REPORT OF THE TASK FORCE ON JUDICIAL SELECTION: A PROPOSAL FOR THE REFORM OF THE NEW YORK CITY ENVIRONMENTAL CONTROL BOARD

14 Vesey Street

New York, NY 10007-2992

(212) 267-6646 • www.nycla.org

 

REPORT OF THE TASK FORCE ON JUDICIAL SELECTION:

A PROPOSAL FOR THE REFORM OF THE NEW YORK CITY ENVIRONMENTAL CONTROL BOARD

 

This Report was approved by the Board of Directors of the New York County Lawyers’ Association at its regular meeting on December 7, 2009.

 

Introduction

 

The Task Force on Judicial Selection (Task Force) of the New York County Lawyers’ Association (NYCLA) has as its focus preparing reports and making recommendations directed to improving the administration of justice.

This Report, the sixth in a series prepared by the Task Force regarding the operation of adjudicative administrative law tribunals in New York City, provides specific proposals for the reform of procedures of the New York City Environmental Control Board (ECB).

This report is in seven parts: Recent Developments at ECB, Recommendations on Principles, Recommendations on Operational Changes, The Problem, A Review of Specific Statutory and Regulatory Provisions, Additional Issues for Discussion, and Conclusion. In addition, a summary of the Task Force’s previous reports and comments on the operation of administrative law tribunals in New York City is attached in Appendix I, with the Task Force’s April 2009 Comments on the ECB’s Proposed Amendments to the Rules of Procedure attached as Exhibit A.

At the outset of this Report, the Task Force acknowledges the importance of the collegial working relationship 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). The Task Force hopes and expects that the contents of this Report will provide a basis for continued discussions of issues of importance to both NYCLA and the City of New York.

 

Recent Developments at ECB

 

From an administrative perspective, ECB has made considerable progress. For example, ECB is in the process of reducing the backlog of cases on appeal in New York County from 14 months to six months. ECB is able to publish basic statistics. From data provided by ECB, it appears that 704,680 Notices of Violation (NOV) were written in Fiscal Year 2009. Of these, 71 percent were generated by the Department of Sanitation. Of the 200,000 cases decided in Fiscal Year 2009, 61 percent resulted in convictions, 38 percent were dismissed and I percent were resolved by stipulation.

In addition, OATH and ECB report that training for the Administrative Law Judges (ALJ) has been significantly improved and expanded. New and returning ALJs have access to five days of training at OATH.

ECB is seeking to expand its adjudication by mail unit. While this may be appropriate for sanitation cases, there are questions as to whether mail adjudication is appropriate in more complex cases.

OATH and ECB have made significant improvements in the OATH website, which now includes pages for ECB, and is fairly easy to navigate. The information available to pro se respondents is presented in a simple manner. As discussed infra, NYCLA has additional recommendations in this regard, but given the existing technical and budgetary limitations, the present site is an asset to OATH and ECB.

In recent information provided by ECB, NYCLA noted that approximately 11 percent of cases were dismissed due to faulty issuance of the NOVs. ECB is performing correctly in dismissing such NOVs; the covered agencies need to do a better job in issuing accurate NOVs.

The recently provided ECB statistics also show that in approximately 70 percent of the cases, the respondent defaults. This report is not intended to address default issues but rather to deal with cases where the respondent is asserting a substantive defense.

 

Recommendations: Principles

 

Giving due recognition to the recent achievements summarized above, this Report recommends that two principles be enshrined in the ECB rules and six modifications be made to its operations to implement these principles. 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.

 

Recommendations: Operational Changes

 

The specific recommended operational changes are: 1) improved employment protections for ECB’s AUs; 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) access to OATH, at a respondent’s option, for 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.

