2003-176RESOLUTION NO. 2003R- 176
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM APPOINTING THE CITY HEARING OFFICER
PURSUANT TO SECTION 1.12.110 OF THE ANAHEIM
MUNICIPAL CODE AND APPROVING AN AGREEMENT FOR
LEGAL SERVICES WITH VICTOR J. KALETA.
WHEREAS, The California Supreme Court has held that a temporary administrative
hearing officer has a pecuniary interest requiring disqualification when the government unilaterally
selects and pays the officer on an ad hoc basis and the officer's income from future adjudicative work
depends on the government's good will. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017,
119 Cal. Rptr. 2d 341); and
WHEREAS, the Supreme Court in Haas stated that agencies that appoint temporary
administrative heating officers must do so in a way which does not create the risk that favorable
decisions will be rewarded with future remunerative work; and
WHEREAS, the Haas court, in footnote 22 of its decision, held that an attorney might
be appointed to hear all cases arising during a designated period; and
WHEREAS, no bias has been demonstrated as a result of utilization of previously
existing provisions of the Anaheim Municipal Code relating to appointment of a hearing officer, and
the hearings conducted have resulted in impartial consideration and recommendations by the persons
so appointed; and
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 in the Haas decision, 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, Victor J. Kaleta is an attorney experienced in municipal law who 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 the City Hearing Officer
for a period of five years, without the possibility for renewal of the contract, to accomplish the
following major objectives:
To ensure that the appointment of City Hearing Officer does not create the
possibility that favorable decisions will be rewarded.
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 based on the foregoing, and in order
to accomplish its objectives, the City Council hereby appoints Victor J. Kaleta to serve as the City
Hearing Officer pursuant to the Agreement for Legal Services attached hereto as Exhibit "A" and
incorporated herein by this reference (hereinafter "Agreement for Legal Services"); and
BE IT FURTHER RESOLVED that said Agreement for Legal 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 26th day of August, 2003/~ ~
MAY F ANAHEIM
ATTEST:
,.~.~ ..L~-,._.~_' ~
CITY CLERK OF THE CITY OF ANAHEIM
50803.1\SMANN~ugust 19, 2003
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EXHIBIT "A"
AGREEMENT FOR LEGAL SERVICES
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ORI$1NAL
AGREEMENT FOR LEGAL SERVICES
THIS AGREEMENT, dated solely for purposes of
identification this 26th day of August, 2003, is made and entered
into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
N
D
VICTOR J. KALETA, ESQ.,
hereinafter referred to as "HEARING OFFICER".
W I T N E S S E T H:
WHEREAS, Anaheim is one of numerous cities throughout the
State of California which has historically used the services of an
outside hearing officer to conduct evidentiary hearings and either
make recommendations or take action with regard to certain types
of due process hearings as enumerated in the municipal code; and
WHEREAS, the California Supreme Court has held that use
of a contract hearing officer by a public agency violates the due
process rights of the parties involved or interested in the hearing
where the hearing officer is unilaterally selected and compensated
by the agency on a case-by-case basis (Haas v. County of San
Bernardino (2002) 27 Cal.4th 1017); and
WHEREAS, The Court held in Haas that, since the hearing
officer's income from future work depends upon the agency's good
will, the hearing officer is motivated to make decisions favorable
to the agency in such instances; and the Court went on to point out
that this problem would be avoided if the contract with the hearing
officer assured that the hearing officer would hear all of the
cases for which a city hearing officer is required for a designated
period of time and, upon expiration of the contract period, the
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hearing officer would not be subject to further appointment for a
reasonable period of time; and
WHEREAS, to conform to the Haas decision, the City
Council recently 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 to hear prescribed matters arising during a
designated period of time without the possibility of extension or
renewal of the appointment; and
WHEREAS, Victor J. Kaleta is an attorney experienced in
municipal law who is qualified and willing to conduct fair and
impartial hearings on behalf of ANAHEIM, and fulfill the objectives
set forth in the resolution, which are:
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 5866;
3. To conduct fair, timely and impartial hearings; and
WHEREAS, Ordinance No. 5866 provides that the City
Hearing Officer shall be appointed by resolution of the City
Council, and this Agreement is contingent upon adoption by the City
Council of a resolution appointing Victor J. Kaleta as the City
Hearing Officer; and
WHEREAS, to comply with the Haas decision and Ordinance
No. 5866, the parties wish to enter into this Agreement for Legal
Services.
