A.
In the event that the Board of Ethics convenes a hearing pursuant to § 30-9G(1) above or any other applicable provision of law, the following procedures shall be followed:
(1)
All concerned parties shall be given reasonable notice of such hearing,
which notice shall include:
(a)
A statement of the time, place and nature of the hearing.
(b)
A statement of the legal authority and jurisdiction under which
the hearing is to be held.
(c)
A reference to the particular sections of laws, ordinances,
statutes, rules or resolutions involved, wherever possible.
(d)
A short and plain statement of matters asserted.
(e)
Information concerning circumstances under which an adjournment
may be granted and the result of failure to appear for a scheduled
hearing or proceeding.
(f)
Information for the parties and their representatives of the
right of each party to be represented to testify, to produce witnesses,
to present documentary evidence and to examine opposing witnesses
and evidence.
(2)
Upon application of any party a more definite and detailed statement
shall be furnished whenever the Board of Ethics finds that the statement
is not sufficiently definite or not sufficiently detailed. The finding
of the Board of Ethics as to the sufficiency of the definitiveness
or detail of the statement or its failure or refusal to furnish a
more definite or detailed statement shall not be subject to judicial
review. Any statement furnished shall be deemed in all respects to
be a part of the notice of hearing.
(3)
All parties shall be afforded an opportunity to present a written
argument on issues of law and an opportunity to present evidence in
such argument of issues of fact; provided, however, that nothing contained
herein shall be construed to prohibit an agency from allowing parties
to present oral argument within a reasonable time. In fixing the time
and place for hearings and oral arguments, the convenience of the
parties and witnesses, the subject matter of the hearings and the
public welfare sought to be protected shall be considered.
B.
Unless precluded by statute, local law or ordinance, disposition
may be made of any adjudicatory proceeding by stipulation, agreed
settlement, consent order, default or other informal method.
A.
The record in the adjudicatory proceedings shall include:
(1)
All notices, pleadings, motions and intermediate rulings.
(2)
Evidence presented.
(3)
A statement of matters officially noticed, except matters so obvious
that a statement of them would serve no useful purpose.
(4)
Questions and offers of proof, objections thereto and rulings thereon.
(5)
Proposed findings and exceptions, if any.
(6)
Any findings of fact, conclusions of law or other recommendations
made by the Board of Ethics.
(7)
Any decision, determination, opinion, order or report rendered.
B.
The Board of Ethics shall make a complete record of all adjudicatory
proceedings conducted before it. For this purpose, unless otherwise
required by statute, the Board of Ethics may use whatever means it
deems appropriate, including but not limited to the use of stenographic
transcriptions or electronic recording devices. Upon request made
by any party upon the Board of Ethics within a reasonable time but
prior to the time for the commencement of judicial review giving notice
of decision, determination, opinion or order, the Board of Ethics
shall prepare the record, together with any transcript of proceedings,
within a reasonable time and furnish a copy of the record and transcript
or any part thereof to any party as he or she may request. Except
when prohibited by law, the Board of Ethics is authorized to charge
not more than its actual cost for the preparation and furnishing of
such record or transcript, or any part thereof, or the rate specified
in the contract between the Board of Ethics and a contractor, if prepared
by a private contractor.
C.
Findings of fact shall be based exclusively on the evidence and on
matters officially noticed.
A.
Irrelevant or unduly repetitious evidence or cross-examination may
be excluded. Except as otherwise provided by statute, the burden of
proof shall be on the party who initiated the proceeding. No decision,
determination or order shall be made except upon consideration of
the record as a whole or such portion thereof as may be cited by any
party to the proceeding and supported by and in accordance with substantial
evidence. Unless otherwise provided by statute, the Board of Ethics
need not observe the rules of evidence observed by courts but shall
give effect to the rules of privilege recognized by law. Objections
to evidentiary offers may be made and shall be noted in the record.
Subject to these requirements, the Board of Ethics, for the purpose
of expediting hearings and when the interest of parties will not be
substantially prejudiced thereby, may adopt procedures for the submission
of all or part of the evidence in written form.
B.
All evidence, including records and documents in the possession of
the Board of Ethics of which it desires to avail itself, shall be
offered and made a part of the record, and all such documentary evidence
may be received in the form of copies or excerpts or by incorporation
by reference. In case of incorporation by reference, the materials
so incorporated shall be available for examination by the parties
before being received in evidence.
C.
A party shall have the right of cross-examination.
D.
Official notice may be taken of all facts of which judicial notice
could be taken and of other facts within the specialized knowledge
of the Town of Smithtown or Board of Ethics. When official notice
is taken of a material fact not appearing in the evidence in the record
and of which judicial notice could not be taken, every party shall
be given notice thereof and shall on timely request be afforded an
opportunity prior to decision to dispute the fact or its materiality.
The Board of Ethics, exercising discretion, may elect to conduct
any hearing or proceeding under this chapter ex parte after a showing
that the party who is the subject of the hearing and its representative
of record have been notified by certified mail of the pending hearing
or proceeding or otherwise served with notice of a hearing. The party
who is the subject of the hearing shall at no time be deprived of
the opportunity to appear. However, if a party has been served with
two written notices of a hearing and fails to appear after each notice,
the Board of Ethics, upon proof of service, shall have the authority
to proceed with the scheduled hearings. Proof of service shall consist
of a signed certified mail receipt or affidavit.
