Current through Register Vol. 47, No. 12, March 26, 2025
(a) Any person who the Office determines,
pursuant to Section (4) of this Part, should be denied employment or a
volunteer position at a child day care program based on an offense not listed
in paragraph (1) of subdivision (e) of section (4) of this Part and to which
Article 23-A of the Correction Law is applicable, shall have the ability to
request a de novo review of the determination, to be held and completed before
the employer is notified of such determination. Such person shall have
reasonable notice concerning the determination, information regarding how to
request a review of that determination, and an opportunity to provide any
additional information that such person deems relevant to such determination.
Such person may choose whether the review will be conducted either through the
submission of written materials to a hearing officer or, to be heard in person
in an administrative hearing before a hearing officer, or by video conference
in an administrative hearing before a hearing officer if reasonably available.
Regardless of the method in which the review is conducted, where such request
is made, the Office shall also have an opportunity to be heard.
(b) A review pursuant to this section must be
requested within thirty days of receipt of the letter notifying the applicant
he or she is ineligible for employment or a volunteer position at a child day
care program and that they have a right for review.
(c) The pleadings in a review pursuant to
this section will consist of the notice of review and any additional
information submitted by either party as being relevant to the
determination.
(d) Neither formal
discovery procedures nor formal procedures for bills of particulars will
apply.
(e) Disclosure of evidence
by deposition will not be permitted.
(f) The review will be conducted by a hearing
officer who is an attorney employed by the Office for that purpose and who has
not been involved in any way with the matter. He or she will have all the
powers conferred by law and regulations of the Office to administer oaths,
issue subpoenas, require the production of records and the attendance of
witnesses, rule upon requests for adjournment, rule upon objections to the
introduction of evidence, and to otherwise regulate the review, preserve
requirements of due process, and effectuate the purpose and provisions of
applicable law and regulations.
(g)
The rules of evidence as applied in a court of law will not apply, except that
privileges recognized by law will be given effect. The hearing officer may
exclude evidence that is irrelevant or unduly repetitious. The burden of proof
at such reviews shall be on the applicant to show that the denial is not
supported by substantial evidence and that such person should not have been
denied employment and/or the ability to volunteer at a child day care
program.
(h) The review may be
adjourned only for good cause by the hearing officer on his or her own
application or at the request of either party.
(i) An individual, other than an attorney,
representing the applicant must have an appropriate written authorization for
representation signed by the applicant.
(j) Review
(1) Through submission of written materials
(i) A review through submission of written
materials must be scheduled within a reasonable time period of the
request.
(ii) Where an applicant
for employment or a volunteer position at a child day care program timely
requests a review pursuant to this section and requests that the review be
conducted through the submission of written materials to a hearing officer, a
notice must be sent to the applicant and the Office, and must specify:
(a) the date and location of where such
materials must be submitted to the hearing officer and opposing
party;
(b) the manner in which the
review will be conducted;
(c) the
offense(s) which are the basis for the denial, including the
statute(s);
(d) that he or she has
the opportunity to submit written materials, including evidence of
rehabilitation;
(e) that he or she
has the right to be represented by an attorney or other representative of his
or her choice; and
(f) that he or
she has the right to examine any document or item submitted.
(iii) The applicant will be
entitled to present relevant and material evidence on his or her behalf, be
represented by an attorney or other representative of his or her choice, and
examine any document or item submitted.
(iv) The Office will be entitled to submit
proof of the conviction(s), the safety assessment, and review of the factors
enumerated in Article 23-A of the Correction Law. The hearing officer will
accept the information provided to the Office by the Division of Criminal
Justice Services as proof of the criminal convictions.
(v) The record of a review on written
materials will include:
(b) all written
materials submitted;
(c) any
matters officially noticed;
(d) all
proposed findings and exceptions;
(e) any report rendered by the hearing
officer; and
(f) any request for
disqualification of a hearing officer.
(2) To be heard in person in an
administrative hearing
(i) A hearing pursuant
to this section must be scheduled to commence within a reasonable time period
of the request.
