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DATE. April 4, 2018 LEGISLATIVE
SUBJECT: INTRODUCTION OF AN ORDINANCE AND ADOPTION OF AN INTERIM
URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL CODE
SECTIONS 2.50.030, 2.50.040, 2,50.060, 2.50.080, AND 2.50.090,
MODIFYING PROVISIONS RELATED TO THE ADMINISTRATIVE
APPEALS BOARD (4/551ns Vote Required re Interim Urgency Ordinance)
FROM: David H. Ready, City Manager
BY: Edward Z. Kotkin, City Attorney
SUMMARY
The proposed ordinances modify the City's ordinance regulating the operation of the
administrative appeals board. The recommended changes will enhance due process at
the hearings, and help ensure that the Board can timely attain maximum board
presence for meetings. Board of Appeals hearings are an on-going matter, and the
Council has given direction to present these ordinances for consideration and impact
the status quo as soon as possible. As such, this matter is one of urgent concern in the
City with respect to the health, safety and welfare of the City's residents, and these
modifications to Chapter 2.50 are presented as both an interim urgency ordinance and a
"regular" ordinance. The former would be effective immediately, the latter would be
effective thirty (30) days after second reading.
RECOMMENDATION:
1. Waive the reading of text in its entirety; read by title only, and introduce for first
reading Ordinance No. , "AN ORDINANCE OF THE CITY OF PALM
SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL CODE
SECTIONS 2.50.030, 2.50.040, 2.50.060, 2.50.080, AND 2.50.090, MODIFYING
PROVISIONS RELATED TO THE ADMINISTRATIVE APPEALS BOARD."
2. Waive the reading of the text in its entirety, read by title only, and adopt
Ordinance No. , "AN INTERIM URGENCY ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL
CODE SECTIONS 2.50.030, 2.50.040, 2.50.060, 2.50.080, AND 2.50,090,
MODIFYING PROVISIONS RELATED TO THE ADMINISTRATIVE APPEALS
BOARD." (4/5'hs Vote Required)
ITEM NO. 3'3'
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°4<.Folt % CITY COUNCIL STAFF REPORT
DATE: April 4, 2018 LEGISLATIVE
SUBJECT: INTRODUCTION OF AN ORDINANCE AND ADOPTION OF AN INTERIM
URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL CODE
SECTIONS 2.50.030, 2.50.040, 2.50.060, 2.50.080, AND 2.50.090,
MODIFYING PROVISIONS RELATED TO THE ADMINISTRATIVE
APPEALS BOARD (4/5ths Vote Required re Interim Urgency Ordinance)
FROM: David H. Ready, City Manager
BY: Edward Z. Kotkin, City Attorney
SUMMARY
The proposed ordinances modify the City's ordinance regulating the operation of the
administrative appeals board. The recommended changes will enhance due process at
the hearings, and help ensure that the Board can timely attain maximum board
presence for meetings. Board of Appeals hearings are an on-going matter, and the
Council has given direction to present these ordinances for consideration and impact
the status quo as soon as possible. As such, this matter is one of urgent concern in the
City with respect to the health, safety and welfare of the City's residents, and these
modifications to Chapter 2.50 are presented as both an interim urgency ordinance and a
"regular" ordinance. The former would be effective immediately, the latter would be
effective thirty (30) days after second reading.
RECOMMENDATION:
1. Waive the reading of text in its entirety, read by title only, and introduce for first
reading Ordinance No. , "AN ORDINANCE OF THE CITY OF PALM
SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL CODE
SECTIONS 2.50.030, 2.50.040, 2.50.060, 2.50.080, AND 2.50.090, MODIFYING
PROVISIONS RELATED TO THE ADMINISTRATIVE APPEALS BOARD."
2. Waive the reading of the text in its entirety, read by title only, and adopt
Ordinance No. , "AN INTERIM URGENCY ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL
CODE SECTIONS 2.50.030, 2.50.040, 2.50.060, 2.50.080, AND 2.50.090,
MODIFYING PROVISIONS RELATED TO THE ADMINISTRATIVE APPEALS
BOARD." (4/5ths Vote Required)
ITEM NO. 34
City Council Staff Report
April 4, 2018 -- Page 2
Amendment of Chapter 2.50 re Administrative Appeals Board
STAFF ANALYSIS:
The city clerk's office and the city attorney, acting in his capacity as the city prosecutor,
work to provide timely hearings before the administrative appeals board. Although the
jurisdiction of the administrative appeals board is broader than any single subject
matter, during the last year there have been ten (10) meetings of the appeals board at
which multiple vacation rental matters have been considered. Under the Palm Springs
Municipal Code, the administrative appeals board hears appeals related to cannabis,
vacant buildings, determinations of animals being dangerous, matters related to
commercial and charitable solicitation permits, and local business preference eligibility.
It is anticipated that the administrative appeals board will also consider appeals related
to the City's forthcoming special event permit ordinance.
Issues with the Current Ordinance
1. Ordinance 1529, adopted in 1996 and not amended since, is the most recent
version of Chapter 2.50, the ordinance that provides for the function of the
administrative appeals board. The ordinance staggered the membership terms of
board members, and the ordinance includes dated references corresponding to
its initial implementation.
2. Recently, the clerk has had difficulty arranging administrative appeals board
hearings because of the full schedules kept by board members, and the time
during which a hearing must take place after an appellant files it with the City,
currently set at forty-five (45) days.
3. The consequences of losing an appeal considered by the administrative appeals
board are often a serious matter that severely impacts a local resident, property
owner, or business owner. The current ordinance allows an appeal to be won or
lost in all cases based upon a majority of a quorum of the administrative appeals
board. Councilmember Kors gave staff direction that an administrative appeals
board outcome should be based upon no less than a majority of the full board,
whenever possible.
4. Given the challenge in attaining board member presence beyond quorum to date,
i.e., the number of administrative appeals board meetings that have taken place
with only three (3) or four (4) board members in attendance, a requirement that
the City prevail on appeal by a majority vote of the entire board would unduly
prejudice the City's position at appellate hearings. If three (3) votes are required
to deny or grant an appeal, five (5) board members must participate in the
hearing.
5. Nothing can be done to guaranty that five (5) board members will vote on an
appeal. For example, a board member may become ill after having agreed to
attend a meeting, or have a conflict of interest that prevents him/her from
participating in the hearing of a particular appeal.