1. Employment Protections

One of the most disturbing elements of the existing adjudicatory administrative law system arises from the per diem employment of the City ALJs, This status reinforces the perception that agencies assert pressure on ALJs to rule in favor of the agency, both on procedural issues, such as adjournments or subpoena applications, and in the ultimate results. Many per diem ALJs believe that they may be dropped from the rolls if their respective decisions fail to support the agency. Similarly, the uncertain status of the per diem ALJs means that these positions are not desirable, so that qualified candidates may be discouraged from applying.

 

In order for the ALJs to make objective findings of fact and to apply and interpret the law in a consistent manner, the ALJs need to be confident that making these objective findings and consistent legal conclusions will not adversely affect their employment. Therefore, ALJs need to be hired, trained, managed, supervised and discharged in a manner independent of the enforcement and prosecution divisions of the agencies employing them. While there have been improvements, particularly in the training of ALJs, further separation of the supervision and oversight of the AUs from the prosecution and administration functions is warranted.

 

2. Proposed Mayoral Executive Order Based on New York Code of Rules & Regulations Section 4-131 (NYCRR §4-131)

At the state level, NYCRR §4-131 regulates contact between agency employees, particularly the enforcement, management and prosecutorial divisions, and a state ALJ hearing a specific matter. Among other things, NYCRR §4-131 regulates ex parte communications, prohibits the agency from issuing informal rules regarding decisions or penalties and protects the state ALJ from retaliation by the agency in the event of adverse decisions. NYCRR §4-131 also effectively prohibits the investigative and prosecutorial divisions of a state agency from overseeing the operations of the adjudicative division.

Adoption of a Mayoral Executive Order based upon the provisions contained in NYCRR §4-131 would also address one of NYCLA’s greatest concerns: namely agency use of unpublished memoranda, amounting to non-public rule making, without regard to the rule- making provisions of the City Administrative Procedure Act, NYC Charter §1045 (CAPA). The impact on the ALJs of non-public agency decision making by management and prosecutorial divisions is evident in New York Restaurant Assoc, v. New York City Department of Health and Mental Hygiene, 5 Misc.3d 1009(A), 798 N.Y.S. 2d 711 (Sup. Ct. N.Y. Co. 2004). There, Justice Edward Lehner invalidated “guidelines” provided to inspectors regarding penalties to be imposed on violators because the “guidelines” had not been issued in accordance with CAPA. Undeterred by Justice Lehner’s opinion, the Department of Health and Mental Hygiene re-adopted these “guidelines” by memorandum.” This is precisely the type of conduct that NYCLA believes should be eliminated, not only because of its great potential for unfairness to individual respondents, but also because it undermines respect for the law and the system of justice. While the case referred to did not arise at ECB or the covered agencies, the issues involved are applicable and relevant to ECB. This non-public approach to rule making is even more problematic given the heavy fine structure and significant collateral consequences associated with an ECB finding against respondents.

 

3. Proposed New York State Bar Association (NYSBA) Code of Conduct for Administrative LaW Judges

Like all other participants in an adversary system, ALJs need ethical guidance. NYCLA believes that the Code of Conduct for ALJs adopted by the City does not provide adequate support for judicial independence in the ALJ’s decision-making role. The NYSBA Code of Conduct for Administrative Law Judges has provisions that are consistent with both the provisions of NYCRR §4-131 and the obligations for judging cases according to the law and facts as set forth in the New York State Code of Judicial Conduct. These NYSBA Code provisions should be incorporated into the City Code.

4. Alternative Forum: OATH

While streamlined procedures may be appropriate for a minor sanitation case with no collateral consequences, they are not appropriate for high-penalty cases or matters in which the collateral consequences might involve a license revocation or other loss of privileges or rights. Cases with potentially heavy fines or other loss of privileges or rights cannot fairly be heard and decided under the procedural rules discussed below.

In cases with serious financial consequences, including the potential for the adverse finding to be evidence in a permit or license revocation, the responding party should have the option to transfer the case to OATH for a hearing with full due process procedures, including a binding statement of the charges, pre trial disclosure, a mandate that the agency provide Brady- type material, the right to confront witnesses and a trial record.

