New York Codes, Rules and Regulations › Title 19 - DEPARTMENT OF STATE › Chapter XI - Hearings › Part 400 - Hearing Rules Of Procedure › Section 400.2 - Office of Administrative Hearings

Current through Register Vol. 46, No. 28, July 10, 2024
(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 subdivision
				(g) of this section.
(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 subdivision (k) of this section.
(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 30 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 30 calendar days after such
				service. A response to a cross-appeal may be filed and served within 15
				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.