Subchapter C: Adjudications – Hearing Procedures

Subchapter C

§3-51: General Rules
§3-52: Hearing Officers
§3-52.1: Adjournments
§3-53: Amendments to Notice of Violation
§3-54: Evidence
§3-55: Interlocutory Appeals
§3-56: Transcript
§3-57: Decision

§3-51: General Rules

(a) Case Processing. (1) Hearings shall proceed with all reasonable expedition and insofar as is practicable shall be held at one place and shall continue without suspension, except for brief recesses, until concluded. Subject to § 3-52.1, the hearing officer shall have the authority to grant brief adjournments, for good cause shown, and consistent with the requirements of expedition.
(2) When a registered representative or attorney appears on more than one notice of violation on a single hearing day, the tribunal will have the discretion to determine the order in which the notices of violation will be heard.
(3) Each registered representative or attorney must provide sufficient staffing to ensure completion of his or her hearings. Factors in determining whether sufficient staffing has been provided include:
(A) the number of cases the representative had scheduled on the hearing date,
(B) the number of attorneys or representatives from a given firm or business sent to handle the cases,
(C) the timeliness of the arrival of the attorneys or representatives,
(D) the timeliness of the arrival of any witnesses.
In addition, the tribunal may also consider;
(E) the availability of issuing agency personnel throughout the scheduled hearing date,
(F) the number of hearing officers present throughout the scheduled hearing date,
(G) delays in hearings due to the issuing agency,
(H) computer issues, and,
(I) other unforeseeable or extraordinary circumstances.
The failure of a registered representative or attorney to provide sufficient staffing, as described above, may be considered misconduct under §3-16.2 (c) above
(b) Notice of Hearing. The notice of violation shall set the hearing date and place or, if none, the executive director shall set such time and place. In no event shall such hearing date be set for more than 60 days after the filing of the notice of violation at the tribunal. At least 10 days notice of such hearing date and location shall be sent to all parties. Where respondent waives the 10 day notice and requests an expedited hearing, the executive director may assign the case for immediate hearing, upon appropriate notice to petitioner and opportunity for petitioner to appear.
(c) Rights of Parties. Every party, except intervenors under § 3-35(b), shall have the right of due notice, cross examination, presentation of evidence, objection, motion, argument and all other rights essential to a fair hearing.
(d) Order of Hearing. The following shall be the order of all adjudicatory hearings, subject to modification by the hearing officer for good cause:
(1) Presentation and argument of motions preliminary to a hearing on the merits;
(2) Presentation of opening statements; if any
(3) Petitioner's case in chief;
(4) Respondent's case in chief;
(5) Petitioner's case in rebuttal;
(6) Respondent's case in rebuttal;
(7) Respondent's closing argument;
(8) Petitioner's closing argument.
(e) Oaths. All persons giving testimony as witnesses at a hearing must be placed under oath.
(f) Language Assistance Services. (1) Appropriate language assistance services shall be afforded to respondents whose primary languages are not English to assist such respondents in communicating meaningfully with hearing officers. Such language assistance services shall include interpretation of hearings and of pre-hearing conferences conducted by hearing officers, where interpretation is necessary to assist the respondent in communicating meaningfully with the hearing officer. At the beginning of any hearing or pre-hearing conference, the hearing officer shall advise the respondent of the availability of interpretation. In determining whether interpretation is necessary to assist the respondent in communicating meaningfully with the hearing officer, the hearing officer shall consider all relevant factors, including but not limited to the following: (i) information from board administrative personnel identifying a respondent as requiring language assistance services to communicate meaningfully with a hearing officer; (ii) a request by the respondent for interpretation; (iii) even if interpretation was not requested by the respondent, the hearing officer's own assessment whether interpretation is necessary to enable meaningful communication with the respondent. If the respondent requests an interpreter and the hearing officer determines that an interpreter is not needed, that determination and the basis for the determination shall be made on the record.
(2) When required by paragraph (1) of this subsection, interpretation services shall be provided at hearings and at pre-hearing conferences by a professional interpretation service that is made available by the board, unless the respondent requests the use of another interpreter, in which case the hearing officer in his or her discretion may use the respondent's requested interpreter. In exercising that discretion, the hearing officer shall take into account all relevant factors, including but not limited to the following: (i) the respondent's preference, if any, for his or her own interpreter; (ii) the apparent skills of the respondent's requested interpreter; (iii) whether the respondent's requested interpreter is a child under the age of eighteen; (iv) minimization of delay in the hearing process; (v) maintenance of a clear and usable hearing record; (vi) whether the respondent's requested interpreter is a potential witness who may testify at the hearing. The hearing officer's determination and the basis for this determination shall be made on the record.
(g) Unless directed by the hearing officer, parties are prohibited from submitting additional material or argument after the hearing has been completed.

§3-52: Hearing Officers

(a) Who Presides. Hearings in enforcement proceedings shall be presided over by a hearing officer appointed by the board.

