RES-2011-055RESOLUTION NO. 2011- 055
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM APPOINTING ALAN ROBERT BURNS 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
ALAN ROBERT BURNS
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 Michael H. Miller
as the City Hearing Officer for a period of three years, which term is due to expire on July 15, 2011;
and
WHEREAS, Alan Robert Burns 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. Burns 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:
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.
To conduct fair, timely and impartial hearings.
NOW, THEREFORE, BE IT RESOLVED that the City Council hereby appoints Alan
Robert Burns 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 "), which agreement shall become effective July 15,2011;
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 to administer said
agreement and the terms thereof on behalf of the City.
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THE FOREGOING RESOLUTION is approved and adopted by the City Council of
the City of Anaheim this 26t day of Apr , 2011, by the following roll call
vote:
AYES Mayor Tait, Council Members Sidhu, Eastman, Galloway
and Murray
NOES: None
ABSENT: None
ABSTAIN: None
CITY OF ANAHEIM
By
M YOR �-rLfv OF A NAHEIM
ATTEST
CITY CLERK F TH CITY ANAHEIM
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AGREEMENT FOR HEARING OFFICEQ
ERVICES
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THIS AGREEMENT, dated solely for purposes of identification thisuday of
(a.% , 2011, is made and entered into by and between the
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CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
A
N
D
ALAN ROBERT BURNS, 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 Cal.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
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.
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
Paragraph 7; provided, however, that if HEARING OFFICER has commenced a hearing prior to
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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
Two Hundred Dollars ($200.00) per hour 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.
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.
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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
LAW FIRM
Alan Robert Burns, Esq.
453 S. Glassell Street
Orange, CA 92666
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, 2011.
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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:
'41a 1%
CITY OF ANAHEIM,
a mumpparcorr or ati�
By ,
Mayor
AT ST:
City Clerk
"ANAHEIM"
DATE OF EXECUTION:
aL .41v�
ALAN ROBERT BURNS, ESQ.
"HEARING OFFICER"
APPROVED AS TO FORM:
CRISTINA L. TALLEY, CITY ATTORNEY
By A ,..,., ( 6
Aaron C. Harp
Sr. Assistant City Attorney
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