Statement of United Federation of Teachers Brooklyn Borough Representative Howard Schoor to the NYC Charter Revision Commission Submitted August 23,

My name is Howard Schoor. I am the Brooklyn Borough Representative at the United Federation of Teachers, and for the past four years I have been the point person in the UFT’s efforts to organize and negotiate a first contract for approximately 300 per session hearing officers employed as Administrative Law Judges at the City’s Environmental Control Board, the Department of Health, and the Taxi and Limousine Commission. I am here to speak on the Charter Revision Commission’s proposal for consolidation of the city’s administrative tribunals, which would significantly impact the functioning of these agencies in ways that are deeply troubling and problematic for the following reasons:

1. There is no evidence that consolidation would result in more efficient operations or reduced costs. The Commission proposes to give the Mayor a free hand to reorganize and supposedly “streamline operations” at the existing tribunals. The current proposal would authorize the Mayor to merge the city’s various administrative tribunals under the Office of Administrative Trials and Hearings (OATH) by means of executive order. But since last year, the Environmental Control Board which is the largest of the city’s tribunals, has been functioning under the jurisdiction of OATH. Despite promises from the person responsible that such transfer of authority would enable ALJs to be better trained, treated more professionally, and have access to the latest technology, there has been no demonstrable improvement in these areas. Rather, we have seen the growth of more high-paying managerial positions at ECB, while the wait time at ECB offices has increased and the support staff and roster of hearing officers working each day has been cut.

2. There is no reason to believe that consolidation would foster independence or impartiality within the tribunals. The Commission offers the need to “increase the appearance of impartiality and independence” as the basis for consolidation of the tribunals. We agree that this need exists, but consolidation is not the means to that end.

One of the reasons these per session hearing officers voted to unionize was to obtain due process rights and job protection. Currently, they have no right to a hearing prior to being disciplined or terminated, and they can be disciplined or terminated without cause. As a result, these ALJs, who are treated as at will employees, have no assurance that they will not be penalized for making a decision that is adverse to the City. The public needs hearing officers who have the freedom to decide cases in an atmosphere free from pressure or possibility of retaliation. It makes no difference whether the tribunals are located within the same city agency that issues the ticket, or whether the tribunals are transferred to a supposedly “independent” agency like OATH. As long as the hearing officers themselves remain without protection, the public does not have the guarantee of impartiality it deserves.

3. Consolidation of the tribunals could create the appearance of efficiency while sacrificing talent and expertise. Currently, the separate tribunals are staffed largely by hearing officers who have worked for years at the same tribunal and who have a thorough working knowledge for the legal issues presented at each hearing. Consolidation of the tribunals would open the door for hearing officers to be dispatched based on the convenience (or whim) of a central bureaucracy without consideration for the level of expertise each judge possesses. For example, a hearing officer who has been adjudicating cases at the Taxi and Limousine Commission could be sent to hear building code cases, regardless of that hearing officer’s training, simply because staffing levels dictated such an assignment.

4. There is no basis for granting the Chief ALJ authority to prescribe alternative qualifications for hearing officers. If the goal as stated by the Commission is to increase the appearance of impartiality, then surely this is not the way to achieve it. The Commission’s proposal raises the specter of hearing officers being hired for political patronage, rather than based upon their skills or experience as attorneys. The public should be able to have confidence that when they are required to appear at a hearing, the ALJ conducting the hearing will have been hired because of their talents, and not based on whom he or she knows.

5. The Commission’s proposal to amend subdivision 1 of section 1049 of the charter appears to be in violation of the NY State Taylor Law and/or the NYC Collective Bargaining Law. Section 1 (b) of the Commission’s proposal states that “the chief administrative law judge may prescribe alternative qualifications and terms and conditions of employment for ALJs transferred from another agency”. The Taylor Law and the NYC Collective Bargaining Law specifically provide public employees with “the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment”.

Several previous documents released by the Commission throughout the public hearing process have proposed granting the chief administrative law judge the authority to prescribe “alternative qualifications or terms” or “alternative qualifications”. The current reference to “alternative qualifications and terms and conditions of employment” first appears in the Commission’s draft of the proposed amendments dated August 17, 2010. While we do not believe it is the Commission’s intention to attempt to override collective bargaining laws, as written the Commission’s proposal could be incorrectly construed as an effort to contravene the law with respect to these hearing officers, and deny their collective bargaining rights which were clearly upheld in a 1999 OCB ruling. Numerous legal challenges would result.

Negotiations with the City toward a first contract on behalf of these hearing officers are approaching the three year mark. Currently, the Union has five improper practice charges pending at the Office of Collective Bargaining (OCB), four of which allege that the City has made unilateral changes to various terms and conditions of employment for these employees.

You have already heard our objections to other aspects of the Commission’s proposal for consolidation of the city’s administrative tribunals. For all of the reasons mentioned above, we urge that the proposal, in its entirety, be removed from the list of charter revisions and not included on the ballot in November. However, in the event that the Commission does choose to adopt a proposal for consolidation into its final report, the language in this section should be amended to ensure that there is no confusion that the chief administrative law judge’s authority remains subject to the NYC Collective Bargaining Law.

I thank you for this opportunity to speak, and before you make your final decisions, encourage a further dialogue between you and a committee of our ALJS who can provide unique insight into the issues raised here tonight.