1 2 CITY COUNCIL 3 CITY OF NEW YORK 4 -------------------------------x 5 THE TRANSCRIPT OF THE MINUTES 6 of the 7 COMMITTEE ON GOVERNMENTAL 8 OPERATIONS (Held Jointly With) 9 COMMITTEE ON SMALL BUSINESS 10 -------------------------------x 11 June 19, 2008 12 Start: 1:10 p.m. Recess: 2:45 p.m. 13 City Hall 14 Council Chambers New York, New York 15 16 B E F O R E: 17 SIMCHA FELDER Chairperson, Governmental 18 Operations Committee 19 DAVID YASSKY Chairperson, Small Business 20 Committee 21 22 23 24 LEGAL-EASE COURT REPORTING SERVICES, INC. 17 Battery Place - Suite 1308 25 New York, New York 10004 (800) 756-3410 2 1 2 A P P E A R A N C E S 3 Carole Post 4 Director of Agency Services Office of the Mayor 5 David B. Goldin 6 Administrative Justice Coordinator 7 Roberto Velez Chief Administrative Law Judge 8 Office of Administrative Trials and Hearings 9 Charles McFall Deputy Chief Administrative Law Judge 10 Office of Administrative Trials and Hearings 11 Mike Moran ECB 12 Office of Administrative Trials and Hearings 13 Robert Bookman Counsel 14 New York Nightlife Association New York Newsstand Operations Association 15 E. Charles Hunt 16 Executive Vice President Greater New York City Chapters 17 New York State Restaurant Association 18 Sally Noamani Street Vendor Project 19 Alexander Truitt 20 Office of John E. Osborn, P.C. 21 22 23 24 25 3 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 CHAIRPERSON FELDER: Good afternoon, 3 ladies and gentlemen. I'm sorry we're starting a bit 4 late. I just got a call from my Co-Chair, Councilman 5 Yassky, that he's running late and that we should 6 start without him. 7 I'm delighted to be joined by my 8 esteemed colleague, Council Member Tish James, all 9 the way on my left. 10 Welcome to this joint Committee 11 hearing, regarding legislation to improve the 12 Environmental Control Board. 13 My co-chairs will make their 14 statements when they're able to be here. Council 15 Member Gennaro is under the weather, won't be able 16 to make it. We are joined by Councilman Domenic 17 Recchia, Jr. 18 So, I'm going to limit my opening 19 statement to a brief anecdote. 20 A few weeks ago, shortly after we 21 announced this legislation, a member of my staff was 22 working with someone at ECB to reschedule a hearing 23 for a constituent. 24 The employee at ECB mentioned that he 25 had read about me and the Speaker and my Co-chairs 4 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 looking to overhaul ECB. 3 My staffer expected the ECB employee 4 to more or less tell him to buzz off and bark up 5 some other tree for help. But rather surprisingly, 6 he said, you know, it should make things better. 7 It's going to be a difficult situation around here, 8 but ultimately it will improve things. The point is 9 that the need to reform ECB is clear. That's not to 10 take anything away from the hard-working men and 11 women who have made some progress over the past 12 couple of years to make improvements. 13 But I think we need to get ECB out 14 from DEP where it can get the attention that it 15 needs to modernize its procedures, and ultimately be 16 more accountable to both the people of the City, 17 homeowners and businesses alike and the various City 18 agencies for whom it adjudicates violations. 19 Thank you, and I look forward to 20 hearing testimony on this legislation, and to 21 co-presiding over this hearing with my esteemed 22 chairs. 23 A little something procedural. Who is 24 testifying besides -- okay, so whoever is testifying 25 can come up to the desk, from the Administration. 5 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Did you fill out a form with the Sergeant-At-Arms? 3 Thank you. If the Sergeant-At-Arms could please give 4 the three people who are testifying a form to fill 5 out so that we can have it on the record for later, 6 for people, that will be fine. 7 Okay, I did not mention that as a 8 rule, at least in the hearings that I hold, you must 9 sign up to speak within 15 minutes from the 10 beginning of the hearing, and nobody calling me will 11 get any exceptions to that rule. 12 So, that means that you should do so 13 now, if you intend to speak. 14 In addition, another rule that I have 15 found to be very productive, is not allowing people 16 to testify. I don't mean that in general, but I'm 17 not interested in you're reading the book. Anybody 18 who is interested in the copy of what was -- do we 19 have more copies of this? Where are they? Do you 20 have these copies? How many people in the audience 21 want a copy of the testimony? 22 So, if we can get ten more -- if we 23 can get 15 more copies so that those people who are 24 in the audience have a copy of it, and I appreciate 25 all the work that went into it, but for the sake of 6 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 getting things done efficiently, if you can 3 highlight your testimony, and please point out the 4 things that would be troublesome to me and my 5 colleagues, I would appreciate that so that we can 6 have a dialogue and a very direct one without 7 wasting any time. Just make sure to identify 8 yourself before you start. 9 MS. POST: Good afternoon, Chairman 10 Felder, members of the Council. My name is Carole 11 Post. I'm the Director of Agency Services at the 12 Mayor's Office of Operations. I am joined by David 13 Goldin, the Administrative Justice Coordinator, 14 Roberto Velez, the Chief Administrative Law Judge at 15 OATH; Charles McFall (phonetic), the Deputy Chief 16 Administrative Law Judge at OATH, and Michael Moran, 17 the Deputy Executive Director at Environmental 18 Control Board. 19 We will collectively be providing you 20 some backgrounds of testimony, and being able to 21 engage in a dialogue and answer any questions that 22 you may have. 23 What we wanted to provide to you by 24 way of the written testimony was some background 25 about how we got here. This was a collective effort 7 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 with Council to bring this reform bill forward. It 3 represents a significant step in the reform effort 4 at ECB, however, there has been a number of efforts 5 that have gone on at ECB in the past several years. 6 This will be a significant step forward to continue 7 that series of improvements. 8 As we go through the testimony, we 9 wanted to highlight the provisions of the bill, and 10 how they apply to ECB, as well as represent the 11 benefits that the relocation of ECB to OATH will 12 bring to continuing the improvement process. 13 We wanted to get a little bit of 14 background about ECB, how it got to the point that 15 it is today. It was created in 1972 as part of DEP 16 or what was its predecessor at the time. It was 17 originally intended to be an alternative to Criminal 18 Court adjudications for quality of life types of 19 violations. 20 And rather than burden the Criminal 21 Courts with adjudicating these violations, the 22 Council gave ECB that authority. 23 Since then, ECB has evolved into 24 being the adjudicatory body for hundreds of 25 different quality of life infractions issued by 12 8 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 different City agencies. So, it became obvious that 3 the alignment with DEP was no longer the most 4 appropriate way of organizing the tribunal. 5 It's now the second largest tribunal 6 in the City, one of the largest in the country, and 7 it was an opportune time to undertake reform 8 efforts, this bill being one to move that forward. 9 In 2006 we started the efforts in 10 earnest with the Mayor's Office of Operations, 11 partnering with the Administrative and the Criminal 12 Justice Coordinators, and leadership at ECB to 13 review the operations top to bottom, identify areas 14 for improvement, and many of those improvements have 15 been already underway, including increasing 16 transparency for respondents by adding more 17 information to the web site, by developing user 18 guides, reference materials, implementing electronic 19 decisions, to make it faster for judges to issue 20 rulings, to improve the professionalism and the 21 appearance of these decisions, generally improving 22 accessibility by offering translation services, a 23 number of things that we wanted to make improvements 24 to make it easier for respondents to navigate the 25 process. 9 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 All these improvements are a step in 3 the right direction. This bill represents an 4 opportunity to continue that effort. And by aligning 5 ECB with OATH, it takes us a significant step 6 forward in that effort. 7 With that as a general backdrop, I'm 8 happy to take any other questions you may have about 9 what we've been doing in the past. 10 I would like to turn it over to David 11 Goldin, who will walk us through the particulars of 12 the bill, how each provision will be applied at ECB, 13 and then Chief Judge Velez can walk us through some 14 of the benefits of aligning with OATH and the value 15 that OATH can bring to the process. 16 Thank you. 17 ADMINISTRATIVE JUSTICE COORDINATOR 18 GOLDIN: Good afternoon, Chairman Felder, members of 19 the Council. I'm David Goldin. I'm the 20 Administrative Justice Coordinator in the Mayor's 21 Office. I want to talk briefly about the major 22 features of Intro. 777, what it does with respect to 23 ECB's structure and processes. 24 The first thing that the bill does 25 and the most notable feature of it is to transfer 10 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 the overall administration of ECB from the 3 Department of Environmental Protection, to the 4 Office of Administrative Trials and Hearings. This 5 is a major step in terms of providing ECB with the 6 overall managerial structure, which is going to be 7 critically related to the function of the agency, 8 and enable ECB to benefit from the expertise and 9 guidance that OATH, which is the City's Central 10 Administrative Tribunal, with particular experience 11 in the area of tribunal administration, can bring to 12 bear. 13 I want to emphasize in connection 14 with that, however, that what we are doing is not 15 going to take away from the basic thrust of what ECB 16 does in terms of handling notices of violations in a 17 relatively informal setting and in a local 18 environment with five borough offices. 19 Those will continue to be in place 20 and the same relative informality will obtain. 21 Now, there are five other aspects of 22 the bill that affect ECB procedures, and I want to 23 go through them as well. 24 First, the bill, recognizing 25 improvements that we have made at ECB over the 11 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 course of the past year, puts into law the 3 requirement that ECB offer language services, where 4 a respondent who does not speak English, needs 5 assistance in being able to handle a hearing, and in 6 particular what we are offering and are now 7 providing throughout the ECB system is Language 8 Line, which is a telephone-based service that allows 9 an ALJ to conference in an interpreter who can 10 participate in the hearing, part of the record to 11 enable the respondent to participate and that gives 12 us access to 170 different languages, which with the 13 diversity of backgrounds of respondents in this City 14 is the kind of resource that we need. 15 Second procedural change that the 16 bill introduces is to reduce inconvenience to 17 respondents at ECB by creating new rules for dealing 18 with adjournments. 