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Proposed Rules: Open to Comments

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Agency:
Comment By: 
Thursday, September 13, 2018
Proposed Rules Content: 

City of New York

Office of Administrative Trials and Hearings

 

Notice of Public Hearing and Opportunity to Comment on Proposed Rule

 

What are we proposing? The Office of Administrative Trials and Hearings (OATH) proposes to amend sections 6-23 and 6-25 of subchapter F of chapter 6 of title 48 of the rules of the city of New York, concerning registered representatives and misconduct.

 

When and where is the Hearing? OATH will hold a public hearing on the proposed rule. The public hearing will take place from 2:30 p.m. through 3:30 p.m. on Thursday, September 13, 2018. The hearing will be in the OATH Conference Room located at 66 John Street, 10th Floor, New York, NY 10038.

 

How do I comment on the proposed rules? Anyone can comment on the proposed rule by:

 

 

 

  • Mail.  You can mail written comments to OATH, Attention: Simone Salloum, Senior Counsel, 100 Church Street, 12th Floor, New York, NY 10007.

 

  • Fax. You can fax written comments to OATH, Attention: Simone Salloum, Senior Counsel, at 646-500-5742.

 

  • Hearing.  You can speak at the hearing. Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by calling OATH at 212-436-0708, or you can also sign up in the hearing room before the hearing begins on September 13, 2018. You can speak for up to three (3) minutes.

 

Is there a deadline to submit written comments? You may submit written comments up to 5:00 p.m. on September 13, 2018.

 

What if I need assistance to participate in the Hearing? You must tell us if you need a reasonable accommodation of a disability at the Hearing. You must tell us if you need a sign language interpreter. You can tell us by mail at the address given above. You may also tell us by telephone at 212-436-0708. Advance notice is requested to allow sufficient time to arrange the accommodation. Please tell us by September 6, 2018.

 

This location has the following accessibility option(s) available: Wheelchair Accessible.

 

Can I review the comments made on the proposed rule? You can review the comments that have been submitted online by visiting the NYC rules website at http://rules.cityofnewyork.us/. A few days after the hearing, a transcript of the hearing and copies of the written comments will be available to the public at OATH, 66 John Street, 10th Floor, New York, NY 10038.

 

What authorizes OATH to make this rule? Section 1049(2)(a) of the New York city charter (“charter”) authorizes OATH to make this proposed rule. This proposed rule was included in OATH’s regulatory agenda for this fiscal year.

 

Where can I find OATH’s rules? OATH’s rules are in title 48 of the rules of the city of New York.

 

What laws govern the rulemaking process? OATH must meet the requirements of section 1043(b) of the charter when creating or changing rules. This notice is made according to the requirements of sections 1043(b) and 1049(2)(a) of the charter.

 

 

Statement of Basis and Purpose of Proposed Rule

 

The Office of Administrative Trials and Hearings (“OATH”) proposes to amend sections 6-23 and 6-25 of subchapter F of chapter 6 of title 48 of the rules of the city of New York, concerning registered representatives and misconduct. To address the problem of registered representatives appearing on behalf of respondents without proper authorization and without knowledge of the alleged violations in the summonses, OATH proposes the following amendments to section 6-23 which:

 

  • Define a representative as an individual, not an attorney admitted to practice in New York State, who is authorized by a Respondent to appear on behalf of the Respondent;
  • Require registered representatives to register every two years and clarify that the representative must submit proof of identity to register;
  • Remove the statement concerning the consequences of failing to register as it is unnecessary since registration is a condition to appearing on behalf of a respondent;
  • Create an affirmative obligation on the representative to accurately represent his or her qualifications or services;
  • Clarify that the obligation of a registered representative to exercise due diligence includes demonstrating knowledge of the facts and subject matter of the summons, complying with adjournment and rescheduled hearing dates, and ensuring that oral and written statements and  documents submitted to the Tribunal are correct;
  • Require that registered representatives act in the Respondent’s best interest and avoid any conflicts that would impair the representative’s ability to do so; and
  • Require the submission of an “Authorization for Registered Representative to Appear” form.

 

To update and clarify types of misconduct and patterns of misconduct—particularly those involving dishonesty and integrity—currently reflected in registered representative activities (e.g.,  misrepresenting themselves as an attorney, providing false information, and soliciting on Tribunal premises), OATH proposes the following amendments to section 6-25 which:

 

  • Clarify the existing types of misconduct, by using consistent terminology;
  • Prohibit making a statement to the Tribunal that a person knows or reasonably should have known to be false, fraudulent, or misleading;
  • Prohibit solicitation of parties in the public spaces of buildings within which Tribunal premises are located, or on the premises of any city agency or governmental subdivision that issues summonses returnable to the Tribunal;
  • Create a rebuttable presumption that the exchange of money at the Tribunal is evidence of solicitation;
  • Prohibit targeted solicitation concerning a summons returnable to the Tribunal;
  • Prohibit requesting lists of names and addresses from the Tribunal for the purpose of solicitation or fundraising;
  • Prohibit the misrepresentation of a person as an attorney or government employee if that person is neither;
  • Prohibit any conduct or course of conduct that demonstrates a lack of honesty and integrity in the representation of parties before the Tribunal, or any other tribunal or court.
  • Remove former paragraph (1) of subdivision (b) concerning ex parte communications (communications between a party and a hearing officer about the merits of a case without all parties present), and move former paragraph (2) of subdivision (b), concerning communicating with a Hearing Officer to influence a decision, to paragraph 5 of subdivision (a). 
  • Subject respondents and witnesses, in addition to attorney and representatives, to penalties for misconduct; and
  • Subject attorneys, in addition to representatives, to summary suspension or bar.   

