New York Administrative Law Tested

The State Administrative Procedure Act (SAPA) governs the rulemaking process for government agencies in New York State.

The Office of Court Administration and the Judiciary are exempt from SAPA requirements.

The New York Code of Rules and Regulations (NYCRR) primarily
contains the final text of state agency rules and regulations
adopted under the State Administrative Procedure Act (SAPA). The 23 Titles of the NYCRR include one for each state department, one for miscellaneous agencies, and one for the Judiciary.

The State Register is published weekly and plays a central role in New York's rule making process. It contains newly proposed amendments to state agency rules and provides interested parties an opportunity to comment on actions before an agency adopts each rule. Eventually, adopted rules are assembled in the New York Code of Rules and Regulations (NYCRR).

The State Administrative Procedure Act (SAPA) establishes minimum procedures for all agencies of New York State when establishing rules. These procedures include:
(1) an agency publishing a Notice of Proposed Rule Making in the State Register;

(2) the agency holding a comment period where it considers comments submitted by the public; and

(3) the agency adopting the final rule, which will be published in the NYCRR. However, an agency may adopt additional procedures consistent with SAPA.

For an agency rule to be valid, it MUST be promulgated and filed in
accordance with requirements and procedures of the State Administrative Procedure Act (SAPA) and the New York Constitution.

If an agency rule is NOT promulgated in substantial compliance with the provisions of SAPA, the rule will be invalid and unenforceable. Even if an agency was authorized to create and implement a rule, the rule will have no force or effect if the agency fails to follow the procedural requirements under SAPA. However, the inadvertent failure to send notice to any person will not invalidate any rule promulgated under SAPA.

Prior to the adoption of a rule, an agency shall submit a Notice of Proposed Rule Making to the secretary of state for publication in the State Register at least 45 days prior to either:
(a) the first public hearing on a proposed rule where such hearing is required OR

(b) the addition, amendment, or repeal of a rule which does not require a public hearing.

MUST:

(1) include the last date for submission of comments on the proposed rule;

(2) cite the statutory authority for the rule;

(3) give the date, time, and place of any public hearing(s) scheduled;

(4) state whether or not the place of any public hearing(s) will be reasonably accessible to persons in a wheel chair or persons who use a prosthetic device - but failure to provide such accessibility upon diligent effort will have no effect upon any actions or proceedings taken at the hearing;

(5) include a statement that interpreter services shall be made available to deaf persons, at no charge, upon written request within a reasonable time prior to the scheduled hearing;

(6) contain the complete text of the proposed rule (unless the text exceeds 2,000 words in which only a summary of the rule is required);

(7) include a regulatory impact statement;

(8) include a regulatory flexibility analysis and a rural area flexibility analysis;

(9) give the information of an agency representative who is knowledgeable on the proposed rule and where the text and reports concerning the rule may be obtained; AND

(10) include any additional matter required by statute.

Unless a proposed rule is adopted by the agency and filed with the
secretary of state, a Notice of Proposed Rule Making expires 365 days after the later of:

(a) the publication in the State Register of the Notice of Proposed Rule Making for the rule OR

(b) the date of the last public hearing for the rule.

However, the 365-day expiration of a rule DOES NOT apply if the proposed rule concerns a rule relating to signs or signals for the use of public works (including streets and highways). When a notice expires, the secretary of state must publish a Notice of Expiration in the State Register.

If an agency submits a Notice of Revised Rule Making for the rule
within 90 days of its expiration date, the rule making will be continued for an additional 90 days beyond the date on which it would have expired.

An agency may withdraw a Notice of Proposed Rule Making and
terminate a rule making proceeding by submitting a Notice of Withdrawal to the secretary of state for publication in the State Register. Such notice shall include a statement of the reason(s) for withdrawal of the proposed rule.

Prior to the adoption of a rule, an agency shall submit a Notice of Revised Rule Making to the secretary of state for publication in the State Register for any proposed rule which contains a substantial revision.

The public shall be afforded an opportunity to submit comments on the revised text of a proposed rule. Unless a different time is specified in statute, the notice of revised rule making must appear in the State Register at least 30 days prior to the adoption of the rule.

When an agency files a rule with the secretary of state, the agency must also submit a Notice of Adoption for publication in the State Register.

An agency MAY NOT file a rule or submit a Notice of Adoption unless the agency has previously submitted a Notice of Proposed Rule Making and complied with the provisions of SAPA. However, an agency does not have to follow these requirements if the rule is promulgated pursuant to a Notice of Emergency Adoption.

The Notice of Adoption MUST:

(1) cite the statutory authority under which the rule is adopted;

(2) contain the complete text of the adopted rule (unless the text exceeds 2,000 words, in which only a summary of the rule is required);

(3) state whether there have been any changes in the text of the rule as adopted when compared to the latest published version of the proposed rule;

(4) give the effective date of the rule;

(5) include a revised regulatory impact statement if required;

(6) include a revised regulatory flexibility analysis and rural area flexibility analysis if required;

(7) include the assessment of public comment;

(8) give the information of an agency representative from whom the complete text of the rule and any revised reports concerning the rule can be obtained;

(9) state whether any Notice of Revised Rule Making had been submitted and specify the date(s) that such notice(s) appeared in the State Register; AND

(10) include any additional matter required by statute.

If an agency finds that the immediate adoption of a rule is necessary for the preservation of the public health, safety, or general welfare AND that compliance with the requirements of a Notice of Proposed Rulemaking would be contrary to the public interest, then the agency may dispense with all or part of such requirements and adopt the rule on an emergency basis.

An emergency rule CANNOT remain in effect for longer than 90 days after being filed with the secretary of state UNLESS within such time the agency complies with the requirements of a Notice of Proposed Rule Making and adopts the rule.

