N.Y. Comp. Codes R. & Regs. tit. 9 § 580.14

Current through Register Vol. 46, No. 50, December 11, 2024

Section 580.14 - Conduct of the hearing

(a) The hearing officer.

(1) Any public hearing may be conducted by an agency member or employee or other person designated as a hearing officer by the agency. The designation of a hearing officer shall be in writing and made part of the record.

(2) A person may not serve as a hearing officer if he:

(i) has any financial interest, direct or indirect, in any matter involved in the proceedings;

(ii) is related by blood or marriage to any party;

(iii) has participated in any investigation with respect to the project or in the development or evidence to be introduced at the hearing; or

(iv) is otherwise disqualified.

(3) The hearing officer shall conduct the hearing in a fair and impartial manner, and shall assure that a complete record is kept pursuant to paragraph (g)(2) of this section.

(4) The hearing officer shall have power to:

(i) direct the parties to appear and confer at any time prior to or during the course of the hearing to consider the simplification of issues by consent of the parties;

(ii) rule upon motions;

(iii) set the time and place of hearings beyond the initial hearing day, regulate the course of the hearing; adjourn the hearing from time to time, indicate the place of the adjourned hearing; and fix the time for the filing of briefs and other documents;

(iv) administer oaths and affirmations;

(v) in conformance with subdivision (d) of this section, sign and issue subpoenas in the name of the agency at the request of any party, requiring the attendance and testimony of witnesses and the production of books, papers, records, contracts and other documentary evidence; however, this subparagraph shall not affect the authority of an attorney for a party to issue subpoenas under the Civil Practice Law and Rules;

(vi) summon and examine witnesses and receive evidence;

(vii) upon good cause shown by any party, order the production of specified documents for inspection and copying, and the use of written interrogatories, consistent with the general principles of article 31 of the Civil Practice Law and Rules;

(viii) provide for the taking of testimony by deposition;

(ix) admit or exclude evidence;

(x) hear and determine arguments of fact or law; and

(xi) do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the hearing.

(5) If requested to do so by the agency at the time of his designation, the hearing officer shall make findings of fact and conclusions of law based on the record and shall forward a report to the agency for acceptance, rejection or modification.

(6) Upon declination, failure to serve, death, resignation, removal or disqualification of the hearing officer, the agency may designate a successor who may continue the proceedings.

(b) Order of proceedings.

(1) The hearing officer shall convene the hearing and shall present a brief summary of the hearing, the project involved, the applicable statutes and regulations, the possible consequences of the determination in the proceedings, and the procedures to be followed during the hearing.

(2) The appearance of each party shall be entered on the record.

(3) The hearing officer may order the project sponsor to make a brief, informal presentation of the project at the outset of the hearing and to answer questions from members of the public who are not parties. Such a proceeding shall not relieve the project sponsor of his burden to present competent evidence in support of the application, nor shall it deprive the other parties of the right to cross-examine witnesses.

(4) The hearing officer may determine the sequence of participation, taking into account the convenience of parties or witnesses, clarity of the record, and similar considerations. As a general rule, the project sponsor shall proceed first, followed by the agency staff, other governmental agencies, and other parties.

(5) All parties may make brief opening statements outlining their position regarding the project.

(6) Direct case.

(i) In addition to proving the allegations of the application, the project sponsor shall have the burden of demonstrating that the project will be in compliance with applicable statutory and regulatory requirements.

(ii) Each other party shall have the right to introduce testimony and other evidence.

(7) Cross-examination.

(i) Each party shall be entitled to cross-examine the witnesses of every other party.

(ii) Generally, cross-examination shall take place immediately after direct examination.

(iii) The hearing officer shall assist unrepresented parties in cross-examination and may also conduct examination.

(iv) The hearing officer may allow redirect and recross-examination.

(v) The hearing officer may call or recall witnesses.

(8) Rebuttal.

(i) Each party may offer rebuttal evidence to deny any material affirmative facts upon which evidence from any other party has been entered.

(ii) Rebuttal evidence shall be limited to evidence presented in the direct case of the parties.

(9) Closing statements and briefs.

(i) After the testimony and evidence have been received, all parties may make brief closing statements summarizing their positions.

(ii) The hearing officer may request or allow the filing of hearing briefs, during the course of or upon the conclusion of the hearing, relating to any issue of law, motions, rulings or positions taken.

(iii) Fifteen copies of final briefs shall be submitted to the agency and shall contain proposed findings of fact, with citation to the record as to where such finding finds support, and proposed conclusions of law relative to the required statutory and regulatory determinations. Final briefs may propose conditions to be imposed upon agency approval of the project.

(iv) The hearing officer shall establish the time for submission of hearing and final briefs.

(10) Hearings shall be adjourned on the final day by the hearing officer, subject to any further action that may be taken by the agency.

(11) The hearing shall be officially closed upon the receipt of the stenographic transcript, the receipt of any additional documents or other material agreed at the hearing to be made available after the hearing, or the submission of final briefs by the parties, whichever occurs later.

(c) Post-hearing motions. The hearing officer is authorized to rule upon all motions made prior to the last day of the hearing. The agency will rule upon all motions and requests submitted thereafter in the course of its determination on the project.

(d) Subpoenas.

(1) A subpoena compelling the production of books or records shall only be issued by the hearing officer upon written showing of necessity. Such a subpoena shall designate specifically the documents required to be produced.

(2) The service of a subpoena is the responsibility of the party requesting it.

(3) If a witness fails to respond to a subpoena, the record of the hearing shall note such default. If the hearing officer determines that the testimony of the witness is essential for the completion of a party's case, he shall adjourn the hearing until the party has a reasonable opportunity to attempt to obtain compliance with the subpoena.

(e) Stipulations. Stipulations may be incorporated into the stenographic record of the hearing or subscribed in writing and filed with the hearing officer.

(f) Prefiled testimony.

(1) Wherever feasible, the hearing officer may request or require that testimony be reduced to writing and distributed to the parties sufficiently in advance of the hearing date to permit their review.

(2) Unless otherwise stipulated by the parties, prefiled testimony shall be attested to at the hearing and the witness shall be available to be cross-examined.

(g) Record of the hearing.

(1) Testimony and other proceedings shall be transcribed verbatim; however, where the parties so stipulate, or in any hearing on a minor project, testimony may be recorded by electronic means and a summary thereof may be prepared by the agency staff, upon notice to the other parties and with an opportunity to file comments or argument as to its completeness.

(2) The official record of the hearing shall be filed with the agency and shall include:

(i) the application and all notices (including the notice of hearing and any notices of appearance) and motions;

(ii) any affidavit of publication of the notice of hearing;

(iii) the transcript of the testimony taken at the hearing, and the exhibits entered into evidence:

(iv) any letters, statements, petitions or comments;

(v) any admissions, agreements or stipulations;

(vi) a statement of matters officially noticed;

(vii) offers of proof, objections thereto and rulings thereon;

(viii) proposed findings and exceptions, if any; and

(ix) the hearing officer's report to the agency, if any.

(3) The agency may use electronic recording devices and any other reasonable method of recording of the proceedings in lieu of a certified reporter. A copy of the transcript will be available at agency headquarters for review by the parties.

(h) Reopening of the hearing.

(1) At any time prior to issuing its final determination, on its own motion or at the request of any party, the agency may direct that the hearing be reopened to secure additional evidence. At the option of the project sponsor, the hearing shall not be deemed closed until the reopened proceedings are complete.

(2) Requests to the agency to reopen the hearing thereafter must be made within 30 days of the issuance of a final determination, may be made only by the project sponsor, and may be made only for good cause shown.

(i) Service of papers. Except where statute or these regulations otherwise provide, all notices and papers connected with a hearing and the order or final determination of the agency may be served by ordinary mail. Any party initiating motions, requests, briefs or other written material in connection with the hearing shall serve such materials on the other parties.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 580.14