HomeMy WebLinkAboutReg 2005-06-06 Item 6 - Resolution - Hearing Examiner Rules of Procedure COUNCIL AGENDA SI1'NoPsIs
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IT EM-INFORMATION
CAS NUMBER: REF: 05-073 I ORIGINAL AGENDA DATE: 5/9/05
AGENDA ITEM TITLE A Resolution Establishing Hearing Examiner Rules of Procedure.
CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other
Mtg Date 5/9/05 Mtg Date Mtg Date 6/6/05 tl itg Date Mfg Date it ftg Date Mtg Date
SPONSOR Council Major Adr,t Svcs DCD Finance Fire Legal P&R Police PW/ I
SPONSOR'S State law requires those cities that use hearing examiners to promulgate rules of
SUMMARY procedure. These rules will provide for efficient processing of administrative hearings.
REVIEWED BY COW MVItg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DA'1•E: F &S 5/2/05; COW 5/9/05
RECOMMENDATIONS:
SPONSOR /ADM. Approve the resolution
CON-- MITTEE Finance Safety recommended approval of resolution
-COST IMPACT /=FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$N /A
Fund Source:
Comments:
1 MTG. DATE RECORD =OF COUNCIL ACTION
5/9/05 1 Discussed at COW;forwarded to Regular Meeting
=MTG. DATE: ATTACHMENTS
6/6/05 1Memorandum to CA &P Committee Dated June 1, 2005
Hearing Examiner's Rules of Practice and Procedure (Exhibit A)
Resolution final format adopting Rules of Practice and Procedu +e
1
I a
I I I
INFORlvIATION MEMO
To: ~ I ,. Community Affairs and Parks Committee
From:_~~Shelley Kerslake
Date: IY~ June 1, 2005
Subject: Hearing Examiner Services
ISSUE
Whether the City should develop Rules of Procedures for Hearing Examiners.
BACKGROUND
State law requires jurisdictions to develop Rules of Procedures if they utilize Hearing Examiner
services. A final draft of Hearing Examiner Rules is provided.
DISCUSSION/ANAL YSIS/ ALTERNATIVES
Enclosed please find a final draft of Hearing Examiner Rules. State law requires those
jurisdictions that utilize Hearing Examiners to develop Rules of Procedure. Because Tukwila
traditionally contracted for Hearing Examiner services, this was not done in the past. The City
currently has 3 contracts with different Hearing Examiners, for different types of hearings. To
comply with State law, as well as provide for staff efficiency, we are proposing one set of rules
be passed by the City Council to be utilized by all of our Hearing Examiners or Hearing
Examiner Pro-terns when they hear City of Tukwila matters
RECOMivIENDATION
Adoption of the Hearing Examiner Rules of Procedure.
Attachments:
Proposed Rules of Procedure.
Resolution
EXHIBIT A
CITY OF TUKWILA
HEARING EXAMINER
RULES OF PRACTICE AND PROCEDURE
TO ALL INTERESTED PARTIES:
Please find enclosed a copy of the revised rules governing proceedings before
the City of Tukwila Hearing Examiner. The amendments to the rules were
adopted by the Tukwila City Council at its regular meeting of
and are effective as of that date.
Extra copies of the Hearing Examiner Rules of Practice and Procedure may be
obtained rrom the Department of Community Development, the Public Works
Department, or the City Clerk.
