HRC Rules of Procedures

Rules of Procedure

Nassau County Commission on Human Rights
Adopted January 22, 2007;
Amended and Adopted May 21, 2007;
Amended and Adopted November 22, 2010
Investigation and Enforcement of Complaints

Title C, C-1 and C-2. Section 21-9 et seq.
Title C: Commission on Human Rights. (S 21-9.0 to 21-9.6) Title C-1: open Housing. (5 21-9.7)
Title C-2 Unlawful Discriminatory Practices (S 21-9.8 to 21.9.9-b)

Section One

The Nassau County Commission on Human Rights (Commission) adopted Rules of Procedure (Rules) on January 22, 2007, for the implementation of Local Law 9 of 2006 on August 24, 2006. The Commission now readopts the Rules, as amended, to include provisions for the investigation and enforcement of employment discrimination complaints, in accordance with Title C-2.

The Rules shall be available to the public at the office of the Commission and shall be provided to all parties to any proceeding without charge.

These Rules are subject to amendment by a majority vote of the member of the Human Rights Commission (Commissioners). Amended Rules shall be provided to any party named in a proceeding that is pending at the time of the amendment.

Pre-hearing provisions

Section Two

Service of documents
Method
The Commission shall serve complaints and answers, including amendments to complaints and answers, notices of hearings, and findings of facts and recommended decisions on all parties by regular and certified mail. The Commission shall serve complaints and its orders by personal service, or registered or certified mail. All mailings shall be sent to the last known address of the residence or business. Time

The Commission shall mail date-stamped and logged-in formal complaints on all respondents identified by complainant within three business days of receipt of the verified complaint (formal complaint).

Section Three

Complaints, and amendments to complaints.
A complaint may be filed with the Commission by any person who alleges that he or she is a member of a protected status, as defined by Section 21.9(d), (e), (f), (h), (i), and (k)(o), and he or she has been subject to an unlawful discriminatory practice, as prohibited by Section 21.9.7.c(l     and Section 21.9.8 of the Nassau County Administrative Code (Code). The complaint shall be verified. The Commission may also file a complaint.

Commission obligations.
The Commission shall assist a complainant in the drafting of a complaint in person. Assistance will be provided by telephone, mail or email. Requests for assistance based upon disabilities and needs for translation shall be granted in accordance with law and to the extent the Commission can reasonably respond. All complaints must in writing on a form provided by the Commission or on a legible document, and shall be notarized by the staff of the Commission at no charge to the complainant. The Commission shall datestamp each complaint upon receipt, assign a number and list the complainant's name and the complaint number in a complaint log maintained by the Commission for this purpose. The Commission shall file the original complaint and provide a copy of the date-stamped and docketed complaint to the complainant, along with a written statement of applicable time limitations and a written statement of forum choices.

Contents
The complaint must contain the full name, address and telephone number of the complainant and all respondents, as well as the full name, address and telephone number of counsel to either party, if any.

For housing complaints, the complaint shall include a specific statement of the alleged unlawful discriminatory practice, including the particular discriminatory practice in violation of Section 21.9.7.c.(1)-(4), the particular protected status of the complainant, in accordance with Section 21.9.2, and the exact address of the housing accommodation. For employment complaints, the complaint shall include a specific statement of the alleged unlawful discriminatory practice, including the particular discriminatory practice in violation of Section 21.9.8(l)(a), the particular protected status of the complainant, in accordance with Section 21.9.8(l)(a) and the exact address of the employer, employment agency or labor organization, in accordance with Sections 21-9.8(1).

For housing and employment complaints, the complaint must specify the date or dates of the alleged discriminatory practice; if the alleged unlawful discriminatory practice is of a continuing nature, the complaint must specify the dates between which the acts of discrimination are alleged to have occurred.

