ACKMAN LAW OFFICE                                                      WRITER-AT-LARGE

 

 

The African, The Journalist,
And the TLC

By DAN ACKMAN

Ebenezer Asamoah idled in his yellow cab at a red light on the Corner of Delancey and Allen.  When the light changed, he drove across the street and stopped for a burly man in a camouflage jacket who stood 20 feet past the intersection.  The man got in.  Then he ordered Asamoah to hand over his keys.

This was neither a robbery nor a kidnapping.  The passenger was a Taxi and Limousine Commission lieutenant named John Thomas.  He took Asamoah's license, trip sheet, and rate card as well.  Asamoah, a native of Ghana, who had been driving a cab in New York for nine years, was suddenly out of work.

Thomas told Asamoah he had passed by a Hispanic customer, also a TLC inspector, on the corner in favor of Thomas, a white man, up the block.  This, the inspectors later testified, was a "bias refusal."  As a result of a recent crackdown, Asamoah, 52, the quiet son of a Presbyterian minister who became a U.S. citizen in 1980, found his license summarily suspended and his taxicab confiscated for, in the TLC's words, "safekeeping."

Asamoah would get his day in court eventually.  But he would learn that the TLC's system of justice is like no other: it operates behind closed doors, which is itself illegal, and proceeds by Byzantine rules that often seem to be made up by the agency as it goes along.

Since the TLC was formed in 1971, and before that when taxis were regulated by the police department, the law has required that a cab driver must stop for anyone who hails him and take the passenger wherever he wants to go.  (The rule applies in the five boroughs, as well as to Nassau and Westchester counties).  But charges that cabbies often refuse to pick up black customers are also long-standing.  While most cabbies claim they will pick up anyone and go anywhere, they also concede that others in their profession avoid serving black men in particular.

The situation has persisted to the point where many black men say they won't even try to hail a taxi, thereby avoiding the indignity of being passed over.  But in early November when movie star Danny Glover complained that he and his daughter couldn't hail a cab in Harlem, the city and the Taxi & Limousine Commission reacted.

Within a week, Mayor Rudolph W. Giuliani announced a sting operation-- dubbed "Operation Refusal"-- in which the city warned it would seize the cab of any driver who refused to stop for black and Hispanic passengers.  Beyond the seizure, the TLC promised to summarily suspend the driver's hack license and to seek, after a hearing, to revoke it altogether.

Since 1980 the TLC's regulations have spelled out penalties for refusing passengers without "justifiable grounds": a fine of $200 to $350 for the first offense; a $350 to $500 fine and a 30-day license suspension for a second offense within a 24 month period.  A third offense within 36 months is grounds for revocation.

But in trumpeting Operation Refusal, the TLC ordered that the driver's license be revoked on the first offense.  The TLC dictated this rule not by amending its regulations or local law.  Instead it acted on an order by TLC Commissioner Diane McGrath-McKechnie, which was based on her power to punish "acts against the best interest of the public."

Whether Operation Refusal will stop the perceived discrimination against black men remains to be seen.  But lawyers, including at least one former TLC Commissioner, have called the initiative wrong-headed.  They also call it illegal and beyond the power of the TLC.  Drivers and their advocates say that the Giuliani Administration, seeking a chance to gain favor with blacks, has trampled on the rights of already beleaguered hacks-- nearly all of whom are poor immigrants, who are unorganized, politically voiceless, and unable to protect themselves politically or legally.

Glover and the Mayor say they are fighting racism.  But drivers and students of the industry insist the root of the problem is economics and safety, not race. 

Former TLC Commissioner Fidel Del Valle, for example, says the reason for refusals lies in the price structure of the industry: Simply put, a driver does best by making a lot of short trips in midtown, earning the $2 "drop" over and over.  Long trips on the highway can also be lucrative-- a car moving at 50 miles an hour earns $75 an hour.  But time spent sitting in traffic is the worst.  The wait-time rate of 20 cents per minute works out to just $12 per hour.  Thus during the day, cabbies are loathe to head to Brooklyn for fear of getting stuck at the bridges, and because they are likely to make the return trip empty. 

Fleet owners complain that livery cab services, which have proliferated in the outer boroughs in the decades since the current rules were written, make it impossible for yellow cabs to make money outside Manhattan.  And at night some drivers are reluctant to go to certain areas out of fear for their safety.  Thus, they sometimes refuse black men, who they believe are more likely to take them to the Bronx or Brooklyn, and to skip out on a fare.

