question
ADMIN LAW
State Administrative Procedure Act SAPA 1975
Purpose and intent: to provide people with simple uniform administrative procedures and to guarantee that the actions of administrative agencies conform with sound standards developed in this state and nation since their founding through constitutional, statutory case law
SAPA Structure:
Article 2- Rule making by agencies
Article 3- Adjudicatory Proceedings
Article 4- Licenses
State Administrative Procedure Act SAPA 1975
Purpose and intent: to provide people with simple uniform administrative procedures and to guarantee that the actions of administrative agencies conform with sound standards developed in this state and nation since their founding through constitutional, statutory case law
SAPA Structure:
Article 2- Rule making by agencies
Article 3- Adjudicatory Proceedings
Article 4- Licenses
answer
Agency Defined:
any of the 20 department of the state, board, bureau, commission,division, office, council, committee or officer of the state or a public benefit corporation or public authority at least one of whose members is appointed by the governor, authorized by law to make rules or to make final decisions in adjudicatory proceedings.
Shall not include divisions like the division of state police.
any of the 20 department of the state, board, bureau, commission,division, office, council, committee or officer of the state or a public benefit corporation or public authority at least one of whose members is appointed by the governor, authorized by law to make rules or to make final decisions in adjudicatory proceedings.
Shall not include divisions like the division of state police.
question
Rule making power: under separation of power doctrine, legislatures may allow agency to fill gaps in legislature.
Rule means: an agency statement or code of conduct that implicates or implies law or procedures or practices of agency.
Rule means: an agency statement or code of conduct that implicates or implies law or procedures or practices of agency.
answer
In order for agency to adopt a rule:
1. Requires agency to strive to write in clear plain language
2. Notice of proposed rule must be submitted to secretary of state before adoption of rule.
Notice must include:
-A statement of the statutory authority for the rule
-A complete text of the proposed rule or if the rule exceeds a certain length a description of the rule and the website address where the full text is posted.
-Must also provide: regulatory impact statement, a regulatory flexibility analysis, and a rural area flexibility analysis; and
-The date time and place of any public hearings
3. Might require a public hearing. Not necessary. May be required if there is a statute that specifically requires that a hearing be held.
4. Gather public comments and then have an assessment of public comments.
5. When the agency finalizes rule then the agency will publish a notice of adoption
1. Requires agency to strive to write in clear plain language
2. Notice of proposed rule must be submitted to secretary of state before adoption of rule.
Notice must include:
-A statement of the statutory authority for the rule
-A complete text of the proposed rule or if the rule exceeds a certain length a description of the rule and the website address where the full text is posted.
-Must also provide: regulatory impact statement, a regulatory flexibility analysis, and a rural area flexibility analysis; and
-The date time and place of any public hearings
3. Might require a public hearing. Not necessary. May be required if there is a statute that specifically requires that a hearing be held.
4. Gather public comments and then have an assessment of public comments.
5. When the agency finalizes rule then the agency will publish a notice of adoption
question
5. When the agency finalizes rule then the agency will publish a notice of adoption
answer
The notice of adoption must include, among other information:
A statement of the statutory authority for the rule
A complete text of the rule as adopted or, if the rule exceeds a certain length, a description of the rule
Any revised regulatory impact statement, a regulatory flexibility analysis, and a rural area flexibility analysis; and
Assessment of public comments if lengthy then a summary of assessment
A statement of the statutory authority for the rule
A complete text of the rule as adopted or, if the rule exceeds a certain length, a description of the rule
Any revised regulatory impact statement, a regulatory flexibility analysis, and a rural area flexibility analysis; and
Assessment of public comments if lengthy then a summary of assessment
question
Rule: Agency rule is not effective until it is filed with the secretary of state and the notice of adoption is published in the state register
The rules are published in state register
Published in NYCRR - under 102(5)
The rules are published in state register
Published in NYCRR - under 102(5)
answer
Adjudication- pg 6:
-Agency adjudication is covered by article 3 of SAPA
-Adjudicatory Proceeding Defined: Any activity which is not a rule making proceeding or an employee disciplinary action before an agency in which a determination of the legal rights, duties or privileges of named parties thereto is required by law to be made only on a record and after an opportunity for a hearing.
-Exercising quasi judicial function
-Contrast to Rule makings are different because they apply laws
Whether adjudicatory proceeding is required:
-When it is said that adjudicatory proceeding is required in the statute or
-In Licensing context adjudicatory proceeding is required in context when it says "notice and opportunity for hearing" and "opportunity to be heard" adjudicatory proceeding required or
-Due process may require adjudicatory hearing even when statute does not require it.
