Chapter 5 — HEARING OFFICER OF THE COUNTY OF SAN JOAQUIN

Editor's note— Ord. No. 4514, adopted Aug. 7, 2018, repealed the former Ch. 5, §§ 2-3300—2-3307, and enacted a new Ch. 5 as set out herein. The former Ch. 5 pertained to similar subject matter and derived from Ord. No. 4477, § 1, adopted May 24, 2016.

2-3300 - DEFINITIONS.

The following definitions apply to this chapter:

(a)

"Hearing Officer" means a qualified person selected to be a Hearing Officer pursuant to this chapter.

(b)

"Administrative Enforcement" means actions taken by the County to enforce violations of this code pursuant to Title 1, Division 2.

(Ord. No. 4514, 8-7-2018)

2-3301 - POSITION OF HEARING OFFICER CREATED.

Pursuant to Section 27720 et seq. of the Government Code, the Board hereby creates the position of Hearing Officer of the County for the purpose of adjudicating enforcement actions or other disputes regarding County determinations under this code as appointed by the Board.

(Ord. No. 4514, 8-7-2018)

2-3302 - HEARING OFFICER'S AUTHORITY.

A Hearing Officer shall have the authority to conduct hearings pursuant to this chapter in any proceeding under State law or this code that provides that a hearing be held and that findings of fact or conclusions of law be made by the County or as otherwise engaged by the Board.

(Ord. No. 4514, 8-7-2018)

2-3303 - POWERS AND DUTIES OF HEARING OFFICER.

A Hearing Officer shall have those powers set forth in Sections 27721 and 27722 of the Government Code and is authorized to:

(a)

Conduct hearings specified in this code;

(b)

Issue subpoenas; receive evidence; administer oaths; rule on questions of law and the admissibility of evidence;

(c)

Grant continuances based on good cause shown by one (1) of the parties to the hearing or upon their own independent determination that due process has not been adequately afforded to a party;

(d)

Exercise continuing jurisdiction over the subject matter of the hearing for the purposes of granting a continuance;

(e)

Make findings of fact and legal conclusions;

(f)

Rule upon the merits of the proceeding, including, but not limited to, an administrative enforcement hearing or an administrative appeal hearing, upon consideration of the evidence submitted and then prepare and issue a written decision and order, including, but not limited to;

(1)

Orders that are necessary to remedy any violations identified in a notice issued in accordance with this code, including authorizing the enforcing official to summarily abate the violation and/or impose conditions for the continued use of the subject property or activity;

(2)

Impose, modify, or deny administrative penalties. In those cases where the administrative penalty is not fixed, but is subject to a range as otherwise established by this code, the Hearing Officer may set, increase, or decrease, according to proof, the amount of administrative fine, charge, or the daily rate of such administrative fine or penalty;

(3)

Determine the date upon which the accrual of administrative fines, charges, or penalties shall begin and where the corrections are subsequently completed to the County's satisfaction, the date upon which the accrual of such fines, charges, or penalties shall end. If the violations have not been so corrected, the daily accrual of the administrative fines, charges, or penalties accrued shall continue until the violations are corrected or the legal maximum limit is reached;

(4)

Determine amounts and order payment of abatement costs, administrative costs, and/or administrative fines, charges, or penalties;

(5)

Imposition of a lien, special assessment, special collection, or other collection process against a responsible party and any affected property, as appropriate after hearing for objections to the filing of liens or special assessments on real property; and

(6)

Deferral of the effective date of orders of abatement in cases of extreme hardship to owner-occupants or tenants of dwellings.

(g)

Prepare a record of the proceedings.

(Ord. No. 4514, 8-7-2018)

2-3304 - HEARING OFFICER QUALIFICATIONS.

A Hearing Officer must be an attorney admitted to practice before the courts of the State for at least five (5) years prior to appointment. A Hearing Officer must reside in the County and have worked as an attorney in the County for at least three (3) years. A Hearing Officer shall not be qualified if they have served as a legal representative for, or were employed by, the County within the six (6) months immediately preceding their appointment.

(Ord. No. 4514, 8-7-2018)

2-3305 - APPOINTMENT OF HEARING OFFICER.

Each applicant to the position of Hearing Officer shall submit proof of qualifications to the Clerk of the Board. Selected qualified applicants shall be appointed to a panel of Hearing Officers administered by the Clerk of the Board.

(Ord. No. 4514, 8-7-2018)

2-3306 - SELECTION OF HEARING OFFICER.

A party appealing (1) an administrative action by the County relating to a violation of this code issued to them, shall select a Hearing Officer from the panel to serve as a Hearing Officer for their appeal. In the event that the selected Hearing Officer is unable to serve or is disqualified, then the appellant shall select a replacement Hearing Officer from the panel of Hearing Officers or, alternatively, select an Administrative Law Judge through the State of California Office of Administrative Hearings.