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. See supra at Recommendation 2. 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.

Unlike at ECB, in hearings before OATH, the agencies do not have the unilateral ability to limit the respondent’s right to subpoena documents and witnesses. Those decisions are within the province of the OATH judge, whose broad discretion to take judicial notice is not outcome determinative.

In matters of health and safety, the public interest may be well served by emergency action at ECB where the City is presumed to be in the right. However, these orders should be considered to be in the nature of preliminary injunctions. In subsequent proceedings, the ECB emergency order should not be conclusive evidence of a violation or dangerous condition or action and the matter should be heard de novo by OATH.

At OATH, the final resolution of emergency actions occurs in a more considered manner: the nature of the process would require the agencies to conduct thorough investigations rather than relying on a Polaroid snapshot taken of a specific condition without reference to the documents in the file or other issues. While such a snapshot may be competent evidence in sanitation cases where the issues are straightforward, such as whether the sidewalk is dirty, this approach is more problematic when agency records and files bear on the case.

The NYCLA proposal for the option to transfer cases from ECB to OATH has precedent. The City has reserved to itself the right to choose between ECB and lower criminal courts for certain matters. (E.g., NYC Code §26.204.21 and 66 RCNY §1-37.) 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.

Moreover, if the high-penalty and heavy collateral-consequence cases were transferred from ECB to OATH at the option of the respondent, this could reduce the need for ECB to institute more involved procedures for minor matters, such as unlawful entry into a park.

5. On-Line ECB Docket

ECB hears cases five days a week. On a typical day, a respondent may arrive between 8:30 am and 9:30 am and may wait until after 11:00 am to be called. Frequently, the ease must be adjourned the first time because the officer who issued the NOV is not present. From time to time, respondents may wait two or more hours for an agency representative to appear, at which point the process of adjourning cases begins. Recently, ECB has adopted rules intended to manage the long delays, but these rules, while an improvement, are not the entire solution. See infra Appendix 1.

If ECB dockets were available on-line and a respondent could request the issuing officer’s presence through an on-line docket, the long, unproductive waits at ECB would be reduced. On-line dockets would also make it easier for the public and the press to follow cases of interest.

6. Virtual ECB Files With Links

Respondents should be able to view the evidence against them prior to the hearing. This could be accomplished by placing ECB files on line, including supporting photographs, and would allow respondents to evaluate evidence and plan demands for agency files in advance of an initial hearing.

By way of illustration: The Department of Sanitation writes NOVs for unpermitted posting of advertising. On one occasion, DOS found approximately 120 posters for an event scattered along the Brooklyn-Queens border, with one of the producers listed as “CC Productions.” After DOS conducted “research” on the New York State Secretary of State website and found an entity named “C.C. Productions Corp,” it issued all the NOVs to this entity, which was not in the advertising or event business. C.C. Productions Corp. first saw the offending posters on the day of the hearings on all of the NOVs and discovered the offending posters had two addresses and four telephone numbers, none of which belonged to nor were associated with C.C. Productions Corp. According to the testimony at the hearing, DOS had not checked any of the addresses or telephone numbers on the posters. At one point, C.C. Productions Corp. proposed an adjournment to investigate the addresses and phone numbers published on the offending posters, but the ALJ found more than sufficient reason to dismiss the NOVs without that additional evidence. However, by not showing C.C. Productions Corp. the offending poster until the hearing, DOS denied C.C. Productions Corp. the opportunity to defend itself fully against the NOVs.

Similarly, the residential corporation referred to in the next section would have greatly benefited from access to a virtual file at the Department of Environmental Protection (DEP) showing the original permit issued to the business corporation. That would have allowed the residential corporation to have the first NOV dismissed more quickly and without the expense and inconvenience of having three witnesses appear at a hearing.

