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HomeMy WebLinkAboutCC RES 13-151 1 1 RESOLUTION NO. 13 -15 A RESOLUTION OF THE TUSTIN CITY COUNCIL ADOPTING HEARING OFFICER GUIDELINES FOR THE ADMINISTRATIVE HEARING PROCESS. The City Council of the City of Tustin does hereby resolve as follows: I. The City Council finds and determines as follows: A. That the administrative adjudicatory process should be more expeditious and less expensive for all parties than a judicial proceeding. The hearing should be much less formal, consistent with the fundamentals of fairness, impartiality, and thoroughness; B. That on November 4, 2008, the Tustin City Council adopted Ordinance No. 1358 establishing Administrative Citation Procedures; C. That Hearing Officer Guidelines have been drafted for use in the administrative hearing process and procedures which will clarify and solidify the City's goals of the administrative hearing process. The Guidelines provide a summary of hearing officer's major tasks, hearing procedures, provides measures in special situations such as ethical guidelines, as well as addressing judicial attitude, demeanor, and behavior during hearings; D. That public notice was published in the Tustin News on February 21, 2013 and on March 5, 2013, the item was continued to March 19; 2013, and on March 19, 2013, the public hearing item was continued to April 16, 2013, at which time a public hearing was duly called, noticed, and held, for Ordinance No. 1428 incorporating Hearing Officer Guidelines and that; E. That on May 7, 2013, the City Council had first reading of Ordinance No. 1428 to update to the Tustin City Code for amendments to definitions and procedures relating to the administrative hearing process for Hearing Officers; and II. That the Tustin City Council hereby approves the Hearing Officer Guidelines for the administrative adjudicatory process (attached hereto as Exhibit A) and authorizes the Community Development Director to solicit Request for Proposals (RFP) and enter into a contract for Hearing Officer services. III. That the City Council authorizes the Community Development Director to update minor amendments to the Hearing Officer Guidelines from time to time as necessary. Resolution No. 13 -15 Page 1 of 2 PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 16th day of April, 2013. ATTEST: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ELWYN URRA Mayor CERTIFICATION FOR RESOLUTION NO. 13 -15 I, Jeffrey C. Parker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 13 -15 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 16th day of April, 2013, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES; COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT Murray Puckett, Nielsen, Gomez (4) None (0) None (0) Bernstein (1) Resolution No. 13 -15 Page 2 of 2 EXHIBIT A TUSTIN 31)I lt,I Ni. OUR Ill i Ukl HONOk1N.1 OUR CNS] Hearing Officer Guidelines 1.0 Goals of the Administrative Hearing Process The administrative adjudicatory process should be more expeditious and less expensive for all parties than a judicial proceeding. The hearing should be much less formal, consistent with the fundamentals of fairness, impartiality, and thoroughness. When due process requires a hearing, the adjudicator must be impartial. The hearing officer's goal should be to develop a fair, accurate, intelligible, and concise record that can easily be reviewed, and to prepare a proposed or final (in appropriate circumstances) decision that is fair, accurate, intelligible, and concise. 2.0 Hearings on Shortened Time It is the hearing officer's responsibility to move matters along and to set deadlines. The hearing officer has the responsibility to abbreviate any prehearing procedures in a manner that is consistent with due process and to issue prompt decisions on procedural issues and respond timely to parties' inquiries. Generally, deadlines for such matters as amendment of the accusation or statement of issues, exchange of witness lists and exhibits, permissible discovery, or prehearing motions are set at a prehearing conference. If faced with a party failing to meet deadlines, the hearing officer will have some discretion to devise an appropriate consequence. As a matter of fairness, the hearing officer should try to devise a penalty that does not impose a burden on parties who have met the deadlines. 3.0 Summary of Hearing Officer's Major Tasks 1. Make the pre- hearing statement (if necessary) 2. Read the citation into the record (optional) 3. Administer the oath 4. Verify respondent's name and address 5. Verify the registered owner's name and address and the respondent's relationship to the registered owner if applicable City of Tustin Hearing Officer Guidelines 6. Hear and examine the respondent, any witnesses and all the evidence 7. Render and announce a decision including the rationale 8. Document the disposition on the hearing disposition form 4.0 Hearing Procedures The hearing process is generally informal. Nevertheless, there are certain rules which must be followed to ensure that a proper record of the hearing is maintained and to avoid any problems or irregularities. 