any member or employee of the commission may communicate with other members or employees and may have 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 a factually related case.

(d)The commission shall maintain the final decision or determination in any hearing or proceeding in a file with an index by name of party and subject matter. The index and the notice of civil assessment, if any, shall not be made available for public inspection and copying except as provided in section 9977.18 of this Part. Each decision or determination shall be so filed and indexed within 60 days after having been rendered.

9 NYCRR 9977.13 - Conduct of hearings

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

The hearing officer, exercising discretion, may elect to conduct any hearing or proceeding under these rules ex parte after a showing that the party who is the subject of the hearing and its representative of record have been notified by certified mail of the pending hearing or proceeding or otherwise served with notice of the hearing. The party who is the subject of the hearing shall at no time be deprived of the opportunity to appear. However, if a party has been served with two written notices of a hearing and fails to appear after each notice, the hearing officer, upon proof of service, shall have the authority to proceed with the scheduled hearing. Proof of service shall consist of a signed certified mail receipt or affidavit.

9 NYCRR 9977.14 - Hearing officer

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

All hearings or proceedings under these rules shall be conducted by a hearing officer, designated by the executive director, who shall have the power and authority of presiding officers or hearing officers as defined by the State Administrative Procedure Act (SAPA), any other pertinent statute, and these regulations. The hearing officer shall be an individual who has in no way been involved with the action or proceeding in question.

9 NYCRR 9977.15 - Powers and duties of hearing officer

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

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

(1)administer oaths and affirmations;

(2)at the request of any party, sign and issue subpoenas in the name of the commission requiring the attendance and giving of 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)provide for the taking of testimony by deposition;

(4)regulate the course of the hearings, set the time and place for continued hearings and the time for filing of briefs and other documents;

(5)direct the parties to appear and confer to consider the simplification or settlement of the issues by consent of the parties; and

(6)prepare findings of fact and recommendations.

9 NYCRR 9977.16 - Fines, penalties

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)At the close of the hearing or proceeding, the hearing officer shall make findings of fact and a recommendation as to the appropriate penalty or fine to be assessed or any other action to be taken. The proposed findings of fact and recommendation shall be transmitted to the commission for approval and simultaneously mailed or delivered to the parties to the proceeding. The parties shall have an opportunity to respond in writing, in the form of a brief, to the findings of fact and recommendation of the hearing officer, and such written response shall be directed to the commission for its consideration within 15 days after the submission of the hearing officer's recommendation to the commission. In their brief submitted in response to the findings of fact and recommendation of the hearing officer, the parties may not submit or discuss evidence which is not a part of the official record of the hearing or proceeding. The commission shall act on the findings of fact and recommendation as expeditiously as possible. The commission may affirm or reverse the findings of fact and recommendation of the hearing officer in whole or in part, or it may remand and/or dismiss the proceeding based upon the record produced at the hearing.

(b)The assessment of civil penalties under the applicable law and procedures shall not preclude the referral of an appropriate violation to a prosecutor for prosecution of criminal charges, except where the violation is of General Municipal Law, section 813(13).

(c)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, or if the imposition of civil penalties is not otherwise authorized by law, 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 or a referral to a prosecutor for prosecution of criminal charges. The commission may forward a copy of such admonition or recommendation for disciplinary action to the individual's appointing authority, as appropriate.

9 NYCRR 9977.17 - Record of hearing or proceeding

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The record in hearings or proceedings 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;

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

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

(b)The commission shall make a complete record of all hearings and proceedings conducted before it. For this purpose, unless otherwise required by statute, the commission may use whatever means it deems appropriate, including but not limited to the use of stenographic transcriptions or electronic recording devices. Within a reasonable time after the commission gives notice of its decision, determination, opinion, or order, but before commencement of judicial review, any party to the hearing or proceeding may request the commission to prepare the record or any part thereof, together with any transcript of the hearing or proceeding or any part thereof. The commission shall then prepare the requested portions of the record and transcript within a reasonable time and furnish a copy to the requesting party. Except when any statute provides otherwise, the commission shall charge the reasonable cost of preparing and furnishing the requested portions of the record and transcript.

