Procedural Rules for Enforcement Actions

RCNY tit. 53, ch. 2

in effect

53 RCNY § 2-01 Applicability and Definitions.

§ 2-01 Applicability and Definitions. (a) Applicability. This chapter establishes procedural rules for enforcement actions to address alleged violations of: (1) Chapter 68 of the Charter (the Conflicts of Interest Law); (2) § 3-224 through § 3-227 of the Administrative Code (the Lobbyist Gift Law); (3) § 3-901 through § 3-907 of the Administrative Code (the Affiliated Not-for-Profits Law); (4) § 3-1101 through § 3-1107 of the Administrative Code (the Legal Defense Trusts Law); and (5) § 12-110(g)(2) of the Administrative Code (the Annual Disclosure Law). (b) Definitions. "Board" means the Conflicts of Interest Board. "Board Rules" means the rules of the Conflicts of Interest Board, as set forth in Title 53 of the Rules of the City of New York. "Day" means a calendar day. When the last day of a time period is a Saturday, Sunday, or public holiday, the time period will run through the end of the next business day. "Enforcement attorney" means an attorney prosecuting an enforcement action on behalf of the Board. "OATH" means the New York City Office of Administrative Trials and Hearings. "OATH Rules" means OATH's Rules of Practice, as set forth in Title 48 of the Rules of the City of New York. "Respondent" means a person or firm alleged to have violated a law identified in subsection (a) of this section. (Added City Record 8/30/2019, eff. 9/29/2019; amended City Record 2/2/2024, eff. 3/3/2024)