(Ord. No. 4514, 8-7-2018)

2-3307 - DISCLOSURE AND DISQUALIFICATION.

A Hearing Officer shall disqualify themselves from serving as Hearing Officer in a particular matter where they have a conflict of interest within the meaning of the Political Reform Act (Section 87100 et seq. of the Government Code), and shall otherwise comply with the disqualification provisions of the California Code of

Judicial Ethics, including but not limited to, Canon 3.E. Any party may raise objections to the Hearing Officer for the record and ask that the Hearing Officer disqualify themselves. The Hearing Officer shall make the decision to grant or deny the request for disqualification.

(Ord. No. 4514, 8-7-2018)

2-3308 - REMOVAL/REVOCATION OF HEARING OFFICER FROM PANEL.

A Hearing Officer may be removed from the Hearing Officer Panel as follows:

(a)

A Hearing Officer may be removed from the position of Hearing Officer by the County at any time for cause.

(b)

If a Hearing Officer is disbarred, suspended, or put on involuntary inactive status by the California State Bar, or resigns membership to the California State Bar, then the Hearing Officer's appointment will be automatically revoked.

(c)

If a Hearing Officer is removed, or their appointment automatically revoked, then the non-County party participating in the hearing shall select a replacement Hearing Officer from the panel of Hearing Officers or, alternatively, select an Administrative Law Judge through the State of California Office of Administrative Hearings.

(Ord. No. 4514, 8-7-2018)

2-3309 - TERM OF HEARING OFFICER.

A Hearing Officer shall serve for four (4) years from appointment. If a Hearing Officer is in the process of hearing a matter when their term expires then that Hearing Officer shall continue to hear that matter until it is complete.

(Ord. No. 4514, 8-7-2018)

2-3310 - COMPENSATION OF HEARING OFFICER.

A Hearing Officer shall be compensated for their time spent on exercising the authority and duties of a Hearing Officer at the rate of two hundred dollars ($200.00) per hour and may be reimbursed for actual and necessary expenses. Expenses exceeding two hundred fifty dollars ($250.00) must be approved in advance by the Board or the director of the department taking the administrative action.

(Ord. No. 4514, 8-7-2018)

2-3311 - ADMINISTRATIVE HEARING PROCEDURES.

A Hearing Officer shall conduct and preside over hearings pursuant to these procedures unless agreed in writing by the parties to the proceeding or otherwise specified in this Code:

(a)

Failure to Appear: Failure to appear at the hearing shall constitute a waiver of any right to object to the decision of the Hearing Officer.

(b)

Representation of Parties: During the hearing the parties may be represented by counsel or another representative of the party's choice.

(c)

Subpoenas: The Hearing Officer may issue subpoenas and subpoenas duces tecum for the attendance of witnesses and the production of documents before and during the hearing at the request of any party or at their discretion. Compliance with Section 1985 et seq. of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena duces tecum. Any amount required to be paid to witnesses appearing pursuant to a subpoena under Section 1985 et seq. shall be paid by the party at whose request the witness was subpoenaed or by the Hearing Officer as a reimbursable expense if they issued the subpoena at their discretion.

(d)

Witnesses: Each party shall have the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach any witness, and to rebut evidence.

(e)

Oath/Affirmation: In any proceeding before the Hearing Officer, oral testimony offered as evidence shall be taken only on oath or affirmation administered by the Hearing Officer. The witness, or witnesses together, shall be asked to raise their right hand and to swear, or at their election affirm, that the testimony they shall give will be the truth, the whole truth, and nothing but the truth.

(f)

Official Notice: At the request of any party, the Hearing Officer may take official notice of any fact that may be judicially noticed by the courts of California. The Hearing Officer shall inform the parties of the matters to be noticed and those matters shall be noted in the record. Each party shall be given a reasonable opportunity to refute any request for the Hearing Officer to take official notice.

(g)

Evidence: The technical rules relating to evidence, including but not limited to the California Evidence Code, will not apply during the hearing. The Hearing Officer may allow any relevant evidence to be admitted. The Hearing Officer may reject any evidence they deem to be unreliable, irrelevant, or unduly repetitious. The Hearing Officer shall not consider any oral or documentary evidence presented to them outside of the hearing or during inspection of the premises made pursuant to these procedures unless the parties stipulate in writing to such evidence and the stipulation is made part of the hearing record.

(h)

Inspection: The Hearing Officer may inspect any subject premises provided that they (1) give reasonable notice to the parties of the date and time of the inspection, (2) the parties are given an opportunity to be present during the inspection, (3) the Hearing Officer states on the record any material facts observed and their conclusions drawn therefrom, and (4) allows each party the right to rebut or explain any of the Hearing Officer's observations and conclusions.

(i)

Briefs: The Hearing Officer may request that the parties to the appeal submit written briefs or statements of their position prior to the hearing. Any such briefs shall be provided to the Hearing Officer and all parties.