An agency may readopt an emergency rule prior to the expiration of the 90-day period, but such readoption and any subsequent readoptions shall remain in effect for no longer than 60 days.

A Notice of Emergency adoption MUST:

(1) cite the statutory authority under which the rule is adopted;

(2) state whether the notice will also constitute a Notice of Proposed Rule Making, and if so, give the date, time, and place of any public hearing(s) which are scheduled;

(3) state whether the notice shall also constitute a Notice of Revised Rule Making, and if so, include all information required to be included in the same; (4) contain the findings why the emergency rule was necessary;

(5) give the effective date of the rule;

(6) state the specific date the emergency rule will expire;

(7) contain the complete text of the adopted rule (unless the rule exceeds 2,000 words, in which a summary must be submitted);

(8) include a regulatory impact statement;

(9) include a regulatory flexibility analysis and a rural area flexibility analysis;

(10) give the information of an agency representative, knowledgeable on the rule, and from whom the text of the rule and any reports concerning the rule can be obtained; AND

(11) include any additional matter required by statute.

A proceeding may be commenced to contest a rule on the grounds of
noncompliance with the procedural requirements of SAPA.

Such proceeding MUST be commenced within 4 months from the effective date of such rule. Each rule shall be promulgated in substantial compliance with the provisions of SAPA, but, the inadvertent failure to send notice to any person will not invalidate a rule.

An Adjudicatory Proceeding means any activity (other than a rulemaking proceeding or an employee disciplinary action) before an agency in which a determination of the legal rights, duties, or privileges of a person or entity is required by law to be made on a record and after an opportunity for a hearing.

An Adjudicatory Proceeding DOES NOT include an administrative tribunal created by statute to hear or determine allegations of traffic infractions.

The State Administrative Procedure Act (SAPA) requires advance notification prior to the commencement of an adjudicatory proceeding. In an adjudicatory proceeding, all parties shall be afforded an opportunity for a hearing within reasonable time.

All parties must be given reasonable notice of such hearing, which shall include:

(1) a statement of the time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular sections of the statutes and rules involved, where possible;

(4) a short and plain statement of matters asserted; AND

(5) a statement that interpreter services shall be made available to deaf persons at no charge. Upon application of any party, a more definite and detailed statement must be furnished if the agency finds that the statement is not sufficiently definite or detailed.

ALL parties shall be afforded an opportunity to present written
argument on issues of law AND an opportunity to present evidence and such argument on issues of fact,

BUT nothing shall be deemed to prohibit an agency from allowing parties to present oral argument within a reasonable time.

Disposition may be made of any adjudicatory proceeding by stipulation, agreed settlement, consent order, default, or other informal method.

The agency shall make a complete record of all adjudicatory proceedings conducted before it. The record in an adjudicatory proceeding must 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 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 a presiding officer; AND

(7) any decision, determination, opinion, order, or report rendered. The agency may use whatever means it deems appropriate (including the use of stenographic transcriptions or electronic recording devices) to create the record. Findings of fact must be based exclusively on the evidence and on matters officially noticed.

The agency, one or more members of the agency, OR one or more hearing officers designated and empowered by the agency to conduct hearings SHALL BE Presiding Officers.

Hearings shall be conducted in an impartial manner. Upon the filing of an affidavit in good faith by a party concerning the personal bias or disqualification of a Presiding Officer, the agency shall determine the matter as part of the record in the case, and its determination shall be subject to judicial review at the conclusion of the adjudicatory proceeding. Whenever a Presiding Officer is disqualified or it becomes impractical for him to continue the hearing, another Presiding Officer may be assigned to continue with the case UNLESS it is shown that substantial prejudice to the party will result.

Presiding Officers are authorized to:

(1) administer oaths and
affirmations;

(2) sign and issue subpoenas in the name of the agency, at the request of any party, requiring witness testimony and the production of documents;

(3) provide for the taking deposition testimony;

(4) regulate the course of the hearings and fix the time for filing of briefs and other documents;

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

(6) recommend to the agency that a stay be granted.

Each agency having power to conduct adjudicatory proceedings may adopt rules providing for discovery and depositions to the extent and in the manner appropriate to its proceedings.

Agencies need not observe the rules of evidence observed by courts. In addition, for the purpose of expediting hearings, an agency may adopt procedures for the submission of all or part of the evidence in written form when the interests of parties will not be substantially prejudiced.

The following do apply:

(1) privilege
(2) right to cross examine
(3) irrelevant or unduly prejudicial evidence may be excluded
(4) BOP on party who initiated
(5) decision supported by substantial credible evidence
(6) all evidence shall be made part of recrord
(7) official notice may be taken of all facts that a judge could notice

A final decision, determination, or order in an adjudicatory proceeding MUST be in writing or stated in the record AND include findings of fact and conclusions of law or reasons for the decision.

Findings of fact shall be accompanied by a short statement of the underlying facts supporting the findings. A copy of the decision, determination, or order shall be delivered to each party and to his attorney of record. Each agency shall maintain an index of all written final decisions, determinations, and orders rendered by the agency in adjudicatory proceedings.

Unless required for ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in an adjudicatory proceeding MUST NOT communicate with any person or party in connection with any issue of fact or law, EXCEPT upon notice AND an opportunity for all parties to participate. BUT, any such agency member may

(a) communicate with other members of the agency, AND

(b) have the aid and advice of agency staff (other than staff engaged in the investigative or prosecuting functions concerning the case or a factually similar case).

An administrative hearing requires that due process elements be observed.

Due process requires notice of the charges AND an opportunity to be heard.

However, due process does not require that a party be present at an administrative hearing if the above test is met. The requirements of procedural due process apply only to the deprivation of interests encompassed by the 14th Amendment's protection of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.