 

The Problem: ECB’s Streamlined Procedures Are Not Appropriately Applied To All Cases

 

According to the ECB website, http://www.nyc.gov/html/ecb/html/home/home.shtml, ECB hears cases of “quality of life” or “victimless” offense violations. Based on this view of the nature of its cases, the agency relies on “streamlined” procedures to hear and decide cases, which enables ECB to process a significant volume of cases efficiently, while allowing the ticketing officers to avoid an appearance before the administrative tribunal in most cases. These streamlined procedures are premised on the assumption that the resolution of the cases has only minor consequences for respondents summoned to these tribunals.

The actual nature of cases heard at ECB often goes well beyond quality-of-life issues and involves the operations of residential and commercial buildings and businesses, which may not view the cases as victimless offenses as defined by the “Broken Windows” theory because they may result in substantial fines and collateral consequences. As a result, ECB’s reliance on streamlined procedures appears inappropriate for cases with serious fines, significant collateral consequences or both.

By way of illustration: A building is shared by a residential corporation and unrelated business corporation. However, as the City deems each building to be a single entity, DEP issued two successive NO Vs against the separate and independent residential corporation because of the business corporation’s violations. In addition to the possibility of fines, the residential corporation faced collateral consequences from conviction on the NOV, including being barred from obtaining DEP or building permits required for any building alterations. The residential corporation succeeded in having the NOV dismissed but only after it submitted approximately ten exhibits and the testimony of three witnesses. DEP did not appeal the decision. However, a few weeks later, DEP proceeded to write a second NOV to the residential corporation based on the same charge. (The issuing DEP officer wrote the NOV after being shown a copy of the decision dismissing the first NOV.) The residential building protested forcefully and appealed for help from the Mayor’s Coordinator of Administrative Justice, who urged a review of the NOV. Eventually DEP’s consumer affairs group (established at the urging of the Real Estate Board of New York) reviewed the file and determined the violations had no relevance to the residential corporation. After more inspections, DEP voluntarily dismissed the second NOV.

The foregoing incident illustrates many of the problems with ECB’s streamlined procedures, including: 1) the presumption that the NOVs are true and correct although DEP’s records demonstrated that the NOVs were not properly issued to the residential corporation and its own follow-up inspection undermined the bona fides of the first two inspections; 2) the lack of an unqualified right of access to the DEP file on the part of the responding residential corporation, which might have given it valuable evidence to defeat the charge contained in the NOV; and 3) the lack of binding precedent that placed the residential corporation at risk of having the same charge brought against it repeatedly.

 

A Review of Specific Legislative and Regulatory Provisions

 

ECB has jurisdiction over violations of administrative codes said to govern quality of life, broadly defined as including: the Sanitary Code, Building Code, Fire Code, Trade Waste Regulations, Park Regulations, Non-Vehicular Transportation Regulations, Landmark Regulations, Consumer Affairs Regulations, Environmental Regulations, Mental Health and Hygiene Regulations and Information Technology and Telecommunications Regulations.

Thus, ECB hears a wide range of cases, from what are commonly considered public nuisance cases where fines might be as low as $50 for violating 56 RCNY 1-04 (k) (unlawfully entering a park or climbing on park property), to matters having a direct impact on public health, safety and welfare, where the fines are as high as $25,000 for violating NYC Code §16-117.1 (unlawful transport of asbestos-containing material) or NYC Code §24-609 (unauthorized release of hazardous substances).

ECB not only issues fines but is also authorized to issue directions to act, including: vacate orders, i.e., vacate a building, (NYC Code §15-227 and NYC Code §26-127 (e); cease and desist orders ( NYC Code §24-257); confirm termination of water supply orders (NYC Code §24-346); confirm sewer disconnect orders (NYC Code §24-524); stop work orders for Landmark buildings (NYC Code §25-317.2); and the impoundment of motor and other vehicles (NYC Code §16-118 & 119, NYC Code §18-108.1, NYC Code §19-171.1, NYC Code §22- 220; and NYC Code §22-262.1 and 38 RCNY §18-02 and 66 RCNY§l-37).