"It's a sexier story to talk about race and fear, but that's not it," says Biju Matheus, a volunteer organizer for the Taxi Workers' Alliance.  Matheus concedes that the problem exists.  But he also notes, as the TLC has said, that fewer than 1 percent of drivers who passed TLC checkpoints set up during Operation Refusal were found to have passed by black or Hispanic customers attempting go hail a cab.

Asamoah was one of the unlucky few.  He has denied the charges from the beginning and says, "I refused no one."  He says he enjoys driving a cab, which affords him the chance to meet different people, some of whom "talk to me like a psychiatrist."  He wants his license back.

But Asamoah, like cabbies all over town, says driving a cab has become "very stressful," partly because the money has gotten worse due to increased competition from radio and livery car services as well as unlicensed gypsy cabs.  (Bruce Schaller, a former TLC policy analyst, now a consultant to the industry, says real wages for drivers have declined steadily since the early 1980s.)  But the worst headaches, drivers say, are caused by the relentless and unfair enforcement of picayune rules by the police department and the TLC.  Drivers complain that the rules on everything from record-keeping to the cleanliness of a cab to dropping passengers off more than 12 inches from a curb are simply out of whack with the reality of the street.

Asamoah is one of 41,744 licensed cab drivers in the city who together operate 12,187 yellow cabs.  There are actually several classes of yellow cab driver.  Some own their medallions (which confer the right to accept street hails) and operate their own cabs.  Others own their cars but lease their medallions, generally by the week.  A third class partners with car or medallion owners and pays for the right to drive the cab on shifts when the car owner isn't driving.

Then there are "fleet drivers" like Asamoah, who lease a car and medallion for a single 12-hour shift at a time.  The lease costs between $85 and $115 per shift, depending on the garage (garages in Manhattan charge a bit more than those in the outer boroughs) and the time of the shift.  Friday and Saturday night cost the most.

Since the early 1980s, when drivers worked on commission, cabbies have been independent contractors.  Drivers, except for the roughly 10 percent who own their medallions, must pay for the lease regardless of what they earn from fares.  The typical fleet driver says he averages $75 to $100 per shift.  (Shifts are universally 12 hours, from 4 p.m. to 4 a.m., or vice versa.  Many drivers won't drive the full 12 hours, especially if they reach their personal earnings goal beforehand.)  Drivers who lease their cabs by the week, or who own their own car and lease the medallion, can make a bit more.  Cabbies get no fringe benefits, but are covered by workers' compensation.

The TLC requires drivers to keep detailed trip records indicating their fares.  But the commission does not add up the figures to calculate what drivers earn because, according to Deputy Commissioner for Public Affairs Allan J. Fromberg, "knowing what drivers earn is not essential to our mission."

Fromberg says the mission is "to regulate the industry and guaranty the comfort and safety of the riding public."   But ask any taxi driver and he will almost invariably say the TLC is more in the business of "harassing" drivers and "stealing" as much of what little they earn as possible. 

Drivers say that excessive enforcement of minor infractions by the TLC and the police taxi squad has made their lives increasingly difficult.  Above all, they say the TLC courts routinely ignore drivers' testimony and accept the word of TLC inspectors without question.  Time after time, I heard drivers call the TLC courts "Stalinist" or "Kafkaesqe" or, most often, "kangaroo." 

Benjamin Ousa, a native of Ghana who has been driving a yellow cab for five years, speaks for many drivers when he says, "Before any questions are even asked, it is the cab driver's fault.  No where else in America is like this."

Fromberg defends the agency's enforcement policy as responsible for making the taxi industry "without question" safer and more pleasant.  As for the courts, he says the drivers are sore losers:  "No one likes to go to court so if they get a summons and pay a fine, I imagine they could be upset about that." 

In all, these courts adjudicate more than 80,000 summonses per year, or about two for every licensed driver.  Four years ago, the number was 47,000.  The TLC says its judges spend on average 11 minutes per case.

                                                            * * * *

Asamoah had his car confiscated last November 19.  Glenties Leasing Corp.--  a Bronx fleet that owns the cab that Asamoah leases-- picked up its property that afternoon.  But for the driver justice was considerably slower. 

