Last Friday, the first portion of a legal fight to stop the City from implementing dangerous new shelter denial rules began. But the judge wasn't yet looking at whether the new rules would violate the right to shelter, as established in the Callahan Consent Decree. First, she heard arguments on whether or not the City provided sufficient notice to the public about the proposed changes.
As reported in Capital, the judge grilled the City on the proposed changes in an attempt to decipher if they fall under the category of "rule" that would necessitate public hearings under the City Charter. Particularly, the judge tried to assess whether all or parts of the proposed changes would require certain actions as opposed to being left up to employee discretion, as the City's Department of Homeless Services argued.
Gische, the judge, didn't quite seem sure what to think, when the city's attorney, Abigail Goldenberg, said in court today that the new eligibility procedure "creates a framework for D.H.S. staff to make eligibility determinations based on the unique circumstances presented by every applicant."
"Let me ask you a question," said the judge. "Because I looked at the policy directive and it contains a lot of nice language like that. I got a little bogged down in the detail of the directive, which even though it said you can exercise your discretion, had a lot of things that were 'must's in them."
... If the policy provides for generally applied rules, or "musts," as the judge put it, then it would, as a rule with "general applicability," seem to be subject to the charter rulemaking process. If, as the city argues, the policy is more of a framework under which city employees will exercise significant discretion on a case-by-case basis, then it would theoretically not be subject to the rulemaking process.
The New York City Council joined the Legal Aid Society in arguing that the City did not follow the proper rulemaking procedure when announcing this massive policy change. The judge is expected to decide on this part of the case within a month. Afterwards, she will focus on whether or not the substance of the new eligibility rules violates the Callahan Consent Decree. Until then, and perhaps most importantly, the City agreed to continue to hold off on implementing the policy.
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