Rule 7-02 Board Determinations.
(a) Determination that complaint lacks merit. Following an investigation, the Board may determine that a complaint is lacking in merit or that violations of the Charter, Act and these Rules have not been substantiated and dismiss the complaint or terminate the investigation.
(b) Participant not eligible for public funds. Following an investigation, the Board may make a determination that a participant is ineligible to receive public funds. In the event of a determination of ineligibility, the Board will send written notification to the participant and the participant may request reconsideration of such determination pursuant to Rule 5-02(a).
(1) If the Board has reason to believe that a violation of a law or rule over which the Board has jurisdiction has occurred, and/or that a participant must repay public funds to the Board, the Board shall notify the candidate and treasurer in writing of the alleged violation and proposed civil penalty and/or of the amount of the alleged public funds repayment obligation. Such notice shall:
(i) set forth in detail the legal basis for the Board's reason to believe there is a violation of a law or rule over which the Board has jurisdiction and/or a repayment obligation;
(ii) notify the candidate and treasurer of the opportunity to submit information and documentation for the Board's consideration within a reasonable time period to be specified in such notice; and
(iii) notify the candidate and treasurer of the opportunity to appear before the Board or its designee at a hearing to contest the alleged violation and proposed civil penalty and/or the alleged public funds repayment obligation.
(2) Unless specifically notified to the contrary by the Board, the opportunity to submit information and documentation described in the notice shall be the only such opportunity, and any information and documentation that is not timely received by the Board may, at the Board's sole discretion, be disregarded.
(3) The notice shall inform the candidate and treasurer that hearings are conducted in accordance with the requirements for adjudications contained in section 1046 of the Charter unless such procedures are waived by the candidate or principal committee.
(4) Following this opportunity to submit information and documentation, consideration of any information and documentation submitted, and consideration of any appearance before the Board or its designee, the Board may determine the amount of civil penalties for any violations it determines to have occurred and/or the amount of public funds repayment obligation, and shall provide notice setting forth in detail the legal basis of the Board's determination. If these amounts, as determined by the Board, are not paid by the payment deadline set forth in the notice, they may be sought through appropriate enforcement action or, in the case of civil penalties, by deduction from any public funds otherwise due for any election.
(d) Conciliation. (1) Upon review of respondent's submission, or if the Board otherwise has reason to believe that a violation of a law or rule over which the Board has jurisdiction has occurred, the Board may initiate conciliation procedures. For this purpose the Board may conduct a conciliation conference. Notice of the conference shall be served on those parties whose attendance the Board considers necessary.
(2) If terms of conciliation which are satisfactory to the parties are reached, a conciliation agreement shall be signed by the parties subject to its terms and by the Board's Executive Director, on the Board's behalf. This agreement may require payment of appropriate civil penalties for violations as determined by the Board. If the amounts to be paid as provided for in the agreement are not paid, they may be sought through appropriate enforcement action or by deduction from any public funds otherwise due for any election. Upon execution of such an agreement, the Board shall administratively close the case. Conciliation agreements shall be binding on all parties. In the event the Board has reason to believe that terms and conditions of the agreement have not been complied with, or if new facts are brought to the Board's attention, the Board may, in its discretion, re-open the case and/or bring an appropriate enforcement proceeding.
(3) Conciliation procedures are not part of the Board's standard practices, but may be appropriate to address novel issues and are conducted solely at the discretion of the Board.
(f) Adjudications in accordance with section 1046 of the Charter. (1) Adjudications pursuant to this rule shall be conducted by one or more hearing officers. The Board, at its sole discretion, may designate one or more members of the Board and/or an administrative law judge to act as hearing officers. One or more members of the Board's staff may provide legal and procedural advice to the hearing officer and to the Board, subject to the direction of the hearing officer(s).
(2) The Board shall commence an adjudication pursuant to this rule by serving a notice containing a statement of the nature of the proceeding, the legal authority and jurisdiction under which the hearing is to be held, and a short and plain statement of the matters to be adjudicated, including reference to the particular sections of the Charter, Act, and these Rules involved.
