DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
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In the Matter of
ROBERT G. BUCKLES, JR.
Appellant, DECISION ON MOTION FOR STAY AND ORDER
1 DOS APP 08
-against-
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Respondent.
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Appellant, Robert G. Buckles, Jr., by his attorney Steven Mogel, Esq. of the Shawn Law Offices, seeks a stay of the decision of the Office of Administrative Hearings (2212 DOS 07), which suspended his certification as a general real estate appraiser, commencing January 1, 2008,and terminating one year after the receipt by the Department of State of his license certificate. The ALJ found that Appellant prepared and communicated an appraisal report which contained multiple violations of the Uniform Standards of Professional Appraisal Practice (“USPAP”) and multiple violations of Executive Law §§ 160-d and 160-u and demonstrated negligence and incompetence in so doing. Following the initial period of suspension, Appellant’s certification will be further suspended until he refunds the sum of $1500 plus interest to the City of Middletown New York and Mr. James Stack.
On this motion for a stay, Appellant’s attorney contends that Appellant planned to submit a post-hearing brief promptly following receipt of the hearing transcript but through inadvertence, the availability of the transcript was not made known to Appellant. As a result, Appellant contends the ALJ rendered a final decision without the benefit of Appellant’s closing arguments.
Hearings were held in this matter on October 26, 2006, February 12, 2007 and February 15, 2007 before Administrative Law Judge (ALJ) Scott NeJame, in Albany, New York. Appellant’s counsel, Henri Shawn, Esq. of the Shawn Law Offices, sent a letter to ALJ NeJame dated February 14, 2007, asking about the judge’s preferences regarding closing arguments. In the letter, Mr. Shawn stated:
“My preference would be to receive a copy of the transcript and then submit our closing arguments, in writing, thereby citing the exact portions of the transcript which support our positions and discussing our weaknesses in the same manners.”
At the close of the hearing the next day, ALJ spoke about summations following the availability of the hearing transcript. The following colloquy took place:
ALJ NEJAME: Okay. All right. And you want to submit something in writing, both- -both parties?
MR. SHAWN: Yes, as we discussed earlier, whenever the transcripts are made available to us, I’ll have thirty days within which to submit my closing argument in writing, as I understand it.
ALJ NEJAME: That’s fine.
MR. SHAWN: –and any law that I might think is appropriate.
ALJ NEJAME: All right. That’s fine. All right. And then–
MS. CLARK: How long do I have?
ALJ NEJAME: Complainant, you – you can have thirty days after you receive his brief to submit your response.
MR. SHAWN: No federal rules, right, here?
ALJ NEJAME: No we don’t – you know --
MR. SHAWN: I -- okay.
ALJ NEJAME: – this preference, so we’ll leave it at that right now, and you know, I don’t know how long the record will take to be –
MR. SHAWN: I’d say a month, I suppose.
THE REPORTER: I can’t make any representations on the record about that.
ALJ NEJAME: All right. In that case we’re adjourned at this point.
The hearing is closed with decision reserved, and I’ll wait for the submission of the –the briefs from counsel, and then I’ll make my decision.
(Tr. pp. 130-132).
On November 29, 2007, ALJ issued the decision below. Neither party submitted briefs to the ALJ beforehand. An exchange of letters between Mr. Shawn and the ALJ after the decision was rendered reveals disagreement about the party’s responsibility to obtain the transcripts. (Shawn Dec. 7, 2007; NeJame December 12, 2007; Shawn December 17, 2007; NeJame December 17, 2007). Appellant’s counsel alleges that he never received notice of he availability of the transcripts and therefore did not submit the brief summarizing the testimony.
Appellant seeks a stay permitting him to file beyond the 30 day period in light of his unsuccessful attempts to obtain the hearing transcript, on which he planed to base his appeal. Appellant also seeks an extension of time, following receipt of the transcript, to file his briefs.
ISSUE
The key issue on this motion for a stay is whether Appellant’s counsel could reasonably rely on notification by the court reporter or the ALJ of the availability of the transcript or whether Appellant’s counsel had an independent obligation to contact the reporter to obtain the transcript?
OPINION
After reviewing the transcript and the exchange of letters between the ALJ and Appellant’s counsel, it is readily apparent that the ALJ and Appellant’s counsel hold markedly different understandings of what was to occur with regard to the hearing transcript. (Shawn Dec. 7, 2007; NeJame December 12, 2007; Shawn December 17, 2007; NeJame December 17, 2007). According to the ALJ, OAH’s “well established procedure” is for the non-government party to contact the reporter directly if the party wishes the transcript. Mr. Shawn, on the other hand, expected the reporter to contact him when the transcript was ready or forward it to him. Mr. Shawn said that, soon after the close of the hearing, he had prepared a draft post-hearing brief (a copy of which was attached to the moving papers) and planned to send it to the ALJ within 30 days of receipt of the transcript.
The documentary and testimonial evidence shows that Appellant’s counsel planned to submit briefs following the conclusion of the hearing when the transcripts were made available.
Was Appellant entitled to rely on notification of the availability of the transcript by the ALJ or court reporter or was Appellant independently obligated to contact the reporter to obtain the transcript? In the absence of a direct request, OAH has no obligation to automatically send copies of the transcript to any party.
However, under certain instances, a party may request and OAH must provide a transcript of the proceedings, at a statutorily prescribed cost or rate. State Administrative Procedure Act § 302 provides:
2. The agency shall make a complete record of all adjudicatory proceedings conducted before it. For this purpose, unless otherwise required by statute, the agency may use whatever means it deems appropriate, including but not limited to the use of stenographic transcriptions or electronic recording devices. Upon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decision, determination, opinion or order, the agency shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party as he may request. Except when any statute provides otherwise, the agency is authorized to charge not more than its cost for the preparation and furnishing of such record or transcript or any part thereof, or the rate specified in the contract between the agency and a contractor if prepared by a private contractor. (Emphasis added)
In this case, Appellant’s counsel advised the ALJ both by letter and at the hearing of his interest in obtaining the transcript in order to prepare a post-hearing brief. The ALJ indicated his willingness to await submission of the briefs from counsel following the transcript becoming available to the parties prior to making his decision. Although requested, the ALJ declined to re-open the decision in order to entertain the post-trial submissions.
DETERMINATION
In the interests of obtaining a full record on appeal, Appellant’s requested for a stay of the decision below is granted, subject to the following:
1. Appellant shall submit the post-hearing brief and a written memorandum of appeal to the Secretary of State on or before January 31, 2008. The brief and memorandum may be combined by Appellant.
2. Respondent shall submit its post hearing brief and any memorandum in opposition to the Secretary of State within 30 days of receipt of Appellant’s briefs. The brief and written memorandum may be combined by Respondent.
3. Any cross-appeals and responses thereto may be interposed as permitted pursuant to 19 NYCRR Part 400.
4. The suspension of Appellant’s certification as a general real estate appraiser commencing January 1, 2008 and all other suspensions and fines ordered in the decision below are stayed pending the outcome of the decision on appeal.
So ordered on:
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Daniel E. Shapiro Esq.
First Deputy Secretary of State