HEARING EXA1VIINER
RULES OF PRACTICE A1~D PROCEDURE
Section 1 GENERAL PROVISIONS ..............................................................1
1.01 Applicability ..................................................................................... 1
1.02 Effective Date ................................................................................... 1
1.03 Interpretation of Rules...................................................................... 1
Section 2 RULES OF GENERAL APPLICATION ......................................1
2.01 Scope.. .......... ..................................................................................... 1
2.02 Definitions........................................................................................ 1
2.03 Computation of Time.......... ..................... ...... ............. .............. ... .....3
2.04 Filing and Service of Documents...................................................... 3
2.05 Scheduling Hearings......................................................................... 4
2.06 Consolidation..... ............................................................................... 4
2.07 Prehearing Conference...................................................................... 4
2.08 Interference Prohibited...................................................................... 5
2.09 Presiding Official........................................... ................................... 5
2.10 Witnesses.......... ...................... .......................................................... 5
2.11 Motions............................................................................................. 6
2.12 Hearing on Written Submissions ......:............................................... 6
2.13 Evidence............................................................................................ 6
2.14 Official Notice.................................. ................................................. 7
2.15 Site Inspection......... .......... ......... ...................... ................................. 7
2.16 Continuing or Reopening Hearing.................................................... 7
2.17 Leaving the Record Open......................... ......... ............................... 8
2.18 Distribution of Decisions and Recommendations ............................8
2.19 Remand............................ .................. ............................................... 8
2.20 Clerical Errors .......... ............. ................ ....... ......... ................... ......... 8
2.21 Proceedings Recorded....................................................................... 9
2.22 Disclosure of Public Records........................ .................................... 9
2.23 Transcript of Proceedings.................................. ............................... 9
2.24 Retention of Records ........................................................................ 9
2.25 Transmittal of Records.. ............ ........................................................ 9
Section 3 APPEAL RULES.... ......... ...... ............. ........... ................. ................. 9
3.01 Filing................................................................................................. 9
3.02 DismissaL........................................................................................ 10
3.03 vVithdra\val......................................... .............. ............ .......... ......... 10
3.04 Party Representative Required........................................................ 11
3.05 Notice of Appearance .....................................................................11
3.06 Intervention..................................................................... ................ 11
3.07 Notice of Hearing............. .. ... .............. ... ......;.. .......... .............. ........ 12
3.08 Discovery........................................................................................ 12
3.09 Subpoenas....................................................................................... 12
3.10 Default......................................................... ................................... 13
3.11 Hearing F onnat ..... ..'........................................................................ 13
3.12 Record.. ........ ...... ............................................................................. 14
3.13 Reconsideration.............................................................................. 14
3.14 Subsequent Appeal......................................................................... 14
SECTION 1
GENERAL ~ROVISIONS
1.01 APPLICABILITY
These Hearing Examiner Rules (Rules) are adopted to supplement the ordinance
requirements for matters within the Hearing Examiner's jurisdiction and govern
administrative practice and procedures before the Hearing Examiner. In any case of conflict
between a Hearing Examiner Rule (HER) and the Tubvila Municipal Code (Code), the
Code shall control.
1.02 EFFECTIVE DATE
These Rules shall apply to all matters filed with or otherwise properly before the Hearing
Examiner on or after the effective date of adoption of these Rules by the City Council.
1.03 INTERPRETATION OF RULES
(a) The Hearing Examiner shall interpret the Hearing Examiner Rules of Practice
and Procedure and determine how the Rules apply in specific instances. An affected party
may petition the Hearing Examiner during the pendency of an appeal to request a declaratory
ruling regarding the applicability of these Rules to specific actual circumstances. Except
during a hearing, such request must be in writing and clearly identify the subject Rule(s) and
describe the circumstances for which the declaratory ruling is sought.
(b) Where questions of practice and procedure arise that are not addressed by
these Rules, the Hearing Examiner shall determine the practice or procedure that she or he
deems most appropriate and consistent with providing fair treatment and due process. In
making such determinations, the Hearing Examiner may look to the current Civil Rules of
Superior Court for guidance.
SECTION 2
RULES OF GENERAL APPLICATION
2.01 SCOPE
Rules in this section apply generally to all matters where the Hearing Examiner has authority
to decide or recommend the outcome.
2.02 DEFINITIONS
The following definitions shall apply unless the context or subject matter requires otherwise:
(a) "Mfidavit" - a written or printed statement declared or certified to be true and
correct under penalty of perjury under the laws of the state of Washington.
(b) "Appeal" - a challenge to a decision or other action where the Code or other
authority authorizes the City's Hearing Examiner to review and decide.
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( c) "Appeal hearing" - a hearing held by the Hearing Examiner to consider an
appeal of a decision or other action where the Hearing Examiner has been granted
jurisdiction to hear and decide such an appeal. In these Rules an "appeal hearing" is
distinguished from a "public hearing" where the Hearing Examiner is empowered to make a
recommendation to the City Council, rather than to make a decision on an appeal.
(d) "Appellant" - the person(s), organization, association, corporation, or other
entity who files a complete and timely appeal of a decision or other appealed action.
(e) "Applicant" - the person(s), organization, association, corporation or other
entity who files an application or otherwise formally requests a permit or other type of City
action, interpretation, or authorization which is the subject of an appeal or other review by
the Hearing Examiner.
(f) "Code" - Tukwila Municipal Code (TMC).
(g) "Days" - calendar days.