19 We recognize that one of the things 20 that frustrates people when they come to ECB is the 21 necessity of coming back multiple times, especially 22 where you have a respondent who has a business to 23 attend to, or family obligations that they're 24 putting on hold, while they do that. 25 So, what the bill does is, it says if 12 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 you as a respondent have a notice of violation, and 3 you come into ECB on the date at the time, at the 4 place as required by the notice of violation, then 5 that hearing cannot be adjourned unless you consent 6 to it, or absent extraordinary circumstances, 7 someone on behalf of the issuing agency is present 8 at the hearing. 9 So, we won't be in a situation in 10 which you come in and you are told with nobody from 11 the agency even being there, this is going to be 12 adjourned and you have to come back. 13 The second thing that this does in 14 connection with adjournments is to say, if because 15 the issuing agency does have a representative who 16 has asked for an adjournment or for any other reason 17 the hearing is adjourned so that the officer who 18 wrote the ticket can come in, that if at that 19 adjourned hearing, you as the respondent come in 20 when you are told to on the date at the time and so 21 forth, then you're entitled to have that adjourned 22 hearing go forward, even if the issuing officer 23 doesn't appear, unless there are extraordinary 24 circumstances, or unless you consent to your own 25 reasons to a subsequent adjournment. 13 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 So, with those provisions in place we 3 have additional constraints on the system that are 4 going to move cases along more quickly, and that's 5 good both for the respondent who needs to have the 6 inconvenience to them reduced, and to the City which 7 needs to see cases that are important to our quality 8 of life enforcement move ahead expeditiously. 9 Then the bill codifies a provision 10 which is now in ECB's rules which says that an 11 Administrative Law Judge may impose sanctions on a 12 party of the party fails to comply with a discovery 13 order or a legitimate discovery request under ECB's 14 rules. 15 The bill also says that we have a 16 commitment or reflects a commitment on our part to 17 decide appeals within 180 days after an appeal has 18 been filed. And what the bill says is that when a 19 respondent has filed an appeal, if no final decision 20 has been issued by ECB's board on the appeal within 21 180 days, then the respondent has the right to go 22 into court and to treat the decision of the 23 Administrative Law Judge as the final agency 24 decision subject to review for Article 78 purposes, 25 so the respondent is not going to be stuck in limbo 14 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 waiting for an appeals decision, the respondent has 3 recourse, can take that ALJ decision and attack it 4 in court if the respondent chooses to do so. 5 Now, the thrust here obviously is to 6 have ECB actually issuing those appeals decisions in 7 180 days or faster, which is what we are committed 8 to doing, but the point is also to provide 9 respondents with the assurance that should that not 10 happen, the respondent is entrapped in the system, 11 the respondent has recourse. 12 The final thing in the bill is that 13 the bill requires ECB to develop and put in place an 14 electronic case management system and to report back 15 to this Council by no later than December 1st of 16 this year on our planning and our progress toward 17 achieving that end. 18 There is no question that we've 19 already made a lot of improvements, as Carole Post 20 has described, those are improvements that are 21 critically dependent on having advances in 22 technology but we need to go much further. 23 We are in the process of developing 24 that technology, and we are looking forward to 25 reporting back to the Council in more detail on how 15 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 we are going to be using that in order to achieve 3 the other goals we've described here, reducing 4 inconvenience for the parties, making sure that 5 cases are handled more efficiently and more fairly 6 and enhancing the overall professionalism of the 7 Environmental Control Board. 8 As Carole Post said, a central 9 feature of all of this is the relationship between 10 the Environmental Control Board and OATH. That's a 11 key feature of the legislation, a key feature of 12 these plans, and to speak further to that, I'm going 13 to pass the microphone to Chief Administrative Law 14 Judge Roberto Velez of the Office of Administrative 15 Trials and Hearings. 16 JUDGE VELEZ: Thank you very much. 17 Good afternoon, Chairman Felder, and members of the 18 Governmental Operations and Small Business 19 Committees. 20 My name is Roberto Velez, and I'm the 21 Chief Administrative Law Judge at the Office of 22 Administrative Trials and Hearings, OATH, and I am 23 now Chair of the Environmental Control Board. 24 I want to provide some just basic 25 information about OATH. OATH was established in 1979 16 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 to professionalize the administrative hearing system 3 by functioning as an independent tribunal. And in 4 1988, OATH was incorporated into the City Charter as 5 the City's Central Tribunal with the authority to 6 conduct administrative hearings for all agencies, 7 boards and commissions. 8 And in my testimony, I talk about the 9 different areas, to be brief, it's a very diverse 10 caseload, the caseload OATH is responsible for. 11 I just want to focus on our Judges. 12 OATH Administrative ALJs are appointed by me after 13 an extensive recruitment and selection policy, and 14 recruitment involves a rigorous review of 15 credentials, skills and abilities and a 16 decision-writing competition. 17 We really take great care in 18 selecting those individuals that appear at hearings. 19 Just to jump down a little further. 20 Our judges must follow the rules of conduct for City 21 ALJs, as well as the New York State Code of Judicial 22 Conduct. So, they're required to follow these ethics 23 codes. 24 I just also want, just to be brief, 25 want to summarize just two important initiatives we 17 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 have undertaken at OATH. 3 In 2003, OATH established the center 4 for mediation services, and in the center we mediate 5 workplace disputes between City employees. It's a 6 great innovation. 7 And we also provide training to help 8 managers and employees resolve workplace dispute, 9 and we found that very helpful, and agencies are 10 really embracing this. 11 Another important initiative is the 12 administrative judicial institute, which was 13 established in 2006. The institute serves as a 14 professional development education resources for the 15 City's Administrative Law Judges. We found that in 16 the different tribunals there is a real need for 17 continued training, and some agencies have resources 18 and they do an excellent job, some agencies 19 struggle. 20 So, the Administrative Judicial 21 Institute will be that institution that provides 22 beginning and continuing education for all ALJs. And 23 I think that's a real resource we bring to our 24 partnership with OATH and ECB. 25 And let me just go right to the end 18 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 of my testimony to really focus in on the benefits 3 expected from the proposed consolidation of OATH and 4 ECB. 5 As a City Central Tribunal, OATH can 6 bring comprehensive and enduring change by 7 introducing expertise and best practices to EC 8 operations in the areas of data reporting and 9 accountability by requiring more robust reporting 10 tools and thorough reporting policies. 11 2) Customer service and public 12 information by opening communications internally and 13 to the public and development of materials to guide 14 and assist users. 15 3) Legal recruitment and training by 16 leveraging the Administrative Judicial Institute 17 that I talked about earlier, and focusing on 18 improving the skills of the ALJs. 19 I also want -- the partnership also I 20 think will help technology and really improve its 21 implementation. 22 And, finally, I think the OATH ECB 23 partnership will really help to enhance the 24 professionalism of both OATH ALJs and ECB ALJs. 25 So, I really look forward to this 19 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 partnership, because I think both institutions can 3 learn a great deal from one another. 4 Thank you very much. And you have a 5 standing invitation to come to an OATH hearing and 6 an ECB hearing. I very much would like to show you 7 around, and very proud of what's been done at OATH 8 and ECB. 9 Thank you very much. 10 CHAIRPERSON FELDER: Thank you. 11 Where are you located? 12 JUDGE VELEZ: The OATH offices are 13 located at 40 Rector, and ECB Central Office is 14 located at 66 John Street, and there are other 15 borough offices for ECB in each of the other 16 boroughs. 17 CHAIRPERSON FELDER: Very good. 18 I have some questions and, obviously, 19 you will decide among yourselves who is best fit to 20 answer them. 21 How many violations were contested in 22 hearings last fiscal year at ECB? 23 ADMINISTRATIVE JUSTICE COORDINATOR 24 GOLDIN: There were approximately 175,000 last year. 25 CHAIRPERSON FELDER: Can you just 20 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 repeat that? I'm sorry, I didn't hear you. 3 ADMINISTRATIVE JUSTICE COORDINATOR 4 GOLDIN: One seventy-five thousand that actually went 5 to a hearing. 6 CHAIRPERSON FELDER: What types of 7 violations? Can you give me general? 8 ADMINISTRATIVE JUSTICE COORDINATOR 9 GOLDIN: Sure. 10 CHAIRPERSON FELDER: Like what 11 percentage of the 175,000? 12 ADMINISTRATIVE JUSTICE COORDINATOR 13 GOLDIN: You want the top most frequently litigated 14 cases? 15 CHAIRPERSON FELDER: Yes, like if you 16 could tell me. Is there one that's 50 percent, 60 17 percent? 18 ADMINISTRATIVE JUSTICE COORDINATOR 19 GOLDIN: Yes. The most frequent ones were primarily 20 in the category of Sanitation violations. 21 CHAIRPERSON FELDER: What percentage 22 was that? 23 ADMINISTRATIVE JUSTICE COORDINATOR 24 GOLDIN: Well, I'll give you the breakdown of some of 25 the cases. 21 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Dirty sidewalk cases worked out to be 3 about 13 percent of the cases that were heard. 4 Illegal posting of handbills. I don't 5 have the percent numbers right in front of me but I 6 think it's about eight percent. 7 Failure to clean eight inches into 8 the street, and improper storage of receptacles were 9 third and fourth. 10 CHAIRPERSON FELDER: I'm sorry I'm 11 slow. 12 I was with you, after the posting of 13 the -- 14 ADMINISTRATIVE JUSTICE COORDINATOR 15 GOLDIN: Yes, illegal posting of handbills. 