6. In the instance of a "tie vote" at the administrative appeals board, when less than
the entire board is present and able to participate legally, the board's current
"policy" is that the appellate matter subject to the "tie" will be continued by the
02
City Council Staff Report
April 4.. 2018 -- Page 3
Amendment of Chapter 2.50 re Administrative Appeals Board
board until its next regular meeting. The policy is silent upon what happens when
a member of the board recuses him or herself, or abstains from a vote. Given
(a) the nature of an administrative appellate hearing where each board member
must hear and consider all evidence, (b) the reasonable board policies that a "tie
vote" is a lost motion, and that a "tie vote" on an appeal is a denial of that appeal,
both of which run contrary to continuing an appellate hearing until a subsequent
meeting, and (c) the City's difficulty to date in procuring the presence of all board
members, the continuance of a matter subject to a "tie vote" makes no sense.
Recommendations Implemented by Proposed Ordinance
To address these issues, staff recommends that the Council ordain that:
A. there will be five (5) alternate administrative appeals board members who will be
called upon to attend board meetings when regular board members cannot
attend;
B. an alternate administrative appeals board member would be eligible to serve two
(2) full terms of three (3) years each, regardless of and beyond any service to the
City as an alternate board member:.
C. ideally, no more than two (2) appeals board members will begin or end their
respective terms together;
D. alternate board members shall be appointed as necessary to ensure that there
are five (5) alternates at all times;
E. the City will try to arrange the presence of five (5) board members and/or
alternate board members for all board meetings,-
F. the time during which a hearing must proceed upon an appeal, after its filing with
the city clerk, is extended in all cases to ninety (90) days, with a possible
additional extension to one hundred fifty (150) days;
G. absent an appellant's choice to proceed to hearing with less than a "full" board,
no appeal shall be denied or granted by less than a majority of the full board;
H. if less than five (5) board member and/or alternates are present and able to
legally participate in hearing an appeal, an appellant has the right to continue the
hearing provided that the appellant waives the right to have that hearing within a
time specified in the ordinance;
I. if an appellant does not want to waive the right to have a hearing within a time
specified by the ordinance, or for any reason, an appellant may choose to
proceed to hearing with the understanding that a quorum of the board may
conduct the hearing, and that a majority of that quorum will make all decisions
upon the appeal; and
J. if an appellant proceeds to hearing with less than a full board, "tie votes" will
result in a motion failing, and with respect to the outcome of an appeal, a denial.
The ordinance provision related to the board's membership is 2.50.030. The proposed
revision to that section is as follows:
� J
City Council Staff Report
April 4, 2018 -- Page 4
Amendment of Chapter 2.50 re Administrative Appeals Board
2.50.030 Membership—Creation.
There is created within the city an administrative appeals board which shall consist of
five members and five alternate members to be appointed in the manner prescribed in
Section 2.04.060, to serve at the pleasure of the city council. Anyyear(s) served as an
alternate member will not be considered in counting or limiting a board member's years
of continuous service under Section 2.06.010(g).
Note: Section 2.06.010(g) allows a board member to serve two (2) terms of three (3)
years each, but limits a board member's continuous years of service to seven (7).
The ordinance provision related to board members' terms is 2.50.040. The proposed
revision to that section is as follows:
2.50.040 Membership—Terms.
Members of the board shall be appointed or removed in accordance with and shall be
subject to all of the provisions of Chapter 2.06 of the code, or as it may be amended
from time to time; provided, however, that of the five members, to the extent practicable,
no more than two shall commence or complete their terms at the same time. Alternate
board members may be appointed as necessary to ensure that there are five alternate
board members at all times. twe shall serve a term end ran June Zn � R�dt,ree
shall serve a term eRdiRg JIURe Zn 2000 Such terms shall be drawn by lot at the first
meeting of the board following the appointment of the five members. In making
appointments to this board, the council will bear in mind the nature of the board and the
special expertise needed to exercise its function. The council will endeavor to appoint
as members persons with special expertise in providing due process in the conduct of
hearings.
•
The ordinance provision related to meetings is 2.50.060. The proposed revision to that
section is as follows:
2.50.060 Meetings.
(a) The board shall meet in the City Hall at such time and day as the board may
establish, as frequently as necessary to carry out the purposes of this chapter. The city
clerk shall arrange the presence of five board members and/or alternate board
members at each board meeting calling upon as many alternate board members as
may be required to ensure the presence of a full board. No meeting of the board shall
be scheduled unless five board members and/or alternate board members state to the
city clerk that they will be present.
City Council Staff Report
April 4, 2018 -- Page 5
Amendment of Chapter 2.50 re Administrative Appeals Board
OF other a6tiOR of the beard may be taken by majority of those present and vot4vg-,
provided a quorum Is. present.
(sb) It shall be the obligation of the members of the board to attend all meetings. If a
member absents himself or herself from three consecutive or twenty-five percent of the
duly scheduled meetings within any fiscal year, the chairman shall file a certification with
the city clerk that such absences have occurred, and his or her office shall thereupon
automatically become vacant and shall be filled as any other vacancy.
•
The ordinance provision related to the timing of an appeal after its filing is included in
Section 2.50.060(c). The proposed revision to that section is as follows:
2.50.080 Administrative appeals—Filing and notice procedures.
(c) The city clerk, upon receipt of the notice of appeal, shall set a time and place for
the hearing of such appeal by the board. The appeal shall be heard no more than forty-
five ninety days following the filing of the notice of appeal_ unless the pan:esva su
times In the event that the city clerk is unable to schedule a hearing date on an
appeal, in accordance with Section 2.50.060(a), within ninety days following the filing of
a notice of appeal the city clerk shall give written notice to the appellant of that fact no
more than seventy five days after the filing of the notice of appeal. Upon issuance of a
timely written notice by the city clerk pursuant to this Section 2.50.080(c), an appeal
shall be timely if heard within one hundred fifty days of the filing of a notice of the
appeal.
Finally, the administrative appeal hearing procedures must be modified in Section
2.50.090 as follows:
2.50.090 Administrative appeals hearing procedures.
(a) Absent an appellant choice to proceed with an appeal under Section 2.50.090(c),
no appeal shall be denied or granted except by a majority vote of the entire board as it
may be comprised for any particular hearing of board members and alternate board
members.
(b) In the event that less than five board members and/or alternate board members
are present for and able to legally participate in the hearing of an appeal the appellant
has the right to continue the hearing until the next board meeting, provided that the
appellant waives his/her right pursuant to Section 2.50.080(c) to have the hearing take
place at any particular time. Absent a continuance of the hearing on appeal under this
Section 2.50.090(b) an appellant must proceed to hearing under Section 2.50.090(c).
