S T A T E O F N E W Y O R K
________________________________________________________________________
4840
2009-2010 Regular Sessions
I N S E N A T E
April 27, 2009
___________
Introduced by Sen. AUBERTINE -- read twice and ordered printed, and when
printed to be committed to the Committee on Commerce, Economic Devel-
opment and Small Business
AN ACT to amend the state administrative procedure act, in relation to
fostering the use of alternative dispute resolution techniques in
resolving public disputes and to establish a state committee on public
dispute resolution relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The state administrative procedure act is amended by adding
a new article 6 to read as follows:
ARTICLE 6
ALTERNATIVE DISPUTE RESOLUTION
SECTION 601. DEFINITIONS.
602. AUTHORIZATION.
603. LIMITATION ON AGREEMENTS.
604. NEUTRALS.
605. LIABILITY.
606. CONFIDENTIALITY.
S 601. DEFINITIONS. 1. "AGENCY" SHALL HAVE THE SAME MEANING AS IN
SUBDIVISION ONE OF SECTION ONE HUNDRED TWO OF THIS CHAPTER.
2. "PUBLIC DISPUTE" MEANS A DISPUTE WHICH INVOLVES THE PUBLIC INTEREST
AND THE DETERMINATION OF RIGHTS, OBLIGATIONS AND PRIVILEGES OF PERSONS,
AGENCIES, UNITS OF LOCAL GOVERNMENT, OR OTHER ENTITIES.
3. "ALTERNATIVE DISPUTE RESOLUTION" OR "ADR" SHALL MEAN ANY PROCESS
OTHER THAN LITIGATION USED TO RESOLVE DISPUTES, INCLUDING BUT NOT LIMIT-
ED TO MEDIATION, FACILITATION, REGULATORY NEGOTIATION, FACT-FINDING,
CONCILIATION, MINI-TRIALS, EARLY NEUTRAL EVALUATION AND PARTICIPATION IN
POLICY DIALOGUES.
4. "CONVENOR" SHALL MEAN ANY PERSON, AGENCY OR OTHER ENTITY, INCLUDING
THE COMMITTEE ON PUBLIC DISPUTE RESOLUTION, WHO HELPS PARTIES TO A
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02283-01-9
S. 4840 2
PARTICULAR PUBLIC DISPUTE DETERMINE WHETHER AN ADR TECHNIQUE IS FEASIBLE
AND APPROPRIATE OR WHO ATTEMPTS TO PERSUADE PARTIES TO UTILIZE ADR IN
SUCH DISPUTE.
5. "NEUTRAL" MEANS AN INDIVIDUAL WHO PROVIDES SERVICES AS A MEDIATOR,
FACILITATOR, FACT-FINDER, OR CONCILIATOR, OR OTHERWISE ACTS TO AID
PARTIES IN RESOLVING DISPUTES. A NEUTRAL SHALL HAVE NO OFFICIAL, FINAN-
CIAL OR PERSONAL CONFLICT OF INTEREST WITH RESPECT TO AN ISSUE IN
CONTROVERSY UNLESS SUCH INTEREST IS FULLY DISCLOSED IN WRITING TO ALL
PARTIES AND ALL PARTIES AGREE THAT THE NEUTRAL MAY SERVE.
S 602. AUTHORIZATION. 1. GENERAL AUTHORITY. EXCEPT WHERE PROHIBITED BY
LAW, AN AGENCY MAY USE ADR TO RESOLVE ANY DISPUTE, ISSUE OR CONTROVERSY
IN WHICH THE AGENCY IS INVOLVED. THE TECHNIQUES TO BE EMPLOYED SHALL BE
VOLUNTARY PROCEDURES TO BE USED AT AN AGENCY'S DISCRETION EITHER UPON
ITS OWN INITIATIVE OR AT THE REQUEST OF ANY PERSON. NOTHING CONTAINED IN
THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE AN AGENCY TO EMPLOY ANY SUCH
TECHNIQUE IN ANY PARTICULAR MATTER, AND A DECISION BY AN AGENCY TO
EMPLOY OR NOT TO EMPLOY AN ADR TECHNIQUE SHALL NOT BE SUBJECT TO JUDI-
CIAL REVIEW.