There are serious collateral consequences from ECB findings adverse to respondents. For example, failure to pay fines imposed by ECB may result in loss of permits and licenses to work within New York City in a variety of contexts, including: special or master rigger’s licenses (1 RCNY §9-04); mooring permits (56 RCNY §4-04); private carting permits (16 RCNY §1-10), vendor licenses issued by the Department of Consumer Affairs (NYC Code §20- 467); and driver’s licenses (NYC Code §16-119). ECB may also create tax liens against real property (NYC Code §26-126.5); transfer pay phone permits (67 RCNY §6-31); suspend review of Department of Transportation permits (NYC Code §19-103); and refuse to issue or renew building permits (NYC Code §26-204.21). This sampling of collateral consequences shows the broad and far-reaching impact of an ECB conviction.

ECB’s enabling legislation is found at NYC Charter §1404, with the procedures observed for ECB matters found at 15 RCNY §§ 31-11 et seq. (hereinafter “ECB Rules”). As discussed earlier, ECB uses what are termed streamlined procedures to procure the convictions that often result in the large fines and have substantial collateral consequences.

Proceedings begin with a Notice of Violation (NOV.) The contents are limited to stating the date and place of the occurrence, the rule violated and a brief description of the violation. The maximum penalty is set forth, but there is no mention of collateral consequences. Service is by mail to a respondent. Judicially, this requirement has been interpreted to require mailing the NOV to a “current” address for the respondent. In Re 72A Realty Associates v. Environmental Control Board, 275 A.D. 2d 284 (1st Dept. 2000). The prosecuting agency is supposed to file proof of service but failure to do so does not stop adverse proceedings. Taking an adverse action without proof of service appears to raise serious due process issues. NYC Charter §1404.

There are three other parts of the ECB procedures that are troubling: the presumption that the summons is accurate, the requirement that a fine be paid in advance of taking an appeal and the lack of standards for taking judicial notice. See infra.

The first of these procedures is found at NYC Charter §104 d (1) (b) and ECB Rule 31- 54, which both provide that a notice of summons, “sworn or affirmed,” is prima facie evidence of the facts contained therein. This provision is designed to allow the City to bring an administrative proceeding, including those that may involve substantial fines and significant collateral consequences, without providing witnesses with direct knowledge. The result appears to require a respondent to prove innocence, a presumption contrary to basic due process considerations in view of the punitive consequences often involved. Moreover, this provision shields the agencies from conducting a thorough investigation as opposed to a superficial inspection. In sanitation cases, this is not as significant as in other cases where there may be substantial documentary records spanning months, even years, of activity bearing on the NOV.

The argument that ECB proceedings are administrative and address merely quality-of-life issues and therefore do not require proof of the violation does not stand up to scrutiny where heavy fines and significant collateral consequences are involved. U.S. v. Regan, 232 U.S. 37, 34 S.Ct. 213 (1914) stands for the proposition that criminal penalties may be sought in a civil proceeding for money damages only. If ECB proceedings were purely for money damages and had no collateral consequences, then Regan would provide a safe harbor for ECB. But that is not the case: ECB convictions may carry burdens beyond payment of fines and, therefore, have the indicia of penalties.

Briefly, the ECB Rules provide as follows. The NOV allows for mail-in payment. Payment is deemed an admission of liability but respondents are not given express notice of the potential for collateral consequences. This would appear to be unfair to respondents and inconsistent with basic notions of due process. NO Vs should be required to provide notice of the specific possibilities of collateral consequences.

ECB Rule 31-34 provides for adjudication of certain cases by mail. The fine is not the only issue as the collateral consequences of even one conviction can be severe. This suggests that mail adjudication without written warnings may not be appropriate for due process reasons.

ECB Rule 31-17 provides that decisions are to be maintained by the “Executive Director” for one year and be available under FOIL. Decisions by ECB should be published and available to the public. There should be no need to utilize the slower FOIL procedures. This reform would promote confidence in the process.