(c) An appellant may choose to proceed to hearing with the understanding that three
members of the board tThree members of the board shall constitute a quorum for the
G5
City Council Staff Report
April 4, 2018 -- Page 6
Amendment of Chapter 2.50 re Administrative Appeals Board
purpose of conducting a the hearing on any appeal, and that a majority of such quorum
may enter any ruling, decision or other action of the board, including denvinq or granting
the appeal. When an appellant chooses to proceed to hearing under this Section
2.50.090(c), any ruling, decision, motion or other action that is the subject of a "tie" vote,
will be lost; a "tie" vote on a motion to deny or grant an appeal shall be deemed a denial
of the appeal.
(d) An appellant choice to proceed with an appeal under Section 2.50.090(c) shall be stated
on the administrative record at the time of the hearing.
(e) pFevided thatnNo board member may vote on the decision if absent from a part
of the hearing unless such board member certifies that he or she listened to or read the
transcript, if any, of the entire proceedings.
•
A legislative draft showing Chapter 2.50 as proposed for revision is provided as
ATTACHMENT A. The proposed ordinance in its Interim Urgency Form is attached as
ATTACHMENT B, and in its "regular" form as ATTACHMENT C.
ALTERNATIVES:
Reject the proposed Ordinance and Interim Urgency Ordinance as drafted, and provide
direction to staff as to Council-desired revisions.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:
This ordinance is not a "project' for purposes of the California Environmental Quality Act
(CEQA), as that term is defined by CEQA guidelines (Guidelines) section 15378. This
Ordinance is organizational or administrative activity by the City of Palm Springs in
furtherance of its police power, and will not result in a direct or indirect physical change
in the environment, per section 15378(b)(5) of the Guidelines.
FISCAL IMPACT:
Not Analyzed
Edward Z. Kotkin, City Attorney David H. Ready, ., h.D., City Manager
Attachments:
A. Legislative Draft
B. Draft Interim Urgency Ordinance
C. Draft Ordinance
cc
ATTACHMENTA
Chapter 2.50 ADMINISTRATIVE APPEALS BOARD
2.50.010 Definitions.
The definitions contained in this section shall govern the construction of this chapter.
(1) "Administrative agency" means an organ of the city government other than the city council which
under the direction of the city manager has responsibility for carrying out or enforcing the rules,
regulations,and ordinances of the city, but not including boards and commissions of the city.
(2) "Administrative officer" means an officer of the city who is not a member of the legislative body
or appointed boards or commissions. Such officers include but are not limited to the city manager, chief
of police, fire chief, director of planning and building, director of transportation, director of public
works, or similar officer.
(3) "Aggrieved person" means any person whose personal, pecuniary or property right or interest is
directly and adversely affected, or upon whom a substantial burden or obligation is imposed by the
action or decision appealed from.
(4) "Appellant" means any aggrieved person directly affected by an action who files an appeal.
(5) "Board" means the administrative appeals board.
(6) "City" means the city of Palm Springs.
(7) "Respondent" means the administrative officer or agency which took the action appealed from,
and any other administrative officer or agency named as respondent in an appeal.
2.50.020 Scope and coverage.
The board shall hear appeals on actions taken by an administrative officer or administrative
agency of the city relating to ministerial enforcement of the provisions of this code. Such appeals shall
include appeals of nuisance abatement orders, code enforcement orders, enforcement of any zoning or
land use regulation, animal control orders, and similar matters.The board shall not have authority to
hear appeals of any action taken by the city council or any other board or commission of the city,
including but not limited to the rent review commission, personnel board, board of building appeals.
Specifically excepted from the board's jurisdiction are planning and zoning decisions and/or
recommendations issued by the planning commission, including but not limited to, general plan
amendments, specific plans, subdivision approvals,variances, conditional use permits, site plan
approvals, architectural review,or similar land use matters.
2.50.030 Membership—Creation.
There is created within the city an administrative appeals board which shall consist of five
members and five alternate members to be appointed in the manner prescribed in Section 2.04.060, to
serve at the pleasure of the city council. Any year(s) served as an alternate member will not be
considered in counting or limiting a board member's years of continuous service under Section
2.06.010(g).
Chapter 2.50 Amendment
Legislative Draft 08
Page 1 of 6
2.50.040 Membership—Terms.
Members of the board shall be appointed or removed in accordance with and shall be subject to
all of the provisions of Chapter 2.06 of the code, or as it may be amended from time to time; provided,
however,that of the five members,to the extent practicable, no more than two shall commence or
complete their terms at the same time.Alternate board members may be appointed as necessary to
ensure that there are five alternate board members at all times.twe shall seFVe 'teFFA ending june
1998 and thFee shall se e a te....,ending june 30, 2000 Such terms shall be drawn by lot at the first
meeting of the board following the appointment of the five members. In making appointments to this
board, the council will bear in mind the nature of the board and the special expertise needed to exercise
its function.The council will endeavor to appoint as members persons with special expertise in providing
due process in the conduct of hearings.
2.50.050 Officers.
(a) The members of the board shall select officers in accordance with the provisions of Chapter 2.06
of the code.The chairs shall preside at all meetings of the board.
(b) The city clerk or the clerk's designee shall serve as secretary to the board.The secretary shall be
responsible for the making, keeping and preserving of all records of the board at City Hall, including
minutes of meetings,and is designated as the official upon or with whom all notices, requests for
hearing, complaints and other documents relating to this chapter shall be served and filed. The city
manager may designate such other staff to serve the board as the city manager shall deem appropriate.
The staff shall assist the board in the performance of the board's duties.
2.50.060 Meetings.
(a) The board shall meet in the City Hall at such time and day as the board may establish, as
frequently as necessary to carry out the purposes of this chapter.The city clerk shall arrange the
presence of five board members and/or alternate board members at each board meeting, calling upon
as many alternate board members as may be required to ensure the presence of a full board. No
meeting of the board shall be scheduled unless five board members and/or alternate board members
state to the city clerk that they will be present.
the be .d .... , be taken by FnajWity et the pFese..t and. ..tin PFOYided aqUGFUFR m is p .,t
(eb) It shall be the obligation of the members of the board to attend all meetings. If a member
absents himself or herself from three consecutive or twenty-five percent of the duly scheduled meetings
within any fiscal year,the chairs shall file a certification with the city clerk that such absences have
occurred,and his or her office shall thereupon automatically become vacant and shall be filled as any
other vacancy.
2.50.070 Function, powers and duties.
(a) As provided by Section 2.50.020, the board shall hear all appeals in accordance with the
procedures contained in Section 2.50.090.
