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(a) No Respondent, attorney or registered representative may appear in person on fifteen (15) or more summonses unless:
(1) No later than noon five (5) business days before the scheduled hearing date, the Tribunal receives from the Respondent, attorney, or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal;
(2) The Respondent, attorney, or registered representative submits only one list of scheduled summonses per hearing date and submits that list electronically, pursuant to the Tribunal's direction, to a recipient designated by the Tribunal, regardless of the county in which the summonses were scheduled to be heard;
(3) Notices of Appearance are submitted in advance of the scheduled hearing, as directed by the Tribunal, to the Tribunal office in the borough where summonses are scheduled to be heard;
(4) The attorney or representative is able, during the hearing, to e-mail to all parties and the Tribunal the evidence the Respondent, attorney, or representative wishes to submit; and
(5) The attorney or registered representative submits an authorization to appear form signed by the Respondent, authorizing the attorney or registered representative to appear at OATH on the Respondent's behalf.
(b) To be considered timely, the Respondent, the Respondent's attorney or representative must:
(1) Appear at the earliest scheduled hearing time indicated on each summons to be heard, or, if applicable, at the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard, and
(2) Be available and ready to proceed within three (3) hours of the scheduled hearing time indicated on each summons to be heard, or if applicable, within three (3) hours of the scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard.
(c) The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with 48 RCNY § 6-20.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 12/5/2018, eff. 1/4/2019; amended City Record 10/13/2021, eff. 10/13/2021; amended City Record 8/11/2022, eff. 9/10/2022)
(a) No attorney or registered representative may appear by telephone, videoconference, or other similar remote means unless:
(1) No later than noon three (3) business days before the scheduled hearing date, the Tribunal receives from the attorney or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal;
(2) The attorney or registered representative submits only one list per hearing date and submits that list electronically, pursuant to the Tribunal's direction, to a recipient designated by the Tribunal, regardless of the county in which the summonses were scheduled;
(3) The attorney or registered representative makes no changes or additions to the list, unless it is to withdraw representation on a matter;
(4) The attorney or registered representative calls in for the first scheduled hearing no later than the earliest scheduled hearing time on each summons to be heard or, if applicable, no later than the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard; and
(5) The attorney or registered representative submits an authorization to appear form signed by the Respondent, authorizing the attorney or registered representative to appear at OATH on the Respondent's behalf.
(b) No one registered representative or attorney may appear by remote means on a single hearing date for more than twenty-five (25) summonses, unless an exception is granted by the Tribunal prior to the hearing date.
(c) Where a law firm, representative firm, or in-house legal department has more than twenty-five (25) cases scheduled on a hearing date, it must assign an additional registered representative or attorney for each group of up to twenty-five (25) summonses to be heard on that date, unless an exception is granted by the Tribunal prior to the hearing date.
(d) The law firm, representative firm, or in-house legal department must provide the names of the additional registered representatives or attorneys who will appear on each additional group of summonses on that date. Once a registered representative or attorney is assigned to appear on a group of summonses, a different registered representative or attorney may not appear as a substitute, unless an exception is granted by the Tribunal prior to the start of the hearing.
(e) To be considered timely, the Respondent's attorney or representative must:
(1) Appear at the earliest scheduled hearing time on each summons to be heard or, where applicable, at the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons, and
(2) Be available and ready to proceed within three (3) hours of the scheduled hearing time on each summons to be heard or, where applicable, within three (3) hours of the scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard.
The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with 48 RCNY § 6-20.
