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(a) A Respondent may present a defense based on sovereign or diplomatic immunity:
(1) in a written submission received no later than seven (7) business days before the hearing date stated on the summons, in which the Respondent may admit or deny the violation charged and the Tribunal will assign the matter to a Hearing Officer; or
(2) at a hearing orally or in writing, but only if an attorney or authorized representative of the Petitioner is present at the hearing or if the Respondent at that time consents to an adjournment of the hearing; or
(3) in a response submitted in any case in which adjudication by remote method is allowed pursuant to 48 RCNY § 6-10.
(b) Upon presentation of a defense based on sovereign or diplomatic immunity, the Hearing Officer must issue an order:
(1) adjourning the hearing for no less than thirty (30) and no more than sixty (60) days;
(2) setting forth in detail the violations alleged in the summons; and
(3) giving notice to the City entity charged with serving as the official liaison with foreign governments ("liaison") that the Respondent has presented a defense based on sovereign or diplomatic immunity, in which event the Tribunal will promptly serve such order to such liaison.
(c) After an adjournment is granted under subdivision (b), either party may request to extend the time period of the adjournment. The Hearing Officer must grant such request if it is accompanied by a written submission from the liaison indicating more time is necessary for the parties to resolve the matter.
(d) (1) At a hearing held following an adjournment granted pursuant to subdivision (b), the Hearing Officer must issue a determination whether or not the Respondent is entitled to sovereign or diplomatic immunity.
(2) If the Hearing Officer determines that the Respondent is entitled to sovereign or diplomatic immunity, he or she must dismiss the summons without a determination of the Respondent's liability.
(3) If the Hearing Officer rejects the defense of sovereign or diplomatic immunity, a hearing on the violation must be conducted pursuant to the rules governing hearings in this Chapter.
(Added City Record 7/8/2016, eff. 8/7/2016)
A written application to file a post-hearing agreement must be made jointly and with the consent of all the parties to a matter. Such applications must be made to the designated Deputy Commissioner of OATH, or his or her designee as approved by the Chief Administrative Law Judge. The post-hearing agreement will not amend the Hearing Officer's final written decision and when filed, will become part of the record.
(Added City Record 7/8/2016, eff. 8/7/2016)
Appendix A: Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York
Preamble
Terms used in these Rules are defined as follows:
(A) A "candidate" is a person seeking selection for or retention in public office by any public election, including primary and general elections and including partisan and nonpartisan elections. A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy or authorizes solicitation or acceptance of contributions.
(B) A "City administrative law judge" is an administrative law judge, hearing examiner, hearing officer or any other person who conducts or participates in the decision of adjudicative proceedings within a City tribunal. The term "City administrative law judge" does not include members of boards or commissions. The term "City administrative law judge" also does not include the head of an agency, unless the agency is a City tribunal.
(C) A "City tribunal" is any City agency or any unit within a City agency that is authorized or charged by law with responsibility for conducting adjudicative proceedings. "City tribunals" to which these Rules are applicable include the tribunals constituting or within the Department of Consumer Affairs, the Department of Finance, the Department of Health and Mental Hygiene, the Environmental Control Board, the Office of Administrative Trials and Hearings, the Police Department, the Tax Appeals Tribunal, the Taxi and Limousine Commission and any similar agencies or units.
(D) "Closely related" means that the relationship between one person and another is that of parent and child; siblings; grandparent and grandchild; great-grandparent and great-grandchild; first cousins; or aunt/uncle and niece/nephew.
(E) A "domestic partner" is a member of a domestic partnership registered pursuant to Administrative Code § 3-240 or in accordance with Executive Order 123 of 1989 or Executive Order 48 of 1993 or a member of a marriage that is not recognized by the State of New York or of any domestic partnership or civil union entered into in another jurisdiction.
(F) "Economic interest" means ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, provided that:
(1) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities or in the manager of such fund unless the City administrative law judge participates in the management of the fund or a proceeding pending or impending before the City administrative law judge could substantially affect the value of the interest;
(2) service as an officer, director, advisor or other active participant in an educational, religious, charitable, cultural, fraternal or civic organization, or service by a spouse, domestic partner or child as an officer, director, advisor or other active participant in any such organization does not create an economic interest in securities held by that organization;
(3) a deposit in a financial institution, the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization, unless a proceeding pending or impending before the City administrative law judge could substantially affect the value of the interest;
(4) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the City administrative law judge could substantially affect the value of the securities;
(5) a "de minimis" interest is one so insignificant that it could not raise reasonable questions as to a City administrative law judge's impartiality.
(G) An "ex parte communication" is a communication that concerns a pending or impending proceeding before a City administrative law judge and occurs between the City administrative law judge and a party, or a representative of a party, to the proceeding without notice to and outside the presence of one or more other parties to the proceeding.
(H) "Fiduciary" includes such relationships as executor, administrator, trustee and guardian.
(I) "Impartial" means without bias or prejudice in favor of, or against, particular parties or classes of parties, and with an open mind in considering issues that may come before the City administrative law judge.
(J) An "impending proceeding" is one that has not yet been commenced but is reasonably foreseeable and not merely hypothetical.
(K) "Integrity" denotes probity, fairness, honesty, uprightness and soundness of character; it also denotes a firm adherence to these Rules and their standard of values.
(L) To "know" is to have actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
(M) A "member of the City administrative law judge's family" is a spouse, domestic partner, child, grandchild, parent, grandparent, sibling or any other person with whom the City administrative law judge maintains a comparable relationship.
(N) "Nonpublic information" is confidential information of which a City administrative law judge becomes aware as a result of his or her judicial duties and which is not otherwise available to the public.
(O) A "pending proceeding" is one that has begun but not yet reached its final disposition.
(P) A "political organization" is a political party, political club or other group, the principal purpose of which is to further the election or appointment of candidates to political office.
(Q) "Primarily employed by the City" means employed on a full-time basis or the equivalent or regularly scheduled to work the equivalent of 20 hours per week at one or more City tribunals.
(R) "Require." Where these Rules prescribe that a City administrative law judge "require" certain conduct of others, the term "require" means that a City administrative law judge is to exercise reasonable direction and control over the conduct of those persons subject to his or her direction and control.
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