Term
| rulemaking: new rule (or, repeal) |
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Definition
1. publish notice of proposed rulemaking in Register
2. receive and consider public comment on NOPR
3. formally adopt by publishing the rule in NYCRR AND publishing notice of adoption in Register |
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Term
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Definition
| generally, a hearing is required ONLY when the legislation relating to that specific agency requires one; if required and NOT held, the rule is void |
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Term
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Definition
| publication of NOPR must take place at least 45 days (measured from date of publication) before the proposed date of adoption (NO hearing) OR the proposed hearing date |
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Term
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Definition
1. statutory authority
2. date, time, and place of any public hearings
3. deadline for submission of comments
4. complete text of rule, or if more than 2000 words a summary
5. regulatory impact statement containing benefits and costs |
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Term
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Definition
| publish in NYCRR AND publish notice of adoption in Register |
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Term
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Definition
| publish notice of withdrawal in Register |
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Term
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Definition
| publish notice of revised rulemaking in Register AND accept comments on revised rule for at least 30 days |
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Term
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Definition
an agency can dispense with all or part of proposal requirements if it finds that the immediate adoption is:
1. necessary to preserve public health, safety, or welfare; AND
2. compliance with the requirements would be contrary to the public interest |
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Term
| emergency rules: adoption |
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Definition
| file notice of emergency adoption in Register OR file combined notice of emergency adoption and proposed rulemaking |
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Term
| emergency rules: adoption |
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Definition
| stays in effect for 90 days; may re-adopt for an additional 60 days provided the agency begins formal proposal process at or before the re-adoption |
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Term
| rulemaking: judicial review process |
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Definition
1. petitioner must have standing (i.e., subject to or directly affected by the rule)
2. petitioner must first file request with agency to pass on validity or applicability of the rule AND either: (i) agency has taken action on the request OR (ii) agency has NOT taken action and 30 days have lapsed
-brought as declaratory judgment action (more appropriate for challenging validity) or Article 78 |
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Term
| rulemaking: judicial review grounds |
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Definition
1. rule violates a constitutional provision
2. rule is without statutory authority
3. rule has been adopted without substantial compliance with rulemaking procedure (here, MUST be challenged within 4 months of effective date) |
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Term
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Definition
1. imposing fine or other sanction
2. suspending, revoking, or denying a license to engage in a profession
3. denying or suspending benefits |
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Term
| SAPA hearing requirements: evidence |
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Definition
rules of evidence need NOT be observed:
1. hearing officer may rely on hearsay
2. evidence may be submitted in form of copy or excerpt
3. official documents need NOT be authenticated |
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Term
| SAPA hearing requirements: notice |
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Definition
agency must give reasonable notice:
1. time, place, and nature of hearing
2. statement of legal authority and jurisdiction
3. reference to sections of statutes and rules
4. short and plain statement of matters asserted |
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Term
| SAPA hearing requirements: bias |
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Definition
hearing officer must be unbiased; bias shown by:
1. personal or business relationship with a party
2. personal interest in matter being adjudicated
3. prejudges case
insufficient evidence:
1. ruled against party in prior proceeding
2. presided over prior proceeding involving similar claim, defense, or party
objection based on bias:
1. file affidavit of personal bias or disqualification
2. then, agency determines matter on record and the determination is subject to judicial review at the end of proceeding
rebuttable presumption of unbiased:
person alleging bias has burden of proof and must show outcome was result of the bias |
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Term
| SAPA hearing requirements: ex parte communication |
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Definition
| hearing officey may NOT communicate with any party in connection with an issue of fact unless notice is given of opportunity for all parties to participate |
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Term
| SAPA hearing requirements: outside evidence |
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Definition
| hearing officer may NOT rely on info outside of the record unless judicial notice or within specialized knowledge of the agency |
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Term
| SAPA hearing requirements: decision on record |
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Definition
agency must make a complete record of hearing:
1. notices, pleadings, motions, or rulings
2. any evidence presented
3. statement of evidence judicially noticed
4. final decision on the record, which must be in writing or stated in record AND include findings of facts and conclusions of law |
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Term
| judicial review of adjudication: standing |
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Definition
1. party against whom the action was brought or anyone else affected by the decision
2. exhaustion of administrative remedies (i.e., finality) |
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Term
| judicial review of adjudication: article 78 grounds |
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Definition
1. agency failed to perform duty required by law
2. agency proceeding without or in excess of jurisdiction
3. petitioner seeking review on grounds that determination was:
(i) made in violation of procedure
(ii) affected by an error of law
(iii) arbitrary and capricious
(iv) abuse of discretion
4. determination NOT supported by substantial evidence |
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Term
| article 78 proceedings: SOL |
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Definition
1. must commence by filing within 4 months after determination is final and binding on petitioner
2. petition and notice of petition or order to show cause must be served within 15 days after SOL set to expire |
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Term
| article 78 proceedings: papers |
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Definition
1. petitioner files verified petition accompanied by affidavits or other written proof
2. verified answer of respondent stating pertinent and material facts including certified transcript of proceedings below
3. reply when counterclaim alleged or new matter in answer |
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Term
| article 78 proceedings: service |
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Definition
