New York Codes, Rules and Regulations
Title 19 - DEPARTMENT OF STATE
Chapter IV - Division Of Corporations And State Records
Part 146 - Charitable and Non-Charitable Non-Profit Organization Filings Pursuant to Article 7-A of the Executive Law
Section 146.9 - Administrative Hearings

Universal Citation: 19 NY Comp Codes Rules and Regs ยง 146.9

Current through Register Vol. 46, No. 12, March 20, 2024

(a) Scope of this section. The provisions of this section shall apply only to an appeal, pursuant to sections 172-e and 172-f of the Executive Law, to an independent judicial hearing officer who is unaffiliated with the Department of State, as to whether a determination by the Secretary of State that relevant facts presented by the cause disclosure-related harm, and which, in conjunction with section 93-a of the Executive Law, authorizes public disclosure of funding and financial disclosure reports.

(b) Applicability. Administrative hearings shall be conducted in conformity with SAPA Article 3 and the provisions of this section. No provision of Part 400 of Title 19 of the New York Codes, Rules and Regulations shall be applicable to hearings conducted pursuant to this Part.

(c) Parties and appearances.

(1) Parties. The party commencing an appeal shall be known as the appellant. The Secretary of State shall be known as the respondent. After an appeal is commenced in accordance with these rules, no party shall be joined or permitted to intervene, except by leave or direction of the administrative hearing officer.

(2) Appearances.
(i) A filing entity shall be represented through one or more officers of the filing entity or an attorney representing the entity. Any representative of a party who is other than an attorney licensed to practice in New York State shall disclose such person's authority to make legal decisions that bind the party. All persons appearing before the administrative hearing officer shall conform to the standards of conduct required of attorneys appearing before the courts of the State of New York. Any person signing any papers submitted in or entering an appearance in any proceeding shall be considered to have agreed to conform to those standards. A failure to conform to those standards shall be grounds for exclusion from that and any later proceeding. Nothing in this paragraph authorizes a non-lawyer to engage in the practice of law. the administrative hearing officer to show and state on the record the person's authority to act in such capacity and to file a notice of appearance with the administrative hearing officer.

(iii) If there is a change or withdrawal of a party's attorney or authorized representative, the party shall provide notice of the change or withdrawal to the administrative hearing officer and the attorneys or authorized representatives of all other parties, or, if a party appears without an attorney or authorized representative, to the party within ten (10) days of the change or withdrawal.

(d) Institution of appeal.

The appellant shall institute an appeal within 30-days of providing timely notice of intent to appeal to the Secretary by complying with the provisions of this section. Failure by the appellant to institute a timely appeal as required by this paragraph shall be deemed consent by the filing entity to publication of the subject report(s). To institute an appeal, the appellant shall:

(1) prepare an appeal, in letter format signed by appellant or appellant's counsel, that shall include the following:
(i) name of appellant;

(ii) date of Secretary of State's decision;

(iii) date of receipt by appellant of written notice of the Secretary of State's decision;

(iv) a clear and concise statement, not to exceed five hundred words, setting forth appellant's claim and showing that the appellant is entitled to the relief sought;

(v) citations to the portion(s) of the statement of relevant facts submitted by the filing entity with (vi) the name, address, email address and phone number of appellant or, if appellant is represented by counsel, of appellant's counsel.

(2) effect personal service of a copy of the appeal, by a person not a party to the appeal who is over 18 years, upon the Secretary of State, or a person designated to accept service on behalf of the Secretary of State; and

(3) immediately upon completion of personal service, transmit the original appeal, together with affidavits of service in the form set forth below, by first class mail to the Office of Counsel, New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 1120, Albany, New York 12231-0001.

(4) Notwithstanding paragraphs (2) and (3) of subdivision (d) of this section, a filing entity may institute and serve an appeal on the Secretary of State through an electronic filing system maintained by the Department of State.

