The Administrative Hearing Officer in the City of San Bernardino, California: Origin of the Position And Legal Basis
May 25, 2011 Leave a comment
Many cities have Administrative Hearing Officers hear appeals and other due process hearings. When I was a Deputy City Attorney for the City of San Bernardino, the City already had the process in place. I helped draft the administrative citation ordinance for the City of Redlands when I was the Assistant City Attorney, and that included an administrative hearing officer. I have also served as an administrative hearing officer, so I have some insight into the process.
Administrative hearing officers have taken over some of the duties once handled by city councils, planning commissions, or other appointed boards. This post will explain the legal basis for the administrative hearing officer in the City of San Bernardino.
There are some due process considerations under the United States Constitution, including a line of cases from the 9th Circuit Court of Appeals. I will discuss those some other time.
If you search the San Bernardino Municipal Code Index, at least the version online, you will find one entry for Hearing Officer under that term: San Bernardino Municipal Code section 8.80.103, in context of storm water. You will find one entry for Administrative Hearing Officer: San Bernardino Municipal Code section 9.93.015. You will also find other terms, such as Administrative Law Officer: San Bernardino Municipal Code section 9.92.020. Also, you will find appeal of a hearing officer’s decision at San Bernardino Municipal Code section 6.14.100 (in the context of animal control administrative citations). You can find the term Hearing Officers under the Chapter related to the Planning Commission and Board of Building Commissioners (referred to as the BBC when I was a Deputy City Attorney): San Bernardino Municipal Code sections 2.17.080 to 2.17.110.
However, when I became a Deputy City Attorney at the City of San Bernardino in 2001, the hearing officer’s powers largely derived from another section: San Bernardino Municipal Code section 8.30.050 Conduct of Hearing. Enacted in 1991, it states (according to the version available online as of 5/25/2011):
The hearing to determine whether a nuisance exists shall be conducted by the City Administrator or his or her duly authorized representative, who shall act as the hearing officer. At the hearing, the City Administrator or his or her duly authorized representative shall consider all relevant evidence, including, but not limited to, applicable staff reports. He or she shall give any interested person a reasonable opportunity to be heard in conjunction therewith. Based upon the evidence so presented, the City Administrator or his or her duly authorized representative shall determine whether a nuisance within the meaning of this Chapter exists. The hearing shall not be conducted according to formal rules of evidence or procedure but shall be conducted in a manner generally complying with the Administrative Procedure Act at Government Code Section 11370, et seq.
When I started in February 2001, the Hearing Officer was an attorney with a contract with the City, selected by then-City Administrator Fred Wilson. Along the way, the City Charter was amended by popular vote creating a City Manager, in a hybrid Strong Mayor/City Manager form of government. Apparently, this code section was not cleaned up to amend it to read City Administrator.
In January 2002, Title 6 (concerning animals) was amended completely. That included a provision allowing administrative citations (as opposed to field citations / notices to appear in San Bernardino Superior Court). San Bernardino Municipal Code section 6.14.080(B):
Hearing Officer. The Mayor shall designate the Hearing Officer for the administrative citation hearing.
In September 2003, administrative citations were introduced for other parts of the San Bernardino Municipal Code (specifically Title (though the codified version says Chapter) 5, 8, 9 or 19 of the San Bernardino Municipal Code. San Bernardino Municipal Code section 9.92.030. However, the definition of Administrative Law Officer later changed to its current version in section 9.92.030:
9.92.020 Administrative Law Officer. The position of Administrative Law Officer is hereby created. The appointment, qualifications, disqualification, and powers of the Administrative Law Officer shall be the same as those provided for the Administrative Hearing Officer as stated in San Bernardino Municipal Code Chapter 9.93.
Administrative Civil Penalties were added in 2008, and section 9.92.020 was amended. The Administrative Civil Penalties Ordinance, found in Chapter 9.93 of the San Bernardino Municipal Code has this to say about the Administrative Hearing Officer:
Appointment and Qualifications of Administrative Hearing Officer. An Administrative Hearing Officer(s) shall be appointed by the Mayor and Common Council. The term of the Administrative Hearing Officer(s) shall be three (3) years. The number of Administrative Hearing Officer positions and compensation shall be approved by the Mayor and Common Council. The employment, performance evaluation, compensation and benefits of the Administrative Hearing Officer shall not be directly or indirectly conditioned upon the amount of Administrative Civil Penalties or Administrative Costs upheld, awarded, imposed, or assessed by the Administrative Hearing Officer. The Administrative Hearing Officer(s) shall be an attorney admitted and eligible to practice law in the State of California in accordance with State law, or a judge retired from the California court system, or a commissioner retired from the California court system. San Bernardino Municipal Code section 9.93.090.
In practice, the same person (or more accurately, classes of people) conducts the nuisance hearings described in Chapter 8.30, the Animal Control administrative citation appeals in Chapter 6.14, the administrative citation appeals in Chapter 9.92, and the administrative civil penalty appeals in Chapter 9.93. Therefore, the “appointment” process described in San Bernardino Municipal Code section 9.93.090 is used for all four kinds of hearings.
There are other administrative hearings associated with the City of San Bernardino (parking ticket appeals, seizures of transient merchant merchandise) that are not handled by the administrative hearing officer and appear elsewhere in the San Bernardino Municipal Code.