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Mann Report: Management - June 2016

By: Carol A. Sigmond

From time to time over the last three years, I have, on occasion, written about the Environmental Control Board (ECB) and issues related to what appeared to be due process abuses by New York City in administrative hearings on quality-of-life violations, including those involving noise complaints, sidewalk and trash removal issues and building code violations.

The Commissioner of the Office of Trials and Hearings (OATH) has proposed new rules scheduled for adoption on or about May 26, 2016. These new rules signal a recognition by OATH that the summons process at ECB requires improvement.

The new rules appear to represent the needed enhancement. OATH's proposed changes include detailing the powers and duties of hearing officers, institution of a single form of summons, a single panel for all cases, uniform rules and a single summons process. OATH has made other changes to the ECB process: the enforcement agency attorneys and employees may no longer mingle with the OATH or ECB staff? all the judges involved in adjudicatory administrative law proceedings at ECB are now employed, discharged, supervised, assigned, and otherwise managed by OATH? the enforcing agencies no longer have any role in the hiring, firing, management, assignment or supervision of administrative law judges at ECB.

This has removed the appearance that the enforcement agencies are directing ECB decisions or have any influence over the ECB administrative law judges. All of these changes should make the process more equitable for those who have been issued summons. But certain issues still remain at ECB. They include the ability of enforcing agencies to disregard ECB acquittals of respondents and dismissal of charges? the rights to discovery of exculpatory evidence? and the right to confront the summoning officer. However, the situation at ECB is improving.

There was a situation from approximately a year ago in which the DOB charged a contractor with a crane violation. The contractor was merely installing the foundation for the anchoring system for a future tower crane. There was no crane erection, "jumping" dismantling or climbing at that time, only the installation of a system consisting of concrete blocks with steel anchors for later use in the erection of the crane. DOB charged the contractor with erecting a crane without notice and permits.

ECB conducted a three-day trial, after which the contractor was acquitted of the charges of "jumping, erecting, climbing or dismantling" a crane. DOB reversed the ECB decision and, on the basis of no credible evidence, convicted and fined the contractor. The contractor appealed. In the Supreme Court for New York County, the court reversed the DOB and reinstated the ECB decision, finding that the DOB was arbitrary and capricious in their reversal of the ECB decision. The conviction of the contractor was vacated. (See Villa Construction v. City of New York, Supreme Court NY County 101206/2014, February 27, 2015.)

Rosen v. City of New York, 2011 NY Slip Op. 31683 (U) Supreme Court, New York County June 21, 2011, is another example of appeal abuse. There, DOB charged a building owner with operating an outdoor advertising agency. The administrative law judge heard extensive evidence to the effect that the building owner had contracted with a third-party signage company and that company was operating an outdoor advertising agency, not the property owner. The administrative law judge dismissed the charges. DOB reversed the judge’s dismissal and convicted the building owner. The building owner appealed to court. The court reversed DOB's conviction, reinstating the dismissal of the charges based on the evidence in the record.

This type of appeal is costly and frankly unnecessary. The agencies should not reverse well-reasoned ECB decisions without substantial evidence that the ECB judge erred. DOB's actions in Villa are the type of actions that undermine public confidence in government and the fairness of government regulatory schemes. Requiring the enforcing agencies to provide a basis for reversing an ECB decision would promote public confidence in the process. Hopefully, this change will be next on OATH's agenda.

Please note that his column presents a general discussion. It is not intended to provide legal advice. You should consult your attorney for specific legal advice.

This article was originally published in the June 2016 edition the Mann Report: Management. You can access the article on their website.