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: