Notices of Probable Cause and Pre-Hearing Procedures.
53 RCNY § 2-02
in effect§ 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)
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/0-0-0-86670Fetched: 10/24/2026