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Chapter 4: Pre-hearing Considerations


Introduction

Before the time scheduled for a hearing to take place, the ALJ should verify completion of the steps and procedures necessary to hold the hearing. Failure to check on pre-hearing considerations can add considerable delay to the proceedings, especially if adjournments are necessary before the case is hearing ready.

This chapter discusses various pre-hearing concerns, including disclosure, pre-hearing conferences, practical aspects of preparing for the hearing itself, and the use of technology in preparing for hearings.

Disclosure

Agencies that conduct hearings are required by SAPA §301(3) to have regulations in place relating to such hearings. Agencies may adopt their own rules of disclosure under SAPA §305, which may or may not include the discovery practices contained within Civil Practice Law & Rules. [See Heim v. Regan, 90 AD2d 656 (3rd Dept. 1982)]. Absent application of the CPLR's civil discovery rules, the ALJ or hearing officer is still authorized by SAPA §304 to provide for depositions and subpoenas.

Subpoenas

The issuance of subpoenas by ALJs in administrative proceedings is authorized by SAPA §304(2). Agency regulations may also address the subpoena power of the ALJ. Generally, parties may issue their own subpoenas, and need not rely on the ALJ for issuance. If properly requested, however, the ALJ is required to issue the subpoena on behalf of the party.

Subpoenas may require individuals to attend and give testimony at the agency hearing. These are referred to as subpoenas ad testificandum. In such a case, failure of the person to attend provides the ALJ with good reason to adjourn the hearing to a later date.

A second type of subpoena is the subpoena duces tecum, which requires a party to produce a thing, such as a document or object.

Objections to a subpoena are made by the parties to the ALJ, who must determine the validity of the objection. If the ALJ upholds the objection, he or she is said to quash, or cancel, the subpoena. If a party is dissatisfied with the ALJ's determination of a motion to quash, the party may proceed against the agency in an Article 78 proceeding. As agencies in New York State are without the power to hold people in contempt, enforcement of subpoenas not complied with voluntarily is left to the courts.

Subpoenas may be served either in person or by registered mail, so long as the method of service complies with appropriate agency rules.

File Inspection

Inspection of agency files by parties is generally authorized in agency proceedings, even in cases wherein the agency's interests are in direct conflict with the inspecting parties' interests. A complete discussion of the public nature of agency files, as well as the exceptions to this rule, is contained in Chapter 8, infra, which addresses the Freedom of Information Law.

Pre-hearing Conferences

The pre-hearing conference can be of tremendous value in the administrative process, and is specifically authorized by SAPA §304(5). Regularly required by state and federal court judges, the conference presents a number of opportunities for the administrative law judge to assert his or her authority over the process, the matter at hand, and the parties. The pre-hearing conference may help to narrow the issues or identify specific facts that are in dispute and thus expedite the hearing process.

Pre-hearing conferences may also present an administrative law judge with the opportunity to assist the parties in resolving the matter, eliminating the need for a formal hearing. While this is not always possible, especially where statute requires that facts be found through the hearing process and party agreement is not especially relevant, in many cases using the pre-hearing conference to help the parties reach agreement can lessen the ALJ's hearing load.

The ALJ should check agency hearing regulations to determine whether any relevant restrictions or requirements are placed on contact with the parties outside of the formal hearing. Keep in mind that pre-hearing conferences in this context should involve all of the parties together, and should not be an excuse for otherwise prohibited ex parte contact between the hearing officer and one or more of the parties.

Preparation for the Hearing

Physical Aspects:

• Time and Place of Hearing

The time and place for the hearing are likely to be determined by agency practice and procedures. Where the ALJ does play a role in determining the time and place of the hearing, holding the hearing on notice to all parties and in a location accessible to all is critical.

If scheduled to take place at a location that inhibits the administration of the hearing, by way of noise (e.g., from traffic or other outside sources, or from air conditioners, heating systems, etc.), temperature, poor lighting conditions, or other distractions, the ALJ may wish to adjourn the hearing to a time and place that will better facilitate the determination of the matter at hand.

