Staff:
Mitchell B. Schwartz Donna
DeCostanzo
Counsel to the Committee Counsel to the Committee
Small Business Environmental
Protection
Neal Kronley Richard
Colon
Policy Analyst Policy
Analyst
Small Business Environmental
Protection
|
|
The
Council of
the City of New York
REPORT
OF THE INFRASTRUCTURE DIVISION
Marcel
Van Ooyen, Deputy Chief-of-Staff
September 29, 2005
Committee
on Environmental Protection
James Gennaro,
Chair
Committee on Small Business
Michael C. Nelson, Chair
INT. NO. 718: By: Council Member Reed, The Speaker (Council Member Miller) and Council Members Gennaro and Nelson
TITLE: To amend the administrative code of the city of New York, in relation to the administrative adjudications board.
CHARTER & ADMINISTRATIVE CODE: Amends section 1-112 of the code;
subdivision a of section 1404 of the charter; subparagraph a of paragraph 1 of
subdivision d of section 1404 of the charter; paragraph (8) of section 24-104
of the code; subdivision a of section 24-178 of the code; section 24-179 of the
code; subdivision c of section 24-180 of the code; section 24-184 of the code;
section 24-185 of the code; section 24-186 of the code; and amends subdivision
a of section 24-187 of the code.
INTRODUCTION
On September 29, 2005, the Committee on Environmental Protection and the Committee on Small Business, chaired respectively by Council Members James Gennaro and Michael Nelson, will hold a joint hearing on Int. No. 718, in relation to the Administrative Adjudications Board. Int. No. 718 would amend section 1404 of the New York City Charter, section 1-112 of the Administrative Code of the City of New York and several sections of title 24 of the Administrative Code with respect to the structure and operation of the Administrative Adjudication Board, the successor to the Environmental Control Board.
Small businesses face great challenges in opening their doors for business and in sustaining and growing their businesses in New York City. Small business owners are confronted with, among other challenges, a difficult economy, high taxes and vigorous competition from large chain retailers and franchisees. Despite the fact that small businesses make up two-thirds of the City’s total number of private sector jobs[1], and even though much of the City’s historical prosperity has been enjoyed on the backs of the small, entrepreneurial businesses who built it, government has unfortunately been a contributor to their current struggles. Over the last several years, government has been aggressively fining small business owners for an array of legal violations and has compounded their troubles by having the bulk of these fines and violations adjudicated before a dysfunctional body known as the Environmental Control Board (ECB).
Int. No. 718 seeks to remedy many of the deficiencies incumbent in procedures and adjudications of the ECB. Greater fairness, enhanced due process and more expeditious and accurate decisions are the goals sought through implementation of the provisions of this legislation. The measures of reform sought for this adjudicatory body (including changing its name from the Environmental Control Board to the Administrative Adjudications Board to better reflect the fact that it hears a broader array of cases that simply environmental-related issues) are meant to engender a more objective and fair decision-making process that will provide business owners with a greater level of confidence that decisions involving notices of violations issued to them will be made on the merits and with more accurate and complete information. Changing the adjudicatory environment surrounding the ECB from one that is currently severely lacking in respect and confidence from those who regularly appear before it to one where respondents will be assured that their rights will be upheld and their issues resolved in an objective and professional fashion is the pervasive theme of Int. No. 718.
ANALYSIS
Section 1 of Int. No. 718 sets forth the City Council’s legislative findings and intent. Section 2 of the bill would provide the first substantive amendment – effectively changing the name of the Environmental Control Board to the Administrative Adjudications Board by adding a new paragraph 22 to section 1-112 of the Administrative Code of the City of New York (Administrative Code).
Section 3 of the bill would amend subdivision (a) of section 1404 of the New York City Charter (Charter) which is entitled “Environmental Control Board”. The bill would rename the title to read: “Administrative Adjudications Board”. The subdivision would be amended to reflect that all references in the Charter and the Administrative Code to the Environmental Control Board (ECB) shall be deemed to mean the Administrative Adjudications Board. Subdivision (a) would also be amended to provide that the Administrative Adjudications Board (AAB) may, within its appropriation, appoint an executive director and any employees as it may deem necessary for the proper performance of its duties. This text differs from the existing text in that it allows the appointment of any employees the Board deems necessary – the existing text provides for the discretionary appointment by the Board of “such hearing officers, including non-salaried hearing officers”. This language would be deleted under the proposed legislation and replaced with the discretionary appointment by the Board of “any employees”. This change is made for the express purpose of eliminating hearing officers from the adjudicatory body of AAB.