4.1 Organizing the Hearing The hearing officer should establish the order of oral presentations in the prehearing order or by other notice well before the hearing. 4.2 Narrowing the Issues Stipulations of fact and for admission of certain evidence are useful for narrowing the issues that will be presented at the hearing. The hearing officer should encourage parties to determine subjects that are not in dispute and would be suitable for stipulation. Setting a deadline several days in advance of the hearing for filing stipulations will encourage the parties to meet to discuss the issues and focus their presentations. 4.3 Agenda The hearing officer should circulate a tentative agenda before the conference. The parties should be asked if they have additional issues to discuss at the conference. The hearing officer may permit pre -filed testimony to be submitted simultaneously by both parties, or in alternating rounds, beginning with the party with the burden of proof. 4.4 Begin the Hearing To begin the hearing, the hearing officer will present an opening statement which includes: • A short explanation of the hearing process. • Notification that the hearing is being recorded. • Inform the respondent that the options for contesting a citation are "admit liability with an explanation" or "deny liability ". 2 City of Tustin Hearing Officer Guidelines • Notify the respondent that a written notice of the decision in the hearing will be mailed to the respondent's address indicated on the Request for Hearing Form. • Inform the respondent of the right to an appeal of the decision in civil court and the time limit for filing an appeal. • State the date and time and instruct the respondent to give his or her name and address for the record. • Ask the respondent if he or she is the responsible party for the subject property. • If witnesses are present, ask them to give their name and address for the record. • (optional) Swear in the respondent and witnesses by instructing them to put up their right hand and repeat the oath. If someone objects to taking an oath, any formal assertion of intention to testify truthfully will suffice. • Recite the following oath: "Do you swear or affirm that the testimony you give will be the truth ?" If yes, please say "I do ". • Excuse all witnesses and inform them that they will be recalled when it is their turn to testify. • Verify the citation number, date, time, location and type of violation. • Request that the respondent enter a plea of "admit liability with explanation" or "deny liability" for the record. 4.5 Review the Prima Facie Case Examine the citation to determine if all statutorily required and pertinent information has been entered by the issuing officer. If any vital information is missing, dismiss the citation. If no required information is missing, follow steps below for "admit liability with explanation" (Section 4.6) or follow steps outlined for "deny liability" (Section 4.7). 4.6 Admit Liability with Explanation If the respondent admits liability but desires to submit a mitigating explanation, ask the respondent to testify to the mitigating circumstance. Following the testimony, ask the respondent for the record if there is any additional testimony or evidence they wish to present. If the testimony does not clearly set forth the mitigating circumstance, ask the respondent questions relating to the testimony. Call in witnesses, if needed one by one. Ask the witnesses to present their testimony for the record. 3 City of Tustin Hearing Officer Guidelines Review all documents and other supporting evidence. For the record, read aloud or describe any documents presented, Place copies of all documentation or other supporting evidence in the case file. Ask the respondent if there is any further testimony prior to closing the hearing. 4.7 Deny Liability Ask the respondent to present his or her testimony explaining the circumstances of the violation. Listen carefully to the respondent's testimony. If necessary, cross - examine the respondent to clarify points relating to the issuance of the citation. Call in witnesses, one by one. Ask the witnesses to present their testimony. Review all documents and other supporting evidence. For the record, read aloud or describe any documents presented. Place copies of all documentation or other supporting evidence in the case file. Ask the respondent if there is any further testimony prior to closing the hearing. 4.8 Expected Duration The expected duration of proceedings are typically one to two hours for administrative citation hearings. Hearings for Building Code appeals or Uniform Code for the Abatement of Dangerous Buildings may last longer, however, no more than four hours should be spent on hearings. If a hearing is anticipated to last for more than two hours, a pre- hearing agenda should be drafted and distributed to the respondent, the City and any witnesses to arrange a speedy hearing schedule. 