Four days after the seizure, the TLC granted him a "suspension hearing" at which he was not allowed to present evidence.  His suspension stayed in effect for seven weeks.  Finally, on January 14, the TLC afforded him a hearing.  In the interim, he missed driving during the Christmas holidays.   He had no income to support his wife and 5-year-old son who live with him in an apartment in the Highbridge section of the Bronx.

Asamoah's suspension hearing was at the TLC's headquarters on 40 Rector St. in Lower Manhattan.  The pleasant office on Rector Street is also where the agency adjudicates cases brought by passengers against drivers.  The agency maintains a waiting area for civilians, and a separate one for drivers and their representatives.  This is in contrast to, say, New York State Supreme Court, where accused rapists and murderers out on bail enter and exit the same way as their accusers and the general public.  There are also a couple of hearing rooms at the TLC facility near Kennedy Airport.  But the vast majority of cases-- those initiated by TLC inspectors or the police-- are heard at the TLC's warehouse-like facility in Long Island City. 

After hearing complaints by drivers, I called Fromberg, the TLC spokesman, to ask about visiting the courts.  Fromberg informed me he thought the courts were closed.  "Instead, why don't you reach out to a lawyer who appears [before the TLC]?"  I found Fromberg's advice odd since in America weren't courts supposed to be open?  So I decided to visit Rector Street and see if I could get inside.

I arrived on the eighth floor where the hearings are held and asked to see a judge for permission to sit in on  the hearings.  The receptionist referred me once again to Fromberg, who, I said, I had spoken to already.  "What did Mr. Fromberg say?" she asked.  I told her that if it was OK with the judge it was OK with Fromberg.

I had shaded the truth a bit as Fromberg never said exactly that.  But I thought that if a judge had no quarrel with me watching the hearings, surely Fromberg would not object.  I was wrong.  A few minutes later, Fromberg himself appeared from his office on the fifth floor, and his usual "what can I do for you" jolliness had fled the scene.

Fromberg was furious that I had "misrepresented him."  He had never said I could witness the TLC tribunals and how dare I suggest otherwise.  I told him I wanted to ask a judge, and what could be wrong with that?  But for Fromberg, nearly everything was wrong since he, Fromberg, represented the commission, and I was to talk to him and him alone. 

"But why are the courts closed?" I asked.

"Because it's agency policy," Fromberg said.

"Is this policy in writing?"

"Yes."

"Can I see it?"

"Yes.  But not now."

"What's the reason for it?"

"Because it's agency policy."

"But why is it agency policy?"

"Because the courts are closed." 

This was the beginning of what would be a bizarre little war between me and the TLC.  For the next month or more, I would experience the TLC's vision of justice first hand.

Ultimately, I spoke to another agency official, who reiterated the policy and added that if they let me in, they'd have to let everybody in.  When I asked Fromberg for the names-- the names!-- of the judges, he told me to file a Freedom of Information request.  

I then tried to talk to a few drivers and their lawyers as they were waiting for their cases to be heard.  But Fromberg told me I couldn't do that either because the waiting area outside the court was also closed.  He called over the two beefy security guards to emphasize his point.

I did manage to attend Asamoah's hearing-- by a fluke of jurisdiction.  The vast majority of TLC cases are heard by the agency's own judges.  But a few cases are delegated to a separate agency, the city's Office of Administrative Trials and Hearings (OATH). 

Why were Operation Refusal cases being sent to OATH?  The reason why, in the words of Joe Eckstein, Assistant Chief Administrative Law Judge of the TLC, is "surprisingly complicated:"  The goal of Operation Refusal, Eckstein explained, was to revoke the hack license of any driver found guilty of a "bias refusal."  The problem was that there was nothing in the agency's rules to authorize this penalty. 

Rather than enact a new rule, the TLC decided it would proceed instead on a general rule that entitles the agency to punish drivers who act "against the best interests of the public."  But when the TLC seeks revocation under its general authority as opposed to a to a specific rule, the TLC's rules require that it conduct a "special proceeding" at OATH. 

Eric Lane, a Hofstra University law professor and the principal draftsman of the 1988 City Charter, calls the TLC's reliance on its general powers "bullcrap."  Lane says, "Every agency has rules that say they can act in the best interests of the public, but that does not impact on their obligation to undergo rulemaking."

Lane explains that the TLC operates under procedures set forth in the City Charter which require it to provide notice and an opportunity to be heard before enacting a new regulation.  These rules, Lane says are mandatory, not optional.  "The basic principle is if you don't have authority you can't do it," he says. 

