From The New York Times - OP ED - 2/12/06

February 12, 2006
Op-Ed Contributor
The Price of Justice

By DAN ACKMAN

OVER the past several decades, the scope and clout of the city's administrative law courts have swelled to the point where there are now at least 500 administrative law judges scattered among a dozen agencies.

While the judges hear very different kinds of cases, many of them face a conflict of interest: they are supposed to make independent judgments about the agencies that pay them. Last year, a ballot measure to bring order to these courts was approved by city voters. It's a good start, but more needs to be done.

The administrative courts generally operate under the radar for two reasons: they can't send people to prison and most of the individual cases before them, from tax assessment appeals to parking summonses and health code citations, involve relatively modest fines.

But the stakes add up. According to a 2003 report by the Charter Revision Commission, which proposed the ballot measure, the courts levy more than $600 million in fines and fees a year. More important, the administrative courts have the power to suspend and revoke licenses, which means they can close businesses and wreck livelihoods. For workers and businesses licensed by the city — street vendors, taxi drivers, restaurants, grocery stores and dry cleaners among others — the courts wield tremendous power.

As a journalist and lawyer who has written about and litigated against the Taxi and Limousine Commission, I can attest to the power of its administrative judges.

I can also state without reservation that the taxi drivers I have represented have little confidence in the fairness of the commission's court. This is in large measure because its judges are hired by the commission, and can be fired or have their hours reduced at any time. In short, their paychecks depend on the commission.

The Taxi and Limousine Commission is not alone. The judges at the Department of Health and Mental Hygiene, for instance, also work directly for the agency.

Other administrative courts reside within larger agencies. The Environmental Control Board, for example, is part of the Department of Environmental Protection; the Parking Violations Bureau is overseen by the Department of Finance.

Regardless of the agency, the city's administrative judges have an incentive to serve their own interests, and not those of the public, for one glaring reason: they have no job security. They are not civil servants, have no term in office and no contractual rights. With few exceptions, they work on a part-time or per diem basis. When a judge's income depends on the goodwill of the prosecuting agency, it's too much to expect that he or she will hold the balance of justice clear and true.

The ballot measure that passed in November called on the city to impose its first "codes of professional conduct" on administrative judges. It's a good idea. But the measure gave little guidance as to what the code might include. And it said nothing about the way the judges are hired and how they are paid.

Spurred perhaps by the initiative, Mayor Michael Bloomberg has said he intends to appoint an administrative justice coordinator to work with him, the agency heads and the city's chief administrative law judge to review the entire administrative court system. This effort could lead to genuine reform. The chief administrative law judge, as it happens, works for the Office of Administrative Trials and Hearings, a distinct agency. Judges in this court are hired for five-year terms, serve full time and hear cases only from outside their agency.

Because its judges serve for fixed terms and are not part of the city's regulatory apparatus, this court can rightly boast of its status as independent. As the court says on its Web site, the independence "of the decision maker from the prosecuting agency invites a higher level of confidence in the fairness of the adjudicative process."

This is an example that the city's other administrative courts, prompted by the mayor and renewed public concern, would do well to follow.

Dan Ackman is a lawyer.