53 RCNY § 2-02 Notices of Probable Cause and Pre-Hearing Procedures.

§ 2-02 Notices of Probable Cause and Pre-Hearing Procedures. (a) Notice of Initial Determination of Probable Cause. For the purposes of Section 2603(h)(1) of the Charter, the Board will commence an enforcement action by serving a Notice of Initial Determination of Probable Cause by first class mail to the respondent's last known residential address or actual place of business. (b) Response to the Notice of Initial Determination of Probable Cause. (1) For the purposes of Section 2603(h)(1) of the Charter, the respondent has 20 days from the date of service to submit a written response to the Notice of Initial Determination of Probable Cause ("Notice") or request an extension. The response is an opportunity to explain, rebut, or provide information concerning the factual or legal allegations in the Notice. The Board will not consider requests for discovery of evidence before it files a petition at OATH. (2) Upon oral or written request within 20 days from the date of service of the Notice, the respondent will be granted a 30-day extension within which to submit a written response. Upon oral or written request made prior to the expiration of the first extension, the respondent may be granted a second 30-day extension for good cause shown, including, but not limited to, ongoing settlement negotiations. Any further extensions must be requested in writing to the Board and will be granted only in exigent circumstances. (3) For the purposes of Section 2603(h)(2) of the Charter: (i) If the respondent submits a substantive written response to the Notice, the Board will review the response to determine whether there remains probable cause to believe that any alleged violation occurred and will either dismiss the enforcement action or sustain its initial determination of probable cause in whole or in part. (ii) If the respondent does not submit a written response to the Notice or submits only a general denial of the allegations in the Notice, the Board's initial determination of probable cause will be deemed sustained. (c) Sustaining probable cause. (1) If the Board sustains its initial determination of probable cause against a respondent who is entitled to disciplinary rights as described in Section 2603(h)(2) of the Charter, the Board will notify the respondent's employing City agency in writing of the alleged facts and violations. (i) If the agency does not pursue disciplinary action against the respondent, the Board will commence formal proceedings against the respondent. (ii) If the agency pursues disciplinary action against the respondent, the Board may resolve the enforcement action by a joint settlement agreement with the respondent and agency or commence formal proceedings against the respondent. (2) If the Board sustains its initial determination of probable cause against a respondent who is not entitled to disciplinary rights as described in Section 2603(h)(2) of the Charter, the Board will file a Petition at OATH against the respondent pursuant to 53 RCNY § 2-03(b)(1). (d) Representation by an attorney or other person. (1) If the respondent chooses to be represented by an attorney or any other person, the representative appearing for the respondent must submit a written and signed Notice of Appearance to the Board. The appearance of a member in good standing of the bar of a court of general jurisdiction of any state or territory of the United States will be indicated by the designation "Attorney for (person represented)." The appearance of any other person will be indicated by the designation "Representative for (person represented)." The Board will not accept a response from or discuss the details of an enforcement action with any attorney or other person who has not submitted a Notice of Appearance. (2) To withdraw from representation, the representative must submit a written notice of withdrawal to the Board, signed by the respondent or otherwise explaining the reason for withdrawal. An attorney who has submitted a Notice of Appearance may withdraw from representation only with consent of the respondent or when other cause exists, as delineated in the applicable provisions of the New York Rules of Professional Conduct. (e) Stay of an enforcement action. To obtain a stay of an enforcement action, the respondent must submit a written request to the Board for its review and approval. After the service of the Petition pursuant to 53 RCNY § 2-03(b)(1), the OATH Rules govern the procedures for a stay. (f) Settlement. (1) At any time after the service of the Notice of Initial Determination of Probable Cause, an enforcement action may be resolved by settlement agreement in the form of a Public Disposition or Public Warning Letter. (i) A Public Disposition must include an admission of the relevant facts; an acknowledgment that the admitted conduct violated a specific provision of a law identified in 53 RCNY § 2-01(a); and a penalty that addresses the admitted conduct. (ii) A Public Warning Letter must include a statement of relevant facts, and a description of each violation of a specific provision of a law identified in 53 RCNY § 2-01(a). (2) The language and penalty of the proposed settlement agreement will be negotiated between the enforcement attorney and the respondent or the respondent's representative, if applicable. If the respondent requests that the respondent's employing City agency be a party to the settlement, the respondent must submit a signed waiver of confidentiality to the Board to allow the enforcement attorney to discuss the proposed settlement agreement with such agency. (3) If the enforcement attorney and the respondent reach a proposed settlement agreement, it will be reduced to writing and signed by the respondent, the respondent's representative, if applicable, and a representative of the respondent's employing City agency, if applicable. Any monetary penalty to be paid to the Board is due upon signing unless otherwise specified in the proposed settlement agreement. Monetary penalty payments will be held by the Board in escrow until the proposed settlement agreement is fully executed by the Board. (4) After receiving the full payment of any monetary penalty to be paid to the Board, the enforcement attorney will present the proposed settlement agreement to the Board for its review and approval. (i) If the Board approves the proposed settlement agreement, the settlement agreement will be signed by the Board Chair. The fully-executed settlement agreement will be made public, but all underlying records, reports, memoranda, and files of the enforcement action will remain confidential in accordance with Section 2603(k) of the Charter. (ii) If the Board does not approve the proposed settlement agreement, the Board may direct the enforcement attorney to seek modification of the penalty or the language in the settlement agreement. The modified proposed settlement agreement must be reviewed and approved by the Board. (Added City Record 8/30/2019, eff. 9/29/2019; amended City Record 2/2/2024, eff. 3/3/2024)