Time limitations for housing discrimination complaints

When an individual is filing a complaint, the alleged discriminatory practice must have occurred no more than one year prior to the date of filing. If the alleged unlawful discriminatory practice is ongoing, the date of its occurrence shall be any date after its inception, up to and including its cessation.

When the Commission itself is filing the complaint, the alleged unlawful discriminatory practice must not have occurred more than two years prior to the filing date.

Prior or pending proceedings

To allow the Commission to determine jurisdiction, the complaint must include information as to the status or disposition of any action or proceedings (civil, criminal or administrative) that is pending or has been filed in any förum and is based upon the same alleged discriminatory practice as is alleged in the complaint. Any docket number or index number or identifying number must be included.

Amendments to complaint

The complaint may be amended by a complainant or by the Commission prior to the commencement of a hearing, upon not less than five business day's written notice to a respondent. The respondent shall be permitted to amend his or her answer in the event of any substantial amendment to the complaint that would alter the evidence that respondent would produce. When an amendment to a complaint results in additional parties, those parties shall be served in accordance with Section Two.

Section Four

Answers, and amendments to answers

The respondent shall file any answer with the Commission within thirty days of service of a complaint, and shall be entitled to the assistance of Commission staff. Prior to filing its answer, the respondent may apply in writing to the Commission for a more definite or detailed statement. The application shall state, with specificity, the instances in which the complaint is insufficiently definite and detailed. If the Commission decides that the complaint is not sufficiently definite or detailed, it shall direct the complainant to amend or clarify its complaint.

The answer shall be in writing and verified. The answer shall contain the partys full name, address, telephone number and, if represented by counsel, full contact information. The answer shall contain a separate and specific response to each and every particular of the complaint or a denial of any knowledge or information thereof sufficient to form a belief. Any matter constituting an affirmative defense, including lack ofjurisdiction, shall be stated separately and with particularity in the answer.

Any allegation in the complaint that is not denied shall be deemed admitted.

If the respondent fails to answer the complaint, the Commission may refer the complaint and its final investigative report to the Administrative Law Judge (ALJ) for hearing, upon the Commission's finding of probable cause.

Section Five

Investigations

Investigations shall commence within thirty days of the formal filing of a complaint. The Commission shall conduct an investigation of complaints that may include, but need not be limited to site or field visits, use of testers, written or oral inquiry, review of documents, conferences, or any other method or combination of methods deemed suitable under the circumstances.

Use of subpoenas and subpoenas duces tecum.

The executive director or other officer or employee of the Commission designated for this purpose by the Commission may issue subpoenas requiring a witness to appear and give sworn testimony whenever necessary to compel attendance and may issue subpoenas duces tecum to require the production for examination of any books, payrolls, personnel records, correspondence, documents, papers or any other evidence relating to any matter under investigation or in question before the Commission.

Subpoenas duces tecum, issued by the designated Commission officers and employees, may be made returnable at any stage of any investigation or proceeding pending before the Commission. Documents, books and records required for a public hearing before an ALJ may be subpoenaed by the ALJ and made returnable prior to such hearing at such time and place stated in the subpoena by the issuing officer, or made returnable before the designated Commission depository officer. Witness subpoenas shall be returnable only at the hearing.

Application for a subpoena. Subpoenas and subpoena duces tecum may be issued by the designated Commission officers and employees upon the application of a party or a party's attorney. The Commission has discretion to refuse to issue the subpoena but shall not be unreasonably deny the application.

Depository officer. An officer or employee of the Commission shall be designated as a depository officer, who shall receive and hold documents, books and records subpoenaed prior to a public hearing or produced at the hearing and required for use during the period between the commencement of a hearing and any subsequent hearing. The records shall be made available for inspection and copying during the ordinary business hours of the Commission or by appointment.

