While some city workers rally to continue remote work, judges who rule on fines for littering, building code violations and other offenses are pleading for a return to in-person hearings.
Since the pandemic shut down face-to-face hearings in March 2020, the Office of Administrative Trials and Hearings, or OATH, has held most of its sessions by phone conference. It resumed live meetings only this September, and only upon request.
Now OATH is proposing to keep remote hearings as a standard option — frustrating the hearing officers who must weigh evidence, size up witnesses and ultimately decide who’s right and wrong in a case.
The United Federation of Teachers, which represents OATH’s 300 hearing officers, is pushing back. Union leaders say they can’t do their jobs by phone alone.
“While we see a place for remote hearings going forward, we’re deeply concerned that there’s been no study or investigation done to gauge the impact remote hearings have had on the public, vis a vis due process,” said Tony Feldmesser, who leads the per-session hearing officers’ chapter of the United Federation of Teachers.
OATH hears two kinds of cases: trials involving city workers and businesses accused of misconduct and hearings for a much larger volume of summonses issued for littering, building violations and more. Hearing officers routinely decide whether or not costly fines are due.
One OATH hearing officer who asked to remain unnamed said that remote hearings have been problematic for respondents, enforcement agencies and hearing officers.
“My decision frequently depends on the credibility assessment,” the officer said. “I can no longer see the witness, which is often the most telling thing.”
Before the pandemic, most New Yorkers given civil summonses for allegedly violating local laws pleaded their cases in person. But during the pandemic, nearly all proceedings went remote.
Telephone conferences made up nearly 90% of hearings during the year ending June 30, 2021, up from 39% a year earlier and 18% in the last full year pre-pandemic.
The proposed rule, say OATH officials, will allow the convenience of remote hearings to continue for those who choose them.
“This would enshrine the right of the respondent to appear remotely or in person, for all cases,” said Marisa Senigo, a spokesperson for OATH. “In sum, the rule is simply meant to increase access to justice and convenience for New Yorkers who receive summonses and want to fight those summonses at an OATH hearing.”
But the union is raising alarms that OATH hasn’t first examined whether the public is getting a fair deal. It also sees remote work as an extra burden.
In December, the UFT filed a complaint with the city Office of Collective Bargaining, charging that OATH unilaterally changed officers’ work duties without notice or bargaining, resulting in stricter hours and a heavier workload.
The first of six scheduled hearings on the complaint is slated for Oct. 20.
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OATH held no in-person hearings at all from late March 2020 until Sept. 1, when the office gave respondents the right to request in-person hearings.
The rule changes would allow OATH to continue to offer a choice of phone or in-person hearings. When someone gets a summons, explained Senigo, it instructs them to contact OATH three days before the hearing date in order to schedule either a phone or in-person hearing, whichever they choose.
Senigo said the agency’s Environmental Control Board is expected to vote on the rules on Oct. 5, with the changes taking effect after that.
OATH held a virtual public meeting on the proposed rule changes on Sept. 20.
Feldmesser said several unknowns still need investigating — including whether members of the public are likelier to lose their cases when hearings are remote.
He would also like to see stats showing how often people are taking advantage of interpretation services and OATH’s Help Center remotely compared with their usage pre-pandemic.
“I can tell you anecdotally that I’ve had respondents on a remote hearing who seem less familiar with our process than they would have had they gone into the office for a live hearing,” he said. “But I can’t say that with certainty.”
Another union concern is that a live hearing will not be available on demand.
“There is a conspicuous silence on any assurance that a respondent will be entitled to a live hearing as of right,” Feldmesser said.
Senigo said a person only needs to ask for a live hearing to be granted one.
“There is no criteria that needs to be met to have a request for a hearing in person granted other than advanced notice in order for us to properly schedule these cases while also adhering to social distancing requirements,” she said.
She said all requests — more than 260 since Sept. 1 — have been granted. Those live hearings represent just 3.5% of the 7,538 hearings so far this month.
Senigo said the rate at which someone simply doesn’t show up for their hearing remains the same as it did pre-COVID.
“Before the pandemic, the average default rate on hearings was about 40%, and year to date, the default rate is still approximately the same,” she said.
The reaction to the new rule from people who frequently must attend hearings is mixed.
Frank Marte, who owns bodegas in The Bronx and leads the Bodega and Small Business Group, an association advocating for some 2,000 bodega workers, said many bodega owners aren’t technologically savvy, making remote hearing “very difficult for us.”
It’s “better for us to meet in person,” he said.
He said he understands remote hearings are safer, but doesn’t believe COVID concerns should be used as a blanket excuse to not hold hearings in person like before. Besides, he added, “most of the bodegueros are already vaccinated,” using the Spanish term for bodega worker.
OATH’s Sept. 20 virtual meeting on the proposed rule changes lasted just 15 minutes. Only one member of the public commented on the proposal, saying that virtual hearings save seniors the headache of attending hearings in person after receiving summons for “frivolous issues” such as a $100 sanitation violation.
“Kudos to OATH,” said Theresa Scavo, chair of Brooklyn’s Community Board 15. “I hope this passes. I hope you give everyone a chance to remain virtual.”