(j)

Order of Proceeding: The Hearing Officer shall follow this order of proceeding in each hearing. The Hearing Officer may vary this order only if they determine, and state on the record, that special circumstances exist which justify the variance:

(1)

Announce the beginning of the proceedings and begin the tape recording of the hearing;

(2)

Identify the hearing;

(3)

Request that all attendants at the hearing state their names;

(4)

Explain to attendants how the hearing will proceed and address any necessary notifications required by these procedures;

(5)

Hear any preliminary motions or objections;

(6)

Allow parties to make opening statements;

(7)

Allow County to present evidence and witnesses;

(8)

Allow appellant to present evidence and witnesses;

(9)

Allow parties to present rebuttal evidence and witnesses;

(10)

Allow parties to make closing statements;

(11)

Explain the issuance of the final written decision and appeals procedures; and

(12)

Close the hearing and terminate the tape recording of the hearing.

(k)

Privilege: The California rules of privilege shall apply during the hearing.

(l)

Recording: The Hearing Officer shall record the hearing with an electronic recording device and make that recording available to all parties by request as a recording. Any party may, at their own expense provide for the taking of the testimony by a qualified stenographic reporter.

(m)

Continuance: The County Hearing Officer may grant continuances from time to time upon request and for good cause, or upon their own motion.

(n)

Motions: Any motions by the parties shall be in writing or made orally on the record during the hearing and shall clearly state the action requested and the grounds relied upon.

(o)

Burden of Proof: The County shall have the burden of proof. The proof required shall be a preponderance of the evidence.

(p)

Communication with the Hearing Officer: All substantive oral communications with the Hearing Officer shall be held in the presence of all parties. All written communications shall be served on all parties. The Hearing Officer shall disclose any unilateral communications with any party during the hearing.

(q)

Disclosure and Disqualification: A Hearing Officer shall disqualify themselves from serving as Hearing Officer in a particular matter where they have a conflict of interest within the meaning of the Political Reform Act (Sections 87100 et seq. of the Government Code), and shall otherwise comply with the disqualification provisions of the Code of Judicial Ethics, Canon 3.E. Any party may raise objections for the record to the

Hearing Officer and ask that the Hearing Officer disqualify themselves. The Hearing Officer shall make the decision to grant or deny the request for disqualification.

(r)

Final Written Decision: At the conclusion of the hearing, the Hearing Officer shall issue a written decision that affirms, reverses, or modifies the County's determination based on their review of all relevant documents, evidence, and testimony.

(1)

The Hearing Officer's decision shall identify the "prevailing party" in the appeal and award to that party reasonable costs and attorney's fees. No party's fees shall be awarded at an hourly rate greater than the hourly rate charged by the County for a Deputy County Counsel IV attorney.

(2)

The Hearing Officer shall send their written decision to the Clerk of the Board and all parties by registered or certified mail within ten (10) days of the conclusion of the hearing, unless the appealing party agrees in writing to a longer period.

(3)

The Hearing Officer's written decision shall be final and shall be enforceable thirty-one (31) days after the Clerk of the Board receives it. Receipt will be presumed to have occurred five (5) days after the Hearing Officer mailed the decision to the Clerk of the Board.

(s)

Administrative Record: The official administrative record of an appeal proceeding heard by a Hearing Officer shall be comprised of the following: all written notices; all briefs, motions, responses, or objections filed with the Hearing Officer prior to or during the proceeding; all exhibits admitted as evidence during the proceeding; a list of participants present at any session of the hearing; the recording of the proceeding; and, the Hearing Officers' rulings, including all findings, decisions, and orders. The Hearing Officer or County shall maintain the Official Record for five years. The Hearing Officer shall provide a copy of the official record, or requested portion thereof, to any party upon written request and payment by the requesting party of the actual costs of duplication.

(Ord. No. 4514, 8-7-2018)

2-3312 - INDEPENDENT AUTHORITY.

The employment, performance evaluation, compensation, and benefits of a Hearing Officer shall not be directly or indirectly conditioned upon the outcome of hearings conducted, including, but not limited to, the finding of violations and/or the amount of any penalties imposed or assessed.

(Ord. No. 4514, 8-7-2018)

2-3313 - CONDUCT OF WITNESSES.

If during a proceeding conducted under this chapter any person disobeys or resists any lawful order, refuses to respond to a subpoena, refuses to take the oath or affirmation as a witness, thereafter refuses to be examined, engages in misconduct, or obstructs the proceeding, a Hearing Officer shall certify the facts to the Superior Court of the County to initiate proceedings pursuant to Section 25173 through 25175 of the Government Code.

(Ord. No. 4514, 8-7-2018)

2-3314 - EFFECT ON EXISTING LAW.

The provisions of this chapter constitute an alternative to, and do not supersede, any other provision of law specifying that any matter may be heard or determined by a Hearing Officer.

(Ord. No. 4514, 8-7-2018)