APPEALS TO THE CITY CODE HEARINGS OFFICER
Administrative Rules Adopted by Auditor's Office Pursuant to Rule-Making Authority
a. Purpose. The purpose of an appeal to the City Code Hearings Office (Hearings Office) is to determine if a City Bureau decision, based upon the evidence available to the City Bureau making that decision, is factually and legally correct.
b. Authority. Portland City Code 22.03.010 authorizes the Hearings Office to adopt rules, procedures, and forms to implement the provisions of Portland City Code (Code) Title 22.
c. Applicability. These rules apply solely to appeal cases filed with the Hearings Office under Code 22.10. These rules do not apply to cases filed under the authority of Code 22.03, Code Enforcement Procedures. Administrative Rule ADM 9.01 does not apply to Portland City Code section 22.10 and does not supersede the administrative rules contained herein.
d. Future reference to these rules. The rules set forth herein may be hereafter referred to as the Hearings Office Appeal Rules or ADM 9.05.
e. Conflict between the Hearings Office Appeal Rules and Portland City Code. In the event of any conflict between the Hearings Office Appeal Rules and the Code, the provisions of the Code shall prevail.
f. Waiver. The Hearings Officer may waive, for good cause shown, any provision of the Hearings Office Appeal Rules unless such waiver is in conflict with Code 22.10.
The definitions in this section shall apply specifically to Code 22.10 and the Hearings Office Appeal Rules unless the context clearly indicates a different meaning. Words used in these rules that are not defined shall have their common dictionary definition.
a. Appellant means a person or entity granted a right to appeal a City of Portland Bureau Determination to the Hearings Officer.
b. Portland City Code means the City Code of the City of Portland.
c. City Policy Documents or City Administrative Rules means any document identified on the City of Portland Website as a Portland Policy Document or Rule.
d. De novo means the Hearings Officer will review and weigh all the evidence in the record and make findings related to the evidence and law.
e. Determination means and includes any decision, determination or other written action by a City Bureau that provides for an appeal to the Hearings Officer.
f. Disruptive Conduct means conduct by any person in attendance at an appeal hearing that interferes with the normal hearing process, as determined by the Hearings Officer.
g. Hearings Officer means the Hearings Officer created by Title 22 of the Code.
h. Interpreter means a person with sufficient fluency to communicate with a person who does not speak English and has the ability to accurately translate the communication into English. Interpreter also refers to a person who assists or aides another person due to deafness or a disability.
i. Office of the City Code Hearings Officer means those clerical, administrative and ministerial personnel designated as such by the Hearings Officer.
j. Party means the Appellant, the Appellant’s representative(s) and the City Bureau and its representative(s).
k. Received means the date and time a document is time stamped by the Hearings Office.
l. Timely means a document stamped, by the Hearings Office with a date/time-stamp, within the time limits established by Code 3.130, 22.10 or the Hearings Office Policy Documents or City Administrative Hearings Office Rules. The date/time-stamp shall establish conclusively whether or not a document was received timely.
m. Website means the City of Portland internet address specifically related to the Hearings Office.
3. Minimum Requirements for Appeal Hearing requests to be considered complete.
a. Completed Hearings Office Request for Appeal Hearing Form.
i. The Request for Appeal Hearing Form (Appeal Form) shall be made available on the Hearings Office website and at the business location of the Hearings Office. The Hearings Office shall mail, upon receipt of a telephone request, a blank Appeal Form to the requester.
ii. All sections of the Appeal Form that are designated “required” must be completed.
b. Determination. A copy of the City of Portland Bureau Determination that the person is disputing must accompany submission of the Appeal Form.
c. Documents. The documents that must be provided to the Hearings Office, at the time of submission of the Appeal Form, depends upon whether the Determination was issued by a Bureau as a result of an Administrative Review.
i. Administrative Review. Many City Bureaus provide a person disputing a bureau action or decision an opportunity to request a meeting where the Appellant presents evidence and argument directly to the Bureau. At the conclusion of an Administrative Review, the City Bureau will issue a written Determination.
1. If a Determination was issued by a City Bureau as a result of an Administrative Review, then the Appellant must, at the time of submission of the Appeal Form, also submit all documents to the Hearings Office that the Appellant provided to the City Bureau at the Administrative Review.
ii. No Administrative Review. If the Determination was not issued by a City Bureau as a result of an Administrative Review, then the Appellant must, at the time of submission of the Appeal Form, submit all documents the Appellant intends to rely on at the Hearings Office hearing.
d. Fee or Fee Waiver. Payment of the required appeal fee or a completed Request for Fee Waiver Form is required at the time of the submission of the Appeal Form.
e. Consequences of Failure to Provide All Required Information. The information described in paragraphs 3a, 3b, 3c and 3d is required for the Hearings Office to ascertain whether it has jurisdiction to hear the requested appeal and to provide notices to the appropriate persons. Submission of any appeal request that does not include all required information shall be considered incomplete and officially denied a hearing.
f. Consequences of a Late Filing.
