Chapter 4.04
GENERAL PROVISIONS

Sections:

4.04.010    Board and commission members subject to this chapter.

4.04.020    Powers and duties.

4.04.030    Appointments.

4.04.040    Qualifications.

4.04.050    Terms.

4.04.060    Compensation.

4.04.070    Vacancies.

4.04.080    Notice of impending vacancy.

4.04.090    Applications.

4.04.100    Nominations.

4.04.110    Officers.

4.04.120    Quorum and voting requirements.

4.04.130    Meetings.

4.04.140    Conflict of interest.

4.04.150    Procedure.

4.04.160    Reports and minutes.

4.04.170    Ex officio members and staff.

4.04.180    Termination.

4.04.010 Board and commission members subject to this chapter.

All boards or commissions, with the exclusion of the board of equalization, shall be governed by each of the provisions set forth in this chapter unless it conflicts with a specific provision applicable to a particular board or commission. The board of equalization, however, shall still be subject to the code of ethics for boards and commissions and the rules of procedure in this chapter. (Ord. 2012-44 § 2, 2012; Ord. 2011-08 § 2, 2011; Ord. 2006-29 § 2, 2006; Ord. 82-30 § 2, 1984. 2004 Code § 2.21.010.)

4.04.020 Powers and duties.

A. The assembly by ordinance may provide for advisory, regulatory, appellate or quasi-judicial boards or commissions. The ordinance shall prescribe the duties and qualifications of members.

B. The assembly, by ordinance, may create or designate itself to be a board of review, adjustment or equalization. The ordinance shall prescribe the rules of procedure. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.020.)

4.04.030 Appointments.

The mayor appoints the members of boards and commissions; appointments are subject to confirmation by the assembly. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.030.)

4.04.040 Qualifications.

In addition to any other qualifications required by this code, a board or commission member:

A. Shall, if legally eligible, be a qualified voter of the borough; and

B. Shall remain a resident of the borough while in office. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.040.)

4.04.050 Terms.

The term of each member of a board or commission is three years. The terms of initial appointments to a board or commission shall be staggered so that as nearly as possible a pro rata number of members shall be appointed for each year during the regular term of office established for the members of the board or commission. The regular term of a member of a board or commission shall, unless otherwise specified by ordinance, commence on January 1st of the year of appointment and shall expire on December 31st of the year his term expires. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.050.)

4.04.060 Compensation.

Members shall serve without pay except that they may be compensated for ordinary and necessary expenses reasonably incurred in performance of their duties as members, subject to appropriation. (Ord. 88-060 § 2, 1988. 2004 Code § 2.21.060.)

4.04.070 Vacancies.

A. Vacancies on boards or commissions, other than by expiration of the member’s term, can be created as follows:

1. Leaves the borough with the intent of remaining absent more than 90 days;

2. Fails to attend three consecutive regularly scheduled meetings;

3. Fails to attend, without excuse, at least 80 percent of the regularly scheduled meetings of the board or commission within any calendar year;

4. Submits a resignation presented in writing which is accepted by the board or commission;

5. Dies; or

6. Fails to qualify within 30 days after his appointment.

B. Members may be removed for reasonable cause by the assembly at any time. As used in this section, the term “reasonable cause” shall mean:

1. Any act, or failure to act, whether intentional or negligent, that either exposes the borough to liability for financial loss or has the potential, in the sole discretion of the borough assembly, to expose the borough to liability for financial loss;

2. Any act, or failure to act, whether intentional or negligent, which obstructs or impedes the functioning of either the board or commission of which the commissioner is a member or borough government in general.

C. In the event of a vacancy on a board or commission for any reason other than normal expiration of a term of office, the mayor shall appoint a new member for the remaining unexpired term, within 30 days of the notice of vacancy. (Ord. 2001-51 § 2, 2001; Ord. 88-055 § 2, 1988; Ord. 82-30 § 2, 1984. 2004 Code § 2.21.070.)

4.04.080 Notice of impending vacancy.

At least 30 days prior to the end of the term of an incumbent board or commission member, the mayor shall cause notice thereof to be published at least twice in a newspaper of general circulation within the borough. The notice shall set forth the vacancies and any qualifications of members. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.080.)