 

This proposal was included in OATH’s Fiscal Year 2018 and 2019 Regulatory Agendas.

 

Subject: 

.

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules: (212) 436-0708

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Background

 

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.
  • changing the name of the Center for Mediation Services to the Center for Creative Conflict Resolution in section 1-30 to reflect the recent name change of OATH’s internal mediation services provider

 

 

 

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.

 

Subchapter A--General

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.

 

Subchapter D-Appeals

 

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.

 

Subchapter E-Defaults

 

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.

 

Subchapter F-Miscellaneous

 

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.

 

Effective Date: 
Wed, 07/01/2015

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, October 15, 2014
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

The Office of Administrative Trials and Hearings (“OATH”) is modifying the provisions in Chapter 6 in Title 48 of the Rules of the City of New York related to the Health Tribunal at OATH.  The changes 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 Health Tribunal at OATH consistent with those of other tribunals at OATH.

 

Specific Amendments to be Enacted

 

In Section 6-01“Definitions Specific to this Chapter,” the term “Hearing Examiner” is changed to “Hearing Officer”. 

 

Section 6-02 “Jurisdiction, Powers and Duties of the Health Tribunal at OATH” 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. 

 

Section 6-03 “Proceedings before the Health Tribunal at OATH” simplifies the requirements of service by no longer requiring certified or registered mailing.  

 

Section 6-04 “Appearances” is reordered, with some changes.  An 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 subdivision (b) detailing requirements for appearances by mail are moved to Section 6-05 “Adjudications by Mail and Online.”   
  • The provisions in subdivision (c) for pre-hearing adjournments are moved to Section 6-06 “Pre-Hearing Requests to Reschedule.” 
  • The provisions in subdivision (d) for requests for adjournments made at the hearing are moved to Section 6-07 “Requests for Adjournments.”
  • The provisions in subdivision (e) detailing the procedures for defaults upon a failure to appear by respondent are moved to Section 6-08 “Default” and Section 6-09 “Request for a New Hearing after a Failure to Appear.” 
  • New subdivision (c) and (d) detail procedures for appearances by the petitioner and what happens when a petitioner fails to appear at the scheduled time.

Section 6-05 “Adjudications by Mail and Online” is renamed from the previous title “Hearings and adjudications in person, by mail, or by telephone.”  References in subdivisions (a), (b), (c), (d), (e), (g), (h), (i) and (j) of this section to hearings in person or by telephone are moved to new Section 6-10 “Hearing Procedures.”  Subdivision (f) of this section, about the appearance of inspectors is moved to section 6-11 “Appearance of Inspectors”.

 

Section 6-06 “Subpoenas” is deleted in its entirety.  The Hearing Officer’s ability to issue subpoenas remains in Section 6-02(c) (3). 

 

New Section 6-06 is titled “Pre-Hearing Requests to Reschedule”.

  • It sets forth the procedures by which respondents may make a request for a hearing to be rescheduled 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 6-07 “Requests for Adjournments” contains provisions regarding requests for adjournments 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.

 

Section 6-08 “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 6-09 “Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)” contains provisions previously contained in Section 6-04(e) 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.

Section 6-10 “Hearing Procedures” is a new section that incorporates with some modifications, provisions contained in subdivisions (a), (b), (c), (d), (e), (g), (h), (i) 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.
  • 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 6-11 “Appearance of Inspectors” is a new section that incorporates with some modifications, the provisions that were previously contained in Section 6-05(f).

  • Subdivision (a)(1) permits a respondent to make a pre-hearing request for the inspector up to three, rather than seven, business days prior to the hearing.  Such request is considered as a request to reschedule the hearing and follows the rules outlined in Section 6-06.
  • Subdivision (b) permits a hearing to be adjourned no more than two, rather than three, times for the presence of the officer. 

Section 6-12 “Payment of Penalties” is a new section that incorporates with some modifications  the provisions formerly found in Section 6-05(i) regarding the imposition of late payment penalties if the fine is not paid on time.

 

Section 6-13 “Disqualification of Hearing Officers” contains provisions formerly found in Section 6-07.  There are no major substantive rule changes in the section.

 

Section 6-14 “Appeals” incorporates with some modifications the provisions formerly found in Section 6-08. 

  • Subdivision (c) describes the record to be considered on appeal and limits the evidence to that which was presented at the hearing.

Section 6-15 “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 or issue a registration card and identification number.  The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

Section 6-16 “Misconduct” is a new section that enumerates 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.

 

Section 6-17 “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.

 

The Health Tribunal at OATH’s authority for these rules is also found in section 1049 of the New York City Charter.


Subject: 

The Health Tribunal at OATH proposes to modify the provisions in Chapter 6 in Title 48 of the Rules of the City of New York. The changes modify various procedures relating to pre-hearing rescheduling, adjournments, notifications, defaults, appeals, conduct of participants, and other matters related to the Health Tribunal at OATH.

 

Location: 
NYC Office of Administrative Trials and Hearings
100 Church Street 12th Fl, Court Room G
New York, NY 10007
Contact: 

Stacey Turner
(212) 933-3007

Download Copy of Proposed Rule (.pdf):