Section Six

Pre-hearing Probable Cause Determination

The Commission shall delegate to its Executive Director the authority to issue a determination of probable cause. When the Executive Director determines that it has jurisdiction of a complaint and that its investigation has established that probable cause exists, it shall refer the complaint to the Administrative Law Judge (ALJ) for a hearing. Probable cause shall be determined where the Executive Director, in consultation with Commission staff, credits the allegations of a complaint that an unlawful discriminatory practice has been or is being committed by a respondent and where a reasonable person, looking at the evidence as a whole, could reach the conclusion that it is more likely than not that the unlawful discriminatory practice was committed. In reaching its determination of probable cause, the Commission shall first establish that it has jurisdiction and that the complaint is timely. The Commission shall then establish that the complainant is a member of a protected class.

The Executive Director shall review all recommendations and final investigative reports made by staff for accuracy of facts and legal sufficiency, and shall maintain a written record of all recommendations and reports, in accordance with Commission retention requirements. The referral to the ALJ shall be issued within five business days of the probable cause determination. The Commission shall issue a Notice of Hearing and serve the Notice of Hearing in accordance with Section Two. Upon the referral of the complaint to the ALJ, the Commission shall transfer its final investigatory report along with the complaint. The Commission shall provide a copy of the final investigative report and the information derived from the investigation to the parties to the proceeding. Upon the Commission's determination of probable cause, the Commission can demand that the respondent produce records that the Commission reasonably believes pertain to the alleged unlawful discriminatory practices. The respondent shall have five business days in which to file a written objection to the production of the records. The Commission shall review all objections to the production of records and determine whether respondent should be compelled to product the documents.

Reopening after dismissal because of a finding of "no probable cause"

Where a complaint has been dismissed after investigation for lack of jurisdiction or for lack of probable cause, or because the time to appeal to court has expired, and less than one year has passed since the dismissal, the investigation may be reopened only where there is an allegation of newly discovered evidence of wrongdoing, fraud or irregularity that the applicant could not, with due diligence, have discovered before the dismissal of the complaint.

Section Seven

Pre-hearing disposition of complaints

Withdrawals and agreements to discontinue

A complainant may withdraw or agree to discontinue his or her complaint at any time. A written statement of withdrawal or a written agreement to discontinue must be signed by the complainant, or his or her attorney, if any. The Commission must send written notification of the withdrawal or agreement to discontinue to any named respondent. After a withdrawal or agreement to discontinue, the Commission may file its own complaint based upon the same underlying facts only if it has determined that the complainant will cooperate with the investigation and any subsequent hearing, to the extent that such cooperation would be essential for the Commission to proceed. Withdrawals and agreements to discontinue must be on the record before the ALJ if either occurs when a hearing has already commenced.

Where a complaint has been withdrawn, the Commission may only reopen its file upon an allegation that the withdrawal was induced by fraud or coercion, or error. The allegation must be presented to the Commission in a written application for reopening within one year after the issuance by the Commission of a notice that said complaint has been withdrawn, or within one year from the effective date hereof.

Dismissals

The Commission may dismiss a complaint for administrative convenience, for lack of jurisdiction or for lack of probable cause. Nonjudicial settlements

The parties may enter into a non-judicial stipulation of settlement (stipulation) after a determination of probable cause, subject to the approval of the Commission. Any stipulation shall either be in writing and signed by the parties or their counsel, or placed on the record before the ALJ.

The stipulation should include an agreement by the respondent to refrain or cease and desist from committing any unlawful discriminatory practices in the future, but can include a non-admissions clause.

The stipulation may include an escrow arrangement for the payment of any monies due or agreed upon.

Mediation and conciliation

The Commission can initiate mediation and conciliation as soon as a complaint is filed.

Section Eight

Injunctions

For housing complaints, in accordance with Section 21.9.7(d)(3) of the Code, the Commission may request that the County Attorney seek an injunction and a temporary restraining order when the Commission has reason to believe that the respondent's actions may result in harm to the complainant that cannot be addressed or prevented in the normal course of the Commission's procedures. A request to the County Attorney may be made at any time, including prior to the serving of a complaint of any respondent. For employment discrimination complaints, in accordance with Section 21-9.9(a), the County Attorney is authorized to take such action as necessary to obtain enforcement of the provisions of Title C-2, including the enforcement of corrective orders and the assessment of penalties and fines as provided in the law.

