N.Y. Education Law § 6516: Civil enforcement proceedings and civil penalties

§ 6516. Civil enforcement proceedings and civil penalties. 1. Issuance

of cease and desist order. Whenever the department has reasonable cause

to believe that any person has violated any provision of section

sixty-five hundred twelve or sixty-five hundred thirteen of this

article, the department may issue and serve upon such person a notice to

cease and desist from such violation. Such cease and desist order shall

be served personally by the department. If personal service can not be

made after due diligence and such fact is certified under oath, a copy

of the order shall be made by certified mail, return receipt requested,

to the person's last known address by the department.

2. Contents of cease and desist order. The cease and desist order

shall be in writing and shall describe with particularity the nature of

the violation, including a reference of the specific provision or

provisions of law alleged to have been violated and an order to the

respondent to cease any unlawful activity. The cease and desist order

shall advise the respondent (a) of the right to contest the order by

requesting a hearing within thirty days of the service of the cease and

desist order before a hearing officer designated by the department (b)

of the right to request a stay of the cease and desist order at the time

a hearing is requested and (c) shall set forth the respondent's rights

at such a hearing pursuant to subdivision five of this section.

3. Civil penalties. Civil penalties up to five thousand dollars may be

imposed for each violation and the respondent may be ordered to make

restitution to any person who has an interest in any money or property,

either real or personal, acquired by the respondent as a result of a

violation. Whenever the department concludes that civil penalties and/or

restitution may be warranted because of the egregiousness of the

unlawful activity, it may serve, along with the cease and desist order,

a notice of a hearing on the allegations of unlawful activity and the

department's intention to order the respondent to make restitution

and/or impose a civil penalty. The notice should specify the civil

penalty sought for each violation.

4. Request for hearing. If the respondent to a cease and desist order

contests the cease and desist order, the respondent shall request a

hearing conducted by the department within thirty days of the receipt of

the cease and desist order. Such a hearing shall be scheduled, and the

requesting party notified of the date, within fifteen days of the

receipt of the request for a hearing. If the respondent requests a stay

of the cease and desist order, the hearing officer shall determine

whether the cease and desist order should be stayed in whole or in part

within five working days of the request for a stay. The respondent may

file a written answer to the cease and desist order prior to the

hearing. A stenographic record of the hearing shall be made.

5. Conduct of hearing. The evidence in support of the cease and desist

order shall be presented by an attorney for the department. The

respondent may appear personally and may be represented by counsel at

the hearing, may produce witnesses and evidence in his or her behalf at

the hearing, may cross-examine witnesses and examine evidence produced

against him or her at the hearing, and may issue subpoenas in accordance

with section three hundred four of the state administrative procedure

act. The hearing officer shall not be bound by the rules of evidence,

but his or her determination that a violation of section sixty-five

hundred twelve or sixty-five hundred thirteen of this article has

occurred shall be based on a preponderance of the evidence. A hearing

which has been initiated shall not be discontinued because of the death

or incapacity of the hearing officer. In the event of a hearing

officer's death or incapacity to serve, a new hearing officer shall be

designated by the department to continue the hearing. The new hearing

officer shall affirm in writing that he or she has read and considered

evidence and transcripts of the prior proceedings.

6. Results of hearing. The hearing officer designated by the

department shall render a written report which shall include (a)

findings of fact, (b) a determination on each violation alleged in the

cease and desist order, (c) a determination as to whether to accept,

reject, or modify any of the terms of the cease and desist order in

whole or in part, and (d) the civil penalty imposed, if any. A copy of

the hearing officer's written report shall be served upon the respondent

with a notice setting forth the respondent's rights to an administrative

appeal within ten days of the conclusion of the hearing.

7. Appeals. The decision of the hearing officer shall be final, except

that it may be appealed to a regents review committee within twenty days

of the receipt of the hearing officer's report. The initiation of an

appeal shall not in and of itself affect the validity or terms of the

cease and desist order. The regents review committee shall consist of

three members, at least one of whom shall be a regent. The review shall

be based on the transcript and the report of the hearing officer. The

respondent may appear at the meeting, and the regents review committee

may require the respondent to appear. The respondent may be represented

by counsel. The department shall notify the respondent at least ten days

before the meeting (a) of the time and place of the meeting, (b) of the

right to appear, (c) of the right to be represented by counsel, (d)

whether or not the respondent is required to appear, and (e) of such

other information as may be considered appropriate. After the meeting,

the regents review committee shall transmit a written report of its

review to the board of regents. The board of regents (i) shall consider

the transcript, the report of the hearing officer, and the report of the

regents review committee, (ii) shall decide whether the respondent has

violated each charge in the cease and desist order, (iii) shall decide

what penalties, if any, to impose as prescribed in this section, and

(iv) shall issue an order to carry out its decisions. Such decisions

shall require the affirmative vote of a majority of the members of the

board of regents. The order shall be served upon the respondent

personally or by certified mail to the respondent's last known address

and such service shall be effective as of the date of the personal

service or five days after mailing by certified mail. The decisions of

the board of regents under this section may be reviewed in a proceeding

pursuant to article seventy-eight of the civil practice law and rules

brought in the supreme court, Albany county. Such decisions shall not be

stayed or enjoined except upon application to such supreme court

pursuant to article sixty-three of the civil practice law and rules with

notice to the department and to the attorney general.

8. General enforcement of cease and desist order. In any case where

the cease and desist order is confirmed by the board of regents or where

the respondent does not request an administrative hearing within the

allotted time or does not appeal the decision of the hearing officer

within the allotted time, an action or proceeding may be filed in the

name of the state of New York seeking a restraining order, injunction,

appropriate writ, or judgment against any person who violates the terms

of the cease and desist order.

9. Special enforcement of civil monetary penalties. Provided that no

appeal is pending on the imposition of such civil penalty, in the event

such civil penalty imposed by the department remains unpaid, in whole or

in part, more than forty-five days after written demand for payment has

been sent by first class mail to the address of the respondent, a notice

of impending default judgment shall be sent by first class mail to the

respondent. The notice of impending default judgment shall advise the

respondent: (a) that a civil penalty was imposed on the respondent; (b)

the date the penalty was imposed; (c) the amount of the civil penalty;

(d) the amount of the civil penalty that remains unpaid as of the date

of the notice; (e) the violations for which the civil penalty was

imposed; and (f) that a judgment by default will be entered in the

supreme court, Albany county unless the department receives full payment

of all civil penalties due within twenty days of the date of the notice

of impending default judgment. If full payment shall not have been

received by the department within thirty days of mailing of the notice

of impending default judgment, the department shall proceed to enter

with such court a statement of the default judgment containing the

amount of the penalty or penalties remaining due and unpaid, along with

proof of mailing of the notice of impending default judgment. The filing

of such judgment shall have the full force and effect of a default

judgment duly docketed with such court pursuant to the civil practice

law and rules and shall in all respects be governed by that chapter and

may be enforced in the same manner and with the same effect as that

provided by law in respect to execution issued against property upon

judgments of a court of record. A judgment entered pursuant to this

subdivision shall remain in full force and effect for eight years

notwithstanding any other provision of law.