(h) "Department" - the department, agency, board, commission or other City
entity responsible for the decision or action that is subject to appeal or other review by the
Hearing Examiner.
(i) "Director" - the head of the department, agency, board or commission, or
other unit of City government responsible for the decision or other action that is subject to
appeal or other review by the Hearing Examiner.
CD "Examiner" - the Hearing Examiner, or a Deputy Hearing Examiner or a
Hearing Exanliner Pro Tempore who has been delegated responsibility by the Hearing
Examiner to conduct the hearing or otherwise preside over a particular matter.
(k) "Ex parte communication" - a communication between one party and the
Examiner in the absence of the other party(s).
(1) "Hearing Examiner" - the official contracted with the City to serve as the
City's Hearing Examiner; also used when referring to a Deputy Hearing Examiner or
Hearing Exanliner Pro Tempore appointed by the Hearing Examiner to preside over a
particular matter.
(m) "Interested person" - any individual, or public or private organization of any
character, significantly affected by or interested in proceedings before the Hearing Examiner,
including any party.
(n) "Intervenor" - one who voluntarily enters a pending lawsuit because of a
personal stake in it.
(0) "Motion" - a request made to the Hearing Examiner, whether written or oral,
for an order or other ruling.
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(P) "Offer of propf' - a chance to state for the record what the evidence would
have shown if it had been admitted.
(q) "Order" - a ruling, instruction, or other directive issued by the Hearing
Examiner in response to a request or motion by a party, or on the Hearing Examiner's own
initiative. Where the underlying ordinance establishing the Hearing Examiner jurisdiction so
provides, an order can direct how the Hearing Examiner's decision is to be implemented and
may be issued as part of that decision or separately trom it.
(r) "Party" - the person(s), group, organization, corporation, or other entity that
has filed an appeal, or is granted right of appeal automatically by ordinance; the person(s),
group, organization, corporation, or other entity granted party status through intervention;
Director of the City department or other agency that made the decision or took the action that
is subject to the appeal; the person(s), group, organization, corporation, or other entity who
filed the application, request, or petition for a pennit or other type of City authorization or
action which is the subject of the appeal; and the owner(s) of the property subject to the City
decision or other action.
(s) "Public hearing" - a hearing held by the Hearing Examiner for the purpose of
preparing a recommendation for the City Council (see "Appeal hearing").
(t) "Representative" - that individual designated by a party to be the official
contact person and to speak for the party. Unless the applicable underlying substantive law
or regulation establishing the Hearing Examiner's jurisdiction specifies otherwise, a
representative is not required to be an attorney.
(u)
adopted.
"Rules" - the Hearing Examiner Rules of Practice and Procedure, as currently
(v) "Timely" - within the time prescribed by applicable ordinance or, in the
absence of ordinance provision, the time prescribed by Hearing Examiner rule, or within the
time detennined by the Hearing Examiner.
2.03 COMPUTATION OF TIME
Except as otherwise provided by the Code, computation of any period of time prescribed or
allowed for matters before the Hearing Examiner shall begin with the first day following that
on which the act or event initiating such period of time shall have occurred. When the last
day of the period so computed is a Saturday, Sunday, or national, state or City holiday, the
period shall extend to the end of the next business day.
2.04 FILING AND SERVICE OF DOCUMENTS
(a) Documents shall be deemed filed with the Hearing Examiner on receipt at the
Office of Hearing Examiner unless the Hearing Examiner has specified otherwise.
(b) Documents shall be served personally or, unless otherwise provided by
applicable ordinance, by first-class, registered, or certified mail, or by facsimile (fax)
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transmission, or, in the case( of service to City agencies, by the City's regular interoffice
mail. Service shall be regarded as complete upon deposit in the regular facilities of the U.S.
Mail of a properly stamped and addressed letter or packet, or at the time personally
delivered, or transmitted by fax.
2.05 SCHEDULING HEARINGS
Promptly following receipt of a valid appeal, City staff shall schedule a hearing consistent
with the requirements of the applicable ordinance(s) and these Rules with the Hearing
Examiner.
2.06 CONSOLIDATION
Where practical, feasible, and consistent with ordinance requirements, all matters under the
jurisdiction of the Hearing Examiner relating to the same matter should be consolidated for
hearing. The Hearing Examiner may order consolidation with or without a request from any
party.