ECB Rule 31-33 enables respondents to obtain an extension of time from the Executive Director “for good cause.” This appears to be a one-time opportunity per NOV. If so, good- cause extensions should be available whenever good cause is, in fact, demonstrated.

ECB Rule 31-36 allows for consolidation of cases having “the same or similar issues” or the same parties. Consolidation where the parties are the same appears reasonable from a due process perspective, but consolidating cases of unrelated parties, for any reason, given the fine structure and the possibility of collateral consequences, does not appear consistent with due process considerations.

ECB Rule 31-73 precludes an appeal unless the fine is paid. An appeal in a case that has collateral consequences of the type associated with an ECB conviction should not have payment of fines as a pre-condition to an appeal.

ECB Rule 31 provides that the ALJ may take judicial notice of any fact. There does not appear to be any limit on this power. In a case in which the respondent challenges some procedure at the agency and the ALJ takes judicial notice of the correct procedure, the challenge is aborted without a hearing on the merits and the finding is in favor of the City agency. This judicial notice provision is part of the problem inherent in deciding eases based on unpublished rules and unpublished decisions. See infra.

ECB Rules allow for subpoenas and disclosure, but in practice, the disclosure and subpoenas provisions are not as effective as they should be. The prosecuting agency appears to have the right to decide what to provide based on the agency’s evaluation of the defense. The agency dues not provide any live witnesses other than the officer who wrote the violation. Respondent’s counsel may obtain evidence through the use of FOIL but this is not an efficient or appropriate way for a proceeding to move towards resolution. Moreover, there is little respondent’s counsel can do in the face of the very liberal judicial notice provisions. Also cutting against the ECB Rules respecting subpoenas and disclosure is the absence of a requirement for mandated disclosure of exculpatory or Brady-type material.

ECB also has appellate procedures. Either the respondent or the City agency may appeal an adverse decision. The appeal is on the record below. Typically, appeals are in writing and considered by three members of ECB, no one of which may be from the appealing agency. Anecdotal evidence suggests that City agencies are very rarely able to overturn a decision in favor of a respondent. NYCLA has been advised that statistics are maintained on appeals, particularly as to the reduction of a backlog, but these statistics are not as yet available.

Recently, ECB has been undergoing some reorganization. Pursuant to Local Law Intro 777-2008 effective November 23, 2008, ECB was made part of OATH. The legislation and subsequent rule making also made changes to the operations of ECB, limiting the inconvenience to respondents arising from the agencies seeking multiple adjournments, introducing translation facilities previously lacking and creating the option for a respondent, who does not receive a final decision within 180 days, of filing an exception to commence an Article 78 proceeding in Supreme Court.

Effective November 2008, ECB began publishing a newsletter available at its website www.nyc.gov.html/ecb. To the extent this publication is used to better inform the public about ECB procedures and rules, particularly pro se respondents, this development is a positive one.

The Task Force applauds these efforts but, as discussed above, the additional recommendations outlined in this report will strengthen the adjudicative functions at ECB.

Additional Items for Discussion

Because the Task Force does not believe the current system is working as well as it should, it has been considering methods for dealing with the need for City agencies to provide documents and other evidence relating to NOVs. One option is to develop, by agency, a standard package of documents and evidence that must be delivered to any respondent. This could resolve some but not all of NYCLA’s disclosure issues.

The Task Force has also been discussing whether some Department of Building (DOB) disputes are susceptible to mediation. DOB presents some of the more complex issues at ECB. Some DOB cases are complicated and expensive and the type of outcome at ECB is not necessarily satisfactory to all concerned. As DOB’s primary goal is safety, mediation may be a means of addressing cases where there are bona fide issues as to whether a condition is safe and may provide the best means of remediation. Mediation may be particularly helpful where DOB has multiple property owners involved in filing competitive complaints.

 

Conclusion

 

The Task Force on Judicial Selection urges that serious consideration be given to the comments and suggestions for improvement contained in this Report.

