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Foreword

This manual is the outgrowth of a cooperative project undertaken by the New York State Department of Civil Service, the Public Employees Federation, the Governor's Office of Employee Relations, the Rockefeller College of the State University of New York, and the Government Law Center of Albany Law School. The original manual, published in 1961 and revised once in 1972, was authored entirely by Louis J. Naftalison. Following publication, it was in great demand throughout the State. Hearing Officers, Administrative Law Judges, parties to administrative proceedings, professors and students of administrative law, and those with a general interest in administrative proceedings all sought copies.

Once all the printed copies of the manual had been distributed, photocopies started to circulate, and as late as 1998 the Department of Civil Service–the department that published the original and revised manuals–was still receiving requests for copies. This was true even though the manual was written before the State enacted the State Administrative Procedure Act (SAPA) governing administrative proceedings in many of the State's agencies and departments. In addition, some sections of the manual–such as the evidence appendix–had become dated by changes in the law and its application in the administrative adjudicative setting. But many of the passages retained important and valuable information on the proper functioning of the administrative process in New York State. Practical advice and admonitions regarding the proper role of the hearing officer in the process of administrative adjudication and suggestions for addressing many of the issues a hearing officer will likely confront were the reasons the manual continued to be popular.

The current project arose out of the desire to bring the manual up-to-date while maintaining the accessible, best-practices style adopted by Naftalison. Working on the drafting of the new manual itself were Albany Law School professors, staff members of the Government Law Center of Albany Law School, and Albany Law School students. Overseeing the efforts of the new authors was a New York State advisory panel consisting of hearing officers, administrative law judges and counsel from many of the State agencies engaged in the administrative adjudicative process.

Working together, the manual that follows was drafted, reviewed, edited, and finalized. It is to be made available both in a printed hard copy, and in electronic format.

This manual is designed to provide a starting point and general reference for administrative law judges and hearing officers. That administrative practitioners, law professors and law students may also find in it some value is a benefit of the manual, but not its primary intent. It is written for the ALJ or hearing officer, and thus suggestions and comments made in it are for the benefit of those persons, and should not be used in asserting that an ALJ or hearing officer has in some way erred.

As for the sophistication of information presented, we have tried to strike a balance between those who have been practicing for some time, and those who are new to the process. Some of the information will be far too basic for some ALJs and hearing officers, while other information may be new or present known theories in a new light. It is our hope that all of those involved in administrative adjudication can find something in the manual that is useful to them and to which they may be able to refer back time and time again.

Regardless of our intentions, however, this manual cannot and does not contain every piece of information relevant to the practice of administrative adjudication. Administrative processes vary from agency to agency, bureau to bureau, and one cannot rely on the information found within this manual without consulting the applicable statutes, regulations and guidelines for the particular agency in question. Failure to consult case law, agency information, and statutes cannot and should not be excused by this reference to information contained in this manual.

In addition, while it is the Department of Civil Service's intent to maintain this work in electronic format so as to allow for regular updates and changes, the burden is on the user of this manual to verify the continuing accuracy of any and all statements contained within it.

That said, we would like to take the opportunity to thank those who assisted in making this project possible. In addition to the authors and advisory committee members, Albany Law School students James Dayter '99 and Barbara Hancock '00 assisted in developing materials and appendices for the manual. University at Albany student and Government Law Center intern Jennifer Cordes assisted with the editing of the project. Finally, Government Law Center Secretary/Receptionist Lisa Buscini provided administrative support for the manual while it was being developed. GLC Publications Editor Michele Monforte provided an invaluable final edit and review prior to publication (but any remaining errors are mine alone). For their efforts and assistance, we thank them.

Our appreciation is also expressed to the members of the New York State/Public Employees Federation, Professional Development Committee for their recognition of the value of this project, their ongoing support and for making funding available through the negotiated agreements between the State of New York and the Public Employees Federation, AFL-CIO.

Robert A. Heverly, Esq.

Editor/Design & Layout

2002 Edition






Author Biographies

Rose Mary Bailly, Esq.

Rose Mary Bailly, Esq., is Executive Director of the NYS Law Revision Commission, and is the Coordinator of the Aging Law & Policy Program at the Government Law Center of Albany Law School where her responsibilities include administration of research projects and preparation of reports and studies on options for legal and policy reform in aging law and related areas. She previously served as Associate Attorney to the New York State Law Revision Commission from 1987 to March 1995 where her responsibilities included the development of the Commission's annual legislative program. Most recently Ms. Bailly has taught New York State Administrative Procedure and Practice at Albany Law School. She is a member of board of editors of the New York State Bar Journal, and is a graduate of Fordham University School of Law where she served as a Commentary Editor for the Fordham Law Review.

Patrick J. Borchers

Patrick J. Borchers is Dean of Creighton University School of Law, and formerly was the Associate Dean for Academic Affairs and a Professor of Law at Albany Law School of Union University. He has taught administrative law since he began his teaching career, is the author of numerous articles on administrative and constitutional law topics, and is the co-author with Prof. David Markell of the first and second editions of "New York State Administrative Procedure and Practice," published by West Group in 1995 and 1998 respectively. In 1995 he and Prof. Markell were awarded the ABA Section of Administrative Law and Regulatory Policy's Annual Award for Scholarship for the first edition of their book.