2.07 PREHEARING CONFERENCE
(a) The Hearing Examiner may on his or her own order, or at the request of a
party, hold a conference prior to the hearing to consider:
(1) Identification, clarification, and simplification of the issues;
(2) Disclosure of witnesses to be called and exhibits to be presented;
(3) Motions;
(4) The possibility of obtaining stipulations relating to undisputed facts,
the admission of documents, or other matters which will avoid
unnecessary proof;
(5) The conduct of reasonable discovery prior to hearing;
(6) Settlement of the appeal; and/or
(7) Other matters deemed by the Hearing Examiner appropriate for the
orderly and expeditious disposition of the proceedings.
(b) Prehearing conferences may be held by telephone conference call.
( c) The Hearing Examiner shall give notice to all parties of any prehearing
conference. Notice may be written or oral.
(d) All parties shall be represented at any prehearing conference unless they
waive the right to be present or represented, and are granted permission by the Hearing
Examiner not to attend.
(e) Following the prehearing conference, the Hearing Examiner may issue an
order reciting the actions taken or ruling on motions made at the conference.
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2.08 INTERFERENCE PROHIBITED
In the performance of adjudicative functions in deciding appeals and in the preparation of
recommendations, the Hearing Examiner is an independent official and shall not be
responsible to or subject to the supervision or direction of any elected official, officer or
employee of any department, or any other person whether or not associated with Tubvila
City government.
2.09 PRESIDING OFFICIAL
(a) The Hearing Examiner shall assign a duly qualified Examiner to preside over
hearings held under these Rules.
(b) The Examiner conducting a hearing shall have the duty to ensure a fair and
impartial hearing, to take all necessary action to avoid undue delay in the disposition of
proceedings, to gather facts necessary to make the decision or recommendation, and to
maintain order. The Examiner shall have all powers necessary to these ends, including, but
not necessarily limited to the following:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
2.10 WI1NESSES
Determine the order of presentation of evidence;
Administer oaths and affirmations;
Issue subpoenas;
Rule on offers of proof and receive evidence;
Rule on procedural matters, objections and motions;
Question witnesses and request additional exhibits;
Permit or require oral or written argument or briefs and determine the
timing and format for such submittals;
Regulate the course of the hearings and the conduct of the parties and
others so as to maintain order and provide for fair hearing;
Hold conferences for settlement, simplification of issues, or for any
other proper purpose; and
Make and issue the decision or recommendation.
(a) All witnesses testifying at hearing must take an oath or affirmation to be
truthful. All witnesses are subject to cross-examination by the other party(s).
(b) The rules of privilege shall be effective to the extent recognized by law.
(c) Hearing Examiner hearings are open to the public. However, in appeal
hearings, persons who are not parties are generally not permitted to testify unless called as
witnesses.
(d) The Examiner may limit the length of testimony to expedite the proceedings
and avoid the necessity to continue the hearing. Maximum practicable advance notice will
be provided if such time limitations are to be imposed. If parties are unable to complete
their arguments and testimony within the allotted time, an opportunity will be granted to
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submit written materials a:ft;er the close of the hearing; other parties will be allowed an
opportunity to offer written rebuttal to any such materials.
( e) At the discretion of the Examiner, or where the parties agree and the rights of
the parties will not be prejudiced, the Examiner may allow testimony via telephone or
television or similar electronic means. Each party to the proceeding shall have the
opportunity to hear (or, if televised, to both hear and see) testimony given in this manner and
to question the person giving such testimony.
2.11 MOTIONS
(a) All motions, other than those made during a hearing, shall be in writing, and
shall state the order or relief requested and the grounds for the motion. Every motion and
answering statement, and accompanying papers, shall be served on each party representative
on the day it is filed with the Hearing Examiner.
(b) Within seven (7) days after service of any written motion, or such longer or
shorter period of time as may be designated by the Hearing Examiner, the other party( s) shall
file a written answer. When the Hearing Examiner has received the answering statement(s),
or the seven (7) days or other period of time designated by the Hearing Examiner has
elapsed, the Hearing Examiner shall rule on the motion. Failure of a party to :file a timely
response may be considered by the Hearing Examiner as evidence of that party's consent to
the motion.
( c) The Hearing Examiner may call for oral argument prior to ruling.
(d) For motions made at hearing or for motions made for the extension of time or
the expedition of hearings, the Hearing Examiner may waive the requirements ofthis section
and may also rule upon such motions orally.
2.12 HEARING ON WRITTEN SUBMISSIONS
When the parties so agree, an appeal may be submitted entirely on written submissions. If
this option is selected, the Examiner shall establish a schedule for initial responsive
submissions. The record shall close when this schedule is complete.
