Rules of Practice - New York City Office of Administrative Trials and Hearings

New York City Office of Administrative Trials and Hearings

Rules of Practice 

[as of May 1, 2018]

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CHAPTER I

  Subchapter A - General Matters

View Chapter I Subchapter A

• 1-01 - Definitions 
• 1-02 - Jurisdiction 
• 1-03 - Applicability 
• 1-04 - Construction and Waiver 
• 1-05 - Effective Date 
• 1-06 - Computation of Time 
• 1-07 - Filing of Papers 
• 1-08 - Access to Facilities and Programs by People with Disabilities

 

                                                                                           Subchapter B - Rules of Conduct

 View Chapter I Subchapter B

• 1-11 - Appearances 
• 1-12 - Withdrawal and Substitution of Counsel 
• 1-13 - Conduct; Suspension From Practice at OATH 
• 1-14 - Ex Parte Communications

                                                                                           Subchapter C - Pre-Trial Matters

View Chapter 1 Subchapter C

• 1-21 - Designation of OATH 
• 1-22 - The Petition 
• 1-23 - Service of the Petition 
• 1-24 - Answer 
• 1-25 - Amendment of Pleadings 
• 1-26 - Docketing the case 
• 1-27 - Disqualification of Administrative Law Judges 
• 1-28 - Notice of Conference or Trial 
• 1-29 - Scheduling Other Conferences 
• 1-30 - Conduct of Conferences 
• 1-31 - Settlement Conferences and Agreements 
• 1-32 - Adjournments 
• 1-33 - Discovery 
• 1-34 - Pre-Trial Motions

                                                                                            Subchapter D - Trials and Hearings

View Chapter 1 Subchapter D

• 1-41 - Consolidation; Separate Trials 
• 1-42 - Witnesses and Documents 
• 1-43 - Subpoenas 
• 1-44 - Interpreters 
• 1-45 - Failure to Appear 
• 1-46 - Evidence at the Trial 
• 1-47 - Evidence Pertaining to Penalty or Relief 
• 1-48 - Official Notice 
• 1-49 - Public Access to Proceedings 
• 1-50 - Trial Motions 
• 1-51 - The Transcript 
• 1-51.1 - Decision Made on the Record 
• 1-52 - Post Trial Motions

CHAPTER II

 Subchapter A - Additional Rules for Prequalified Vendor Appeals

View Chapter II Subchapter A

• 2-01 - Applicability
• 2-02 - Docketing;Service of the Petition
• 2-03 - Answer; Reply
• 2-04 - Further Proceedings
• 2-05 - Discovery
• 2-06 - Determination
• 2-07 - Copies of Determination

Subchapter B - Reserved

Subchapter C - Additional Rules for Human Rights Cases

 

View Chapter II Subchapter C

• 2-21 - Applicability
• 2-22 - Definitions
• 2-23 - Proceedings Before Referral to OATH
• 2-24 - Docketing the Case at OATH
• 2-25 - Intervention
• 2-26 - Withdrawal or Dismissal of the Petition
• 2-27 - Entry of and Relief from Default
• 2-28 - Settlement Conferences
• 2-29 - Discovery
• 2-30 - Interlocutory Review
• 2-31 - Proceedings After Issuance of Report and Recommendation

Subchapter D

Additional Rules for Post-Seizure

Review of Impoundment of Vehicles

View Chapter II Subchapter D

• 2-41 - Applicability
• 2-42 - Parties
• 2-43 - Pleadings
• 2-44 - Trial Continuances
• 2-45 - Default by Vehicle Owner
• 2-46 - Transcription of Trials

Employee terminated following the loss of the license required to perform the duties of the position

Employee terminated following the loss of the license required to perform the duties of the position

Williams v City of Yonkers, 2018 NY Slip Op 02827, Appellate Division, Second Department

The appointing authority informed Glennie Williams that as he no longer possessed a valid New York State class B commercial driver license which was a minimum qualification for his position unless he obtained such a license by August 28, 2009, his employment would be terminated.