Former TLC Chairman and General Counsel Del Valle agrees and adds that the penalties relating to refusals were enacted by the City Council, not the TLC.  Only the Council, he says, has the power to change them.

The OATH judges deciding the TLC cases would ultimately agree with Lane and Del Valle.  But none of their legal arguments were any comfort to Ebenezer Asamoah, as he sat in his OATH hearing, his license still suspended, watching TLC Inspector Israel Ramos, the decoy in the sting, testify against him.

"For the record," asked TLC lawyer Sharon Collazo, "you're a dark-skinned Hispanic?"

Ramos paused a moment.  "Correct," he said.

But OATH Administrative Law Judge Dierdra Tompkins ruled that Ramos was incorrect.  Looking at Ramos, she told him he was not dark skinned.  Asamoah, she said, was dark-skinned.  As for Ramos, "Swarthy would probably be a more accurate description."

Ramos had testified already that he saw Asamoah come to a stop on Allen Street.  Ramos said he reached for the door.  But when Asamoah saw his decoy partner Lieutenant Thomas-- who was "dressed as a tourist" in a camouflage jacket and "Indiana Jones hat"-- he took off to pick up Thomas instead.

Asamoah for his part told the judge he did nothing wrong.  It would have been his word against the two inspectors, and a classic case of bias refusal, except Asamoah had a witness.  Fellow taxi driver Rajrender Sharma was at the same corner and he backed him absolutely.

Both Asamoah and Sharma testified that Sharma was in the curb lane, that Asamoah was to his left, and that there were two fares on that corner that day.  When the light changed to green, Asamoah took the second fare because he was in the outside lane and wanted to avoid cutting Sharma off and causing an accident.

When Sharma saw Asamoah being stopped, he stopped too, and told the inspectors that the Ghanaian had done nothing wrong.  The inspectors, Sharma testified, told him it was none of his business and to keep moving.  Sharma kept driving, but then parked his cab, walked back, and offered Asamoah his name and phone number.  He appeared in court at Asamoah's suspension hearing, where a TLC judge told him his testimony was not needed, and again at his trial.

Thomas and Ramos testified they did not see Sharma in the curb lane to Asamoah's right.  The inspectors admitted, though, that Sharma was there and that they told him to leave when he told them Asamoah was merely being careful not to cut him off.  "This is the taxi business." Sharma told the judge.  "I would not let him come in front of me."

Taxi drivers compete so fiercely for fares that the TLC fights a constant battle to get them to slow down and drive safely.  At one time the drivers had a union, but it has been powerless since 1981 when the taxi fleets ended the old commission system where drivers employed by fleets took 49 percent of the meter.  At that time, the fleets in effect fired all their employees and took them back as lessees who were invited to rent a cab and medallion on a daily or weekly basis.  Drivers say there is little fellow feeling in the ranks.  Asamoah calls the attitude "each one for himself and God for us all." 

That in mind, I asked Sharma why he stopped to help Asamoah?  "I saw the man had a badge, and without any reason he had a problem.  My heart said to me I should stop and help him."

Sharma told me that his friends and fellow drivers warned him not to testify for fear of repercussions from the TLC.  But, Sharma thought that "God is watching.  I just want to tell the truth.  My wife said it's OK so it's OK I have to go."

During her closing argument, Collazo emphasized how the TLC could not tolerate drivers like Asamoah.  She said the commission's position that his license should be revoked was emblematic of the TLC's determination to end racial bias among cab drivers.  Through it all, she referred to him as a "licensee," noted that it was a "privilege" to drive a taxi on city streets, and conveyed the impression that he and other taxi drivers operate by the TLC's grace.  At the end of the day, Judge Tompkins gave the TLC another two weeks to submit a post-hearing brief.

A few days later, I visited the TLC's headquarters in Long Island City.  While civilian complaint cases are handled in the TLC's offices downtown, cases based on police department or TLC summonses are heard in the Queens facility.  The building looks like a converted factory, with unfinished half-painted walls and police barricades in the lobby to corral the crowds that can build up in the morning, especially on license-renewal days.

Waiting is the main event at the TLC.  Drivers and lawyers who represent them say cases never start on time. They claim it's routine for a case to be scheduled at 10 in the morning, but not be heard until late in the afternoon.  Even after they wait all day, drivers may be told at 3:30 or 4:00 p.m. that the officer who filed the complaint against him never showed up. 