4.9 Close the Hearing Retain a copy of the hearing record. In the event that a continuance has been granted, the hearing officer must complete and file the continuance form in the continuance folder. When the hearing that was continued is completed, the hearing officer should make the relevant entries in the continuance log. When a person to whom a continuance has been granted fails to re- appear at the appointed time, the hearing officer must render a decision on the record. The hearing officer must also complete the continuance no -show form to be mailed to the respondent. 4.10 Render a Decision Make a decision on liability based on the testimony and evidence. Enter the disposition on the hearing record and enter the total amount of fine to be forfeited. Enter a brief written statement and make a brief statement to the respondent regarding the decision and then briefly explain including the rationale for the decision on the hearing record. 4 City of Tustin Hearing Officer Guidelines 5.0 Special Situation 5.1 The Unruly Respondent Occasionally, a respondent will become unruly during or after a hearing. This can often be precluded by fair and courteous treatment and by a rational explanation of the decision. Respondents should have been appraised of their right to an appeal in civil court prior to the commencement of the hearing. Should a respondent become abusive, the hearing officer should be prepared to call for a police officer to escort the respondent from the room. A hearing officer is not required to tolerate personal abuse as part of the position. If a respondent becomes abusive, the hearing officer should warn him or her to desist, and that if such behavior continues it will result in a termination of the hearing. If a hearing must be terminated because of a respondent's objectionable behavior or refusal to comply with the procedural requirements (after proper warning), the hearing officer should enter a decision based on the evidence to that point. It is vital that the Hearing Officer record the entire proceeding (including warnings about objectionably behavior) and include an explanation of the resulting action on the decision form. Again, it should be emphasized that everything, from the moment the respondent enters the hearing room until the announcement of the decision and the conclusion of the hearing, should be documented or retained as evidence and or recorded. If the hearing officer suspects that a problem will develop, the proceedings should continue to be recorded until the respondent has left the hearing room. It should be noted that premature termination of a hearing is a radical step and should be avoided, if possible, in all but the most flagrant cases of misconduct. 5.2 Ethical Guidelines If at any time, a hearing officer is confronted with a respondent and the hearing officer believes that there may be bias for or against, the hearing officer should disqualify himself or herself. If for any reason it could be implied that the hearing officer would benefit from a decision favoring or not favoring the respondent, the hearing officer should disqualify himself or herself. If at any time, an approach is made by any person, including someone connected with the City, that, either directly or by implication, attempts to influence the hearing officer's decisions, the situation must immediately be brought to the attention of the Director in charge of the program. At no time is any hearing officer or any other employee of the City to suggest, arrange, or agree that any particular respondent appear before any particular hearing officer. Any such request or suggestion shall be immediately reported to the Director in charge of the program. Failure to report such a suggestion or arrangement may constitute grounds for disciplinary action against all parties withholding such knowledge. 5 City of Tustin Hearing Officer Guidelines 6.0 Judicial Attitude, Demeanor, and Behavior The hearing officer's demeanor sets the tone for the hearing. The hearing officer should focus on the hearing and listen attentively. The hearing officer should, if possible, arrange the hearing officer's schedule to avoid interrupting the hearing for personal business. The hearing officer should treat all participants with respect. Each witness should be addressed formally, for example, Mr. Jones or Ms. Smith. The hearing officer should not argue with participants. The hearing officer must control the hearing. The hearing officer has functions and responsibilities analogous to a trial judge. For example, the hearing officer may place reasonable time limits on the presentation of evidence. As soon as the subject under inquiry is exhausted or fully developed, the hearing officer should stop the party or the witness and direct him or her to go