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NEW YORK STATE
STATE ADMINISTRATIVE PROCEDURE ACT
(SAPA)


ARTICLE 3

ADJUDICATORY PROCEEDINGS

Sec.   301.    Hearings.
Sec.   302.    Record.
Sec.   303.    Presiding officers.
Sec.   304.    Powers of presiding officers.
Sec.   305.    Disclosure.
Sec.   306.    Evidence.
Sec.   307.    Decisions, determinations and orders.

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Sec. 301. HEARINGS,

1.   In an adjudicatory proceeding, all parties shall be afforded
     an opportunity for hearing within reasonable time.

2.   All parties shall be given reasonable notice of such
     hearing, which notice shall include (a) a statement of the
     time, place, and nature of the hearing; (b) a statement of
     the legal authority and jurisdiction under which the hearing
     is to be held; (c) a reference to the particular sections of
     the statutes and rules involved, where possible; (d) a short
     and plain statement of matters asserted; and (e) a statement
     that interpreter services shall be made available to deaf
     persons, at no charge, pursuant to this section. Upon
     application of any party, a more definite and detailed
     statement shall be furnished whenever the agency finds that
     the statement is not sufficiently definite or not
     sufficiently detailed. The finding of the agency as to the
     sufficiency of definiteness or detail of the statement or
     its failure or refusal to furnish a more definite or
     detailed statement shall not be subject to judicial review.
     Any statement furnished shall be deemed, in all respects, to
     be a part of the notice of hearing.

3.   Agencies shall adopt rules governing the procedures on
     adjudicatory proceedings and appeals in accordance with
     provisions of article two of this chapter, and shall prepare
     a summary of such procedures in plain language. Agencies
     shall make such summaries available to the public upon
     request, and a copy of such summary shall be provided to any
     party cited by the agency for violation of the laws, rules
     or orders enforced by the agency.

4.   All parties shall be afforded an opportunity to present
     written argument on issues of law and an opportunity to
     present evidence and such argument on issues of fact,
     provided however that nothing contained herein shall be
     construed to prohibit an agency from allowing parties to
     present oral argument within a reasonable time. In fixing
     the time and place for hearings and oral argument, due
     regard shall be had for the convenience of the parties.

5.   Unless precluded by statute, disposition may be made of any
     adjudicatory proceeding by stipulation, agreed settlement,
     consent order, default, or other informal method.

6.   Whenever any deaf person is a party to an adjudicatory
     proceeding before an agency, or a witness therein, such
     agency in all instances shall appoint a qualified
     interpreter of the deaf to interpret the proceedings to, and
     the testimony of, such deaf person. The agency conducting
     the adjudicatory proceeding shall determine a reasonable fee
     for all such interpreting services which shall be a charge
     upon the agency.

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Sec. 302. RECORD.

1.   The record in an adjudicatory proceeding shall include: (a)
     all notices, pleadings, motions, intermediate rulings; (b)
     evidence presented; (c) a statement of matters officially
     noticed except matters so obvious that a statement of them
     would serve no useful purpose; (d) questions and offers of
     proof, objections thereto, and rulings thereon, (e) proposed
     findings and exceptions, if any; (f) any findings of fact,
     conclusions of law or other recommendations made by a
     presiding officer; and (g) any decision, determination,
     opinion, order or report rendered.

2.   The agency shall make a complete record of all adjudicatory
     proceedings conducted before it. For this purpose, unless
     otherwise required by statute, the agency may use whatever
     means it deems appropriate, including but not limited to the
     use of stenographic transcriptions or electronic recording
     devices. Upon request made by any party upon the agency
     within a reasonable time, but prior to the time for
     commencement of judicial review, of its giving notice of its
     decision, determination, opinion or order, the agency shall
     prepare the record together with any transcript of
     proceedings within a reasonable time and shall furnish a
     copy of the record and transcript or any part thereof to any
     party as he may request. Except when any statute provides
     otherwise, the agency is authorized to charge not more than
     its cost for the preparation and furnishing of such record
     or transcript or any part thereof, or the rate specified in
     the contract between the agency and a contractor if prepared
     by a private contractor.

3.   Findings of fact shall be based exclusively on the evidence
     and on matters officially noticed.

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Sec. 303. PRESIDING OFFICERS.

Except as otherwise provided by statute, the agency, one or more
members of the agency, or one or more hearing officers designated
and empowered by the agency to conduct hearings shall be
presiding officers. Hearings shall be conducted in an impartial
manner. Upon the filing in good faith by a party of a timely and
sufficient affidavit of personal bias or disqualification of a
presiding officer, the agency shall determine the matter as part
of the record in the case, and its determination shall be a
matter subject to judicial review at the conclusion of the
adjudicatory proceeding. Whenever a presiding officer is
disqualified or it becomes impractical for him to continue the
hearing, another presiding officer may be assigned to continue
with the case unless it is shown that substantial prejudice to
the party will result therefrom.

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Sec. 304. POWERS OF PRESIDING OFFICERS.

Except as otherwise provided by statute, presiding officers are
authorized to:

1.   Administer oaths and affirmations.

2.   Sign and issue subpoenas in the name of the agency, at the
     request of any party, requiring attendance and giving of
     testimony by witnesses and the production of books, papers,
     documents and other evidence and said subpoenas shall be
     regulated by the civil practice law and rules. Nothing
     herein contained shall affect the authority of an attorney
     for a party to issue such subpoenas under the provisions of
     the civil practice law and rules.

3.   Provide for the taking of testimony by deposition.

4.   Regulate the course of the hearings, set the time and place
     for continued hearings, and fix the time for filing of
     briefs and other documents.

5.   Direct the parties to appear and confer to consider the
     simplification of the issues by consent of the parties.

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Sec. 305. DISCLOSURE.

Each agency having power to conduct adjudicatory proceedings may
adopt rules providing for discovery and depositions to the extent
and in the manner appropriate to its proceedings.

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Sec. 306. EVIDENCE.

1.   Irrelevant or unduly repetitious evidence or cross-
     examination may be excluded. Except as otherwise provided by
     statute, the burden of proof shall be on the party who
     initiated the proceeding. No decision, determination or
     order shall be made except upon consideration of the record
     as a whole or such portion thereof as may be cited by any
     party to the proceeding and as supported by and in
     accordance with substantial evidence. Unless otherwise
     provided by any statute, agencies need not observe the rules
     of evidence observed by courts, but shall give effect to the
     rules of privilege recognized by law. Objections to
     evidentiary offers may be made and shall be noted in the
     record. Subject to these requirements, an agency may, for
     the purpose of expediting hearings, and when the interests
     of parties will not be substantially prejudiced thereby,
     adopt procedures for the submission of all or part of the
     evidence in written form.

2.   All evidence, including records and documents in the
     possession of the agency of which it desires to avail
     itself, shall be offered and made a part of the record, and
     all such documentary evidence may be received in the form of
     copies or excerpts, or by incorporation by reference. In
     case of incorporation by reference, the materials so
     incorporated shall be available for examination by the
     parties before being received in evidence.

3.   A party shall have the right of cross-examination.

4.   Official notice may be taken of all facts of which judicial
     notice could be taken and of other facts within the
     specialized knowledge of the agency. When official notice is
     taken of a material fact not appearing in the evidence in
     the record and of which judicial notice could not be taken,
     every party shall be given notice thereof and shall on
     timely request be afforded an opportunity prior to decision
     to dispute the fact or its materiality.

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Sec. 307. DECISIONS, DETERMINATIONS AND ORDERS.

1.   A final decision, determination or order adverse to a party
     in an adjudicatory proceeding shall be in writing or stated
     in the record and shall include findings of fact and
     conclusions of law or reasons for the decision,
     determination or order. Findings of fact, if set forth in
     statutory language, shall be accompanied by a concise and
     explicit statement of the underlying facts supporting the
     findings. If, in accordance with agency rules, a party
     submitted proposed findings of fact, the decision,
     determination or order shall include a ruling upon each
     proposed finding. A copy of the decision, determination or
     order shall be delivered or mailed forthwith to each party
     and to his attorney of record.

2.   Unless required for the disposition of ex parte matters
     authorized by law, members or employees of an agency
     assigned to render a decision or to make findings of fact
     and conclusions of law in an adjudicatory proceeding shall
     not communicate, directly or indirectly, in connection with
     any issue of fact, with any person or party, nor, in
     connection with any issue of law, with any party or his
     representative, except upon notice and opportunity for all
     parties to participate. Any such agency member (a) may
     communicate with other members of the agency, and (b) may
     have the aid and advice of agency staff other than staff
     which has been or is engaged in the investigative or
     prosecuting functions in connection with the case under
     consideration or factually related case.

     This subdivision does 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 of public
     utilities or carriers.

3.   (a)  Each agency shall maintain an index by name and
          subject of all written final decisions determinations
          and orders rendered by the agency in adjudicatory
          proceedings. Such index and the text of any such
          written final decision, determination or order shall be
          available for public inspection and copying. Each
          decision, determination and order shall be indexed
          within sixty days after having been rendered.

     (b)  An agency may delete from any such index decision,
          determination or order any information that, if
          disclosed, would constitute an unwarranted invasion of
          personal privacy under the provisions of subdivision
          two of section eighty-nine of the public officers law
          and may also delete at the request of any person all
          references to trade secrets that, if disclosed, would
          cause substantial injury to the competitive position of
          such person. Information which would reveal
          confidential material protected by federal or state
          statute, shall be deleted from any such index,
          decision, determination or order.

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