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Conlon, Brian F., and BCD Tire Chip Manufacturing, Inc. - Ruling, August 16, 2021

Ruling, August 16, 2021

NEW YORK STATE

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Article 27 of the Environmental
Conservation Law of the State of New York and Part 360 of Title 6 of
the Official Compilation of Codes, Rules, and Regulations of the State
of New York,

by

Brian F. Conlon, and BCD Tire Chip Manufacturing, Inc.,
Respondents.

Rulings on Respondents' Second Motion to Recuse the ALJ and additional requests.

DEC Case No.:CO4-20150520-119 August 16, 2021

Proceedings

With an email dated August 4, 2021, Mr. Conlon moved to recuse Commissioner Seggos and me from making any rulings and determinations with respect to the captioned matter. In addition, Mr. Conlon reiterated requests for a forensic investigation into the authenticity of the November 1, 2010, Order on Consent, as well as a change of venue.

This is the second time that Mr. Conlon has filed motions to recuse. The first was with a cover letter dated September 9, 2016.[1] At that time, Mr. Conlon moved to recuse Commissioner Seggos as well as all administrative law judges in the State of New York. In rulings dated October 19, 2016 (at 2-6), I denied Mr. Conlon's motion with respect to the recusal of the ALJs, in general, and me, in particular. In the Interim Decision and Rulings, June 1, 2018 (at 2-4), the Commissioner considered Mr. Conlon's motion to recuse the Commissioner, as well as an appeal from the September 9, 2016, ruling denying his motion for my recusal as the ALJ assigned to this matter. The Commissioner affirmed the September 9, 2016, ruling to deny Mr. Conlon's motion to recuse the ALJ, and denied Mr. Conlon's motion for the Commissioner's recusal (see Interim Decision and Rulings, June 1, 2018, at 4).

In an email to the parties dated July 20, 2018, I granted Mr. Conlon's request to serve additional discovery demands upon Department staff, and set forth a schedule concerning service of the demands by respondents, receipt of any motion for a protective order from Department staff, and receipt of Mr. Conlon's response to any motion duly filed by Department staff. Subsequently, in a letter dated June 25, 2021, I inquired about the parties' availability to convene a conference to discuss the status of the case. Neither party contacted me during the period from July 20, 2018, to June 25, 2021, about the status of the matter. After responding to my June 25, 2021, correspondence, a status conference was held on July 20, 2021. On that date, I issued a summary of the conference and a scheduling order.

Pursuant to 6 NYCRR 622.6(c)(3), parties have five days to respond to a motion. In an email to the parties dated August 12, 2021, I inquired whether staff would be responding to Mr. Conlon's August 4, 2021, motion. In a series of email dated August 12, 2021 (1:10 p.m., 3:50 p.m., and 4:14 p.m.), Mr. Conlon objected to my inquiry, and argued that my inquiry "STINKS of a bad judge asking for help from staff to keep you on this case." In his August 12, 2021, email at 3:50 p.m., Mr. Conlon objected to any late-filed response by staff.

With an email dated August 12, 2021 (7:09 p.m.), Department staff filed a memorandum of law opposing Mr. Conlon's second motion to recuse. Subsequently, Mr. Conlon replied with an email of the same date sent at 8:34 p.m.

I. Motions to Recuse

In his August 4, 2021, motion, Mr. Conlon repeats the bases stated in his previous motion to recuse. In addition, Mr. Conlon notes that I did not respond to his email dated July 20, 2021, concerning his request to send the November 1, 2010, Order on Consent to the FBI crime lab for a forensic investigation into its authenticity. Mr. Conlon argues that I did not have any contact with the parties for the past three years, which shows a lack of interest in the matter. Mr. Conlon argued that I no longer want to continue as the assigned administrative law judge based on the discussion held during the July 20, 2021, status conference. A complete copy of Mr. Conlon's August 4, 2021, email is attached as Appendix A. In addition, a copy of Mr. Conlon's August 12, 2021 (8:34 p.m.), reply is attached to this ruling as Appendix B.