2.13 EVIDENCE
(a) Evidence, including hearsay, may be admitted if, in the judgment of the
Examiner, it is relevant to the issue(s) on appeal, comes from a reliable source, and has
probative (proving) value. Such evidence is that which would commonly be relied upon by
responsible persons in the conduct oftheir important affairs.
(b) The Examiner may exclude evidence that is irrelevant, umeliable, immaterial,
unduly repetitive, or privileged.
( c) Opinion evidence presented by non-experts at appeal hearings is discouraged
but may be admitted, although it need not be given weight by the Examiner.
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(d) Documentary evidence may be received in the form of copies or excerpts.
The Examiner may require that the parties be given an opportunity to compare the copy with
the original, and require that the complete document from which an excerpt is. taken be made
available for inspection by all parties.
2.14 OFFICIAL NOTICE
(a) The Examiner may take official notice of judicially cognizable facts. In
addition, the Examiner may take notice of general, technical, or scientific facts within his or
her specialized knowledge.
(b) Parties must be notified during the hearing, or before issuance of the decision,
of the specified facts or material noticed and the source thereof, and afforded an opportunity
to contest or rebut the facts or material so noticed. The Examiner shall not take such notice
of disputed adjudicative facts that are at the center of an appeal.
( c) A Hearing Examiner ruling, decision, or recommendation may refer to and
utilize any part of the Code and any issued Hearing Examiner decision.
2.15 SITE INSPECTION
Where it would assist the Examiner in clarifying or understanding the evidence adduced at
hearing, the Examiner may inspect property subj ect to an appeal or recommendation prior to
the close of the record. However, observations made at such an inspection are not evidence
and shall not be considered as such.
2.16 CONTINUING OR REOPENING HEARING
(a) A scheduled hearing may be continued for good cause as determined by the
Hearing Examiner. Written notice of the date, time, and place of the continued hearing shall
be provided to each party. The notice of a rescheduled hearing need not observe the time
requirements to which the original notice was subj ect.
(b) Requests for continuance must be made to the Examiner's office no later than
48 hours prior to the scheduled hearing time.
(c) Prior to the issuance of the subject decision or recommendation, the
Examiner may continue or reopen proceedings for good cause and may permit or require
written briefs or oral argument.
(d) If the Examiner determines at hearing that there is good cause to continue
such proceeding and then and there specifies the date, time, and place of the new hearing, no
further notice is required.
( e) If a matter is reopened after conclusion of the hearing, parties shall be
provided not less than ten (10) days notice of the reopened hearing.
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2.17 LEAVING THE RECORD OPEN
(a) The Examiner may leave the record of hearing open at the conclusion of a
hearing in order to receive argument or for other good purpose. Parties shall be provided
notice of the consideration of any evidence received after hearing and shall have an
opportunity to review such evidence and to file rebuttal evidence or argument.
(b) Except as provided for in HER 2.16 and HER 2.19, information submitted
after the close of the record shall not be included in the hearing record or considered by the
Examiner making the decision or recommendation.
2.18 DISTRIBUTION OF DECISIONS AND RECOMMENDATIONS
A copy of the Hearing Examiner's decision or recommendation shall be distributed to each
party representative, to those persons who have specifically requested a copy, and to others
as specified by applicable ordinance(s).
2.19 REMAND
(a) Prior to the issuance of the Hearing Examiner's recommendation or Hearing
Examiner's decision on an appeal, if the Examiner determines that information, analysis, or
other material necessary to the Hearing Examiner's recommendation has not been provided,
or, in the case of an appeal, that there is a lack of information, analysis, or other material
needed to satisfy the provisions of relevant regulations, the matter may be remanded to the
Department for the addition of that information, analysis, or other material.
(b) Where the Hearing Examiner's decision is to remand the matter to the
Department for additional information, analyses, or other material, the Hearing Examiner
shall retain jurisdiction in order to review the adequacy of that information, analysis, or other
material. The decision shall expressly state that jurisdiction is retained and what
information, analysis, or other material is to be provided, and it may indicate when it is to be
submitted. A copy of that information, analysis, Qr other material shall also be provided to
each party to the proceeding, except that where the size or condition of the required
materials makes copying impractical, notification to the other parties of the submittal shall
be sufficient. The parties shall have an opportunity to review, comment upon, and submit
rebuttal to the information, analysis, or other material submitted. At the discretion of the
Examiner, the hearing may be reopened following such submittal.
