Establishment of Trials Division and Hearings Division
Proposed Rules: Closed to Comments (View Public Comments Received:2)
Statement of Basis and Purpose
Section 1049 of the Charter authorizes the Chief Administrative Law Judge of OATH to direct the office with respect to its management and structure and to establish rules for the conduct of hearings. With this rule, OATH is modifying its procedural rules to streamline processes, provide greater consistency across tribunals and give OATH the flexibility to transfer or allow new types of cases to be made returnable to OATH in the future. Changes include the revision of Chapters 1 and 2 of Title 48 of the RCNY and the repeal and reenactment of Chapter 6.
The OATH Trials Division
The changes to Chapters 1 and 2 rename the entity governed by these rules as the “OATH Trials Division.” These changes include:
· modifying captions for Chapters 1 and 2 and Subchapter D;
· adding a definition of “Trial” to section 1-01;
- changing the words “hearing” and “hearings” to “trial” and trials” throughout; and
- providing a mechanism for review by the Chief Administrative Law Judge to determine the proper venue for hearings or trials.
The OATH Hearings Division
The changes to Chapter 6 expand the applicability of these rules to the newly created OATH Hearings Division. They also modify various procedures relating to pre-hearing rescheduling, adjournments, notifications, defaults, appeals, conduct of participants, and other matters in order to simplify, clarify and expedite the adjudications process. Where appropriate, the changes make the procedural rules at the OATH Hearings Division consistent with those of other tribunals at OATH.
Specific Amendments to be Enacted
The rules in Chapter 6 have been broken down into subchapters to provide for better clarity and readability.
In Section 6-01“Definitions Specific to this Chapter,” the terms “Adjournment,” “Appearance,” “OATH” and “Reschedule” are added, and the term “Hearing Examiner” is changed to “Hearing Officer.” The term “Department” is deleted and the term “Petitioner” is modified to reflect that cases will be initiated by various agencies. The terms “Board of Health” and “Health Code” are also deleted as references to both are now contained within the rules that specifically refer to them.
Section 6-02 “Jurisdiction, Powers and Duties of the OATH Hearings Division” is changed to permit the Tribunal to adjudicate Notices of Violation issued by any agency consistent with applicable law. It also reflects that settlement conferences are not being held at the Tribunal. The remainder of former section 6-02 is renumbered as 6-13 “Hearing Officers.”
Section 6-03 “Language Assistance Services” has been added to clarify that these services are available at the Tribunal.
Section 6-04 “Computation of time” continues, with one minor modification, former Section 6-10 “Computation of time.” Subdivision (b) of this section is modified to provide that if a Tribunal decision is mailed to a party, five, rather than seven, days will be added to the period of time within which the party has the right or requirement to act.
Subchapter B -Pre-Hearing Procedures
New Section 6-05 is titled “Pre-Hearing Requests to Reschedule” and includes material formerly found at section 6-04 with some changes:
· It sets forth the procedures by which respondents may make a request to reschedule a hearing and reduces the number of requests to one per party for each violation.
· It extends the time, up until the time of the scheduled hearing, in which a respondent may request to reschedule a hearing.
· It requires that the petitioner notify the respondent three days before the hearing if the petitioner requests to reschedule the hearing.
Section 6-06 “Subpoenas” is deleted in its entirety. The Hearing Officer’s ability to issue subpoenas remains in Section 6-13(b).
New Section 6-06 “Pre-Hearing Requests for Inspectors” contains text from former section 6-05(f)(i)(a) but shortens the time frame for respondent requests from seven business days prior to the scheduled hearing date to three business days. Such request is considered a request to reschedule under section 6-05.
Section 6-07 is added to include a provision for Pre-Hearing Discovery. This provision is consistent with rules governing other tribunals at OATH, which set out the scope of pre-hearing discovery.
Subchapter C -Hearings
Section 6-08 “Proceedings before the OATH Hearings Division” simplifies the requirements of service previously located at section 6-03(b) by no longer requiring certified or registered mailing. It also deletes language specific to the Department of Health and Mental Hygiene as to who may be served.
Section 6-09 “Appearances” reorders former section 6-04, with some changes. The provision allows for the adjudication of cases in person, by mail or online. Appearances by mail and online are allowed unless the Notice of Violation specifies otherwise. An in-person appearance must be at the time, as well as on the date, of the scheduled hearing. This section sets forth what happens when either the petitioner or the respondent fails to appear at the scheduled time. In addition:
· The provisions in former section 6-04 subdivision (b) detailing requirements for appearances by mail are moved to Section 6-10 “Adjudications by Mail and Online.”
· The provisions in former section 6-04 subdivision (c) for pre-hearing adjournments are moved to Section 6-05 “Pre-Hearing Requests to Reschedule.”