Staff notes that the Commissioner previously denied all requests for relief outlined in Mr. Conlon's August 4, 2021, email. According to Department staff, the Commissioner or an ALJ would be disqualified from presiding in an adjudicatory proceeding where the Commissioner or ALJ suffers a personal bias, prejudice, or other disqualifying factor. These factors include a Commissioner's or ALJ's prejudgment of the facts of a particular case, or a financial or personal interest in or relationship to one of the parties in the matter. (See Interim Decision and Rulings, June 1, 2018, at 3-4). Staff contends that absent any of these factors, the presiding officer has the discretion to determine if recusal is warranted. To support this contention, staff references Crossroads Ventures, LLC, Commissioner's Ruling, April 29, 2009, at 4 (see Matter of Murphy, 82 NY2d 491, 495 (1993) and People v. Moreno, 70 NY2d 403, 405-406 (1987)]). (See Staff's reply at 3.) According to staff, Mr. Conlon did not cite any authority that would warrant reconsideration of the Commissioner's prior determinations. Department staff argued that the motions should be denied in all respects.

Discussion and Ruling

State Administrative Procedure Act (SAPA) § 303 provides that "[u]pon the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the agency shall determine the matter as part of the record in the case, and its determination shall be a matter subject to judicial review at the conclusion of the adjudicatory proceeding."

Section 622.10(b)(2) of 6 NYCRR provides that "[a]ny party may file with the ALJ a motion . . . requesting that the ALJ be recused on the basis of personal bias or other good cause" (6 NYCRR 622.10[b][2][iii]). The ALJ's determination on a motion for recusal is part of the hearing record (see id.; see also 6 NYCRR 622.17[b]). A denial of such a motion is appealable as of right to the Commissioner, either on an expedited, interlocutory basis, or after the completion of all testimony in a proceeding (see 6 NYCRR 622.10[d][1], [2][i]).

The Commissioner has received a copy of Mr. Conlon's August 4, 2021, motion and Department staff's August 12, 2021, reply. The Commissioner, therefore, will consider that portion of the motion concerning his recusal.

The courts have provided further guidance concerning the grounds for disqualification of an ALJ. An ALJ is disqualified from presiding in an adjudicatory proceeding where the ALJ suffers a personal bias, prejudice, or other disqualifying factor. These factors include an ALJ's prejudgment of the facts of a particular case (see Matter of 1616 Second Ave. Rest., Inc. v New York State Liq. Auth., 75 NY2d 158, 162 [1990]), or a financial or personal interest in or relationship to one of the parties in the matter (see Matter of Beer Garden, Inc. v New York State Liq. Auth., 79 NY2d 266, 278 [1992] [applying Judiciary Law § 14 to an ALJ exercising a quasi-judicial function in an administrative adjudicatory proceeding]). An ALJ is also disqualified where the ALJ previously served as the agency prosecutor in the case, whether actively or merely functionally (see id. at 278-279; see also Matter of General Motors Corp. - Delco Prods. Div. v Rosa, 82 NY2d 183, 188-189 [1993]). Moreover, the mere circumstance that an agency official is employed by the agency, without more, is not a ground for disqualification (see Matter of Whalen v Slocum, 84 AD2d 956 [4th Dept 1981]). Absent one of the above grounds for disqualification, whether recusal is warranted falls within the discretion of the decision maker (see Matter of Murphy, 82 NY2d 491, 495 [1993]; People v Moreno, 70 NY2d 403, 405-406 [1987]).

In the August 4, 2021, motion, Mr. Conlon does not identify any ground for my disqualification in this case, nor does any such ground exist. I have no personal bias or prejudice concerning either of the parties to this proceeding, nor do I have any personal knowledge of disputed evidentiary facts concerning the proceeding (see Matter of 1616 Second Ave. Rest.75 NY2d at 161-162). The only knowledge I have of the matter is based upon the papers submitted and other communications by the parties.

