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2010-06-10 Special Meeting1. ROLL CALL Kodiak Island Borough Assembly Special Meeting Agenda Thursday, June 10, 2010, 7:30 p.m. Borough Conference Room 2. CITIZENS COMMENTS (Limited to Three Minutes per Speaker) 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. Ordinance No. FY2010 -09 Amending Title 16 Subdivision Chapter 16.90 Appeals to the Assembly Section 16.90.100 Hearing Examiner and Title 17 Zoning Chapter 17.225 Appeals to the Board of Adjustment Section 17.225.090 Hearing Examiner. 4. ADJOURNMENT This meeting was called by the Mayor. Page 1 of 1 TITLE: Ordinance No. FY2010 -09 Amending Title 16 Subdivision Chapter 16.90 Appeals to the Assembly Section 16.90.100 Hearing Examiner and Title 17 Zoning Chapter 17.225 Appeals to the Board of Adjustment Section 17.225.090 Hearing Examiner. SUMMARY: The KIBC provides no other guidance on the qualifications or standards for a hearing officer under 16.90.100 and 17.225.090 which have apparently been in effect since 1990 or 1991. There is likewise no guidance under AS 29.40.050 which has been in effect at least since 1985. In 2004 the Alaska Legislature authorized the creation of the Office of Administrative Hearings in AS 44.64. The statute refers to the hearing officers in its department as administrative law judges (ALJs). Among other things, AS 44.64 sets standards for ALJs (AS 44.64.040), establishes a code of conduct for them (AS 44.64.050) and sets procedures for hearings (AS 44.64.060). In short, the state has already established the qualifications and standards for hearing officers. The suggested code changes would allow the borough to immediately refer appropriate appeals to the Office of Administrative Hearings rather than first obtaining an Assembly resolution. FISCAL NOTES: Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: Form Ver. 06/30/2009 KODIAK ISLAND BOROUGH AGENDA STATEMENT JUNE 10, 2010 SPECIAL MEETING 4 il-e° ITEM NO: 3.A RECOMMENDED MOTION: Move to adopt Ordinance No. FY2010 -09 in first reading to advance to public hearing at the next regular meeting of the Assembly. KODIAK ISLAND BOROUGH ORDINANCE NO. FY2010 -09 Introduced by: Requested by: Drafted by: Introduced: Public Hearing: Adopted: Borough Assembly Borough Clerk Borough Attorney 06/10/2010 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH AMENDING TITLE 16 SUBDIVISION CHAPTER 16.90 APPEALS TO THE ASSEMBLY SECTION 16.90.100 HEARING EXAMINER AND TITLE 17 ZONING CHAPTER 17.225 APPEALS TO THE BOARD OF ADJUSTMENT SECTION 17.225.090 HEARING EXAMINER WHEREAS, the Kodiak Island Borough Code (KIBC) provides no other guidance on the qualifications or standards for a hearing officer under Sections 16.90.100 and 17.225.090 which have apparently been in effect since 1990 or 1991. There is likewise no guidance under Alaska Statutes (AS) 29.40.050 which has been in effect at least since 1985; and WHEREAS, in 2004, the Alaska Legislature authorized the creation of the Office of Administrative Hearings in AS 44.64 which refers to the hearing officers in its department as administrative law judges (ALJs); and WHEREAS, among other things, AS 44.64.040 sets standards for ALJs; AS 44.64.050 establishes a code of conduct for them; and AS 44.64.060 sets procedures for hearings; and WHEREAS, the following suggested changes would allow the borough to immediately refer appropriate appeals to the Office of Administrative Hearings rather than first obtaining an Assembly resolution; NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT: Section 1: This ordinance is of a general and permanent nature and shall become a part of the Kodiak Island Borough Code of Ordinances; and Section 2: Title 16 Subdivision Chapter 16.90 Appeals to the Assembly Section 16.90.100 Hearing Examiner is hereby amended as follows: 16.90.100 Hearing examiner. Where the subdivider is the borough or a municipality, the appeal shall be heard and decided upon by a hearing examiner. The clerk shall refer the appeal to the Alaska Office of Administrative Hearings under AS 44.64.030(b). In rendering a decision, the hearing examiner shall follow the rules and procedures as set forth in the preceding sections of this chapter. Section 3: Title 17 Zoning Chapter 17.225 Appeals to the Board of Adjustment Section 17.225.090 Hearing Examiner is hereby amended as follows: 17.225.090 Hearing examiner. Kodiak Island Borough Ordinance No. FY2010 -09 Page 1 of 2 When the borough is either the applicant or appellant, the appeal shall be heard and 50 51 decided upon by a hearing examiner. 