 

Task Force on Judicial Selection

Co-Chairs

Hon. Margaret J. Finerty

Susan B. Lindenauer

 

Members of the Task Force on Judicial Selection

 

Nelson Aviles Morrell I. Berkowitz Scott M. Berman Peter Bienstock Catherine A. Christian James E. D’Auguste Harley D. Diamond Rosalind S. Fink Paula Galowitz Norman L. Greene James B. Kobak Jr.

Ann B. Lesk Thomas V. Marino Lloyd McAulay Jane S. Meyers Hon. Lorraine D. Miller Paul J. O’Neill Jr. Susan J. Pogoda Hon. Richard Lee Price Fem Schair Carol A, Sigmond Asha Smith Rhonda Tomlinson

 

Appendix 1

 

Background on The Task Force

In September 2003, New York County Lawyers’ Association’s then President, Michael Miller, created the Task Force on Judicial Selection, whose purpose was to promote the administration of justice. Thereafter, the Subcommittee on City Administrative Law Judge Reform (ALJ Subcommittee) was created to report on the operations of the New York City administrative law system.

The ALJ Subcommittee prepared a report, approved by the NYCLA Board of Directors on September 12, 2005, entitled Report on Administrative Law Judge Reform of the Task Force on Judicial Selection (Subcommittee Report) It identified three basic problems with the organization and operation of the City’s various adjudicative administrative law forums. The common theme was that the problems served to undermine public confidence in the decisions of these bodies. The specific deficiencies identified by the Subcommittee Report were: 1) lack of the appearance, if not the reality, of judicial independence; 2) lack of a uniform Code of Ethics for Administrative Law Judges; and 3) procedural weaknesses that were outcome determinative in certain cases. The Subcommittee Report expressed concern that revenue collection, not the even-handed administration of justice, appeared to be the primary goal of the City’s system.

On January 30, 2006, Mayoral Executive Order 84 was promulgated, creating the position of Coordinator of Administrative Justice (ALJ Coordinator). In response to the proposed creation of the ALJ Coordinator position, NYCLA had issued an ALJ Subcommittee report, dated May 9, 2005, on the ALJ Coordinator position. On balance, the report stated that while NYCLA did not believe that a new coordinator position was the complete answer to the problems with the system, it supported the change. On August 17, 2006, David Goldin, Esq., was named ALJ Coordinator.

Shortly after Mr. Goldin’s appointment as ALJ Coordinator, then NYCLA President, Edwin David Robertson, Task Force member and then ALJ Subcommittee Chair, Thomas V. Marino, and NYCLA Counsel, Marilyn J. Flood, met with Deputy Mayor Carol Robles-Roman and Mr. Goldin. Marino, and NYCLA Counsel, Marilyn J. Flood, met with Deputy Mayor Carol Robles-Roman and Mr. Goldin.

In late 2006, and acting pursuant to the vote of the public on a Charter Amendment on November 8 2005, calling for a Code of Ethics for New York City ALJs, the City of New York issued Proposed Rules of Conduct for Administrative Law Judges and Hearing Officers in the City of New York (Code of Conduct), which the Task Force reviewed. On January 4, 2007, then NYCLA President Robertson offered testimony on the Code of Conduct before the Office of Administrative Trials and Hearings (OATH) in which he expressed NYCLA’s concern that the proposed Code, subsequently promulgated, did not sufficiently promote judicial independence and the rule of law. NYCLA was particularly concerned with the provisions that allowed for ex parte communications between the agency and the ALJs. NYCLA also urged adoption of a Mayoral Executive Order patterned on 9 NYCRR §4-131.

