N.Y. Comp. Codes R. & Regs. tit. 9 § 6216.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 6216.2 - Procedure in administrative complaint proceedings

(a)Initiation of proceeding and informal complaints.

(1) A complaint alleging that there is a violation (including a violation which has occurred or is occurring or is about to occur) of any provision of title III of the Federal Help America Vote Act of 2002 (HAVA), may be made in person, by telephone, or in writing. Such complaints may be made to the appropriate local board of elections or to the State Board of Elections (the "SBOE"). A toll-free number, 1-800-458-3453, is available for telephone calls to the SBOE for making a complaint. Complaints shall be addressed by election officials expediently and informally whenever possible. The SBOE shall make accessible complaint forms available on its website.

(b)Formal complaints.

(1) All formal complaints shall be filed with the SBOE. All formal complaints shall be written, signed and sworn by the complainant. The complainant may use the complaint form promulgated by, and available from, the SBOE. The SBOE or a local board of elections shall assist any person with a disability who requests assistance to file a complaint. Alternatively, the complainant may use any other writing containing the information solicited by the prescribed form. Complaints raising similar questions of law and/or fact may be consolidated by the SBOE.

(2) All formal complaints shall contain the following information:

(i) the full name, mailing address, telephone number and e-mail address if applicable, of the complainant;

(ii) identification of the local or state official(s) or entity/entities (by name or by reference to the office) who is alleged to have violated title III (the "respondent");

(iii) a description of the violation of title III that is alleged to have occurred, is occurring, or is about to occur, sufficient to apprise the SBOE and the respondent(s) of the nature and specifics of the complaint;

(iv) an indication whether the complainant requests a hearing; and

(v) the signature of the complainant sworn to under oath or affirmation before a notary public or commissioner of deeds.

(3) A complaint shall be based upon personal knowledge and belief and be reasonably specific as to times, places and names of witnesses or parties relevant to the matters complained of. If a complaint is based upon information and belief, the complainant shall state the source of the information and belief. Copies of all documentary evidence available to the complainant shall be attached to the complaint. Evidence deemed by the complainant to be of a confidential nature shall be identified as such, and contain an explanation as to why said evidence should be so deemed.

(4) The burden of proof applied to all formal complaints shall be a preponderance of the evidence.

(5) A complaint shall be filed within 120 days after the occurrence of the actions or events that form the basis for the complaint.

(6) Complaints must be filed, either in person or by mail, with the New York State Board of Elections, Counsel's Office, 40 North Pearl Street, Suite 5, Albany, NY 12207-2729.

(7) A complainant may withdraw a complaint at any time by providing written notice to the SBOE. The SBOE shall send written notice of the withdrawal to respondents.

(c)Processing of complaints.

(1) Upon receipt of a formal written complaint, the SBOE, through its Counsel's Office, shall within two business days assign a complaint number to the complaint, review the complaint for completeness, and consolidate, if it deems appropriate, any complaints that arise out of the same actions or events, raise common questions of law or fact, or involve the same respondents.

(2) If the complaint is not properly completed or lacks the information necessary to process the complaint, the SBOE, through its Counsel's Office, shall within three business days notify the complainant that he/she must re-submit a corrected or completed complaint in order for it to be accepted for filing.

(3) Upon receipt of a completed or corrected complaint, as determined by its Counsel's Office, the SBOE shall accept the complaint for filing, and shall issue a notice of acceptance of complaint, to notify the complainant. The SBOE shall notify the complainant of the tracking number assigned to the complaint and the date upon which the complaint was accepted for filing. The time frame in which a determination must be issued by the SBOE commences in the date which the notice of acceptance of complaint is issued by the Counsel's Office. Upon accepting the complaint for filing, the SBOE shall forward a copy of the accepted complaint to the Chief Enforcement Counsel.

(4) The SBOE shall send a copy of a complaint that is accepted for filing to the respondent named or referred to in the complaint. The respondent must submit a written response to the SBOE within 10 business days after receipt of both the copy of a complaint that is accepted for filing and a copy of the notice of acceptance of complaint. As an option, the respondent may also include a written request for a hearing if one was not already requested by the complainant. The SBOE shall then serve the written response on the Complainant. All correspondence required to be submitted to the State Board of Elections pursuant to this paragraph must contain the complaint number and be submitted to: The New York State Board of Elections, Counsel's Office, 40 North Pearl Street, Suite 5, Albany, NY 12207-2729.

(d)Hearings on complaints.

(1) Upon the written request of the complainant or respondent, there shall be a hearing on the record, unless prior to the hearing, the SBOE, in accordance with subdivision 4 of section 3-100 of article 3 of the Election Law, sustains the formal complaint as being uncontested. Any party to the hearing may purchase a transcript of such hearing.

(2) The complainant or respondent may withdraw his/her initial request for a hearing at any time. The parties may also agree, in the alternative, to resolve the complaint through an informal conference.

(3) The SBOE, Counsel's Office, shall schedule a hearing if one has been requested by either the complainant or respondent, or if it is deemed by the SBOE, in accordance with subdivision 4 of section 3-100 of article 3 of the Election Law, as necessary to resolve the complaint. The SBOE shall attempt to schedule the hearing at a time convenient to all parties.

(4) The SBOE, Counsel's Office, shall provide final written notice of the date, time and place of the hearing to the complainant and respondent, by certified mail, return receipt requested, or by commercial courier service with proof of delivery, not less than five business days prior to the date of the hearing.

