S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1680
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 16, 2019
                                ___________
 
 Introduced by M. of A. ABINANTI -- read once and referred to the Commit-
   tee on Governmental Operations
 
 AN  ACT  to amend the state administrative procedure act, in relation to
   the establishment of agency adjudication plans
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Legislative  intent.  The  legislature  hereby  finds and
 declares that  administrative  adjudication  was  developed  to  provide
 expert,  efficient,  timely  and  fair  resolution of claims, rights and
 disputes  before  state  agencies.  Administrative  adjudication   often
 addresses  complex  scientific, technical, financial, medical, legal and
 related issues under the jurisdiction of state agencies with specialized
 knowledge, and should be a more flexible alternative to, rather  than  a
 duplication  of,  the  civil  and criminal court system.  Administrative
 adjudication must meet due process standards and should resolve disputes
 in a manner that is fair and appears fair to the public. The fairness of
 administrative adjudication and the appearance of fairness  are  partic-
 ularly  important  when  a state agency is a party to the administrative
 proceeding. To assure expert, efficient, timely and  fair  adjudication,
 hearing  officers who preside at administrative hearings should be know-
 ledgeable, competent, impartial, objective and free  from  inappropriate
 influence.
   § 2. The state administrative procedure act is amended by adding a new
 section 309 to read as follows:
   § 309. AGENCY ADJUDICATION PLANS. 1. AS USED IN THIS SECTION:
   (A)  "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 INTERNA-
 TIONAL AGREEMENT, THE DEPARTMENT OF AUDIT AND CONTROL, THE DEPARTMENT OF
 LAW,  THE  DIVISION OF MILITARY AND NAVAL AFFAIRS TO THE EXTENT IT EXER-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05202-01-9

 A. 1680                             2
 
 CISES 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 OFFICE OF CHILDREN AND FAMILY SERVICES
 TO  THE  EXTENT  IT  EXERCISES  ITS RESPONSIBILITIES PURSUANT TO ARTICLE
 NINETEEN-G OF THE EXECUTIVE LAW, THE STATE INSURANCE FUND, THE  WORKERS'
 COMPENSATION  BOARD,  THE  STATE  DIVISION  OF PAROLE, THE DEPARTMENT OF
 CORRECTIONS AND COMMUNITY SUPERVISION, THE JOINT  COMMISSION  ON  PUBLIC
 ETHICS, THE STATE EDUCATION DEPARTMENT AND THE DIVISION OF TAX APPEALS.
   (B)  "HEARING OFFICER" SHALL MEAN A PERSON DESIGNATED AND EMPOWERED BY
 AN AGENCY  TO  CONDUCT  ADJUDICATORY  PROCEEDINGS  AS  DEFINED  IN  THIS
 SECTION,  INCLUDING BUT NOT LIMITED TO HEARING OFFICERS, HEARING EXAMIN-
 ERS 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) "ADJUDICATORY PROCEEDINGS" SHALL MEAN ANY ACTIVITY BEFORE AN AGEN-
 CY 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, HOWEV-
 ER, THAT SUCH TERM SHALL NOT APPLY TO: (I)  A  RULE  MAKING  PROCEEDING;
 (II)  AN EMPLOYEE DISCIPLINARY ACTION OR OTHER PERSONNEL ACTION PURSUANT
 TO ARTICLE FIVE OF  THE  CIVIL  SERVICE  LAW;  OR  (III)  REPRESENTATION
 PROCEEDINGS CONDUCTED BY THE PUBLIC EMPLOYMENT RELATIONS BOARD.
   2.  EVERY  AGENCY  THAT CONDUCTS ADJUDICATORY PROCEEDINGS SHALL ENSURE
 THAT SUCH PROCEEDINGS ARE IMPARTIAL, EFFICIENT, TIMELY, EXPERT AND FAIR.
   3. (A) UNLESS OTHERWISE AUTHORIZED BY LAW AND EXCEPT  AS  PROVIDED  IN
 PARAGRAPH  (B) OF THIS SUBDIVISION, A HEARING OFFICER SHALL NOT COMMUNI-
 CATE, 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.
   (B)  A  HEARING  OFFICER MAY CONSULT ON QUESTIONS OF LAW WITH SUPERVI-
 SORS, 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  ADJUDICA-
 TORY  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
 SUBDIVISION.
   (C) THE PROVISIONS OF PARAGRAPH (A)  OF  THIS  SUBDIVISION  SHALL  NOT
 APPLY:  (I)  IN DETERMINING APPLICATIONS FOR INITIAL LICENSES FOR PUBLIC
 UTILITIES OR CARRIERS; OR (II) TO PROCEEDINGS INVOLVING THE VALIDITY  OR
 APPLICATION  OF  RATES,  FACILITIES, OR PRACTICES TO PUBLIC UTILITIES OR
 CARRIERS.
   4. NO AGENCY SHALL CONSIDER WHETHER A HEARING OFFICER'S RULINGS, DECI-
 SIONS 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,  FAIR-
 NESS, PRODUCTIVITY, DILIGENCE AND TEMPERAMENT.
   5.  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.

