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HomeMy WebLinkAboutItem 5a - Orientation and Training Item 5a Administrative Review Board Agenda Report For Agenda of: 3/6/2024 Item Number: 2 Estimated Time: 30 minutes FROM: Mark Amberg, Temporary Assistant City Attorney Prepared By: Sarah Zion, Legal Assistant SUBJECT: ORIENTATION AND TRAINING RECOMMENDATION Review and ask questions regarding the orientation and training materials. DISCUSSION Introductions. Temporary Assistant City Attorney and advisor to the Board Mark Amberg to speak to the Board regarding their role in the administrative citation review process , City policies on Anti-Discrimination and Harassment, Conflicts of Interest and Drug Free Workplace, and to answer any questions they may have about that process, or the materials distributed with this agenda item. ATTACHMENTS A – Anti-Discrimination and Harassment Policy B – Drug Free Workplace Policy C – Due Process Primer D – SLOMC1.24.130 ARB Decision Contents E – San Luis Obispo Municipal Code 2.36.380 Page 7 of 31 Page 8 of 31 ANTI-DISCRIMINATION AND UNLAWFUL HARASSMENT POLICY All covered individuals are encouraged to report any conduct that is believed to violate this policy as soon as possible. Policy: It is the policy of the City of San Luis Obispo that employees have a working environment free of unlawful discrimination and harassment. Discrimination against or harassment of an employee, job applicant, contractor, advisory body member, elected or appointed official or a member of the public by an employee, job applicant, contractor, advisory body member, elected or appointed official or member of the public on the basis of race, religion, sex (including gender, gender identity, gender expression, transgender, pregnancy and breastfeeding), national origin, ancestry, disability, medical condition, genetic characteristics or information, marital status, age (40 years and older), or sexual orientation (including homosexuality, bisexuality, or heterosexuality), military or veteran status, denial of family and medical care leave or any other protected category as defined below, is strictly prohibited and will not be tolerated. The work environment should be business-like and assure fair, courteous treatment for employees and the public we serve. Discrimination and harassment may violate both State and Federal law, but conduct need not arise to the level of violation of law to violate this Policy. This type of employee misconduct could decrease work productivity, undermine the integrity of employment relationships, decrease morale and cause severe emotional and physical stress. All employees will be informed of the harassment and discrimination complaint process and be assured of their right to file complaints without fear of reprisal. All employees are strongly encouraged to attend, and supervisors shall attend training every two years regarding behavior that constitutes prohibited workplace harassment and discrimination. In addition, employees appointed as a new hire or promoted from a non-supervisory position to a supervisory position will be trained within 6 months of the appointment- or promotion. Employees should also understand the importance of reporting incidents promptly to assure that further incidents do not occur. Department Heads will convey to their employees strong disapproval of discrimination and harassment. All employees, including supervisors and managers, should be clearly informed regarding behavior that constitutes prohibited harassment or discrimination or creates the perception of harassment or discrimination and the consequences of such actions, including disciplinary action. Employees also should be aware that ignoring harassment or discrimination complaints is also grounds for disciplinary action. Retaliation against a person for filing or otherwise making a harassment or discrimination complaint in good faith, or other good faith involvement in a harassment or discrimination investigation, is prohibited. Employees found to be retaliating against another employee shall be subject to disciplinary action. Approved by City manager on 10/04/13 Revised 03/2014 Page 1 of 5 Page 9 of 31 Anti-Discrimination and Unlawful Harassment Policy Definitions: A.Protected Category: includes race, religion, color, sex (including gender, gender identity, gender expression, transgender, pregnancy and breastfeeding), sexual orientation (including heterosexuality, homosexuality, and bisexuality), national origin, ancestry, citizenship status, marital status, pregnancy, age (40 years and older), medical condition, genetic characteristics or information, physical or mental disability, military or veteran status, or denial of family and medical care leave. B.Covered Individuals: This Policy prohibits the employer, employees, job applicants, contractors, advisory body members, elected or appointed officials or members of the public from harassing or discriminating against employees, job applicants, contractors, advisory body members, elected or appointed officials or members of the public because of: 1) an individual’s protected category or characteristic; 2) the perception that an individual is a member of a protected category or has a protected characteristic; or 3) the individual associates with a person who has or is perceived to have a protected category. C.Discrimination: Treating covered individuals differently because of the individual’s protected category as defined in this Policy. D.Harassment may include, but is not limited to, the following types of behavior that is taken because of a person’s protected category. Note that harassment is not limited to conduct that employees take. Under certain circumstances, harassment can also include conduct taken by those who are not employees, such as persons providing services