-Agency adjudication is covered by article 3 of SAPA
-Adjudicatory Proceeding Defined: Any activity which is not a rule making proceeding or an employee disciplinary action before an agency in which a determination of the legal rights, duties or privileges of named parties thereto is required by law to be made only on a record and after an opportunity for a hearing.
-Exercising quasi judicial function
-Contrast to Rule makings are different because they apply laws
Whether adjudicatory proceeding is required:
-When it is said that adjudicatory proceeding is required in the statute or
-In Licensing context adjudicatory proceeding is required in context when it says "notice and opportunity for hearing" and "opportunity to be heard" adjudicatory proceeding required or
-Due process may require adjudicatory hearing even when statute does not require it.
question
Due process may require adjudicatory hearing even when statute does not require it.
Minimum requirement for due process:
-A hearing before an impartial decision maker:
Impartial judge and determined exclusively on the record on matters officially noticed.
-With notice and opportunity to be heard and
-Ex Parte communication rule: Decision maker is making decisions on information on the record.
If communicating Question of fact parties must be given notice.
Judge Shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party.
If communication Question of law:
Judge shall not communicate with any party or his reps except upon notice and opportunity for all parties to participate.
Non parties communication:
-Does allow judge to get advice from other agency staff
-Not just a judge but the agency governor of programs of the department to consult with uninvolved staff. About the decision being made and what impact may be had on the programs of the department. And whether or not the decision is impacting the programs and the policies of the department.
Disqualification of hearing officer: grounds for disqualification not provided by SAPA but look towards other sources of law:
-Judiciary law §14- qualifications of a judge. Judge cannot be related to by blood(second cousin) or marriage to any of the parties
-Where judge is a former prosecutors are disqualified
-Matter of beer garden
-Matter of general motors corp.
Pre-judgment of facts: if you already decide on guilt, cannot then be the decision maker for the issue.
However, pre-disposed to the facts not disqualified
Judge has Financial interest in the outcome of the case
However, simply being paid to be an administrative law judge is not the same thing as having a financial interest in case.
Minimum requirement for due process:
-A hearing before an impartial decision maker:
Impartial judge and determined exclusively on the record on matters officially noticed.
-With notice and opportunity to be heard and
-Ex Parte communication rule: Decision maker is making decisions on information on the record.
If communicating Question of fact parties must be given notice.
Judge Shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party.
If communication Question of law:
Judge shall not communicate with any party or his reps except upon notice and opportunity for all parties to participate.
Non parties communication:
-Does allow judge to get advice from other agency staff
-Not just a judge but the agency governor of programs of the department to consult with uninvolved staff. About the decision being made and what impact may be had on the programs of the department. And whether or not the decision is impacting the programs and the policies of the department.
Disqualification of hearing officer: grounds for disqualification not provided by SAPA but look towards other sources of law:
-Judiciary law §14- qualifications of a judge. Judge cannot be related to by blood(second cousin) or marriage to any of the parties
-Where judge is a former prosecutors are disqualified
-Matter of beer garden
-Matter of general motors corp.
Pre-judgment of facts: if you already decide on guilt, cannot then be the decision maker for the issue.
However, pre-disposed to the facts not disqualified
Judge has Financial interest in the outcome of the case
However, simply being paid to be an administrative law judge is not the same thing as having a financial interest in case.
answer
A determination based upon due process:
Impartial hearing officer
Administrative law Judge powers: run the hearing are plenary and roughly equivalent to powers of a trial judge in civil judicial proceeding
Timing/ unreasonable agency delay: hearing to be held within a reasonable time. Unreasonable delay requires dismissal of the matter.unreasonable delay must first find prejudice.
Notice: of place and time of hearing, statement of the legal authority and jurisdiction under which the hearing is to be held. reference of rules involved and interpretation needed for deaf.
Reasonably specific notice, in light of circumstances: to (1) apprise party of charges, and (2) allow for preparation of adequate defenses.
Opportunity to be heard: all parties are given right to be heard and right of cross examination
Record required for due process
Final determination must be in writing and exclusively on the record: findings of fact, conclusion of law, or reasons for the decision.
Impartial hearing officer
Administrative law Judge powers: run the hearing are plenary and roughly equivalent to powers of a trial judge in civil judicial proceeding
Timing/ unreasonable agency delay: hearing to be held within a reasonable time. Unreasonable delay requires dismissal of the matter.unreasonable delay must first find prejudice.