16 CHAIRPERSON FELDER: Yes, what 17 happened after that? 18 ADMINISTRATIVE JUSTICE COORDINATOR 19 GOLDIN: Number three is failure to clean 18 inches 20 into the street. 21 CHAIRPERSON FELDER: Yes. 22 ADMINISTRATIVE JUSTICE COORDINATOR 23 GOLDIN: That worked out to about five percent. 24 CHAIRPERSON FELDER: Okay. 25 ADMINISTRATIVE JUSTICE COORDINATOR 22 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 GOLDIN: Improper storage of receptacles was about 3 three percent, and then the fifth most widely 4 contested violation, which is the top one that is 5 not a sanitation one, is the failure to conduct 6 required tests through inspections. 7 Safety equipment, that's a Fire 8 Department violation, and that was about three 9 percent. 10 CHAIRPERSON FELDER: So, what are we 11 up to? About 30 percent at most? 12 ADMINISTRATIVE JUSTICE COORDINATOR 13 GOLDIN: Those accounted for, how much? Twenty-nine 14 percent. 15 CHAIRPERSON FELDER: Thank you. 16 So, now the other 70 percent? 17 ADMINISTRATIVE JUSTICE COORDINATOR 18 GOLDIN: You have hundreds of other code violations. 19 CHAIRPERSON FELDER: Are you telling 20 me that, if I understand you correctly, that the 21 other 70 percent could be split -- forgetting about 22 Sanitation itself, are there any other types of 23 violations that there are substantial percentages 24 among the 175,000. 25 ADMINISTRATIVE JUSTICE COORDINATOR 23 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 GOLDIN: Sure. 3 I mean, I don't have it broken down 4 in percentages, but I can tell you in absolute 5 terms, if we look at all of the violations that were 6 issued in Fiscal Year '07 that resulted in 7 decisions, the category that I just gave you that 8 was number five, the failure to conduct required 9 test inspections, that was about 5,500 decisions. 10 Next most frequent would be failure 11 to produce a permit or record. Another Fire 12 Department violation. That was about another 5,000 13 decisions. 14 We have a number that are of several 15 thousand hearings. Loose rubbish, sanitation 16 violation, was about 3,300 decisions. Mixed 17 recyclables, that is recyclables placed for 18 collection with non-recyclables that resulted in 19 about 2,900 hearings, recyclables, non-recyclables 20 left in a non-recycling container. It's about 2,500 21 hearings and so on. So, there are a number of other 22 categories of violations that had several thousand 23 hearings. 24 CHAIRPERSON FELDER: What percentage 25 of all of these hearings relate to Sanitation 24 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 violations? 3 ADMINISTRATIVE JUSTICE COORDINATOR 4 GOLDIN: Of all the hearings that are conducted, 5 we'll have the percentage figured, I think it's 6 roughly 50 percent. 7 CHAIRPERSON FELDER: Fifty percent, 8 okay. Okay. 9 ADMINISTRATIVE JUSTICE COORDINATOR 10 GOLDIN: We'll get you the actual figure. 11 CHAIRPERSON FELDER: If someone could 12 just detail that, I'd like to share that with my 13 colleagues. 14 ADMINISTRATIVE JUSTICE COORDINATOR 15 GOLDIN: Sure. 16 CHAIRPERSON FELDER: Now, how much 17 revenue was taken in in the last fiscal year through 18 violations that you adjudicated? 19 ADMINISTRATIVE JUSTICE COORDINATOR 20 GOLDIN: We took in overall 87.5 million. Of those 21 cases that actually went to a hearing, that was 22 about 38.5 of that 87. 23 CHAIRPERSON FELDER: Can you repeat 24 that? That last point, I'm sorry. 25 ADMINISTRATIVE JUSTICE COORDINATOR 25 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 GOLDIN: Overall it was 87.5. That includes all the 3 cases in which payments were made, including ones in 4 which there wasn't a hearing, where somebody didn't 5 contest the violation. 6 Of the ones that actually went to a 7 hearing where it was contested, that was about 38.5. 8 CHAIRPERSON FELDER: Do you know what 9 portion of revenue that came in related to 10 penalties? 11 ADMINISTRATIVE JUSTICE COORDINATOR 12 GOLDIN: The penalty? 13 CHAIRPERSON FELDER: The fine itself. 14 ADMINISTRATIVE JUSTICE COORDINATOR 15 GOLDIN: You're talking about how much it was 16 default? 17 CHAIRPERSON FELDER: Yes. 18 ADMINISTRATIVE JUSTICE COORDINATOR 19 GOLDIN: I don't have that figure here. 20 CHAIRPERSON FELDER: Okay. 21 ADMINISTRATIVE JUSTICE COORDINATOR 22 GOLDIN: We can obtain it for you. 23 CHAIRPERSON FELDER: I would 24 appreciate it. 25 Of the cases that were challenged at 26 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 ECB, how many were judged in favor of the 3 respondent? What percentage? 4 ADMINISTRATIVE JUSTICE COORDINATOR 5 GOLDIN: About 32 percent won the case, about one in 6 three. 7 CHAIRPERSON FELDER: One in three 8 times the respondent won the case. 9 ADMINISTRATIVE JUSTICE COORDINATOR 10 GOLDIN: Right. 11 CHAIRPERSON FELDER: We've been joined 12 by Council Member Annabel Palma. 13 And how many times, or what 14 percentage of the repeals resulted in reversal? 15 ADMINISTRATIVE JUSTICE COORDINATOR 16 GOLDIN: Overall, it was about 24 percent of the 17 cases that were appealed result in reversal. About 18 20 percent of the cases in which the respondent 19 appealed. 20 CHAIRPERSON FELDER: We've been joined 21 by my co-chair Council Member David Yassky. 22 Councilman Yassky. 23 CHAIRPERSON YASSKY: Thank you very 24 much. And thank you, Chair Felder, for beginning the 25 hearing. I apologize for my delay. But this is a 27 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 bill that I'm enthusiastic about and I'm looking 3 forward to pushing through. 4 I don't want to interrupt your line 5 of questioning. I do have one thing I'd like to ask, 6 are you in the middle? 7 CHAIRPERSON FELDER: I have nothing to 8 ask until you finish. 9 CHAIRPERSON YASSKY: There we go, 10 because this is really about the topic near and dear 11 to your heart, Chair Felder. 12 I just want to know what impact and 13 what follow-up there has been from the 14 Administration side, from the bill that Chair Felder 15 pushed through on litter tickets and dirty sidewalk 16 and dirty street tickets, and whether you have any 17 data on how many of those tickets have been issued 18 and gone through ECB in the last six months, eight 19 months, whatever it is you'd measure. 20 ADMINISTRATIVE JUSTICE COORDINATOR 21 GOLDIN: How many of the tickets have been 22 specifically with respect to litter? 23 CHAIRPERSON YASSKY: Yes. 24 ADMINISTRATIVE JUSTICE COORDINATOR 25 GOLDIN: I don't have those data right here, we can 28 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 break it down and find out. 3 CHAIRPERSON YASSKY: Thank you. I 4 would really appreciate that. 5 Well, thank you very much. Chair 6 Felder, please. Sorry for the interruption. 7 CHAIRPERSON FELDER: It's not an 8 interruption. 9 CHAIRPERSON YASSKY: I don't need to 10 go on at length, I think we do need to make sure 11 that as much as possible we make it easy for people 12 to do business in the City. Of course we have rules 13 and of course they need to be respected. I think 14 that far too often businesses find the enforcement 15 of City rules to be harassing in nature, and when 16 they try and go and present their case, it's very 17 difficult. 18 I think that this, moving this 19 process into OATH and the process changes are 20 contemplated here. I think that -- I hope it will 21 and I believe it will make it easier for business 22 folks to have their day in court and get a fair 23 outcome. 24 And so I very much appreciate the 25 work the Administration has done in putting this 29 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 program together and I look forward to its speedy 3 passage. Thank you. 4 CHAIRPERSON FELDER: Thank you very 5 much. 6 Could you please describe the 7 workings of the language line interpretation system? 8 ADMINISTRATIVE JUSTICE COORDINATOR 9 GOLDIN: I'm going to ask Mike Moran of ECB to 10 address that one, if I may? 11 MR. MORAN: Hi. Good afternoon, and 12 thank you for the opportunity to testify. It's good 13 to see you again. 14 The language line program started 15 about six months ago, and it works in the following 16 way. When an individual comes into an ECB office, a 17 reception unit will ask or give a piece of paper and 18 indicate whether they're having any difficulty with 19 speaking English. 20 If they, in fact, say they do need an 21 interpreter, they are escorted into the hearing 22 room, and the ALJ will ascertain what the language 23 needed is. 24 We will then call the central 25 language line bank, and as soon as we have everybody 30 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 ready we'll begin the process and we record the 3 hearing. 4 We've received I think through 5 February about 2,500, 2,500 interpreter services. 6 CHAIRPERSON FELDER: I just want to 7 get into a little greater detail with this. 8 Something that's unrelated that 9 really doesn't work as well as it should, for 10 example, in the 3-1-1 system, even though they 11 supply interpreters for 170 languages, what happens 12 is you call and then you say I need Spanish or 13 something like that. They will connect, I assume a 14 subcontractor somewhere on the phone, which is 15 wonderful. 16 The problem is after that point, from 17 what I understand, the follow-up on that, you know, 18 is not in Spanish, so that if someone is supposed to 19 get back to them, you get a complaint in Spanish, 20 but the response, for example, if it's let's say 21 forwarded to some police precinct or some other 22 agency, someone at that agency is going to try 23 calling this person back, but there is no mechanism 24 right now for there to be a hook-up on the response, 25 so that this person understands what they're saying, 31 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 even though they may be helping them. 3 So, I understand the mechanism at the 4 hearing itself, I just want to know once the 5 hearing, most of the -- it may be that most of the 6 communication will be in writing after that, or 7 whatever else, right? Maybe. But if you're providing 8 somebody as an interpreter and then you're going to 9 send them something back in writing once they had an 10 interpreter, they're going to, I think, people will 11 expect to be able to understand what's going on. 12 I'm not sure it would be very costly, 13 and it's not as though I have a solution, but it's 14 always much more comfortable to sit here and make 15 you look bad than for me to say I don't have an 16 answer. 17 I'm just wondering what you think 18 about it. 19 ADMINISTRATIVE JUSTICE COORDINATOR 20 GOLDIN: You're not making me look bad. 21 I think our priority here with 22 language line, was that when an individual comes 23 into the office to avoid sending a way to find an 24 interpreter, and we have done that and we think 25 we've done it very successfully with language line. 32 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 We have taken it to what is the 3 logical next step that you've pointed out, which is 4 to provide our decision orders and other mailing 5 notices in an appropriate language, that is 6 something I will defer to and work with Roberto and 7 other folks at the Mayor's Office of Operations and 8 with David on to see what that would entail. 