4: Pre-hearing Considerations
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.
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.
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.
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.
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.
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.
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 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.
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.
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 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.
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.
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
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