(Added City Record 10/13/2021, eff. 10/13/2021; amended City Record 8/11/2022, eff. 9/10/2022)
(a) Prohibited Conduct. Individuals appearing before the Tribunal, including parties, witnesses, Representatives, and attorneys, must not engage in misconduct. Misconduct includes but is not limited to:
(1) Abusive, disorderly, or delaying behavior, a breach of the peace, or any other disturbance that directly or indirectly tends to disrupt, obstruct, or interrupt the proceedings or operations of the Tribunal;
(2) Disruptive conduct or communication that a reasonable person would believe to be intimidating or that shows contempt or disrespect for the proceedings or operations of the Tribunal;
(3) Disregarding the authority of a Hearing Officer, Tribunal employee, or contractor. This may include refusing to comply with directions or behaving in a disorderly, delaying, or obstructionist manner;
(4) Leaving a hearing in progress without the permission of the Hearing Officer;
(5) Attempting to influence or offer to influence any Hearing Officer, Tribunal employee, or contractor by the use of threats, accusations, duress, coercion, promise of advantage, or giving or offering any gift, favor, or thing of value;
(6) Attempting to influence a decision by initiating communication with a Hearing Officer before or after a hearing;
(7) Entering any non-public area, unless accompanied or authorized by a Tribunal employee or contractor. Upon the conclusion of a hearing or upon direction by a Tribunal employee or contractor, the parties, witnesses, Representatives, and attorneys must promptly exit non-public areas;
(8) Requesting any Tribunal employee or contractor to perform tasks that are illegal;
(9) Operating without express authorization any Tribunal computer terminal or other equipment at any time, unless the equipment has been designated for use by the public;
(10) Making a statement, submitting a document, or presenting testimony or other evidence to the Tribunal known to be false or that a reasonable person would know to be false, fraudulent, or misleading, including the submission of a false authorization form;
(11) Inducing or encouraging anyone to make a false statement to the Tribunal;
(12) Soliciting a party or causing the solicitation of a party by another person on Tribunal premises. The exchange of money in any area of the Tribunal will create a rebuttable presumption of solicitation;
(13) Falsely claiming to be an attorney or government employee;
(14) Making or causing to be made an electronic, audio, audiovisual, or other verbatim or photographic reproduction of any proceeding, regardless of whether the proceeding is conducted in person or by remote methods, except upon a request to the Hearing Officer, who may grant or deny the request in full, in part, or upon such conditions as the Hearing Officer deems necessary to preserve the decorum of the proceedings and to protect the interests of the parties, witnesses, and any other concerned persons;
(15) Engaging in any conduct or course of conduct that demonstrates a lack of honesty and integrity in the representation of parties. This includes, but is not limited to, making false or misleading statements, misappropriating fees, and providing misinformation concerning the payment of penalties and fines; and
(16) Threatening to disclose information related to another person's actual or perceived immigration status for the purpose of intimidating or harming the other person in order to affect the outcome of the proceeding.
(b) General Discipline for Misconduct.
(1) Failure to abide by the rules of conduct contained in this section and any other rules of the Tribunal constitutes misconduct. OATH may, for good cause, suspend or bar from attending a proceeding or appearing before the Tribunal any attorney, Representative, member of the public, or witness, other than material fact witness, who fails to abide by these rules. OATH may make public a list of individuals who have been suspended or barred from appearing at the Tribunal.
(2) OATH will provide the individual charged with misconduct with a written notice of the charges setting forth the alleged misconduct and specifying the date by which the individual must respond in writing.
(3) OATH will review the notice of charges, the written response, and all evidence presented, and render a final written determination, based on the preponderance of evidence presented.
(c) Discipline for Behavior Warranting Summary Suspension. Notwithstanding the provisions of subdivision (b) of this section, OATH may summarily suspend or bar a Representative or attorney upon a determination that the Representative or attorney has engaged in behavior before the Tribunal of such a severity that OATH determines that a suspension or bar must be implemented on a summary basis to maintain the integrity, safety, or operations of the Tribunal. The summary suspension or bar is effective on the date set forth in the notice of charges.
(d) Procedures for Summary Suspension.
(1) Upon imposing summary suspension, OATH will provide the individual charged with a written notice of the charges setting forth the conduct allegedly warranting summary suspension, as well as any other allegations of misconduct. Such notice shall be made in a manner reasonably calculated to achieve actual notice to such individual. The notice of charges will contain a warning that a finding of misconduct might result in a bar.
(2) The Respondent may request an in-person trial within fifteen (15) days of service of the notice of charges. Failure to make a timely request will be deemed a waiver of an in-person trial.
(3) If the Respondent requests an in-person trial, OATH will schedule a trial in OATH's Trials Division to be held within fifteen (15) days of receipt of the request. The trial will be conducted pursuant to 48 RCNY Chapter 1, and the notice of charges will constitute the petition referenced in 48 RCNY §§ 1-22 and 1-23.
(4) Notwithstanding 48 RCNY § 1-24, a Respondent must file a written answer within fifteen (15) days of service of the notice of charges.