4.04.090 Applications.

The mayor shall provide a standard information and application form for interested persons to complete. The form, letters or other expressions of interest shall be made to the mayor. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.090.)

4.04.100 Nominations.

The mayor shall submit nominations of persons to fill vacancies on boards and commissions to the assembly no earlier than two months before and no later than the date necessary to allow the nominations to be placed on the last regular assembly meeting of the calendar year. (Ord. 90-015 § 2, 1990; Ord. 82-30 § 2, 1984. 2004 Code § 2.21.100.)

4.04.110 Officers.

A board or commission shall annually elect a chairman and a vice chairman. The vice chairman shall act in the absence of the chairman or in the inability of the chairman to act. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.110.)

4.04.120 Quorum and voting requirements.

A majority of the authorized members of a board or commission shall be a quorum for the transaction of business. The affirmative votes of the majority of the authorized members of a board or commission shall be required to carry a question. In the absence of a quorum for the transaction of business, any number less than a quorum may recess a meeting to a later time or date. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.120.)

4.04.130 Meetings.

A board or commission shall hold regularly scheduled meetings at such time and place as may from time to time be designated by the board or commission. The chairman of a board or commission, or the municipal employee who is designated as an ex officio member of the board or commission pursuant to FNSBC 4.04.170, or a majority of the board or commission may call a special meeting of the board or commission. Meetings of all boards and commissions shall be open to the public and notice posted at the borough clerk’s office. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.130.)

4.04.140 Conflict of interest.

Every member shall vote on all questions unless he has a direct or substantial indirect financial interest in the matter being discussed. No member shall represent any person before the board or commission of which he is a member. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.140.)

4.04.150 Procedure.

A. Notwithstanding any language to the contrary, all boards and commissions shall follow, as a minimum, the procedural rules set forth in this section. A board or commission may adopt other rules but those rules may not conflict with this section. In all matters of procedure not covered by this or other code sections or rules adopted by the board or commission, Robert’s Rules of Order, as revised, shall be applicable and shall govern.

1. Boards and commissions conducting quasi-judicial hearings shall adopt rules permitting telephonic testimony by a party or witness upon request for good cause and in the absence of substantial prejudice to opposing parties. If telephonic participation is approved, then the party requesting it shall be responsible for arranging the telephone call and for payment of associated telephone charges. Adopted rules may limit the number of individuals testifying telephonically due to technological or other valid considerations; however, if an individual’s telephonic participation is denied because of these limits, the rules shall permit other reasonably available alternatives such as setting an additional or alternate date for the testimony.

2. Boards and commissions conducting quasi-judicial hearings shall also adopt rules permitting parties to submit their testimony by affidavit subject to the opposing parties’ right of cross-examination that the chair determines to be reasonably necessary to explore any matters which tend to contradict, modify or explain the testimony.

3. Boards and commissions conducting quasi-judicial hearings shall establish rules providing for a determination concerning an individual’s status as a party sufficiently in advance of the hearing to allow the person to timely request participation by telephonic or submit testimony by other allowable means. If an individual qualifies as an interested person, the individual may provide testimony but the chair may otherwise limit participation at the hearing unless the person possesses a significant property interest that is not adequately represented by existing parties.

4. Formal rules of evidence do not apply to quasi-judicial hearings; however, the chair may exclude irrelevant, immaterial or unduly repetitious evidence.

B. All de novo quasi-judicial hearings by a board or commission involving an appeal from an administrative determination shall be conducted according to the following procedures:

1. Copies of all procedural rules and any written staff report must be available at least five working days prior to the hearing and at the hearing. At least five working days prior to the hearing, the parties shall exchange copies of all documents intended to be submitted to the board or commission. Staff shall also ensure that the relevant public files are available for inspection and copying by the parties.

2. At the beginning of the hearing, the chair shall give a brief introduction regarding the matter and inquire as to whether any member needs to make any disclosures required by the code of ethics or disclose any ex parte communications regarding the matter at issue. All parties must at this time express their objections, if any, to a member participating in the hearing.