Chapter 2.50 Amendment
Legislative Draft 09
Page 2 of 6
(b) The board is authorized to adopt resolutions and take all actions necessary and proper to carry
out the functions of the board pursuant to this section and this chapter.
(c) The board may request through the city manager information, services, facilities or any other
assistance for the purpose of furthering the objectives of this chapter.
2.50.080 Administrative appeals—Filing and notice procedures.
(a) A person aggrieved by an action taken by an administrative officer of the city as provided in
Section 2.50.020 may appeal the action to the board by filing with the city clerk a written notice of
appeal within ten days of the action. The notice of appeal shall set forth the appellant's full name and
mailing address,the specific action appealed from,the grounds for the appeal and the relief sought; and
shall include payment to the city clerk of the appeal fee, as established or amended time to time by
resolution of the city council.
(b) The notice required by subsection (a) of this section, shall be filed no later than ten days following
the date of mailing to appellant of notice of the action from which the appeal is taken or, if there is no
such mailing and/or none is required, no later than fifteen days following the date of the action which is
the subject of the appeal.The city clerk shall furnish a copy of the appeal to the respondent within five
days after filing.
(c) The city clerk, upon receipt of the notice of appeal, shall set a time and place for the hearing of
such appeal by the board.The appeal shall be heard no more than#efty4iveninety days following the
filing of the notice of appeal u nless the paAmes waive such time limits. In the event that the city clerk is
unable to schedule a hearing date on an appeal, in accordance with Section 2.50.060(a), within ninety
days following the filing of a notice of appeal,the city clerk shall give written notice to the appellant of
that fact no more than seventy five days after the filing of the notice of appeal. Upon issuance of a
timely written notice by the city clerk pursuant to this Section 2.50.080(c),an appeal shall be timely if
heard within one hundred fifty days of the filing of a notice of the appeal.
(d) Notice of the time and place of the hearing shall be mailed or otherwise delivered by the city clerk
to the appellant, respondent and all other persons, if any,to whom notice of the initial application or
action was required, not less than ten days prior to the hearing. If publication of the initial application or
action being appealed was required, the notice of appeal shall be published in similar manner.
(e) After an appeal has been initiated, a cross-appeal may be brought by any person who would
otherwise have had standing to appeal the subject action or decision.The cross-appellant shall file a
written notice of cross-appeal with the city clerk stating cross-appellant's full name and mailing address,
the specific action appealed from, the grounds for the cross-appeal and the relief sought. Such notice
shall be filed no later than five days prior to the hearing except for good cause shown to the satisfaction
of the board.The failure to give notice of the hearing to any person who would qualify to file a cross-
appeal shall not invalidate any action of the board.
(f) Unless the notice of appeal names some other respondent,the administrative officer or
administrative agency which took the action or made the decision being appealed shall be designated
the "respondent."
Chapter 2.50 Amendment
Legislative Draft 10
Page 3 of 6
2.50.090 Administrative appeals hearing procedures.
(a) Absent an appellant choice to proceed with an appeal under Section 2.50.090(c), no appeal shall
be denied or granted except by a maiority vote of the entire board as it may be comprised for anv
particular hearing of board members and alternate board members.
(b) In the event that less than five board members and/or alternate board members are present for,
and able to legally participate in the hearing of an appeal,the appellant has the right to continue the
hearing until the next board meeting, provided that the appellant waives his/her right, pursuant to
Section 2.50.080(c),to have the hearing take place at any particular time. Absent a continuance of the
hearing on appeal under this Section 2.50.090(b),an appellant must proceed to hearing under Section
2.50.090(c).
(c) An appellant may choose to proceed to hearing with the understanding that tThree members of
the board shall constitute a quorum for the purpose of conducting a-the hearing on any appea4, and that
a maiority of such quorum may enter any ruling, decision or other action of the board, including denying
or granting the appeal.When an appellant chooses to proceed to hearing under this Section 2.50.090(c),
any ruling, decision, motion or other action that is the subiect of a "tie" vote,will be lost: a "tie" vote on
a motion to deny or grant an appeal shall be deemed a denial of the appeal.
(d) An appellant choice to proceed with an appeal under Section 2.50.090(c)shall be stated on the
administrative record at the time of the hearing.
(el —pfevkle�Noo board member may vote on the decision if absent from a part of the hearing
unless such board member certifies that he or she listened to or read the transcript, if any, of the entire
proceedings.
(fb) All hearings shall be open to the public.
(ge) In any hearing conducted by the board, it shall have the power to examine witnesses and compel
their attendance for the production of evidence by subpoenas issued under the authority of the city
council and attested by the city clerk.The chair e�may issue subpoenas on behalf of the board under
the authority of the city council. Subpoenas may also be issued at the request of the parties prior to the
commencement of such hearing. No subpoena may be issued for any reason without the concurrence of
the city attorney that there is good cause for such subpoena to issue, and such subpoena is approved by
the city council. It shall be the duty of the chief of police to cause all such subpoenas to be served, and
the refusal of a person to attend or to testify in answer to such a subpoena shall subject the person to
prosecution in the same manner set forth by law for failure to appear before the council in response to a
subpoena issued by the council.
(hd) The hearing need not be conducted in accordance with the technical rules relating to evidence
and witnesses, but hearings shall be conducted in a manner most conducive to determination of the
truth. Any 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 any common law
or statutory rules which might make improper the admission of such evidence over objection in civil
actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct
evidence but shall not be sufficient in itself to support a finding unless it would be admissible over
objection in civil actions.The rules of privilege shall be effective to the same extent that they are now or
Chapter 2.50 Amendment
Legislative Draft
Page 4 of 6
hereafter may be recognized in civil actions, and irrelevant and unduly repetitious evidence may be
excluded. Decisions made by the board shall not be invalidated by any informality in the proceedings,
and the board shall not be bound by technical rules of evidence.
(ie) The presiding officer shall rule on the admission or exclusion of evidence with the assistance of
the legal advisor to the board.
(j#) All parties shall have the right to be heard by the board either in person or by counsel.
(�g) No party shall have the right to cross-examine any other party or witness except for good cause
shown to the satisfaction of the board.
(14) The board shall determine relevancy,weight and credibility of testimony and evidence. It shall
base its findings on the preponderance of the evidence.
(m+) The board, prior to or during a hearing, may grant a continuance for any reason it believes to be
important to its reaching a fair and proper decision.
(n}) The board, after it concludes the hearing, may deliberate its decision in closed session if
permitted by the Brown Act. Members of the board may request the attendance of the board's legal
counsel to a discussion held in closed or open session solely for the purpose of rendering legal advice to
the commission.