(c) Where the decision of the Hearing Examiner is to remand for the preparation
of a new departmental decision, the Hearing Examiner's jurisdiction is terminated and the
Director's subsequent decision shall be issued and subject to appeal in accordance with
applicable ordinance(s).
2.20 CLERICAL ERRORS
Clerical mistakes in decisions, recommendations, orders, or other parts of the record, and
errors arising from oversight or omission, may be corrected by Order at the Hearing
Examiner's initiation, or in response to the motion of any party.
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2.21 PROCEEDINGS RECORDED
All proceedings before the Hearing Examiner shall be electronically recorded. The
recordings of hearings shall be part of the official case record. Copies of the recordings shall
be made available to the public upon request, subject to payment of a reasonable fee for
copymg.
2.22 DISCLOSURE OF PUBLIC RECORDS
Hearing Examiner decisions and recommendations, the hearing record, and associated
official files, are public records and shall be available for public review.
2.23 TRANSCRIPT OF PROCEEDINGS
(a) Anyone desiring a certified transcript of a hearing must obtain a duplicate
copy of the hearing tapes from the Office of Hearing Examiner and be responsible for
arranging and paying for the preparation of a verbatim transcript. See also HER 2.21. The
completed transcript must be returned to the Hearing Examiner for certification.
(b) The parties shall have an opportunity to review and comment on the
transcript. The Hearing Examiner shall resolve conflicts as to fonn and content of the
transcript and provide a certification when such disputes are resolved and the Examiner is
satisfied that the transcript provides a reliable record of the proceedings.
2.24 RETENTION OF RECORDS
The case file, including the tape recording(s) and exhibits, shall be retained by the Office of
Hearing Examiner consistent with the requirements of the Public Records Act and applicable
retention schedules.
2.25 TRANSMITTAL OF RECORDS
The Hearing Examiner shall promptly transmit the official records of a case upon the request
of an entity having jurisdiction to review the decision or recommendation.
SECTION 3
APPEAL RULES
In addition to the Rules of General Application in Section 2, the Rules in Section 3 shall
apply to appeals. In the event of conflict between the rules in Section 2 and the rules in
Section 3, Section 3 shall control.
3.01 FILING
(a) Compliance with Rules. All appeals must comply with these Rules and with
the requirements established in the applicable ordinance(s) under which the appeal is filed.
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(b) Contents. A ~otice of Appeal must be in writing and contain the following:
(1) A brief statement as to how the appellant is significantly affected by
or interested in the matter appealed;
(2) A brief statement of the appellant's issues on appeal, noting
appellant's specific exceptions and objections to the decision or action
being appealed;
(3) The relief requested, such as reversal or modification; and
(4) Signature, address, and phone number of the appellant, and name and
address of appellant's designated representative, if any.
( c) Multiple appeals. More than one appeal may be filed concerning the same
appealable decision or other action.
(d) The Notice of Appeal shall be accompanied by any filing fee required by law.
Filing of the appeal shall not be complete until both the Notice of Appeal and any required
filing fee have been received. For an appeal to be timely, filing must be complete before the
appeal period has expired.
3.02 DISMISSAL
(a) An appeal may be dismissed without a hearing if the Hearing Examiner
detennines that it fails to state a claim for which the Hearing Examiner has jurisdiction to
grant relief, or it is without merit on its face, mvolous, or brought merely to secure delay.
(b) Any party may request dismissal of all or part of an appeal at any time with
notice to all parties. The Hearing Examiner may make a ruling on a motion to dismiss based
upon written arguments or may call for oral arguments.
( c) When the decision or action being appealed is withdrawn by the issuing
Department, the appeal becomes moot and shall be dismissed.
3.03 WITHDRAWAL
(a) An appeal may be withdrawn only by the appellant.
(b) Where an appeal is made by several persons, a group, organization,
corporation, or other entity, withdrawal shall be made by the person who had been
designated as the party representative. See HER 3.04.
( c) An appellant's request to withdraw shall be granted as a matter of right and
the appeal dismissed by order ofthe Examiner.
(d) A withdrawal request shall be made in writing by the appellant.
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3.04 PARTY REPRESENTATIYE REQUIRED
When a pmiy consists of more than one individual, or is a group, organization, corporation,
or other entity, the party shall designate an individual to be its representative and inform the
Hearing Examiner of the name, address and telephone number of that designated
representative. The rights of such an appellant shall be exercised by the person designated
as the party representative. Notice or other communication to the party representative is
notice or communication to the party. See also HER 3.05.
