COMMENTS BY THE NEW YORK COUNTY LAWYERS’ ASSOCIATION ON THE PROPOSED AMENDMENT OF THE RULES OF PROCEDURE OF THE ENVIRONMENTAL CONTROL BOARD
These comments were approved by the Executive Committee of the New York County Lawyers’ Association at its meeting on April 28, 2009.
The New York County Lawyers’ Association (NYCLA) appreciates the opportunity to comment on the Proposed Amendment of the Rules of Procedure of the Environmental Control Board.
This is the fifth time that NYCLA, through its Task Force on Judicial Selection, has commented or testified on or discussed in a public forum the New York City administrative law system. This report is of limited scope and addresses the Proposed Amendment of the Rules of Procedure of the Environmental Control Board (ECB) respecting notices of appearance, translation services, adjournments and appeal procedures.
Section 3-11 contains a new definition for “Appearance.” The change seems intended to formalize a party representative’s announcement of his/her status. This should prevent witnesses or interested persons from filing an “Appearance” in an ECB proceeding, thereby interfering with the right of the named respondent to defend himself/herself. Non-parties with an interest in the outcome of cases have been known to enter appearances with guilty pleas in ECB proceedings, which prolongs the case for the named respondent and increases his/her costs. NYCLA supports the new definition for “Appearance.”
Section 3-16 (c) liberalizes the concept of “Appearance” for an agency. One of the most persistent complaints about the operation of ECB is that respondents appear at the scheduled time and wait for the agency to appear. Rule 3.16 (c) would allow an “Appearance” by an agency by a person who may lack knowledge of the case. NYCLA acknowledges that this procedure saves agency time and expense in the instances when the respondent does not appear, but the likely effect on the respondent who does appear timely is to require an adjournment.
Section 3-51 contains a new subsection (f) that provides for language-assistance services. This is a positive improvement in the operation of ECB as it gives respondents whose English is limited the opportunity to understand the proceedings and defend themselves in their native languages. NYCLA enthusiastically supports this important new resource for respondents.
Section 3-52.1 (a) (i) requires that a respondent, in order to preserve his/her rights, must appear within one hour of the scheduled hearing time. The agency may appear within two hours of the scheduled hearing time. NYCLA recommends that the timeframe for a timely appearance be the same for both the respondent and the agency.
The purpose of Section 3-52.1 (b) is laudable, acknowledging that respect for the respondent’s convenience should be a major factor in preventing routine adjournments of cases when the respondent timely appears. However, this section lacks clarity as to the instances when the hearing officer may adjourn the hearing. NYCLA recommends that this section and the following section (c) be written in clearer language so that respondents will understand the different scenarios that may trigger an adjournment, as well as the procedures when an agency claims “extraordinary circumstances” as a reason for failing to appear.
Section 3-76 provides important new procedures, particularly for respondents who do not receive a final decision and order within 180 days from the filing of exceptions. Respondents will now be able to seek judicial review. NYCLA strongly supports this procedure.
NYCLA is pleased to submit these comments on the Proposed Amendment of the Rules of Procedure. From the broader perspective of the elements of a fair and equitable system of administrative law, NYCLA urges ECB to give due recognition to its own precedents and to apply the principles of res judicata and collateral estoppel in its procedures.