52 - '- - - - - • :e = - - - - - • . The clerk shall refer the appeal to the 53 Alaska Office of Administrative Hearings under AS 44.64.030(b). In rendering a decision, the 54 hearing examiner shall follow the rules and procedures as set forth in the preceding sections 55 of this chapter. 56 57 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 58 THIS DAY OF 2010 59 60 61 62 63 64 65 66 67 ATTEST: 68 69 70 71 Nova M. Javier, MMC, Borough Clerk KODIAK ISLAND BOROUGH Jerome M. Selby, Borough Mayor Kodiak Island Borough, Alaska Ordinance No. FY2007 -16 Page 2 of 2 Sec. 29.40.050. Appeals from administrative decisions. (a) By ordinance the assembly shall provide for an appeal from an administrative decision of a municipal employee, board, or commission made in the enforcement, administration, or application of a land use regulation adopted under this chapter. The assembly may provide for an appeal to a court, hearing officer, board of adjustment, or other body. The assembly shall provide for an appeal from a decision on a request for a variance from the terms of a land use regulation when literal enforcement would deprive a property owner of rights commonly enjoyed by other properties in the district. (b) By ordinance the assembly may provide for appointment of a hearing officer, or for the composition, appointment, and terms of office of a board of adjustment or other body established to hear appeals from administrative actions. The assembly may define proper parties and prescribe evidentiary rules, standards of review, and remedies available to the hearing officer, board of adjustment, or other body. Sec. 44.64.030. Jurisdiction of the office. (a) The office shall conduct all adjudicative administrative hearings required under the following statutes or under regulations adopted to implement the statutes: (1) AS 04.11.510 (b)(1) and (c) (alcoholic beverages license); (2) AS 05.15 (charitable gaming); (3) AS 05.20 (recreational devices); (4) AS 05.90.001 (special racing events); (5) AS 06 (banks, financial institutions, and fund claims), except as provided otherwise by AS 06.60.590 ; (6) AS 08 (occupational licensing), other than AS 08.08, AS 08.18.125, and AS 08.62.046 ; (7) AS 10.06 (Alaska Corporations Code); (8) AS 10.13 (Alaska BIDCO Act); (9) AS 10.25.375 (Electric and Telephone Cooperative Act); (10) AS 10.50.408 (limited liability companies); (11) AS 14.11.016 (education- related facility grants); (12) AS 14.18 (discrimination in public education); (13) AS 14.25.006 (teachers' retirement system); (14) AS 14.25.175 (waiver of adjustments under teachers' defined benefit plan); (15) AS 14.48 (postsecondary educational institutions); (16) AS 17.20 (Alaska Food, Drug, and Cosmetic Act), other than AS 17.20.060 and 17.20.360; (17) AS 21.09, AS 21.22.190 , AS 21.27, except under AS 21.27.420 (d), AS 21.34, AS 21.36, AS 21.69, AS 21.86.200 , AS 21.87, and AS 21.89 (insurance); (18) AS 25.27 (child support services); (19) AS 32.06 (Uniform Partnership Act); (20) AS 34.45 (unclaimed property); (21) AS 34.55.024 and 34.55.026 (Uniform Land Sales Practices Act); (22) AS 36.30 (State Procurement Code), other than AS 36.30.627(a)(2); (23) AS 38.05.065 (contracts for sale of state land); (24) AS 39.30.165 (supplemental benefits system); (25) AS 39.30.335 (teachers' and public employees' health reimbursement arrangement plan); (26) AS 39.35.006 (public employees' retirement system); (27) AS 39.35.522 (waiver of adjustments under public employees' defined benefit plan); (28) AS 39.45.055 (public employees' deferred compensation program); (29) AS 39.52 (Alaska Executive Branch Ethics Act); (30) AS 43.23 (permanent fund dividends); (31) AS 43.70 (Alaska Business License Act); (32) AS 44.50 (notaries public); (33) AS 44.77 (claims against the state); (34) AS 45.48.080 (c) (breach of security involving personal information); (35) AS 45.30.040 (mobile homes); (36) AS 45.55 (Alaska Securities Act); (37) AS 45.57 (Takeover Bid Disclosure Act); (38) AS 46 (water, air, energy, and environmental conservation), other than AS 46.03.820 , 46.03.850, AS 46.39, and AS 46.40; (39) AS 47.32 (licensing by the Department of Health and Social Services); (40) AS 47.45 (longevity bonuses). (b) An agency may request the office to conduct an administrative hearing or other proceeding of that agency or to conduct several administrative hearings or other proceedings under statutes not listed in (a) of this section. The office may provide the service after entering into a written agreement with the agency describing the services to be provided and providing for reimbursement by the agency to the office of the costs incurred by the office in providing the services. (c) To the extent otherwise permitted by law, the agency may delegate to the administrative law judge assigned to conduct the hearing on behalf of the agency the authority to make a final agency decision in the matter. The final decision may be appealed to the superior court by any party. (d) Nothing in this chapter may be construed to create a right to a hearing or to require a hearing that is not required under other law. Sec. 44.64.040. Administrative law judges. (a) An administrative law judge must be admitted to practice law in this state and must have been admitted to practice in this state for at least two years before being employed or retained with the office. The chief administrative law judge shall establish additional qualifications for administrative law judges employed or retained by the office and for those administrative law judges that may be assigned to particular types of cases. An administrative law judge is in the partially exempt service. Notwithstanding AS 39.25.120 (b), full -time administrative law judges employed by the office are subject to the personnel rules adopted under AS 39.25.150 (7), (15), and (16). (b) An administrative law judge employed or retained by the office may, in conducting an administrative hearing for an agency, exercise the powers authorized by law for exercise by that agency in the performance of its duties in connection with the hearing. An administrative law judge may (1) engage in alternative dispute resolution under regulations adopted by the chief administrative law judge that is in addition to any alternate dispute resolution procedure used by an agency before the case is referred to the office; (2) order a party, a party's attorney, or another authorized representative of a party to pay reasonable expenses, including attorney fees, incurred by another party as a result of actions done in bad faith or as a result of tactics used frivolously or solely intended to cause unnecessary delay; (3) perform other necessary and appropriate acts in the performance of official duties. (c) An administrative law judge employed by the office must devote full time to the duties of the office unless appointed to a position that is less than full -time. An administrative law judge employed by the office may not perform duties inconsistent with the duties and responsibilities of an administrative law judge. (d) The office may enter into a contract with an individual who meets the qualifications established in (a) of this section to serve as an administrative law judge in a particular administrative hearing or in several hearings of the same type. The individual is subject to AS 39.52 (Alaska Executive Branch Ethics Act). Notwithstanding AS 36.30.015(d), the office may contract for or hire an administrative law judge without notifying or securing the approval of the Department of Law. Sec. 44.64.050. Hearing officer conduct. (a) An administrative law judge employed full time by the office or a hearing officer employed full time by an agency may not serve in any other judicial or quasi - judicial capacity or engage in the private practice of law. (b) The chief administrative law judge shall, subject to AS 39.52.920 and by regulation, adopt a code of hearing officer conduct. The code shall apply to the chief administrative law judge, administrative law judges of the office, and hearing officers of each other agency. The following fundamental canons of conduct shall be included in the code: in carrying out official duties, an administrative law judge or hearing officer shall (1) uphold the integrity and independence of the office; (2) avoid impropriety and the appearance of impropriety; (3) perform the duties of the office impartially and diligently; (4) conduct unofficial activities in ways that minimize the risk of conflict with the obligations of the office; and (5) refrain from inappropriate activity in seeking employment with another agency or employer or in seeking reappointment. (c) Except as provided in (e) of this section, the chief administrative law judge shall receive and consider all complaints against administrative law judges or hearing officers employed or retained by the office or another agency alleging violations of (a) of