3.05 NOTICE OF APPEARANCE
When a party is represented by an attorney, the attorney shall file a notice of appearance with
the Hearing Examiner and send; a copy of that notice to the other parties. Where the
appellant's attorney filed the appeal and indicated his/her representative capacity, a notice of
appearance does not need to be filed. The notice of appearance shall serve to designate the
attorney as the party representative. See HER 3.04. If a notice of appearance is filed less
than 48 hours prior to a scheduled hearing, the City shall be notified by the Examiner, and at
the City's discretion, the matter will be rescheduled so that counsel for the City may be
present at the hearing.
3.06 INTERVENTION
(a) Upon a showing of a substantial or significant interest that is not otherwise
adequately represented, the Hearing Examiner may permit an interested person, group,
organization, corporation, or other entity who has not filed an appeal to participate in that
appeal.
(b) Except as provided in HER 3.06(d), a written request for intervention must be
submitted to the Hearing Examiner at least five (5) days prior to the day on which the
hearing begins. The intervention request must state the basis for the intervention and how
the person, group, organization, corporation, or other entity making the request is affected by
or interested in the matter appealed. In considering the requested intervention, the Hearing
Examiner shall seek to ensure that intervention will not unduly delay the hearing process,
will not expand the issues beyond those within the appeal, and will not prejudice the rights
of any of the original parties. In granting intervention, the Hearing Examiner may limit the
nature and scope of the intervention.
( c) Intervention is not a substitute means of appealing a decision for those who
could have appealed but failed to do so.
(d) A substantially or significantly interested person, group, organization,
corporation, or other entity who has not filed an appeal, may be allowed to intervene for the
purpose of preserving the right of subsequent appeal. Such intervention may be permitted at
any time up to the time of hearing.
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3.07 NOTICE OF HEARING
(a) Contents. The notice of hearing shall include:
(1) The time, place, and nature of the hearing;
(2) The legal authority and jurisdiction for the hearing;
(3) The file number, address, or other identifying infonnation for the
underlying decision or action being appealed;
(4) A brief statement as to the issue( s) to be considered; and
(5) Reference to the applicable Code section(s).
(b) Time. Notice of the hearing shall be given within the time required by applicable
ordinance(s). lfthe time for notice of hearing is not specified by the applicable ordinance(s),
or applicable ordinances conflict, minimum notice shall be 20 days.
( c) Responsibility. The City of Tukwila shall be responsible for serving notice of
hearing.
(d) Method of Service. Notice of hearing shall be given to each party in person, by
U.S. mail, or for City departments, by regular interoffice mail service, unless otherwise
required by applicable ordinance.
(e) Record of Notice. A copy of the notice of hearing shall be made part of each
official case record.
3.08 DISCOVERY
Appropriate prehearing discovery is pennitted. The Hearing Examiner may prohibit or limit
discovery where the Hearing Examiner detennines it to be unduly burdensome, harassing, or
unnecessary under the circumstances ofthe appeal.
3.09 SUBPOENAS
(a) A request or motion may be made in writing for a subpoena to require a
person to appear and testify at a hearing, or for a person to produce specified documents or
other physical exhibits at a prehearing conference or at hearing.
(b) A request for a subpoena for a person shall: include the person's name and
address; show the relevance of that person's testimony; and, demonstrate the reasonableness
of the scope of the subpoena sought. A request for a subpoena for documents or other
physical exhibits shall: include the name and address of the person who is to produce the
documents or other physical exhibit; specify the materials to be produced; indicate the
relevance of the materials subpoenaed to the issues on appeal; and, demonstrate the
reasonableness of the scope of the subpoena sought.
(c) The party requesting the subpoena shall be responsible for serving the
subpoena. An affidavit or declaration of personal service or of mailing shall be submitted to
the Hearing Examiner as proof of that service.
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(d) Except as otherwise allowed by the Hearing Examiner, subpoenas shall be
served no less than seven (7) days prior to the appearance or production ordered.
(e) A subpoena may be issued with like effect by an attorney of record in the
proceeding. The issuing attorney must sign the subpoena.
(f) Any motion to limit or quash (i.e., vacate or void) a subpoena shall be filed
with the Hearing Examiner within seven (7) days of receipt of the subpoena or such other
time as specified by the Hearing Examiner.
