Chapter 2.93 — CONDUCT OF HEARINGS

This Chapter applies to the conduct of all hearings, appeals or investigations held by the City Council, the Planning Commission or the Board of Examiners, Appeals and Condemnation pursuant to this Code or any other applicable law where oral evidence or testimony is received and where personal or property rights are involved. This Chapter does not apply to and is not intended to infringe upon the right of a citizen to

petition his government for redress. This Chapter applies to all City personnel who testify or present evidence in a hearing.

(Ord. C-5232 § 1 (part), 1976: prior code § 2780)

A.

All oral evidence or testimony shall be taken only on oath or affirmation. The presiding officer, the City Clerk or the Secretary of the respective Board or Commission may administer the oath. In a given case where many witnesses are expected to testify, the presiding officer has the discretion to have all prospective witnesses rise and be sworn at the same time at the outset of the proceedings.

B.

The oath or affirmation may be administered as follows, the person who swears or affirms expressing his assent when addressed in the following form:

 You do solemnly swear (or affirm, as the case may be), that the evidence you shall give in this issue (or matter), pending before this body, shall be the truth, the whole truth, and nothing but the truth, so help you God.

(Ord. C-5232 § 1 (part), 1976: prior code § 2780.1)

The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.

(Ord. C-5232 § 1 (part), 1976: prior code § 2780.2)

In a contested proceeding each side shall have these rights: to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues; to impeach any witness and to rebut the evidence against him. The presiding officer has the discretionary authority to: limit the number of witnesses to testify for each side where their testimony would be cumulative or repetitive in nature; require each side to appoint one (1) spokesman for purposes of cross-examination; limit or curtail any abusive, argumentative, repetitive, or otherwise irrelevant cross-examination; and in conformance with other rules in this Code place reasonable time limits on the right to cross-examine and the presenting of evidence.

(Ord. C-5232 § 1 (part), 1976: prior code § 2780.3)

A.

Whenever it is provided that a hearing governed by this Chapter shall be heard by the City Council, the Council may, in its discretion, either conduct the hearing itself or appoint a Hearing Officer to conduct the hearing.

B.

If a Hearing Officer conducts a hearing the following procedures shall apply:

Upon selection of a Hearing Officer, the City Clerk shall set the time and place for the hearing. Notice of hearing shall be sent to interested parties at least twenty (20) days before the hearing.

Any party may be represented by counsel; the hearings shall be public and shall be conducted pursuant to the provisions of this Chapter; and the City Clerk shall provide necessary tape recordings as may be reasonably required by the Hearing Officer.

The Hearing Officer shall determine the order of proceedings and shall afford all parties a reasonable opportunity to present any relevant evidence. If a party is absent, the Hearing Officer may proceed with the hearing in that party's absence if due notice was given and no explanation for the absence was given.

Other than at the hearing, there shall be no direct communication between the parties and the Hearing Officer on any matter related to the hearing. All oral or written communication from the parties shall be directed to the City Clerk for transmittal to the Hearing Officer.

The Hearing Officer shall render his decision not later than fifteen (15) days after the hearing is closed and shall immediately file a report with the City Council. At the request of the Hearing Officer, the City Council may extend this reporting period.

The report shall be in writing and shall include findings of fact, a summary of the relevant evidence, a statement of the issues, a resolution of the credibility of witnesses where there is conflicting testimony and a recommended decision. A copy of the report shall be served on all parties.

Upon receipt, the City Council shall set a time for a hearing to review and consider the report. Notice of hearing shall be sent to all interested parties at least ten (10) days before the hearing.

After review of the Hearing Officer's report, the City Council may adopt, reject or modify the recommended decision. In its discretion, the City Council may take additional evidence at the hearing or refer the case to the Hearing Officer with instructions to consider additional evidence.

Notice of the City Council's decision shall be served on all interested parties by the City Clerk and the decision takes effect upon such service. If notice is mailed, service is complete when mailed. Unless otherwise provided, this notice provision shall apply to all hearings including those not conducted by a Hearing Officer.