All hearings and proceedings under this chapter shall be conducted
by the Board of Ethics sitting en masse or, at the discretion of the
Chairman of the Board of Ethics, may be conducted by the Chairman
of the Board of Ethics, hereinafter referred to as "hearing officer,"
who shall have the power and authority of presiding officers or hearing
officers as defined by the State Administrative Procedure Act (SAPA)
and any other pertinent statute, local law, ordinance or resolution
and regulations promulgated therefrom.
A hearing officer is authorized to do the following in any hearing
or proceeding to which he or she is assigned.
A.
Administer oaths and affirmations.
B.
At the request of any party, sign and issue subpoenas in the name
of the Board of Ethics requiring the attendance and giving of testimony
by witnesses and the production of books, papers, documents and other
evidence. Subpoenas shall be regulated by the Civil Practice Law and
Rules. Nothing herein contained shall effect the authority of an attorney
for a party to issue such subpoenas under the provisions of the Civil
Practice Law and Rules.
C.
Provide for the taking of testimony by deposition.
D.
Regulate the course of the hearing, set the time and place for continued
hearings and the time for filing of briefs and other documents.
E.
Direct the parties to appear and confer and to consider the simplification
or settlement of the issues by consent of the parties.
F.
Prepare findings of fact and recommendations.
[Amended 10-3-2023 by L.L. No. 14-2023]
A.
At the close of the hearing or proceeding, the hearing officer, if
said hearing officer is not the Board of Ethics sitting en masse,
shall make findings of fact and a recommendation as to the appropriate
penalty or fine to be assessed or any other action to be taken. The
proposed findings of fact and the recommendation shall be transmitted
to the Board of Ethics en masse for approval and simultaneously mailed
or delivered to the parties to the proceeding. The parties shall have
an opportunity to respond, in writing, in the form of a brief to the
findings of fact and the recommendation of the hearing officer, and
such written response shall be directed to the Board of Ethics for
its consideration within 15 days after the submission of the hearing
officer's recommendation to the Board of Ethics. In their brief submitted
in response to the findings of fact and the recommendation of the
hearing officer, the parties may not submit or discuss evidence which
is not a part of the official record of the hearing or proceeding.
The Board of Ethics shall expeditiously act on the findings of fact
and the recommendation. The Board of Ethics may affirm or reverse
the findings of fact and the recommendation of the hearing officer
in whole or in part, or it may remand and/or dismiss the proceeding
based upon the record produced at the hearing.
[Amended 6-9-2009 by L.L. No. 1-2009]
B.
In the event that the Board of Ethics sits or presides at any hearing or proceeding en masse, then the provisions of § 30-21A above shall not be applicable. In that event, the Board of Ethics shall make findings of fact; render a decision; and assess an appropriate penalty or fine, or take any other appropriate action, based upon the record.
[Amended 6-9-2009 by L.L. No. 1-2009]
C.
The assessment of civil penalties under the applicable law and procedures
shall not preclude the referral of an appropriate violation to a prosecutor
for a prosecution of criminal charges, except where the violation
is imposed under the General Municipal Law § 812, Subdivision
6, for failure to file or a false filing of an annual statement.
D.
If the alleged violation has been established and the Board determines
in light of all the circumstances that assessment of the civil penalty
is not appropriate or if the imposition of civil penalties is not
otherwise authorized by law, the Board of Ethics, in its discretion,
may take such other action as appropriate, including but not limited
to a written admonition or a recommendation that disciplinary action
be taken or a referral to a prosecutor for prosecution of criminal
charges. The Board of Ethics shall forward a copy of such admonition
or recommendation for disciplinary action to the Town Board.
[Amended 6-9-2009 by L.L. No. 1-2009]
E.
A final decision, determination or order adverse to a party in an
adjudicatory proceeding of the Board of Ethics shall be in writing
or stated in the record and shall include findings of fact and conclusions
of law or reasons for the decision, determination or order. Findings
of fact, if set forth in statutory language, shall be accompanied
by a concise and explicit statement of the underlying facts supporting
the findings. If in accordance with the Board of Ethics' rules a party
submitted proposed findings of fact, the decision, determination or
order shall include a ruling upon each proposed finding. A copy of
the decision, determination or order shall be delivered or mailed
forthwith to each party, the attorney of record and the Town Board.
F.
The Board of Ethics shall maintain an index by name and subject matter
of all written final decisions, determinations and orders rendered
by the Board of Ethics in adjudicatory proceedings. Such index and
the text of any such written final decision, determination or order
with a finding of a violation of this Code of Ethics shall be available
for public inspection. The Board of Ethics may delete from any such
index, decision or determination any information that, if disclosed,
would constitute an unwarranted invasion of personal privacy under
the provisions of Subdivision 2 of § 89 of the Public Officers
Law and may also delete at the request of the Town Board all references
to secrets or privileged or confidential matters that, if so disclosed,
would cause substantial injury to the Town of Smithtown. Information
which would reveal confidential material protected by federal, state
or local law, rule, ordinance or regulation shall be deleted from
any such index, decision, determination or order.
[Amended 6-9-2009 by L.L. No. 1-2009]