The Department employs multiple institutional safeguards to protect the independence and impartiality of the ALJs within its employ. Consistent with separation of powers principles imposed upon agencies by procedural due process, statutes such as SAPA, and executive orders, the Office of Hearings and Mediation Services is an independent office within the Department, separate from the Office of General Counsel, other program Divisions, and the Regional Offices. The ALJs and Chief ALJ employed by the Office report on cases directly to either the Commissioner or his designee through the Deputy Commissioner for Hearings and Mediation Services, and not through the Department's General Counsel (see Matter of Bath Petroleum Storage Inc., ALJ Ruling, December 10, 2004, at 4-5). Thus, the prosecutorial and adjudicatory functions are completely separated within the Department.

Other procedural safeguards for ALJ independence include the requirement that ALJ rulings and hearing reports be made public and part of the record (see 6 NYCRR 622.17[b]). The Commissioner may reverse or modify an ALJ's findings of fact or conclusions of law, but must do so in a separate Commissioner decision or order on the record, and must provide written reasons for such reversal or modification (see 6 NYCRR 622.18[e]; see also Matter of Simpson v Wolansky, 38 NY2d 391, 394 [1975]). Finally, an ALJ's impartiality and independence are further protected by Executive Order No. 131.[2] Therefore, the alleged incentive to rule in the Department's favor does not exist. Accordingly, I deny Mr. Conlon's August 4, 2021, recusal motion.

II. Request for Transfer of Venue

Mr. Conlon also renewed his request to transfer this administrative proceeding to a federal forum. I had previously denied this request (see September 8, 2016, ruling at 8). The Commissioner considered a request for leave to appeal from the September 8, 2016, ruling. In the June 1, 2018, Interim Decision and Rulings (at 5), the Commissioner denied leave to appeal from the September 8, 2016, ruling concerning Mr. Conlon's request for a change of venue and held that "[m]oreover, even assuming without deciding that respondents' request to the Commissioner to change venue is properly before me, the request is denied."[3]

Based on the Commissioner's June 1, 2018, determination, I deny Mr. Conlon's August 4, 2021, renewed request for a change of venue.

III. November 1, 2010, Order on Consent

In his August 4, 2021, email (see Appendix A), Mr. Conlon notes that I did not respond to his email dated July 20, 2021, concerning his request to send the November 1, 2010 Order on Consent to the FBI crime laboratory for a forensic investigation into its authenticity. In the June 1, 2018, Interim Decision and Rulings (at 3-7), the Commissioner addressed Mr. Conlon's concerns about the consent order. Among other things, the Commissioner determined that the November 1, 2010, Order on Consent is not relevant to the captioned matter, and that respondent's claims were unsubstantiated.

Because the Commissioner has previously addressed Mr. Conlon's concerns related to the November 1, 2021, Order on Consent (see Interim Decision and Rulings, dated June 1, 2018, at 7), I deny his renewed request to send the document to the FBI crime laboratory for a forensic investigation into its authenticity.

Appeals

Pursuant to 6 NYCRR 622.10(d)(2)(i), Mr. Conlon may appeal from this ruling which denies his motion to recuse the ALJ on an expedited basis. Mr. Conlon's appeal must be received before 3:30 P.M. on September 13, 2021. Department staff may reply, and it must be received before 3:30 P.M. on September 20, 2021.

Send the original hard copy plus one additional copy of any appeal to Commissioner Basil Seggos, Attn: Louis A. Alexander, Deputy Commissioner for Hearings and Mediation Services, 625 Broadway, 14th Floor, Albany, New York, 12233-1010. In addition, send one electronic copy of the appeal to Department staff at the same time and in the same manner as transmittal is made to the Deputy Commissioner. Department staff is direct to follow the same directions when filing the reply.

/s/
Daniel P. O'Connell

Administrative Law Judge

Attachments: Appendix A - Brian Conlon's Motion to Recuse

Appendix B - Brian Conlon's Reply

Dated: Albany, New York

August 16, 2021

[1]On September 25, 2016, Mr. Conlon filed supplemental information in support of the initial recusal motion.

[2]Executive Order No. 131 (§ II.C, December 4, 1989) states, in part, that the terms and conditions of an ALJ's employment cannot be based on whether an ALJ's rulings, decisions, or other actions either favor or disfavor the agency or the State (see also 9 NYCRR 4.131).

[3]See also Staff's response at 5-6.

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