2.50.100 Determinations made by the board.
(a) The board shall render its decision in accordance with the provisions of this chapter.
(b) The board shall render its decision consistent with applicable law and all ordinances of this city
even in situations in which the board disagrees with the applicable law and/or ordinances.After
rendering its decision, in any matter in which the board believes legislative changes are appropriate,the
board may submit to the city council and appropriate administrative officer any recommendations that
the law be changed.
(c) The board's decision shall be in writing and shall set forth the board's findings of fact and
conclusions.
(d) The board shall render its decision within fifteen days following the conclusion of the hearing of
the appeal. Upon finding good cause to do so,the board may extend the time for rendering its decision
up to ninety days.
(e) No later than five days following the rendering of the board's decision, the city clerk shall mail or
otherwise deliver a copy of said decision to each party who appeared during the proceedings, or who
requested to be furnished a copy of the decision. Failure of the city clerk to mail or deliver a copy of the
decision to each party or to any party shall not affect the finality or effectiveness of the decision.
(f) The board's decision shall constitute final administrative action and be effective on the date in
which the decision is rendered.
2.50.110 Disposition report.
Chapter 2.50 Amendment
Legislative Draft 12
Page 5 of 6
The board shall file with the city council a written report on each decision of the board not later
than five days following the rendering of the board's decision.The disposition report shall include any
recommendations to the administrative agency which the board believes are in order to assist the
administrative agency in future enforcement actions.
Chapter 2.50 Amendment
Legislative Draft 3
Page 6 of 6
ATTACHMENT B
ORDINANCE NO.
AN INTERIM URGENCY ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS
MUNICIPAL CODE SECTIONS 2.50.030, 2.50.040, 2.50.060,
2.50.080, AND 2.50.090, MODIFYING PROVISIONS
RELATED TO THE ADMINISTRATIVE APPEALS BOARD."
(4/51hs Vote Required)
City Attorney's Summary
This Ordinance amends provisions of Chapter 2.50 which
provides for the function of the City's administrative appeals
board. It creates five alternate board member positions,
generally requires that five board members consider all appeals,
allows appellants a continuance to have a full board consider
their matters, extends the time during which an appeal may be
heard after filing of a notice of appeal, but gives appellants the
right to proceed to hearing with less than a full board. This
interim urgency ordinance would be effective immediately upon
adoption.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS:
The City Council of the City of Palm Springs ordains:
A. The City of Palm Springs is a charter city organized pursuant to Article XI of the
California Constitution and pursuant to the authority granted the City by Sections 5
and 7 of Article XI, the City has the power to make and enforce within its limits all
ordinances and regulations in respect to municipal affairs not in conflict with general
laws and its own charter. Such police powers include without limitation the ability to
adopt regulations pertaining generally to the protection and promotion of the public
health, safety, and welfare, and pertaining specifically to the rules and procedures
pursuant to which administrative appeals will be considered.
B. With that purpose and intent, in 1996, the City Council adopted Ordinance
1529, codified at Title 2 of the Palm Springs Municipal Code pertaining to
"Administration and Personnel," and Chapter 2.50 thereof, the City's "Administrative
Appeals Board" ordinance.
C. The City Council has determined that with an increase in administrative legal
appellate activity, its residents, businesses and visitors will benefit from an update and
modification to Ordinance 1529 that enhances due process of law, and ensures the
availability of qualified and impartial quasi-judicial officials to consider administrative
appeals.
15
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Ordinance No.
Page 2
D. It is the intent of the City Council to have a strong, effective and fair system and
process through which administrative appeals are processed, and thereby (i) address
an identifiable challenge to the public health; safety, and welfare, and (ii) advance
community and individual concerns by modifying the system and process through
which significant violations of the Municipal Code determined to have taken place by
the City are appealed to a neutral and impartial quasi-judicial body.
E. The City Council finds that the administrative legal matters addressed by this
interim urgency ordinance are inconsistent with the goals and policies of the Palm
Springs General Plan.
F. The City Council finds that the adoption of this interim urgency ordinance is
exempt from environmental review under the California Environmental Quality Act
("CEQA") pursuant to the following provisions of the CEQA Guidelines, 14 Cal. Code
of Regulations, Chapter 3: the ordinance is exempt under CEQA Guidelines Section
15378(b)(5) in that it is not a "project" under CEQA, and is an organizational or
administrative activity of the City that will not result in direct or indirect physical
changes in the environment.
G. The City Council makes the following findings as to the urgency of the adoption
of this interim urgency ordinance:
1 . The provisions of the City's administrative appeals board ordinance
adopted herein enhance due process of law for appellants in the City in a
manner that the City can responsibly administer.
2. The increase in the fairness of an already fair system and process
achieved via this ordinance is of the utmost importance to the City, advances
the trust and confidence of the community in local government, and improves
the public health, safety and welfare.
SECTION 1. Title 2, Chapter 2.50, Section 2.50.030 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Membership-Creation," is hereby amended to read as follows:
There is created within the city an administrative appeals board which shall consist of
five members and five alternate members to be appointed in the manner prescribed in
Section 2.04.060, to serve at the pleasure of the city council. Any year(s) served as an
alternate member will not be considered in counting or limiting a board member's
years of continuous service under Section 2.06.010(g).
SECTION 2. Title 2, Chapter 2.50, Section 2.50.040 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Membership-Terms," is hereby amended to read as follows:
1 C:
Ordinance No.
Page 2
D. It is the intent of the City Council to have a strong, effective and fair system and
process through which administrative appeals are processed, and thereby (i) address
an identifiable challenge to the public health, safety, and welfare, and (ii) advance
community and individual concerns by modifying the system and process through
which significant violations of the Municipal Code determined to have taken place by
the City are appealed to a neutral and impartial quasi-judicial body.
E. The City Council finds that the administrative legal matters addressed by this
interim urgency ordinance are consistent with the goals and policies of the Palm
Springs General Plan.
F. The City Council finds that the adoption of this interim urgency ordinance is
exempt from environmental review under the California Environmental Quality Act
("CEQA") pursuant to the following provisions of the CEQA Guidelines, 14 Cal. Code
of Regulations, Chapter 3: the ordinance is exempt under CEQA Guidelines Section
15378(b)(5) in that it is not a ''project" under CEQA, and is an organizational or
administrative activity of the City that will not result in direct or indirect physical
changes in the environment.
G. The City Council makes the following findings as to the urgency of the adoption
of this interim urgency ordinance:
1. The provisions of the City's administrative appeals board ordinance
adopted herein enhance due process of law for appellants in the City in a
manner that the City can responsibly administer.