The final amendment to subdivision (a) of section 1404 of the Charter is the addition of text providing for the appointment of a chief administrative law judge by the chairperson of the Board who, in turn, would appoint a staff of administrative law judges (ALJs) each of whom would be authorized to conduct hearings on any notice of violation within the jurisdiction of the AAB. Each of these ALJs must be an attorney in good standing admitted to practice in the State of New York for at least five years. Each ALJ would be appointed for a term of four years and could only be removed for good cause shown after notice and an opportunity for a hearing on the record. Such ALJ may be represented at such hearing by counsel. The substitution of ALJs for hearing officers by Int. No. 718 is considered critical in restoring the independence of the Board’s finders of fact and in improving the quality and expertise of these fact finders. The Board would no longer directly appoint the finders of fact – the chief administrative judge would – this would effectively eliminate any real or perceived notion that the finders of fact (who are currently per diem employees, and, as already stated, directly appointed by the Board) are beholden to the Board and are asked back to serve based upon the decisions that they make. Independent ALJs appointed by a chief ALJ, rather than the Board itself, minimizes this problem.
Section 3 of Int. No. 718 would amend subparagraph (a) of paragraph 1 of subdivision (d) of section 1404 of the Charter. This amendment replaces the “Environmental Control Board” with “administrative law judges” as the entity/individuals empowered to conduct proceedings for the adjudication of violations of the laws, rules and regulations within the jurisdiction of the Board and to render decisions and orders and to impose the civil penalties provided under law for such violations.
Paragraph (8) of section 24-104 of the Administrative Code would also be amended to reflect the name change of the adjudicatory body now known as ECB to the Administrative Adjudications Board. All references found throughout the Administrative Code to ECB would also be deemed to mean the AAB.
Subdivision (a) of section 24-178 of the Administrative Code would be amended to make clear that the AAB only has the power to conduct hearings through duly appointed administrative law judges. The Board itself may not conduct such hearings on its own. Similarly, section 24-179 of the Code would be amended to delete the following current text: “[I]f a member of the board has presided over the initial hearing, he or she shall not be disqualified from reviewing the hearing.” Deletion of this clause is appropriate because, under the provisions of Int. No. 718, no Board member may conduct such a hearing. Moreover, deletion of this text is proper in that even if a Board member had been allowed to preside over an initial hearing, and actually did preside over such hearing, it would appear inconsistent with basic principles of due process and American jurisprudence to then allow that individual to participate in a review of the hearing at which he or she made the decision.
Int. No. 718 would then amend subdivision (c) of section 24-180 of the Administrative Code which states what a notice of violation shall contain. In addition to the existing statutory specifications that must be contained within a notice of violation, Int. No. 718 would include one new requirement. The notice of violation must notify the recipient that he or she has the right, upon written notice received by both the AAB and the issuer of the notice of violation, to receive from the issuer of the notice of violation a list of the names of all witnesses who may be called by the issuer at the hearing, as well as copies of all documents intended to be submitted into evidence by the issuer at such hearing. This written notice must be received by both the AAB and the issuer of the notice of violation at least five business days prior to the time designated for a hearing on the notice of violation. The witness list and copies of documents must be delivered to the recipient of the notice of violation no later than two business days prior to the designated time for a hearing on the notice of violation. The addition of this right to timely “discovery” is meant to allow an alleged offender of the law the opportunity to acquire basic information regarding his or her alleged violation in order to permit such person the opportunity to prepare a defense to be presented at the hearing. Moreover, this pre-hearing discovery provision will allow a more thorough, expeditious hearing on the merits.
Section 24-184 of the Administrative Code regarding would be amended regarding who is designated to preside over hearings. Instead of the chairperson of the Board designating a hearing officer or one member of the Board to preside over hearings, the chief administrative law judge, appointed by the chairperson of the Board, would designate an ALJ from his or her staff to preside. Additionally, the final sentence of subdivision (a) of section 24-184 would be deleted under Int. No. 718. This sentence stated that in any hearing in which a quorum of the Board is present, such members of the Board shall be deemed to be sitting as the Board. This sentence is no longer necessary because Board members, under Int. No. 718, are no longer eligible to preside over hearings.
