SBE-32-15-00003-P State Board of Elections Civil Enforcement Hearing Procedure

8/12/15 N.Y. St. Reg. SBE-32-15-00003-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 32

August 12, 2015

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. SBE-32-15-00003-P

State Board of Elections Civil Enforcement Hearing Procedure

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 6218 to Title 9 NYCRR.

Statutory authority:

Election Law, sections 3-104(8), 3-102(1) and (17)

Subject:

State Board of Elections Civil Enforcement Hearing Procedure.

Purpose:

To provide a fair process of civil enforcement that ensures due process of law in all administrative adjudicatory proceedings.

Substance of proposed rule (Full text is posted at the following State website:http://www.elections.ny.gov/):

The proposed rulemaking adds a new Part 6218 to Subtitle V of Title 9 of the NYCRR. The new Part provides for a civil enforcement hearing process as required by Election Law section 3-104 (5). Section 6218.01 reflects the intent of the section to provide for a fair and efficient process of civil enforcement. Section 6218.02 provides for hearing officers, including the manner of selection and the qualifications and obligations. Section 6218.03 provides for commencement of Election Law 3-104 administrative proceedings and various requisites related thereto. Section 6218.04 provides for the conduct of adjudicatory proceedings and various related matters. Section 6218.05 provides for the scope and time of settlement of civil enforcement matters and matters related thereto. Section 6218.06 provides for the manner of making written statements under penalties of perjury. Section 6218.07 provides that strict rules of evidence do not apply to administrative proceedings under this Part. Section 6218.08 provides for service of rules and other materials in accordance with law. Section 6218.09 provides that every party or witness is entitled to counsel at their own expense. Section 6218.10 provides a process for adjournments in proceedings. Section 6218.11 provides for discovery and subpoenas. Section 6218.12 provides time periods, including a general rule that proceedings under this Part should be concluded within ninety days of a hearing or other specified event.

Text of proposed rule and any required statements and analyses may be obtained from:

Brian L. Quail, Esq., Deputy Counsel, New York State Board of Elections, 40 North Pearl Street, Suite 5, Albany, New York 12207, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Election Law 3-104(5) requires the State Board to implement a civil enforcement hearing process, and this process requires rules for implementation, and Election Law 3-104(8) authorizes the New York State Board of Elections to promulgate such rules.

2. Legislative objectives: The proposed rule implements the civil enforcement hearing process required pursuant to Election Law 3-104(5) enacted by the Laws of 2014 chapter 55, part. H, subpart. B, effective June 29, 2014. The legislature created the requirement of a new civil administrative enforcement process, among other things, to improve enforcement of the Election Law. Specifically, the legislature intended this hearing process to be a mechanism by which the Chief Enforcement Counsel of the State Board of Elections could obtain impartial administrative findings prior to bringing a civil action when circumstances create substantial reason to believe actions were taken evincing an intent to violate the election law “that does not otherwise warrant criminal prosecution”. Election Law 3-104[5].

3. Needs and benefits: This rulemaking provides a beneficial new mechanism for Election Law enforcement that comports with due process. The legislature in adopting the Laws of 2014 chapter 55, part. H, subpart. B required a civil enforcement hearing process at the State Board of Elections. This rulemaking provides the mechanism to effectuate this requirement, as the legislature delegated rulemaking for this purpose to the State Board of Elections. The hearing process established by this rulemaking, consistent with the statute, permits the Chief Enforcement Counsel to obtain impartial administrative findings prior to bringing a civil action when circumstances create substantial reason to believe actions were taken evincing an intent to violate the election law “that does not otherwise warrant criminal prosecution”. Election Law 3-104[5]. This rulemaking ensures the impartiality of hearing officers, compliance with the New York State Administrative Procedure Act, and procedural rights for respondents in administrative proceedings consistent with law.

4. Costs:

a. The proposed rule requires a hearing process as an element of due process before certain special proceedings may be brought by the Chief Enforcement Counsel of the Board of Elections. It does not impose any additional costs on any definable, regulated class. Because respondents in a civil enforcement proceeding under these rules would have otherwise likely been subject to a civil proceeding in New York State Supreme Court, this rulemaking should reduce respondents’ cost of such adjudications.

b. The agency cost and state cost are provided for in existing appropriations, and there are no costs to local governments resulting from this rule. As a matter of law and not the subject of this rulemaking, the state will recover to a special fund settlements entered into as a result of the civil enforcement process.

c. The rule implements a statutory requirement to provide a civil enforcement process for violation of the Election Law, and the cost of implementing the program depends on how many civil enforcement matters will be initiated by the Chief Enforcement Counsel. The cost to implement this rulemaking will be provided by existing appropriations for the State Board of Elections.

5. Local government mandates: There are no additional responsibilities imposed by this rule upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This rule imposes no new reporting or regulatory filing requirements. The rules include requirements related to commencing adjudicatory proceedings, including, e.g., the filing of the report of the Chief Enforcement Counsel, a notice of hearing, and respondent’s answer.

7. Duplication: The civil enforcement process established by this rule does not impose any duplicative regulatory burden or reporting requirements, but does provide, by design, an alternative mechanism of Election Law civil enforcement. Violations of the Election Law for which the Chief Enforcement Counsel may seek civil enforcement may also be subject to the criminal jurisdiction of other state, local or federal entities. The Chief Enforcement Counsel could manage cases to mitigate any unwise potential duplication, overlap or conflict in this regard.

8. Alternatives: The hearing process provided by this rule directly implements the statutory requirement of Election Law 3-104 (5). Accordingly, there were no alternatives to a hearing process considered. The civil hearing process provided in this rule is modeled on the processes of other state agencies.

9. Federal standards: This rulemaking is unrelated to any Federal rule or standard.

10. Compliance schedule: The rule provides no new compliance obligations related to substantive compliance with the election law. The rule pertains to parties to a civil enforcement hearing process which would be applicable upon final adoption of the rule.

Regulatory Flexibility Analysis

Under SAPA 202-b(3)(a), when a rule does not impose an adverse economic impact on small business or local government and the agency finds it would not impose reporting, recordkeeping, or other compliance requirements on such entities, the agency may file a Statement in Lieu of. This rule will not impact small business operations or local government functions. This rule implements a civil hearing process within the New York State Board of Elections pursuant to Election Law 3-104(5). It imposes no additional compliance, regulatory or reporting requirements.

Rural Area Flexibility Analysis

Under SAPA 202-bb(4)(a), when a rule does not impose an adverse economic impact on rural areas and the agency finds it would not impose reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas, the agency may file a Statement in Lieu of. This rule has statewide application, creating a uniform civil hearing process pursuant to 3-104[5] of the Election Law relating to violations of the Election Law. The proposed rule does not create any new reporting, recordkeeping or other routine compliance requirements. Accordingly, this rule has no adverse impacts on any area.

Job Impact Statement

Under SAPA 201-a(2)(a), when it is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities, the agency may file a Statement in Lieu of. This rulemaking, as is apparent from its nature and purpose, will not have an adverse impact on jobs or employment opportunities. The rule provides for a civil enforcement process within the New York State Board of Elections pursuant to Election Law 3-104(5). This rulemaking imposes no regulatory burden on any facet of job creation or employment.