Letter From The President Of The New York County Lawyers' Association

2010-01-05 01:00

To The Readers Of The Metropolitan Corporate Counsel:

Due Process in Administrative Law Tribunals: New York City's Environmental Control Board

The New York County Lawyers' Association has just issued "A Proposal for the Reform of the New York City Environmental Control Board," which is the sixth in a series of reports prepared by the Task Force on Judicial Selection on reform of New York City's administrative law tribunals.1 The Environmental Control Board ("ECB") deals with hundreds of thousands of matters annually, ranging from public nuisance cases (such as unlawfully entering a public park) to violations with potentially serious public health and safety consequences (such as unauthorized release of hazardous substances).The ECB can impose fines ranging from $50 to $25,000, and it can also issue injunctive remedies, such as ordering that a building be vacated or that work on a landmarked building be stopped.

NYCLA's report urges the ECB to adopt two basic principles:first, that the ECB be devoted to just and efficient adjudication of cases, and, second, that agencies bringing cases before the ECB be bound by adverse decisions.

Because of the large volume of violations over which the ECB has jurisdiction (according to the ECB, more than 700,000 in 2009, of which more than 500,000 were generated by the Department of Sanitation), it employs streamlined procedures for adjudications.Under these procedures, it is possible for an agency to prosecute a violation without proof of service on the respondent, for the administrative law judge to presume that the notice of violation or summons is true even though no witnesses are produced to substantiate that presumption, and for a respondent to pay a fine by mail without receiving notice that this may lead to serious collateral consequences.These procedures are clearly inconsistent with widely accepted principles of due process of law.

NYCLA's report suggests that although these streamlined procedures may be appropriate and necessary for relatively minor violations without collateral consequences, they are not suitable for cases that can lead either to significant fines or to significant collateral consequences, such as the loss of licenses that are required to carry on various types of business in New York City.In more serious cases, NYCLA's report urges, the respondent should have full access to the agency file on the matter before a hearing occurs, and should have the option to have the case heard before the Office of Administrative Trials and Hearings ("OATH").Hearings at OATH provide the respondent with full due process procedures, including a binding statement of the charges, prehearing disclosure, a requirement for disclosure of exculpatory material, the right to confront witnesses, and a trial record.

In addition, NYCLA's report urges the ECB to adopt improved employment protections for its administrative law judges ("ALJs").Many ALJs are employed on a per diem basis, leading to a public perception that they may be influenced to favor the agencies in order to retain their jobs.NYCLA has also urged, in a previous report, that New York City adopt a stronger code of conduct for ALJs, one that would prohibit ex parte communications between agency personnel and ALJs concerning cases under adjudication.2 A closely related reform is the elimination of non-public agency decision making using informal guidelines and memoranda that have not been promulgated in accordance with the City Administrative Procedure Act.

NYCLA's report acknowledges that the ECB has improved many of its procedures, including improving training for its ALJs and reducing backlogs, but urges that greater improvement is possible in most cases and is essential for the most serious cases under the ECB's jurisdiction.Adopting the reforms presented in NYCLA's report will improve the quality of justice available to the hundreds of thousands of New Yorkers who come in contact with the ECB each year without impairing the ability of the ECB to dispose of minor cases efficiently.


Ann B. Lesk

1 The report and its predecessors can be found at https://www.nycla.org/siteFiles/Publications/Publications1316_0.pdf.

2 The report can be found at http://www.nycla.org/siteFiles/Publications/Publications1166_1.pdf.