On April 28, 2009, NYCLA submitted comments on Proposed Amendments to the Rules of Procedure of the Environmental Control Board involving notices of appearance, translation services, adjournments and appeals. NYCLA supported the provisions of Section 3-11, which formalized a party representative’s announcement of his/her status, and noted that this provision should prevent witnesses or interested persons from filing an appearance as a party in an ECB proceeding and interfering with the rights of the named respondent to defend himself/herself. NYCLA also endorsed the new sections providing for language-assistance services and procedures for judicial review for respondents who do not receive final decisions and orders within 180 days from the filing of exceptions. NYCLA expressed its concerns about Section 3.16(c), which allows agency appearances by a person who may lack knowledge of the case and is likely to lead to an adjournment. NYCLA also proposed that the time frame for timely appearances be the same for both respondents and the agency. Further, NYCLA recognized that while Section 3-52.1(b) acknowledges that respect for a respondent’s convenience should be a major concern in routine adjournments, it, as well as the following Section (c), needed to be rewritten to clarify for respondents the different scenarios that might trigger adjournments.

COMMENTS BY THE NEW YORK COUNTY LAWYERS’ ASSOCIATION ON THE PROPOSED AMENDMENT OF THE RULES OF PROCEDURE OF THE ENVIRONMENTAL CONTROL BOARD

 

These comments were approved by the Executive Committee of the New York County Lawyers* Association at its meeting on April 28, 2009,

The New York County Lawyers’ Association (NYCLA) appreciates the opportunity to comment on the Proposed Amendment of the Rules of Procedure of the Environmental Control Board.

This is the fifth time that NYCLA, through its Task Force on Judicial Selection, has commented or testified on or discussed in a public forum the New York City administrative law system, This report is of limited scope and addresses the Proposed Amendment of the Rules of Procedure of the Environmental Control Board (ECB) respecting notices of appearance, translation services, adjournments and appeal procedures.

Section 3-11 contains a new definition for “Appearance.” The change seems intended to formalize a party representative’s announcement of his/her status. This should prevent witnesses or interested persons from filing an “Appearance” in an ECB proceeding, thereby interfering with the right of the named respondent to defend himself/herself. Non-parties with an interest in the outcome of eases have been known to enter appearances with guilty pleas in ECB proceedings, which prolongs the case for the named respondent and increases his/her costs. NYCLA supports the new definition for “Appearance.”

Section 3-16 (e) liberalizes the concept of “Appearance” for an agency. One of the most persistent complaints about the operation of ECB is that respondents appear at the scheduled time and wait for the agency to appear. Rule 3, 16 (c) would allow an “Appearance” by an agency by a person who may lack knowledge of the case. NYCLA acknowledges that this procedure saves agency time and expense in the instances when the respondent does not appear, but the likely effect on the respondent who does appear timely is to require an adjournment.

Section 3-51 contains a new subsection (f) that provides for language-assistance services. This is a positive improvement in the operation of ECB as it gives respondents whose English is limited the opportunity to understand the proceedings and defend themselves in their native languages, NYCLA enthusiastically supports this important new resource for respondents.

Section 3-52.1 (a) (i) requires that a respondent, in order to preserve his/her rights, must appear within one hour of the scheduled hearing time. The agency may appear within two hours of the scheduled hearing time. NYCLA recommends that the timeframe for a timely appearance be the same for both the respondent and the agency.

The purpose of Section 3-52.1 (b) is laudable, acknowledging that respect for the respondent’s convenience should be a major factor in preventing routine adjournments of cases when the respondent timely appears. However, this section lacks clarity as to the instances when the hearing officer may adjourn the hearing. NYCLA recommends that this section and the following section (c) be written in clearer language so that respondents will understand the different scenarios that may trigger an adjournment, as well as the procedures when an agency claims “extraordinary circumstances” as a reason for failing to appear.

Section 3-76 provides important new procedures, particularly for respondents who do not receive a final decision and order within 180 days from the filing of exceptions. Respondents will now be able to seek judicial review. NYCLA strongly supports this procedure.

NYCLA is pleased to submit these comments on the Proposed Amendment of the Rules of Procedure. From the broader perspective of the elements of a fair and equitable system of administrative law, NYCLA urges ECB to give due recognition to its own precedents and to apply the principles of res judicata and collateral estoppel in its procedures.