When this happens at the Department of Motor Vehicles or at the Parking Violations Bureau, the cases are routinely dismissed according to lawyers who practice at the DMV.  But at the TLC, the judges generally adjourn the case and tell the driver to come back another day.  If a driver is more than a half-hour late, however, he is automatically found guilty, even if the officer testifying against him has not arrived, says James Brereton, the general manager of a Queens taxi fleet who represents his company-- but not its drivers-- at the TLC and at the DMV. 

Like drivers and lawyers who represent them, Brereton says the Long Island City office is "all about money," not justice.  Police or TLC inspectors can stop a taxi without probable cause.  Once they stop one, Brereton says, "It's a rare case when they can't find some violation." 

Perhaps there's a line missing on the driver's trip sheet, a violation of Taxicab Driver Rule 2-28.  Maybe there's a candy wrapper in the back seat.  He can be written up for violating Rule 2-26.  Brereton says it happens daily.

Brereton, the fleet owner's representative, adds that most drivers are so beaten down by the system, and so unaware of their rights, that they will usually choose to plead guilty (which they must do in person rather than by mail) and pay a fine even if they believe they have a defense.  When drivers do decide to contest the charges against them, Brereton says the TLC judges will almost invariably assume the officer is telling the truth to the point where if he misstates the facts or the charges as stated on the summons, the judges will excuse the error by saying the officer misspoke. "It may be a small thing, but that's the kind of thing that gets your case dismissed in traffic court," says Brereton.  Lawyers for cabbies concur in this assessment.

(TLC officials refused to comment on the conditions in Long Island City or on any aspect of how the hearings are conducted.) 

The TLC hires its judges on a per diem basis, allocating shifts at the beginning of each month, according to one judge I spoke to, who insisted his name not be used because "I'm nervous, very nervous.  If they knew I was talking to you I'd get no days."  There is no formal appointment process, no term of employment, and no civil service protection.  As a result, the judge says, "There is a significant turnover for reasons that are not clear."           

Brereton and former TLC Commissioner Del Valle both say they have heard stories about judges being pressured whether overtly or by implication to decide most cases in favor of the TLC.  The judge I spoke to stated he tries "to do a pretty straight job," but he also says, "If [a civilian] files a complaint, I'm inclined to believe them... Drivers have a motive to lie.  They have something to protect."  TLC inspectors, he says, are not inclined to lie, but many of them are "incompetent and can't make a very good case."  This is the exact attitude that Brereton, countless drivers, and lawyers who appear before the TLC say pervades the hearings.

After their cases are heard, drivers are told to wait there for a decision, which can take hours to travel from a judge's desk to the clerk's window-- even if the driver pleaded guilty.  The result is, even the simplest ticket can take all day to adjudicate.

If a driver pleads or is found guilty, in most cases he must pay his fine on the spot-- cash only, the TLC accepts no checks or credit cards from drivers.  Once he pays, he has to then take his paperwork to another window to have the suspension lifted from his license. 

The problem here is, many drivers don't know about the second window, and no one at the cashier's window tells them, so they often leave the building with their license still suspended as far as the TLC is concerned.  "I spend a lot of my day telling people [about the second window]," says Michelle Parker, a lawyer who represents mostly fleets, but drivers as well.  Clifford Paolillo, who has been driving his own cab for 30 years, sums up the general view: "You call this justice?  I call it a joke." 

Drivers like Paolillo say the message from the TLC is: "We don't exist, we're garbage."  Brereton concedes he is treated better than most because he represents a fleet and knows the ins and outs.  "But," he says, "No one cares about the drivers, the fleet owners included.  You see this place and the way it works and it's mind boggling."

On my first visit to Long Island City, I talked to Joe Eckstein, the TLC's assistant chief judge.  He told me that witnessing a hearing was impossible, but he offered me the opportunity to interview him and pointed out lawyers who I might want to speak to as well.  As he returned to his office, I started interviewing lawyers and drivers who were waiting for their decisions or for their cases to be heard.  One of the drivers waiting there was Joseph Paul.

A few nights before Asamoah lost his license, Paul was driving his yellow cab on 105th Street and Broadway where a passenger hailed him and asked him to take him to an address in the Hunts Point section of the Bronx.  Paul started uptown, and after a few blocks, the passenger told him to pull over.  He was in fact a TLC inspector, and he was just testing drivers at random.  Paul, he said, had passed the test.  This was better than flunking, but, as it turned out, not by much.

