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NYCLA PRESIDENT TESTIFIES AT ON PROPOSED RULES OF
CONDUCT FOR ADMINISTRATIVE LAW JUDGES
NEW YORK, NY – JANUARY 4, 2007 – The New York County Lawyers’ Association’s (NYCLA) President, Edwin David Robertson, testified today at a hearing on the Proposed Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York at the Office of Administrative Trials and Hearings (OATH). In his opening remarks, Mr. Robertson commended the City Administration for “its efforts to address longstanding problems that have existed in the administrative law judicial process in this City, [which] include a lack of fundamental safeguards to ensure the competence, fairness and impartiality of the City administrative law tribunals.” He went on to say that the Proposed Code fell short in addressing what he called “the most important reform,” which is the need for judicial independence and transparency in the decision-making process at City agency tribunals.
In November 2005, New York voters approved a ballot initiative recommended by the Charter Revision Commission that directed the Mayor and the Chief Administrative Law Judge of OATH to “jointly promulgate” “rules establishing a code or codes of professional conduct governing the activities of all administrative law judges and hearing officers in city tribunals.” In its Final Report, the Charter Revision Commission stated its goal: “All administrative tribunals must have the highest standards of adjudicatory practice to ensure that disputes continue to be resolved fairly, impartially, efficiently and consistently.”
Mr. Robertson outlined six recommendations to the Proposed Code at the hearing. The first recommendation was explicitly recognizing the importance of judicial independence by mandating independence of the City Administrative Law Judges (CALJ’s). He stated:
The delegation of the hiring and supervision of CALJ’s, many of whom are per diem, to tribunal administrators at the agencies they serve has created unique challenges to the fair, impartial, efficient and consistent administration of justice, which, ultimately, must be founded on an independent judiciary. The basic problem with the Proposed Code is that it promotes tribunal, i.e., bureaucratic independence, rather than the independence of the individual CALJ’s. While the Proposed Code requires ‘impartiality,’ it does not require ‘judicial independence.’ As a practical matter, impartiality cannot exist without independence.
Mr. Robertson’s second recommendation was the broadening of the prohibitions on ex parte communications. He explained, “The fact that any ex parte communication between a tribunal administrator and a per diem CALJ is allowed in a pending case, coupled with the fact that agencies charged with the enforcement of regulations have control over the hiring of CALJ’s on a per diem basis, creates the perception that CALJ’s lack even rudimentary independence to decide cases on the basis of the law and the evidence before them.”
Mr. Robertson also called for promulgating a Mayoral Executive Order directed to City agencies with administrative tribunals. Modeled on an Executive Order issued by Governor Cuomo and directed to State agencies, the Executive Order would, in Mr. Robertson’s words, “… contain the appropriate restrictions regarding ex parte communications and use of ALJ’s [Administrative Law Judges’] rulings or decisions to determine the ALJ’s salary, promotions, benefits and the like, and require that each agency responsible for administrative adjudication develop an administrative adjudication plan that would be subject to public notice and comment and would be required to be implemented by a certain date.”
In addition, Mr. Robertson recommended: clarifying the disciplinary process, modifying the proposed restrictions on private employment for part-time (per diem) CALJ’s and amending certain phrasing and terminology contained in the Proposed Code.
The New York County Lawyers’ Association (www.nycla.org) was founded in 1908 as the first major bar association in the country that admitted members without regard to race, ethnicity, religion, gender or sexual identity. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.
To read the full text of Mr. Robertson’s testimony, log on to www.nycla.org and click on News & Publications and then on Testimony.