9 Thank you. 10 JUDGE VELEZ: This is something near 11 and dear to my heart as well, and I'm the new person 12 here and I'm learning the process, but I think 13 you're right, it's essential for someone to have 14 good translation at the hearing and follow-up 15 material in the appropriate language. Let me look 16 into this. Mike Moran has done great work in 17 beginning to compare pamphlets on the Environmental 18 Control Board process and we're going to have those 19 translated, but I think it's one of those that I 20 need to learn the system, and try to figure out a 21 way to do this quickly, efficiently and cost 22 effectively. 23 CHAIRPERSON FELDER: Well, I 24 appreciate that very much, and I want to be clear 25 that Mr. Moran has been one of the public servants 33 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 that I personally have had the honor to work with 3 over many years in government who actually returns 4 your calls, even when he has bad news for you. I 5 think he returns them promptly which is very, very 6 rare, and he actually tells you the truth, even 7 though you don't want to hear it, which is something 8 that I don't believe in. I just wanted to see if you 9 were listening. 10 You're going to have to testify. 11 What specific technological 12 improvements, I know you mentioned some in the 13 testimony, but what -- for example, what 14 improvements will be made in terms of case 15 management to actually see that things are being 16 done on time? And the funding, which everything 17 comes down to, because some of the questions we have 18 obviously cost money and where are you getting the 19 money, the needed money to do those things? 20 ADMINISTRATIVE JUSTICE COORDINATOR 21 GOLDIN: Well, we're moving in the direction of 22 having an electronic case management system, and 23 that is something that we have worked on with OMB, 24 and we have the funding in place for that. It's 25 something that we're currently in the process of 34 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 developing. What that will give the individual judge 3 is an electronic case file, which means that instead 4 of being in the situation that the Judge is now in, 5 where the entire file is a piece of paper or 6 multiple pieces of paper in a manila folder, and 7 that's what's got to be moved around the office, 8 it's going to be an electronic file when the hearing 9 commences that will be cued up, the Judge will have 10 access to all of the documentation, and that will be 11 the basic component of the case. 12 Now, as that system is developed, 13 that's going to give us greater flexibility in terms 14 of being able to schedule, because we will be able 15 more readily to communicate with both parties, 16 respondent and issuing agency, so that we can take 17 more of that process out of the physical setting in 18 the hearing room or at the office and have it be 19 something which occurs on line, by telephone or 20 otherwise, and it's also going to give us a greater 21 ability to provide information to people without the 22 necessity of their making a telephone call or in 23 person, and they'll be able to get stuff on line. 24 The specific parameters, exactly 25 what's going to be entailed in that, is part of what 35 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 we're currently in the process of developing. That's 3 what we're going to be reporting back on in 4 December. Part of the whole move to do all of these 5 things simultaneously, including bringing in OATH 6 management, and taking account of the other rule 7 changes that we're making in this legislation is to 8 give ourselves the time to review that to work out 9 the details and to be able to tell you then what the 10 specific components and functionalities will be. 11 CHAIRPERSON FELDER: Are all your 12 judges full-time? 13 ADMINISTRATIVE JUSTICE COORDINATOR 14 GOLDIN: Do you want to answer that? 15 JUDGE VELEZ: Yes. 16 OATH judges at 40 Rector Street are 17 full-time managerial employees. At the Environmental 18 Control Board we have a group of full-time ALJs. The 19 number is about -- 20 ADMINISTRATIVE JUSTICE COORDINATOR 21 GOLDIN: Twenty-five. 22 JUDGE VELEZ: Twenty-five. And we have 23 about per diem ALJs. 24 CHAIRPERSON FELDER: So, again, when 25 this is consolidated, right? Are you going to still 36 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 have part-time judges? 3 JUDGE VELEZ: Yes, we will still have 4 per diem judges. We will still be using full-time 5 and per diem judges. 6 I think there will always be a need 7 for per diem judges, as caseloads increase and 8 decrease. It's a wonderful management way, 9 management tool of handling these caseloads. 10 But in the future, I'm going to be 11 making assessments to see what numbers we really do 12 need. But at the present time, I'm going to be 13 looking for more per diem ALJs, because I think our 14 caseload will be increasing. 15 CHAIRPERSON FELDER: We have, or we 16 could have, because I'm very impressed with your 17 testimony, I used to like you up until this point. I 18 am not in favor -- I still like you, I don't like 19 what you said. But I am not in favor at all of the 20 increasing those temporary judges. I don't 21 understand it. 22 I do understand, as it would be with 23 any business that due to cyclical demands, you have 24 to be able to have an option of hiring temporary 25 judges. That makes sense. To say there should be 37 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 none I think is not reasonable. 3 But you admit yourself that you have 4 200, you know, whatever you want to call them, 5 rotating judges, that would mean to me that at a 6 minimum there is a certain percentage, no matter 7 what the cycle is of permanent judges that should be 8 hired. And the problems that ECB has are compounded 9 by those temporary judges. You have good ones, you 10 have bad ones, but there is no question that you 11 have somebody who is involved in something else, 12 other than this, and they do this part time, that 13 it's not the same. 14 So, I would beg to differ, especially 15 with you're saying that you're going to feel you 16 need more, that instead of hiring more people, we 17 should hire more judges. 18 Councilman Yassky, did you want to 19 say something? 20 CHAIRPERSON YASSKY: I was going to 21 say exactly what you just said. 22 I would just add. I understand that 23 you're moving over, and maybe now is not the time to 24 have a big disruption, say we're going to change 25 from per diem to full-time professional, but when I 38 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 heard you say that you're going to hire more, what 3 is the rationale for adding to the capacity by 4 hiring more per diem, as opposed to more full-time, 5 you know, professionalized judges? 6 JUDGE VELEZ: I guess I'm a new guy on 7 the block and I need to do an assessment on the 8 number of full time and per diems. 9 And this is something that I'm 10 probably going to be struggling with, but there is a 11 need for me to address some backlog issues, and me 12 using, my using the per diem ALJs is a good way, and 13 it's a cost effective way of doing it. 14 CHAIRPERSON FELDER: We don't want to 15 belabor it, because I don't want anyone to accuse us 16 of being unkind, or not hospitable to someone who is 17 the new kid on the block. But you have impressed me 18 tremendously, so I'm not giving you the grace period 19 that I would give to someone who I didn't think was 20 competent. 21 I think that we are humbled and very 22 lucky to have you. And if you're saying that you 23 need two or three months, or whatever it is, 24 whatever time period, to be able to clear up a 25 backlog and you want to clean up the place so you 39 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 can get a fresh start, and the only way you're going 3 to do that is not by waiting weeks and weeks to hire 4 permanent judges, I would say that makes sense. 5 If the goal ultimately is to make 6 sure that we really fill these with permanent 7 positions with the latitude to be able to go up and 8 down during the cycles, and I appreciate the 9 enormous task that you're facing, I think my 10 colleagues as well. But at the same time I think 11 ultimately we would beg that you consider hiring 12 more permanent judges, once you are able to clean 13 things up a bit. 14 Can you -- I know this may sound 15 elementary, but can you tell me, what is the current 16 process like at ECB, once someone is issued a 17 violation. Just take us through it. 18 MR. MORAN: You're looking at me so I 19 guess I'm the lucky guy. 20 CHAIRPERSON FELDER: No, because 21 everyone else at your table was looking at you. 22 MR. MORAN: What happens is that there 23 are some 12 issuing agencies that return violations 24 to ECB. 25 When a violation is completed by the 40 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 issuing officer in the field, one of the elements 3 they complete is the hearing date. 4 So, the hearing date is the date that 5 we would like the respondent to come in for a 6 hearing. If for some reason they're unable to come 7 in on that date, we're flexible and could reschedule 8 that case for a time that's more convenient for 9 them. 10 When the respondent comes in or the 11 representative, or an attorney, however they wish to 12 contest the violation, they go to one of the ECB 13 offices, they fill out some paperwork, and then 14 they're asked to have a seat. 15 The next available ALJ who is 16 qualified to hear that case will then walk out into 17 the waiting room and call for Mr. Moran and say, 18 please come in, and they'll conduct a hearing. 19 The respondent is either sworn in or 20 affirmed to tell the truth, there may be an issuing 21 officer present, there may be another representative 22 from the issuing agency present. 23 The ALJ will then proceed to explain 24 what is going to happen today. 25 Because ECB is somewhat, I don't mean 41 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 this in a derogatory way, but in an informal court 3 we explain things at the best level for the 4 respondent. So, once we have completed the 5 explanation of what we're going to do on that 6 particular day, the hearing will be started. The 7 hearing is recorded, ALJ is in charge of the 8 hearing, sometimes people don't recognize that, but 9 the ALJ is in fact in charge of the hearing, and 10 we'll proceed to listen to testimony from the 11 issuing agency, and from any other parties. 12 When the ALJ is sufficiently through 13 with the hearing, they will close the record. 14 If there is a need to adjourn the 15 case for the issuing officer, that will happen, or 16 if there is a need to adjourn or reschedule the case 17 because the respondent or someone else needs legal 18 representation, that will also occur. 19 So, once the hearing is closed, the 20 ALJ will write up the decision. The decision is then 21 reviewed by another judge, typically for correctness 22 of the overall decision as it relates to the law, 23 and what was presented. 24 The decision is then mailed to the 25 respondent or the representative who appeared at the 42 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 hearing, and a copy is also sent to the issuing 3 agency, and that would complete the hearing process. 