(b) Powers and Duties. Hearing officers shall have the duty to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. They shall have all powers necessary to these ends, including the following:
(1) To administer oaths and affirmations;
(2) To issue subpoenas and discovery orders and to rule upon objections to such orders;
(3) To rule upon offers of proof and receive evidence;
(4) To regulate the course of the hearing and the conduct of the parties and their representatives;
(5) To hold conferences for the simplification of issues or any other proper purpose;
(6) To interrogate witnesses;
(7) To consider and rule upon all procedural and other motions, including requests for adjournment;
(8) To make and file recommended decisions and orders.

(c) Interference. In the performance of their adjudicative functions, hearing officers shall not be responsible to or subject to the supervision of direction of any officer, employee or agent of a petitioner. No ex-parte communication relating to other than ministerial matters regarding a proceeding, including internal agency directives not published as rules, shall be received by a hearing officer from the petitioning agency or from individual members of the board.

(d) Power to Discipline. The hearing officer may for good cause noted on the record, and after a warning, bar any person, including a party or an attorney or other representatives of a party, from continued participation in a hearing where such person refuses to comply with the hearing officer's directions or behaves in a disorderly, dilatory or obstructionist manner. Any person so barred may make a prompt application to the executive director for a review of the hearing officer's action. The hearing may continue at the hearing officer's discretion, unless the executive director orders that further proceedings be stayed pending a decision on the application. No interlocutory appeal shall lie to the board from the decision of the executive director granting or denying the application.

(e) Disqualification of Hearing Officer.
(1) When a hearing officer deems himself or herself disqualified to preside in a particular proceeding, the hearing officer shall withdraw from the proceeding by notice on the record and shall notify the executive director of such withdrawal.
(2) A party may, for good cause shown, request that the hearing officer remove or disqualify himself or herself. Such motion shall be ruled upon by the hearing officer in the proceeding. If the hearing officer denies the motion, the party may obtain a brief adjournment in order to promptly apply for review by the executive director or his or her designee which may include a deputy director of tribunal affairs or any managing attorney.
(3) Upon recusal or removal of the hearing officer, the executive director shall appoint another hearing officer to continue the case. If a refusal to recuse is upheld by the executive director, the party may re-raise the issue on appeal.

(f) Claims of Prior Adjudication. Whenever one party claims that a notice of violation was previously adjudicated, the hearing officer must allow both parties to present all relevant and material evidence on all the issues in the case, including the claim of prior adjudication. If a party has raised a claim of prior adjudication, the hearing officer must not decide such claim, but must preserve the claim for the purposes of subsequent appeal.

§3-52.1: Adjournments

(a) In general, a hearing officer may adjourn a proceeding if he or she decides that the adjournment would allow one party to present its side of the dispute more effectively and would not be unreasonably inconvenient or unfair to the other party. In certain instances, however, a hearing officer's authority to adjourn a proceeding is limited. This Rule describes those instances.
(b) The Rule uses these special definitions:
(i) A respondent's appearance is “timely” if the respondent appeared within two hours of the scheduled hearing time for a notice of violation.
(ii) If the respondent has timely appeared, an appearance by the officer who issued the notice of violation is “timely” if the officer appears within two hours of the scheduled hearing time for the notice of violation or within one hour after a hearing officer has announced that he or she is available to call the notice of violation for a hearing.
(iii) “Extraordinary circumstances” are circumstances that could not reasonably have been foreseen by the petitioning agency. They do not include the fact that the parties disagree about the notice of violation or the charges it contains.
(c) Respect for a respondent's convenience means that a hearing should not be routinely adjourned once a respondent has appeared at a board office as instructed by the notice of violation. If a respondent makes a timely appearance on the date indicated on a notice of violation and at the specific board office location indicated on the notice of violation (or, if no specific board office location is indicated, at any board office location), the hearing officer may adjourn the hearing only if (i) the respondent consents to the adjournment; or (ii) a representative of the petitioning agency appears at the hearing, unless the failure of any representative of the petitioning agency to appear is due to extraordinary circumstances.
(d) Once a hearing has been adjourned for the convenience of one party, it should not routinely be adjourned again to accommodate the same party unless good cause is shown that a further adjournment is necessary to afford the party a reasonable opportunity to present relevant, non-cumulative testimony or evidence that would contribute to a full and fair hearing of each party's side of the dispute. However, absent extraordinary circumstances, a hearing will not be adjourned for the sole purpose of enabling the officer who issued the notice of violation to attend if: (i) the hearing has already been adjourned for the sole purpose of enabling the officer who issued the notice of violation to attend; (ii) the respondent timely appears on the adjourned hearing date at the specific board office location indicated on the adjournment order; and (iii) the issuing officer does not timely appear at the specific board office indicated on the adjournment order. In order to ensure the fairness and efficient functioning of the adjournment process, the petitioning agency will be granted an opportunity to confirm the issuing officer's availability for the proposed adjourned date of the hearing. If it is not possible for the date to be confirmed at the time of the hearing, proposed adjourned dates will be selected at the hearing, the petitioning agency will confirm with the hearing officer and within one week of the initial hearing notify the board of the adjourned date upon which the issuing officer will be available. A written notice will be mailed by the board to the respondent and the petitioning agency confirming the new adjourned date.
(e) An adjournment will sometimes be appropriate because of extraordinary circumstances. Under such circumstances, a petitioning agency may be entitled to an adjournment that would not otherwise be permitted. To ask for an adjournment because of extraordinary circumstances, the agency must file with the board a written statement of the claimed circumstances, accompanied by any supporting documents. The agency must also serve a copy of its request and any supporting documents on the respondent. The request must be made as soon as is reasonable after the agency becomes aware of the circumstances it claims to be extraordinary, but in no event more than five days after the agency becomes aware of those circumstances. The hearing officer before whom the case is pending shall determine whether extraordinary circumstances have been demonstrated to warrant an adjournment. The hearing officer shall also determine whether the case should be continued through consideration of written submissions only or through one or more additional hearing dates. In making those determinations, the hearing officer shall give the respondent an opportunity to state and support a position with respect to the existence of extraordinary circumstances, the appropriateness of an adjournment, the best approach to continuing the hearing and any other matter raised by the petitioning agency's submission.