under contracts or even members of the public: ♦Speech, such as epithets, derogatory comments or slurs, and propositioning on the basis of a protected category. This includes, without limitation, inappropriate comments on appearance, including dress or physical features, or dress consistent with gender identification and race-oriented stories or jokes. ♦Physical acts, such as assault, impeding or blocking movement, offensive touching, or any physical interference with normal work or movement when directed at an individual on the basis of a protected category. This includes pinching, grabbing, patting, propositioning, leering, or making explicit or implied threats or promises in return for submission to physical acts. ♦Visual acts, such as derogatory posters, cartoons, drawings, pictures, emails, text messages, or other electronic means of communication related to a protected category. ♦Unwanted sexual advances, requests for sexual favors and other acts of a sexual nature, where submission is made a term or condition of employment, where submission to or rejection of the conduct is used as the basis for employment decisions, or where the conduct is intended to or actually does unreasonably interfere with an individual’s work performance or create an Approved by City manager on 10/4/13 Revised 03/2014 Page 2 of 5 Page 10 of 31 Anti-Discrimination and Unlawful Harassment Policy intimidating, hostile, or offensive working environment. ♦Adverse employment actions carried out on account of a protected category. ♦Adverse employment actions carried out in retaliation for good faith submission of harassment or discrimination charges, or good faith participation in an investigation made pursuant to this policy. E.Retaliation: Any adverse conduct taken because an employee, job applicant, contractor, advisory body member, elected or appointed official or member of the public has reported harassment or discrimination, or has participated in the complaint and investigation process described herein, is prohibited. “Adverse conduct” includes but is not limited to: taking sides because an individual has reported harassment or discrimination, spreading rumors about a complainant or investigation participant, shunning and avoiding an individual who reports harassment or discrimination, or real or implied threats of intimidation to prevent an individual from reporting harassment or discrimination. The following individuals are protected from retaliation: those who make good faith reports of harassment or discrimination or who participates in the complaint or investigation process, and those who associate with an individual who is involved in reporting harassment or discrimination or who participates in the complaint or investigation process. Complaint Procedure: A.Any employee, job applicant, contractor, advisory body member, elected or appointed official, or member of the public who feels he/she has been the victim of harassment or discrimination as defined above should contact, either verbally or in writing, any of the following. (There is no need to follow the chain of command): 1)Immediate supervisor; 2) Any supervisor or manager within or outside of the department; 3)Department Head; or 4)Director of Human Resources. The initial complaint can be verbal or written, but a written and signed complaint should be submitted by the complaining employee within five (5) working days of the initial complaint so an investigation can begin promptly. The written complaint should include as much detail a possible, such as names of those involved, witnesses, nature of the problem as well as the desired resolution. The City discourages anonymous complaints, because anonymity may compromise the City’s ability to conduct a thorough investigation. However, any covered individual who is uncomfortable disclosing his or her identity may file a complaint anonymously. B.Any supervisor or department head who receives a complaint should notify the Approved by City manager on 10/4/13 Revised 03/2014 Page 3 of 5 Page 11 of 31 Anti-Discrimination and Unlawful Harassment Policy Director of Human Resources immediately, unless the Director is the subject of the complaint in which case the department head should notify the City Manager or City Attorney immediately. The Director of Human Resources will advise the City Manager of the receipt of all harassment or discrimination complaints. C.Upon receipt of the written complaint, the Department of Human Resources, or other authority receiving notice, will conduct (or refer to others to conduct) an investigation of the charges, including contacting the person who allegedly engaged in the prohibited behavior, informing him/her of the basis of the complaint, and providing him/her an opportunity to respond. The Department of Human Resources may attempt an informal resolution of the complaint. If the complaint is incomplete or contains insufficient information to conduct an investigation, the Department of Human Resources will ask for more information from the claimant, or find that the claim is unfounded. D. All City employees must cooperate fully, and be truthful and forthright when providing information in response to a City investigation under this policy. E.The Department of Human Resources, , or other authority receiving notice, shall notify the complainant(s) and respondent(s), Department Head, the City Manager, and other appropriate persons, regarding the disposition of complaints made pursuant to this policy. If discipline is imposed, the level of discipline will not be communicated to the complainant. F.Every possible effort will be made to assure the confidentiality of complaints made under this Policy. Complete confidentiality cannot occur, however, due to the need to fully investigate and the duty to take effective remedial action. As a result, confidentiality will be maintained to the extent possible. An individual who is interviewed during the course of an investigation is prohibited from discussing the substance of the interview, except as otherwise directed by a supervisor or the Human Resources Director. Any individual who discusses the content of an investigatory interview will be subject to discipline or other appropriate sanction. The employer will not disclose a completed investigation report except as it deems necessary to support a disciplinary action, to take remedial action, to defend itself in adversarial proceedings, or to comply with the law or court order. G.Regardless of whether a formal complaint is submitted, the City will take a proactive approach to potential Policy violations and will conduct an investigation if its officers, supervisors, or managers become aware that harassment, discrimination, or retaliation may be occurring. H.Option to Report to Outside Administrative Agencies: An individual has the option to report harassment, discrimination, or retaliation to the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). These administrative agencies offer legal remedies and a complaint process. The nearest offices are listed in the government section of the telephone book or employees can check the posters that are located on City bulletin boards for office locations and telephone numbers. Approved by City manager on 10/4/13 Revised 03/2014 Page 4 of 5 Page 12 of 31 Anti-Discrimination and Unlawful Harassment Policy Remedial Action: 1. If harassment or discrimination is found to have occurred in violation of this policy, the City shall take action to ensure or confirm that the harassment or discrimination at issue is stopped. The City may take whatever measures are appropriate to ensure its workplaces remain free of unlawful discrimination or harassment. 2.Employees found to have engaged in discrimination or harassment covered by this policy may be subject to disciplinary action up to and including termination of employment. The severity of the discipline will be determined by the severity and/or frequency of the offense. 3.Employees found to have been dishonest or uncooperative during an investigation made pursuant to this policy may be subject to disciplinary action up to and including termination of employment. Appeal: 1. Disciplinary action taken under this procedure may be appealed with or without representation subject to appeal or grievance procedures indicated in the appropriate Memorandum of Agreement or Personnel Rules and Regulations. 2. If the employee who submitted the complaint is not satisfied with the disposition of the investigation, he or she may submit an appeal to the City Manager within ten (10) calendar days from receipt of the conclusion of the Director of Human Resources, , or other authority. The appeal shall be in writing, verified under penalty of perjury, and contain an explanation why the complainant believes the pending disposition is incorrect. Failure to appeal within the ten day period means that the earlier disposition is final. The City Manager (or his/her designee) shall respond in writing after considering the appeal. 3. Complainants may appeal the City Manager’s disposition of the investigation to the Personnel Board within ten (10) calendar days from receipt of the conclusion of the City Manager (or his/her designee). Failure to appeal within the ten day period means that the City Manager’s disposition is final. Dissemination of Policy: This policy shall be disseminated to all City employees. The City may require employees to sign an acknowledgment of the policy’s receipt, which may be maintained in the employee’s personnel file. Approved by City manager on 10/4/13 Revised 03/2014 Page 5 of 5 Page 13 of 31 Page 14 of 31 CITY OF SAN LUIS OBISPO DRUG-FREE WORKPLACE POLICY PURPOSE It is the policy of the City of San Luis Obispo to maintain a safe, healthful and productive work environment for all employees. To that end, the City will act to eliminate the unlawful use of drugs and other controlled substances including, but not limited to, alcohol and prescription drugs, which could impair an employee’s ability to safely and effectively perform the functions of his/her job an/or threaten the safety of co-workers. All City employees, regardless of their employment status (i.e. regular, temporary, contract, etc.), are subject to this policy. POLICY 1.Employees are expected and required to report to work in appropriate mental and physical condition to perform their jobs. The unlawful manufacture, distribution, dispensation, possession or use of drugs or other controlled substances, including alcohol, on City premises or while conducting City business off premises is absolutely prohibited. 2.The City will establish a drug-free awareness program to inform employees about: a. The dangers of drug abuse in the workplace; b.The City’s policy of maintain a drug-free workplace; c.Available drug counseling, rehabilitation and employee assistance programs; and d.The penalties that may be imposed on employees for drug abuse violations. 3.This policy is intended to assure that no employee with an alcohol or drug problem will have his or her job security or promotional opportunities jeopardized by a request for help. 4.Employees will, as a condition of employment, abide by the terms of this policy and notify the City, within five (5) days, of any criminal drug statute conviction which he/she receives for a violation occurring in the workplace. 5.The City shall notify any appropriate federal granting agency of any criminal convictions of an employee for illegal drug activity in the workplace within 10 days of the City’s notification of such conviction. Otherwise, the individual’s rights to confidentiality and privacy are recognized. The pertinent information and records of employees with an alcohol or drug problem will be preserved in the same manner as all other confidential records. 6.The City shall initiate action after receiving notice of conviction of an employee which may result in required participation in a treatment program and/or progressive discipline, up to and including termination. 7.The City shall make a good faith effort to continue maintaining a drug-free workplace through implementation of this policy. 8.Implementation of this policy will not require or result in any special regulations, privileges, or exemptions from the standard administrative practices applicable to job performance requirements. Page 15 of 31 DRUG-FREE WORKPLACE NOTICE TO EMPLOYEES All employees are hereby notified that it is a violation of the City of San Luis Obispo's Drug-Free Workplace Policy for any employee at the workplace to unlawfully manufacture, distribute, dispense, possess or use any narcotic drug, hallucinogenic drug, amphetamine, barbiturate, marijuana or other controlled substance including, but not limited to, alcohol and prescription drugs, as defined in the Drug- Free Workplace Act of 1988. Violations of this policy by employees may result in discipline, up to and including termination. "Workplace" is defined as any place where City work is performed, including a City building or site, or any City-owned vehicle. As an employees, you will, as a condition of employment, abide by the terms of this policy and notify the City, within five (5) days, of any criminal drug statute conviction which you receive for a violation occurring in the workplace. The following are among the drug counseling, rehabilitation and/or other agency assistance programs available locally: City of San Luis Obispo Employee Assistance Program (800) 227-1060 San Luis Obispo County Drug Program (805) 781-4753 San Luis Obispo County Alcohol Services (805) 781-4275 Narcotics Anonymous (805) 549-7730 Alcoholics Anonymous (805) 541-3211 Page 16 of 31 EMPLOYEE STATEMENT I have read the City's policy on a Drug-Free Workplace and affirm that I have knowledge and understanding of this policy. __________________________________ Signature __________________________________ Date __________________________________ Print Name EMPLOYEE STATEMENT I have read the City's policy on a Drug-Free Workplace and affirm that I have knowledge and understanding of this policy. __________________________________ Signature __________________________________ Date __________________________________ Print Name Page 17 of 31 Page 18 of 31 1 A DUE PROCESS PRIMER I. DUE PROCESS A. Basic Procedural Due Process Requirement: Due process under both the federal and state constitutions requires that, before a person can be deprived of a property or liberty interest, he or she must be notified of the charges and have an opportunity for a fair hearing before an impartial decision maker, where he or she can respond to the charges at a meaningful time and in a meaningful manner. B. What Legal Authority Mandates Procedural Due Process: 1. Federal - The 14th amendment of the U.S. Constitution [“ nor shall any state deprive any person of life, liberty, or property, without due process of law”] as interpreted by federal court decisions. 2. State - Article I, Section 7(a) of the California Constitution [“A person may not be deprived of life, liberty, or property without due process of law....”] as interpreted by California Court decisions. C. When Is Procedural Due Process Required? 1. A property or liberty interest must be threatened before procedural due process protections are triggered. For administrative citations, a liberty interest is not normally implicated. (A liberty interest includes all interests recognized as protected by the due process clauses of state and federal constitutions. In addition to protection against unlawful incarceration, there are constitutional protections of numerous other liberty interests, such as right to contract, acquire useful information, pursue a particular occupation, protect good name, reputation, honor or integrity; protection against situations where harm by governmental action may deprive person of a future opportunity.) 2. Property Interest: any type of right to specific property whether it is personal or real property, tangible or intangible, or any quantifiable benefit derived from an action includes payment of fines). 3. Due Process is required in administrative proceedings. II. MINIMUM DUE PROCESS REQUIREMENTS BEFORE DEPRIVATION OF A PROPERTY OR LIBERTY INTEREST A. Notice Of The Allegations Must Be Given 1. The administrative citation must notify the person of the code violation alleged against him or her, i.e., the municipal code sections violated, when and where the violations occurred. 2. The person must be notified of the consequences if the violation is upheld, including a range of consequences if applicable. 3. The person should be notified of any right to appeal. Page 19 of 31 2 4. If the person chooses to appeal the administrative citation, he or she must be provided with the date, time and location of the hearing and the identity of the decision maker(s), if known. 5. Copies of all written statements, reports, photographs and records, etc., as well as names of witnesses, on which the City is relying to prove the alleged violation should be provided to the appellant as soon as possible after the request for appeal is received, if not previously provided. B. Appellant Must Have Opportunity To Respond To The Charges Before Deprivation Of Protected Interest Occurs 1. After notice of the charges against a person, due process requires that a person have a meaningful opportunity to respond to the charges before a final decision imposing consequences is made. This means that both the decision maker must be fair, (i.e., unbiased, impartial and having no financial or personal involvement or conflict of interest in the decision) and the hearing must be conducted in a fair manner. 2. Due process is an elastic concept. The extent of the procedure required depends on the nature and magnitude of the interest affected and may require a balancing act. III. FAIR DECISION MAKER A. Decision Maker Must Be Impartial And Unbiased 1. A decision maker cannot be picked and paid by one party if future employment/remuneration may depend on favorable decisions. 2. The due process requirement for impartiality applies equally to decision makers as to judicial officers. 3. Decision maker cannot have any bias against any party or class to which a party belongs that could adversely impact impartiality: a) Statutorily Protected classes (heightened scrutiny): race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income or ancestry, including a perception that a person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. b) Even where there is no protected class involved, decisions driven by implicit or explicit bias based on a variety of factors can give rise to claims that an individual was deprived of a fair hearing. Thus, a decision maker should make decisions based only on facts and applicable law, not on assumptions based on a group or class the appellant or witness belongs to or appears to belong to, i.e., student, landlord, tenant, teenager, elderly, etc. B. Decision Maker Can Have No Financial Or Conflicting Interest In Decision 1. City Code of Ethics for employees applies to advisory bodies and those acting as representatives of the City, including hearing officers, and generally requires ethical behavior consistent with the following: Page 20 of 31 3 a) No direct or indirect interest that may conflict with official duties, including any obligation (real or perceived) which may impair independent judgment in the discharge of official duties, or give rise to the appearance of wrongdoing. b) Impartiality and dedication to best interests of City, avoiding actions and statements that may create a public perception of preferential service or lack of neutrality. c) No acceptance of money or other consideration, gifts, gratuities, including meals, or favors of any kind, from appellant or related entities or persons or anyone testifying before decision maker either before, during, or after hearing d) No disclosure of any confidential information acquired or made available to the decision maker or use of any information, City’s facilities, equipment or supplies for personal gain. e) No use, or attempt to use, position to secure privileges or exemptions, personally or for others. f) No involvement in any City contract or sale in which the decision maker or a member of their family may have a financial interest. g) No expectation of priority use of City facilities and programs. h) Perform duties in good faith and in manner that the decision maker believes to be in best interest of City of San Luis Obispo. i) Be aware of potential conflicts of interest arising from serving on another board if there is a clash of duties between the two positions, i.e. when one board exercises supervisory, auditory or removal powers over the other or where City policy prohibits dual service. j) Comply with all applicable City policies, including but not limited to Anti- Discrimination and Unlawful Harassment Policy and Drug Free Workplace Policy. 2. State laws also apply. These include: a) Political Reform Act – Government Code Section 81000 et seq. and Fair Political Practice Commission (“FPPC”) Regulations, 2 Cal. Code of Regs., section 18700 et seq. prohibit any public official from making, participating in making or attempting to influence in any way, the government decision in which he or she has a material financial interest. Hearing officers and board members are public officials subject to these laws according to an FPPC opinion the City received. These laws require disclosure (filing of a statement of economic interest) and disqualification when there is a conflict of interest. See Appendix A. b) Government Code Section 1090 prohibits a city official from having a financial interest in any contract entered into by him or her in his or her official capacity, or by any board or body of which he or she is a member. Page 21 of 31 4 C. Decision Maker Should Have No Personal Interest In The Decision Or In Any Participant 1. A decision maker is generally not impartial if he or she, or someone the decision maker has a close relationship with, is involved in the matter. Even if the decision maker believes they could be impartial, there may be an appearance of partiality, which may subject the hearing process to challenge. 2. Public decision makers shall disqualify themselves from hearing a matter if they are personally involved in the matter, or a family member, in-law, friend or business associate is involved. They also should strongly consider disqualification or, at a minimum, publicly disclose facts and explain impartiality conclusions, where they: a) Have a personal relationship with appellant or witness, the nature of which would cause a reasonable person to doubt impartiality; or b) Are personally involved in a similar code enforcement matter pending before the City as a complainant, witness, or appellant; or c) Have personal knowledge about the matter obtained outside the hearing, which will influence the decision, unless the knowledge is disclosed to the appellant and the appellant has the opportunity to counter such information. D. Avoiding The Appearance Of Bias Or Conflict Of Interest Is As Important As Avoiding Actual Conflict Of Interest 1. Treat all participants in a similar manner and with respect; avoid words or actions that might appear overly friendly or partisan or that suggest you are advocating for one side. 2. Do not commit to an outcome or create an impression that you have done so in ex parte (outside the hearing itself) communications with anyone. Disclose the facts and substance of any communications about the subject matter of the hearing that you have had outside of the hearing, so that such information is part of the record and can be addressed by the appellant. 3. Keep an open mind and don’t form conclusions prior to hearing all evidence. 4. Do not make comments tending to favor or disfavor a group to which appellant or a witness belongs, or appears to belong. IV. FAIR HEARING The conduct of the hearing must be fair and impartial. The hearing procedure must provide a meaningful opportunity for the appellant to respond to the charges. However, application of due process principles is flexible, depending on the nature of the competing interests and no specific procedure is required for all matters. At a minimum: 1. The hearing procedure must be explained to the appellant. 2. The appellant must have an opportunity to present his or her side. Page 22 of 31 5 3. The greater the possible loss to the appellant, the greater the degree of procedural due process must be afforded. For an administrative citation that imposes a fine, the loss in most cases is not considered substantial. Therefore a hearing before an impartial decision maker that allows the appellant to present his or her side and to refute the City’s documents or position before the decision is made, should be sufficient. However, for an administrative citation(s) that imposes significant on going fines, such as hourly or daily fines until a violation is corrected, or requires the appellant to expend significant amounts of money to correct a violation to avoid repeated citations, or where the appellant risks loss of a business or investment, or demolition of all or portion of a building, the degree of procedural due process required may be greater. A. Before Hearing Begins 1. Reasonable notice to appellant of date, time and place of the hearing. 2. Reasonable time for the appellant to respond or prepare an adequate defense. The amount of time needed may depend on the nature and complexity of the violation. 3. Notice of right to reasonable accommodation for disability, if needed. 4. Notice of right to bring interpreter, if needed. 5. Describe procedure to be followed. B. During Hearing 1. Recording of hearing: a) Audio recording and minutes are required by Municipal Code for Construction Board of Appeals and Administrative Review Board hearings. Appellant may, at their own expense, hire a court reporter or videotape the hearing, as long as there is no interference with the hearing. b) Recording and minutes not required for hearing officer hearings, but appellant may record. c) City makes and pays for required audio recording and minutes. d) Appellant pays for any other record desired. e) Either party shall provide a copy of the record it prepared to the other party upon the other’s request and payment of reasonable copying costs. 2. City’s documents are prima facie evidence of violation: The administrative citation and any reports, photos, or other records accompanying the administrative citation are admitted without the necessity for the City to appear. California Government Code Section 53069.4) 3. Type of procedure: a) Informal b) Rules of evidence do not apply Page 23 of 31 6 c) Open to public 4. No subpoena power: Hearing officers, Administrative Review Board and Construction Board of Appeals do not have the power to issue subpoenas (the City Council does have such power and may be requested to issue administrative subpoenas in appropriate circumstances). a) Witnesses cannot be compelled to attend the appeal hearing. b) Persons having custody of physical evidence or records cannot be compelled to provide the evidence to the hearing officer or board. 5. Appellants’ rights at hearing: a) Right to be represented by an attorney. b) Right to be present at the hearing. c) Right to challenge or refute City’s documents, by oral, written or physical evidence. d) Right to present oral, written or physical evidence supporting appellant’s position. 6. Admissible Evidence: a) Any relevant evidence, if it is the type of evidence on which responsible persons rely in the conduct of serious affairs. b) Need not be admissible in court (i.e., hearsay may be considered if deemed relevant and reliable in the context of the entire evidentiary record by the decision maker, but may not be the sole basis of a finding of fact or conclusion). 7. Inadmissible evidence or evidence not to be considered in making a decision: a) Not presented at hearing. b) Irrelevant or unduly duplicative. c) Illegible or unintelligible. d) Independent investigation by hearing officer or board is not permitted (site visits to familiarize decision maker with physical or geographic location at issue are permissible, but should be disclosed as part of the record). 8. Standard of Proof: Preponderance of evidence. Evidence supports finding that it was more likely than not that violation occurred/person was responsible. 9. Burden of proof: a) City to prove violation occurred by prima facie evidence permitted by Government Code Section 53069.4 and any additional testimony or evidence presented. Page 24 of 31 7 b) Appellant to prove any defense or mitigation through any testimony or evidence presented. V. DECISION AFTER HEARING After the hearing, the hearing officer or board shall issue a written decision with factual findings based only on information presented at hearing or in allowed site visit. The extent of the written decision depends on the degree of potential loss. A. Appeal To Hearing Officer Generally, for most administrative citations punishable by fine only, a decision letter by a hearing officer is sufficient. See also SLOMC 1.24.120(A). However, if significant fines have been imposed (collectively greater than $2,000) a more detailed decision, as set forth in the section on appeals to a board in the immediately following section, and SLOMC 1.24.130(A), should be prepared. The decision letter should state: 1. Whether the hearing officer finds that the specified violation(s) either did or did not occur; 2. Whether the appellant timely submitted any written evidence; 3. Whether the appellant was present at the hearing or failed to appear; 4. If the appellant failed to appear, what written evidence the hearing officer considered to be credible or not credible; and 5. If the appellant failed to appear and did not timely submit any written evidence, the appeal should so state, the appeal should be dismissed, and the violation and fine upheld. If the decision is that the violation did occur, the fine must be upheld. The hearing officer does not have the power to reduce the amount of the fine. The decision shall also advise the appellant of the right to appeal to the superior court for a trial de novo and the deadline to file such an appeal. If the decision is that the violation did not occur, the citation and fine are revoked and rescinded. B. Appeal To Administrative Review Board Or Construction Board Of Appeals Or Appeal Of Citation That Imposes Significant Fines 1. For an administrative citation that imposes significant on going fines (such as hourly or daily fines until a violation is corrected, that collectively exceed $2000, or requires the appellant to expend significant amounts of money to correct a violation to avoid repeated citations, or where the appellant risks loss of a business or investment, or demolition of all or a portion of a building) in addition to the information required in a hearing officer decision, a more detailed written decision may be required. The minimum requirements are set forth in municipal code section 1.24.130. Page 25 of 31 8 2. A decision must be approved by a majority of the applicable board. A member shall not vote if he or she did not hear all the evidence or listen to or read the entire hearing record before voting. SLOMC 1.24.130(A). 3. In addition to the requirements of SLOMC 1.24.130, it may be appropriate to determine which witnesses are credible; physical evidence reliable; if there are any mitigating circumstances or applicable defenses; the type, severity, frequency and duration of violation(s). 4. The decision must contain findings of fact supported by specified evidence presented at the hearing. 5. If the board upholds the citation, the board does not have the ability to reduce the fine. 6. The decision should also advise the appellant of the right to appeal to the superior court for a trial de novo, and/or of the right to file a petition for writ with the superior court, and the deadlines to do so. Page 26 of 31 9 APPENDIX A STATUTORY CONFLICT OF INTEREST POLITICAL REFORM ACT AND FPPC REGULATIONS Must comply with the California Political Reform Act (Government Code Sections 81000 et seq) and Fair Political Practices Commission Regulations (2 Cal. Code of Regs Sections 18700 et seq). What follows is a VERY brief summary of the conflict of interest requirements. A. File Form 700, Statement of Economic Interest when assuming office, then annually thereafter and when leaving position. B. Disclose financial interest and disqualify self from hearing matter if matter may materially affect personal finances and/or those of any member of immediate family. C. Four step analysis to determine if a conflict of interest exists: 1. Is it reasonably foreseeable that the government decision will have a financial effect on any financial interest? (Reg 18701). If no, no conflict. If yes, proceed to (2). Financial interests generally include: a) Investments. Business entity in which decision maker has direct or indirect investment worth at least $2,000 (Govt. Code 87103(a)) or in which they are a director, officer, partner, trustee, employee, or hold any position of management (Govt. Code 87103(d). For a “parent, subsidiary or otherwise related business entity”, see Reg. 18700.2. b) Real property. Property in which decision maker has a direct or indirect interest of at least 2,000 (Reg 87103(b). If property is within 500 feet of decision maker’s property, automatic disqualification. If decision can affect market value of property (up or down), distance may be greater. Other factors dependent on nature of matter and effect on decision maker’s property. c) Any source of income. This includes, but is not limited to, commissions, (ie. as real estate, insurance or travel agent or stock broker for any parties or properties involved) and incentive income, salary, income from a business entity, of at least $500, provided, promised to or received within 12 months before the decision is made(Government code 87103(c). d) Gift(s) amounting to at least $460 provided to, received by, or promised to, within 12 months before the decision is made. e) Loans 2. Will the reasonably foreseeable financial effect be material? (Reg. 18702)? If no, no conflict. If yes, proceed to (3). 3. Can decision maker demonstrate that the material financial effect on their financial interest is indistinguishable from its effect on the public generally? (Reg 18703). If yes, no conflict. If no, proceed to (4). 