N.Y. Comp. Codes R. & Regs. tit. 9 § 6216.3

Current through Register Vol. 46, No. 43, October 23, 2024

Section 6216.3 - Alternative dispute resolution

(a)Purpose and overview.

(1) Whenever a final determination of a formal complaint is not made within 90 days of the date of acceptance as established in section 6216.2(c)(3) of this Part, or any other longer agreed upon time period, the SBOE shall refer the formal complaint to an independent, alternative dispute resolution (ADR) agency. Such hearings and determinations shall be conducted by the alternative dispute resolution agency pursuant to regulations as outlined below. Such agency shall have 60 days, from the expiration of the original 90 day time period, or any other longer agreed upon time period, to make a final determination. The SBOE shall contract, pursuant to subdivision 4 of section 3-100 of article 3 of the Election Law with one or more such alternative dispute resolution entities for this specific purpose.

(b)Referral to ADR agency.

(1) As soon as the SBOE has exceeded the 90 calendar day period as established in section 6216.2(c)(3) of this Part, or any other longer agreed upon time period, the complaint will be forwarded immediately to the administrative office of the ADR agency selected by the SBOE from those agencies under contract with the SBOE to provide such services.

(2) The materials forwarded 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;

(iv) the complaint and written response;

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

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

(vii) contact information for each party which will include addresses, phone numbers, fax numbers and e-mail, if available; and

(viii) any other information relevant to the complaint, including any specific requirements for arbitration.

(c) Case processing.

(1) The ADR agency shall conduct an expedited cost-effective process where complaints are decided in a timely manner, but not at expense of a full and complete investigation.

(2) The ADR agency shall review the materials submitted by the SBOE, and forward a copy of the materials to the appointed arbitrator. Within a period of 15 to 20 calendar days after receipt of the complaint and supporting documentation, the ADR agency and the arbitrator will schedule the hearing in a neutral, convenient, and accessible location to the complainant. Upon request of either party, the arbitrator 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.

(3) The ADR agency shall forward the following information to the parties:

(i) date of arbitration;

(ii) location of arbitration;

(iii) appointed arbitrator, and summary of arbitrator vitae when requested;

(iv) any disclosure statement the arbitrator may deem relevant.

(4) The parties will have seven calendar days to object to the arbitrator on the grounds of a prior relationship or due to another reason deemed sufficient by the ADR agency and the SBOE. The parties will also have seven calendar days to make a request for the arbitrator to subpoena another party/parties to attend the arbitration.

(5) An arbitration shall be held, giving the parties full opportunity to present evidence and testimony.

(6) The arbitrator shall analyze all materials relevant to the complaint, and develop a written statement clearly explaining his/her decision and a remedy to the complaint, if applicable.

(7) The arbitrator's decision shall be advisory in nature, not constituting a final and binding award. The arbitrator will forward his/her written arbitration decision to the ADR agency, which will forward a copy to both parties, as well as the State Board.

(8) The entire process from complaint forwarding to the ADR agency, to dissemination of the decision to the parties will take no more than 60 calendar days, with the exception of an adjournment of the case beyond the 60-day time frame as agreed to by the parties. Adjournments will be determined by the arbitrator.

(9) The procedures and relative elements of the Arbitration Program will be subject to review, at least annually.

(d) Arbitration remedies.

(1) Recommended remedies available pursuant to arbitration 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 recommendation directing 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 recommended 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 decision of the arbitrator shall be construed to impair or supersede the right of an aggrieved party to seek a judicial remedy. The decision of the arbitrator must provide notice to all parties of the provisions of this subdivision.

(e) Costs of conducting arbitration.

(1) The SBOE shall be responsible for the costs of administering arbitrations as the same are established in the agreement between the SBOE and the ADR agency entered into pursuant to subdivision 4 of section 3-100 of article 3 of the Election Law. This shall not include any expenses of any complainant or respondent to the arbitration.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 6216.3

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