PUBLIC HEARINGS

 

 

19.

CONSIDER FIRST READING OF ORDINANCE NO. 131 -- AMEND PROCESS BY WHICH THE DISTRICT ENFORCES ITS RULES AND REGULATIONS

 

Meeting Date:

October 15, 2007

Budgeted: 

N/A

 

From:

David C. Laredo,

Program/

N/A

 

General Counsel

Line Item No.:

 

 

 

Reviewed By:

General Manager

Cost Estimate:

 

 

General Counsel Approval:  Yes

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 Reading of the Concept Ordinance.

CEQA Compliance:  N/A

 

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 California Office of Administrative Hearings (OAH).  As a second alternative, the District could require its own board members to also serve as hearing officers.  These alternatives are discussed in detail below.

 

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.  California Government Code §27727 authorizes a local public entity such as MPWMD to contract with OAH for these hearing services.  Under the governing procedures of the OAH, ALJs must be admitted to practice law in California for at least five years preceding appointment.

 

The OAH requires a contract to reserve hearing dates.  As a general rule, OAH hearings are convened in Oakland.  A request can be made to convene a local hearing, but OAH rules do not afford the District the discretion to determine the location of any hearing.  At this time, OAH requires payment of a filing fee of $66 per case.  ALJs currently bill at the rate of $187/hour.  OAH hearings also require a reporter; the cost for the hearing reporter is set at the OAH contract rate, and is payable by the hearing participants. 

 

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 Fran Farina.  The second alternative is to use Administrative Law Judges under contract with the Office of Administrative Hearings.  The third alternative is for MPWMD Directors to act as the Hearing Officers.  The Rules and Regulations Review Committee at its October 4, 2007 meeting recommended (2-1, Director Lehman dissenting) that the option set forth in the draft concept ordinance:  volunteer hearing officers appointed by MPWMD Directors.

 

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: 

 

  • “The fine system needs to be re-evaluated to become applicable (a) establish automatic fines.”

 

  • “Hearing Process – Require more rigid adherence to the process for bringing violators to hearing; shorten the time-span between first violation and hearing; pursue the hearing process to conclusion.”

 

  • “Direct Water District management to strictly adhere to rationing ordinances and guidelines to the end that excess use fees are collected equitably and consistently, and where necessary, violators are brought to the hearing process without delay.”

 

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.

 

EXHIBITS

19-A    Draft Ordinance No. 131

 

 

 

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