Admin law and Business Relations Flashcards
Under the separation of powers doctrine, is the legislature permitted to delegate its lawmaking power to an administrative agency?
No but they may endow administrative agencies with the power to fill the gaps in the legislative product by prescribing rules and regulations consistent with the enabling legislation.
What are SAPA’s procedures?
prior to adoption of the rule, an agency must submit notice of the proposed rule to the Secretary of State for publication in the State Registrar and afford the public an opportunity to submit written comments to the rule.
What must the notice of the rule include?
1) a statement of the statutory authority
2) a complete text of the proposed rule and the website address where the full text is posted
3) a regulatory impact statement and flexibility analysis and
4) date, time, and place of any public hearings
When is a rule effective?
except for emergency rules and certain other specified rules, a rule is not effective until it is filed with the Secretary of State and notice of adoption is published in the state registrar.
what must the notice of adoption contain?
information similar to the proposed rule and also must include effective date of the rule and an assessment of the public comments received.
what is Article 3 of SAPA?
quasi-judicial making (adjudication)
What is section 301 of Article 3 of SAPA?
The Due Process requirements
What must a party to an administrative proceeding be afforded?
due process protections of the 14th Amendment and the New York State Constitution
What is considered Due process for purposes of Article 3?
1) a short and plain statement of the matters asserted,
2) an opportunity for a hearing within a reasonable time,
3) reasonable notice of such hearing and
4) an opportunity to present written arguments on issues of law and evidence on issues of fact.
What is the minimum due process for a party to an administrative proceeding?
1) impartial decision maker
2) with notice and opportunity to be heard
3) based upon a record
When is an ex-parte communication ok?
when there is a question of fact and there cannot be communication directly or indirectly with any party and notice and opportunity to be heard must given
what must be done to disqualify a hearing officer?
a motion must be made on the record
How are the rules of discovery governed?
they are not governed by the CPLR and each agency may adopt rules for discovery and depositions to the extent and in the manner appropriate to its proceedings, and the parties to the proceeding are subject to these rules
What is an exception to the discovery rules?
when a license is being revoked or permit previously granted and disclosure is required (basis for revocation) and a fair hearing must be awarded.
Do agencies need to follow the Rules of Evidence according to SAPA?
No unless otherwise provided by statute but privilege still applies
Who has the burden of proof in an administrative proceeding?
the party that initiated the proceeding
What is the Substantial evidence test under SAPA Article 3, section 306?
factual evidence is supplied on which a reasonable person is custom to rely on a series of affairs
is reasonable and plausible required?
yes but not necessarily most probable
does Res judicator and collateral estoppel apply in administrative proceedings?
yes to previous decisions that had a full and fair opportunity to litigate
what allows for investigative powers?
1) authority by Enabling statute
2) admin searches/inspection and
3) the 4th Amendment
What are the warrant requirement for an administrative agency?
a warrant is required unless the agency is a closely regulated businesses (licensed by agency and report to agency, not enough)
are administrative proceedings subject to the exclusionary rule?
not per se excluded, a balancing test is done
Does the right to assisted counsel applicable to agencies not subject to the law? **
no
What are agencies subpoena power?
absent any statutory grant of subpoena power, agencies and attorneys of record for any party to the proceeding are granted general subpoena power.
how must a request to withdraw or modify a subpoena be made?
must first be made by the person who issued it, and motions to quash or enforce admin subpoenas are not part of the hearing process and must be made in Supreme Court.
who has standing in an administrative proceeding?
1) injury in fact and
2) zone of interest is to be protected by a statute
What must a party attempt to obtain before proceeding to the courts?
whatever administrative relief might be available
What are the major exceptions to exhausting administrative remedies?
1) agency actions that are challenged as either unconstitutional or wholly beyond the agency’s grant of power or
2) when resorting to an administrative remedy would be futile or its pursuit would cause irreparable injury.
when a constitutional claim hinges on factual issues, what must done?
the necessary record must be established at the administrative level
if an underlying statute provides an exclusive administrative remedy, what does not apply?
the futility and irreparable injury exception
What are the ripeness requirements?
if a party to an administrative adjudication pursued all avenues of relief open within the agency without a satisfactory result
is a determination that is interlocutory in nature reviewable?
it may be if there are extraordinary circumstances
What are the statute of limitations against a body or officer in an administrative proceeding?
must be commenced within 4 months after the determination to review becomes final and binding upon the petitioner.
What type of proceedings are proceedings under Article 78 of the CPLR?
special proceedings
what are special proceedings subject to?
specific procedural requirements
are declaratory judgments generally subject to Article 78?
No
what is the standard of review for administrative proceedings?
depends on the nature of the issue
What is the standard of review of an agency decision on the issue of law?
1) whether the decision is supported by a rational basis
2) was affected by an error of law or was arbitrary and capricious or
3) an abuse of discretion.
What is the standard of review for issues of fact in an agency proceeding?
the evidence must be on the record as a whole and supported by substantial evidence
what type of question is for whether an agency determination is supported by substantial evidence?
a question of law
if a decision meets the rational basis standard of review, is it upheld?
yes unless it’s a penalty determination and it “shocked the conscience”
What is the standard of review for discretionary determinations?
abuse of discretion
What is provided in the Freedom of Information Law (FOIL)?
every “agency” must make available for public inspection and copying all records, except those records or portions are fall within an exception.
what are the exceptions to FOIL?