4. If after the 3 steps above the decision maker has a conflict of interest, absent an exception, he or she may not make, participate in making or in any way attempt to use his or her official positon to influence the government decision. THE DECISION MAKER MUST DECLINE TO HEAR MATTER IF CONFLICT OF INTEREST EXISTS. WHEN IN DOUBT, DECLINE TO HEAR MATTER. ONLY WRITTEN ADVICE LETTER FROM FPPC PROTECTS AGAINST PROSECUTION FOR VIOLATION Page 27 of 31 Page 28 of 31 San Luis Obispo Municipal Code 1.24.130 Decision by administrative review board or construction board of appeals. A.Decision by Board. After considering all the evidence and testimony submitted at an appeal hearing, the administrative review board or construction board of appeals, as applicable, shall issue a decision, as further described in the administrative citation and appeals guidelines, within thirty calendar days to either uphold or revoke the administrative citation based upon a conclusion of whether the violation occurred. A decision must be supported by a majority of the applicable board. A member shall not vote if he or she did not hear all the evidence or listen to or read the entire hearing record. If an administrative citation charges two or more code violations, the applicable board may uphold all violations, or uphold some violations but not all violations, or dismiss some or all violations. The written decision shall also summarize the evidence, and shall be supported by written findings of fact. The administrative review board and the construction board of appeals do not have the authority to reduce or modify a fine of a violation that is upheld on appeal. If a violation is not upheld, the administrative citation shall be revoked. The notice of decision shall be mailed by first class and certified mail, postage prepaid, return receipt requested, to the appellant or their designated representative. The failure by the appellant to appear at the appeal hearing shall be noted on the notice of decision. The decision of the administrative review board or construction board of appeals shall be final. The written decision may be, but is not required to be, adopted by resolution and shall contain, at a minimum, the following: 1.Name of appellant; 2.Date of administrative citation, municipal code violations charged, location of subject property (if applicable); 3.Date, time, and place of appeal hearing, and the identity of board members; 4.The names of all people participating in the hearing and their capacity, either as appellant, representative of appellant, witness for or against appellant, city staff or otherwise; 5.A statement that the hearing was recorded, the method of recordation, and that recording is in the custody of the city clerk; 6.A statement whether the appellant or designated representative was present or failed to appear; 7.If no one appeared on behalf of appellant, a statement whether appellant submitted any written or other evidence; 8.A statement that the board received the administrative citation and supporting information as prima facie evidence; 9.A brief summary of all credible relevant testimony and the identity of the witness giving it; 10.A list of all physical evidence, including, but not limited to photographs, maps, drawings, and documents; 11.A statement whether the board upholds, revokes or modifies the administrative citation(s), as to each municipal code violation charged; Page 29 of 31 12.A statement as to which oral or physical evidence the board found credible in support of the decision; 13.If the decision upholds the administrative citation, in whole or in part, the decision shall specify the due date for payment of the fine, which shall not be less than ten days nor more than thirty days after the date the decision is mailed; 14. The names and votes of members of the board, showing that a majority of the members of the board supported the decision; 15. The signature of the chairman of the board or his or her designee, and the date of signature. Page 30 of 31 The San Luis Obispo Municipal Code is current through Ordinance 1731, passed December 5, 2023. Disclaimer: The City Clerk's Office has the official version of the San Luis Obispo Municipal Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the ordinance cited above. City Website: www.slocity.org City Telephone: (805) 781-7100 Hosted by Code Publishing Company, A General Code Company. 2.36.380 Employee responsibilities benefits—Code of ethics. A. An official or employee of the city shall not engage in conduct which would tend to discredit or dishonor his/ her position with the city. Such elected or appointed officials and employees must avoid conflicts of private interests with public duties and responsibilities and shall not do indirectly what may not be done directly. B. Disciplinary action generally does not follow an occasional error in judgment which occurs in good faith and is unintentional. However, misconduct, dishonesty and fraud shall be the basis for severe disciplinary action, including removal for cause. C. Officials and employees occupying designated positions are required to file an annual statement of financial interests with the city clerk as prescribed by the Conflict of Interest Code as adopted by the city. D. Each new employee must be informed of the obligation to submit a statement of financial interests if he/she falls within the listed designated position categories. E. Any employee whose job performance is adversely affected by the taking of alcohol, drugs, or other stimulants shall be subject to disciplinary action. F. Each employee is required to be familiar with city standards and statutory provisions relating to ethical and other standards of conduct. Each employee is expected to secure the advice of his/her superior or the personnel director or other appropriate officials, when in doubt about the meaning or application of any conduct requirement applying to his/her particular situation. G. The political activities of city employees shall conform to pertinent provisions of state and federal laws. (Prior code § 2708.1) Ch. 2.36 Personnel Rules and Regulations | San Luis Obispo Municipal Code Page 1 of 1 The San Luis Obispo Municipal Code is current through Ordinance 1731, passed December 5, 2023. Page 31 of 31