Notice: of place and time of hearing, statement of the legal authority and jurisdiction under which the hearing is to be held. reference of rules involved and interpretation needed for deaf.
Reasonably specific notice, in light of circumstances: to (1) apprise party of charges, and (2) allow for preparation of adequate defenses.
Opportunity to be heard: all parties are given right to be heard and right of cross examination
Record required for due process
Final determination must be in writing and exclusively on the record: findings of fact, conclusion of law, or reasons for the decision.
question
Discovery: not required under sapa but there are exceptions:
-When agency is trying to revoke a license required to provide licensee for basis of revocation and if requested evidence upon which it was based.
-Fair hearing may require access of discovery.
-Rules of evidence do not apply to SAPA: hearsay can be admissible depending on the weight of the evidence. However hearsay evidence must be reliable, probative,and relevant to provide basis for agency determination.
-Agency Must recognize privileges
-Burden of proof: is on party that initiated proceeding
-Standard of proof: substantial evidence standard- plausible and reasonable person belief, does not have to be probable.
-much lower standard than the preponderance of the evidence
-However, the standard Might be preponderance of the evidence if due process claim
Right to counsel for all appearing, does not necessarily have to be an attorney.
-When agency is trying to revoke a license required to provide licensee for basis of revocation and if requested evidence upon which it was based.
-Fair hearing may require access of discovery.
-Rules of evidence do not apply to SAPA: hearsay can be admissible depending on the weight of the evidence. However hearsay evidence must be reliable, probative,and relevant to provide basis for agency determination.
-Agency Must recognize privileges
-Burden of proof: is on party that initiated proceeding
-Standard of proof: substantial evidence standard- plausible and reasonable person belief, does not have to be probable.
-much lower standard than the preponderance of the evidence
-However, the standard Might be preponderance of the evidence if due process claim
Right to counsel for all appearing, does not necessarily have to be an attorney.
answer
Claim preclusion:
Res judicata and collateral estoppel applies. If there was a full and fair hearing to litigate the material issue before the agency, then the courts will give the agency determination res judicata and collateral estoppel effect.
Res judicata and collateral estoppel applies. If there was a full and fair hearing to litigate the material issue before the agency, then the courts will give the agency determination res judicata and collateral estoppel effect.
question
Investigative powers:
-Search or inspection- 4th amendment, must have a warrant for search.
The exception to warrant requirement:
-Closely regulated business: Scheme must be pervasive and detailed, conduct search without a warrant.
-Obligation to register with government, pay a fee, and reporting not enough to say you are a closely regulated business
-Exclusionary rules: evidence in violations of 4th amendment is admissible there is a balancing test on the detrimental impact on truth-finding process . whether or not searcher was acting as an agent. If acting as agent then no warrant required.
-Search or inspection- 4th amendment, must have a warrant for search.
The exception to warrant requirement:
-Closely regulated business: Scheme must be pervasive and detailed, conduct search without a warrant.
-Obligation to register with government, pay a fee, and reporting not enough to say you are a closely regulated business
-Exclusionary rules: evidence in violations of 4th amendment is admissible there is a balancing test on the detrimental impact on truth-finding process . whether or not searcher was acting as an agent. If acting as agent then no warrant required.
answer
Civil rights law §73:
-Investigatory proceedings rule: right to counsel. Must be one of the agency named in §73 to give the right to counsel.
Subpoena authorized by judicial court two types:
-Witness to attend and testify
-Recipient required to turn over evidence
Some agencies have subpoena power: Matter of Irwin
-Court order not required, agency has the power.
-Irwin: agency had power to subpoena, and must be obtained from agency and not from court.
-If agency has subpoena power under sapa administrative judge can issue a subpoena.
Quash subpoena:
-Must show information sought in subpoena is reasonably related to proper subject of inquiry
Agency attorney may use subpoena power
-Investigatory proceedings rule: right to counsel. Must be one of the agency named in §73 to give the right to counsel.
Subpoena authorized by judicial court two types:
-Witness to attend and testify
-Recipient required to turn over evidence
Some agencies have subpoena power: Matter of Irwin
-Court order not required, agency has the power.
-Irwin: agency had power to subpoena, and must be obtained from agency and not from court.
-If agency has subpoena power under sapa administrative judge can issue a subpoena.
Quash subpoena:
-Must show information sought in subpoena is reasonably related to proper subject of inquiry
Agency attorney may use subpoena power
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