1) presumption of public availability
2) does not depend on purpose for inspections
3) exempt by statute
4) unwarranted invasion of privacy
5) trade secrets or confidential communication information
6) endanger life or safety and
7) non final agency deliberations
When is an exemption by statute allowed?
when it is covered by an express statutory privilege and doesn’t to include common law non-codified laws
what does the open meeting law require?
that public bodies (except for judicial or quasi-judicial proceedings and political committees) to conduct all portions of any meeting in venues open to the general public on reasonable advance notice to the public
what is an exception to the open meeting law?
when the public body calls an executive session which can be called by motion on majority vote of public body in public session and motion must identify the general topics to be discussed.
what must be taken at all open meetings and what must it include?
minutes must be taken and include all matters voted upon, and must made available to the public under FOIL.
what is a general partnership?
an individual or legal entity
can a corporation be a partner?
Yes
is it a requirement to file with the state for a partnership?
No
How is a partnership determined when there is no written agreement?
by conduct
what is the liability for the partners in a general partnership for torts and breaches of trust?
each partner is jointly and severally liable
What is a limited partnership?
a partnership formed by two or more persons having as members one or more general partners and one or more limited partners.
what does the formation of a limited partnership require?
the execution by the general partners of a partnership agreement and the filing of a certificate of limited partnership with Secretary of State
what must the partnership agreement for a LLP include?
1) the name and address of each general partners
2) its duration
3) designation of the secretary of state as agent for service of process and if desired
4) designation of a registered agent.
For a professional LLP in New York, what is required?
that at least one partner is authorized for that profession in NY
what is a registered general LLP?
when each member of the partnership is a professional authorized by law to render the same professional services, they can form a RLLP
what does formation of an RLLP require?
1) filing of a certificate of registration with the Sec of state containing:
2) name,
3) address of its principal office,
4) the profession be practiced,
5) designation of sec of state for service of process
6) and if desired designation of a reg agent
what must a RLLP for when first forming a RLLP?
publish once a week for 6 weeks in a row in a newspaper, one daily and one weekly
what must a RLLP file that a general or LLP does not have to file?
a status statement with the Department of state every 5 years to maintain its status as a RLLP
what will result with a failure to file a statute statement as a RLLP?
may result in the Department of state making a proclamation declaring the registration of the RLLP revoked
when must proof of publication be filed with the New York Department of State?
within 120 days
what will result if proof of publication is not filed?
the RLLP can be suspended but does not make contacts or business of LLP unenforceable
can an RLLP be involved in any proceedings during their suspension?
No other than defending themselves
what is the liability of the partners in a RLLP?
not particularly liable for torts, debts, etc
when can a partner in an RLLP be sued?
individually for their own and supervisees’ negligence
what must an LLP consist of?
at least one general partner and one limited partner
can a limited partner in an LLP manage?
No
what is subject to loss in an LLP?
only capital
what is a LLC?
limited liability like a corporation but tax benefits of a partnership
How do you form an LLC?
by filing articles of the organization with the Secretary of State
what must the articles of the organization of an LLC include?
1) company name,
2) county where office is to be located,
3) designation of state as agent for service
4) if desired, designation of a registered agent and
5) certificate of NY licensing authorization
when is an LLC formed?
at the time of filing the initial articles of the organization or at any later date specified in the articles of organization.
how often is an LLC required to file?
biennially confirming its address for service of process.
Must an LLC publicize?
yes in accordance with statutory requirements
what must an LLC’s publication include?
1) a copy of its articles of organization or
2) a notice
where must an LLC publicize?
in two Newspapers selected by the county clerk in the county which its principal office will be located
how often does an LLC’s publication need to run?
once a week over a period of 6 weeks and must file proof of publication with Secretary of State within 120 days following effective date of LLC registration
what is a professional service LLC?
when one or more professionals authorized by law to render the same professional service
what is required for forming a PLLC?
the same requirements of an LLC plus a certificate of authority issued by the licensing authority for the licensed individuals, and for each member, shareholder or partner of a member or manager which is an organization must accompany the filing.
is publication required for a PLLC?
NO
what is required to form a corporation under the Business Corporation Law?
filing of a certificate of incorporation with Secretary of State
what must be included in a certificate of incorporation?
1) corporate name
2) corporate purpose (may be to engage in “lawful activity”)
3) county where office is to be located
4) specific information about shares authorized to be issued
5) duration of corporation if other than perpetual
6) designation of Secretary of State as agent for SOP and
7) if desired, a designated registered agent
how often must a corporation file?
biennially confirming among other information, the address of its principal place of business and address for SOP
how are the bylaws adopted and what must they comply with?
they are adopted by the incorporators at an organizational meeting and must comply with the law
what does the adoption, amendment or repeal of by-laws require?
a majority vote of shareholders, or if provided in the certificate of incorporation or a by-law adopted by shareholders by requisite vote of board of directors
how is a director elected?
by a plurality of votes caste (more votes, not majority)
How can a director be removed?
by cause
in general how many votes are required?
a majority
how many votes are required to amend the certificate of incorporation?
usually a majority of Toal shares
how many votes are required for a merger?
2/3 of votes
how are officers elected?
by the board
can officers hold more than one office?
yes
how can officers be suspended?
for cause
what is the standard of care in NY?
in good faith and with ordinary prudent person under similar circumstances
in NY os a contract void or voidable if a director had an interest in the transaction?
NO, not on its own
can an interested director’s vote be counted to establish a q
