New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle V - State Board of Elections
Part 6216 - Help America Vote Act Administrative Complaint Procedure
Section 6216.3 - Alternative dispute resolution
Universal Citation: 9 NY Comp Codes Rules and Regs ยง 6216.3
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Purpose and overview.
(1) Whenever a final determination of a
formal complaint is not made within 90 days of the date of acceptance as
established in section
6216.2(c)(3)
of this Part, or any other longer agreed upon time period, the SBOE shall refer
the formal complaint to an independent, alternative dispute resolution (ADR)
agency. Such hearings and determinations shall be conducted by the alternative
dispute resolution agency pursuant to regulations as outlined below. Such
agency shall have 60 days, from the expiration of the original 90 day time
period, or any other longer agreed upon time period, to make a final
determination. The SBOE shall contract, pursuant to subdivision 4 of section
3-100 of article 3 of the Election Law with one or more such alternative
dispute resolution entities for this specific purpose.
(b) Referral to ADR agency.
(1) As soon as the SBOE has exceeded the 90
calendar day period as established in section
6216.2(c)(3)
of this Part, or any other longer agreed upon time period, the complaint will
be forwarded immediately to the administrative office of the ADR agency
selected by the SBOE from those agencies under contract with the SBOE to
provide such services.
(2) The
materials forwarded shall include:
(i) the
electronic recording of the hearing;
(ii) a transcript of the hearing on the
record if such a hearing was so requested in writing by the complainant or
respondent;
(iii) any documents or
other tangible items introduced into evidence at the hearing;
(iv) the complaint and written
response;
(v) all notices and
correspondence between the SBOE, the complainant and the respondent;
(vi) the results of any investigation
conducted by SBOE staff in response to the complaint;.
(vii) contact information for each party
which will include addresses, phone numbers, fax numbers and e-mail, if
available; and
(viii) any other
information relevant to the complaint, including any specific requirements for
arbitration.
(c) Case processing.
(1) The ADR agency shall conduct an expedited
cost-effective process where complaints are decided in a timely manner, but not
at expense of a full and complete investigation.
(2) The ADR agency shall review the materials
submitted by the SBOE, and forward a copy of the materials to the appointed
arbitrator. Within a period of 15 to 20 calendar days after receipt of the
complaint and supporting documentation, the ADR agency and the arbitrator will
schedule the hearing in a neutral, convenient, and accessible location to the
complainant. Upon request of either party, the arbitrator may conduct a hearing
by telephone or, where available, interactive video. When such telephonic or
video appearances are made, all due effort shall be made to not impose any
undue burden upon any party appearing in person.
(3) The ADR agency shall forward the
following information to the parties:
(i)
date of arbitration;
(ii) location
of arbitration;
(iii) appointed
arbitrator, and summary of arbitrator vitae when requested;
(iv) any disclosure statement the arbitrator
may deem relevant.
(4)
The parties will have seven calendar days to object to the arbitrator on the
grounds of a prior relationship or due to another reason deemed sufficient by
the ADR agency and the SBOE. The parties will also have seven calendar days to
make a request for the arbitrator to subpoena another party/parties to attend
the arbitration.
(5) An arbitration
shall be held, giving the parties full opportunity to present evidence and
testimony.
(6) The arbitrator shall
analyze all materials relevant to the complaint, and develop a written
statement clearly explaining his/her decision and a remedy to the complaint, if
applicable.
(7) The arbitrator's
decision shall be advisory in nature, not constituting a final and binding
award. The arbitrator will forward his/her written arbitration decision to the
ADR agency, which will forward a copy to both parties, as well as the State
Board.
(8) The entire process from
complaint forwarding to the ADR agency, to dissemination of the decision to the
parties will take no more than 60 calendar days, with the exception of an
adjournment of the case beyond the 60-day time frame as agreed to by the
parties. Adjournments will be determined by the arbitrator.
(9) The procedures and relative elements of
the Arbitration Program will be subject to review, at least annually.
(d) Arbitration remedies.
(1) Recommended remedies
available pursuant to arbitration shall be directed to the improvement or
correction of election procedures governed by title III and must be consistent
with State law. Remedies may consist of a recommendation directing the local or
State official(s) or entity/entities to undertake or to refrain from certain
actions or to alter certain procedures pertaining to Federal
elections.
(2) A recommended remedy
provided for under this rule may not include any award of damages or payment of
costs, penalties or attorneys fees, and may not include the invalidation of any
election or a determination of the validity of any ballot or vote.
(3) No decision of the arbitrator shall be
construed to impair or supersede the right of an aggrieved party to seek a
judicial remedy. The decision of the arbitrator must provide notice to all
parties of the provisions of this subdivision.
(e) Costs of conducting arbitration.
(1) The SBOE shall be
responsible for the costs of administering arbitrations as the same are
established in the agreement between the SBOE and the ADR agency entered into
pursuant to subdivision 4 of section 3-100 of article 3 of the Election Law.
This shall not include any expenses of any complainant or respondent to the
arbitration.
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