(g) Requests for subpoenas and the mlings upon such requests may be made ex
parte unless otherwise ordered by the Hearing Examiner.
3.10 DEFAULT
The Hearing Examiner may dismiss an appeal by an order of default where the appellant,
without good cause, fails to appear or is unprepared to proceed at a scheduled and properly
noticed hearing.
3.11 HEARING FOR1\1AT
(a) Appeal hearings, although generally informal in nature, shall have a
stmctured format and shall be conducted in a manner deemed by the Examiner to make the
relevant evidence most readily and efficiently available to the Examiner and to provide the
parties a fair opportunity for hearing.
(b) Where the Code provides that the appellant must overcome deference
accorded the Director's decision being appealed, the order of hearing is generally as follows:
(1) Examiner's introductory statement;
(2) Parties' opening statements (optional);
(3) Appellant's presentation of evidence;
(4) Department's presentation of evidence;
(5) Applicant's presentation of evidence (if applicant is not the appellant);
(6) Rebuttal; and
(7) Closing argument of parties.
(c) Where no deference is accorded the Director's decision, the order of hearing
for appeals is generally as follows:
(1) Examiner's introductory statement;
(2) Parties' opening statements (optional);
(3) Department's presentation of evidence;
(4) Appellant's presentation of evidence;
(5) Applicant's presentation of evidence (if applicant is not the appellant);
(6) Rebuttal; and
(7) Closing argument of parties.
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(d) Notwithstanding the provisions of HER 3.11 (b) and ( c), the order of hearing
may be modified or a different order established as the Examiner deems necessary for the
clear and fair presentation of evidence. The order of the hearing may also be modified as
agreed upon by the parties with the Examiner's approval.
( e) The order of presentation at hearing shall not alter or shift any burden( s) or
presumption(s) established by applicable law(s).
3.12 RECORD
(a) The record of an appeal shall include:
(1) Department's decision or action being appealed;
(2) Appeal statement;
(3) Evidence received or considered;
(4) Pleadings, procedural rulings, and other non-evidentiary materials that
are part of the Hearing Examiner's file;
(5) Statement of matters officially noticed, if any;
(6) Findings, conclusions and decision of the Hearing Examiner; and
(7) Tape recording ofthe hearing.
(b) The Hearing Examiner's administrative file on an appeal case may include
other information or materials which are not part of the evidentiary record.
3.13 RECONSIDERATION
(a) Reconsideration may be granted by the Hearing Examiner on a showing of
one or more of the following:
(1) Irregularity in the proceedings by which the movmg party was
prevented from having a fair.hearing;
(2) Newly discovered evidence of a material nature which could not, with
reasonable diligence, have been produced at hearing;
(3) Error in the computation of the amount of damages or other monetary
element of the decision; or
(4) Clear mistake as to a material fact.
(b) Motions for reconsideration must be filed within 10 days of the date of the
Hearing Examiner's decision. Unless otherwise specifically provided by the applicable
ordinance(s), the filing of a motion for reconsideration shall not stop or alter the running of
the period provided to appeal the Hearing Examiner's decision.
3.14 SUBSEQUENT APPEAL
Hearing Examiner decisions may be appealed as provided for in applicable law. Information
regarding subsequent appeal opportunities shall be provided as a postscript on the Hearing
Examiner decision.
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City of Tukwila
Washington
Resolution No.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, ADOPTING THE CITY OF TUK"VILA HEARING
EXAMINER RULES OF PRACTICE AND PROCEDURE.
WHEREAS, on May 5, '1997, the City Council passed Ordinance No. 1796,
establishing the office of Hearing Examiner for the purpose of presiding over appeals;
and
WHEREAS, the City of Tukwila contracts for the services of Hearing Examiner;
and
WHEREAS, the City of Tukwila accordingly desires to adopt rules of practice and
procedure for the Hearing Examiner to follow when hearing matters on behalf of
Tukwila;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
The City of Tukwila hereby adopts by reference, as if fully set forth herein, the
"Hearing Examiner Rules of Practice and Procedure," attached hereto as "Exhibit A."
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKvVILA, WASHINGTON,
at a Regular Meeting thereof this day of . 2005.
ATTEST/ AUTHENTICATED:
Pamela Linder, Council President
Jane E. Cantu, CMC, City Clerk
APPROVED AS TO FORM BY:
Office of the City Attorney
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Hearing Examiner Rules SK:kn 612/2005
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