1. notice of petition, petition, and accompanying affidavits must be served at least 20 days before time at which petition is noticed to be heard
2. answer and supporting affidavits at least 5 days before return date
3. reply at least 1 day before return date |
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Term
| article 78 proceedings: hearing and evidence |
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Definition
1. generally, decided on papers filed with the court
2. discover generally limited to when challenging an agency action not on record
-i.e., discover and trials generally do NOT occur as long as SAPA involved and followed |
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Term
| article 78 proceedings: standard of review |
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Definition
| if adjudication challenged on grounds that agency determination NOT based on substantial evidence, finding will be upheld if there is relevant proof that a reasonable mind may accept as adequate to support conclusion (i.e., conclusion need only be reasonable and plausible, NOT most probable) |
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Term
| article 78 proceedings: court |
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Definition
1. commence in supreme court
2. if substantial evidence question raised, court first looks at questions that could terminate proceeding:
(i) lack of jurisdiction
(ii) SOL
(iii) res judicata
3. if other objections do not terminate proceeding, transferred up to appellate division
4. court may annul, confirm, or modify determination or remand to agency |
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Term
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Definition
1. admin searches and inspections subject to 4th's warrant requirement based on probable cause
2. probable cause:
(i) specific evidence of specific violation
(ii) showing that specific business was chosen for inspection on basis of general admin plan for enforcement derived from neutral sources |
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Term
| investigation: warrant exception |
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Definition
1. public business: agency officials may enter business premises that are open to the public without consent or warrant and act on observations
2. heavily regulated business: warrantless admin inspections of pervasive regulated businesses (e.g., auto wrecking, mines, firearms dealers, liquor dealers) are allowed if reasonable:
(i) inspection must be conducted according to a regulatory scheme that advances a substantial government interest
(ii) inspection must be necessary to further the regulatory scheme
(iii) inspection must provide constitutionally adequate substitute for warrant by advising owners that it will be subject to periodic inspections AND limiting officers discretion with time, place, and scope restrictions |
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Term
| investigation: exclusionary rule |
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Definition
| court balances social benefits from excluding evidence against costs (usually weighs in favor of admitting the evidence) |
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Term
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Definition
agency may issue subpoena in connection with investigation if it shows:
1. authority to engage in the investigation
2. evidence is reasonably related to the investigation
3. authentic factual basis to warrant the investigation
when based on 3rd party complaint, agency cannot issue subpoena until authenticity of complaint established:
1. reliability of complainant
2. basis of complainant's knowledge
3. authenticating detail found in complaint
agency subpoena can be quashed by showing either:
1. NOT validly issued
2. NO jurisdiction
3. material NOT relevant OR
4. burdensome or overbroad |
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Term
| open meetings law: requirements |
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Definition
1. open to public, other than executive sessions
2. notice including:
(i) time, place, and date
(ii) 72 hours before meetings scheduled a week or more in advance; other meetings within reasonable time before
(iii) to news media, public, and agency's website
(iv) by posting in 1 or more designated public locations and online when possible
3. minutes must be taken and made available within 2 weeks or 1 week after executive session |
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Term
| open meetings law: public bodies |
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Definition
1. generally, a governmental body that take formal action by adopting resolutions and is subject to quorum requirements
2. exemptions: judicial/quasi-judicial proceedings other than PSC and zoning boards AND political committees |
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Term
| open meetings law: meetings |
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Definition
1. held by public body
2. quorum of body present
3. body engaged in deliberative process (i.e., when it discusses any matter on which it then or later may take action BUT NOT chance meetings and social gatherings) |
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Term
| open meetings law: executive sessions procedure |
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Definition
a portion of an open meeting during which the public may be excluded; to do so:
1. member must make motion to enter session
2. motion must identify the general subject matter
3. motion must be carried by a majority |
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Term
| open meetings law: executive sessions matters |
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Definition
1. matters that may imperil public safety if disclosed
2. matters that may disclose identity of law enforcement agent or informant
3. info relating to current or future criminal investigations that would imperil effective law enforcement if disclosed
4. info regarding proposed or pending legislation
5. collective bargaining negotiations pursuant to civil service law
vi. medical, financial, credit, or employment history of person/corp.
vii. matters relating to exams
viii. matters relating to transactions involving real property or securities if disclosure would substantially affect value
ix. NO action appropriating public monies |
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Term
| open meetings law: actions for violations |
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Definition
1. standing: any aggrieved person (improperly excluded or improper executive session)
2. remedies: court can declare action taken void except unintentional failure to fully comply with notice NOT sufficient alone
3. attorney's fees: can be awarded to successful party; MUST be awarded when public body voted in material violation or substantial deliberations occurred in private |
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Term
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Definition
1. person makes written request for the record (info stored in any physical form)
2. agency must respond within 5 business days by either:
(i) providing material
(ii) denying request
(iii) providing approximate date on which request will be granted or denied
3. if possible, agency must provide the record to the person in the medium requested |
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Term
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Definition
1. records, which if disclosed, would constitute an unwarranted invasion of someone's privacy
2. records that would hinder law enforcement efforts
3. records that would endanger the life and safety of any person
4. records that would jeopardize agency's ability to guarantee security of its electronic info system
5. inter- or intra-agency material that is predecisional |
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Term
| FOIL: remedies for denial of access |
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Definition
1. appeal to agency in writing within 30 days of denial, to which agency must respond within 10 days by explaining denial or providing access
2. if agency appeal results in denial, may bring article 78 proceeding
-if agency denies based on exemption, agency has burden to prove exemption |
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