As he got out, the inspector ran Paul's hack license and found out it had been suspended.  He told Paul he had six outstanding summonses.  Paul told the inspector he knew nothing about the summonses and that his record was clean.  But the inspector demanded his license, trip sheet, and rate card, and confiscated his taxi.  Before Paul left, the inspector handed him another ticket, this one for driving with a suspended license.

Paul learned later that the tickets had been issued six months earlier, all at a single time and place, but for a variety of infractions.  They had been mailed rather than handed to him.  The problem was the tickets had been mailed to an address from which Paul had moved away more than a year before.  Paul was able to prove in court not only that the tickets were sent to the wrong place, but also that his current address was listed in the TLC's own computer.

The ticket for driving with a suspended license was dismissed after a hearing in mid-January.  But the administrative law judge said he could do nothing about the charges based on the earlier summons.  They remained in effect, and Paul's license was still suspended pending another hearing, which, the TLC said, it would schedule within two weeks.  As a result, Paul, 43, a native of Haiti who says his record is actually clean after 15 years of driving a cab, is still unable to work or support his wife and three children.  "We’ve spent every penny we had saved since I was unable to go to work," Paul says.

Paul swears he has no idea how or why the earlier tickets were issued.  He was driving his cab that day, but his trip sheet shows he was not at the intersection listed on the tickets.  And many of the charges, such as driving without a trip sheet and driving with the rear seat off its brackets, could only have been made by an officer who was actually in his taxi, and who therefore could have handed Paul the tickets in person.

In any event, despite his efforts to communicate with the agency, Paul heard nothing from the TLC for another month.  At that time, he received in the mail, the right address this time, an order from a TLC judge he had never met.  The one paragraph decision noted Paul's claim that he never received the summonses.  It goes on to say, "However, TLC records indicate they were sent to the same address respondent lists on his motion."

Of course, this was not true, as the first judge found, and Paul still never had a hearing on whether the initial charges were legitimate.  His hack license is still suspended, and will be even if he pays the $505 in assessed fines, because there will be enough points on his license to trigger an automatic 30-day suspension on that ground as well.  He might appeal.  But since the decision was mailed to him three weeks after it was issued, it is already technically too late to do so.  He talks about suing the TLC, but admits, "I don't know what to do."

While I was hearing about Paul's case, Eckstein reappeared.  This time he had his boss with him, Joseph McKay, the Executive Director of Adjudications.  McKay informed me the area was private and I wasn't supposed to be there.  I looked around at a waiting room of a government agency where hundreds of people come and go, and I told him I thought it was public in every sense.

"If you don't have business here, you're really not supposed to be here," he said.

"But I do have business here," I said.  "I'm talking to these men."

He added that I was "disrupting the business of the court."  He told me it was agency policy that only drivers answering summonses and their representatives were allowed inside. 

I told him I didn't believe there was a policy, that he was making it up. 

"Unless you're a lawyer or you're answering a summons, you're really not supposed to be here," he said.

"Are you telling me to leave?" I asked.

"I'm suggesting you leave," was his response.

"Then I'm suggesting, unless you're prepared to have me arrested, I'm staying right here."

"Look, unless you have a case here, you're really not allowed to be here."

I turned to Mr. Paul, who was standing next to me and asked him, "Do you need a lawyer?"

"Yes," he said.

"I'm his lawyer," I told McKay.

The conversation ended soon after.

This was my second conversation with a TLC official where they claimed a policy that somehow barred the public from their courts and indeed their waiting rooms.  They couldn't or wouldn't produce it, though, and I didn't believe it.  Trained as a lawyer, I searched the law books for such a policy and came up empty.  I looked some more and found out that the law in New York State is that administrative tribunals are supposed to be open to the public.

What at first sounded like taxi drivers grousing about having to pay fines for breaking the law appeared more and more genuine.  If the TLC was willing to concoct "policy" on the fly to keep me out-- if even the names of the judges were kept secret-- who knew what was going on inside.   Maybe the judges did routinely ignore their testimony, as the drivers said.  Maybe, the presumption of guilt was so strong as to be near irrebuttable.  So I decided to test the "policy" against what I now felt sure was law.  I filed an action in State Supreme Court demanding access to TLC hearings. 

