PUBLIC HEARINGS
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19. |
CONSIDER FIRST
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Meeting
Date: |
October 15, 2007
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Budgeted:
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N/A
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From: |
David C.
Laredo, |
Program/ |
N/A |
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General
Counsel |
Line Item No.: |
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Reviewed
By: |
General
Manager |
Cost Estimate: |
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General
Counsel Approval: Yes
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Committee
Recommendation: Rules & Regulations Review Committee at
its October 4, 2007 meeting recommended (2-1, Director Lehman dissenting)
that the Board Consider Adoption on First
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CEQA Compliance: N/A |
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SUMMARY: This matter enables the Board of Directors to
adopt, on first reading, Ordinance No. 131, an ordinance to enforce District
Rules and Regulations through an Administrative Citation and Administrative
Hearing Process. The draft ordinance was
prepared in accord with a Strategic objective approved by the Board at its May
21, 2007 meeting, and is in accord with the concept draft considered by the Board
at its September, 2007 meeting. The
Rules & Regulation Review Committee on October 4, 2007 recommended (2-1,
Director Lehman dissenting) that the Board Consider Adoption on First Reading
of the Concept Ordinance. The Committee
also invited the Board to discuss alternatives to appointing a community
hearing officer panel. The alternatives
could call for using administrative law judges assigned by the Office of
Administrative Hearings or to assign seated District Directors to serve as ex
officio hearing officers. The Committee
deferred preparation of implementing language for both of these alternatives in
favor of reliance on a hearing panel comprised of community members appointed
by Directors and confirmed by a majority of the Board. The Committee recognized that the first
reading of the draft ordinance will be delayed to November should either
alternative hearing process be chosen.
The proposed
administrative enforcement process would facilitate improved and more consistent rule compliance, reduce obstacles and time delays that
result from criminal or civil enforcement, and result in more uniform
application of the District’s rules and procedures.
RECOMMENDATION: The Board should consider adoption of draft Ordinance
No. 131 (attached as Exhibit 19-A.).
BACKGROUND:
The District, by ordinance, has enacted rules that require occasional
enforcement. Examples of enforcement
situations include but are not limited to District regulation activities
involving Water Conservation (Regulation (XIV); Expanded Water Conservation and
Standby Rationing (Regulation XV), and “water waste” violations in particular;
the Carmel River (Carmel River Management (Regulation XII); compliance with the
Operational Water Supply Budgets (Regulation X – Rules 101 and 102); and permit
activities (Regulation II). At this
time, violations of District Rules and Regulations and ordinances can be
enforced by civil court action, or in the alternative, constitute a misdemeanor
subject to the provisions of the Penal Code, Section 17(d). Criminal prosecution must be initiated by the
District Attorney. MPWMD efforts to seek
criminal enforcement must compete for limited prosecutorial resources with
felonies and other misdemeanor violations.
Misdemeanors may be charged as
infractions. State law provides that
infractions may be punishable by (1) a fine not exceeding one hundred dollars
($100) for a first violation; (2) a fine not exceeding two hundred dollars
($200) for a second violation of the same ordinance within one year; and (3) a
fine not exceeding five hundred dollars ($500) for each additional violation of
the same ordinance within one year. For
violations declared to be a nuisance, the District may provide for the summary
abatement of the nuisance, and may provide for the initiation of civil
proceedings to abate the nuisance. The
person committing the nuisance shall be liable for the costs incurred by the
district to abate the nuisance including, but not limited to, the costs of investigation,
costs of time and materials expended to eliminate or mitigate the nuisance,
court costs, attorneys’ fees, and costs of monitoring compliance. Civil penalties may be assessed by a court
against persons found to have committed a nuisance.
As a Strategic
Objective approved at its May 21, 2007 meeting, the Board directed staff and
counsel to explore options available to the District to enforce its Rules and
Regulations and other provisions of law.
Criminal prosecutions or civil court enforcement entail lengthy and
expensive processes, both for the District and affected individuals. Criminal enforcement is inapt for many water
conservation circumstances. Nonetheless,
water use limits and other water-related legal mandates require adherence.
The attached draft
sets forth an Administration Citation, Administrative Order and nuisance
abatement Cease and Desist enforcement process as allowed by Government Code
Section 53069.4. The draft allows
administrative enforcement of District rules before an administrative hearing
officer. A de novo court review would
take place for any administrative decision if a person challenges the
action. The draft provides that penalty
fines shall be set by the Board by resolution.