(5) The administrative law judge presiding over the trial will determine (i) whether the Representative or attorney engaged in misconduct; (ii) whether the summary suspension should be continued; and (iii) any applicable penalty.
(6) A final determination shall be issued within thirty (30) days of the end of the in-person trial. If a determination is not made during this timeframe, any summary suspension must be lifted.
(7) If a Respondent does not request an in-person trial on the summary suspension within the time specified in paragraph (2) of this subdivision, the Respondent shall be deemed to have waived the right to an in-person trial before an administrative law judge, and the matter shall proceed pursuant to the rules for General Discipline of Misconduct under subdivision (b) of this section. Where a Respondent waives the right to an in-person trial, the summary suspension will continue until a final determination is made by OATH.
(e) Judicial Review. A decision pursuant to subdivision (b), (c) or (d) of this section constitutes a final determination. Judicial review of the determination may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.
(f) Prohibition against Ex Parte Communication.
(1) Except for ministerial matters, and except on consent or in an emergency, communications with a Hearing Officer concerning a case must occur only with all parties present, either in person or by remote means. If a Hearing Officer receives an ex parte communication concerning the merits of a case to which the Hearing Officer is assigned, then the Hearing Officer must promptly disclose the communication by placing it on the record, in detail, including all written and oral communications and identifying all individuals with whom the Hearing Officer has communicated. A party desiring to rebut the ex parte communication will be allowed to do so upon request.
(2) Communications between a Hearing Officer or other relevant OATH employee and a party that are necessary in order to place a hearing or other meeting on a calendar shall be considered ministerial communications.
(g) This section in no way limits the powers of a Hearing Officer as set out in 48 RCNY § 6-13.
(Amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 4/23/2021, eff. 5/23/2021; amended City Record 8/11/2022, eff. 9/10/2022)
Notwithstanding any other provision of these rules, a party may, within three (3) years after a decision pursuant to a hearing has become final, move to vacate the decision on the grounds that the person who appeared on the party's behalf at the hearing was not authorized to do so. Upon a determination that the person who appeared was not authorized to represent the party, the Tribunal may vacate the decision and schedule a new hearing. In exceptional circumstances and in order to avoid injustice, the Tribunal will have the discretion to grant a motion to vacate a decision after the three (3) year period has lapsed.
(Added City Record 7/8/2016, eff. 8/7/2016)
(a) A Respondent may present a defense based on sovereign or diplomatic immunity:
(1) in a written submission received no later than seven (7) business days before the hearing date stated on the summons, in which the Respondent may admit or deny the violation charged and the Tribunal will assign the matter to a Hearing Officer; or
(2) at a hearing orally or in writing, but only if an attorney or authorized representative of the Petitioner is present at the hearing or if the Respondent at that time consents to an adjournment of the hearing; or
(3) in a response submitted in any case in which adjudication by remote method is allowed pursuant to 48 RCNY § 6-10.
(b) Upon presentation of a defense based on sovereign or diplomatic immunity, the Hearing Officer must issue an order:
(1) adjourning the hearing for no less than thirty (30) and no more than sixty (60) days;
(2) setting forth in detail the violations alleged in the summons; and
(3) giving notice to the City entity charged with serving as the official liaison with foreign governments ("liaison") that the Respondent has presented a defense based on sovereign or diplomatic immunity, in which event the Tribunal will promptly serve such order to such liaison.
(c) After an adjournment is granted under subdivision (b), either party may request to extend the time period of the adjournment. The Hearing Officer must grant such request if it is accompanied by a written submission from the liaison indicating more time is necessary for the parties to resolve the matter.
(d) (1) At a hearing held following an adjournment granted pursuant to subdivision (b), the Hearing Officer must issue a determination whether or not the Respondent is entitled to sovereign or diplomatic immunity.
(2) If the Hearing Officer determines that the Respondent is entitled to sovereign or diplomatic immunity, he or she must dismiss the summons without a determination of the Respondent's liability.
(3) If the Hearing Officer rejects the defense of sovereign or diplomatic immunity, a hearing on the violation must be conducted pursuant to the rules governing hearings in this Chapter.