Robert Freeman, Esq.

Robert Freeman, Esq., is the Executive Director of the New York State Committee on Open Government. Before becoming Executive Director of the Committee in 1976, Mr. Freeman had been its counsel. He received his law degree from New York University and a B.S. in Foreign Service from Georgetown University in Washington, D.C. In 1982, the New York State Society of Newspaper Editors presented Mr. Freeman with its Friend of the Free Press Award and in 1992 he was given the First Amendment Award by the New York Press Association. The New York City Chapter of the Society of Professional Journalists, the Deadline Club, presented him with its First Amendment Award in 1994. Most recently, he was presented with the Governor Alfred E. Smith Award by the Empire State Capital Area Chapter of the American Society for Public Administration for outstanding individual service and initiative exemplifying superior management and administration, and was made a Fellow of the State Academy for Public Administration.

Robert A. Heverly, Esq.

Robert A. Heverly, Esq., is Assistant Director of the Government Law Center of Albany Law School, where he has worked since September, 1992. Mr. Heverly currently teaches graduate students and undergraduate students at the University at Albany and the College of Saint Rose, and previously taught as an adjunct professor at Siena College and Rensselaer Polytechnic Institute. He has participated in programs on administrative law and practice, including undertaking presentations on technology and technology issues for ALJs. An active member of the American Bar Association, the New York State and Albany County Bar Associations, Mr. Heverly is an honors graduate of both the State University College at Oswego and Albany Law School.

Michael J. Hutter

Michael J. Hutter is Professor of Law at Albany Law School of Union University, where he teaches, among other subjects, Evidence. Professor Hutter clerked for Judge Matthew J. Jasen, New York Court of Appeals, and practiced law with a New York law firm involved in antitrust and unfair competition litigation. He is author of a book and numerous articles on antitrust and unfair competition. From 1980 to 1984, Professor Hutter was Executive Director of the NYS Law Revision Commission. He frequently teaches continuing legal education courses on evidence and administrative law.

David Markell

David L. Markell is a Professor of Law at Albany Law School of Union University, where he teaches administrative law, environmental law and land use planning courses. Professor Markell is the co-author (with Patrick Borchers) of an award-winning book on New York State administrative law, New York State Administrative Procedure and Practice (West Publishing 1995), and the author of several articles on administrative law and environmental law topics. He has testified on such topics before Congress and the New York State Legislature. Professor Markell serves on the Executive Committee of the New York State Bar Association's Environmental Law Section and as Associate Editor of the Section's Journal, The New York Environmental Lawyer. Before joining the Law School's faculty, Professor Markell served as Director of the New York State Department of Environmental Conservation's Division of Environmental Enforcement. Professor Markell also spent several years practicing law with the U.S. Environmental Protection Agency and the U.S. Department of Justice, and in private practice in Washington, D.C. Professor Markell is a 1979 graduate of the University of Virginia School of Law.

Patricia E. Salkin, Esq.

Patricia E. Salkin is Associate Dean and Director of the Government Law Center of Albany Law School. She teaches courses in government ethics, housing law & policy and planning law at both the Law School and the University at Albany. She is an officer of the American Bar Association's Section of State and Local Government Law, and on the Executive Committee of the New York State Bar Association' s Municipal Law Section. She is on the Steering Committee for the international Council on Government Ethics Laws, chairs the ethics committee for the ABA State and Local Government Law Section and is that Section's liaison to the Ethics 2000 Task Force. She frequently writes and lectures in the area of government ethics. Ms. Salkin served for a number of years as the Chair of the State Administrative Law Committee of the ABA's Section on Administrative Law.



Administrative Law Judge Manual

Advisory Review Committee

Pamela Petrie Baldasaro
Department of Civil Service
Tyrone Butler
Department of Health
Lucia A. Ferrara
Department of Motor Vehicles
Herbert Friedman, Jr.
NYS Division of Taxation and Finance
Stephen Fry
NYS Department of Health
Helene Goldberger
NYS Department of Environmental Conservation
Stella Chen Harding
NYS Department of Civil Service
Kary Jablonka
Rockefeller College of Public Affairs and Policy
University at Albany
Monte Klein
NYS Public Employment Relations Board
Joel A. Linsider
NYS Public Service Commission
Peter Loomis
Department of Transportation
Robert Lorenzo
NYS Unemployment Insurance Appeals Board
Elizabeth A. Lott
NYS Workers' Compensation Board
Gerald Lynch
NYS Public Service Commission
Peggy Moore-Carter
Public Employees Federation
Thomas Pandick
NYS Workers' Compensation Board
Henry Pedicone
NYS Office of Temporary and Disability Assistance
Onnolee W. Smith
Governor's Office of Employee Relations
Andrew S. Weiss
NYS Workers' Compensation Board
Thomas Young
NYS Department of Transportation
 
 
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