(Ord. C-6003 § 1, 1983)

A.

The City finds that, in order to promote integrity in its contracting processes and to protect the public interest, it shall be the City's policy to conduct business only with responsible contractors and vendors. Notwithstanding anything to the contrary in this Code, the provisions of this Section shall apply to a determination of the nonresponsibility of a contractor or vendor.

B.

Prior to awarding a contract, the City may determine that a contractor or vendor submitting a bid is nonresponsible for purposes of that bid. Before a determination of nonresponsibility is made there shall be a hearing by the Hearing Officer in accordance with the procedures stated in this Section.

C.

The City Manager or designee shall act as Hearing Officer and shall conduct the hearing. Where the Board of Water Commissioners is the awarding authority, the Hearing Officer shall be the General Manager of the Water Department or designee.

At least fourteen (14) days prior to the hearing before the Hearing Officer, the Hearing Officer shall give written notice to the contractor or vendor which notice shall contain the evidence to be presented by the City relating to the issue of nonresponsibility and the date, time and location of the hearing.

D.

At the hearing, the contractor and/or the contractor's attorney or the vendor and/or the vendor's attorney may submit documentary evidence and present witnesses. The City will submit into the record the evidence previously provided to the contractor or vendor and may present witnesses and offer rebuttal evidence. A recording of the hearing may be made at the option of the City or the contractor or vendor. The Hearing

Officer will decide the order of proceeding and any time limits on the presentation of evidence and witnesses. If the contractor or vendor or their attorney does not appear at the hearing, the Hearing Officer may proceed if proper notice to the contractor or vendor was given. Other than at the hearing, there shall not be any direct communication between the contractor or vendor or anyone acting on the contractor's or vendor's behalf and the Hearing Officer. All other communications to the Hearing Officer shall be in writing and shall be submitted to the City Clerk at least one (1) day prior to the date of the hearing, for delivery to the Hearing Officer.

E.

After the hearing, the Hearing Officer will promptly prepare a decision on the issue of nonresponsibility and deliver it to the contractor or vendor and to the City Attorney. The decision will state the basis for the determination of nonresponsibility or responsibility. The determination shall be based on the fitness and capacity of the contractor or vendor to satisfactorily perform the obligations of the contract, whether or not the contractor or vendor is qualified to perform those obligations, whether or not the contractor or vendor is trustworthy, and such other bases as may be relevant. The Hearing Officer may consider, among other things:

(1)

Any act or omission or pattern or practice of acts or omissions that negatively reflect on the contractor's or vendor's quality, fitness or capacity to perform;

(2)

Any act or omission that indicates a lack of integrity or honesty;

(3)

The making of a false claim against the City or any other public entity or engaging in collusion;

(4)

The contractor's or vendor's financial capability to perform;

(5)

The contractor's or vendor's experience with its sureties and insurance companies;

(6)

The contractor's or vendor's ability to perform on time and on budget, either in the present or as performed in the past;

(7)

Whether or not contractor or vendor has performed satisfactorily in the past on its contracts with the City or any other public entity, including, but not limited to, whether or not contractor or vendor has been in default under a contract with the City or any other public entity;

(8)

The contractor's or vendor's safety record;

(9)

The contractor's or vendor's history of claims, litigation, and termination or disqualification on public projects; and

(10)

Contractor's or vendor's contract management skills, including, but not limited to, the use of scheduling tools, submission of schedules, compliance with prevailing wage rates, and certification of accurate payroll documents.

F.

The City Clerk shall mail a copy of the decision to the contractor or vendor. The contractor or vendor shall have five (5) days to file a notice of appeal with the City Clerk. On receipt of such notice, the City Clerk shall set a time for a hearing on the appeal before the City Council and shall send written notice of the time of the appeal hearing to the contractor or vendor at least five (5) days prior to the hearing. The City Clerk shall set the time for the appeal hearing within fourteen (14) days after the City receives the notice of appeal but no sooner than five (5) days after the date shown on the notice to the contractor or vendor of the time of the appeal hearing. The City Clerk shall simultaneously send a copy of the decision of the Hearing Officer to the City Council.

