New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle A - Governor's Office
Chapter I - Executive Orders
Part 4 - Executive Orders (Mario M. Cuomo)
Section 4.131 - Executive order no. 131: establishing administrative adjudication plans
Universal Citation: 9 NY Comp Codes Rules and Regs ยง 4.131
Current through Register Vol. 46, No. 39, September 25, 2024
WHEREAS, administrative adjudication was developed to provide expert, efficient, timely and fair resolution of claims, rights and disputes before state agencies;
WHEREAS, administrative adjudication often addresses complex scientific, technical, financial, medical, legal and related issues under the jurisdiction of state agencies with specialized knowledge;
WHEREAS, administrative adjudication should be a more flexible alternative to, rather than a duplication of, the civil and criminal court system;
WHEREAS, administrative adjudication must meet due process standards and should resolve disputes in a manner that is fair and appears fair to the public;
WHEREAS, the fairness of administrative adjudication and the appearance of fairness are particularly important when a state agency is a party to the administrative proceeding; and
WHEREAS, to assure expert, efficient, timely and fair adjudications, hearing officers who preside at administrative hearings should be knowledgeable, competent, impartial, objective and free from inappropriate influence;
NOW, THEREFORE, I, Mario M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and Laws of the State of New York, do hereby order as follows:
I. Definitions
A. The term "agency" shall mean any
department, board, bureau, commission, division, office, council, committee or
officer of the state authorized by law to make final decisions in adjudicatory
proceedings but shall not include the governor, agencies created by interstate
compact or international agreement, the Division of Military and Naval Affairs
to the extent it exercises its responsibility for military and naval affairs,
the Division of State Police, the identification and intelligence unit of the
Division of Criminal Justice Services, the Division for Youth, the State
Insurance Fund, the Workers' Compensation Board, the State Division of Parole,
the Department of Correctional Services, the State Ethics Commission, the State
Education Department and the Division of Tax Appeals.
B. The term "hearing officer" shall mean a
person designated and empowered by an agency to conduct adjudicatory
proceedings as defined in this Order, including but not limited to hearing
officers, hearing examiners and administrative law judges; provided, however,
that such term shall not apply to the head of an agency or to members of a
state board or commission.
C. The
term "adjudicatory proceedings" shall mean any activity before an agency in
which a determination of 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 formal adversarial hearing; provided, however, that such term shall not
apply to (1) a rule making proceeding, (2) an employee disciplinary action or
other personnel action pursuant to article five of the civil service law or (3)
representation proceedings conducted by the State Labor Relations Board and the
Public Employment Relations Board.
II. General Principles
A. Every agency that conducts adjudicatory
proceedings shall insure that such proceedings are impartial, efficient,
timely, expert and fair.
B.
1. Unless otherwise authorized by law and
except as provided in paragraph two of this subdivision, a hearing officer
shall not communicate, directly or indirectly, in connection with any issue
that relates in any way to the merits of an adjudicatory proceeding pending
before the hearing officer with any person except upon notice and opportunity
for all parties to participate.
2.
A hearing officer may consult on questions of law with supervisors, agency
attorneys or other hearing officers, provided that such supervisors, hearing
officers or attorneys have not been engaged in investigative or prosecuting
functions in connection with the adjudicatory proceeding under consideration or
a factually related adjudicatory proceeding. Hearing officers may also consult
with supervisors, other hearing officers, support staff or court reporters on
ministerial matters such as scheduling or the location of a hearing. The head
of each agency shall strictly enforce the prohibition set forth in this
paragraph B.
3. Subdivision one of
this paragraph shall not apply (a) in determining applications for initial
licenses for public utilities or carriers or (b) to proceedings involving the
validity or application of rates, facilities, or practices to public utilities
or carriers.
C. No
agency shall consider whether a hearing officer's rulings, decisions or other
actions favor or disfavor the agency or the State in establishing the hearing
officer's salary, promotion, benefits, working conditions, case assignments or
opportunities for employment or promotion. The work of hearing officers shall
only be evaluated on the following general areas of performance: competence,
objectivity, fairness, productivity, diligence and temperament.
D. No agency shall establish quotas or
similar expectations for any hearing officer that relate in any way to whether
the hearing officer's rulings, decisions or other actions favor or disfavor the
agency or the State.
E. In any
pending adjudicatory proceeding, the agency may not order or otherwise direct a
hearing officer to make any finding of fact, to reach any conclusion of law, or
to make or recommend any specific disposition of a charge, allegation, question
or issue, except by remand, reversal, or other decision on the record of the
proceeding; provided, however, that such provision shall not preclude a
supervisor from giving legal advice or guidance to a hearing officer where the
supervisor determines that such advice or guidance is appropriate to assure the
quality standards of the agency or to assure consistent or legally sound
decisions.
F. If the head of an
agency, or a designee, issues a decision that includes findings of fact or
conclusions of law that conflict with the findings, conclusions or recommended
decision of the hearing officer, the head of the agency, or the designee, shall
set forth in writing the reasons why the head of the agency reached a
conflicting decision.
III. Administrative Adjudication Plans
A. Every agency responsible for
administrative adjudication shall develop an administrative adjudication plan.