In the event that all of required information is not filed by the appeal deadline the appeal request will be denied.
4. Appeal Fee
a. All appeals arising under Code 22.10 shall be subject to the payment of a fee of ten dollars ($10.00).
b. Appeal fees are collected by the Hearings Office.
c. The appeal fee can be paid to the Hearings Office by:
ii. Check (made payable to: Treasurer, City of Portland)
iii. Credit card (Visa, Mastercard, American Express; a convenience fee is added)
iv. Debit card (a convenience fee is added)
d. Appeal Fee Waiver. An Appellant has the right to request the Appeal Fee be waived. Any person/entity requesting a fee waiver must do so on the form provided by the Hearings Office.
i. Fee waivers shall be granted when the Hearings Office determines the Appellant is financially unable to pay the appeal fee.
ii. Appeal waiver forms must be submitted along with the required documents set forth in paragraphs 3a, 3b and 3c above.
iii. An Appellant seeking a fee waiver must attest to the following:
“I am unable to pay the appeal fee. My income and other liquid assets are insufficient or barely sufficient to meet the daily essentials of life and are unlikely to improve in the foreseeable future.”
iv. Granting of an Appeal Fee Waiver has no past, present or future effect upon any other obligation or liability to the City of Portland.
v. The Hearings Officer shall approve or reject a request for a fee waiver within 5 business days of the receipt by the Hearings Office. Notice of approval or rejection of a fee waiver shall be communicated in writing by the Hearings Office to the Appellant.
5. Denial of Request for an Appeal Hearing.
a. Reasons for Denial
i. Incomplete Submissions. A Request for an Appeal Hearing that does not contain all required information.
ii. Not Timely. A Request for an Appeal Hearing that all requirements (paragraph 4 above) are not submitted timely.
i. A written notice of denial will be mailed within 5 business days of the date/time stamp on the Appeal Request Form.
i. If a Stay was placed on the Determination because of the filing of a request for Appeal Hearing, the Hearings Office will, in a timely manner, notify the City Bureau that the Request for Appeal Hearings was denied and that the Stay should have no further force and effect.
6. Notice of Hearing.
a. General Contents.
i. The Hearing Notice shall contain information related to the date, time and place of the scheduled hearing; and
ii. A calendar of scheduled hearings is available on the Hearings Office website. The calendar is subject to change. Up-to-date information may be obtained by contacting the Hearings Office by phone or in person.
b. Notices of Hearing are mailed, using the regular United States Mail Service, to:
i. The Appellant(s), or Appellant(s) representative(s) at the address or addresses provided in the written request for an appeal hearing; and
ii. The City Bureau representative identified on the City Bureau decision or determination attached to the appellants request for an appeal hearing; and
iii. Other persons/entities identified in appellant’s request for an appeal hearing or to a City representative identified in City Bureau correspondence to the Hearings Office.
7. Bureau submission of documents to the Hearings Office.
a. The Bureau, upon receipt of a Notice of Appeal Hearing, shall convey to the Hearings Office all evidence/documents/materials used by the Bureau to arrive at the Determination subject to the appeal.
i. The Bureau’s evidentiary submission of documents must be received by the Hearings Office within 10 business days of the date of mailing of the Notice of Hearing.
ii. Receipt of documents, after the 10 day deadline, shall not be considered by the Hearings Office in making the appeal hearing decision.
8. Requests to Reschedule
a. A Party, or a Party’s representative, may request to reschedule an appeal hearing by submitting, in writing, a signed Request to Reschedule Form. The Hearings Office must receive the Request to Reschedule Form no later than forty eight (48) hours before the scheduled hearing (not including Saturday, Sunday, or recognized City holidays). The Hearings Officer has sole discretion to grant a request to reschedule. It is the responsibility of the Party who submitted the Request to Reschedule Form to timely inquire about whether the hearing has been rescheduled.