 A. 1680                             3
 
   6. IN ANY PENDING ADJUDICATION 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 STAND-
 ARDS OF THE AGENCY OR TO ASSURE CONSISTENT OR LEGALLY SOUND DECISIONS.
   7. 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.
   8. (A) EVERY AGENCY RESPONSIBLE FOR ADMINISTRATIVE ADJUDICATION  SHALL
 DEVELOP  AN  ADMINISTRATIVE  ADJUDICATION PLAN. AN AGENCY MAY ADOPT SUCH
 PLAN AND MAY AMEND SUCH PLAN AS NECESSARY FOLLOWING NOTICE OF A PROPOSED
 PLAN OR AMENDMENT THERETO IN THE STATE REGISTER AND AN  OPPORTUNITY  FOR
 PUBLIC COMMENT. THE AGENCY SHALL POST ITS CURRENT ADMINISTRATIVE ADJUDI-
 CATION PLAN ON ITS WEBSITE.
   (B)  THE ADMINISTRATIVE ADJUDICATION PLAN SHALL, AT A MINIMUM, INCLUDE
 THE FOLLOWING:
   (I) AN ATTESTATION BY THE HEAD OF THE AGENCY THAT THE PLAN ADHERES  TO
 THE  PRINCIPLES OF ADMINISTRATION ADJUDICATION SET FORTH IN SUBDIVISIONS
 ONE, TWO, THREE, FOUR, FIVE, SIX AND SEVEN OF THIS SECTION;
   (II)(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 COUN-
 SEL'S OFFICE BUT MAY NOT BE PART OF ANY AGENCY BUREAU, OFFICE  OR  DIVI-
 SION  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  OFFI-
 CERS  MAY BE ASSIGNED DUTIES IN ADDITION TO SERVING AS A HEARING OFFICER
 PROVIDED THAT: (1) SUCH DUTIES DO NOT CONFLICT WITH  THE  HEARING  OFFI-
 CER'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 INVES-
 TIGATORY HEARINGS PROVIDED THAT THE STANDARDS OF INDEPENDENCE AND OBJEC-
 TIVITY SPECIFIED IN THIS SECTION ARE ADHERED TO; AND
   (B) AN AGENCY MAY ESTABLISH AN ORGANIZATION OF ADMINISTRATIVE  ADJUDI-
 CATION  FOR LESS COMPLEX CASES THAT DOES NOT SATISFY THE REQUIREMENTS OF
 CLAUSE (A) OF THIS SUBPARAGRAPH PROVIDED THAT ANY SUCH ORGANIZATION  AND
 ITS  JUSTIFICATION  IS  SET FORTH IN THE AGENCY'S ADMINISTRATIVE ADJUDI-
 CATION PLAN; AND
   (C) IN ORDER TO COMPLY WITH THE REQUIREMENT THAT A HEARING OFFICER NOT
 REPORT WITH REGARD TO FUNCTIONS THAT RELATE TO THE MERITS OF ADJUDICATO-
 RY 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
 CLAUSE (A) OF THIS SUBPARAGRAPH, AN AGENCY MAY REQUEST THE SERVICES OF A
 HEARING OFFICER FROM A DIFFERENT AGENCY;

 A. 1680                             4
 
   (III) PROVISIONS FOR THE HIRING OF HEARING OFFICERS THAT ALLOW, TO THE
 EXTENT  PRACTICAL  AND  CONSISTENT  WITH THE CIVIL SERVICE LAW, OPPORTU-
 NITIES FOR NON-AGENCY PERSONNEL TO  COMPETE  FOR  OPEN  HEARING  OFFICER
 POSITIONS;
   (IV)  LOCATION OF HEARING OFFICERS THAT SEPARATES, TO THE EXTENT PRAC-
 TICAL, HEARING OFFICERS, SUPERVISORS AND SUPPORT STAFF FROM OTHER AGENCY
 STAFF;
   (V) 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;
   (VI) 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 TRAIN-
 ING TO HEARING OFFICERS;
   (VII) A DESCRIPTION OF EFFORTS TO CONSULT  AND  SHARE  RESOURCES  WITH
 OTHER AGENCIES;
   (VIII)  THE  USE OF OUTSIDE HEARING OFFICERS, TO BE PAID ON A PER DIEM
 OR CONTRACT BASIS, WHERE SUCH OUTSIDE OFFICERS ARE NECESSARY  TO  IMPLE-
 MENT THE PROVISIONS OF THIS SECTION;
   (IX)   FOR   AGENCIES  THAT  ADJUDICATE  FIFTY  OR  MORE  ADJUDICATORY
 PROCEEDINGS PER YEAR, A MANAGEMENT  SYSTEM  INTENDED  TO  EFFECT  TIMELY
 DISPOSITION OF ADJUDICATORY PROCEEDINGS;
   (X)  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; AND
   (XI) THE SUMMARY OF THE AGENCY'S RULES GOVERNING PROCEDURES ON ADJUDI-
 CATORY PROCEEDINGS AND APPEALS REQUIRED PURSUANT TO SUBDIVISION THREE OF
 SECTION THREE HUNDRED ONE OF THIS ARTICLE.
   9.  THE GOVERNOR SHALL DESIGNATE AN OVERSIGHT ENTITY TO MONITOR AGENCY
 COMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION,  AND  TO  RECEIVE  ANY
 COMPLAINTS FROM AN INDIVIDUAL OR ORGANIZATION THAT AN AGENCY'S SYSTEM OF
 ADMINISTRATIVE ADJUDICATION IS NOT CONSISTENT WITH THIS ORDER; PROVIDED,
 HOWEVER, THAT SUCH OVERSIGHT ENTITY 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, THE OVERSIGHT
 ENTITY SHALL NOT REVIEW THE MERITS OF AN INDIVIDUAL  CASE  DETERMINATION
 NOR SHALL IT REVIEW ISSUES THAT HAVE BEEN RULED UPON BY A COURT, BUT ITS
 REVIEW  SHALL  BE LIMITED TO WHETHER THE SYSTEM OF ADJUDICATION UTILIZED
 BY THE AGENCY IS CONSISTENT WITH THE PROVISIONS OF THIS SECTION. IN  THE
 EVENT  THAT THIS REVIEW IDENTIFIES AREAS OF AN AGENCY'S SYSTEM OF ADMIN-
 ISTRATIVE  ADJUDICATION  THAT  APPEAR  TO  BE  INCONSISTENT   WITH   THE
 PROVISIONS OF THIS SECTION, THE OVERSIGHT ENTITY SHALL NOTIFY THE AGENCY
 AND  THE  COMPLAINANT. SUCH NOTIFICATION SHALL BE ADVISORY IN NATURE AND
 NOT BINDING ON AN AGENCY.
   10. EVERY TWO YEARS AFTER THE EFFECTIVE DATE OF  THIS  SECTION,  EVERY
 AGENCY SHALL MAKE PUBLIC A REPORT THAT SETS FORTH THE STEPS TAKEN BY THE
 AGENCY  TO  COMPLY  WITH  THIS  SECTION.  SUCH REPORT SHALL ALSO INCLUDE
 STATISTICS ON PROCEEDINGS BROUGHT AGAINST ADJUDICATIONS  OF  THE  AGENCY
 PURSUANT  TO  THE PROVISIONS OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
 TICE LAW AND RULES, INCLUDING THE OUTCOME OF SUCH  PROCEEDINGS  AND  THE

 A. 1680                             5
 
 REASONS  FOR  ANY  REVERSAL  OR MODIFICATION OF AN AGENCY DETERMINATION.
 SUCH REPORT SHALL BE PUBLISHED IN THE STATE REGISTER AND POSTED  ON  THE
 AGENCY'S WEBSITE.
   11.  PUBLIC  AUTHORITIES  AND CORPORATIONS AND AGENCIES NOT COVERED BY
 THIS SECTION ARE ENCOURAGED TO ADMINISTER THEIR SYSTEMS  OF  ADMINISTRA-
 TIVE  ADJUDICATION  IN  A  MANNER CONSISTENT WITH THE PRINCIPLES OF THIS
 SECTION.
   § 3. This act shall take effect immediately, and every agency  subject
 to  its  provisions  shall  be in full compliance with the provisions of
 this act on and after the first of January next succeeding the date upon
 which it shall have become a law.