2. SUITABILITY OF ADR. AN AGENCY SHALL CONSIDER USING ADR WHERE THE
NATURE OF THE CONTROVERSY IS SUCH THAT IT APPEARS TO BE SUITED TO RESOL-
UTION THROUGH CONSENSUS BUILDING AND WHERE THE PARTIES WITH A SUBSTAN-
TIAL INTEREST IN THE CONTROVERSY HAVE BEEN OR CAN BE IDENTIFIED AND
APPEAR TO BE WILLING TO UTILIZE AN ADR PROCESS EITHER BY DIRECT PARTIC-
IPATION OR THROUGH A REPRESENTATIVE. AN AGENCY SHALL CONSIDER NOT USING
ADR IF A DEFINITIVE OR AUTHORITATIVE RESOLUTION OF THE MATTER IS
REQUIRED FOR PRECEDENTIAL VALUE AND AN ADR PROCEDURE IS NOT LIKELY TO BE
ACCEPTED AS SUCH A PRECEDENT, OR IF A FULL PUBLIC RECORD OF THE PROCE-
DURE IS REQUIRED AND AN ADR PROCEDURE CANNOT PROVIDE SUCH A RECORD.
3. CONTENTS OF AGREEMENTS. AGENCIES MAY ENTER INTO AGREEMENTS TO
UTILIZE ADR WHICH MAY, AMONG OTHER THINGS: PROVIDE FOR THE APPOINTMENT
OF NEUTRALS, CONSULTANTS, OR EXPERTS; PROVIDE FOR THE PAYMENT OF FEES
AND EXPENSES; EXTEND ANY LIMITATION PERIODS APPLICABLE TO THE COMMENCE-
MENT OR CONCLUSION OF FORMAL ADMINISTRATIVE OR JUDICIAL PROCEEDINGS; AND
ESTABLISH GROUND RULES FOR THE PROCEEDINGS. SUCH AN AGREEMENT MAY ALSO
BE INCLUDED IN AN ENFORCEMENT ORDER, STIPULATION, CONTRACT, PERMIT OR
OTHER DOCUMENT ENTERED INTO OR ISSUED BY AN AGENCY TO ASSIST IN THE
RESOLUTION OF FUTURE DISPUTES.
4. COSTS. AN AGENCY MAY PAY THE COSTS NECESSARY TO ACHIEVE THE OBJEC-
TIVES OF THIS ARTICLE, INCLUDING REASONABLE FEES FOR TRAINING, POLICY
REVIEW, SYSTEM DESIGN, EVALUATION, TECHNICAL AND EXPERT ASSISTANCE AND
THE USE OF NEUTRALS, FROM ANY APPROPRIATE AREA OF ITS BUDGET INCLUDING
LEGAL SERVICES AND ADMINISTRATION.
5. ADR COORDINATORS. EACH AGENCY SHALL APPOINT AN ADR COORDINATOR WHO
SHALL PROMOTE THE USE OF ADR WITHIN THE AGENCY. THE COORDINATOR SHALL
MAKE RECOMMENDATIONS TO THE AGENCY'S EXECUTIVE STAFF ON ISSUES AND
DISPUTES THAT ARE SUITABLE FOR ADR, ANALYZE THE AGENCY'S ENABLING STAT-
UTES AND REGULATIONS TO DETERMINE WHETHER THEY CONTAIN IMPEDIMENTS TO
THE USE OF ADR, AND SUGGEST WHATEVER MODIFICATIONS MAY BE NECESSARY;
MONITOR THE AGENCY'S USE OF ADR; ARRANGE FOR SUCH TRAINING OF AGENCY
STAFF IN ADR PRACTICES AS MAY BE DESIRABLE; AND PROVIDE INFORMATION
ABOUT THE AGENCY'S ADR PRACTICES TO STAFF, THE REGULATED COMMUNITY, AND
THE PUBLIC. THE NEW YORK STATE COMMITTEE ON PUBLIC DISPUTE RESOLUTION
WILL PROVIDE GUIDANCE AND ASSISTANCE TO AGENCY COORDINATORS.