(Added City Record 7/8/2016, eff. 8/7/2016)
A written application to file a post-hearing agreement must be made jointly and with the consent of all the parties to a matter. Such applications must be made to the designated Deputy Commissioner of OATH, or his or her designee as approved by the Chief Administrative Law Judge. The post-hearing agreement will not amend the Hearing Officer's final written decision and when filed, will become part of the record.
(Added City Record 7/8/2016, eff. 8/7/2016)
Appendix A: Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York
Preamble
Terms used in these Rules are defined as follows:
(A) A "candidate" is a person seeking selection for or retention in public office by any public election, including primary and general elections and including partisan and nonpartisan elections. A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy or authorizes solicitation or acceptance of contributions.
(B) A "City administrative law judge" is an administrative law judge, hearing examiner, hearing officer or any other person who conducts or participates in the decision of adjudicative proceedings within a City tribunal. The term "City administrative law judge" does not include members of boards or commissions. The term "City administrative law judge" also does not include the head of an agency, unless the agency is a City tribunal.
(C) A "City tribunal" is any City agency or any unit within a City agency that is authorized or charged by law with responsibility for conducting adjudicative proceedings. "City tribunals" to which these Rules are applicable include the tribunals constituting or within the Department of Consumer Affairs, the Department of Finance, the Department of Health and Mental Hygiene, the Environmental Control Board, the Office of Administrative Trials and Hearings, the Police Department, the Tax Appeals Tribunal, the Taxi and Limousine Commission and any similar agencies or units.
(D) "Closely related" means that the relationship between one person and another is that of parent and child; siblings; grandparent and grandchild; great-grandparent and great-grandchild; first cousins; or aunt/uncle and niece/nephew.
(E) A "domestic partner" is a member of a domestic partnership registered pursuant to Administrative Code § 3-240 or in accordance with Executive Order 123 of 1989 or Executive Order 48 of 1993 or a member of a marriage that is not recognized by the State of New York or of any domestic partnership or civil union entered into in another jurisdiction.
(F) "Economic interest" means ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, provided that:
(1) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities or in the manager of such fund unless the City administrative law judge participates in the management of the fund or a proceeding pending or impending before the City administrative law judge could substantially affect the value of the interest;
(2) service as an officer, director, advisor or other active participant in an educational, religious, charitable, cultural, fraternal or civic organization, or service by a spouse, domestic partner or child as an officer, director, advisor or other active participant in any such organization does not create an economic interest in securities held by that organization;
(3) a deposit in a financial institution, the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization, unless a proceeding pending or impending before the City administrative law judge could substantially affect the value of the interest;
(4) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the City administrative law judge could substantially affect the value of the securities;
(5) a "de minimis" interest is one so insignificant that it could not raise reasonable questions as to a City administrative law judge's impartiality.
(G) An "ex parte communication" is a communication that concerns a pending or impending proceeding before a City administrative law judge and occurs between the City administrative law judge and a party, or a representative of a party, to the proceeding without notice to and outside the presence of one or more other parties to the proceeding.
(H) "Fiduciary" includes such relationships as executor, administrator, trustee and guardian.
(I) "Impartial" means without bias or prejudice in favor of, or against, particular parties or classes of parties, and with an open mind in considering issues that may come before the City administrative law judge.
(J) An "impending proceeding" is one that has not yet been commenced but is reasonably foreseeable and not merely hypothetical.
(K) "Integrity" denotes probity, fairness, honesty, uprightness and soundness of character; it also denotes a firm adherence to these Rules and their standard of values.
(L) To "know" is to have actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
(M) A "member of the City administrative law judge's family" is a spouse, domestic partner, child, grandchild, parent, grandparent, sibling or any other person with whom the City administrative law judge maintains a comparable relationship.
(N) "Nonpublic information" is confidential information of which a City administrative law judge becomes aware as a result of his or her judicial duties and which is not otherwise available to the public.
(O) A "pending proceeding" is one that has begun but not yet reached its final disposition.
(P) A "political organization" is a political party, political club or other group, the principal purpose of which is to further the election or appointment of candidates to political office.
(Q) "Primarily employed by the City" means employed on a full-time basis or the equivalent or regularly scheduled to work the equivalent of 20 hours per week at one or more City tribunals.
(R) "Require." Where these Rules prescribe that a City administrative law judge "require" certain conduct of others, the term "require" means that a City administrative law judge is to exercise reasonable direction and control over the conduct of those persons subject to his or her direction and control.
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