In the interests of bringing greater fairness and due process to the hearing process, Int. No. 718 would add a new subdivision (c) to section 24-184 of the Administrative Code (and would reletter existing subdivision (c) as subdivision (d) and existing subdivision (d) as subdivision (e)). New subdivision (c) would mandate that an interpreter be made available to respondents at AAB hearings, if necessary. An ALJ may accept as an interpreter a friend or relative of a respondent or witness, or any other person who can provide acceptable translation services. Such person shall be administered an oath as though he or she were a witness in such proceeding. If no such person is available, the ALJ shall direct that an interpreter be obtained from an official registry of interpreters or shall otherwise be assured that a qualified interpreter is provided[2]. The addition of this new subdivision ensures that a respondent can understand and communicate during a proceeding – an undeniably basic measure of fairness.
Existing subdivision (d) of section 24-184 (relettered as subdivision (e) under Int. No. 718) would allow any party to a hearing to make an application for production of any evidence relied upon by the opposing party. Again, this “discovery” right is granted in an effort to provide greater fairness to the parties and to allow for a more productive, thorough hearing. This subdivision would also be amended to reflect that all testimony will be taken before the designated ALJ rather than before the Board or the designated hearing officer.
The final amendment to Section 24-184 is the addition of a new subdivision (f) which would invest in an ALJ with the discretion to consolidate two or more notices of violation for adjudication at one hearing. Consolidation may be made upon application of any party and in the interest of convenient, expeditious and complete determination of cases involving the same or similar issues or the same parties. Again, this amendment to the law is meant to provide for more expeditious and complete hearings and determinations. Additionally, added convenience to parties with more than one notice of violation pending before the AAB would be achieved.
Section 24-185 of the Administrative Code, relating to defaults, would also be amended by Int. No. 718. Existing subdivision (b) would be relettered as subdivision (c) and a new subdivision (b) would be added. New subdivision (b) would provide that where a respondent appears at the designated time and place for a hearing pursuant to notices of violation issued pursuant to sections 24-180 (“Notice of violation”) or 24-182 (“Citizen’s complaint”) of the Administrative Code and the opposing party has failed to appear as of one full hour after such designated time, the respondent shall be given the option to adjourn the hearing or to proceed with the hearing. If respondent selects the latter option, the ALJ shall rely upon the notice of violation and any other evidence properly before him or her in order to dispose of the proceeding. New subdivision (b) would provide greater fairness to respondents appearing for a hearing when the opposing party has failed to timely appear. Instead of being required to wait for unreasonably long lengths of time for the opposing party to appear, the respondent would now be given reasonable options to proceed in a timely manner. The enforcement of a reasonable default time requirement would also serve to allow the AAB to more expeditiously dispose of its docket of cases.
Int. No. 718 would also amend section 24-186 of the Administrative Code which is currently entitled “Hearing officer’s decision”. This title would be changed under the bill to “Administrative law judge’s decision”. The substitution of the term “Administrative law judge” for the term “hearing officer” is undertaken throughout the section. Additionally, in subdivision (b) of section 24-186, a new option for appeal is inserted. Under the provisions of the bill, parties would no longer be required to exhaust all administrative remedies, including filing timely exceptions with the Board, prior to seeking judicial review of the final decision and order of the Board pursuant to Article 78 of the New York Civil Practice Law and Rules or other judicial action or proceeding. In the event that a party chooses to seek judicial review without first having filed timely exceptions with the Board, the ALJ’s decision shall be deemed to be the final decision and order of the Board.
The final section of law amended by Int. No. 718 is subdivision (a) of section 24-187 of the Administrative Code which relates to the decisions and order of the Board. The amendment solely pertains to the substitution of the term “administrative law judge” for the term “hearing officer or member of the board” in both places where such term appears in the subdivision.
Finally, the enactment clause for the legislation provides for the local law to take effect ninety days after its enactment into law, except that the Commissioner of Environmental Protection (the department that houses ECB/AAB) shall take such actions as are necessary to implement the provisions of the local law prior to such effective date.
CONCLUSION
Int. No. 718 is a bill that seeks to take a very active adjudicatory body, the ECB (renamed the AAB), and reform its processes and the way it does business so that it is more efficient, fair and objective. The implementation of these measures will go a long way towards reestablishing an attitude of confidence and respect towards this adjudicatory body which has severely lost credibility with the community, including many small businesses, that regularly appears before it.