CHAPTER 2.29: OFFICE OF ADMINISTRATIVE HEARINGS

Section

2.29.010    Established

2.29.020    Duties

2.29.030    Qualifications

2.29.040    Appointment

2.29.050    Conflict of interest

2.29.060    Ex parte contacts prohibited

2.29.070    Compensation

2.29.080    Appeal procedures

2.29.090    Animal forfeiture appeal procedures

2.29.010 ESTABLISHED.

(A)    The Office of Administrative Hearings is established. Administrative hearing officers shall be appointed by the mayor and confirmed by the assembly. If possible, there shall be five administrative hearing officers appointed in order to maintain a rotating list of available officers.

(Ord. 04-057, § 2, 2004; Ord. 03-022(AM), § 2 (part), 2003)

2.29.020 DUTIES.

(A)    Administrative hearing officers shall have jurisdiction over the following:

(1)    borough contract bid award appeals;

(2)    appellate jurisdiction over forfeiture of animals pursuant to MSB 24.40.030;

(3)    relocation benefits and services appeals;

(4)    duties as a hearing officer regarding the ethics code under MSB 2.71; and

(5)    original jurisdiction over Level 5 animal classifications under MSB 24.26.

(Ord. 15-003, § 3, 2015: Ord. 11-022, § 4, 2012; Ord. 09-011, § 2, 2009: Ord. 04-103, § 11, 2004; Ord. 03-022(AM), § 2 (part), 2003)

2.29.030 QUALIFICATIONS.

An administrative hearing officer shall be an attorney duly licensed to practice law in the state of Alaska, experienced in arbitration, mediation, and contract law. An administrative hearing officer shall hold no other appointed or elected office or position with the Matanuska-Susitna Borough.

(Ord. 03-022(AM), § 2 (part), 2003)

2.29.040 APPOINTMENT.

An administrative hearing officer shall be appointed to a three-year term. There is no limit to the number of terms an administrative hearing officer may serve. An administrative hearing officer may be removed for cause by the mayor with the approval of the assembly or by a two-thirds majority vote of the assembly.

(Ord. 19-122, § 2, 2019: Ord. 03-022(AM), § 2 (part), 2003)

2.29.050 CONFLICT OF INTEREST.

An administrative hearing officer shall not hear a case in which the officer has a conflict of interest as defined in MSB 2.71.100.

(Ord. 03-022(AM), § 2 (part), 2003)

2.29.060 EX PARTE CONTACTS PROHIBITED.

(A)    An administrative hearing officer acts in a quasi-judicial capacity and shall not engage in ex parte communications concerning the bid appeal with borough employees, borough contractors, members of the assembly, the appellant, or any parties associated with bidding, preparing, or evaluating the bid.

(B)    If an unsolicited ex parte communication occurs, the administrative hearing officer shall disclose the communication on the record prior to rendering a decision and shall not take information contained in an ex parte communication into consideration.

(Ord. 03-022(AM), § 2 (part), 2003)

2.29.070 COMPENSATION.

An administrative hearing officer shall receive compensation on an hourly rate as set by the assembly. An administrative hearing officer shall also receive compensation for expenses incurred in carrying out of the duties of the office.

(Ord. 03-022(AM), § 2 (part), 2003)

2.29.080 APPEAL PROCEDURES.

(A)    The procedures defined in MSB 3.08.342 shall govern bid protests.

(B)    The procedures governing relocation benefits and services appeals are those set forth in 17 AAC 81.020 and 17 AAC 85.040(d) through (e), which apply to appeals of relocation benefits and services decisions by the Alaska Department of Transportation and Public Facilities, except that “borough” shall be substituted for “department”; the director of planning and land use (or a designee who may not have been involved in the matter for which review is sought) shall make the determination under 17 AAC 81.020(a) rather than an “administrative review officer”; an appeal of the determination of the director of planning and land use (or designee) shall be sent to the borough manager and be accompanied by the list of exhibits the aggrieved party intends to introduce at the hearing, the names of persons to be called as witnesses at the hearing, and whether the aggrieved party will be represented by counsel; “borough manager” shall be substituted for “chief engineer” in 17 AAC 85.040(d); and the appeal shall be heard by an administrative hearing officer appointed under this chapter rather than a “relocation appeals board.”

(C)    The procedures in MSB 24.26.040(B)(4) shall apply to Level 5 animal classifications and the burden of proof shall be on the borough by a preponderance of the evidence.

(Ord. 15-003, § 4, 2015; Ord. 09-011, § 3, 2009: Ord. 03-022(AM), § 2 (part), 2003)

2.29.090 ANIMAL FORFEITURE APPEAL PROCEDURES.

(A)    Policy. The borough establishes animal forfeiture appeal procedures to promote the fair and efficient resolution of animal forfeiture cases. Time is of the essence in any animal forfeiture appeal.

(B)    Notice of appeal. An appellant may appeal the chief animal care and regulation officer’s decision regarding animal forfeiture as follows:

(1)    Deadlines for filing. An appeal must be filed with the clerk’s office within five business days after the issuance of the chief animal care and regulation officer’s forfeiture decision. Failure to file within five business days shall result in an appeal being denied as untimely by the administrative hearing officer without further process and shall constitute a jurisdictional bar on any further action.