2. The increase in the fairness of an already fair system and process
achieved via this ordinance is of the utmost importance to the City, advances
the trust and confidence of the community in local government, and improves
the public health, safety and welfare.
SECTION 1. Title 2, Chapter 2.50, Section 2.50.030 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Membership-Creation," is hereby amended to read as follows:
There is created within the city an administrative appeals board which shall consist of
five members and five alternate members to be appointed in the manner prescribed in
Section 2.04.060, to serve at the pleasure of the city council. Any year(s) served as an
alternate member will not be considered in counting or limiting a board member's
years of continuous service under Section 2.06.010(g).
SECTION 2. Title 2, Chapter 2.50, Section 2.50.040 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Membership-Terms," is hereby amended to read as follows:
17
Ordinance No
Page 4
which the appeal is taken or, if there is no such mailing and/or none is required,
no later than fifteen days following the date of the action which is the subject of
the appeal. The city clerk shall furnish a copy of the appeal to the respondent
within five days after filing.
(c) The city clerk, upon receipt of the notice of appeal, shall set a time and place
for the hearing of such appeal by the board. The appeal shall be heard no more
than ninety days following the filing of the notice of appeal. In the event that the
city clerk is unable to schedule a hearing date on an appeal, in accordance with
Section 2.50.060(a), within ninety days following the filing of a notice of appeal,
the city clerk shall give written notice to the appellant of that fact no more than
seventy five days after the filing of the notice of appeal. Upon issuance of a
timely written notice by the city clerk pursuant to this Section 2.50.080(c), an
appeal shall be timely if heard within one hundred fifty days of the filing of a
notice of the appeal.
(d) Notice of the time and place of the hearing shall be mailed or otherwise
delivered by the city clerk to the appellant, respondent and all other persons, if
any, to whom notice of the initial application or action was required, not less
than ten days prior to the hearing. If publication of the initial application or
action being appealed was required, the notice of appeal shall be published in
similar manner.
(e) After an appeal has been initiated, a cross-appeal may be brought by any
person who would otherwise have had standing to appeal the subject action or
decision. The cross-appellant shall file a written notice of cross-appeal with the
city clerk stating cross-appellant's full name and mailing address, the specific
action appealed from, the grounds for the cross-appeal and the relief sought.
Such notice shall be filed no later than five days prior to the hearing except for
good cause shown to the satisfaction of the board. The failure to give notice of
the hearing to any person who would qualify to file a cross-appeal shall not
invalidate any action of the board.
(f) Unless the notice of appeal names some other respondent, the administrative
officer or administrative agency which took the action or made the decision
being appealed shall be designated the "respondent."
SECTION 5. Title 2, Chapter 2.50, Section 2.50.090 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Administrative appeals hearing procedures," is hereby amended to read
as follows:
(a) Absent an appellant choice to proceed with an appeal under Section
2.50.090(c), no appeal shall be denied or granted except by a majority vote of
the entire board as it may be comprised for any particular hearing of board
members and alternate board members.
4
127.18
Ordinance No.
Page 5
(b) In the event that less than five board members and/or alternate board members
are present for, and able to legally participate in the hearing of an appeal, the
appellant has the right to continue the hearing until the next board meeting,
provided that the appellant waives his/her right, pursuant to Section
2.50.080(c), to have the hearing take place at any particular time. Absent a
continuance of the hearing on appeal under this Section 2.50.090(b), an
appellant must proceed to hearing under Section 2.50.090(c).
(c) An appellant may choose to proceed to hearing with the understanding that
three members of the board shall constitute a quorum for the purpose of
conducting the hearing, and that a majority of such quorum may enter any
ruling, decision or other action of the board, including denying or granting the
appeal. When an appellant chooses to proceed to hearing under this Section
2.50.090(c), any ruling, decision, motion or other action that is the subject of a
"tie" vote, will be lost; a "tie" vote on a motion to deny or grant an appeal shall
be deemed a denial of the appeal.
(d) An appellant choice to proceed with an appeal under Section 2.50.090(c) shall
be stated on the record at the time of the hearing.
(e) No board member may vote on the decision if absent from a part of the hearing
unless such board member certifies that he or she listened to or read the
transcript, if any, of the entire proceedings.
(f) All hearings shall be open to the public.
(g) In any hearing conducted by the board, it shall have the power to examine
witnesses and compel their attendance for the production of evidence by
subpoenas issued under the authority of the city council and attested by the city
clerk. The chair may issue subpoenas on behalf of the board under the
authority of the city council. Subpoenas may also be issued at the request of
the parties prior to the commencement of such hearing. No subpoena may be
issued for any reason without the concurrence of the city attorney that there is
good cause for such subpoena to issue, and such subpoena is approved by the
city council. It shall be the duty of the chief of police to cause all such
subpoenas to be served, and the refusal of a person to attend or to testify in
answer to such a subpoena shall subject the person to prosecution in the same
manner set forth by law for failure to appear before the council in response to a
subpoena issued by the council.
(h) The hearing need not be conducted in accordance with the technical rules
relating to evidence and witnesses, but hearings shall be conducted in a
manner most conducive to determination of the truth. Any 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 any common law or statutory rules which might make improper the
5
3.27.18
Ordinance No.
Page 6
admission of such evidence over objection in civil actions. Hearsay evidence
may be used for the purpose of supplementing or explaining any direct
evidence but shall not be sufficient in itself to support a finding unless it would
be admissible over objection in civil actions. The rules of privilege shall be
effective to the same extent that they are now or hereafter may be recognized
in civil actions, and irrelevant and unduly repetitious evidence may be excluded.
Decisions made by the board shall not be invalidated by any informality in the
proceedings, and the board shall not be bound by technical rules of evidence.
(i) The presiding officer shall rule on the admission or exclusion of evidence with
the assistance of the legal advisor to the board.
(j) All parties shall have the right to be heard by the board either in person or by
counsel.
(k) No party shall have the right to cross-examine any other party or witness
except for good cause shown to the satisfaction of the board.
(1) The board shall determine relevancy, weight and credibility of testimony and
evidence. It shall base its findings on the preponderance of the evidence.
(m)The board, prior to or during a hearing, may grant a continuance for any reason
it believes to be important to its reaching a fair and proper decision.
(n) The board, after it concludes the hearing, may deliberate its decision in closed
session if permitted by the Brown Act. Members of the board may request the
attendance of the board's legal counsel to a discussion held in closed or open
session solely for the purpose of rendering legal advice to the commission.
