Staff level, administrative decisions would no longer be appealable to the Board of Supervisors
By Reggie Ellis @Reggie_SGN
TULARE COUNTY – Tulare County is attempting to make its administrative appeals process simpler and faster, but that also might mean you won’t have the opportunity to bring it before your elected representatives.
The County Counsel’s office brought up the idea of streamlining the process for appealing department level decisions to the Board of Supervisors at its Dec. 4 meeting. Many county departments are required by law to conduct administrative hearings as part of their enforcement of State law and County ordinances. For example, the County Resource Management Agency Director, or his or her designee, must afford persons the opportunity for an administrative hearing during the code enforcement process. Likewise, the Agricultural Commissioner, the Fire Chief, the Health and Human Services Agency Director, the County Health Officer, and the Tax Collector must provide such opportunities as part of their enforcement actions.
Jeffrey Kuhn, chief deputy with the County Counsel’s office, said the county’s Ordinance Code currently contains confusing and inconsistent provisions regarding the type of informal or formal review to be provided by the Departments and raised questions such as: What happens if a participant is not satisfied with the result of the Department review; When should a formal hearing be provided?; Whether an appeal is to the Board of Supervisors or directly to court?; What type of hearing must be provided if the appeal is heard by the Board of Supervisors?; and What statute of limitations applies to an appeal to court?
“Based on comments from the public, there is a need for some significant improvements,” Kuhn told the supervisors.
Kuhn provided the example of the Saints & Sinners Gentlemen’s Club in Lindsay. The Sheriff’s Department shut down the strip club just outside of the city limits in January 2014. The enforcement action was in response to an investigation by the Sheriff’s office outlining a litany of accused offenses between 2010 and 2014 including the molestation and rape of dancers, selling methamphetamine to undercover officers of the Lindsay Police Department, underage drinking, battery and vandalism, dancers resisting arrest, and similar violations.
The business owners appealed the decision to the board of supervisors who ultimately reversed the Sheriff’s Department’s action, a process which took an entire year.
“We want to try to make it simpler, faster, easier for folks to understand and get to a resolution quicker,” Kuhn said.
One solution offered by Kuhn was to create a hearing officer position, or a panel of officers, to hear administrative appeals before they have to go to court. If the county hires a hearing officer they must be a current California attorney with at least five years of experience prior to being appointed. If the County chooses to use independent contractors, case law requires a rotation of hearing officers rather than a single officer and specifically authorizes contracting with the State’s Office of Administrative Hearings to provide an administrative law judge for individual cases. Under this procedure, the Supervisors would not need to hold administrative hearings or consider appeals from administrative hearings from decisions, with the exception of appeals from Planning Commission decisions or certain personnel matters.
In its staff report, County Counsel stated that the process should include (1) an informal review at the Department level; (2) a formal hearing, if otherwise required or upon request, before a County Hearing Officer; and (3) appeal from the decision of the County Hearing Officer directly to Superior Court.
Supervisor Mike Ennis was in support of streamlining the process, but Supervisor Kuyler Crocker was worried about circumventing elected representatives from hearing some types of appeals.
“We are proposing taking away authority the board currently has and designate some other individual to fulfill that role,” Crocker said. “I’m not really supportive of taking away duties from the board.”
Supervisor Steve Worthley questioned whether or not those serving on the County Hearing Panel would cost the county additional salaries. Kuhn said each department would be responsible for covering the expense of the Hearing Officer for its hearings and that there would not be any net cost to the County.
The County could also offer the officer to other local public agencies may but must reimburse the County for the expense. Kuhn said Fresno County had recently adopted a similar process to the one proposed.
Ennis motioned to authorize staff to look into the process and return to the board with a recommendation. Despite his reservations, Crocker seconded to the motion to see what staff came back with. The motion passed 5-0.
“If this will help expedite the process, it would be favorable so we can get closure on these cases faster,” Crocker said.