this section or of the code of hearing officer conduct. The chief administrative law judge shall deliver the complaint to the attorney general when the chief administrative law judge determines that the conduct alleged, if true, would constitute a violation of (1) subsection (a) of this section; or (2) the code and would warrant disciplinary action under the regulations adopted under (b) of this section. (d) If the attorney general determines that a violation has occurred, the attorney general shall submit written findings to the agency that employed or retained the administrative law judge or hearing officer who is the subject of the complaint together with recommendations for corrective or disciplinary action. If the administrative law judge is employed or retained by the office, the chief administrative law judge shall take appropriate corrective or disciplinary action. (e) The attorney general shall, by regulation, establish procedures to implement (d) of this section, including procedures for investigating and holding hearings on complaints. The attorney general shall receive and consider any complaint filed against the chief administrative law judge under this section, and may investigate or hold a hearing on the complaint in compliance with the regulations adopted under this subsection. Sec. 44.64.055. Reimbursement agreements. The office may enter into agreements for reimbursement for services related to an administrative hearing from a school district, municipality, or other governmental entity if the reimbursement is authorized by other law. Sec. 44.64.060. Procedure for hearings. (a) The chief administrative law judge shall, by regulation, establish procedures for administrative hearings conducted by the office. Each administrative hearing under the jurisdiction of the office or that has been transferred to the office by an agency shall be conducted in accordance with statutes that apply to that hearing, including, if applicable, AS 44.62 (Administrative Procedure Act). In case of conflict between this section and another applicable statute establishing procedures for administrative hearings, the other statute prevails. However, to the extent regulations adopted by an agency for the conduct of an administrative hearing conflict with regulations adopted by the chief administrative law judge under this subsection, the regulations adopted by the chief administrative law judge control to the maximum extent possible without conflicting with applicable statutes. (b) When an agency receives a request for a hearing that is subject to AS 44.64.030 , the agency shall, within 10 days and in writing, deny the request for reasons provided by law or grant the request and refer the case to the office. The agency shall immediately give notice of the denial or referral to the requestors and the office. If the request is denied, the denial may be appealed to the superior court as provided by other law. If the request is granted, the agency shall, within 15 days after receiving the request, compile and transmit to the office a copy of the request for a hearing, the names, addresses, and telephone numbers of all parties and their representatives, and the agency's decision, if any, together with the record relied on to support the decision. Any information provided to the office that is confidential by law shall be identified by the agency as confidential and shall be kept confidential by the office. (c) The agency may, with materials transmitted under (b) of this section, request the chief administrative law judge to permit the individual, board, or commission that will make the final decision to participate with the assigned administrative law judge in the conduct of the administrative hearing. The chief administrative law judge shall determine the degree and manner of participation and may terminate that participation at any time. However, the individual, board, or commission that participates under this subsection may not serve as the administrative law judge or preside during the hearing and may not take action on behalf of the agency in the agency's capacity as a party to the proceedings. (d) An administrative law judge employed or retained by the office shall, within 120 days after the date the agency received the request for a hearing, prepare a proposed decision, unless another time period is provided by law or agreed to by the parties and the chief administrative law judge. The administrative law judge shall immediately submit the proposed