Urged to Take 'Hearing' Literally
Administrative Law Judges Told: Keep It Simple

By REUVEN BLAU

Rows of city Administrative Law Judges March 11 listened intently to legal officials detailing information about their job responsibilities during a panel discussion in midtown Manhattan, delivering their strongest responses to those who dispensed with jargon and told them that listening and communicating well were the keys to their jobs.

The Chief-Leader/Pat Arnow LANGUAGE LESSONS: Roberto Velez, the Administrative Law Judge for the Office of Administrative Trials and Hearings, started a March 11 panel discussion by outlining the role of OATH and the city's other tribunals. He encouraged the ALJs in attendance to use plain language during hearings, especially when dealing with self-represented litigants.

The subdued audience cheered after Ilene Shifrin, the Hearing Officer for the Department of Health and Mental Hygiene, offered advice and expressed empathy concerning some of the language and technical challenges that they routinely face.

Language Barrier

Ms. Shifrin, during an event sponsored by the city's Bar Association, discussed how difficult it can be to deal with self-represented respondents, who often aren't fluent in English.

Those litigants, the veteran ALJ noted, frequently answer "yes" to every question. "It is your job to find out if they don't understand or are being evasive," she remarked, as many in the crowd nodded.

Roberto Velez, the Chief Administrative Law Judge for the Office of Administrative trials and Hearings, kicked off the discussion by outlining the role of OATH and the city's other tribunals.

He also briefly explained the newly-enacted rules of conduct and recommended best practices governing the city's ALJs.

The city employs approximately 500 lawyers - approximately 300 fulltime - who work as Administrative Law Judges and hearing officers at 19 different tribunals tied to various departments and agencies. They adjudicate parking violation complaints, property tax assessment appeals, and grievances against cab drivers. They also handle employee disciplinary hearings.

New Uniformed Regs

The new code of conduct is aimed to avoid the appearance of impropriety, ensure that ALJs perform the duties of the office impartially, and set proper courtroom demeanor. Many ALJs previously followed the New York State Code of Judicial Conduct, but there was no consistent and official set of ethics.

The uniform code was largely drafted by David B. Goldin, the city's first Administrative Justice Coordinator, who was appointed by Mayor Bloomberg in 2006. The position was created after Mayor Bloomberg signed Executive Order 84, which established the title based on a recommendation by a 2005 Charter Revision Commission that was assigned to review the broad issue of judicial reform.

Mr. Goldin last week moderated the second panel, which concluded with audience favorite Juliet Neisser, the Legal Director of the Environmental Control Board.

Many in the crowd were getting set to leave at the end of the two-hour event when Ms. Neisser approached the microphone at the center of the wooden dais. But the rustling coats and bags were silenced as she began her engaging, animated address.

"I have approximately no minutes left," she said, during a brief side-track to her fast-paced lecture.

The former instructor of legal analysis and writing at Hofstra University encouraged the ALJs to use plain language during hearings, especially when dealing with self-represented litigants.

Law Identification Key

She also urged her colleagues to study the pertinent laws. "Knowing the law is profoundly important," she remarked.

As an example, she cited a hypothetical case of an individual being charged for illegal dumping. That person may tell the tribunal that he/she wasn't actually driving the car used to abandon the garbage at a different location, Ms. Neisser said.

But it is the ALJ's responsibility to understand that explanation is a legitimate legal argument, as long as there was no monetary gain. "They may have a legal defense that they are not aware of," she said, referring to respondents. "They may tell you, 'I thought my son was doing better after leaving reform school.'''

The panel discussion started with Mr. Velez explaining that the Bloomberg administration was looking to move the Environmental Control Board from the Department of Environmental Protection to OATH, which he described as another similar adjudicative body.

"It really is a historical accident that ECB is part of DEP," he remarked. The move, however, requires city and state legislative approval.

The ECB, one of the city's largest tribunals, handles a diverse caseload. The board adjudicates enforcement actions by various city agencies including Sanitation, Fire, Consumer Affairs, and Police. Its jurisdiction includes quality-of-life penalties, vendor violations, and environmental issues such as air, water and noise pollution.

Greater Efficiency?

For example, an ALJ at ECB can oversee violations ranging from a homeowner with a dirty sidewalk to a fruit shopkeeper with an oversized display.

During a brief break at the forum, Russell Pecunies, a 23-year veteran DEP attorney, said the proposed merger with OATH would likely have little effect on ALJs as long as the board remained in place. "Anything that makes things more efficient is fine with us," he added.

The panel discussion was part of OATH's plan to develop and deliver training programs for all the city's ALJs, said Deputy Mayor Carol Robles-Roman two days later. Those ongoing courses include instruction on courtroom practice, legal writing, and substantive areas of the law.

The city's administrative tribunals are part of the executive branch of government and are separate from state courts. They are inexpensive and more-efficient ways to resolve legal arguments that surface from the enforcement of city agencies.

Talks Helpful

At the end of the discussion, per-diem ALJ Andrea Pfeiffer said she found some of the tips on how to conduct more user-friendly hearings helpful. But she argued that the detailed suggestions concerning how to simplify boilerplate forms were not really relevant.

"We don't have anything to do with that," she remarked.

Ms. Pfeiffer pointed out that last year her per-diem colleagues voted 221 to 7 to join the United Federation of Teachers. "We have our first negotiation session with the city set for April 2," she remarked. "It's extremely exciting. This has been a long time coming."

In February 2006, the UFT filed a representation petition with the city's Office of Collective Bargaining. The city objected, arguing that the per-diem judges belonged in an existing unit of full-time attorneys represented by the Civil Service Bar Association (CSBA), an affiliate of the Teamsters.

But the OCB ruled in favor of the UFT and ordered an election. Ms. Pfeiffer, who is part of the 11-member negotiating committee, said the group plans to negotiate health and vacation benefits as well as due rights disciplinary protections.

Per-diem judges earn $39.40 an hour after two years on the job. "That's pretty low for doing important work," Ms. Pfeiffer argued.

The veteran ECB and DOHM judge contended that part-time ALJs should also be entitled to due-process rights.

"It's very easy for the agency to pressure you [for a favorable ruling] if they can fire you the same day without saying anything about it," she asserted. "It's better for the public if we had a better job situation."

After 23 years on the job, Ms. Pfeiffer said she's "extremely excited" about the upcoming negotiations. "We want to start a new relationship with the city," she remarked. "We are professional employees working for the city; we are not independent contractors."