Chapter 2.115
ADMINISTRATIVE HEARINGS

Sections:

2.115.010    Applicability.

2.115.020    Definitions.

2.115.030    Parties.

2.115.040    Accusation.

2.115.050    Application for administrative decision.

2.115.060    Appeals.

2.115.070    Date of hearing.

2.115.080    Hearing procedures.

2.115.090    Scope of review.

2.115.100    Decisions.

2.115.110    Reconsideration.

2.115.120    Ex parte contacts prohibited.

2.115.130    Conflicts of interest.

2.115.140    Transition.

2.115.150    Appeals from administrative decisions.

2.115.160    Fines and compliance orders.

2.115.010 Applicability.

(a)    Except as otherwise provided by this code or by law, the provisions of this chapter apply to all quasijudicial proceeding and administrative hearings conducted by borough officials, agencies, boards, commissions and the assembly. Where the provisions of this chapter are in conflict with the specific provisions of another law, statute or ordinance, the provisions of that law, statute or ordinance shall govern.

(b)    This chapter shall apply to hearings on a notice of violation issued for violation of provisions of this code, which carry a maximum penalty of three hundred dollars ($300.00) exclusive of any costs imposed. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.010.]

2.115.020 Definitions.

For the purposes of this chapter:

“Administrative hearing” means any hearing, formal conference, or other proceeding before a borough board, agency, commission or official which is required by law or by this code as a condition precedent to the determination by such board, agency, commission or official of any matter relating to the rights, privileges, duties, obligations or remedies of an identified individual.

“Agency,” “board” or “commission” means any elected or appointed body, department, division or other administrative organ of the Ketchikan Gateway Borough having any legislative, quasijudicial or administrative functions.

“Official” means any person elected, appointed, named or employed by the Ketchikan Gateway Borough to conduct as part of his or her duties quasijudicial proceedings or administrative hearings.

“Quasijudicial proceeding” means any hearing, formal conference or other proceeding before a municipal board, commission or official, to either:

(1)    Review the legality, appropriateness or wisdom of official actions taken on behalf of the Ketchikan Gateway Borough as they relate to the particular legal rights, privileges, duties, obligations or remedies of identified individuals; or

(2)    Determine whether a violation of the KGB Code has been committed and prescribe a penalty for the violation. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.015.]

2.115.030 Parties.

(a)    Where, under the terms of this code, a quasijudicial proceeding is permitted to review any administrative decision, order, determination, finding or other official action taken on behalf of the borough, any person aggrieved by the administrative action may appeal to the board, commission or official empowered by law to conduct such quasijudicial proceeding.

(b)    Where a quasijudicial proceeding is permitted to determine whether a violation of this code has occurred, the parties shall be the borough agency or department alleging that a violation has occurred and the individual(s) or entity alleged to be responsible for the violation. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.030.]

2.115.040 Accusation.

An administrative hearing permitted under this code to determine whether a right, authority, license, privilege or permit should be suspended, revoked, limited or conditioned, or to determine whether a violation has been committed, shall be initiated by the filing of an accusation on behalf of the official, board or commission empowered to take such action. The accusation shall:

(a)    Set forth in writing, in ordinary and concise language, the acts or omissions with which the respondent is charged so that a defense may be prepared;

(b)    Specify the ordinance, statute or regulation which the respondent is alleged to have violated, but may not consist merely of charges phrased in the language of the statute and rule; and

(c)    Except where this code provides for a different method of service, an accusation must be served personally on the respondent, or in compliance with the procedures for service of process as set forth in the Alaska Rules of Court. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.040.]

2.115.050 Application for administrative decision.

An administrative hearing permitted under this code to determine whether a right, authority, license, permit or privilege shall be granted, issued or reviewed is initiated by the filing of a written application for such administrative action with the official, board or commission empowered by law to take such action. The written application must identify the applicant, specify the nature of the right, authority, license, permit or privilege desired by the applicant, explain the reasons for such application, and recite the legal authority for such application. The application shall be served personally on the official, agency, board or commission empowered to make the decision. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.050.]