Although the Williams' complaint was dismissed on procedural ground,* set out below are a number of decisions in which the impact of the employee's loss of a license required to perform the duties of the position was considered.

Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?

It is well settled that where a statute requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.

Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. 

In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183.

The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. There is nothing, however, that would prevent the appointing authority from placing the individual in another position for which he or she is qualified for which a license is not required.

Typically courts view the loss of the required credential, be it a license to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service, or performing such tasks, by operation of law. Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position.

In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lekkas the court held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

All that appears to be necessary in a “lost license or permit” situation is for the appointing authority to make a reasonable inquiry to determine if the employee possesses the license or permit required to lawfully perform the duties of the position prior to his or her being barred from performing the duties of the position.

The basic rules concerning the possession of a valid license or permit:

1. Where the license or permit is essential to the individual's lawfully performing his or her work, the courts have approved the termination or suspension without pay of the employee from his or her position if the required license or permit is revoked or suspended or has expired.

2. If the possession of the license or permit is not essential to the performance of the duties of the position, the courts have ruled that the failure to have a valid license or permit is not fatal to the employee's continuation in service. This situation is typical where a driver's license may be included as a minimum qualification for appointment to the position but the individual is not required to operate a motor vehicle in order to perform his or her duties.

Additionally, PERB has ruled that where the duties of a position require the incumbent to possess a valid license, the employer's issuing a directive that the appropriate employees obtain, or maintain, such a license is a non-mandatory subject of collective bargaining [see CSEA Local 1000 and State of New York, 27 PERB 3018].

* The  Williams decision is posted on the Internet at: 

 http://www.nycourts.gov/reporter/3dseries/2018/2018_02827.htm

Conference to Commemorate 50th Anniversary of Taylor Law

Conference to Commemorate 50th Anniversary of Taylor Law

The conference will be held from May 10-11, 2018 at the Desmond Hotel and Conference Center in Albany, New York.

The conference Agenda is posted on the Internet at:

http://perb.ny.gov/pdf/full%20conference%20schedule.pdf

Additional information on the Taylor Law, the Public Employment Relations Board, and the 50^th anniversary of the Taylor Law can be found on the PERB website at www.perb.ny.gov.

Audit reports released by State comptroller DiNapoli on April 25, 2018

Audit reports released by State comptroller DiNapoli on April 25, 2018

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Brentwood Public Library – Leave Accruals (Suffolk County)
Leave accrual records for business office employees were overstated by a total of 272 hours. Vacation, sick and personal leave earned exceeded collective bargaining agreement limits, and vacation and sick leave was accrued and/or used at rates other than specified.

Emergency Service Communication Surcharges (2017MS-4)
Each county in this audit could improve controls over E911 revenues. One county (Schenectady) made significant improvements in controls over E911 revenues. However, because no resource exists to identify all the communication suppliers operating within the counties audited, county officials were unable to determine whether all E911 surcharges were received from their suppliers. As a result, officials cannot be sure that their county received all the surcharges to which it was entitled.

Village of Milford – Board Oversight (Otsego County)
The clerk-treasurer performs all village financial transactions with little board oversight, including the billing and collection of water usage charges, the collection of real property taxes and the disbursement of village funds. Although the mayor dual-signs checks with the clerk-treasurer, no one reviews bank statements, canceled check images or monthly reports and reconciliations that the clerk-treasurer prepares. Furthermore, the board did not perform the required annual audit of the clerk-treasurer’s records.

Village of Nassau – Budgeting (Rensselaer County)
While the adopted general fund budgets included reasonable revenue estimates, appropriations significantly exceeded expenditures. The variance between appropriations and expenditures has increased from 5.9 percent in 2014-15 to 30.9 percent in 2016-17. The board’s budgeting practices resulted in an unrestricted fund balance increase of $97,547 (25.7 percent) over the three-year period.

Town of Pendleton – Special Districts (Niagara County)     
The town has three sewer districts but the supervisor recorded and reported all sewer operation revenues and expenditures as one special district. In addition, the board does not adopt individual budgets for each sewer district. Capital costs are allocated to three sewer districts, but operating and maintenance costs are combined under one district