FORM FOR AFFIDAVIT OF PERSONAL SERVICE

STATE OF NEW YORK )

COUNTY OF .............) ss:

...................... being duly sworn, deposes and says that (s)he is over the age of eighteen years, and is not a party in this proceeding, that on the ..... day of ........, 20... at No.............., in the City of Albany, County of Albany, (s)he served the annexed appeal on ....................., by delivering and leaving the same with ...................., at said time and place. ..................... (signature) Subscribed and sworn to before me this ...... day of .........., 20..

(1) The Secretary of State shall, within 10 days from service of the appeal pursuant to subdivision (d) of this section, prepare a response, in letter format signed by respondents or respondents' counsel, that shall contain the following information:
(i) the name of the appellant ;

(ii) the name of respondent;

(iii) the underlying decision by the Secretary of State relating to the report at issue;

(iv) the name and contact information of the administrative hearing officer;

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

(vi) a clear and concise statement, not to exceed five hundred words, setting forth respondents' position with respect to appellant's claim, including any applicable defense to such claim;

(vii) the record and exhibits supporting respondents' position; and

(viii) the name, address and phone number of respondents' counsel.

(2) The Secretary of State shall serve a copy of such joint response upon the appellant or, if appellant is represented by counsel, upon appellant's counsel. Such service may be made electronically, if appellant has consented to electronic service. In the absence of electronic service, the Secretary of State shall immediately transmit by first class mail the original response and the record of prior proceedings to the administrative hearing officer, together with either an affidavit of personal service, in the form set forth above, or an affidavit of service by mail in the form set forth below:

COUNTY OF ............) ss:

................. being duly sworn, deposes and says that (s)he is/they are over the age of eighteen years and is not a party in this proceeding; that on the ....... day of ............., 20.., deponent served the within response upon ................... in this action, at ......................, the address designated by ......................... for that purpose, by depositing a true copy of the same by mail, enclosed in a post paid, properly addressed wrapper, in .................... a post office ........... official depository under the exclusive care and custody of the United States Post Office Department within the State of New York.

........................... (signature)

Subscribed and sworn to before me

this ............ day of ........., 20...

............................... (signature and title of officer)

(3) The record of prior proceedings shall include but not be limited to:
(i) any submission made by the filing entity to the Secretary of State in connection with the report at issue;

(ii) all records relied upon by the Secretary of State in issuing its notice of intent to publish;

(iii) the notice of intent to publish;

(iv) the reports of the filing entity subject to the notice of intent to publish, in the form in which the Secretary of State intends to publish such reports.

(f) Additional submissions to the record. The administrative hearing officer may require the service and filing of submissions in addition to those served in accordance with this section upon such terms and conditions as the the determination of an appeal, to take into consideration any official records or reports on file in the Department of State which relate to issues involved in such appeal, including but not limited to records relied upon by the Department of State in issuing its Notice of Intent to Publish, provided that nothing contained herein shall require of production of deliberative communications between the Department of State, Department of Taxation and Finance or the Department of Law.

(g) Determination of administrative appeal.

(1) Dismissal of appeal. The administrative hearing officer has discretion, and at any stage of the proceedings, to dismiss an appeal if it appears that the appeal is untimely, that the appeal does not set forth a clear and concise statement of the appellant's claim, that the appeal has become academic, or that other legally sufficient grounds exist to dismiss the appeal.

(2) Burden of proof. The filing entity has the burden of proving, by the preponderance of the evidence, that the determination by the Secretary of State, that relevant facts presented by the covered entity failed to demonstrate that disclosure of all or a portion of such report may cause disclosure-related harm, was unsupported by the filing entity's submission.

(3) Ruling on administrative appeal.
(i) The administrative hearing officer's ruling shall be in writing and shall describe the issues, recite the relevant facts, the pertinent provisions of law and regulations, and make a finding as to whether the Secretary of State's determination to publish reports is supported by the reports, documents, and relevant facts provided with such reports by the filing entity. party's attorney or other designated hearing representative.

(iii) Where the administrative hearing officer's final ruling is adverse to the filing entity, the filing entity may seek judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

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