decision to the agency. (e) A proposed decision in an administrative hearing shall be in a form that may be adopted as the final decision by the agency with authority to make the final decision. The proposed decision is a public record, except as otherwise provided by statute. A copy of the proposed decision shall be served by the office on each party in the case or on the attorneys representing those parties in the hearing. Unless the office has established a shorter time period or another statute has established a different time period, within 30 days after the proposed decision is served, a party may file with the agency a proposal for action under (1) - (5) of this subsection. The agency with authority to make a final decision in the case retains agency discretion in the final disposition of the case and shall, within 45 days after the date the proposed decision is served or at the next regularly scheduled meeting that occurs at least 45 days after the proposed decision is served, do one or more of the following: (1) adopt the proposed decision as the final agency decision; (2) return the case to the administrative law judge to take additional evidence or make additional findings or for other specific proceedings, in which case the administrative law judge shall complete the additional work and return the revised proposed decision to the agency within 45 days after the original decision was returned under this paragraph; (3) exercise its discretion by revising the proposed enforcement action, determination of best interests, order, award, remedy, sanction, penalty, or other disposition of the case, and adopt the proposed decision as revised; (4) in writing, reject, modify, or amend a factual finding in the proposed decision by specifying the affected finding and identifying the testimony and other evidence relied on by the agency for the rejection, modification, or amendment of the finding, and issue a final agency decision; (5) in writing, reject, modify, or amend an interpretation or application in the proposed decision of a statute or regulation directly governing the agency's actions by specifying the reasons for the rejection, modification, or amendment, and issue a final agency decision. (f) If a final decision is not issued timely in accordance with (e) of this section, the administrative law judge's proposed decision is the final agency decision. Sec. 44.64.070. Disqualification of administrative law judge. (a) The chief administrative law judge or an administrative law judge employed or retained by the office is disqualified from a case in which the administrative law judge cannot accord a fair and impartial hearing or for other reasons established in the code of hearing officer conduct. (b) A party may request the disqualification of the chief administrative law judge or another administrative law judge by filing an affidavit, before the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded by that administrative law judge. Notwithstanding AS 44.62.450 (c), upon receipt of the affidavit, the administrative law judge assigned to the administrative hearing shall make a determination. If the affiant objects to the decision, the matter shall be decided by the chief administrative law judge, whose decision is final, or if the hearing is assigned to the chief administrative law judge, by the attorney general, whose decision is final. (c) In addition to disqualification of an administrative law judge under (a) and (b) of this section, each side is entitled to change the assigned administrative law judge once. Two or more parties aligned on the same side of an action shall be treated as one side for purposes of this subsection, but the chief administrative law judge may allow an additional change to a party whose interests are adverse to the interests of another party on the same side. A party wishing to exercise the right to change the administrative law judge shall give notice to the chief administrative law judge within five days after notice is given that the case has been assigned. A party waives the right to a change in the assigned administrative law judge by participating before that administrative law judge in any proceeding or conference involving the case. Sec. 44.64.080. Agency cooperation. (a) All agencies shall cooperate with the chief administrative law judge and with other administrative law judges of the office in the matters involving the duties of the office. (b) Except as provided under AS 44.64.070 or by