Sec. 31.8. Administrative appeal

(a) Notice of appeal.

Either party may appeal the hearing officer's report to the Regents Review Committee by filing a notice of appeal, on a form prescribed by the commissioner. The notice of appeal shall include a statement of the issues to be considered on appeal, a statement of any errors alleged to have been made by the hearing officer, any other supporting papers and an affidavit of service attesting that such notice of appeal and any supporting papers were served on all other parties to the proceeding by United States Postal Service or other delivery service providing proof of delivery to the addresses specified by the parties within 20 days of receipt of the hearing officer's report.

(b) Members of the Regents Review Committee.

The Regents Review Committee shall be comprised of three members, at least one of which shall be a Regent.

(c) Notification of Regents Review Committee meeting.

Respondent has the right to appear at the meeting with the Regents Review Committee, or the Regents Review Committee may require respondent to appear. The department shall notify respondent at least 10 days prior to the meeting of the following:

(1) the time and place of the meeting;

(2) respondent's right to appear at the meeting;

(3) respondent's right to be represented by counsel;

(4) whether or not respondent is required to appear at the meeting; and

(5) such other information as may be considered appropriate.

(d) Review by the Regents Review Committee.

The Regents Review Committee shall review the hearing officer's report and determine whether the department has met its burden of proving by a preponderance of the evidence the facts and circumstances constituting a violation of section 6512 or 6513 of the Education Law and/or supporting an order of restitution and/or whether the civil penalty imposed by the hearing officer, if any, was arbitrary and capricious. A review by the Regents Review Committee shall be based on:

(1) the transcript of the hearing, which shall include the cease and desist order; any stay request submitted by respondent; any answer submitted by the respondent; the stenographic record of the hearing and all exhibits admitted at the hearing; and

(2) the report of the hearing officer.

(e) Board of Regents review.

Following the Regents Review Committee meeting, the Regents Review Committee shall transmit a written report of its review and recommendation to the Board of Regents. The Board of Regents shall review the written report and recommendation of the Regents Review Committee and shall determine whether respondent has violated each charge identified in the cease and desist order and determine what penalties and/or restitution, if any, to impose, and shall issue an order to carry out such decisions. Such decisions shall require the affirmative vote of a majority of the members of the Board of Regents.

(1) A review by the Board of Regents shall be based on:

(i) the transcript of the hearing, which shall include the cease and desist order, any stay request submitted by respondent, any answer submitted by the respondent, the stenographic record of the hearing and all exhibits admitted at the hearing;

(ii) the report of the hearing officer; and

(iii) the report and recommendation of the Regents Review Committee.

(2) The order of the Board of Regents shall be personally served upon respondent or served by certified mail to the respondent's last known address. Such service shall be effective as of the date of the personal service or five days after mailing by certified mail. The order shall also contain the following written notice:

Notice:

You are hereby notified that the decision of the Board of Regents is final and binding. Review of such order may be obtained in a proceeding pursuant to article 78 of the Civil Practice Law and Rules commenced in Supreme Court, Albany County. This decision shall not be stayed or enjoined unless you apply to the Supreme Court pursuant to article 63 of the Civil Practice Law and Rules and you provide notice to the New York State Education Department and Attorney General of such application.

(f) Either the Regents Review Committee or the Board of Regents may remand a proceeding to the hearing officer for further proceedings.