RES-2008-126Officer; and
RESOLUTION NO. 2008 -126
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM TERMINATING THE EXISTING AGREEMENT
WITH VICTOR J. KALETA, APPOINTING MICHAEL H. MILLER
AS THE NEW CITY HEARING OFFICER PURSUANT TO
SECTION 1.12.110 OF THE ANAHEIM MUNICIPAL CODE, AND
APPROVING AN AGREEMENT FOR HEARING OFFICER
SERVICES WITH MICHAEL H. MILLER
WHEREAS, the City Council, by its Ordinance No. 5866, and in order to conform
previously existing language in the Anaheim Municipal Code relating to selection of a hearing
officer with the requirements set forth by the California Supreme Court in Haas v. County of San
Bernardino (2002) 27 Cal. 4th 1017, has created the office of City Hearing Officer to hear prescribed
matters, thereby ensuring that the appointment does not create the possibility that favorable decisions
will be rewarded; and
WHEREAS, Ordinance No. 5866 provides that the City Hearing Officer shall be
appointed by Resolution of the City Council; and
WHEREAS, the City Council, by resolution, previously appointed Victor J. Kaleta
as the City Hearing Officer for a period of five years, which term was due to expire on September
2, 2008; and
WHEREAS, by letter dated June 30, 2008, Mr. Kaleta requested early termination
of his agreement; and
WHEREAS, it is now necessary to replace Mr. Kaleta with a new City Hearing
WHEREAS, Michael H. Miller is an attorney experienced in both municipal law and
presiding over administrative hearings, and is qualified to conduct fair and impartial hearings on
behalf of the City; and
WHEREAS, it is the intent of the City Council to appoint Mr. Miller as the City
Hearing Officer for a period of three years, without the possibility for renewal of the contract, to
accomplish the following major objectives:
1. To ensure that the appointment of City Hearing Officer does not create the
possibility that favorable decisions will be rewarded.
2. To hear all matters to be conducted by the City Hearing Officer pursuant to
the provisions of Ordinance No. 5866.
3. To conduct fair, timely and impartial hearings.
NOW, THEREFORE, BE IT RESOLVED that the City Council hereby agrees to
terminate the existing agreement by and between the City and Victor J. Kaleta, which termination
shall be effective upon adoption of this resolution; and
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BE IT FURTHER RESOLVED that based on the foregoing, and in order to
accomplish its objectives, the City Council hereby appoints Michael H. Miller to serve as the City
Hearing Officer pursuant to the Agreement for Hearing Officer Services attached hereto as Exhibit
"A" and incorporated herein by this reference (hereinafter "Agreement for Hearing Officer
Services and
BE IT FURTHER RESOLVED that said Agreement for Hearing Officer Services be,
and the same is hereby, approved, and the City Attorney is hereby authorized and directed to execute
said agreement for and on behalf of the City and to administer said agreement and the terms thereof
on behalf of the City.
THE FOREGOING RESOLUTION is approved and adopted by the City Council of
the City of Anaheim this 1 5th day of July 2008, by the following roll call
vote:
AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Kring
NOES: NONE
AB SENT: NONE
ABSTAIN: NONE
ATTEST:
CITY C ERK OF THE CITY OF ANAHEIM
69682.1
MAYOR OF THE CITY OF ANAHEIM
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AGREEMENT FOR HEARING OFFICER SERVICES
THIS AGREEMENT, dated solely for purposes of identification this
day of 2008, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
MICHAEL H. MILLER, ESQ.,
hereinafter referred to as "HEARING OFFICER
WITNESSETH:
WHEREAS, in order to conform to the California Supreme Court decision in
Haas v. County of San Bernardino, (2002) 27 Ca1.4th 1017, the City Council adopted Ordinance
No. 5866 revising numerous sections of the Anaheim Municipal Code relating to the referral of
matters to hearing officers and further created the position of City Hearing Officer, appointed by
resolution of the City Council, to hear prescribed matters arising during a designated period of
time without the possibility of extension or renewal of the appointment; and
WHEREAS, HEARING OFFICER is an attorney experienced in both municipal
law and presiding over administrative hearings, and is qualified and willing to conduct fair and
impartial hearings on behalf of ANAHEIM in accordance with Ordinance 5866, the Council
resolution authorizing his appointment and the terms and conditions set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE PROMISES,
COVENANTS, AND CONDITIONS HEREIN CONTAINED, AND THE RECITALS SET
FORTH ABOVE, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:
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1. SCOPE OF SERVICES
The HEARING OFFICER shall perform the services of the City Hearing Officer
as established by City Council Ordinance No. 5866 and set forth in the Anaheim Municipal
Code, which services shall include the following:
A. Act as a hearing officer to conduct evidentiary hearings and either prepare
fmdings and recommendations to the City Council or, in specified circumstances,
make final decisions on behalf of ANAHEIM with regard to certain types of due
process hearings as established by Ordinance 5866 and provisions of the Anaheim
Municipal Code, including, but not limited to, hearings relating to Sex Oriented
Businesses, appeals of decisions to terminate a use or variance, and transient
occupancy tax matters where the amount in dispute exceeds Fifty Thousand
Dollars ($50,000.00).