No later than February 1, 1990, each agency shall make its proposed plan
available to the public for comment and shall publish a notice of the
availability of such plan in the State Register at the first available date. No
later than March 30, 1990, each agency shall conduct at least one public
hearing to solicit comments on the plan. Each agency shall give full
consideration to the comments received from the public and shall issue a final
administrative adjudication plan no later than April 30, 1990. Notice of the
availability of such final plan shall be published in the State Register and
shall address the comments received from the public. All such plans shall be
fully implemented no later than July 1, 1990 except to the extent
appropriations necessary to implement the plan are not available. An agency may
amend such plan as necessary following notice of a proposed amendment and an
opportunity for public comment.
B.
The administrative adjudication plan shall, at a minimum, include the
following:
1. An attestation by the head of
the agency that the plan adheres to the principles of administrative
adjudication set forth in section two of this Order.
2.
a. An
organization of administrative adjudication that ensures that hearing officers
do not report with regard to functions that relate to the merits of
adjudicatory proceedings to any agency official other than the head of the
agency, a supervisor of hearing officers or the general counsel. Wherever
practical, hearing officers shall be assigned to an administrative unit made up
exclusively of hearing officers, supervisors and support staff. The unit may be
part of the agency counsel's office but may not be part of any agency bureau,
office or division with programmatic functions unless such functions are not
the subject of adjudicatory proceedings within the agency nor may it include
attorneys responsible for prosecutions or other adversarial presentation of
agency position. Unless otherwise proscribed by law, hearing officers may be
assigned duties in addition to serving as a hearing officer provided that (1)
such duties do not conflict with the hearing officer's responsibilities as a
hearing officer and (2) such duties do not involve functions related to
prosecutions or adversarial presentations of agency positions. Hearing officers
may be assigned to conduct investigatory hearings provided that the standards
of independence and objectivity specified in this Order are adhered
to.
b. An agency may establish an
organization of administrative adjudication for less complex cases that does
not satisfy the requirements of paragraph a of this subdivision provided that
any such organization and its justification is set forth in the agency's
administrative adjudication plan.
c. In order to comply with the requirement
that a hearing officer not report with regard to functions that relate to the
merits of adjudicatory proceedings to any agency official other than the head
of the agency, a supervisor of hearing officers or the general counsel as set
forth in paragraph a of this subdivision, an agency may request the services of
a hearing officer from a different agency. No later than January 15, 1990, the
Division of the Budget, in consultation with the Office of Business Permits and
Regulatory Assistance ("OBPRA"), shall develop a plan under which agencies may
share the services of hearing officers where necessary. The Office of Business
Permits and Regulatory Assistance shall develop and maintain a register of
hearing officers that may be available to conduct adjudicatory proceedings in
agencies other than the agency that employs them.
3. Provisions for the hiring of hearing
officers that allow, to the extent practical and consistent with the Civil
Service Law, opportunities for non-agency personnel to compete for open hearing
officer positions.
4. Location of
hearing officers that separates, to the extent practical, hearing officers,
supervisors and support staff from other agency staff.
5. Duly promulgated procedural regulations
governing adjudicatory hearings that include, without limitation, requirements
for clear and detailed notices of hearing and statements of charges; permission
for answers and responsive pleadings, where appropriate; provisions for
discovery to the extent permitted by the agency; and a procedure for any party
to request recusal of a hearing officer.
6. A description of continuing education and
training programs for hearing officers. Training programs shall include an
explanation of the need for objectivity and fairness and the avoidance of a
pro-agency bias. The Governor's Office of Employee Relations shall develop
training programs to assist agencies in providing continuing education and
training to hearing officers.
7. A
description of efforts to consult and share resources with other
agencies.
8. The use of outside
hearing officers, to be paid on a per diem or contract basis, where such
outside officers are necessary to implement the provisions of this
Order.
9. For agencies that
adjudicate 50 or more adjudicatory proceedings per year, a management system
intended to effect timely disposition of adjudicatory proceedings.
10. A description of the agency's existing
system of administrative adjudication and a discussion of the changes in such
system that the proposed plan would effect.
11. The summary of the agency's rules
governing procedures on adjudicatory proceedings and appeals required pursuant
to subdivision three of section 301 of the State Administrative Procedure
Act.
IV. Oversight
A. OBPRA shall monitor the
completion and filing of proposed and final administrative adjudication plans.
To assist OBPRA in this effort, every agency shall send their proposed and
final administrative adjudication plan to OBPRA.
B. OBPRA shall review any complaints from an
individual or organization that an agency's system of administrative
adjudication is not consistent with this Order. However, OBPRA shall have no
jurisdiction to review a complaint until a complainant has exhausted all of the
complainant's administrative and judicial remedies with regard to the
administrative proceeding at issue. In reviewing any such complaint, OBPRA
shall not review the merits of an individual case determination nor shall it
review issues that have been ruled upon by a court. OBPRA's review shall be
limited to whether the system of adjudication utilized by the agency is
consistent with the provisions of this Order.
C. In the event that OBPRA's review
identifies areas of an agency's system of administrative adjudication that
appear to be inconsistent with the provisions of this Order, OBPRA shall notify
the agency and the complainant. Such notification shall be advisory in nature
and not binding on an agency.
V. Reporting
No later than December 1, 1990, and every two years thereafter, every agency shall make public a report that sets forth the steps taken by the agency to comply with this Order. Such report shall also include statistics on Article 78 proceedings brought against the agency, including the outcome of such proceedings and the reasons for any reversal or modification of an agency determination.
VI. Public Authorities and Other Agencies
Public authorities and corporations and agencies not covered by this Order are encouraged to administer their systems of administrative adjudication in a manner consistent with the principles of this Order.
Signed: Mario M. CuomoDated: December 4, 1989
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