On March 2, Justice Stanley Parness of the New York State Supreme Court in Manhattan ruled that the TLC had no legal basis for closing its tribunals to the public.  The law, Justice Parness ruled, requires open access.  Almost a week after the court's decision was received by the TLC's counsel and four days after it was the subject of an article in the New York Times, I returned to the TLC's courts in Long Island City with Times reporter Randy Kennedy.  We were both denied access to the courts by TLC Chief of Staff David Hind and by Chief Administrative Judge McKay.  Their reason this time was that the court's decision was "not final," that they were still "studying" it, and that they "might appeal."  Hind personally escorted us from the building.

Before Justice Parness ruled in my case, Asamoah learned the result of his.  Administrative Law Judge Tompkins said that the TLC could not revoke his license because there was no statute or rule that permitted it to do so.  The commission, the judge ruled had "circumvent[ed]" the law and tried to make a rule inconsistent with its own statute.  "That portion of the rule appears to be ultra vires," Latin for outside the law.

To date, at least six other OATH decisions have come down exactly the same way.  In each case, the judge ruled the TLC has no right to revoke a license on the first offense, but leveled the maximum fine allowed.  None of the courts commented on the suspensions which preceded the revocations, but by implication those were ultra vires also.

How did the TLC respond to the OATH judges' rulings? Did the agency reconsider its policy?  As it turns out, no.  On the street, the TLC continues to seize the cars and licenses of cabbies simply accused of refusing passengers, according to lawyers who represent cabbies.  In court, the agency persists in moving for revocation.  The agency has made one change, however.  Rather than take the refusal cases to OATH, as it had been, and as the law specifically requires, the TLC is now bringing the cases in its own courts, still closed to the public, its own per diem judges presiding.

Some of the lawyers who represent drivers don't realize that the law requires that revocation cases be heard by OATH.  They just show up where the TLC summons directs, often after being retained just a day before a hearing.  But even when a cabbie's lawyer does realize that she is in the wrong court, it does little good to object.  When Michelle Parker, representing a driver whose license was at stake, made a motion that the TLC court lacked jurisdiction, she says the judge literally laughed at her.  "We don't do that here, Ms. Parker," the judge said.  Parker said that TLC judge Eckstein told her that the agency had enacted new rules, but that the rules were not yet published.

(I asked TLC spokesman Fromberg about the TLC's response to the OATH court decisions.  He told me, "I am writing your questions down so I can get back to you."  He never did.)

As for Asamaoh, the OATH court's ruling on the law was the good news.  The bad news was Tompkins found Asamoah guilty on the facts and fined him the maximum $350.  The judge found the TLC inspectors "credible witnesses with no apparent motive to testify falsely."   Asamoah and Sharma, by contrast, were "less than credible," the judge wrote.  "It was abundantly clear that Mr. Sharma fabricated his testimony in an effort to shield respondent [Asamoah] from liability for his actions.... Mr. Sharma and respondent apparently concocted the scenario."

It's an amazing opinion.  "No apparent motive to testify falsely"?  What about the fact that the inspectors' entire agency had turned itself upside down to respond to Danny Glover's complaints?  That they were in such a hurry to get out in front of the cameras that they ran roughshod over the law, as the judge herself found?  How then would it look if they came back from their sting operation empty?

The idea that Sharma and Asamoah "concocted" a story or that Sharma "fabricated" his testimony to protect a man he had never met is even more surreal.  Here is a man who spoke to the inspectors at the scene before he ever met Asamoah, who took two days off from work to appear in court for a man he didn't know, who confronted an agency that controls his livelihood, and who did it when his friends and fellow drivers told him to stay out of it.  And for his trouble, he is accused not just of being mistaken, but with perjury.

I spoke with Asamoah afterward.  He said as he has all along that he refused no one, that he did not even know Ramos was Hispanic, and that he was merely trying to avoid an accident.  "This is the most upsetting thing that ever happened to me," he said.

I asked him if he will pay the fine and go back to driving.  It turns out he can't, not yet anyway.  He explained what I had forgotten, that the OATH judge's opinion is merely a "report and recommendation."  The commission can now accept it, reject it, or modify it as it sees fit.  The date for the commission's action has not been set.  For now, though, Ebenezer Asamoah's hack license remains suspended.  He is looking for a new line of work.

 

 

ACKMAN LAW OFFICE                                                      WRITER-AT-LARGE