2.115.060 Appeals.

Where, under the provisions of this code, a quasijudicial proceeding is permitted to review an administrative action, the appellant shall apply in writing to the official, board or commission empowered to hear such appeal and shall identify himself, cite the administrative decision from which the appeal is taken, and in a succinct and coherent manner state the reasons for such appeal. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.060.]

2.115.070 Date of hearing.

(a)    Where an administrative hearing is allowed following an accusation as described in KGBC 2.115.040, such hearing shall take place no less than fifteen (15) and no more than thirty (30) days following the date of service of such accusation on the respondent unless the parties agree to extend or reduce the time for a hearing.

(b)    Where an administrative hearing is permitted upon formal application by one seeking any right, authority, license, permit or privilege, such hearing shall take place no less than fifteen (15) and no more than thirty (30) days following the date of actual receipt of such application by the administrative official, agency, board or commission empowered to conduct such administrative hearing unless the parties agree to extend or reduce the time for a hearing.

(c)    Where a quasijudicial proceeding is permitted to review any administrative action taken on behalf of the borough, such proceeding shall take place no more than thirty (30) days following the date a written notice of appeal as provided by KGBC 2.115.060 is filed with the official, board or commission empowered to hear such appeal unless the parties agree to extend or reduce the time for a hearing. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.070.]

2.115.080 Hearing procedures.

Administrative hearings and quasijudicial proceedings shall be conducted informally and may be governed by such rules and procedures as the official agency, board or commission empowered to conduct such hearings or proceedings may choose to establish, except that:

(a)    Parties may appear in person or through counsel. Parties may waive the opportunity to appear at a hearing. Failure to appear at a hearing shall be treated as a waiver of the opportunity to appear; provided, however, that if a party either waives the opportunity to appear at a hearing or fails to appear, the hearing may proceed and a decision may be issued based upon the evidence and arguments presented.

(b)    Parties may present witnesses and evidence on their own behalf.

(c)    A party or its counsel may cross-examine opposing witnesses on matters relevant to the issues, impeach witnesses regardless of which party first called the witness to testify, and rebut evidence against himself or herself.

(d)    Relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule which makes improper the admission of the evidence over objection in a civil action. Hearsay evidence may be considered provided there are guarantees of its trustworthiness and that it is more probative on the point for which it is offered than any other evidence which the proponent can procure by reasonable efforts.

(e)    All administrative hearings and quasijudicial proceedings shall be open to the public, unless otherwise agreed by all parties to such hearings or proceedings.

(f)    All parties shall have the right to subpoena witnesses and documents using a form provided by the borough clerk and submitted to the clerk for issuance at least five (5) working days before the date of the hearing.

(g)    All administrative hearings and quasijudicial proceedings shall be memorialized by an electronic recording or a stenographic record. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.080.]

2.115.090 Scope of review.

Unless otherwise provided in this code, officials, boards or commissions empowered to conduct quasijudicial proceedings may hear and decide de novo all matters appealed and may exercise independent judgment as to the weight of evidence supporting or refuting the findings of the administrative official, agency, board or commission from whose decision the appeal is taken, and may exercise independent judgment on legal issues raised by the parties. Decisions of administrative bodies or officials may be modified, remanded or affirmed by the reviewing official, agency, board or commission. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.090.]

2.115.100 Decisions.

No later than thirty (30) days following an administrative hearing or quasijudicial proceeding conducted under this chapter, the official, agency, board or commission empowered to conduct an administrative hearing or proceeding shall issue a written decision based on findings and conclusions adopted by the official, agency, board or commission. Such findings must be in writing and must be reasonably specific so as to provide interested persons, and where appropriate, reviewing authorities, a clear and concise understanding of the reasons for the decision entered. The decision, findings of fact and conclusions of law shall be forwarded to all parties to the appeal. A final appealable decision must indicate that it is a final order and that a party disputing the decision has thirty (30) days to appeal. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.100.]

2.115.110 Reconsideration.

A decision of a board, commission or official reached at the conclusion of a quasijudicial proceeding or administrative hearing may be reconsidered or reheard only if:

(a)    There was substantial procedural error in the original proceedings; or

(b)    The official, board or commission acted without jurisdiction in the original proceeding; or

(c)    The original decision was based on fraud or misrepresentation.

Any person seeking reconsideration or rehearing must file a request with the borough clerk together with materials supporting one (1) or more of the grounds stated above within fifteen (15) days of the decision for which reconsideration or rehearing is requested. A rehearing shall be conducted in the same manner as the original proceeding. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.110.]

2.115.120 Ex parte contacts prohibited.

Officials, boards or commissions while acting in their quasijudicial capacity shall be impartial in all matters both in fact and in appearance. No member of any board, commission or any official shall receive or otherwise engage in ex parte communications with the appellant, applicant or other parties adversely affected by the appeal or application or members of the public concerning the appeal or application or issues specifically presented in the notice of appeal either before the appeal hearing or during a period of time the matter is subject to reconsideration. This section shall not be deemed to prevent those charged with conducting administrative hearings or quasijudicial proceedings from discussing matters relating to the appeal among themselves or to prohibit communications between the borough staff and such persons where staff members are themselves not named parties to an appeal or members of any body which has in its own name become an active party to the appeal. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.120.]

2.115.130 Conflicts of interest.

No person shall serve on any board, commission or as an administrative official empowered to conduct an administrative hearing or quasijudicial proceeding if:

(a)    That person or a member of his or her immediate family has a measurable financial interest in any property affected by the application or appeal; or

(b)    That person or a member of his or her immediate family could foreseeably profit in any material way through resolution of the matters before such official, agency, board or commission. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.130.]

2.115.140 Transition.

The provisions of this chapter shall apply only to those appeals or applications for administrative decisions filed on or after the date this chapter becomes effective. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.140.]

2.115.150 Appeals from administrative decisions.

A final decision issued under KGBC 2.115.100 may be appealed to the superior court within thirty (30) days of the date the decision was issued. For the purposes of this section the date of issuance is the date upon which the decision was mailed or delivered to the parties. [Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.150.]

2.115.160 Fines and compliance orders.

(a)    A decision may order a party found in violation of the KGB Code to comply with the provisions of the code within such time as the decision may prescribe. Except in those cases provided for in subsection (b) of this section, the order may require such party to do any or all of the following:

(1)    Make any and all necessary repairs, modifications, and/or improvements to the structure, real property, or equipment involved.

(2)    Abate or remove any nuisance.

(3)    Change the use of the building, structure, or real property involved.

(4)    Install any equipment necessary to achieve compliance.

(5)    Pay to the borough a civil penalty in an amount prescribed for the violation.

(6)    Pay to the borough the cost of compliance, as defined in subsection (b) of this section.

(7)    Undertake any other action reasonably necessary to correct the violation.

(b)    For the purposes of this section, “cost of compliance” means the cost of removal, repair, relocation, and any other costs which are or would reasonably and necessarily be incurred to remedy or remove the violation or comply with the decision.

(c)    Fines and assessments and any other allowable costs, including costs of collection, as defined in KGBC 1.10.020, and interest may be collected through any legal means including but not limited to:

(1)    Referral to a collection agency;

(2)    Recording of liens;

(3)    Foreclosure of liens; or

(4)    Judicial enforcement of administrative orders and decisions.

(d)    Actions for the collection of fines or assessments are independent of any other remedy available for resolution of Ketchikan Gateway Borough Code violations.

(e)    Outstanding fines and assessments owed by the same person may be pursued in a single collection action.

(f)    Interest on fines and assessments not paid within 30 days of the decision shall accrue at the rate of eight percent per year. [Ord. No. 1737, §4, 9-2-14; Ord. No. 988, §1, 5-6-96. Code 1974 §5.110.160.]