HomeMy WebLinkAbout06-07-2016 - B2 - Orientation - Due Process Primer.Distributed to ARB.2016 06 071
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.
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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:
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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.
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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.
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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
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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.
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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.
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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.
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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