Section Nine

Hearing

Notice of hearing

Appearance at hearing; Default at hearing

All parties to the proceeding, other than a respondent whose default in answering has not been excused, may be present and shall be allowed to present testimony in person and to cross-examine witnesses.

If the Commission has not served a notice of hearing upon a party, the ALJ in his or her discretion may postpone a scheduled hearing.

If a respondent fails to appear at the duly noted time and place of the hearing and the hearing is not adjourned, irrespective of whether an answer to the complaint has been filed, the hearing shall proceed on the evidence in support of the complaint.

Prior to a recommendation after hearing, a default entered upon a respondent's failure to appear may be reopened, for good cause shown, upon written application to the ALJ.

Section Ten

Responsibilities of Administrative Law Judges, and Rules of Evidence and Procedures

In conducting the hearing, the Administrative Law Judge must use procedures consonant with due process to elicit evidence on the allegedly discriminatory conduct.

Although hearsay evidence is admissible, the weight given to such evidence is wholly within the discretion of the ALJ.

The ALJ shall determine the order of the presentation of evidence.

Documentary evidence is admissible without testamentary foundation.

Witness information need not be introduced in the form of question and answer testimony.

Where appropriate, and at the discretion of the ALJ, information from witnesses may be introduced in the form of affidavits, without oral examination and cross examination. Where affidavits or other forms of proof are not sufficient, and where a witness is unable to come to a hearing for any reason of personal hardship, the .ALJ may authorize a deposition to be taken on oral or written questions and shall admit such deposition into evidence at a hearing in lieu of the personal appearance and testimony of the deponent at the hearing, subject to the following conditions, as well as any other conditions imposed by the ALJ

All parties and counsel have been offered a reasonable opportunity to participate in the taking of the deposition.

The deposition was taken under oath and certified as accurate by the stenographer.

The absence of cross-examination shall not be a bar to the admission of such deposition; provided, however, that if justice so requires, the deponent may be subject to further inquiry by additional deposition.

Any other reasonable condition fixed by the ALJ.

Cross examination is permissible.

Oral testimony shall be given under oath.

Evidence shall not be received in camera.

Written stipulations may be introduced in evidence if signed by the person sought to be bound thereby or by that person's attorney-at-law. Oral stipulations may be made on the record at a hearing.

All materials relating solely to settlement discussions shall be placed in a separate folder and shall not form part of the formal evidentiary record.

Powers of the ALJ.

The ALJ shall have the following powers to control the presentation of the evidence and the conduct of the hearing:

to fully control the procedure of the hearing, subject to these rules, and to rule upon all motions and objections;

to refuse to consider objections which unnecessarily prolong the presentation of the evidence;

to foreclose the presentation of evidence that is cumulative, argumentative, or beyond the scope of the case;

to place evidence in the record without an offer by a party;

to call and to examine witnesses including by issuance of subpoenas;

to administer oaths;

to exclude non-party witnesses who have not yet testified from the hearing room;

to direct the production of documents and other evidentiary matter, including by a subpoena duces tecum;

to propose stipulations of fact for the parties! consideration;

to issue interim or tentative findings of fact at any point during the hearing process;

to issue questions identifying the issues for hearing;

to propose settlement terms for the parties' consideration at any time during the proceeding;

to direct fürther hearing sessions for the taking of additional evidence or for other purposes, upon the ALJ's own finding that the record is incomplete or fails to provide the basis for an informed decision;

to amend the complaint to conform to the proof.

When an ALJ participates in mediation or conciliation, he or she shall not preside over a subsequent hearing that takes place after mediation or conciliation has failed.