9. Hearing Procedure
a. General Rule. The manner of conducting all appeal hearings is subject to the Hearings Officer’s sole discretion and control, except as limited by Code 22.10 and these rules.
b. Telephone Hearings. Hearings by telephone are not available.
c. When Hearings are Held: All hearings are scheduled within the hours of 8:00 a.m. to 5:00 p.m. on Monday through Friday (except recognized City holidays).
d. Hearings Start Promptly at the Scheduled Time. Appeal hearings begin promptly at the scheduled date, time and place. Persons arriving late may lose the opportunity to present their case or to hear other parties’ testimony.
e. Standard of Proof. The Hearings Officer shall render a decision as to whether the Determination subject to Appellant’s appeal is justified by a preponderance of the evidence in the record and applicable legal standards. The burden of presenting evidence to support a fact or proposition rests on the proponent of that fact or proposition.
f. Conduct of the Hearing. Hearings will generally proceed as follows:
i. Opening comments by the Hearings Officer;
ii. Opening comments by the Appellant (or Appellant’s representative) and the City Bureau (or its representative);
iii. Appellant’s presentation of witness(es) and other evidence;
iv. Cross examination by City Bureau of each Appellant witness;
v. City Bureau’s presentation of witness(es) and other evidence;
vi. Cross examination by Appellant of each City Bureau witness;
vii. Appellant’s presentation of rebuttal witness testimony, if any;
viii. Cross examination by City Bureau of any Appellant rebuttal witness;
ix. City Bureau’s presentation of rebuttal witness testimony, if any;
x. Cross examination by Appellant of any City Bureau rebuttal witness;
xi. Appellant’s closing argument based solely on evidence presented;
xii. City Bureau’s closing argument based solely on evidence presented;
xiii. The Hearings Officer shall have the right to question any witness.
g. Time Limits. The Hearings Officer may set reasonable time limits for oral presentation and testimony and shall exclude or limit cumulative, repetitious, or immaterial matter.
h. Oath. All testimony given at an appeal hearing shall be under oath or affirmation.
i. Exhibits. Exhibits shall be marked, by the Hearings Officer, upon receipt. All exhibits shall be preserved as a part of the record of the proceeding.
j. Evidence submitted other than by oral testimony or written form. Evidence other than oral testimony or in writing may be offered, and will be admitted in any format, subject to the following limitations:
i. If equipment, technology, or computer programs are required to access or present evidence, the person offering such evidence is responsible for providing and setting up the equipment or programs. Set up must be done before the scheduled start time of the hearing and must not disrupt the hearing process. Such equipment, technology or programs shall be removed immediately after the hearing concludes. The Hearings Office does not supply equipment, technology or programs (including, but not limited to projectors and computers).
ii. The Hearings Officer will consider evidence presented before or during the hearing, but will not attempt to open any computer DVD/CD/phone and/or program unless the format is compatible with current Hearings Office technology and does not require installing or downloading an operational program. Hard copies of presentations (including, but not limited to photos and PowerPoint presentations) are recommended as a supplement to presentations made via computer/DVD/CD/phone files and programs.
k. Hearings are Recorded. All hearings are recorded. A copy of the recording may be posted on the Hearings Office website within three business days following the hearing date.
l. Hearings Officer’s Right to Exclude. The Hearings Officer may expel or exclude any person from the Hearing Room if that person engages in disruptive conduct. An expelled or excluded person may not re-enter the Hearing Room without the permission of the Hearings Officer. Any persons expelled or excluded from the Hearing Room is deemed to have waived their right to offer in person testimony or argument. The expelled or excluded person may only submit additional written evidence, before the hearing closes, through an agent or representative.
m. Pre-hearing conference. The Hearings Officer may, at the Hearings Officer’s sole discretion, require the parties to meet in an attempt to clarify or narrow factual and/or legal issues and discuss settlement terms.
a. A Party’s right to discovery is limited as follows:
i. For appeals involving City Bureau decisions rendered by a City Bureau following an administrative review process that allowed Appellant to present evidence and argument related to the Determination.
1. A Party shall have the right to seek an order of the Hearings Officer requiring the production of documents provided by the other party during the administrative review process.
2. A Party shall have the right to seek an order commanding the presence, at the appeal hearing, of any person who appeared and presented testimony or argument during the administrative review process.
ii. Appeals where the City Bureau decision was rendered and no City Bureau administrative review process occurred where the Appellant was given an opportunity to present evidence and argument related to the validity of the Determination.
1. Code sections 22.03.060 and 22.03.080 apply.
11. Findings and Orders. Written findings shall explain the facts, laws and rules related to the Hearings Officer’s appeal decision.
12. Requests to Reopen the Record after the Hearing is Closed. The Hearings Officer may reopen an appeal hearing record for good cause upon receiving a written request submitted by the Appellant or City Bureau. Cases will not be reopened after 30 days of the date of the Hearings Officer’s Order.
Adopted by City Code Hearings Officer and effective September 1, 2015.
Filed for inclusion in PPD September 17, 2015.