SECTION 6. If any section or provision of this Ordinance is for any reason held to be
invalid or unconstitutional by any court of competent jurisdiction, or contravened by
reason of any preemptive legislation, the remaining sections and/or provisions of this
ordinance shall remain valid. The City Council hereby declares that it would have
adopted this Ordinance, and each section or provision thereof, regardless of the fact
that any one or more section(s) or provision(s) may be declared invalid or
unconstitutional or contravened via legislation.
SECTION 7. Neither introduction nor adoption of this Ordinance represents a "project"
for purposes of the California Environmental Quality Act (CEQA), as that term is
defined by CEQA guidelines (Guidelines) section 15378, because this Ordinance is an
organizational or administrative activity that will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
6 20
3.27.18
Ordinance No.
Page 7
SECTION 8. The adoption of this Interim Urgency Ordinance is necessary for the
immediate protection of the public peace, health, and safety by ensuring the timely
and orderly consideration, adoption, and implementation of enhanced administrative
appellate process and system, and allows the earliest possible application of these
new regulations, which are equivalent in content to this interim urgency ordinance and
are introduced on even date herewith. The City's failure to adopt this interim urgency
ordinance would adversely restrict an enhancement of due process of law in the City,
and unduly impair progress toward better regulation of important matters in the City.
In accordance with Section 312 of the Palm Springs City Charter, the City Council of
the City of Palm Springs finds and determines that the adoption of this Interim
Urgency Ordinance is an emergency measure, necessary to ensure the immediate
protection and preservation of the public peace, health, and safety.
SECTION 9. The City Council hereby declares, on the basis of the findings set forth in
the true and correct Recitals above, incorporated by this reference herein, and in
Sections 7 and 8 above, that an urgency ordinance is warranted and that this Interim
Urgency Ordinance is necessary to preserve the public peace, health and safety.
Accordingly, this Interim Urgency Ordinance is adopted as such, and shall take effect
and be in force immediately upon its adoption. This Interim Urgency Ordinance shall
expire on May 31, 2018 unless otherwise extended by action of the City Council prior
to such date, or superseded by the City's new administrative appeals board ordinance,
identical in content and introduced on even date herewith.
PASSED AND ADOPTED THIS DAY OF , 2018.
AYES:
NOES:
ABSTAIN:
ABSENT:
Robert Moon, Mayor
ATTEST:
Anthony J. Mejia, MMC, City Clerk
APPROVED AS TO FORM:
Edward Z. Kotkin, City Attorney
7I
ATTACHMENT C
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL
CODE SECTIONS 2.50.030, 2.50.040, 2.50.060, 2.50.080,
AND 2.50.090, MODIFYING PROVISIONS RELATED TO THE
ADMINISTRATIVE APPEALS BOARD.
City Attorney's Summary
This Ordinance amends provisions of Chapter 2.50 which
provides for the function of the City's administrative appeals
board. It creates five alternate board member positions,
generally requires that five board members consider all appeals,
allows appellants a continuance to have a full board consider
their matters, extends the time during which an appeal may be
heard after filing of a notice of appeal, but gives appellants the
right to proceed to hearing with less than a full board.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS:
The City Council of the City of Palm Springs ordains:
SECTION 1. Title 2, Chapter 2.50, Section 2.50.030 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Membership-Creation," is hereby amended to read as follows:
There is created within the city an administrative appeals board which shall consist of
five members and five alternate members to be appointed in the manner prescribed in
Section 2.04.060, to serve at the pleasure of the city council. Any year(s) served as an
alternate member will not be considered in counting or limiting a board member's
years of continuous service under Section 2.06.010(g).
SECTION 2. Title 2, Chapter 2.50, Section 2.50.040 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Membership-Terms," is hereby amended to read as follows:
Members of the board shall be appointed or removed in accordance with and shall be
subject to all of the provisions of Chapter 2.06 of the code, or as it may be amended
from time to time, provided, however, that of the five members, to the extent
practicable, no more than two shall commence or complete their terms at the same
time. Alternate board members may be appointed as necessary to ensure that there
are five alternate board members at all times. Such terms shall be drawn by lot at the
first meeting of the board following the appointment of the five members. In making
appointments to this board, the council will bear in mind the nature of the board and
the special expertise needed to exercise its function. The council will endeavor to
2 3
127.18
Ordinance No.
Page 2
appoint as members persons with special expertise in providing due process in the
conduct of hearings.
SECTION 3. Title 2, Chapter 2.50, Section 2.50.060 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Meetings," is hereby amended to read as follows:
(a) The board shall meet in the City Hall at such time and day as the board may
establish, as frequently as necessary to carry out the purposes of this chapter.
The city clerk shall arrange the presence of five board members and/or
alternate board members at each board meeting, calling upon as many
alternate board members as may be required to ensure the presence of a full
board. No meeting of the board shall be scheduled unless five board members
and/or alternate board members state to the city clerk that they will be present.
(b) It shall be the obligation of the members of the board to attend all meetings. If a
member absents himself or herself from three consecutive or twenty-five
percent of the duly scheduled meetings within any fiscal year, the chair shall file
a certification with the city clerk that such absences have occurred, and his or
her office shall thereupon automatically become vacant and shall be filled as
any other vacancy.
SECTION 4. Title 2, Chapter 2.50, Section 2.50.080 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Administrative appeals—Filing and notice procedures," is hereby amended
to read as follows:
(a) A person aggrieved by an action taken by an administrative officer of the city as
provided in Section 2.50.020 may appeal the action to the board by filing with
the city clerk a written notice of appeal within ten days of the action. The notice
of appeal shall set forth the appellant's full name and mailing address, the
specific action appealed from, the grounds for the appeal and the relief sought;
and shall include payment to the city clerk of the appeal fee, as established or
amended time to time by resolution of the city council.
(b) The notice required by subsection (a) of this section, shall be filed no later than
ten days following the date of mailing to appellant of notice of the action from
which the appeal is taken or, if there is no such mailing and/or none is required,
no later than fifteen days following the date of the action which is the subject of
the appeal. The city clerk shall furnish a copy of the appeal to the respondent
within five days after filing.
(c) The city clerk, upon receipt of the notice of appeal, shall set a time and place
for the hearing of such appeal by the board. The appeal shall be heard no more
than ninety days following the filing of the notice of appeal. In the event that the
city clerk is unable to schedule a hearing date on an appeal, in accordance with
Ordinance No.