§3-53: Amendments to Notice of Violation

(a) By Leave. If and whenever determination of a controversy on the merits will be facilitated thereby, the hearing officer may, upon such conditions as are necessary to avoid injustice or unfair surprise to a party, allow appropriate amendments to the notice of violation.
(b) Conformance to Evidence. When issues not raised by the notice of violation but reasonably within its scope are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised, and such amendments of the notices of violation as may be necessary to make it conform to the evidence shall be allowed at any time.

§3-54: Evidence

(a) Burden of Proof. The petitioner shall have the burden of proof in establishing by a preponderance of the credible evidence that respondent has committed the violation charged in the notice of violation, but the proponent of any factual proposition shall be required to sustain the burden of proof with respect thereto. The notice of violation, if sworn to or affirmed, shall constitute prima facie evidence of the facts stated therein.
(b) Admissibility. Relevant, material and reliable evidence shall be admitted without regard to technical or formal rules or laws of evidence applicable in the courts of the State of New York. Irrelevant, immaterial, unreliable or unduly repetitious evidence shall be excluded. Immaterial or irrelevant parts of an admissible document shall be segregated and excluded so far as practicable.
(c) Official Notice. Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge and experience of the board or the hearing officer. Opportunity to disprove such noticed fact shall be granted to any party making timely motion therefore.
(d) Objections. Objections to evidence shall be timely and shall briefly state the grounds relied upon. Rulings on all objections shall appear on the record.
(e) Exceptions. Formal exception to an adverse ruling is not required.

§3-55: Interlocutory Appeals

Interlocutory appeals from rulings of a hearing officer may be filed only after leave to file has been obtained from the hearing officer. Leave to appeal will not be granted except upon a showing that the ruling complained of involves substantial rights and will materially affect the final decision, and that a determination of its correctness before conclusion of the hearing is essential to serve the interests of justice. The board may, in its discretion, refuse to hear such interlocutory appeal even though leave to appeal has been obtained from the hearing officer. Unless otherwise ordered by the board or the hearing officer, an interlocutory appeal shall not stay the proceeding or extend the time for the performance of an act.

§3-56: Transcript

The board shall provide or arrange for either a stenographically reported or mechanically recorded verbatim transcript of all hearings. A digital, tape or other electronic or mechanical recording may be deemed the transcript of the hearing for all purposes under these Rules. Transcripts of proceedings made a part of the record by the hearing officer will be the official record of proceedings, notwithstanding the existence of any other transcript or recording, whether or not authorized under these rules.

§3-57: Decision

(a) Hearing Officer's Recommended Decision and Order. As soon as possible after conclusion of the hearing, the hearing officer shall prepare a recommended decision and order. The hearing officer's decision shall set forth findings of fact and conclusions of law, and it shall set forth the hearing officer's reasons for findings on all material issues. If the charges contained in the notice of violation are upheld, the hearing officer shall prepare an order setting forth the penalty, and if the board is authorized by law to impose remedial relief or other sanction, the relief or sanctions recommended. The recommended decision and order shall be filed with the executive director and served on all parties or their authorized representatives either personally or by mail.
(b) The executive director may, due to tribunal needs or the unavailability of the hearing officer who heard the case, designate another hearing officer to write the recommended decision and order. The decision and order will state the reason for the transfer and will be based on the record, which must include (i) the notice of violation; (ii) all briefs filed and all exhibits received in evidence; and, (iii) a complete audio recording of the hearing or, if a complete audio recording is unavailable for any reason, a complete transcript of the hearing.
(c) Finality. If timely exceptions are not filed as per § 3-71, the hearing officer's recommended decision and order will be automatically adopted by the board without further action and shall constitute the board's final action in the matter.