• Physical Accessibility

The Americans with Disabilities Act requires that people with disabilities be accommodated by public entities. This requirement applies to the administrative hearing process as well as other public processes. Should a party require the assistance of a sign language interpreter, or other assistance related to a disability, the ALJ should be aware of relevant agency personnel who can assist the parties in such matters.

Adjournments

Adjournments may be granted by an Administrative Law Judge for a number of reasons and under a variety of circumstances. For example, adjournments may be granted to allow for the attendance of witnesses or parties, especially where a scheduling conflict beyond the control of the requesting party has led to the request.

ALJs may also generally grant adjournments on their own motion to facilitate settlement of a matter or to allow for fuller investigation of the issues by the parties. Adjournments should not be granted, however, when it appears to the ALJ that the party requesting the adjournment is trying simply to stall or delay the hearing process.

Technology

Developments in technology over time are changing the way that administrative law is practiced in New York. It is a significant enough issue in the way government does its business today that New York State has an Office for Technology to address the statewide issues that are arising in relation to it. One of the Office's functions is to develop and promulgate policies on use of E-mail, the Internet, and computers. ALJs interested in including new technologies in their hearing practices should review the various policies and be aware of the effects of their choices on their agencies, the parties who appear before them, and on the administrative process as a whole.

Telephones and Conference Calls

Telephone conference calls may be utilized by the ALJ to arrange meetings with the parties, or even in lieu of in-person meetings. The ability to converse with all of those involved is central to the usefulness of conference calls. The ALJ should make certain that such contact is not prohibited by agency regulations, and should also make certain that all parties are included on the calls so as to avoid violating ex parte contact rules. If the parties cannot decide amongst themselves who should bear the financial burden of the conference call, the ALJ may require in- person attendance in place of the phone conference. When faced with the need to make a personal appearance, as opposed to appearing by phone, the parties may be more willing to shoulder or share the cost of the phone conference.

Video-conferencing

Video-conferencing technology is becoming increasingly popular. As with phone conference technology, video-conferencing allows parties, counsel, and the ALJ to save travel time to and from a conference location or the ALJ's office. It surpasses telephone conferencing, however, in that those involved can see each other and gauge body language, facial expressions, and other signs used to determine credibility and make personal judgments.

Where such conferencing is available, whether through use of dedicated video-conferencing facilities or by desktop computer, care should again be exercised to make certain that parties and their representatives are not excluded. If everyone involved in a particular proceeding cannot participate due to physical or technological constraints, it is important to remain true to the process and hold conferences or discussions in person, allowing all necessary parties to attend.

Fax Machines

Use of the fax machine to communicate prior to the hearing allows for quicker, more efficient communication than can occur by mail, especially in time-pressured proceedings. Fax machines should not, however, be used absent agreement of the parties, and fax notices should be followed with a copy by regular or registered mail.

E-mail

Electronic mail, or "E-mail," is one of the most recent technological innovations in communication. When functioning properly, it allows many times for almost instantaneous communication among and between the parties. Absent agency rules to the contrary, the parties may wish to correspond with each other and the assigned ALJ using E-mail. The use of E-mail should, as with fax communications, be agreed upon by the parties.

E-mail communication is more analogous to written letters than to a phone conversation. As E-mail is saved as a computer file both by the sending computer and the receiving computer(s), it is easily disseminated to others. Agreement on the forwarding or other distribution of E-mail should follow protocols for distribution of written materials, and flippant or off-the-cuff remarks should be avoided at all costs to preclude inappropriate appearances in the administrative process.

A final note on privacy: absent the use of encryption technology to conceal the contents of a message, E-mail can be intercepted illicitly and either copied or redistributed. While the CPLR provides that the attorney-client privilege is not lost solely because information is sent via electronic methods of communication, other statutes relating to privacy may not follow suit. It is thus important to be cautious in determining what information to include in an E-mail message. When in doubt, it is best to send the information by regular mail, possibly with an electronic message stating that it is being sent.

 
 
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