Page 3
Section 2.50.060(a), within ninety days following the filing of a notice of appeal,
the city clerk shall give written notice to the appellant of that fact no more than
seventy five days after the filing of the notice of appeal. Upon issuance of a
timely written notice by the city clerk pursuant to this Section 2.50.080(c), an
appeal shall be timely if heard within one hundred fifty days of the filing of a
notice of the appeal.
(d) Notice of the time and place of the hearing shall be mailed or otherwise
delivered by the city clerk to the appellant, respondent and all other persons, if
any, to whom notice of the initial application or action was required, not less
than ten days prior to the hearing. If publication of the initial application or
action being appealed was required, the notice of appeal shall be published in
similar manner.
(e) After an appeal has been initiated, a cross-appeal may be brought by any
person who would otherwise have had standing to appeal the subject action or
decision. The cross-appellant shall file a written notice of cross-appeal with the
city clerk stating cross-appellant's full name and mailing address, the specific
action appealed from, the grounds for the cross-appeal and the relief sought.
Such notice shall be filed no later than five days prior to the hearing except for
good cause shown to the satisfaction of the board. The failure to give notice of
the hearing to any person who would qualify to file a cross-appeal shall not
invalidate any action of the board.
(f) Unless the notice of appeal names some other respondent, the administrative
officer or administrative agency which took the action or made the decision
being appealed shall be designated the "respondent."
SECTION 5. Title 2, Chapter 2.50, Section 2.50.090 of the Palm Springs Municipal
Code (PSMC), the section of the City's administrative appeals board ordinance that
addresses "Administrative appeals hearing procedures," is hereby amended to read
as follows.
(a) Absent an appellant choice to proceed with an appeal under Section
2.50.090(c), no appeal shall be denied or granted except by a majority vote of
the entire board as it may be comprised for any particular hearing of board
members and alternate board members.
(b) In the event that less than five board members and/or alternate board members
are present for, and able to legally participate in the hearing of an appeal, the
appellant has the right to continue the hearing until the next board meeting,
provided that the appellant waives his/her right, pursuant to Section
2.50.080(c), to have the hearing take place at any particular time. Absent a
continuance of the hearing on appeal under this Section 2.50.090(b), an
appellant must proceed to hearing under Section 2.50.090(c).
(c) An appellant may choose to proceed to hearing with the understanding that
25
3.27 18
Ordinance No.
Page 4
three members of the board shall constitute a quorum for the purpose of
conducting the hearing, and that a majority of such quorum may enter any
ruling, decision or other action of the board, including denying or granting the
appeal. When an appellant chooses to proceed to hearing under this Section
2.50.090(c), any ruling, decision, motion or other action that is the subject of a
"tie" vote, will be lost; a "tie" vote on a motion to deny or grant an appeal shall
be deemed a denial of the appeal.
(d) An appellant choice to proceed with an appeal under Section 2.50.090(c) shall
be stated on the record at the time of the hearing.
(e) No board member may vote on the decision if absent from a part of the hearing
unless such board member certifies that he or she listened to or read the
transcript, if any, of the entire proceedings.
(f) All hearings shall be open to the public.
(g) In any hearing conducted by the board, it shall have the power to examine
witnesses and compel their attendance for the production of evidence by
subpoenas issued under the authority of the city council and attested by the city
clerk. The chair may issue subpoenas on behalf of the board under the
authority of the city council. Subpoenas may also be issued at the request of
the parties prior to the commencement of such hearing. No subpoena may be
issued for any reason without the concurrence of the city attorney that there is
good cause for such subpoena to issue, and such subpoena is approved by the
city council. It shall be the duty of the chief of police to cause all such
subpoenas to be served, and the refusal of a person to attend or to testify in
answer to such a subpoena shall subject the person to prosecution in the same
manner set forth by law for failure to appear before the council in response to a
subpoena issued by the council.
(h) The hearing need not be conducted in accordance with the technical rules
relating to evidence and witnesses, but hearings shall be conducted in a
manner most conducive to determination of the truth. Any 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 any common law or statutory rules which might make improper the
admission of such evidence over objection in civil actions. Hearsay evidence
may be used for the purpose of supplementing or explaining any direct
evidence but shall not be sufficient in itself to support a finding unless it would
be admissible over objection in civil actions. The rules of privilege shall be
effective to the same extent that they are now or hereafter may be recognized
in civil actions, and irrelevant and unduly repetitious evidence may be excluded.
Decisions made by the board shall not be invalidated by any informality in the
proceedings, and the board shall not be bound by technical rules of evidence.
4
Ordinance No.
Page 5
(i) The presiding officer shall rule on the admission or exclusion of evidence with
the assistance of the legal advisor to the board.
(j) All parties shall have the right to be heard by the board either in person or by
counsel.
(k) No party shall have the right to cross-examine any other party or witness
except for good cause shown to the satisfaction of the board.
(1) The board shall determine relevancy, weight and credibility of testimony and
evidence. It shall base its findings on the preponderance of the evidence.
(m)The board, prior to or during a hearing, may grant a continuance for any reason
it believes to be important to its reaching a fair and proper decision.
(n) The board, after it concludes the hearing, may deliberate its decision in closed
session if permitted by the Brown Act. Members of the board may request the
attendance of the board's legal counsel to a discussion held in closed or open
session solely for the purpose of rendering legal advice to the commission.
SECTION 6. If any section or provision of this Ordinance is for any reason held to be
invalid or unconstitutional by any court of competent jurisdiction, or contravened by
reason of any preemptive legislation, the remaining sections and/or provisions of this
ordinance shall remain valid. The City Council hereby declares that it would have
adopted this Ordinance, and each section or provision thereof, regardless of the fact
that any one or more section(s) or provision(s) may be declared invalid or
unconstitutional or contravened via legislation.
SECTION 7. Neither introduction nor adoption of this Ordinance represents a "project"
for purposes of the California Environmental Quality Act (CEQA), as that term is
defined by CEQA guidelines (Guidelines) section 15378, because this Ordinance is an
organizational or administrative activity that will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
SECTION 8. On its effective date, this Ordinance shall supersede Ordinance
the Interim Urgency Ordinance with identical regulatory content adopted on even date
herewith.
5 27
3_7 18
Ordinance No.
Page 6
SECTION 9. The Mayor shall sign, and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of applicable law; this Ordinance shall
take effect thirty (30) days after passage.
PASSED AND ADOPTED THIS DAY OF 2018.
AYES:
NOES:
ABSTAIN:
ABSENT:
Robert Moon, Mayor
ATTEST:
Anthony J. Mejia, MMC, City Clerk
APPROVED AS TO FORM:
Edward Z. Kotkin, City Attorney
6