NYCLA Publishes “A Proposal for the Reform of the New York City Environmental Control Board”

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FOR IMMEDIATE RELEASE

CONTACT: Anita Aboulafia 212-267-6646, ext. 225, aaboulafia@nycla.org

December 23, 2009 – The New York County Lawyers’ Association (NYCLA) has published a report of its Task Force on Judicial Selection, “A Proposal for the Reform of the New York City Environmental Control Board,” providing specific proposals for the reform of procedures of the Environmental Control Board (ECB), which hears cases involving violators of New York City’s quality-of-life laws. The Report, the sixth in a series prepared by the Task Force regarding the operation of adjudicative administrative law tribunals in New York City, covers such topics as: recent developments at ECB, recommendations on principles and operational changes and a review of specific statutory and regulatory provisions.

According to Task Force Member Carol A. Sigmond, “The thrust of the recommendations is to promote a fairer adjudicative process for the respondents at ECB. Respondents should be assured a just and speedy determination of ECB cases. We believe adoption of our recommendations will represent a step forward in the quality of justice that ordinary citizens currently receive.”

The Task Force, co-chaired by Hon. Margaret J. Finerty and Susan B. Lindenauer, met with the coordinator of administrative justice, executive director of ECB, and chief judge and deputy chief judge of the Office of Administrative Trials and Hearings (OATH) in preparing the Report, which, at the outset, acknowledges the recent progress the ECB has made, including: reducing case backlogs from 14 months to six months and improving and expanding training for the Administrative Law Judges (ALJ) at the ECB.

The Report recommends the addition of two principles to the ECB rules:

The principle of “just and efficient adjudication of cases,” which is not currently articulated as part of the ECB rules, needs to be added to provide a yardstick against which to measure the quality of justice. Equally important, the public agencies bringing cases before ECB must be bound by adverse decisions. Unless the public agencies and ECB are required to accept adverse decisions, public confidence in ECB’s decision-making process will continue to be undermined. The need to recognize and articulate these fundamental principles is amply demonstrated in the discussion of the operational recommendations that follows.

Among the operational changes the Report recommends are:

1) improved employment protections for ECB’s ALJs; 2) adoption of a Mayoral Executive Order patterned on 9 NYCRR §4-131; 3) adoption of a Code of Ethics for Administrative Law Judges similar to the one endorsed by the New York State Bar Association (NYSBA); )4… adjudication of administrative law violations that may result in fines of $5,000 or more or may, as a consequence of an adverse finding, result in substantial collateral consequences; 5) on-line dockets at ECB, including an on-line option to request a witness with personal knowledge to appear at a hearing; and 6) on-line access to a virtual ECB file for each NOV, including links to agency records, as well as records of prior decisions.

In addition, the Report recommends transferring the cases in which serious financial penalties or heavy collateral consequences may result from the ECB to OATH for a hearing with full due process procedures. Outlining the rationale for providing this alternate venue, the Report notes:

Providing the respondent with the option to transfer a case to OATH is appropriate because the respondent is in the best position to determine whether there would be collateral consequences from an adverse finding or whether ECB procedures, such as the overly broad taking of judicial notice, would prejudice him/her. Allowing more serious cases to be heard by OATH is also likely to discourage non-public rule making. In order for this plan to be effective, given the large number of pro se respondents, a detailed description of the option to transfer a case to OATH should be included on the summons itself.

This option to transfer cases to OATH would deal with three other troubling aspects of ECB procedures: lack of meaningful subpoena power; the overly broad discretion to take judicial notice of agency procedures and other facts; and the reliance on superficial inspections to support charges in complex situations that require a more through investigation. This procedural change would strike the proper balance between the need for prompt action for cease and desist or vacate orders and procedural due process.

The proposal to transfer cases from the ECB to OATH has precedent. According to the Report:

The City has reserved to itself the right to choose between the ECB and lower criminal courts for certain matters…This proposal would simply grant respondents the opportunity to select an alternate forum, in this case OATH, which would protect respondents from the collateral consequences of an ECB finding made without full due process protections.

The Report presents a sampling of collateral consequences showing the broad and far-reaching impact of an ECB conviction, which include license revocation or other loss of privileges or rights.

The Task Force acknowledges the recent efforts taken by the ECB to achieve greater efficiency and transparency but strongly supports changes that would further strengthen the adjudicative functions of the ECB, increase judicial Independence and result in a higher degree of transparency and greater public confidence. For a copy of this report, visit NYCLA’s homepage at www.nycla.org.

The New York County Lawyers’ Association (www.nycla.org) was founded in 1908 as the first major bar association in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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