Separate Board action shall be needed to effectuate the fine schedule;
the Rules and Regulations Review Committee recommended that the proposed fine
resolution be returned to the Board at the same date the proposed ordinance is
set for second reading. The Committee
was aware that this timing might cause a thirty (30) day delay between first
and second readings, but that it is important for the Board and public to
review the fine resolution at the same time final action is taken on the draft
enforcement ordinance.
The attached draft incorporates
the proposed Administration Citation, Administrative Order and nuisance
abatement Cease and Desist Order enforcement process. The Rules & Regulation Review Committee
on October 4, 2007 recommended (2-1, Director Lehman dissenting) that the Board
Consider Adoption on First Reading of the Concept Ordinance.
Administrative Citations generally address violations that are minor or
transient in nature. For example, and
not by exclusion, Administrative Citations may be used to enforce water waste,
water rationing, permit condition and minor or non-recurring violations of the
District’s Rules and Regulations. Whenever
the General Manager determines that a violation of the Rules and Regulations
has occurred, the General Manager may issue an Administrative Citation to any
Person responsible for the violation.
Administrative Compliance
Orders and nuisance abatement Cease and Desist Order enforcement are used for
violations that are not suitable for the Administrative Citation process. Administrative Compliance Orders are used for
serious, continuing or recurring violations, or similar matters. The General Manager may issue a written
compliance order to any Person responsible for the violation. It shall set forth a description of the
observed violation(s), a description of what the Responsible Party is required
to do to bring the water use or property into compliance, and the date by which compliance must be achieved. The Compliance Order provides notice as to
administrative penalties that shall accrue if compliance with the Order is not
achieved by the date listed on the Compliance Order. The Administrative Compliance Order may be
contested through an administrative hearing process. The decision may contain an order to correct
any violations determined to exist, together with an order to pay
administrative penalties and costs.
The District’s
enabling legislation (Statutes of 1977, Chapter 527, as amended (found at
West’s California Water Code Appendix, Chapters 118-1 to 118-901) includes a
finding that in order to serve the people of the Monterey Peninsula
efficiently, enactment of this special law is necessary “for the public welfare and
for the protection of the
environmental quality and the health and
property of the residents therein.”
The District law grants the District the power to adopt and enforce
regulations.
District enforcement issues have become increasingly varied
and complex over the years. The
draft enforcement process would modify the manner in which the District enforces its and Rules and Regulations.
District resources would be
conserved and better utilized by adoption of streamlined enforcement. Administrative enforcement will facilitate improved
and more consistent rule compliance,
reduce obstacles and time delays that result from criminal or civil
enforcement, and result in more uniform application of the District’s rules and
procedures.
Optional Enforcement Methods
A key optional
enforcement method included in the draft ordinance is reliance upon a group of
seven community volunteers appointed by the District Board to serve on a
hearing panel. Community members are to
be appointed to the panel by Directors and confirmed by a majority of the
Board. Meetings of the panel would be
open and public in accord with requirements of the Ralph M. Brown act. Hearings shall be convened by individual
members of the panel, but shall also be open to the public in accord with due
process requirements of law.
The consensus of a majority of the Rules and Regulations
Review Committee, at its meeting of October 4, 2007, was to submit this version
of the draft ordinance to the Board for first reading. If the Board decides during its discussion
that a volunteer Hearing Officer Panel appointed by Directors was not the
preferred option, an amended ordinance would be submitted for first reading at
a subsequent meeting of the Board.
Individual hearing
officers would serve for a term of two years during which each would serve, in rotation,
as the hearing officer for needed administrative hearings. At the Board meeting of August 20, 2007, a
request was made for District Counsel to identify hearing officer alternatives
that would differ from this concept. The
Rules and Regulations Review Committee considered two alternatives that differ
from that approach set forth in the draft ordinance. First, the District could rely on hearing
officers who are Administrative Law Judges (ALJ). ALJs are regularly provided by contract from
the
Administrative Law Judges
The California Office of
Administrative Hearings (OAH) is a state body that provides ALJs to convene
quasi-judicial hearings to adjudicate administrative disputes.
The OAH requires a contract to
reserve hearing dates. As a general
rule, OAH hearings are convened in
The proposed ordinance calls for
hearing expenses to be recouped from the non-prevailing party. It should be
recognized, however, that collection of hearing expenses may be problematic in
some circumstances. Should the District
initiate the contract with OAH, the District would be responsible for the
initial outlay of these expenses, subject to possible recovery from the
non-prevailing party. If this approach
is to be taken, a line item should be budgeted for these specific
expenses.
