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Testimony

Testimony regarding a proposal to amend rules of practice for the conduct of remote proceedings

Testimony

Testimony of UFT Hearing Officers (Per Session) Chapter Leader Tony Feldmesser before the New York City Office of Administrative Trials and Hearings

My name is Tony Feldmesser and I serve as the chapter leader of the United Federation of Teachers (UFT) Hearing Officers (Per Session) Chapter. On behalf of the hearing officers represented by our union, I would like to thank the NYC Office of Administrative Trials and Hearings (OATH) for holding today’s public hearing on its proposal to amend its rules of practice in title 48 of the Rules of the City of New York to clarify, refine, and establish rules for the conduct of remote proceedings.

As you well know, since March 2020 most summonses filed in the OATH Hearings Division have been adjudicated by remote means. It has been a learning experience for all parties involved; and while there are benefits to remote hearings, I believe it is prudent that we also consider the challenges posed by remote hearings before we set them as the default option in adjudication proceedings.

As attorneys, we have an ethical duty to make sure those appearing before us have their full due process rights respected. While I am not against having a remote option available to respondents, I think our agency needs to first study and analyze the impact remote hearings have had on those due process rights before we institute a rule change and materially affect a respondent's right to a live hearing as the pandemic abates.

I would like to first point out that most remote hearings are conducted on the phone and as a result are absent of critical visual components. For example, on the phone I am unable to use or see physical gestures and facial expressions which, during a live hearing, can be a tool both to control the flow of information and assess each party's credibility. In a remote hearing over the phone, the different parties often speak on top of one another, and there are challenges with asking for pauses to get clarification or do snap research.

In addition, we have hearing officers who share workspaces with family members in their home, making it difficult for them to conduct remote hearings. Due process concerns also arise when respondents may not be in physical places where they can focus or adequately hear what is going on. There is no way to see whether there are unidentified people listening in on a remote hearing or perhaps coaching witnesses. There is simply not the level of control that there is in a live hearing.

This leads me to a point that I believe is necessary to mention, namely that hearings must be open to the public and its scrutiny. Courts and tribunals never operate behind closed doors. OATH has not addressed how it plans to open remote hearings to the public as required by the Constitution and federal law. One of the biggest problems with making remote hearings the default option is that people may be denied a live hearing as of right. There are no objective criteria being proposed along with this rule change to ensure that right.

As for respondents that need translation services, I can anecdotally say that I have not presided over as many cases that need translation services since we went remote. I strongly believe we should investigate whether this a general trend and study if, for example, non-English speakers are choosing to pay their summons rather than request a hearing at higher rates due to barriers remote hearings present. I think it’s important that we also research trends among senior residents and other populations that may lack sufficient computer skills.

In addition to issues related to protecting respondent’s rights to due process, I would also like to remind members of this public hearing that in December 2020, the UFT filed an improper practice petition with the Office of Collective Bargaining against OATH. Since the start of the pandemic OATH has made unilateral changes to the working conditions of hearing officers represented by our chapter without notice or bargaining to be able to accommodate for remote hearings. To list a few examples:

  1. At the start of the pandemic only a limited number of hearing officers were called to do remote work. For example, only 33 hearing officers were scheduled out of a roster of around 350 from March 2020 to May 2020.
  2. In April 2020 OATH instituted a remote work platform that a significant number of hearing officers could not utilize due to a lack of proper equipment or training. Those lacking equipment or training were rendered ineligible for work.
  3. Many hearing officers, in an effort to receive work, purchased equipment, or an extension for their current computer, at their own expense in order to access the remote platform. When assigned work, these officers are not reimbursed for the equipment, paper, printers, ink, phone or other expenses incurred as a result of remote work.
  4. For those who remain on the roster and are assigned work, they have seen a sharp increase in workload with back to back hearings being required with no or minimal time for preparation between hearings. At the same time, hearing officers may be assigned to cases involving areas of law that they are less familiar with, and this lack of familiarity is not considered when expecting hearing officers to handle an increased number of summonses.

I will not argue against remote hearings, but I will say we need to take a step back and assess how they are implemented. Working conditions for hearing officers in a remote setting are different, and how we protect people’s right to due process needs to be evaluated. Our office touches every day New Yorkers, whether it’s a homeowner fighting a water summons or a restaurant owner fighting a health violation. Let’s not be hasty in the transition, let’s instead work out a true plan to effectively provide New Yorkers due process and just outcomes using modern comforts.