(5) Hearings shall be conducted by a panel of two commissioners of the SBOE who are representatives of the two major parties or senior staff members as selected by the commissioners of that party.

(6) Hearings shall be conducted at the SBOE offices located at 40 North Pearl Street, Suite 5, Albany, NY 12207-2729. An alternate location may be selected when deemed necessary upon agreement of the hearing panel. Upon request of either party, the panel may conduct a hearing by telephone or, where available, interactive video. When such telephonic or video appearances are made, all due effort shall be made to not impose any undue burden upon any party appearing in person.

(7) The complainant shall have an opportunity to present witnesses, documents or other evidence relevant to the allegations in the complaint, and to argue his/her position. The respondent shall also be given an opportunity to present witnesses, documents or other evidence and to argue his/her position in response to the complaint. The hearing panel may ask questions of both parties to elicit information relevant to a determination of the complaint. Any witnesses who testify shall be under oath. The hearing panel can request written materials or oral presentations by persons who are not parties to the matter if the panel determines that such materials or presentations would be helpful in its review of the complaint.

(8) The following rules of evidence shall substantially be followed in the admission of testimony and exhibits in all hearings:

(i) Any oral or documentary evidence may be received, but the hearing panel shall, as a matter of policy, exclude irrelevant, immaterial or unduly repetitious evidence. Subject to these requirements and subject to the right of any party to cross examine, any testimony may be received in written form.

(ii) Documentary evidence in the form of copies may be received at the discretion of the hearing panel, if the original is not found readily available. Upon request by any party an opportunity shall be granted to compare the copy with the original, which shall be subject to production by the person offering such copies.

(iii) Cross examination may be conducted as the hearing panel shall find to be required for a full and true disclosure of the facts.

(iv) Any exhibit admitted as evidence by the hearing panel in a prior hearing may be offered as evidence in a subsequent hearing and admitted as an exhibit in such hearing. The hearing panel shall employ its experience, technical competence, and specialized knowledge in evaluating the evidence presented at the hearing for the purpose of making its finding of facts and arriving at a final determination.

(9) The hearing may be recessed and continued to a later time or day, at the discretion of the hearing panel.

(10) All hearings shall be electronically recorded, and a record of the proceedings shall be compiled by the SBOE. The record of the proceedings shall include:

(i) the electronic recording of the hearing;

(ii) a transcript of the hearing on the record if such a hearing was so requested in writing by the complainant or respondent;

(iii) any documents or other tangible items introduced into evidence at the hearing, and a list of same in the order in which they were introduced;

(iv) the complaint and written response;

(v) all notices and correspondence between the SBOE, the complainant and the respondent; and

(vi) the results of any investigation conducted by SBOE staff in response to the complaint.

(e)Determinations.

(1) If the hearing panel does not agree to sustain the complaint, the formal complaint shall be deemed dismissed and that shall constitute the determination of the panel.

(2) If no hearing has been requested in writing by the complainant or respondent, and if a hearing was not deemed by the SBOE, in accordance with subdivision 4 of section 3-100 of article 3 of the Election Law, as necessary to resolve the complaint, then a panel of two commissioners of the SBOE who are representatives of the two major parties or senior staff members as designated by the commissioners of that party shall make a determination based on the written submissions of the complainant and respondent and any other relevant information obtained by the SBOE.

(3) The determination of a panel will be final unless changed by the SBOE pursuant to subdivision 4 of section 3-100 of article 3 of the Election Law, within 90 days of the notice of acceptance of complaint being issued by the Counsel's Office. A final determination shall be filed and published by the SBOE within 90 days of the notice of acceptance of complaint being issued by the Counsel's Office, unless the complainant agrees to a longer period of time. When a violation has been found, the final determination shall include an appropriate remedy for any violation of title III of the Help America Vote Act of 2002 (HAVA) found by the SBOE. A final determination dismissing a formal complaint may be filed by any one member of the panel. Filing and publication shall occur upon posting of the final determination on the SBOE web site - www.elections.state.ny.us. The SBOE shall mail a copy of the final determination to the complainant and respondent.

(4) The final determination shall include findings of fact regarding the alleged violations, based on a preponderance of the evidence standard, and shall specify an appropriate remedy if a title III violation is found. If no violation is found, then the final determination shall dismiss the complaint. Any complaint that is not timely filed or does not allege a violation of title III of HAVA that has occurred, is occurring or is about to occur with regard to a Federal election may be dismissed by the SBOE in a written determination.

(5) The SBOE, Counsel's Office shall provide copies of the final determination to the complainant and respondent.

(f)Remedies.

(1) Remedies available under this procedure shall be directed to the improvement or correction of election procedures governed by title III and must be consistent with State law. Remedies may consist of a directive to the local or State official(s) or entity/entities to undertake or to refrain from certain actions or to alter certain procedures pertaining to Federal elections.

(2) A remedy provided for under this rule may not include any award of damages or payment of costs, penalties or attorneys fees, and may not include the invalidation of any election or a determination of the validity of any ballot or vote.

(3) No provision of this section shall be construed to impair or supersede the right of an aggrieved party to seek a judicial remedy including a judicial remedy concerning any final determination made pursuant to the alternative dispute resolution procedure as outlined in section 6216.3 of this Part. The SBOE shall provide notice to all complainants of the provisions of this subdivision.

(g)Costs of conducting hearings.

(1) The SBOE shall be responsible for the costs of administering hearings. This shall not include any expenses of any complainant or respondent to the hearing.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 6216.2

Amended New York State Register October 18, 2017/Volume XXXIX, Issue 42, eff. 10/18/2017