Oyster Bay's proposed bureau to handle town code violations draws criticism

Oyster Bay's proposal to create an in-house tribunal to handle town code violations at a town board hearing last week drew concerns from local lawyers and a civil liberties group.

Susan Gottehrer, director of the Nassau County New York Civil Liberties Union, told the board at the July 12 hearing that her organization was concerned about protecting due process rights.

“To NYCLU, the way the bureau and the other bureaus are set up, it represents what feels to be anti-democratic values and processes, sidesteps important constitutionally based discovery rules and creates a level of secrecy when it comes to the person who is bringing it to the bureau's attention,” Gottehrer said at the hearing.

Town officials said bureau trials would be more efficient than court trials and would allow residents to make anonymous complaints.

Town Attorney Frank Scalera said at the hearing that rather than have town staff take time off to make trips to the district court in Hempstead to testify in code enforcement cases, they could walk over to the bureau.

“We'll have our inspectors and building department staff prepared with all the appropriate forms and all the necessary forms to fill out,” Scalera said. “We'll have almost like full service on location … really the goal is to ask to get rid of violations that affect the quality of life.”

Trying cases as civil matters before the bureau, rather than in criminal court, would eliminate the need to adhere to recent changes to discovery rules that require prosecutors to hand over evidence to the defendants early in the case, town officials said. Town officials call the discovery rules burdensome but Gottehrer said they were important protections for defendants.

“Any tribunal or bureau that has the power to create financial hardship and/or serve monetary penalties, which could result in the loss of shelter, vehicle, livelihood or loss of licensing, should adhere to the spirit of due process constitutional protections,” she said. 

Fines in cases at Huntington's adjudication bureau, which Oyster Bay is using as a model, have reached $20,000, according to a 2021 decision posted on that bureau's website. 

Town Supervisor Joseph Saladino said the new discovery rules discouraged people from making quality-of-life complaints.

Residents have said that "for a multitude of reasons including repercussion … they would like to be able to make their complaints anonymous,” Saladino said. Trained inspectors who responded to complaints would be the witnesses in cases that came before the bureau, he said.

The bureau would be run by a director appointed by the town supervisor and approved by the town board, under the proposed law. 

Oyster Bay-based attorney Richard Hutchinson, who defends clients facing code enforcement prosecutions, told Newsday the bureau would lack the separation of powers found in courts, where judges are independent.

“You can't be the judge and the prosecutor … and that's what they're going to become if they pass that law,” Hutchinson said. “… there's going to be no check and balance on them.”

Attorney Bradley Schnur of Jericho told Newsday he's had positive experiences representing clients in Huntington's bureau but said in-house tribunals can raise questions about judicial independence.

"I'm not saying that they're biased or not biased, but there could be the appearance of whether or not you're getting a full and fair shake," Schnur said. 

The Town Board closed the hearing and left the record open for 30 days for written comments.