RULES & REGULATIONS REVIEW COMMITTEE
1.	CONSIDER REVISED CONCEPT ORDINANCE TO AMEND THE PROCESS BY WHICH THE DISTRICT ENFORCES ITS RULES & REGULATIONS
Meeting Date:		February 19, 2008	Budgeted:	N/A
From:		David C. Laredo,	Program/	N/A
		General Counsel	Line Item No.:
Approved By:		David A. Berger,	Cost Estimate:
		General Manager
General Counsel Approval: Yes
Committee Recommendation:
CEQA Compliance: N/A

SUMMARY: This matter returns to the Rules & Regulations Review Committee (Committee) a revised concept draft ordinance to enforce District Rules and Regulations through an Administrative Citation Process. An earlier concept draft had been modified to address issues raised by the Board at its October meeting. The earlier concept draft ordinance deleted the community hearing panel model in favor of using Board Directors, in rotation, as hearing officers. The earlier draft of the administrative enforcement process also was limited to issuance of citations, but upon review the Committee, in its January 7, 2008 meeting requested that the revised concept draft re-incorporate the ability to use administrative Cease and Desist orders for more complex violations. The Committee also reviewed and tentatively endorsed the proposed $150 base fine amount for citations that could be issued under this proposed ordinance, and asked staff to do a comparison survey of fines contained in administrative citation ordinances that have been adopted by other Monterey Peninsula local agencies.

RECOMMENDATION: The Committee should review and endorse the revised concept draft enforcement ordinance (attached as Exhibit 1-A.), and renew its consideration regarding a recommendation on alternative language that could enable an Administrative Law Judge (ALJ) to hear more complex hearing matters (attached as Exhibit 1-B, as provided in the January 7, 2008 Committee agenda packet). The Committee should also review and endorse the draft resolution to impose a fine schedule (attached as Exhibit 1-C), and the draft fine schedule (attached as Exhibit 1-D).

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 Board at its October 15, 2007 meeting reviewed an earlier version of a draft concept ordinance that set forth an Administration Citation, Administrative Order and nuisance abatement Cease and Desist enforcement process as allowed by Government Code Section 53069.4. Although the Board on October 15 contemplated deletion of the Administrative Order and nuisance abatement Cease and Desist enforcement process, leaving only the Administration Citation procedure, the Committee requested in its January 7. 2008 meeting that the Cease and Desist enforcement process be once again added to the draft concept ordinance.

The latest version of the concept incorporates the Board’s direction that its members serve as hearing officers.

The Committee previously reviewed alternative language that could enable an ALJ to hear more complex hearing matters, and asked that that alternative be presented to the Board at the time it considers adoption of this measure.

Finally, in re-referring the draft concept ordinance to the Committee last October, the Board expressed a desire to see this legislative proposal in complete form, including a suggested fine schedule for Administrative Citations. (A fine schedule had not been included in the earlier version, as staff and counsel intended to develop it after first reading and prior to adoption of the ordinance, in the interest of efficiency.) For reasons of fairness and consistency, District staff and counsel noted in the January 7 Committee report that Administrative Citation fines should be consistent with penalties for violating state laws not involving serious offenses (i.e. inflicting injury to persons or major property damage). Staff contacted the Monterey County superior court administrator for assistance in determining the most appropriate and reasonable penalty amounts to propose for the District’s Administrative Citation ordinance. The court administrator recommended that the District refer to the Uniform Bail and Penalty Schedule (UBP Schedule) that provides guidance in setting penalties and bail forfeitures for first offenses involving violations of a less serious nature, such as those involving traffic, boating, forestry, fish and game, public utilities, parks and recreation, and business licensing (California Rules of Court, Rule 4.102, January 2007 edition). The proposed District Administrative Citation fine amounts shown in Exhibits 1-D are based on Section 4 H of the UBP Schedule that sets the “minimum total bail” amount at $146 (staff rounded this figure to $150). For the second violation in a one year period this amount would double to $300; and for the third or more violations in a one year period the proposed fine amount is $750. The Board would make future adjustments to the District’s Administrative Citation fine by subsequent resolution.

During the January 7 Committee meeting, this proposed fine schedule tentatively was endorsed, but staff was asked to do a comparison survey of fine amounts included in Administrative Citation ordinances adopted by other local agencies in our region. The city of Monterey currently is the only city in our area that has adopted an Administrative Citation ordinance, although the city of Pacific Grove and County of Monterey are in the process of developing such ordinances for reasons similar to those the District has considered. The District’s proposed $150 base fine amount appears to be in line with Monterey’s fine schedule, which ranges from $25 to $500 depending on the type of offense.

EXHIBITS

1-A Revised concept draft Administrative Enforcement ordinance

1-B Alternative language to enable an ALJ to hear complex matters

1-C Draft resolution to impose a fine schedule

1-D Draft fine schedule

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