New York Codes, Rules and Regulations
Title 4 - DEPARTMENT OF CIVIL SERVICE
Chapter VII - PUBLIC EMPLOYMENT RELATIONS BOARD
Part 212 - Conference and Hearings
Section 212.4 - Formal hearing

Universal Citation: 4 NY Comp Codes Rules and Regs ยง 212.4

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

(a) A formal hearing for the purpose of taking evidence relevant to the case before the agency shall be conducted as necessary by the administrative law judge designated by the director. At any time, an administrative law judge may be substituted by the director for the administrative law judge previously assigned.

(b) The hearing will not be adjourned unless good and sufficient grounds are established by the requesting party, who shall file, consistent with the manner in which the petition was filed, with the administrative law judge an application, on notice to all other parties, setting forth the factual circumstances of the application, and the previously ascertained position of the other parties. The failure of a party to appear at the hearing may, in the discretion of the administrative law judge, constitute ground for dismissal of the absent party's pleading and a default determination.

(c) Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, and any party and the administrative law judge shall have the power to call and examine witnesses, and to introduce into the record documentary and other evidence. Witnesses shall be examined orally under oath.

(d) Stipulations of fact may be introduced into evidence with respect to any issue. The administrative law judge is authorized to administer oaths and affirmations, and to exercise discretion in regulating the course of the proceeding, including, but not limited to, sequestering witnesses, and controlling the order and method of presentation of relevant evidence. In exercising this discretion, the administrative law judge may require oral or written offers of proof, and may direct the production of supporting documentary evidence as exhibits to such offers of proof. The administrative law judge may entertain motions based upon such offers of proof. Interlocutory appeal of a decision, ruling, or order of an administrative law judge that does not resolve the entirety of a case shall be permissible only as provided in section 213.4 of this Part. All such non-dispositive decisions, rulings, or orders of an administrative law judge may be appealed to the board in exceptions pursuant to section 213.2 of this Part to a final decision rendered by the administrative law judge.

(e) Stipulations of undisputed facts or stipulations regarding the authenticity of documents to be admitted into evidence may be introduced with respect to any relevant issue.

(f) Except as to the rules of privilege recognized by law, compliance with the technical rules of evidence shall not be required.

(g) A party seeking to introduce an exhibit into evidence shall simultaneously provide copies to all other parties and the administrative law judge, unless excused by the administrative law judge.

(h)

(1) An administrative law judge may recuse himself/herself from a case whenever he/she believes it to be appropriate.

(2) Any party to a proceeding may file a motion with the assigned administrative law judge requesting that the administrative law judge recuse himself/herself from further participation in that case. A motion for recusal shall be made as soon as reasonably possible after the basis for such motion becomes known to the party making it. Unless made at a hearing, such motion shall be filed with the administrative law judge in the same manner as was the petition, shall set forth all of the known grounds for the motion, and shall be accompanied by proof of service of a copy thereof upon all other parties. Unless such motion is made at a hearing, any party may file in the same manner with the administrative law judge a response to such motion within three working days of its receipt of a copy thereof, with proof of service of a copy of the response on all other parties, unless otherwise directed by the administrative law judge. Motions for recusal made at a hearing, and responses thereto, shall be made upon such terms as the administrative law judge shall direct. The administrative law judge's ruling on the motion shall be made either in writing or on the record at the hearing and the ruling, the recusal motion and any response shall be part of the record of the proceeding.

(i) All motions and rulings shall be part of the record of the case and, unless expressly authorized by the board, shall not be appealed directly to the board, but shall be considered by the board whenever the case is submitted to it for decision. Any objection to the conduct of a hearing, including an objection to the introduction of evidence, may be oral or written, must be accompanied by a short statement of the grounds for such objection, and shall be included in the record. Any objection not duly taken at the hearing shall be deemed waived, unless excused because of extraordinary circumstances.

(j) The refusal of a witness to answer any question which has been ruled to be proper shall, at the discretion of the administrative law judge, be grounds for striking all testimony previously given by such witness on related matters, or the basis of an adverse inference on the subject of the question.

(k) At the discretion of the administrative law judge, the hearing may be continued from day to day or to a later day or another place, by announcement thereof at the hearing or by other appropriate notice.

(l) A motion may be made to dismiss an improper practice charge, or the administrative law judge may dismiss a charge, on the ground that the alleged violation occurred more than four months prior to the filing of the charge, but only if the failure of timeliness was first revealed during the hearing. An objection to the timeliness of the charge, if not duly raised, shall be deemed waived.

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