53 RCNY § 2-03 Enforcement Hearings and Post-Hearing Procedures.

§ 2-03 Enforcement Hearings and Post-Hearing Procedures. (a) Designation of OATH. For the purposes of Section 2603(h)(2) of the Charter, and in accordance with Section 1048 of the Charter, the Board designates OATH to conduct hearings in accordance with the OATH Rules, except as otherwise provided by these rules. (b) Commencement of proceedings at OATH. (1) The Board will serve a Notice of Petition and Petition by certified mail, return receipt requested, and first class mail, to the respondent's last known residential address or actual place of business and to the respondent's representative, if applicable. After service, the enforcement attorney will file the Notice of Petition and Petition with OATH and will provide OATH with potential dates for a settlement conference and potential dates for a hearing. (2) After the conference and hearing dates have been scheduled at OATH, the enforcement attorney will serve a Notice of Hearing by certified mail, return receipt requested, and first class mail, to the respondent's last known residential address or actual place of business and to the respondent's representative, if applicable. (c) Ex parte communications. (1) After service of the Petition pursuant to 53 RCNY § 2-03(b)(1), the respondent, respondent’s representative, or any enforcement attorney may not communicate ex parte with any member of the Board or any attorney serving as counsel to the Board concerning the merits of the enforcement action, except as provided in paragraph (2) of this subdivision. (2) The respondent, respondent’s representative, or an enforcement attorney may communicate ex parte with members of the Board or an attorney serving as counsel to the Board with respect to ministerial matters involving the enforcement action; on consent of the opposing party; or if deemed necessary by the Board or by an attorney serving as counsel to the Board. (d) Answer. The respondent may serve and file a written answer to the Petition in accordance with the OATH Rules. The answer may contain specific responses, by admission, denial, or otherwise, to each allegation of the Petition and assert all affirmative defenses, if any. The respondent may include in the answer matters in mitigation. The answer must contain the full name, address, telephone number, and email address of the respondent. If the respondent is represented, the representative's name, address, telephone number and email address must also appear on the answer. The answer must be signed by the respondent or respondent's representative. The OATH Rules govern the procedures for a Notice of Appearance, withdrawal, or substitution of the respondent’s representative. (e) Settlement. At the OATH settlement conference, an enforcement action may be resolved by settlement agreement pursuant to 53 RCNY § 2-02(f). (f) Hearing. (1) The Board will have the burden of proof by a preponderance of the evidence. (2) The enforcement attorney will make an opening statement first, after which the respondent or respondent’s representative may make an opening statement. (3) The enforcement attorney will initiate the presentation of evidence. After the enforcement attorney has completed the presentation of the Board's evidence, the respondent or respondent’s representative may present evidence. The enforcement attorney may present rebuttal evidence. (4) The respondent or respondent’s representative will make a closing statement first, after which the enforcement attorney will make a closing statement. Written closing statements may not exceed 30 double-spaced pages. The order and length of the closing statements may be modified by the OATH ALJ on motion for good cause shown. (g) OATH report. After a hearing has been conducted, OATH will issue a confidential report of its recommended findings of fact and conclusions of law and its recommended disposition of the enforcement action. OATH will send the report, along with the original transcript of the hearing and all documents admitted into evidence, to the Board for review. OATH will send a copy of the report to the enforcement attorney and the respondent or respondent's representative, if applicable. (h) Comment on OATH report. Within 20 days from the date of the OATH report, each party may submit a comment to the Board, which may not exceed 30 double-spaced pages, to explain, rebut, or provide information concerning OATH's recommended findings of fact, conclusions of law, and disposition. If either party submits a comment, the opposing party may submit to the Board a response to such comment, which may not exceed 15 double-spaced pages, within 30 days from the date of the OATH report. Copies of all such submissions must be shared with the opposing party. The Board will only consider evidence admitted at trial. (i) Final review by the Board. For the purposes of Section 2603(h)(3) of the Charter, the Board will review the OATH report, along with the original transcript of the hearing and all documents admitted into the record, and any comments and responses to comments submitted to the Board pursuant to 53 RCNY § 2-03(h), to determine whether it has been proven by a preponderance of the evidence that the respondent violated a provision of a law identified in 53 RCNY § 2-01(a). In accordance with 53 RCNY § 2-03(c), any Board attorney involved in the prosecution of the enforcement action will not participate in the Board's final review. (j) Board order finding a violation. (1) If the Board determines that it has been proven by a preponderance of the evidence that the respondent violated a provision of a law identified in 53 RCNY § 2-01(a), the Board will issue an order stating its final findings of fact and conclusions of law and imposing a penalty, except, if the respondent is a current Member or employee of the New York City Council, the Board will issue an order stating its final findings of fact and conclusions of law and recommending a penalty to the New York City Council. The order will include notice of the respondent's right to appeal to the New York State Supreme Court. (2) All orders of the Board will be made public. The Board may also make the OATH report public as part of its order, but all other underlying records, reports, memoranda, and files will remain confidential in accordance with Section 2603(k) of the Charter. (3) The order will be sent by email or first class mail to the respondent's last known residential address or actual place of business and to the respondent's representative, if applicable. (4) If the order imposes a monetary penalty, payment is due to the Board within 30 days of the date of service. If the respondent does not pay the full monetary penalty amount, the Board will pursue all remedies, which may include garnishment of City wages or referral to the New York City Law Department for collection. (k) Board dismissal. If the Board determines that it has not been proven by a preponderance of the evidence that the respondent violated any provision of the laws identified in 53 RCNY § 2-01(a), the Board will issue a written decision that dismisses the enforcement action and states its final findings of fact and conclusions of law. The decision will be sent to the respondent and respondent's representative, if applicable, and will not be made public. All underlying records, reports, memoranda, and files will remain confidential in accordance with Section 2603(k) of the Charter. (Added City Record 8/30/2019, eff. 9/29/2019; amended City Record 2/2/2024, eff. 3/3/2024)

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-127043Fetched: 10/24/2026