· The provisions in former section 6-04 subdivision (d) for requests for adjournments made at the hearing are moved to Section 6-14 “Requests for Adjournments.”
· The provisions in former section 6-04 subdivision (e) detailing the procedures for defaults upon a failure to appear by respondent are moved to Section 6-20 “Default” and Section 6-21 “Request for a New Hearing after a Failure to Appear.”
· New subdivisions (c) and (d) detail procedures for appearances by the petitioner and what happens when a petitioner fails to appear at the scheduled time.
Section 6-10 “Adjudication by Mail and Online” renumbers and renames former section 6-05, previously titled “Hearings and adjudications in person, by mail, or by telephone.” It includes former sections 6-05 (a) and (h). If the Notice of Violation specifies the respondent must appear in person, these methods of adjudication may not be used.
Section 6-11 “Hearing Procedures” is a new section that incorporates with some modifications, provisions contained in subdivisions (a), (b), (c), and (j) of former Section 6-05 “Hearings and adjudications in person, by mail, or by telephone.”
· The provision in subdivision (b), “The hearings shall be open to the public,” is removed to accommodate the conduct of hearings by mail, telephone and online.
· New subdivision (d) requires that counsel or authorized representatives who appear on behalf of respondents have sufficient staffing to complete their scheduled hearings. It also gives the Tribunal discretion to determine the order in which the Notices of Violations are heard.
Section 6-12 “Burden of Proof” is a new section that contains portions of former section 6-05(e).
Section 6-13 “Hearing Officers” is a new section that clearly delineates the powers of the Hearing Officers. It includes the powers of Hearing Examiners formerly found in section 6-02(c), information about amending Notices of Violation formerly found in section 6-03(d), and subpoena powers formerly found in section 6-06.
Section 6-14 “Requests for Adjournment” contains provisions regarding requests for adjournment made at a hearing, previously contained in Section 6-04(d). It lists factors that will be considered in deciding whether there is good cause to grant an adjournment request.
Section 6-15 “Appearances of Inspectors” is a new section that incorporates, with some modifications, the provisions that were previously contained in Section 6-05(f).
· Subdivision (a) sets forth the procedure for a respondent to request the presence of the inspector at the time of the hearing. Such request is considered as a request to reschedule the hearing and follows the rules outlined in Section 6-06, which permits such a request up to three, rather than seven, business days prior to the hearing.
· Subdivision (c) permits a hearing to be adjourned no more than two, rather than three, times for the presence of the inspector.
Section 6-18 “Payment of Penalty” is a new section that incorporates, with some modifications, the provisions formerly found in Section 6-05(i). Fines imposed must be paid within thirty days of the date of the hearing decision. OATH will no longer impose late payment penalties if the fine is not paid on time.
Section 6-19 “Appeals” incorporates, with some modifications, the provisions formerly found in Section 6-08. It also adds a provision for extending the time to file an appeal due to impossibility or other explanation as well as a provision tolling the time to appeal if a recording is requested.
· Subdivision (c) describes the record to be considered on appeal and limits the evidence to that which was presented at the hearing.
Section 6-20 “Defaults” contains provisions previously contained in Section 6-04(e) regarding the consequences of a failure to appear at a hearing. Default decisions no longer need to be rendered by a hearing officer.
Section 6-21 “Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)” contains provisions previously contained in Section 6-04(e)(3) regarding procedures for motions to vacate a default.
· Subdivision (c) lists circumstances to be considered in determining “reasonable excuse” for a respondent’s failure to appear at the hearing.
· Subdivision (e) provides that if a motion to vacate a default has been previously granted and a new default decision has been issued for the same Notice of Violation, the second default decision will not be opened except in exceptional circumstances and in order to avoid injustice.
· Subdivision (f) provides that a motion to open a default received more than one year after the default decision will not be granted except in exceptional circumstances and in order to avoid injustice.
· A new subdivision (g) has been added to clarify that if a motion to vacate a default is granted, requests for refunds of payments made after default will not be considered until after the hearing is completed.
Section 6-22 “Disqualification of Hearing Officers” contains provisions formerly found in Section 6-07. There are no major substantive rule changes in the section.
Section 6-23 “Registered Representatives” incorporates, with some modifications, the provisions formerly found in Section 6-09 “Registration and disqualification of certain authorized representatives.” Family members of respondents are exempt from the registration requirement. The Tribunal will not charge a fee to register representatives and it will not issue a registration card. The new rule is consistent with procedures currently in place at the Environmental Control Board.
Section 6-24 “Misconduct” is a new section that details prohibited conduct by a party, witness, representative or attorney, including prohibited communications. It also provides penalties for misconduct and procedures for imposing discipline on attorneys or representatives.
OATH’s authority to establishthese rules is found in section 1049 of the New York City Charter.