(ii) Where an
applicant for employment or a volunteer position at a child day care program
timely requests a review pursuant to this section and requests that the review
be conducted through an administrative hearing before a hearing officer, a
notice must be sent to the applicant and the Office, and must specify:
(a) the date, time, and place of the
hearing;
(b) the manner in which
the hearing will be conducted;
(c)
the offense(s) which are the basis for the denial, including the
statute(s);
(d) that he or she has
the opportunity to call witnesses, present evidence and arguments on issues of
fact and law at the hearing, including evidence of rehabilitation;
(e) that he or she has the right to be
represented by an attorney or other representative of his or her
choice;
(f) that he or she has the
right to cross-examine witnesses and examine any document or item offered into
evidence;
(g) that all witnesses
will be sworn; and
(h) that the
hearing will be recorded verbatim.
(iii) The applicant will be entitled to be
represented by an attorney or other representative of his or her choice, to
have witnesses give testimony, to present relevant and material evidence on his
or her behalf, to cross-examine witnesses, and to examine any document or item
offered into evidence.
(iv) The
Office will be entitled to submit proof of the conviction(s), the safety
assessment, and review of the factors enumerated in Article 23-A of the
Correction Law. The hearing officer will accept the information provided to the
Office by the Division of Criminal Justice Services as proof of the criminal
convictions.
(v) The applicant, his
or her representative(s), counsel, other representatives of the Office,
witnesses of both parties, and any person who may be called by the hearing
officer may be present at the hearing, together with such other persons as may
be admitted by the hearing officer in his or her discretion. Upon his or her
own application, or upon the application of either party, the hearing officer
may exclude potential witnesses and those who have given prior testimony from
the hearing during the testimony of other witnesses.
(vi) The hearing officer will preside and
will make all procedural rulings. He or she will make an opening statement
describing the nature of the proceedings, the issues, and the manner in which
the hearing will be conducted.
(vii) All testimony will be given under oath
or affirmation.
(viii) All hearings
will be recorded verbatim by either the Office or a private contractor. Where
the hearing is recorded by other than a private contractor, on request made
upon the Office by any party to a hearing, the Office will prepare any
transcript of the proceedings, and will furnish a copy of the transcript or any
part thereof to any party as requested. At the applicant's request, the Office
can provide a digital audio file of the hearing in a file format determined by
the Office at a lower cost rather than furnishing a transcript. The Office is
authorized to charge not more than its cost for the preparation of the
transcript. Where a private contractor records the hearing, the party
requesting a transcript must make all arrangements for the obtainment thereof
directly with the private contractor.
(ix) The record of a hearing will include:
(a) all pleadings and intermediate
rulings;
(b) the transcript or
recording of the hearing;
(c) all
exhibits received into evidence;
(d) any matters officially noticed;
(e) all questions and offers of proof,
objections thereto, and rulings thereon;
(f) all proposed findings and
exceptions;
(g) any report rendered
by the hearing officer; and
(h) any
request for disqualification of a hearing officer.
(k) After the
hearing has concluded, the hearing officer will submit a report to the
Commissioner of the Office or his or her designee containing findings of fact,
conclusions of law, and a recommended and/or final decision. Findings of fact
will be based exclusively on the record of the review.
(l) The decision will be made and issued by
the commissioner or his or her designee and must be based exclusively on the
record of the review.
(1) The decision will be
in writing and will describe the issues, recite the relevant facts and
pertinent provisions of law and regulations, make appropriate findings,
determine the issues, state reasons for the determination, and direct specific
action.
(2) A copy of the decision
will be mailed to the applicant and his or her attorney or other designated
representative and the Office, together with a notice of the right to judicial
review in accordance with Article 78 of the Civil Practice Law and
Rules.
(3) If the decision
determines that an application for employment and/or the ability to volunteer
at a child day care program should not have been denied, the applicant's
criminal history shall not be a bar when considering his or her eligibility
pursuant to section 4 of this Part.
(4) In the event the decision is adverse to
the applicant, the employer will be notified that the applicant has been denied
such role.
(m) Upon
reasonable notice to the Office, the record of review may be examined by any
party to the review at the offices of the Bureau of Special Hearings during
regular business hours or by the Office preparing and providing a copy of the
record to any party as requested, whichever is deemed more practicable by the
Office.