If the Board of Water Commissioners is the awarding authority, the City Clerk shall immediately forward the notice of appeal to the General Manager of the Water Department who shall set the time for a hearing of the appeal before the Board of Water Commissioners and shall send written notice of the time of the appeal hearing to the contractor or vendor at least five (5) days prior to the hearing. The General Manager shall set the time for the appeal hearing on the date of the first meeting of the Board of Water Commissioners held after the General Manager receives the notice of appeal but which time is, nevertheless, at least five (5) days after the date shown on the notice to the contractor or vendor of the time of the appeal hearing. The General Manager shall simultaneously send a copy of the decision of the Hearing Officer to the Board of Water Commissioners.

G.

No new evidence or testimony may be presented by either the City or the contractor or vendor at the appeal hearing. The City Council or the Board of Water Commissioners, in its discretion, may limit the time allotted for an oral presentation by both the City and the contractor or vendor. At the conclusion of the appeal hearing, the City Council or the Board of Water Commissioners shall receive the decision of the Hearing Officer and either adopt the decision of the Hearing Officer or make its own finding on the issue of nonresponsibility for the purposes of the particular contract, and the City Clerk shall send a certified copy of the minute entry to the contractor or vendor with respect to decision of the City Council or the Secretary to the General Manager of the Water Department shall send a certified copy of the order of the Board to the contractor or vendor. Service of the minute entry or order shall be deemed made when it is deposited in the mail.

H.

The decision by the City Council or the Board of Water Commissioners on appeal to find a contractor or vendor nonresponsible for a particular contract is solely within the discretion of the body acting on behalf of the City.

(Ord. C-7805 § 1, 2002)

A.

Notwithstanding anything to the contrary in this Code, the provisions of this Section shall apply to the debarment of a contractor or vendor.

B.

The City may debar a contractor or vendor from submitting bids on future contracts even if that contractor or vendor has an existing contract with the City at the time a decision is made to debar the contractor or vendor from future bids. "Debarment" means that a contractor or vendor is prohibited from submitting a bid, from receiving a contract award, and from receiving a purchase order from the City.

C.

Before a contractor or vendor is debarred there shall be a hearing by the Hearing Officer in accordance with the procedures stated in this Section.

D.

The City Manager or designee shall act as Hearing Officer and shall conduct the hearing. Where the Board of Water Commissioners is the awarding authority, the Hearing Officer shall be the General Manager of the Water Department or designee.

At least fourteen (14) days prior to the hearing before the Hearing Officer, the Hearing Officer shall give written notice to the contractor or vendor which notice shall contain the evidence to be presented by the City relating to the issue of debarment and the date, time and location of the hearing.

E.

At the hearing, the contractor and/or the contractor's attorney or the vendor and/or the vendor's Attorney may submit documentary evidence and present witnesses. The City will submit into the record the evidence previously provided to the contractor or vendor and may present witnesses and offer rebuttal evidence. A recording of the hearing may be made at the option of the City or the contractor or vendor. The Hearing Officer will decide the order of proceeding and any time limits on the presentation of evidence and witnesses. If the contractor or vendor or their Attorney does not appear at the hearing, the Hearing Officer may proceed if proper notice to the contractor or vendor was given. Other than at the hearing, there shall not be any direct communication between the contractor or vendor or anyone acting on the contractor's or vendor's behalf and the Hearing Officer. All other communications to the Hearing Officer shall be in writing

and shall be submitted to the City Clerk at least one (1) day prior to the date of the hearing, for delivery to the Hearing Officer.

F.