regulation adopted under this chapter, an agency may not select or reject a particular administrative law judge for assignment to an administrative hearing. (c) After an administrative hearing is referred by an agency to the office for hearing, the agency may not take further adjudicatory action in the case, except as a party litigant or to render a final decision as provided by law. This subsection does not otherwise limit the agency's authority to take action affecting a party to the case. Sec. 44.64.090. Administrative hearing records. (a) The office shall acquire and organize statistical and other information relating to administrative hearings of the office and of other agencies. The office shall acquire and organize copies of proposed and final agency decisions in administrative hearings and copies of court decisions resulting from those administrative hearings. The information and decisions shall be made available to the public, agencies, and the legislature. The office shall make final agency decisions reached after administrative hearings available online through an electronic data base. (b) This section does not apply to records that are confidential or privileged. Sec. 44.64.095. Federal requirements. Federal requirements applicable to an administrative hearing prevail to the extent they conflict with any provision of AS 44.64.010 - 44.64.200. Sec. 44.64.200. Definitions. In this chapter, (1) "administrative hearing" means a quasi-judicial hearing before an agency; it does not include an informal conference or review held by an agency before a final decision is issued or a rate - making proceeding or other nonadjudicative public hearing; (2) "administrative law judge" means a hearing officer who is retained or employed by the office; (3) "agency" means an agency of the executive branch of state government, including an officer, a division, or another subunit of an agency, a board or commission, a public corporation, and the University of Alaska; (4) "hearing officer" means an individual who presides over the conduct of an administrative hearing and who is retained or employed by an agency for that purpose; (5) "office" means the office of administrative hearings established in AS 44.64.010 . 1. ROLL CALL Kodiak Island Borough Assembly Special Meeting Guidelines Thursday, June 10, 2010, 7:30 p.m., Borough Conference Room KIBC 2.30.020.... the Chair shall cause the record to reflect the absence of the member, the REASON for the absence, and whether the absence is excused by the Assembly. Recommended motion: Move to specifically excuse Assembly members Branson and Kaplan who are absent for personal reasons. VOICE VOTE ON MOTION. 2. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) A. Agenda items not scheduled for public hearing and general comments. ASK SPEAKERS TO SIGN IN AND STATE THEIR NAME FOR THE RECORD. 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. Ordinance No. FY2010 -09 Amending Title 16 Subdivision Chapter 16.90 Appeals to the Assembly Section 16.90.100 Hearing Examiner and Title 17 Zoning Chapter 17.225 Appeals to the Board of Adjustment Section 17.225.090 Hearing Examiner. Recommended motion: Move to adopt Ordinance No. FY2010 -09 in first reading to advance to public hearing at the next regular meeting of the Assembly. Staff Report — Manager Gifford Assembly discussion and amendments may be offered at this time. ROLL CALL VOTE ON MOTION. 4. ADJOURNMENT Recommended motion: Move to adjourn the meeting. ROLL CALL VOTE ON MOTION. Kodiak Island Borough Assembly Guidelines June 10, 2010 Page 1 BY: SECOND: °I BY: / I SECOND: 1 i 1 9 0 BY: l SECOND: 1\\ 04' 0 ^�,,, ,0 BY: f V ( / f'' SECOND: BY: SECOND: YES NO/ YES NO YES NO YES NO YES NO Ms. Branson ✓ Ms. Branson Ms. Branson Ms. Branson Ms. Branson Mr. Friend f Mr. Friend Mr. Friend / ✓ Mr. Friend ✓ Mr. Friend Ms. Fulp \ Ms. Fulp Ms. Fulp Ms. Fulp V Ms. Fulp Ms. Jeffrey V Ms. Jeffrey Ms. Jeffrey V Ms. Jeffrey V Ms. Jeffrey Mr. Kaplan 6 Mr. Kaplan Mr. Kaplan , Mr. Kaplan / Mr. Kaplan Ms. Lynch Ms. Lynch Ms. Lynch ` V Ms. Lynch Ms. Lynch Ms. Stutes Ms. Stutes Ms. Stutes V Ms. Stutes V Ms. Stutes TOTAL: TOTAL: TOTAL: /) () TOTAL: � () TOTAL: The mayor may not vote except in the case where only six members of the assembly are present and there is a three /t ree tie vote of the assembly. Mayor Selby Mayor Selby Mayor Selby Mayor Selby Mayor Selby KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET Regular Special ✓ Date: alitikt 10 got Adjourned: �, (/ • Convened: