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About the ALJs
19 NYCRR PART 400
Hearing Rules of Procedure
|§ 400.1 Intent and purpose »||§ 400.8 Evidence and proof »|
|§ 400.2 Office of Administrative Hearings »||§ 400.9 Service of rules »|
|§ 400.3 Conduct of adjudicatory proceedings »||§ 400.10 Representation »|
|§ 400.4 Commencement of disciplinary proceedings »||§ 400.11 Adjournments »|
|§ 400.5 Subpoenas »||§ 400.12 Proposed findings of fact »|
|§ 400.6 Motions »||§ 400.13 Time periods »|
|§ 400.7 Affidavits »|
The Secretary of State has authority under Article 3 of the State Administrative Procedure Act to provide for adjudicatory proceedings and appeals pertaining to matters within the Secretary's statutory jurisdiction. It is the intent and purpose of these regulations to afford all those appearing in any hearing subject to this part due process of law and an opportunity to be heard, while at the same time ensuring protection of the public health, safety and general welfare.
(a) There is hereby established within the Department of State an office of administrative hearings which shall conduct all adjudicatory proceedings which devolve upon the Secretary of State by requirement of statute. All adjudicatory proceedings shall be conducted by the office of administrative hearings through the service of administrative law judges who will have all the power and authority of presiding officers or hearing officers as defined by the State Administrative Procedure Act (SAPA), and other pertinent statutes, and these regulations.
(b) All administrative law judges shall be licensed to practice law and shall not serve in any other capacity within the Department of State.
(c) For administrative and personnel purposes the administrative law judges shall report directly to the Secretary of State or the Secretary of State's designee.
(d) The fact that an administrative law judge's rulings, decisions or other actions favor or disfavor the Department of State or any other party shall not be considered in establishing the administrative law judge's salary, promotion, benefits, working conditions, case assignments or opportunities for employment or promotion, and shall not be the cause of any disciplinary proceedings, removal, reassignment, reclassification, or relocation. There shall not be established any quotas or similar expectations for any administrative law judge that relate in any way to whether the administrative law judge's rulings, decisions or other actions favor or disfavor the Department of State. The work of the administrative law judge shall be evaluated only on the following general areas of performance: competence, objectivity, fairness, productivity, diligence and temperament.
(e) In any pending adjudicatory proceeding, the administrative law judge may not be ordered or otherwise directed to make any finding of fact, to reach any conclusion of law, or to make or recommend any specific disposition of a charge, allegation, question or issue.
(f) Unless otherwise authorized by law, an administrative law judge shall not communicate in connection with any issue that relates in any way to the merits of an adjudicatory proceeding pending before the administrative law judge with any person except upon notice and opportunity for all parties to participate, except that an administrative law judge may consult on questions of law and ministerial matters with other administrative law judges and support staff of the office, provided that such other administrative law judges or support staff have not been engaged in investigative or prosecutorial functions in connection with the adjudicatory proceeding under consideration or a factually related adjudicatory proceeding or would not be disqualified pursuant to (g), below.
(g) An administrative law judge shall not participate in any proceeding to which he or she is a party; in which he or she has been attorney, counsel or representative; in which he or she is interested; or if he or she is related by consanguinity or affinity to any party to the controversy. An administrative law judge shall recuse him or herself from any case in which he or she believes that there is, or there may be perceived to be, a conflict of interest.
(h) Matters shall be referred by other divisions of the Department of State to the office of administrative hearings for hearing.
(i) The administrative law judge assigned shall set the location and time at which a hearing, and any adjournments or continuations thereof, will be held. The office of administrative hearings shall prepare the notice of hearing and transmit it to the person assigned to litigate the matter for proper service. Notices of adjournment or continuation shall be transmitted directly to the parties by the office of administrative hearings.
(j) After the hearing the administrative law judge shall issue a decision based on findings of fact and conclusions of law. Such decision shall be final and binding when issued unless an appeal is taken pursuant to (k), below.
(k) Any of the parties may appeal the decision or the grant or denial of an interim order of suspension to the Secretary of State within thirty calendar days of receipt. Such an appeal shall be made by filing with the Secretary of State, and serving on the other party or parties, a written memorandum stating the appellant's arguments and setting forth specifically the questions of procedure, fact, law or policy to which exceptions are taken, identifying that part of the administrative law judge's decision and order to which objection is made, specifically designating the portions of the record relied upon, and stating the grounds for exceptions. A party upon whom an adverse party has served an appeal may file and serve a memorandum in opposition and cross-appeal within thirty calendar days after such service. A response to a cross-appeal may be filed and served within fifteen calendar days after service of the cross-appeal. The failure of any party to respond shall not be deemed a waiver or admission. The record on appeal shall consist of the evidentiary exhibits from and transcript of the hearing, and the memorandums of appeal, opposition, and cross-appeal. The Secretary of State or his or her designee may, in his or her discretion, stay the effective date of the decision, and shall, based solely on the record on appeal unless he or she directs in his or her sole discretion that there be oral argument, either confirm the decision in writing, make a written, superseding decision including a statement as to why he or she has not confirmed the administrative law judge's decision, or remand the matter to the administrative judge for additional proceedings.
(l) Following the administrative law judge's decision, and pending the filing of an appeal therefrom, any party may immediately apply to the Secretary or the Secretary's designee for a stay pending determination of the appeal. The application for a stay shall be in writing and based upon evidence contained in the record and shall be served on opposing parties who shall have the opportunity to rebut the application in writing within two business days of receipt. The Secretary or the Secretary's designee shall forthwith rule on the application, and may grant the stay and reserve decision on the appeal; or may deny the stay and either reach a decision on the merits of the appeal or reserve such decision.
(1) granting the motion;(b) A denial of a motion made under this section is not a final disposition and a right to appeal to the Secretary of State or to commence a proceeding under article 78 of the Civil Practice Law and Rules shall not accrue until a final decision on the merits is rendered.
(2) denying the motion and continuing the hearing; or
(3) reserving decision on the motion and continuing the hearing.