to other matters. If the question or answer is irrelevant or improper, the hearing officer should strike it without waiting for an objection. The following suggestions for the format of the written decision: • The opening paragraphs should describe succinctly the nature of the case and the applicable statutes and regulations; • The prehearing procedural history should be outlined; for example, if a motion to dismiss or a motion for summary judgment was brought, the decision should note that, as well as any ruling on the motion; • , Although the relief requested by the parties may be described, their detailed contentions should not be recited in the opening paragraphs; including detailed contentions in the opening unnecessarily lengthens the decision, since they must be repeated in discussing the merits; • The decision should contain a summary of the principal findings of fact and conclusions of law; if submission of proposed findings and conclusions has been requested, the hearing officer's ruling on each of them should be apparent from the decision, and the decision should preferably include a ruling accepting or rejecting each relevant proposal, with an explanation of the reasons for each rejection; a preliminary review may establish that a proposal is irrelevant, immaterial or cumulative, which finding can obviate the need for more substantive review and ruling; • The decision should include specific findings on all the major facts in issue without going into unnecessary detail; it is not necessary to list all the evidence submitted by each party; • All of the ultimate findings should be separately numbered and framed in the applicable statutory language; 6 City of Tustin Hearing Officer Guidelines • The decision should set out the relevant standard of proof, which in administrative proceedings is the "preponderance of the evidence" standard unless otherwise stated in the relevant statute, regulation, or case law; • The hearing officer should apply the law to the facts and explain the decision; • Rulings on credibility of witnesses should be specifically indicated if significant, because those findings will be given deference by a reviewing court; • Footnotes may be used for such material as citations of authority and cross references but not for substantive discussion; • Maps, charts, technical data, procedural details, and other germane background material too lengthy to be included in the text may be attached as appendices; • An order for adoption by the agency should be attached (see Attachment 1 Template for Order of Hearing Officer); • The final order must clearly indicate that the document is a final decision and that the claimant may obtain review of the administrative decision by filing a petition for review with the Orange County Superior Court in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4. 7.0 Special Requirements 1. The Hearing Officer shall comply with all applicable federal, state and local laws applicable to its activities. 2. The Hearing Officer shall not release to the public or press any information regarding the purpose /scope of services to be accomplished or data specific to the project required under the Agreement without prior authorization of the contract officer. All such information is considered confidential. All inquiries made of Hearing Officer shall be immediately referred to the Contract Officer. 3. Hearing Officer shall present to the City certificates of insurance and endorsement forms verifying that the Hearing Officer has the insurance as required by the City and set forth in the Consultant Services Agreement. Said form shall be reviewed and approved by the office of the City Attorney of the City of Tustin. 4. If the Contract Officer determines that a product deliverable is unacceptable, the Hearing Officer shall submit a revised product at Hearing Officer's expense. 5. The need for an expeditious hearing process is imperative. Therefore, no more than four hours should be spent on any one hearing. 7 City of Tustin Hearing Officer Guidelines 6. Monthly progress reports shall be submitted by Hearing Officer with billing requests. At minimum these reports shall specify the period reported, tasks completed, tasks underway, percent of project completed and strategies to solve any timing delays. 7. Hearing Officer shall be required to meet with the Contract Officer and City Manager as determined necessary or desirable to discuss elements of the Scope of Work and project's progress. 8. For purposes of this Agreement, Hearing Officer shall be the representative thereof, approved to conduct services under this Agreement. 9. Hearing Officers shall be appointed to hear cases under a pre - established system of rotation. 10. For purposes of this Agreement, the Community Development Director shall be the City's Contract Officer. Attachment 1. Template for Order of Hearing Officer S: \Cdd\Amy\Admin Cites \Hearing Officer\Hearing Officer Guidelines.docx 8