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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:
1. SERVICES TO BE PROVIDED
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 findings 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 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.
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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.
The HEARING OFFICER shall perform all services provided
pursuant to this Agreement in a professional, timely and
ethical manner.
COMPENSATION
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 Twenty-Five dollars ($125.00) per hour, with a
three (3) hour minimum. The hourly rate shall be
increased by Five Dollars ($5.00) per hour on each
anniversary date of this Agreement. Services billed
will include: hearing time from the scheduled start time
to the conclusion of the hearing; time to review the
transcript or tape recording of the hearing and all
exhibits offered at the hearing; preparation of the
administrative record and written decision, if required.
Travel time shall not be charged.
ANAHEIM will, in addition, reimburse the HEARING OFFICER
for non-office out-of-pocket expenses, excluding normal
and customary overhead, paid by the HEARING OFFICER in
connection with the hearings assigned to the HEARING
OFFICER such as printing costs (of legal documents),
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long distance telephone calls, and travel costs.
Mileage will be charged at the then current IRS
allowable rate. The HEARING OFFICER shall pay directly
for such items and include such expenses in the invoice
to ANAHEIM. The HEARING OFFICER shall not be reimbursed
for secretarial services, copying and word processing
within his office or normal operating expenses. ANAHEIM
shall pay the HEARING OFFICER for the HEARING OFFICER's
services.
C. The HEARING OFFICER shall submit, after completion of
the matter or decision is rendered, an itemized invoice
to ANAHEIM which documents the hours worked, the hearing
on which work was undertaken, and the applicable hourly
rates. An itemization of reimbursable expenses claimed
by the HEARING OFFICER, supported by receipts, shall be
included in the invoice.
D. ANAHEIM shall pay the approved invoice in accordance
with ANAHEIM's customary practice and procedures.
3. AMENDMENT
This Agreement may be amended only by written agreement
between the parties.
4. 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.
5. CAPACITY AS INDEPENDENT CONTRACTOR
The HEARING OFFICER shall perform his obligations under
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this agreement as an independent contractor and not as an employee
of ANAHEIM.
6. TERMINATION
This Agreement and all services to be rendered hereunder
shall be terminated on the fifth (5th) anniversary of its Effective
Date, except that if the HEARING OFFICER has commenced a hearing
prior to the termination date, the HEARING OFFICER may complete the
hearing process, and the Agreement shall terminate upon the
completion of said process.
renewed.
7.
This Agreement cannot be extended or
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
LAW FIRM
Victor J. Kaleta, Esq.
Attorney at Law
420 South Allen Avenue
Pasadena, CA 91106-3505
Telephone: (626) 792-9829
FAX: (626) 792-0326
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.
8. 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
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parties hereto.
9. EFFECTIVE DATE
The effective date of this Agreement shall be the latest
date of execution hereinafter set forth opposite the names of the
signators hereto. In the event the HEARING OFFICER fails to set
forth a date of execution opposite the name of the HEARING OFFICER,
HEARING OFFICER hereby authorizes ANAHEIM, by and through its
representative, to insert the date of execution by the HEARING
OFFICER's signature as the date said Agreement, as executed by the
HEARING OFFICER, is received by ANAHEIM.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the dates hereinafter respectively set
forth.
DATE OF EXECUTION:
CITY~ANAHEI~
a mu~ipal ~2~oration
By (~~'~
/ ! Mayor
"ANAHEIM"
DATE OF EXECUTION:
APPROVED AS TO FORM:
MOS~-g W[ JJHNSON, ~fV
DEITY CI~ ATTORNEY
50934.1 Il
VICTOR ~. KALETA
"Hearing Officer"
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, SHERYLL SCHROEDER, City Clerk of the City of Anaheim, do hereby certify that the foregoing
Resolution No. 2003R-176 was introduced and adopted at a regular meeting provided by law, of
the Anaheim City Council held on the 26th day of August, 2003, by the following vote of the
members thereof:
AYES: MAYOR/COUNCIL MEMBERS: Pringle, Tait, Chavez, Hernandez, McCracken
NOES: MAYOR/COUNCIL MEMBERS: None
ABSTAINED: MAYOR/COUNCIL MEMBERS: None
ABSENT: MAYOR/COUNCIL MEMBERS: None
~TY CLERI~ C~F filE CITY OF ANAHEIM
(SEAL)