(2)    Procedure for filing. An appeal shall be filed on a form provided by the clerk’s office. The identical form shall also be available with the animal care and regulation office. The appellant shall submit a $75 filing fee to the finance department. Proof of payment of the filing fee shall be required prior to the acceptance of the appeal. The form shall require the appellant to provide the following information:

(a)    the name of the animal(s) being forfeited that is the subject of the appeal and the name of the appellant;

(b)    information on the appellant that includes the mailing address, phone number, and facsimile number or email address if available;

(c)    if the appellant is represented by an attorney, the name, address, telephone number, email address, and facsimile number of the attorney; and

(d)    a brief detailed description of the alleged errors in the forfeiture decision.

(C)    Administrative hearing officer review. An administrative hearing officer appointed pursuant to MSB 2.29.010(A) shall have jurisdiction over all animal forfeiture cases. The clerk’s office shall maintain a list of administrative hearing officers and shall rotate appointments. The first administrative hearing officer contacted who is not available for service shall be the first contact for service at the next appeal as feasible.

(D)    Clerk’s notice. The clerk shall give notice of the appeal to the administrative hearing officer, the law department, the chief animal care and regulation officer, and the appellant.

(E)    Record. Within five business days of receiving the notice of appeal of animal forfeiture, the chief animal care and regulation officer shall submit the record on appeal of forfeiture to the clerk. The clerk shall serve the record on the administrative hearing officer, the law department, and the appellant within three business days of receipt.

(F)    Hearing date and briefing schedule. The clerk shall set a hearing date at least 15 calendar days and no later than 20 calendar days from the date the record is served. The notice of hearing and briefing schedule shall be set by the clerk as follows:

(1)    Briefs. Briefs filed by an attorney on behalf of the appellant shall be drafted to conform with the Alaska Rules of Civil Procedure and shall be filed no later than five calendar days prior to the hearing. Briefs filed by a pro se appellant shall be accepted in a less formal format and shall be filed no later than five calendar days prior to the hearing.

(2)    Exhibits. All exhibits shall be filed with the clerk no later than five calendar days prior to the hearing.

(3)    Complex cases. If during the initial review of the record on appeal of forfeiture the administrative hearing officer determines that the case is complex, they may extend the deadlines for up to 20 calendar days. After that time, further extensions will require concurrence of the parties.

(G)    Hearings.

(1)    Representation. An appellant may appear through counsel or appear pro se. If an appellant is to be represented by counsel, an entry of appearance shall be filed no later than five days prior to the hearing.

(2)    Hearing format. The administrative hearing officer has the discretion to conduct the hearing so that the issues and facts can be presented in a manner which conforms to due process and preserves administrative economy. The administrative hearing officer may conduct the hearing by referring to the Alaska Rules of Civil Procedure, such as Rule 46, Conduct of Trials, or others that might apply, and the Alaska Rules of Evidence. However, the administrative hearing officer may in their discretion waive adherence to the Alaska Rules of Civil Procedure or Evidence.

(a)    Each party shall be entitled to present witnesses and evidence on their behalf.

(b)    Each party has the right to cross-examine opposing witnesses and rebut evidence.

(c)    All hearings shall be open to the public.

(d)    All testimony shall be given under oath.

(e)    The hearing shall be recorded.

(3)    Standard of review. The administrative hearing officer shall defer to the chief animal care and regulation officer’s forfeiture decision and shall uphold the decision if there is substantial evidence in the record to support the decision. “Substantial evidence” means the relevant evidence a reasonable mind might accept as adequate to support a conclusion.

(H)    Findings and decision. The administrative hearing officer’s findings are limited to rejecting or upholding the forfeiture of the animal that is the subject of the appeal. If the administrative hearing officer rejects the chief animal care and regulation officer’s decision on the animal forfeiture, the matter shall be remanded to the chief animal care and regulation officer to set conditions of release prior to releasing the animal to its owner. The administrative hearing officer has the discretion to make an oral finding to uphold or reject the chief animal care and regulation officer’s decision at the conclusion of the hearing or to take the matter under advisement. If the administrative hearing officer takes the matter under advisement, a written decision shall be issued within ten calendar days of the hearing. If the administrative hearing officer makes an oral finding at the conclusion of the hearing, the oral finding shall be supplemented with written findings within five calendar days of the hearing. The administrative hearing officer shall support the decision through written findings of fact. The administrative hearing officer shall provide the written decision to the clerk. The clerk shall serve the final written decision on the appellant, the law department, and the chief animal care and regulation officer in the most effective, efficient manner available within two days after receiving the decision.

(I)    Appeal to superior court. The decision of the administrative hearing officer is the final decision which may be appealed to the superior court within 30 days of the date of distribution of the decision pursuant to the Alaska Rules of Appellate Procedure, Part VI, Rules 601 through 612.

(Ord. 15-003, § 2, 2015)