B. The HEARING OFFICER shall voluntarily disqualify himself from any case in w
which he cannot accord a fair and impartial hearing or consideration.
C. The HEARING OFFICER's authority to hear and consider the matter before him
shall be limited to only those matters within the HEARING OFFICER =s subject
matter jurisdiction.
D. The HEARING OFFICER shall conduct the hearing and consider the evidence
independently, and shall not be under the authority, direction or discretion of any
officer or employee of ANAHEIM who has served as investigator, prosecutor, or
advocate in the proceeding or its preadjudicative stage.
E. The HEARING OFFICER shall perform all services provided pursuant to this
Agreement in a professional, timely and ethical manner
2. TERM
This Agreement is contingent upon the adoption of a resolution of the City
Council pursuant to Ordinance No. 5866 authorizing the appointment of HEARING OFFICER.
The term of this Agreement shall be for three (3) years, unless terminated sooner pursuant to
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Paragraph 7; provided, however, that if HEARING OFFICER has commenced a hearing prior to
the termination date, HEARING OFFICER may complete the hearing process, and the
Agreement shall terminate upon the completion of said process. This Agreement shall not, under
any circumstances, be extended or renewed.
3. COMPENSATION
A. ANAHEIM agrees to pay, and the HEARING OFFICER agrees to accept, as full
compensation for the HEARING OFFICER's services, compensation at the rate of
One Hundred Fifty Dollars ($150.00) per hour for the period of July 15, 2008
through July 14, 2009, One Hundred Sixty -Five Dollars ($165.00) per hour for
period of July 15, 2009 through July 14, 2010, and One Hundred Seventy -Five
Dollars per hour for the period of July 15, 2010 through July 14, 2011, or until
such time as the Agreement terminates as set forth in Paragraph 2 above. Travel
time to and from hearings shall not be billed to ANAHEIM.
B. ANAHEIM also agrees to reimburse HEARING OFFICER for the following out
of- pocket expenses only: travel, long distance telephone, printing, and
postage /delivery charges. Mileage will be reimbursed at the IRS allowable rate in
effect at the time of the request for reimbursement.
C. HEARING OFFICER shall submit, at the conclusion of each matter handled by
HEARING OFFICER, an itemized invoice to ANAHEIM which identifies the
matter handled by HEARING OFFICER, the hours worked, and the applicable
hourly rate. An itemization of reimbursable expenses claimed by HEARING
OFFICER, and any supporting documentation therefore, shall be included in the
invoice.
D. ANAHEIM agrees to pay HEARING OFFICER for work performed and
expenses incurred within thirty (30) days after submission of a statement from
HEARING OFFICER describing such work and expenses.
4. AMENDMENT
This Agreement may be amended only by written agreement between the parties.
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5. COMPLIANCE WITH APPLICABLE LAWS
In the performance of this agreement, the HEARING OFFICER agrees to abide
by and conform to all applicable laws of the United States, the State of California, and the
Charter, ordinances, and policies of ANAHEIM.
6. CAPACITY AS INDEPENDENT CONTRACTOR
The HEARING OFFICER shall perform his obligations under this agreement as
an independent contractor and not as an employee of ANAHEIM.
7. TERMINATION
Either party may terminate this Agreement upon sixty (60) days written notice to
the other party, provided, however, that HEARING OFFICER agrees that he will not exercise his
right to terminate the Agreement under this Paragraph during the pendency of any proceeding in
which he is presiding as the City's Hearing Officer.
8. NOTICES
Notices and communication concerning this Agreement shall be sent to the
following addresses:
ANAHEIM
City of Anaheim
Attention: City Clerk
200 S. Anaheim Boulevard
Anaheim, CA 92805
Either party may, by notice to the other party, change the address specified above.
Service of notice or communication shall be complete when received at the designated address.
9. ENTIRE AGREEMENT
This writing constitutes the entire agreement between the parties with respect to
the subject matter hereof, and supersedes all prior oral or written representations or written
agreements which may have been entered into between the parties. No modification or revision
to this Agreement shall be of any force or effect, unless the same is in writing and executed by
the parties hereto.
10. EFFECTIVE DATE
The effective date of this Agreement shall be July 15, 2008.
LAW FIRM
Michael H. Miller, Esq.
3615 Amesbury Road
Los Angeles, CA 90027
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION: ATTEST:
DATE OF EXECUTION:
APPROVED AS TO FORM:
JACK L. WHITE, CITY ATTORNEY
By
Cristina L. Talley
Sr. Assistant City Attorney
69664.1
69703 (word)
CITY OF ANAHEIM,
a municipal corporation
By
Mayor
City Clerk
"ANAHEIM"
MICHAEL H. MILLER, ESQ.
"HEARING OFFICER"
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