S 603. LIMITATION ON AGREEMENTS. NO AGREEMENT, STIPULATION OR UNDER-
STANDING ARRIVED AT THROUGH THE USE OF AN ADR PROCESS AUTHORIZED HERE-
UNDER SHALL REQUIRE AN AGENCY TO TAKE ANY ACTION INCONSISTENT WITH ANY
S. 4840 3
STATUTE, RULE, OR REGULATION, OR TO REFRAIN FROM TAKING ANY ACTION
REQUIRED BY ANY SUCH STATUTE, RULE OR REGULATION.
S 604. NEUTRALS. A NEUTRAL IN AN ADR PROCEEDING CONVENED UNDER THIS
TITLE SHALL BE SELECTED BY AND SHALL SERVE AT THE WILL OF THE PARTIES TO
AN ADR PROCEEDING. SUCH NEUTRAL MAY BE AN EMPLOYEE OF AN AGENCY INVOLVED
IN THE DISPUTE, AN EMPLOYEE OF ANOTHER FEDERAL, STATE OR LOCAL AGENCY,
AN INDIVIDUAL WITH EXPERTISE IN ADR PROCESSES OR THE SUBSTANTIVE AREAS
IN DISPUTE, OR ANY OTHER PERSON ACCEPTABLE TO THE PARTIES. IN CHOOSING A
NEUTRAL, COMPETITIVE BIDDING SHALL NOT BE REQUIRED. COMPENSATION FOR
SUCH NEUTRAL AND THE PARTIES' RESPECTIVE RESPONSIBILITIES FOR CONTRIBUT-
ING TO SUCH COMPENSATION SHALL BE BY AGREEMENT OF THE PARTIES. WHERE A
NEUTRAL IS PROVIDED BY A NON-PARTY AGENCY, THE PARTIES MAY AGREE TO
REIMBURSE THAT AGENCY FOR THE FULL OR PARTIAL COST OF ITS EMPLOYEE'S
SERVICES.
S 605. LIABILITY. NO NEUTRAL OR CONVENOR SHALL BE HELD LIABLE IN
NEGLIGENCE FOR ANY ACTS OR OMISSIONS RELATED TO HIS OR HER PARTICIPATION
IN AN ADR PROCEEDING.
S 606. CONFIDENTIALITY. 1. CONFIDENTIAL MATERIAL. NOTWITHSTANDING ANY
OTHER PROVISION OF LAW OR REGULATION, DOCUMENTS PREPARED SPECIFICALLY
FOR USE OR PRESENTATION AT AN ADR PROCEEDING SHALL BE CONFIDENTIAL. IN
ADDITION, THE PARTICIPANTS IN AN ADR PROCEEDING, INCLUDING ANY NEUTRALS
OR CONVENORS, MAY AGREE TO KEEP THEIR ORAL COMMUNICATIONS CONFIDENTIAL.
EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, PARTICIPANTS MAY
NEITHER DISCLOSE NOR BE COMPELLED TO DISCLOSE CONFIDENTIAL INFORMATION
IN ANY JUDICIAL OR ADMINISTRATIVE PROCEEDING, NOR SHALL CONFIDENTIAL
INFORMATION BE SUBJECT TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION
LAW PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW. THIS SECTION
SHOULD NOT BE CONSTRUED, HOWEVER, TO PREVENT THE RELEASE, DISCOVERY OR
DISCLOSURE OF OTHER DOCUMENTS OR EVIDENCE MERELY BECAUSE THEY ARE
PRESENTED IN THE COURSE OF AN ADR PROCEEDING.
2. EXCEPTION. A COURT HAVING JURISDICTION OF AN ACTION RELATED TO THE
SUBJECT MATTER OF AN ADR PROCEEDING MAY ORDER DISCLOSURE OF A COMMUNI-
CATION OTHERWISE CONFIDENTIAL UNDER SUBDIVISION ONE OF THIS SECTION IF
THE COURT DETERMINES THAT SUCH DISCLOSURE IS NECESSARY TO PREVENT HARM
TO THE HEALTH OR SAFETY OF AN INDIVIDUAL OR THE PUBLIC AND THAT SUCH
HARM OUTWEIGHS THE DAMAGE TO DISPUTE RESOLUTION PROCEEDINGS IN GENERAL
BY REDUCING THE CONFIDENCE OF PARTIES IN FUTURE CASES THAT THEIR COMMU-
NICATIONS WILL REMAIN CONFIDENTIAL.
3. CLOSED SESSIONS. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE
PARTIES TO AN ADR PROCEEDING MAY AGREE TO MEET IN CLOSED SESSION TO
DISCUSS THE ISSUES IN CONTROVERSY.
S 2. A New York state committee on public dispute resolution is hereby
created. 1. Purpose. The purpose of the committee shall be to assist
the executive, legislative and judicial branches of state and local
government in resolving public disputes. It shall accomplish this
purpose by disseminating information regarding the resolution of public
disputes through an alternative dispute resolution by publications,
workshops, seminars, and other means; by providing training in alterna-
tive dispute resolution; by establishing and maintaining a roster of
neutrals with expertise in alternative dispute resolution processes and
in substantive areas in which public disputes can be expected to arise;
by encouraging and monitoring the use of alternative dispute resolution;
by providing guidance and assistance to state agency alternative dispute
resolution coordinators; by providing technical support; by helping
state and local officials establish pilot and permanent programs to
resolve individual public disputes and categories of such disputes; by
S. 4840 4
conducting assessments of public disputes to determine whether alterna-
tive dispute resolution is likely to succeed in resolving them; and by
acting as convenor by bringing together parties to public disputes
deemed likely to be successfully addressed by alternative dispute resol-
ution processes. Where disputes are already in litigation, the commit-
tee shall work with the unified court system to identify cases which may
be good candidates for alternative dispute resolution.
2. Membership and compensation. The committee shall be comprised of
thirteen members. Four, including the chair, shall be appointed by the
governor, of whom one shall have substantial experience in local govern-
ment, one shall have substantial experience in the private sector, and
one shall have substantial experience in the not-for-profit sector. The
additional members shall be appointed as follows: two by the chief judge
of the court of appeals, two by the attorney general, two by the tempo-
rary president of the senate, two by the speaker of the assembly, and
one by the state comptroller. Members of the committee shall serve with-
out compensation but shall be reimbursed for actual and necessary
expenses incurred in the performance of their duties.
3. Budget, facilities, and staff. The committee shall have such budg-
et, facilities and employees as are necessary to carry out its purposes.
It shall appoint a staff director who shall hire such additional staff
as may be necessary.
4. Fees, other income, and contracting authority. The committee may
establish, collect and retain reasonable fees for the provision of its
services, including services rendered to agencies and units of local
government. The committee may also apply for and accept grants,
bequests, gifts and contributions to aid in the financing of its activ-
ities. The committee may also enter into contracts and agreements with
government and private entities, including contracts and agreements
providing for inter-agency transfers of funds, to assist in effectuating
the purposes of this act.
5. Reports. Within two years of the effective date of this act, and
every two years thereafter, the committee shall issue a public report on
its progress in achieving its objectives and shall recommend any legis-
lative or other measures deemed necessary to effectuate the purposes of
this act.
S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law.