Home » 2008 Issues » December 31, 2008 » JDC-53-08-00002-P Use of Prior Cautionary Letters in Subsequent Matter Involving Same Judge; Designation of Records Access Officer; Address Change
JDC-53-08-00002-P Use of Prior Cautionary Letters in Subsequent Matter Involving Same Judge; Designation of Records Access Officer; Address Change
12/31/08 N.Y. St. Reg. JDC-53-08-00002-P
NEW YORK STATE REGISTER
VOLUME XXX, ISSUE 53
December 31, 2008
RULE MAKING ACTIVITIES
STATE COMMISSION ON JUDICIAL CONDUCT
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. JDC-53-08-00002-P
Use of Prior Cautionary Letters in Subsequent Matter Involving Same Judge; Designation of Records Access Officer; Address Change
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 7000.4, 7001.3 and 7001.4 of Title 22 NYCRR.
Statutory authority:
Judiciary Law, section 42(5)
Subject:
Use of prior cautionary letters in subsequent matter involving same judge; designation of records access officer; address change.
Purpose:
To clarify when prior cautionary letter may be used, authorize designation of records access officer and note address change.
Text of proposed rule:
§ 7000.4. Use in subsequent proceedings of letter of dismissal and caution or letter of caution
(a) A letter of dismissal and caution issued in lieu of a formal written complaint may be used in subsequent proceedings [only] as follows:
(1) The fact that a judge had received a letter of dismissal and caution may not be used to establish the misconduct alleged in a subsequent proceeding. However, the underlying conduct described in the letter of dismissal and caution may be charged in a subsequent formal written complaint, and evidence in support thereof may be presented at the hearing.
(2) Where the underlying conduct described in the letter of dismissal and caution is charged in a subsequent formal written complaint, a judge may be questioned with respect to receipt of the prior letter of dismissal and caution, and upon a finding by the commission of a judge's misconduct with respect to the facts underlying the letter of dismissal and caution, such letter of dismissal and caution may be considered by the commission in determining the sanction to be imposed.
(b) As to any prior letter of dismissal and caution or letter of caution to the respondent judge that is not already in the record of a proceeding commenced by the filing of a formal written complaint, the administrator and respondent may address such letter in their briefs to the commission and at oral argument before the commission, for purposes of sanction only. Any prior letter used in such a manner would become part of the record of the present proceeding. If the respondent and the administrator do not address such letter in their briefs to the commission or at oral argument, the commission may consider such letter only with regard to sanction and only if the respondent and the administrator had been given an opportunity to address it. Any prior letter used in such fashion would become part of the record of the present proceeding if the commission relied on it in determining sanction.
§ 7001.3. Designation of records access officer
(a) The State Commission on Judicial Conduct is responsible for insuring compliance with the regulations herein and [designates] authorizes its administrator [as] to designate a records access officer. The administrator will delegate to a staff employee in each office the functions of receiving requests for records and providing assistance to the public.
§ 7001.4. Location
Records shall be available for public inspection at:
(a) 61 Broadway, New York, N.Y. 10006;
(b) 400 Andrews Street, Rochester, N.Y. 14604; and
(c) [38-40 State Street,] Corning Tower (Suite 2300), Empire State Plaza, Albany, N.Y. 12223 [12207].
Text of proposed rule and any required statements and analyses may be obtained from:
Robert H. Tembeckjian, Commission on Judicial Conduct, 61 Broadway, Suite 1200, New York, N.Y. 10006, (646) 386-4884, email: rulemaking@scjc.state.ny.us
2. Legislative objectives: The proposal articulates an additional circumstance in which the Commission may use a prior cautionary letter to a judge in a subsequent matter involving that same judge, authorizes the Commission's Administrator to designate a Records Access Officer and updates the Commission's Albany office address.
3. Needs and benefits: The proposal gives notice to respondent-judges that cautionary letters issued to them in prior Commission proceedings may be considered for purposes of imposing sanctions in subsequent matters. The proposal also addresses two ministerial matters: permitting the Administrator to designate a Records Access Officer and updating the agency's Albany address.
4. Costs: None.
5. Local government mandates: None.
6. Paperwork: None.
7. Duplication: None.
8. Alternatives: None.
9. Federal standards: None.
10. Compliance schedule: None.
Regulatory Flexibility Analysis
1. Effect of rule: These are internal agency operating rules concerning disciplinary proceedings against judges. No small businesses or local governments are affected.
2. Compliance requirements: None.
3. Professional services: None.
4. Compliance costs: None.
5. Economic and technological feasibility: Not applicable.
6. Minimizing adverse impact: There is no economic impact on small businesses or local governments.
7. Small business and local government participation: These internal agency operating rules concerning disciplinary proceedings against judges do not involve small businesses or local governments.
Rural Area Flexibility Analysis
This proposal will not impose any adverse economic impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. This proposal contains internal agency operating rules concerning disciplinary proceedings against judges of the state unified court system. The agency analyzed the plain language of the proposed rules and concluded that the subject matter – i.e. using prior cautionary letters in subsequent proceedings, authorizing the Administrator to designate a Records Access Officer, and updating the address of the agency’s Albany office – are not addressed to rural areas and, in any event, contain no reporting or recordkeeping requirements.
Job Impact Statement
This proposal will not impose any adverse impact on jobs and employment opportunities. This proposal contains internal agency operating rules concerning disciplinary proceedings against judges of the state unified court system. It does not add or eliminate any jobs, nor does it impose or modify any responsibilities associated with existing jobs. The agency analyzed the plain language of the proposed rules and concluded that the subject matter – i.e. using prior cautionary letters in subsequent proceedings, authorizing the Administrator to designate a Records Access Officer, and updating the address of the agency’s Albany office – does not address, create or impact upon any jobs.