Should this alternative be
selected, the concept draft ordinance shall be revised to remove references to
the Hearing Officer Panel. In essence,
the District would adopt the OAH rules of practice. There would appear to be no need for the
District to promulgate a separate set of Rules and Procedures to govern the
administrative enforcement hearings. The
Rules and Regulations Review Committee acknowledged that the first reading of
the concept ordinance shall need to be delayed to allow staff an opportunity to
revise the draft ordinance if this option is chosen.
MPWMD Directors as Hearing Officers
A
different alternative to appointing hearing officers (as contemplated in the
concept draft ordinance) or to using the services of OAH (as described above)
is for District Directors to fill the role as hearing officer on a rotating
basis. It is assumed that this rotation
would be made equally among each of the seven Directors. Rotation could be sequential beginning with
District 1. If a conflict arises in the
rotation, the next Director in line would be designated.
While
this alternative removes the need for a Hearing Officer Panel, a need will
still exist for the District to adopt rules of practice top govern the
hearings. A mechanism may be desired to
enable hearing decisions to be circulated amongst all board members so that
hearing results are as consistent as practicable.
The Board should determine, under
this option, how board members are to be separately compensated for
hearing-related efforts. Shall time
spent during the hearing be compensated?
The Board should also determine whether and to what extent time needed
to review the administrative record and prepare the written decision shall be
compensated. The Board’s current
reimbursement policy provides that Directors are eligible to receive
compensation for services rendered as a member of the board by request of the
Board. The rate is $110 for each meeting
(hearing) or for each day’s service rendered, not to exceed ten per month. The Rules and Regulations Review Committee
also acknowledged that the first reading of the concept ordinance shall need to
be delayed if this option is chosen.
Discussion of Hearing Officer Options
This staff note
frames the two added alternatives to implement the hearing officer process contemplated
in the draft Administrative Enforcement Ordinance, as reviewed by the Rules and
Regulations Review Committee.
The original draft
provided for volunteer hearing officers appointed by MPWMD Directors. Those volunteers would be individuals from
the local community. This process is
similar to that previously used by the District to implement water rationing
enforcement. Volunteer hearing officers
including a number of persons who later were selected to serve on the District
board of directors, including Ken Long, Dale Hekhuis and
Prior Rationing Enforcement Experience
The proposed administrative
enforcement ordinance implements several of the key findings recommended in the
Final Report of the Rationing Review Committee presented to the District Board
on March 7, 1990, and the Final Report, Phase III Rationing presented in May,
1992. The 1990 Board-appointed committee
consisted of seven members: Frances
Farina, Jeff Grover, Elizabeth Leeper, Philip Lombardi, Kenneth Long, Terry Thomas
and Locksin Thompson. Dale Hekuis, then
a District Board member, served as the non-voting Chair of the committee.
Included among the 1990 committee
findings were:
A key difference in the
administrative process proposed by this draft ordinance from that used in
1989-90 relates to the comment stated by the Final Report, “The hearing process
is made up of two types of hearings:
fines and variances.” The
proposed ordinance shall not confer upon the hearing board any responsibility
for rationing variances, and instead limits the scope of review to citations
and compliance matters. This is
consistent with the 1992 Final Report recommendation to “Streamline or
eliminate the variance process. As
recommended by the State of California Department of Water Resources, staff
should handle exceptions to rationing rules and compliance cases. The public has the right to timely decision
on their requests by staff with expertise in that area. Hearing panels, while well-intentioned, make
inconsistent decisions, requiring large amounts of time, and delayed
decisions.”
The Final Report captures the
magnitude of the full rationing enforcement effort as it notes that “For the
calendar year 1989, there were 15,554 non-compliance ‘meters”. The Report comments that only a handful of cases
“were pursued beyond the hearing”. The
Committee recommended “There needs to be a more realistic hearing process
starting with the first notice and through the enforcement of the findings of
the hearing. If we are, indeed, to
continue rationing, we suggest a faster and more firm policy in dealing with
the continuing violations and a fine structure that is more realistic and
fair.” As to the variance process, the
committee noted, “There is excessive forgiveness of the existing fine structure
causing unequal treatment.” The proposed
ordinance does not confer variance review authority upon members of the hearing
officer panel.
Conclusion
The proposed
administrative enforcement process would facilitate improved and more consistent rule compliance, reduce obstacles and time delays that
result from criminal or civil enforcement, and result in more uniform
application of the District’s rules and procedures. The Rules & Regulations Review Committee,
at its October 4, 2007 meeting, recommended (2-1, Director Lehman dissenting)
that the Board consider adoption on first reading of the concept ordinance.
19-A Draft
Ordinance No. 131
U:\staff\word\boardpacket\2007\2007boardpackets\20071015\PubHrgs\19\item19.doc