4 CHAIRPERSON FELDER: And how many days 5 does the respondent have to either appeal it or pay 6 it? 7 MR. MORAN: Thirty days. 8 CHAIRPERSON FELDER: Now, just as 9 general discussion for a moment. Somebody, like some 10 of the tickets we talked about, 50 percent was 11 sanitation related, somebody gets a ticket, says 12 dirty sidewalk, right? This lady says, I don't know 13 what they're talking about. She comes down for a 14 hearing, right? 15 MR. MORAN: That's correct. 16 CHAIRPERSON FELDER: She comes in 17 front of one of your judges and she says I sweep my 18 sidewalk, you know, every day. It's clean. I don't 19 know what they're talking about, right? An ALJ -- 20 It's not only, I would say it's not only isolated 21 obviously to ECB, with traffic enforcement and other 22 things, the same thing, it's very difficult I think 23 for people to understand the justice in how these 24 things work. 25 On one hand you have this 43 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 responsibility for enforcement, and to be able to 3 get compliance, and that's one of the mechanisms. On 4 the other hand, you have people coming in and 5 really, for the most part, somebody comes and says I 6 cleaned it up, and the agent comes and says it was 7 dirty. I would assume the ALJ rules in favor of the 8 agent? 9 MR. MORAN: That's not necessarily the 10 case, as we've demonstrated with some of the 11 statistics we have today. Each case is unique. 12 CHAIRPERSON FELDER: I'm trying to 13 envision this. I want to believe that what you're 14 saying is true. Not that you're lying, God forbid, I 15 just don't understand the theory here. Because he 16 says one thing, they say the other thing, who can 17 prove such a thing? And let me tell you, I'm not 18 sure that videotaping everything is a solution for 19 everything in the world, because if you have 20 somebody that is not doing what they're supposed to 21 do, it's not so hard to kick a piece of paper on 22 somebody's property either, and I don't know if 23 that's great, but other than the oral arguments that 24 they're both making -- again, I don't have any 25 solution to it. I'm just saying to you is that 44 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 people are very disenfranchised when they're 3 encouraged to go for a hearing feeling that there is 4 nothing that they can do or say. Other than, for 5 example, on a case for on a day when it was very 6 windy, as an example, and someone got a ticket. And 7 they say, what do you want me to do? The winds were 8 blowing 30 miles an hour, 40, there is nothing I can 9 do. They bring in some documentation that shows that 10 that day was, you know, very windy day. But 11 otherwise, you know, if I was the ALJ, and I'm not a 12 lawyer, but if I was a lawyer I would probably rule 13 in favor of the City as well. 14 MR. MORAN: I think that the ALJs, and 15 we have taken some efforts to train them, are told 16 to go to credibility. So, you have in front of you a 17 violation which articulates one side. It says I did 18 see papers matted. 19 CHAIRPERSON FELDER: Yes. 20 MR. MORAN: The ALJ is trained to ask 21 the questions from the respondent, what did you do 22 and what's your defense? Do you sweep? How often do 23 you sweep? Do you sweep during the hours you're 24 supposed to sweep? Where do you live? Are you near a 25 bus stop? Is it a commercial establishment? 45 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 So, there are a number of factors 3 that the ALJ will ask that will allow them to go to 4 the issue of credibility. 5 So, I firmly believe that our ALJs do 6 give folks a fair shake when they come into our 7 offices. 8 Are there isolated cases where maybe 9 they're wrong? That may be the case, but I think by 10 and large our ALJs do a very good job finding, 11 making that finding of credibility and applying the 12 law. 13 CHAIRPERSON FELDER: All right. I'm 14 not going to argue with you about that, because I 15 believe you. I believe that what you are saying is 16 true. 17 I would just add that with the 18 permanent judges, I just have to rub it in again, 19 with the permanent judges, I think that you're more 20 likely to have that being the case than with the 21 temporary. That's not a question, it's a statement, 22 and you should, you're supposed to just shake your 23 head and smile without agreeing. 24 What is the percentage of the number 25 of fines that were imposed upon residents, but were 46 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 not collected? 3 ADMINISTRATIVE JUSTICE COORDINATOR 4 GOLDIN: If I understand the question correctly, 5 you're asking what's the volume of outstanding 6 penalties? 7 CHAIRPERSON FELDER: Yes. You said it 8 a lot better than me. 9 ADMINISTRATIVE JUSTICE COORDINATOR 10 GOLDIN: Okay. For the past two years, which is 11 usually the range that we look at, it's on the order 12 of $150 million, but that's not necessarily a 13 particularly useful figure, because in many of those 14 cases, when the case is pursued, it turns out it's a 15 situation which there may have been service 16 problems, or it may have been a case in which the 17 business entity is no longer around. 18 So, while one can't infer that there 19 is $150 million out there to be collected -- 20 CHAIRPERSON FELDER: I was about to 21 hold a press conference. 22 ADMINISTRATIVE JUSTICE COORDINATOR 23 GOLDIN: Okay. 24 CHAIRPERSON FELDER: What percentage 25 of that money would you say is real? 47 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 ADMINISTRATIVE JUSTICE COORDINATOR 3 GOLDIN: That's a lot harder to calculate. It's a 4 much smaller percentage. 5 CHAIRPERSON FELDER: Yes, but I'm 6 asking you a very specific question. I was nice the 7 whole time. 8 ADMINISTRATIVE JUSTICE COORDINATOR 9 GOLDIN: It's a very fair question. 10 CHAIRPERSON FELDER: Yes. 11 ADMINISTRATIVE JUSTICE COORDINATOR 12 GOLDIN: It's a question that we've been working on. 13 I don't have an answer for you. It's something we've 14 been looking at for -- 15 CHAIRPERSON FELDER: Yes, I'd like to 16 know. 17 ADMINISTRATIVE JUSTICE COORDINATOR 18 GOLDIN: It's something we can get fairly closely. 19 CHAIRPERSON FELDER: I'd like to know, 20 because if you said it was five percent of that 21 number, which I don't think is accurate, that would 22 be one thing. But it's probably, if I had to guess, 23 it's at least 25 percent of that number; would that 24 be fair? 25 You don't have to answer that. If you 48 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 can get me the information, I don't want to be -- if 3 you can get me the information, I'm very curious 4 about that. 5 And also I'd like to know what -- you 6 know, there are amnesties that they've done, other 7 programs in other areas, it would seem to me, 8 especially during tough times in the City, that even 9 if it's a much smaller amount, it would make sense 10 at some point, perhaps, to do an amnesty to get this 11 money. Even if, for example, it's 25 percent of it, 12 if the City can do an amnesty and get 25- 30 million 13 dollars now, I think that's a good deal to help, you 14 know, I don't mean for this budget, but for the 15 future periods, if you would consider that. 16 ADMINISTRATIVE JUSTICE COORDINATOR 17 GOLDIN: I take the point. It's something we'll look 18 at very closely. 19 CHAIRPERSON FELDER: Can you give us, 20 either now or in writing, the total number of 21 violations -- I think you gave it, it's 175,000? The 22 total number of violations, including those that did 23 not go to trial? 24 ADMINISTRATIVE JUSTICE COORDINATOR 25 GOLDIN: In Fiscal '07, there were about 700 and 49 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 change, 700,000 notices of violation issued 3 returnable to ECB. 4 CHAIRPERSON FELDER: Do you have any 5 questions for us? 6 Just one moment. 7 One last thing. How many, about how 8 many violations, how many cases were dismissed, due 9 to notice of violations containing a defect of some 10 sort? 11 MR. MORAN: I don't have that number 12 with me, but I can give it to you. 13 CHAIRPERSON FELDER: We've been joined 14 by Council Member Inez Dickens. 15 It's an honor having you. 16 And lastly, do you maintain any sort 17 of record of how many violations either for the 18 judges or the temporary judges are dismissed? 19 MR. MORAN: I can provide that sort of 20 information. 21 CHAIRPERSON FELDER: No, you can't, 22 probably, or even if you can, I don't want it. I 23 don't think I made myself clear. 24 I want to know whether you have some 25 way of tracking the people who are working for you 50 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 that perhaps you would be able to see sometimes some 3 sort of pattern with judges or agents for that 4 matter that, for example, whether it's an agent or 5 one of your judges, where let's say if it's the 6 agent, is there any way that you could sort of 7 detect a pattern where some agent is issuing 8 violations and 50 percent of their violations are 9 being dismissed, and/or with the judges that are 10 handling them, that either none of them are being 11 dismissed that a judge, for example, sees never, you 12 are able to see that 100 cases come in and 100 13 cases, the respondent is found guilty all the time. 14 To determine, you know, to be able to figure out 15 whether there is something odd. 16 I would assume that you would agree 17 that there is something odd about that. Not 18 necessarily but could be. 19 MR. MORAN: The answer is it relates 20 to the issuing agencies. We provide them with a copy 21 of the decision and order so they can see the 22 dismissals. 23 We also give them a computer report 24 that indicates serious errors by their officer 25 numbers they will be able to see, oh this officer 51 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 didn't put in the place of occurrence, this officer 3 didn't put in the name. 4 CHAIRPERSON FELDER: So, I think what 5 you're telling me is that you give the agency the 6 information, but you can't tell me whether they're 7 tracking it in any way; is that accurate? 8 MR. MORAN: I know that certain 9 agencies call me back for more information, but I 10 can't state for a fact what those agencies do with 11 that. 12 CHAIRPERSON FELDER: So then it could 13 be, I'm not even asking you, I'm just saying then it 14 could very well be that we really have no idea 15 whether there could be agents, not only in the 16 agencies that you oversee, but certainly, you know, 17 traffic agencies, agents and other agents, where 18 there is so far, I don't see if there is any way to 19 determine whether any particular employee has a 20 pattern of issuing violations that are egregious. 21 So, I think that's something that we 22 should look into. 23 I didn't introduce the people that 24 have been working me today. 25 The Counsel for Small Businesses, 52 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Chris Sartore. That's a nice Jewish name. And Israel 3 Rodriguez, who is the Policy Analysis for the 4 Government Operations Committee, and Michael 5 Cassatano, who is my Director of Legislation. 6 Council Member Dickens. 7 COUNCIL MEMBER DICKENS: Thank you, 8 Mr. Chair. 9 Good afternoon. Thank you for your 10 testimony. 11 Is there a training process for ECB's 12 hearing officers? 13 MR. MORAN: Yes, there is. What 14 happens is we do a recruitment process to identify 15 the per diem ALJs. 16 The first thing we do when they come 17 in is they are provided with a two-day training 18 session, where they will go through the rudiments of 19 the ECB hearing process, the nature of the notice of 20 violation will be explained to them, and then we'll 21 get into the details of the various laws that we're 22 responsible for adjudicating. 23 Once that two-day process is 24 complete, we then mentor them very, very carefully, 25 and we pair them with a more senior Administrative 53 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Law Judge or Hearing Officer, and the first few 3 days, first few hearings at least, are watching what 4 the more senior Hearing Officer will do, then the 5 next step is the hearing officer, the new hearing 6 officer, will be allowed to sit and do a hearing, 7 but will be observed by the mentoring ALJ, who will 8 take notes and point out the things that they've 9 done correctly and the things that they've done 10 incorrectly. 11 When that process is complete, they 12 are then allowed to do a hearing by themselves, but 13 they're still mentored and they'll be sitting next 14 to a room, or very close to a room with a mentoring 15 ALJ. 16 So, if they have a question, or they 17 have some sort of concern, they'll just excuse 18 themselves for a moment, walk across, and ask the 19 question. 20 When they have completed that portion 21 of the training, they are then brought back into 22 another training session where they'll go over the 23 vendor penalties. The reason we do that is the 24 vending penalties are quite complex, and we wanted 25 to give them a sense of how we do the regular 54 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Sanitation Code and some of the other violations. 3 When an ALJ has finally been through 4 that entire process, they are then sent out to a 5 particular office where they signed up to work and 6 their cases are reviewed very closely by the 7 managing agent to make certain that they understand 8 and have a grasp of the law. 9 And if you want, progressively what 10 happens is, the ALJs start with the sanitation, the 11 vending code violations. As they become more 12 experienced ALJs and express an interest, they are 13 then brought into more complex violations, such as 14 Department of Transportation, the Street Code 15 violations, the Fire Code violations and the 16 Department of Building violations. 17 COUNCIL MEMBER DICKENS: So, I just 18 want to be clear, so the Hearing Officers that you 19 hire are not necessarily attorneys, and most times 20 they're not; is that correct? 21 MR. MORAN: No, I'm sorry, I should 22 have mentioned that. They are attorneys with three 23 years' experience admitted to the Bar. 24 COUNCIL MEMBER DICKENS: All right. 25 And, so, they get a two-day training 55 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 and then on a third day there is a mentoring ALJ 3 that sits with them, and then on the fourth or fifth 4 day, the mentoring ALJ or a senior ALJ will be in an 5 adjoining room. 6 MR. MORAN: Those days may not be 7 concurrent. This process may go on for a series of 8 two or three weeks where the ALJ is being mentored. 9 COUNCIL MEMBER DICKENS: And with this 10 proposed legislation under OATH, how would this be 11 changed? 12 Who would be the hearing officers? 13 Would it be the same ones that you presently have at 14 ECB? 15 MR. MORAN: I would say yes, it is. 16 But we would look to OATH's experience with their 17 training program and to see if there is anything 18 that we could add that they do with their attorneys 19 to make our process better. 20 COUNCIL MEMBER DICKENS: So, then 21 you're anticipating that under the proposed 22 legislation if this went through, then all of the 23 hearing officers with the ECB presently would then 24 be absorbed under oath; is that correct? 25 ADMINISTRATIVE JUSTICE COORDINATOR 56 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 GOLDIN: Just to clarify that, ECB hearing officers 3 will still be working out of their five borough 4 offices, and will still be doing their hearings the 5 same way, but with the training, I think the 6 Environmental Control Board does an excellent job, 7 but I think the Administrative Judicial Institute at 8 OATH can enhance it and improve on it, and make it 9 even a better training program. 10 COUNCIL MEMBER DICKENS: So they will 11 basically be overseen and the same Hearing Officers 12 will remain in place. 13 ADMINISTRATIVE JUSTICE COORDINATOR 14 GOLDIN: Yes. 15 COUNCIL MEMBER DICKENS: I just wanted 16 to be clear. 17 MR. MORAN: Yes, that's true. 18 COUNCIL MEMBER DICKENS: All right, 19 thank you. 20 Thank you. 21 CHAIRPERSON FELDER: Mr. Moran, I 22 don't want to disappoint you. I had asked you a 23 question earlier, and I don't think that I 24 understood. 25 The tracking with the agencies I 57 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 understood what you said, but in terms of tracking 3 the judges themselves, to see, for example, if Judge 4 X has a record of finding all of the respondents 5 guilty, or 99.9 percent, or vice versa, for the 6 judge there, you know, you find that 75 percent of 7 the respondents are found, you know, in favor of the 8 respondents. Do you have any way of tracking that 9 now? 10 MR. MORAN: Yes, we do. 11 CHAIRPERSON FELDER: Am I allowed to 12 see that? You can think that over. I'm just curious. 13 I don't need to know who is who. I'm 14 just curious to see. I finally asked something 15 delicious. 16 MR. MORAN: It's not something we do 17 on a routine basis. 18 CHAIRPERSON FELDER: I'm not a routine 19 guy. 20 MR. MORAN: I know. But it's also not 21 something that we maintain. You know, I don't have 22 it right now. I wouldn't be able to go back to my 23 office and get it. 24 CHAIRPERSON FELDER: No. What I'm 25 saying to you is the following: for example, how 58 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 many permanent judges do you have? You said it 3 earlier. 4 MR. MORAN: Twenty-five. 5 CHAIRPERSON FELDER: Twenty-five. 6 Let's say we started with the 25 judges. I don't 7 want to know their names. I'm not interested. 8 Do you have records that would say 9 that Judge X percentage or column, it says a 10 percentage found in favor of respondent, percentage 11 found in favor, whatever, or what -- do you have 12 something like that? 13 MR. MORAN: We typically identify the 14 issues where there is a problem with an ALJ at the 15 review process. 16 While we have the ability to go into 17 it, and Data Mine (phonetic) for data that says 18 dismissed and found in violation, unless the judge 19 is a problem judge, that is not something we are 20 typically in the position to do or would want to do. 21 We feel that the review process 22 itself is sufficient to address the concerns that 23 you may have or the public may have as to the 24 fairness of a judge. 25 CHAIRPERSON FELDER: So, again, I 59 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 would like to suggest, with technology today this 3 shouldn't be a difficult thing. When they're 4 inputting the results of the hearings, to be able to 5 track specific judges or ALJs. I think if -- I'm not 6 a computer expert, a computer program expert, but I 7 don't think this is a hard thing, to be able to 8 track the records of judges, how their decisions are 9 coming, and that's not -- and I would say it's not 10 merely because I want to be able to find some judge 11 who finds that 95 percent of the respondents are 12 guilty. 13 It may be the other way, as well. And 14 it doesn't prove anything necessarily. But I think 15 it's interesting, and I think in terms of being able 16 to be -- to be able to see what's going on, I think 17 it would be a helpful tool for you to consider. 18 The last thing, I know I said the 19 last thing three times, but I only say the last 20 thing three times. So, the last thing I wanted to 21 say was, you said at some point that someone shows 22 up, or someone on behalf of the agent shows up. I 23 don't understand that. In other words, what's the 24 purpose of that? 25 If there is a sanitation agent, it's 60 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 my favorite topic, I admit, an enforcement agent 3 gave out a ticket for a dirty sidewalk and can't 4 make it at the day of the hearing, who is coming on 5 behalf of the agent? 6 MR. MORAN: Typically at the 7 Department of Sanitation there won't be anyone at 8 the first hearing. 9 CHAIRPERSON FELDER: There will not be 10 anybody. 11 MR. MORAN: There will not be anyone. 12 When I meant a representative, there 13 is two ways of reading that. If I'm a very busy 14 person and I can't appear at hearings, then I will 15 refer to the person who comes to the ECB hearing on 16 my behalf as a representative. 17 CHAIRPERSON FELDER: Right. 18 MR. MORAN: The issuing agency may 19 also wish to appear at a hearing, but the Department 20 of Sanitation that is typically not the case. 21 CHAIRPERSON FELDER: Right. So that 22 means that normally the respondent will come to the 23 hearing, and the only one that will be there will be 24 the judge. Is that true? 25 MR. MORAN: That's correct. 61 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 CHAIRPERSON FELDER: And if that's 3 true, if they want to appeal it, after that point is 4 there any -- I'm trying to remember, after the ALJ 5 rules on this, that's the end of it? 6 MR. MORAN: You could file an appeal 7 and the appeals would be on paper. There is not an 8 in-person appeal process. 9 CHAIRPERSON FELDER: Okay. That was my 10 last question. 11 Council Member Dickens has a 12 question. 13 COUNCIL MEMBER DICKENS: Thank you. I 14 just want to go a little further with asking a 15 question that my chair asked: what is the percentage 16 of cases that when it's finally disposed of, what is 17 the percentage that respondents have found guilty, 18 or not guilty; do you know that? 19 ADMINISTRATIVE JUSTICE COORDINATOR: 20 Respondents prevail in about one-third of the cases. 21 About 32 percent, I think, of the cases are ones in 22 which respondents succeed at the hearing level. 23 COUNCIL MEMBER DICKENS: About 32 24 percent you said? 25 ADMINISTRATIVE JUSTICE COORDINATOR: 62 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Yes. 3 COUNCIL MEMBER DICKENS: Thank you. 4 CHAIRPERSON FELDER: Just for the 5 record, we were joined by Council Member Peter 6 Vallone, Jr., who had to leave. 7 I want to thank the panel and I just 8 want to point out very clearly that we appreciate 9 very much all of the work you're doing. The 10 questioning is proof, that despite the fact there is 11 no one from the press here, besides our favorites, 12 that we continue the dialogue because we are very 13 interested in the work you're doing and look forward 14 to the great improvements that are going to be made, 15 and we thank you very much. 16 I would just appreciate it. I don't 17 think it's going to take long, because we have four 18 people on the panel, if you can remain for probably 19 what would be at most for 15 minutes, probably less, 20 if that's possible. 21 The panel consists of Robert Bookman, 22 E. Charles Hunt, Sally, is it Noamani, and Alexander 23 Truitt. 24 Excuse me for a minute. 25 It is my distinct honor to give the 63 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 most honorable Council Member Inez Dickens the 3 microphone. I was going to make the announcement, 4 but it would mean a lot more to the people who are 5 here coming from such a special person. 6 COUNCIL MEMBER DICKENS: Thank you, 7 Chair Simcha Felder from Brooklyn. 8 I just want to take a moment to, I 9 thank everyone who is here, and I thank everyone 10 that is here, the panel that is here to testify, but 11 I want to take a moment to introduce and ask them to 12 stand, there is a contingency here of business 13 people and community people from the Lower Ninth 14 Ward in New Orleans, who have joined us and they 15 came here to study the 125th Street rezoning model 16 in order to see what would be applicable and help 17 them in the rebuilding of New Orleans. 18 So, I'd like them to please stand. 19 (Applause.) 20 COUNCIL MEMBER DICKENS: And I hope 21 that the City of New York can be of assistance to 22 you, because New Orleans has been devastated and has 23 not yet been rebuilt, and so we wish you well, and 24 if there is anything at all that we can help you 25 with, I have a phenomenal chair here and he is 64 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 willing to help you with anything that needs to be 3 done. 4 CHAIRPERSON FELDER: Whatever you say. 5 COUNCIL MEMBER DICKENS: Thank you. 6 CHAIRPERSON FELDER: Okay, we will 7 start from the right, if that's okay. 8 MR. BOOKMAN: My right or your right. 9 Okay, good afternoon. My name is 10 Robert Bookman. I'm Counsel to two trade 11 associations, small business associations, the New 12 York Nightlife Association, which represents -- 13 CHAIRPERSON FELDER: Can I interrupt 14 you for a minute as well? I'm an equal, I want to be 15 equally rude, if that's the case, to you as I was to 16 them, with your testimony, I would prefer, instead 17 of reading testimony -- 18 MR. BOOKMAN: I don't have any written 19 testimony. 20 CHAIRPERSON FELDER: Yes, but I'm not 21 only talking to you. 22 If you can just make your points, 23 rather than reading the testimony, it's much more 24 helpful to everyone. Thank you. 25 MR. BOOKMAN: Thank you. 65 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 I'm Counsel to two small business 3 trade associations, the New York Nightlife 4 Association, which represents bars, clubs and 5 lounges, and the New York City Newsstand Operators 6 Association, which represents the smallest of the 7 mom and pop businesses, a sidewalk newsstand kiosk. 8 Also, many years ago I was Counsel to 9 the New York City Department of Consumer Affairs. My 10 last job there was director of their adjudication 11 division. That was 22 years ago, and I've been in 12 private practice since then representing small 13 businesses, appearing at ECB, Health Department, 14 Consumer Affairs and OATH, and just about every 15 administrative tribunal there is in the City. So, 16 I've been doing it for about a quarter of a century, 17 and I want to give you some of the perspective 18 concerning that quarter of a century of experience. 19 I want to start off by thanking both 20 the Council and the Administration for finally 21 coming together and agreeing on this bill. I was 22 looking at my file before I came here. I've 23 testified twice already, September 2005, and in May 24 2006 on the former versions of this bill, when there 25 was no agreement. 66 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 So, I'm very pleased that there is. 3 We are in support of this bill. We think it's an 4 excellent step forward, and I, too, am very 5 impressed with the Administration's team, both in 6 their reputations and what I've seen and heard of 7 them thus far, Mike Moran, Roberto Velez and David 8 Goldin, I have the utmost confidence in their 9 integrity, in their ability to go forward with this 10 bill. And I think that's important because a lot of 11 this bill is kind of like let's wait and see and 12 let's come back while this Council is still here, 13 because I think there is plenty of time to put these 14 reforms in place and come back and see how we're 15 doing. 16 And it's important that we do that 17 because as I was listening today carefully and going 18 over my notes from the 2005 hearing, which ECB was 19 testifying that time about Fiscal Year 2004, so we 20 got a three-year change, a number of interesting 21 things I've noted: 22 First is, the total number of 23 summonses have gone up from 600,000 to 700,000. The 24 number adjudicated, contested, has gone down from 25 about 200,000 to 175,000, the percentage of 67 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 respondents winning has gone down from 35 to 40 3 percent then to 32 percent now, but the money 4 collected has gone up from about 60 million to about 5 87 million now. 6 So, just as a generic statement, 7 either New Yorkers are incredibly and permanently 8 law violators, which I don't believe to be the case, 9 or we just have a series of rules and regulations 10 here that it's impossible to be in compliance with. 11 And these fines are becoming a regular part of the 12 cost of doing business. And when you add that to 13 taxes and when you add that to the cost of going and 14 fighting, it becomes overly burdensome. 15 It's particularly instructive, you 16 know, we are concerned of the percentage of between 17 700,000 and 175,000 that's not contested. 18 Now, clearly, a large portion of it 19 not contested because of service issues, but we 20 fear, and in our experience there is a lot of not 21 contested because businesses have just given up. 22 They feel that either the system is 23 not fair in reality, or there is an appearance of 24 unfairness. And all of us that are in government 25 know that sometimes the appearance of unfairness is 68 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 just as important as the actual reality of fairness 3 or unfairness. 4 And we need to frankly increase that 5 percentage of people who feel that as a result of 6 these changes of this bill, that they can go and 7 contest a hearing rather than simply giving up and 8 sending in a check. And that's what we're hoping we 9 will come to as a result of this. 10 The transfer from ECB to OATH is 11 excellent. In my appearances before OATH, I could 12 not have been more impressed, quite frankly. 13 I know we're not going to get an 14 OATH-type level of experience here. On the other 15 hand, it needs to be more simply than a name being 16 changed, you know, on the door. And we're hoping 17 that this team will recognize that. 18 I am confident that they will agree 19 that more needs to be changed than simply changing 20 the name. 21 The language services is an important 22 change. No longer, and it's been for a number of 23 months now, no longer as a New Yorker do I have to 24 be embarrassed and as an attorney sitting in the 25 waiting room of ECB, and having a judge come out and 69 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 say, does anybody here speak so and so language, and 3 if you do, you know, will you volunteer as a 4 translator and your reward is your hearing can be 5 next. I mean, it's simply embarrassing and 6 unprofessional and we're glad to see that those days 7 are over. 8 The new rules for adjournments that 9 are in these bills, while they're a step in the 10 right direction, you hit the nail on the head, we're 11 fearful it doesn't go far enough. 12 All too often the real life 13 experience, when you do take time out from your 14 lives, you do go to contest a hearing, you go 15 through the process, you wait your next, it could be 16 minutes, it could be hours, depending on how many 17 people showed up that day. The inspector is 18 invariably not there. 19 You are then generally faced with the 20 famous question from the judge, if you want to 21 contest this, you're going to have to come back 22 another time, or if you plead guilty today, we could 23 be done with it and you're done with it. 24 These adjournment rules are trying to 25 move in the direction where that's not the question 70 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 that you're asked, but that you do go forward. 3 We hope that it doesn't become form 4 over substance and that the agencies simply don't 5 appoint a full-time representative to sit at ECB and 6 automatically ask for an adjournment every time 7 somebody has the hutspa to actually come and contest 8 a case, and I'm confident that that's not going to 9 be, but we need to keep an eye on that to make sure 10 these adjournment rules are not going to just be 11 form over substance, and it really does change and 12 it really does move these cases along. 13 The discovery request is important, 14 it's essential to due process, and anecdote. 15 Just this week we received a response 16 with discovery request for a Buildings Department 17 violation that's returnable to ECB, and the response 18 we got from Buildings Department is file a FOIL 19 request, which is clearly not the rules. But, you 20 know, I'm hopeful that this will change as well. 21 The appeals being decided in 180 22 days, at the press conference I gave the story of 23 how we had just received an appeal that we filed 24 five years ago. I didn't even, couldn't even find my 25 file. It was in storage. We had to get it out of 71 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 storage to find out what case it was about. I'm 3 happy to say that we won the case after five years, 4 and my client will be getting the refund of the $720 5 fine which he had to pay as a prerequisite to filing 6 that appeal. 7 That reform is not in this piece of 8 legislation, it was in some of the former ones, if 9 they in fact do their appeals in 180 days as I 10 hoped, then it's not going to be a major issue any 11 longer, and we're hoping that's the case. 12 The electronic adjudication is a 13 wonderful idea and we look forward to their report 14 on that as well. 15 I do just want to state a couple of 16 things that are not in this bill that we feel we 17 need to keep an eye on and perhaps as a step two we 18 can come back to that were in earlier versions of 19 the bills, and that is, protection for the 20 Administrative Law Judges who are non-full-time. 21 My notes from the 2005 hearing said 22 they had 15 full-time ALJs then and 150 per diems. 23 It's now three years later, 25 full-times and 200 24 per diems. I agree with you, Mr. Chairman, that's 25 not acceptable. 72 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 The per diems do not have civil 3 service or union protection. Full-times do. 4 I don't want to ascribe any motives 5 to having regular, you know, a full-time permanent 6 staff of part-time per diems, but it is a concern, 7 and it does go towards the appearance of unfairness 8 in the system. 9 Full-time judges have both civil 10 service and general union protection. I think there 11 is a feeling that they're freer to decide based on 12 the justice and the facts before them, and not 13 having to worry about whether they will get another 14 per diem. 15 I also, on behalf of the fellow 16 attorneys in the City of New York constrain to say 17 that my notes from three years ago saying that these 18 per diem judges back then were paid approximately 19 $150 a day, even if that's gone up by a third and 20 they're paying $200 a day, with all due respect, I 21 know there are a lot of these who are people that 22 are dedicated, you know, excellent lawyers, but 23 you're not getting the best and the brightest for 24 200 bucks a day when I venture to say 90 percent of 25 the lawyers in private practice in the City of New 73 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 York are billing in excess of that per hour. 3 So, that's another reason why I think 4 you need full-time people. 5 And last is addressing what's not in 6 this bill that I hope in the next phase we will see, 7 is the issue of addressing who sets the fine 8 structures, whether it's the Council in the laws 9 that you pass, or ECB in the rules that they pass. 10 And one of the reason why fines have 11 gone up in these last three fiscal years is that, as 12 you were well aware, about two years ago, ECB passed 13 a rule which codified a policy which the courts 14 ruled they could not do by policy, which changes the 15 floor. Obviously they couldn't change the ceiling, 16 but changed and raised the floor of the fine 17 structures that you and the Council have set in the 18 dozens of laws that you've passed, setting a range 19 of fines. 20 So, for example, if you passed a 21 Sanitation bill which said on a first violation the 22 penalty could be anywhere from zero to 200 dollars, 23 ECB by rule has said it's now $50 to $200, thereby 24 prohibiting the very reason why most people want to 25 go to a hearing, is guilty with explanation, 74 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 explaining what their situation was, explaining that 3 it was a windy day. They may have been guilty in 4 having the schwutz (phonetic) in front of their 5 house, but the judge is now constrained to find a 6 rule minimum, not what the Council as a legislative 7 body decided what should be the minimum, you know, 8 by statute. 9 This doesn't address that. I know 10 it's a hot issue, but, frankly, it's something that 11 we can't ignore forever, and I hope in the next 12 phase, after OATH agrees to all of this, that they 13 will reach out to the small business community, 14 we'll sit down with them, we'll talk about these 15 other issues. Again, we're thrilled that this is 16 going to become law, we think the Velez Goldin Moran 17 team are the people to get this done, and we thank 18 you for the opportunity today. 19 MR. HUNT: Good afternoon. My name is 20 Chuck Hunt. I am the Executive Vice President of the 21 Greater New York City Chapters of the New York State 22 Restaurant Association. 23 Mr. Bookman has put what I would like 24 to say about this bill in much more eloquent words 25 than perhaps I could. He's an attorney, I'm a saloon 75 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 keeper, but I do want to say that we're very much in 3 favor of this bill. We also have some reservations 4 as to some of the things that you might wish to 5 consider that could improve it. But I won't take a 6 lot of your time, other than to say that I agree 7 with everything that Rob said. 8 Thank you. 9 CHAIRPERSON FELDER: Thank you. 10 MS. NOAMANI: Good afternoon, 11 everyone. My name is Sally Noamani, and I am an 12 intern at the Street Vendor Project, and I'm 13 representing Sean Basinksi, who is Director. 14 I remember you said something about 15 we shouldn't read out. He gave me -- 16 CHAIRPERSON FELDER: You can read it. 17 MS. NOAMANI: I can read it? Thanks. 18 All right. Good afternoon. My name is 19 Sean Basinski, and I'm a Director of the Street 20 Vendor Project at the Urban Justice Center. 21 We are a membership-based 22 organization that provides legal representation and 23 acts as a voice of advocacy for the 10,000 people 24 who sell food and merchandise on the streets and 25 sidewalks of New York City. 76 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 Thank you for inviting us here today 3 to testify about this important bill. 4 Nearly four years ago, our 5 organization brought a class action lawsuit against 6 the ECB after a quadrupled fine against street 7 vendors, with no public notice whatsoever. 8 That lawsuit was successful and it 9 launched an investigation into the workings of the 10 ECB, that we are grateful that City has carried 11 forward into with Intro. 777. 12 The vast majority of street vendors 13 in our City are immigrants. Many of whom struggle 14 with the English language. You can imagine what 15 quality of justice there is when a person who speaks 16 little or no English tries to explain his case to a 17 judge who speaks only English. There is no justice 18 when that happens. 19 We know of many vendors who have been 20 fined thousands of dollars because with no 21 translators provided, they were not able to give 22 their side of the story. 23 This should not happen in a City 24 where we respect the diversity of all cultures and 25 care about due process, and this should not happen 77 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 at an agency that brings in over $60 million of 3 fines every year from vendors and other small 4 businesses who need these services. 5 We are disappointed that Intro. 777 6 does not give judges at ECB the discretion to 7 determine what penalties are appropriate within the 8 regions City Council has set forth. 9 Prior drafts of the bill did that, 10 but we are very pleased that this bill will require 11 the ECB to provide language access and also it will 12 greatly improve the quality of justice that is being 13 given out to New York's smaller businesses. 14 We look forward to working with City 15 Council and the Administration to implement this 16 important step forward. 17 Thank you. 18 MS. TRUITT: Good afternoon. My name 19 is Alex Truitt, paralegal at the law firm of John E. 20 Osborn, P.C. We represent many real estate 21 developers, hotels, school districts, one of the 22 major scaffolding companies in the City. And we have 23 day-to-day involvement with the Environmental 24 Control Board. 25 We believe that a lot of the changes 78 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 proposed in the legislation are going to be 3 effective and will improve the quality of the 4 hearings. I think there are some other practical 5 issues that have been touched on earlier that we 6 would like to elaborate a little bit more on. I know 7 the Administration talked about it, including 8 electronic case management, on-line adjudication of 9 payments, more efficient administration of case 10 comments to these hearings and appeals, electronic 11 case scheduling. We believe all of these changes are 12 going to be very effective and helpful. 13 But before we get to our practical 14 reforms, we strongly recommend the City of New York 15 allocate sufficient financial resources to implement 16 the important reforms included in the legislation. 17 If an adequate budget is not 18 committed, the effort to implement the reform 19 suggested in the legislation will be stymied. 20 Effective, efficient, fair and 21 well-reasoned adjudication of violations before the 22 ECB lends to greater legitimacy of enforcement 23 efforts and brings about better compliance. 24 In the case of the devastating 25 construction accidents of 2008, we believe that the 79 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 fair, consistent, and even-handed enforcement of the 3 laws and regulations at the ECB which cover 4 construction and development can go a long way 5 toward creating a consistent understanding of the 6 law and a greater degree of voluntary compliance in 7 construction safety. 8 Some of the practical reforms, again, 9 some of these were touched on, but we'd like to talk 10 about them again. 11 The ECB's record keeping. In many 12 instances we've had experiences where the ECB has 13 lost or misfiled records. This causes financial 14 damage, and significant administrative inconvenience 15 to the respondents. 16 In many cases, respondents have been 17 listed in default even after a fine has been paid in 18 full or dismissed. 19 As a result of these errors, the New 20 York City Department of Finance has issued judgments 21 against respondents, and that becomes a major issue 22 for some of our clients. 23 More ramifications can be to delay a 24 project close-out, deny issuance of further permits 25 to a property or company, or to deny the award of 80 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 future public sector contracts. 3 The next item we'd like to discuss, 4 there are times we believe the ECB does not 5 adequately assure that the respondent receives an 6 actual copy of the violation. Many of the times some 7 of our clients don't even know they have violations. 8 We believe that the electronic ticket 9 management system is going to be very effective in 10 addressing this issue, and it's going to be a very 11 helpful thing. 12 Number three, the selection process 13 for selection and training of ALJs, as was discussed 14 in the length before, I think is very important to 15 discuss and further implement changes to, just to 16 make the quality of the judges more consistent. 17 Number four, the adjudication process 18 is very lengthy at times. Again, this has been 19 talked about before, but we have had times where 20 hearings have been adjourned out six months, a year, 21 and this can cause a big problem for clients. 22 And lastly, this goes along with the 23 point I just discussed. Appeals, I know you 24 mentioned before, there was talk about four years, I 25 think we're running five years, I think we're 81 1 GOVERNMENTAL OPERATIONS AND SMALL BUSINESS 2 running on five years now, too, with an appeal, and 3 we still have not got a decision. 4 That's an issue and I think it's one 5 of the more important things to get results. 6 Thank you for your time. 7 CHAIRPERSON FELDER: Thank you very 8 much. The hearing is hereby closed. 9 (Hearing concluded at 2:45 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 82 1 2 CERTIFICATION 3 4 5 STATE OF NEW YORK ) 6 COUNTY OF NEW YORK ) 7 8 9 I, LENORE NAGLE, do hereby certify 10 that the foregoing is a true and accurate transcript 11 of the within proceeding. 12 I further certify that I am not 13 related to any of the parties to this action by 14 blood or marriage, and that I am in no way 15 interested in the outcome of this matter. 16 IN WITNESS WHEREOF, I have hereunto 17 set my hand this 19th day of June 2008. 18 19 20 21 22 23 24 --------------------- 25 LENORE NAGLE 83 1 2 C E R T I F I C A T I O N 3 4 5 6 7 8 9 I, LENORE NAGLE, do hereby certify the 10 aforesaid to be a true and accurate copy of the 11 transcription of the audio tapes of this hearing. 12 13 14 15 16 17 18 19 20 21 22 ----------------------- LENORE NAGLE 23 24 25