Preliminary conference.

The first session of the hearing shall begin with a preliminary conference before the ALJ.

The conduct of this preliminary conference shall be as follows:

All legal and factual issues of the case that relate to the conduct of the hearing or the presentation of the evidence will be discussed and the parties shall be prepared to address these issues.

Parties shall bring to the preliminary conference all documentary

evidence in their control that is to be offered in evidence. Documents shall be assembled and placed in the record through notation by the ALJ.

Parties will provide a list of proposed witnesses, with explanation of their identity and the scope of their knowledge of the facts of the case. (4) The ALJ may, at his or her discretion or at the suggestion of a party, request the production of additional documents and/or additional witnesses, and may agree to the issuance of subpoenas, as necessary. (5) The ALJ may, at the preliminary conference or at a later time, propose possible stipulations of fact, or issue interim or tentative findings of fact, and/or issue to the parties questions for hearing, and may take any other steps necessary to limit and frame the issues to be addressed in the hearing.

The ALJ shall establish a schedule for the presentation of testimony, and shall, to the extent practical, resolve all issues relating to the conduct of the hearing and the presentation of the evidence.

The ALJ shall maintain a record of decisions reached at the preliminary conference.

The record of the hearing shall be taken by a stenographer. In addition, at all hearings, the ALJ shall take formal notes listing all documents that have been made part of the record, which shall be attached as an appendix to the recommendation.

No party shall communicate with the ALJ subsequent to the commencement of a hearing on any matter relating to the case unless a copy of such communication is sent to all parties to the proceeding. If such a communication is made in violation of this rule, a copy of the communication, or a written summary if the communication was oral, shall be sent to all the parties by the ALJ.

When necessary, the Commission shall appoint a qualified interpreter or translator who is certified by a recognized national or New York State credentialing authority to interpret the proceedings to, and the testimony of, such deaf person.

The ALJ may permit the parties to argue orally within such time limits as the ALJ may determine. Briefs will only be permitted where specifically requested by the ALJ, on particular points of law. Any such brief shall be filed in duplicate with the ALJ, with proof of service upon all parties in the proceeding.

Continuations, adjournments and substitutions of ALL The ALJ may postpone a scheduled hearing, or continue a hearing from day to day or adjourn it to a later date or to a different place, by announcement thereof at the hearing or by appropriate notice to all parties. No adjournment of a scheduled hearing shall be granted except upon affidavit of actual engagement before a higher tribunal or for good cause shown in writing. The ALJ shall issue his or her recommended decision within thirty days after the conclusion of the hearing. A recommendation issued after a hearing shall set forth the findings of fact, the determination, including any penalty recommendations, and, in the discretion of the ALJ, an opinion containing the reasons for the decision.

Section Eleven

Post-hearing settlements

With the consent of the ALJ, the parties may enter into a non-judicial stipulation of settlement (stipulation) at the conclusion of a hearing, subject to the approval of the Commission. Any stipulation shall either be in writing and signed by the parties or their counsel and approved by the ALJ and a copy of such stipulation agreement given tot all parties involved and placed on the record. The stipulation should include an agreement by the respondent to refrain or cease and desist from committing any unlawful discriminatory practices in the future, but can include a non-admissions clause.

The stipulation may include an escrow arrangement for the payment of any monies due.

Section Twelve

Post-recommended findings and decision obligations/responsibilities of Commission The ALJ's recommended findings and decision and order, issued within thirty business days after the conclusion of the hearing shall set forth the findings of fact of the ALJ, the determination, including any penalty or remediation recommendations, and, in discretion of the ALJ, an opinion containing the reasons for the decision, shall be transmitted to the Commission for its review and action.

For housing discrimination complaints, the Commission may adopt the recommended decision and order, and impose penalties in accordance with 21.9.7.d. I (xiii)(A), or may dismiss the complaint, in accordance with 21.9.7.d. I (xiii)(B).