After the hearing, the Hearing Officer will promptly prepare a decision containing a determination to debar or not and deliver it to the contractor or vendor and to the City Attorney. The decision will state the basis for the determination on debarment. The determination shall be based on the fitness and capacity of the contractor or vendor to satisfactorily perform the obligations of the contract, whether or not the contractor or vendor is qualified to perform those obligations, whether or not the contractor or vendor is trustworthy, and such bases as may be relevant. The Hearing Officer may consider, among other things:

(1)

Whether or not the contractor or vendor has previously been found to be nonresponsible;

(2)

The commission by the contractor or vendor of any act or omission or pattern or practice of acts or omissions that negatively reflects on the contractor's or vendor's quality, fitness or capacity to perform;

(3)

The commission of any act or an omission that indicates a lack of integrity or honesty;

(4)

The making of a false claim against the City or any other public entity or engaging in collusion;

(5)

The contractor's or vendor's financial capability to perform;

(6)

The contractor's or vendor's experience with its sureties and insurance companies;

(7)

The contractor's or vendor's ability to perform on time and on budget, either in the present or as performed in the past;

(8)

Whether or not contractor or vendor has performed satisfactorily in the past on its contracts with the City or any other public entity, including, but not limited to, whether or not contractor or vendor has been in default under a contract with the City or any other public entity;

(9)

The contractor's or vendor's safety record;

(10)

The contractor's or vendor's history of claims, litigation, and termination or disqualification on public projects; and

(11)

Contractor's or vendor's contract management skills, including, but not limited to, use of scheduling tools, submission of schedules, compliance with prevailing wage rates, and certification of accurate payroll documents.

G.

The City Clerk shall mail a copy of the decision to the contractor or vendor. The contractor or vendor shall have five (5) days to file a notice of appeal with the City Clerk. On receipt of such notice, the City Clerk shall set a time for a hearing on the appeal before the City Council and shall send written notice of the time of the appeal hearing to the contractor or vendor at least five (5) days prior to the hearing. The City Clerk shall set the time for the appeal hearing within fourteen (14) days after the City receives the notice of appeal but no sooner than five (5) days after the date shown on the notice to contractor or vendor of the time of the appeal hearing. The City Clerk shall simultaneously send a copy of the decision of the Hearing Officer to the City Council.

If the Board of Water Commissioners, the City Clerk shall immediately forward the notice of appeal to the General Manager of the Water Department who shall set the time for a hearing of the appeal before the Board of Water Commissioners and shall send written notice of the time of the appeal hearing to the contractor or vendor at least five (5) days prior to the hearing. The General Manager shall set the time for the appeal hearing on the date of the first meeting of the Board of Water Commissioners held after the General Manager receives the notice of appeal but which time is, nevertheless, at least five (5) days after the date shown on the notice to the contractor or vendor of the time of the appeal hearing. The General Manager shall simultaneously send a copy of the decision of the Hearing Officer to the Board of Water Commissioners.

H.

No new evidence or testimony may be presented by either the City or the contractor or vendor at the appeal hearing. The City Council or the Board of Water Commissioners, in its discretion, may limit the time allotted for an oral presentation by both the City and the contractor or vendor. At the conclusion of the appeal hearing, the City Council or the Board of Water Commissioners shall receive the decision of the Hearing Officer and either adopt the decision of the Hearing Officer or make its own finding on the issue of nonresponsibility for the purposes of the particular contract, and the City Clerk shall send a certified copy of the minute entry to the contractor or vendor with respect to decision of the City Council or the Secretary to the General Manager of the Water Department shall send a certified copy of the order of the Board to the contractor or vendor. Service of the minute entry or order shall be deemed made when it is deposited in the mail.

I.

The decision by the City Council or the Board of Water Commissioners on appeal to debar a contractor or vendor is solely within the discretion of that body acting on behalf of the City. The City Council or Board of Water Commissioners shall determine the length of time that the contractor or vendor is debarred, which time period may not exceed three (3) years.

(Ord. C-7805 § 2, 2002)