Loading...
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 2 EXHIBIT "A" AGREEMENT FOR LEGAL SERVICES 1 2 3 4 5 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 1 2 3 4 5 6 7 8 9 10 11 i~ ii!i~ 1413 o 17 18 19 20 21 22 23 24 25 26 27 28 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. // 1 2 3 4 5 6 7 8 9 10 11 12 ~ 13 16 17 18 19 20 21 22 23 24 25 26 27 28 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. // 1 2 3 4 5 6 7 8 9 10 11 o ~ 12 " '~ 16 17 18 19 20 21 22 23 24 25 26 27 28 o o 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), -4- 1 2 3 4 5 6 7 8 9 10 11 12 ~ 13 ~ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 -5- Z O~ o 1 2 3 4 5 6 7 8 9 10 11 12 14 ~ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 -6- 1 2 3 4 5 6 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)