3. Testimony must be taken under oath or affirmation. A group oath or affirmation, including all parties, may be given prior to taking any testimony. Relevant testimony and evidence may be submitted at the hearing. To the extent time limits are imposed, those time limits shall not include time spent responding to questions and shall be evenly applied to all parties.

4. All parties shall, unless their participation is limited by the chair as authorized in this chapter, have the right to present evidence including testimony and exhibits and the right of cross-examination of witnesses to the extent the chair determines to be reasonably necessary to explore any matters which tend to contradict, modify, or explain testimony given on direct. The party bearing the burden of proof shall have the right to first provide testimony and present all relevant witnesses and evidence and shall have the right to rebuttal.

5. If a party seeks to introduce a document not previously copied and exchanged with the other party and the other party objects, the document shall be admitted only if the board finds a good faith reason for its failure to be included in the documentary exchange. A “good faith reason” includes, but is not limited to, the portion of an animal behavior log for the days occurring after the required documentary exchange. If the late admission creates any prejudice to the opposing party, the chair shall provide the opposing party additional time or take other allowable measures to address any resulting prejudice.

C. All de novo quasi-judicial hearings by a board or commission not involving an appeal from an administrative determination shall be conducted according to the following procedures:

1. Copies of all procedural rules and any written staff report must be available at least five working days prior to the hearing and at the hearing. Staff shall also ensure that the relevant public files are available for inspection and copying by the parties. If additional documents or information is submitted to staff after the report is written, those documents and information shall become part of the public file. If documents or information is added to the public file after the staff report is written, staff shall notify the parties who have previously inspected the file as soon as reasonably practicable and provide a copy to the parties if requested. Documents or information added to the file in compliance with this section may be provided to the board or commission.

2. At the beginning of the hearing, the chair shall give a brief introduction regarding the matter and inquire as to whether any member needs to make any disclosures required by the code of ethics or disclose any ex parte communications regarding the matter at issue. All parties must at this time express their objections, if any, to a member participating in the hearing.

3. Testimony must be taken under oath or affirmation. A group oath or affirmation, including all parties, may be given prior to taking any testimony. Relevant testimony and evidence may be submitted at the hearing. To the extent time limits are imposed, those time limits shall not include time spent responding to questions and shall be evenly applied to staff and the applicant. Time limits for interested persons shall be set by the chair.

4. Staff Report. Staff may provide a report on any technical or other issues within their expertise and may make recommendations to the board or commission. Questions of staff by the decision-making body and by the applicant, if present, should be asked at this point.

5. Applicant. The applicant or the applicant’s representative, if present, may present testimony and evidence to support the application. To the extent the applicant wishes to present expert witnesses, they should testify at this point. Questions of the applicant by the decision-making body or staff should be asked at this point. The applicant shall be provided a minimum of 10 minutes which may be extended by the chair dependent upon the complexity of the issue. In addition, if the staff report opposes the application in whole or in part, the applicant’s time shall be extended if necessary to ensure the applicant receives time equivalent to that provided to staff.

6. All parties shall, unless their participation is limited by the chair as authorized in this chapter, have the right to present evidence including testimony and exhibits and the right of cross-examination of witnesses to the extent the chair determines to be reasonably necessary to explore any matters which tend to contradict, modify, or explain testimony given on direct.

7. Rebuttal. The applicant shall be provided a minimum of five additional minutes to respond to any testimony presented by interested persons. This time may be extended by the chair in consideration of lengthy or complex testimony. In addition, to the extent the decision-making body decides, after testimony, to ask any further questions, the applicant shall be given a reasonable time to respond.

D. All legislative hearings by a board or commission shall be conducted according to the following procedures:

1. Sponsor Report. If present, the sponsor(s) of the proposed legislation or the sponsor’s designee(s) shall first be afforded an opportunity to provide a report on the proposed legislation. The sponsor may choose to present before or after the staff report. If time limits are applied, the sponsor and staff shall receive equivalent time. Questions of the sponsor by the decision-making body concerning the proposed legislation should be asked at this point so that the members of the public wishing to comment can be reasonably informed.