(3) The Board shall provide written notice of the time and place of the hearing to the candidate and treasurer.
(4) The candidate and treasurer must provide to the hearing officer(s) and Board staff a substantive written response to the notice stating the defense to the notice at least two weeks prior to the date of the hearing. The written response to the notice may include affidavits or affirmations, documentary exhibits, or other evidentiary material in rebuttal of the notice, and may also be accompanied by a memorandum of law.
(5) The names and contact information of all persons wishing to present testimony on the law or the facts at the hearing, including any witnesses to be examined, must be provided to the hearing officer(s) and Board staff at least five business days prior to the date of the hearing.
(6) The hearing officer(s) shall administer oaths, subpoena and examine witnesses, receive written and oral testimony, rule on the admissibility of evidence, and decide all other aspects of the conduct of the hearing. Findings of fact shall be based exclusively on the record of the proceeding as a whole. The hearing officer(s) shall make findings of fact and conclusions of law and shall forward a recommended final determination to the Board along with the record of the adjudication upon which the recommended determination is based. The Board may adopt, reject or modify any recommended determination.
(7) The candidate and treasurer shall be afforded due process of law, including the opportunity to be represented by counsel, to request that a subpoena be issued, to call witnesses, to cross-examine opposing witnesses and to present oral and written arguments on the law and facts. All witnesses shall testify under oath. Adherence to formal rules of evidence is not required.
(8) Testimony and argument on the law and facts shall be presented in the following order: Board staff, witnesses called by Board staff, if any, cross-examination, the candidate and/or treasurer and/or their counsel, witnesses called by the candidate and/or treasurer and/or their counsel, and cross-examination. Each party shall be afforded an opportunity to present rebuttal testimony, if deemed appropriate by the hearing officer.
(9) No ex parte communications relating to other than ministerial matters regarding a hearing shall be received by a hearing officer, including internal agency directives not published as rules.
(10) Testimony shall be transcribed and/or recorded, and a copy of the transcript and/or recording, or any part thereof, shall be made available to any party to the hearing upon request for a reasonable price.
(11) Affidavits or affirmations submitted as evidence must be signed and under penalties of perjury. Failure of the respondent to produce at a hearing any document either requested by the Board or required to be maintained by the Board pursuant to the Act and these Rules shall lead to a rebuttable presumption that the document, if produced, would have been adverse to the respondent.
(12) Once the hearing officer has issued the recommended final determination, each party shall have twenty days to submit written comments to the Board. The comments should raise any objections to the recommended determination, and objections not raised in the comments will be deemed waived in any further proceedings. Comments shall be limited to the record of the adjudicatory proceeding. Comments shall be served upon all other parties, and shall be served upon the Board by the Office of the General Counsel. Upon application filed with the Office of the General Counsel, the Chair may shorten or extend the time for comments for good cause shown. No personal appearances shall be made before the Board unless the Board specifically requests that the parties appear.
(13) The Board shall provide a written determination within 30 days of the conclusion of the hearing if conducted by the full Board, or within 30 days of the conclusion of the written comments period if the hearing is conducted before (a) hearing officer(s), stating the basis for any assessed penalty or repayment obligation, including any findings of fact and conclusions of law, and shall notify the candidate of the commencement of the four-month period during which a special proceeding may be brought to challenge the Board's determination pursuant to Article 78 of the Civil Practice Law and Rules. Determinations made by the Board pursuant to this rule may not be appealed to the Board unless the Board specifically provides otherwise in its determination.
(g) Penalties for Disclosure Statement and Contribution Violations. The Board shall publicize staff guidelines for presumptive penalties to be recommended for the late submission of a disclosure statement, the failure to file a disclosure statement, and the acceptance of an over-the-limit or a prohibited contribution, subject to consideration of aggravating and mitigating factors that will be considered in determining the appropriate penalty assessment for the violation.