9 NYCRR 9977.18 - Privacy/confidentiality

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Notwithstanding the provisions of article 6 of the Public Officers Law, the only records of the commission which shall be available for public inspection are:

(1)the information set forth in the Annual Statement, except the categories of value or amount, which shall remain confidential, and any other item of information deleted pursuant to General Municipal Law, section 813(9)(h) or 813(17)(h);

(2)notices of delinquency sent under General Municipal Law, section 813(11);

(3)notices of reasonable cause sent under General Municipal Law, section 813(12)(b); and

(4)notices of civil assessment imposed under General Municipal Law, section 813(13).

(b)Notwithstanding the provisions of article 7 of the Public Officers Law, no meeting or proceeding of the commission, including any proceeding contemplated under General Municipal Law, section 813(9)(h)-(i), shall be open to the public, except as expressly provided otherwise by the commission.

(c)Information which would reveal confidential material protected by Federal or State statute shall be deleted from any final decision, order, determination, or declaration issued by the commission.

9 NYCRR 9977.19 - Appeals from Public Advisory Council decisions

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Grounds for appeal of decisions of the Public Advisory Council.

(1)Any person required to file an annual statement, whose written request for deletion of one or more items of information has been denied in writing by the Public Advisory Council, may file with the commission pursuant to these rules a written appeal of the denial within 15 days after receipt of the denial.

(2)Any person required to file an annual statement, whose written request to the Public Advisory Council for exemption from any requirement to report one or more items of information which pertain to the person's spouse or unemancipated children has been denied in writing by the Public Advisory Council, may file with the commission pursuant to these rules a written appeal of the denial within 15 days after receipt of the denial.

(b)Confidentiality of information related to public advisory council decisions.

Following the filing of a notice of appeal pursuant to these rules, the commission shall keep confidential all information which is the subject of the appeal. The reporting individual may request within 5 days after receipt of an adverse determination by the commission, and upon such request the commission shall provide, that any information which is a part of the appeal remain confidential for a period of 30 days following notice of the determination. In the event that the reporting individual resigns from office and holds no other office subject to the jurisdiction of the commission, the information shall not be made public and shall be expunged in its entirety.

(c)Notice and procedure for appeal from an adverse Public Advisory Council decision.

(1)A notice of appeal must be filed with commission within 15 calendar days after receipt by the appellant of an adverse determination by the Public Advisory Council. The notice of appeal must be in writing and shall be addressed to the commission at the address provided in a notice accompanying the determination by the Public Advisory Council. That notice shall also include information concerning the procedure for appeals.

(2)Upon receipt of the notice of appeal, the executive director, on behalf of the commission, shall issue a notice of docketing, which shall set forth a time and date for submission of written arguments and documentary evidence to the commission in support of the appellant's position. This time and date shall be no sooner than 15 days, and no later than 30 days, after the commission's receipt of the notice of appeal.

(d)Record on appeal.

(1)The commission shall consider the record provided by the Public Advisory Council and the written submissions of the appellant in making a determination on the appeal of an adverse determination. The commission may request additional information to be filed by the appellant.

(2)The formal rules of evidence shall not apply in the appeals process.

(3)The burden is on the appellant to show that the Public Advisory Council made an erroneous determination in deciding not to grant appellant's deletion or exemption request.

(4)Decision on appeal from Public Advisory Council decisions.

(i)The commission shall review the written appeal filed pursuant to these rules and shall render a decision based upon the entire record submitted to the Public Advisory Council and the written submission of the appellant to the commission on appeal.

(ii)The written decision of the commission shall affirm or reverse the decision of the Public Advisory Council or shall remand the proceeding or dismiss the request. The commission's decision shall, as appropriate, set forth a concise statement of the reasons for the commission's decision and shall be issued within 60 days after the commission's receipt of the written notice of appeal, or as soon thereafter as possible.

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