2. Staff Report. Staff may then provide a report on any technical or other issues within their expertise. Questions of staff by the sponsor(s) or the decision-making body concerning the proposed legislation should be asked at this point so that the members of the public wishing to comment can be reasonably informed.

3. Public Comment. Members of the public may comment on legislative issues. Time limits may be placed on individual comments. If time limits are placed, they should be applied in an equal manner to all individuals providing public comment. Comments may be limited to the hearing subject.

4. Sponsor Response. The sponsor(s) or designee(s) shall be afforded a reasonable opportunity to respond to any questions, issues or concerns raised during the staff report or public comment.

E. If a hearing involves both a legislative issue and a quasi-judicial matter, the quasi-judicial procedures shall apply except that if the matter is scheduled for a public hearing, the public may comment on the legislative issue. Time limits may be placed on individual comments (excluding applicant and staff presentation). If time limits are placed, they should be applied in an equal manner to all individuals providing public comment. Comments should be limited to those relevant to the hearing subject.

F. Definitions.

1. “Applicant” means any person or entity whose specific legal rights are being adjudicated in the quasi-judicial hearing.

2. “Staff” means borough employees who as part of their job responsibilities are tasked with providing the board or commission with technical or other relevant information or those individuals from whom the board has specifically sought, after notice to the applicant, their input or advice.

3. “Sponsor” means the mayor, assembly member, chairperson of committee draft, or a member of the public whose authorized application created the proposed legislation. If the authorized application involves multiple owners or multiple properties, “sponsor” only includes one owner representative for each property.

4. “Party” means the applicant, any appellant(s) and staff. It also includes “interested persons” or “persons aggrieved” to the extent their participation is expressly permitted by borough code in a quasi-judicial matter. It does not include members of the public testifying under public comment. (Ord. 2016-40 § 20, 2016; Ord. 2015-74 § 2, 2016; Ord. 2013-50 § 2, 2013; Ord. 2012-44 § 3, 2012; Ord. 82-30 § 2, 1984. 2004 Code § 2.21.150.)

4.04.160 Reports and minutes.

The board or commission shall keep minutes of the proceedings, and such minutes shall record the vote of each member upon every question formally presented for consideration. The minutes shall be filed in the office of the borough clerk and shall be a public record, open to inspection by any person. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.160.)

4.04.170 Ex officio members and staff.

The mayor may appoint an employee of the borough who shall be an ex officio member of a board or commission for the purpose of acting as secretary to the board or commission or to furnish technical advice and information if not so provided for in the specific provisions pertaining to the board or commission. An ex officio member is not entitled to vote on any question to be determined by the board or commission nor is an ex officio member a member for the purpose of establishing a quorum of any board or commission. Unless otherwise provided in the section establishing the board or commission, the mayor shall provide or designate any required staff for the board or commission. (Ord. 82-30 § 2, 1984. 2004 Code § 2.21.170.)

4.04.180 Termination.

A. All boards and commissions established under this chapter, with the exception of those mandated by state law, shall terminate by operation of law six years from the date of their creation, continuation or reestablishment, whichever is later, unless affirmatively reestablished or continued by the assembly for a period not to exceed six years. Any newly created board or commission shall be subject to the provisions of this section. Prior to the termination, continuation or reestablishment of any board or commission, the assembly shall hold a public hearing, receiving testimony from the general public and members of the board or commission. In said hearing the board or commission shall have the burden of demonstrating a public need for its continued existence.

B. A determination as to whether a board or commission has demonstrated a public need for its continued existence shall take into consideration the following factors:

1. The extent to which a board, commission or program has operated in the public interest;

2. The extent to which a board or commission has recommendations which are generally of benefit to the public interest;

3. The extent to which a board or commission has encouraged interested persons to report to it concerning the effect of its decisions on the effectiveness of service, and availability of service which it has provided;

4. The extent to which the board or commission has encouraged public participation in the making of its decisions;

5. The efficiency with which public inquiries or complaints regarding the activities of the board, commission or agency filed with it, or with the department to which a board or commission is administratively assigned have been processed and resolved. (Ord. 92-065 § 2, 1992; Ord. 86-065 § 2, 1986; Ord. 82-30 § 2, 1984. 2004 Code § 2.21.180.)