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]

Click on text highlighted in color to access the text of the Rules.

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

Click on text highlighted in color to access the full report.

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

DiNapoli urges department of labor to improve investigations of hours worked by nurses

DiNapoli urges department of labor to improve investigations of hours worked by nurses

Click on text highlighted in color to access the full report.

The state Department of Labor (DOL) does not investigate overtime complaints by nurses in a consistent or timely basis, according to an auditreleased today by New York State Comptroller Thomas P. DiNapoli.

“Patients need care around the clock, and nurses are often required to stay and work extra hours,” DiNapoli said. “Chronic overtime and longer shifts for nurses need to be watched closely by the state so patient care is not jeopardized, nurses are not overworked and employers are complying with the law. The Department of Labor needs to do a better job investigating complaints from nurses about working overtime to keep patients safe.”

For the period of Jan. 1, 2015 to June 30, 2017, auditors examined whether DOL was adequately enforcing the law that imposes restrictions on the consecutive hours that can be worked by nurses in non-emergency situations. Under the law, if nurses feel their employers violated the law, they can file a complaint with DOL. Between Jan. 1, 2015 and May 23, 2017, DOL closed 186 cases regarding 540 complaints.

Auditors found DOL lacked effective policies and procedures for investigating complaints. This resulted in inconsistencies and anomalies in investigations and differing outcomes based on the same or similar sets of circumstances.

DiNapoli’s auditors selected a sample of investigations to review and found in 128 of 207 complaints that DOL did not contact the complainants after the investigation was concluded. For 33 of 165 complaints about state agency facilities, DOL took the word of the facilities that no mandatory overtime occurred without any supporting documentation. In 10 of 23 cases, there was no record of DOL making a decision about the complaint.

DOL also does not have set time frames for investigating complaints. It is DOL’s practice to combine complaints and investigate them together as a single case. Auditors found this practice resulted in significant delays in initiating and completing investigations, particularly related to state agencies. In a sample of cases reviewed, it took about 57 days before complaints about state agencies overtime practices were investigated compared to 42 days for private or local facilities. To complete an investigation, DOL averaged 351 days for state facilities and 138 days for private or local facilities.

Among several recommendations, auditors urged DOL to:

Establish policies and procedures to ensure that nurse overtime complaints are investigated timely using consistent methods and application of the law;

Improve its case management system so it can better track complaints and investigations in a more comprehensive manner; and

Establish an outreach and education program to ensure that all covered employers are aware of the law and its requirements.

DOL officials did not agree with all of the auditors’ conclusions and stated the department works closely with employee representatives and with other state agencies as part of its enforcement approach. Department officials indicated they had implemented a number of changes as a result of the audit. The full response is included in the audit.

Read the reportor go to: http://www.osc.state.ny.us/audits/allaudits/093018/sga-2018-17s14.pdf

Internal Revenue Service Guidelines and Retirement Advisory Opinion Letters

Internal Revenue Service Guidelines and Retirement Advisory Opinion Letters

The Internal Revenue Service has begun issuing opinion/advisory letters for pre-approved defined benefit retirement plans restated for the 2012 Cumulative List, and changes the pre-approved plan program for cash balance plans.

The New York State Employees' Retirement System and the NY State Teachers' Retirement System together with the New York City public retirement systems, are defined benefit plans.

In contrast, the New York State University Optional Retirement Program, available to certain employees of the State University of New York, the Community Colleges, and the Statutory Contract Colleges at Cornell and Alfred Universities, the New York City Board of Higher Education Optional Retirement Program available to certain employees of the Board of Higher Education and the New York State Department of Education Optional Retirement Program, available to certain employees of the Department of Education are defined contribution retirement programs.

N.B. The relevant provisions of the several Optional Retirement Programs available to certain employees of the State and its political subdivisions* set out below provide that individuals electing to participant in an optional retirement program are not members in any public pension or retirement system of the State or a political subdivision thereof within the meaning of Article VI, §7(a) of the State Constitution.** 

 
Education Law Title 1, Article 3, Part V, §186, with respect to employees of the New York State Department of Education provides as follows: 

§186. State not liable for payment of benefits. Neither the state nor the department shall be a party to any contract continued in whole or in part with contributions made under the education department optional retirement program established and administered pursuant to this part V of this article. No retirement, death or other benefits shall be payable by the state or by the department under such education department optional retirement program, except as otherwise provided in section 184. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.

 
Education Law Title 1, Article 8-B §396, with respect to State University of New York, the Community Colleges and the Statutory Conrract Colleges at Alfred and Cornell Universities provides as follows:

§396. Employer not liable for payment of benefits. Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts. 


Education Law Title 7, Article 125-A §6255, with respect to employees of the New York City Board of Higher Education, provides as follows: 

§6255. City not liable for payment of benefits. Neither the city nor the board shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the city or by the board under such optional retirement program. Such benefits shall be paid to  electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.

* In 1964 the author of this NYPPL blog entry, Harvey Randall, Esq. drafted and implemented Article 8-B of the Education Law, the State University's Optional Retirement Program, and consulted with Robert Stone, Esq., then Counsel, New York State Department of Education and Arthur Kahn, Esq. then Counsel, New York City Board of Higher Education, with respect to the drafting of the statutes establishing Optional Retirement Programs for those entities.

** Article VI, §7(a) provides as follows: §7. (a): After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired. 

The IRS Guidelines are posted on the Internet at:

New guidance released for retirement plans