GOVERNMENT vs. CITIZENS
PART 4 of 4
by Margaret Goodwin
June 22, 2013
Hearings Officer and Environmental Health Ordinances
This is Part 4 of a four-part analysis of the ordinances recently passed by the Josephine County Board of County Commissioners. This article examines the new Hearings Officer Ordinance and Environmental Health Ordinance.
The Hearings Officer Ordinance authorizes a County appointee, with no legal training or experience, to act as judge and jury and pass criminal judgments on citizens for code violations. The Environmental Health Ordinance adopts a number of state statutes as County ordinances, giving the County the authority to enforce them and collect fines for violations.
These ordinances can be read in their entirety, in a document containing all four of the new ordinances.
Hearings Officer Ordinance (2013-004)
“The Hearings Officer shall be appointed by the Board of Commissioners to serve at the pleasure of the Board of Commissioners.” (2013-004, 5.1) A Hearings Officer is supposed to act as an impartial judge in cases between the County and private citizens or businesses. When the judge serves at the pleasure of one of the parties to a case, one cannot help but question how impartial he can really be.
The only qualification for a Hearings Officer is to have a “thorough knowledge of administrative law and procedure.” (2013-004, 6.2) “Hearings need not be conducted according to the technical rules relating to evidence and witnesses.” (2013-004, 16.1) “The Hearings Officer shall have the authority to adjudicate all County violation cases, and shall have the power to impose civil and criminal fines and penalties for such violations…” (2013-004, 5.4)
There is no requirement for a Hearings Officer to have passed the bar or, in fact, to have any legal training or experience at all. The accused is not protected by the traditional rules of evidence required in a court of law. Yet the Hearings Officer has the authority to act as judge and jury and to impose criminal penalties on citizens, just like a real judge. Hearings Officers can also order property to be forfeited and seized by the County. (2013-004, 23.3)
“The Hearings Officer shall have the authority to … enter upon or authorize County employees to enter upon the premises of a person or business found to be out of compliance or in violation of any provision of a County ordinance, code, rule, or order…” (2013-004, 5.5) “The Hearings Officer may inspect any premises or property involved or related to the hearing.” (2013-004, 16.6) The Hearings Officer is required to give notice before the inspection, and the parties are given an opportunity to be present during the inspection (2013-004, 16.6.A-B), but the property owner is not allowed to refuse entry onto their property, either to the Hearings Officer or to any County employee the Hearings Officer authorizes to enter their premises.
This ordinance authorizes not just one Hearings Officer, but a panel of Hearings Officers to be managed by a Chief Hearings Officer. (2013-004, 6.1) How will the County pay for a panel of Hearings Officers when the County can’t even afford a single patrol deputy? At the public hearing on April 3, Commissioner Simon Hare said the Hearings Officers will be paid out of a Hazardous Waste Fund provided for out of the Public Works Department.
The Hearings Officer Ordinance says “The Hearings Officer shall have the authority to adjudicate all County violation cases …” (2013-004, 5.4) The vast majority of violations in the County have nothing to do with solid waste or nuisance abatement, let alone hazardous waste. Local attorney, Jack Swift, filed a Freedom of Information Act request for all the code violation complaints filed last year. Mr. Swift claims that only 15% of the complaints were for solid waste or nuisance abatement violations, while about 2/3 of the complaints fell under the jurisdiction of the Planning Department. If Hearings Officers are to adjudicate all County violation cases, but are to be funded out of a Hazardous Waste Management fund, wouldn’t that constitute a misuse of dedicated funds?
According to the Hearings Officer Ordinance, “The County may be represented at hearings by a County enforcement officer or by an employee of the Department enforcing the ordinance that was violated.” (2013-004, 17.1) According to the Code Enforcement Ordinance, “Fines recovered shall be paid to the department which issued the Citation.” (2013-003, 18.8.B) When the same County department that issues a citation also prosecutes the case and is awarded the fine, it almost seems as though they’re working on commission to seek out and cite violations.
There are hundreds and hundreds of pages of County codes and ordinances, making it highly likely that any given citizen is in violation of some code or ordinance without even being aware of it. With the ongoing budget cuts, all County departments are hurting for funding. This package of ordinances provides County departments with a way to secure additional funding through fines. Instead of our County departments working on behalf of the citizens, these ordinances pit them against us as we all become potential targets to help fund their departments.
Environmental Health Enforcement Ordinance (2013-005)
The fourth and final ordinance in the package recently passed by the Board of County Commissioners is called the Environmental Health Enforcement Ordinance. This ordinance adopts a number of state statutes and administrative rules as County ordinances (2013-005, 3), giving the County authority to enforce them according to the County’s new Code Enforcement and Hearings Officer Ordinances.
The Public Health Director can designate any employee of the Environmental Health Division of the Department of Public Health as an Enforcement Officer to issue citations for violations of these statutes and rules. (2013-005, 4.1) Fines collected will be awarded to the Public Health Department. (2013-003, 18.8.B) Fines imposed on corporations “shall be in an amount twice the fine established for a violation by an individual.“ (2013-005, 4.3)
The statutes adopted as County Ordinances regard Tourist Facilities, Pool Facilities, Restaurants and Bed & Breakfast Facilities, Commissaries, mobile units and vending machines, and Public Water Systems, including domestic wells. (2013-005, 3.1-3.5) The inclusion of domestic wells is probably the greatest concern for citizens who aren’t engaged in the hospitality industry, as most county residents have domestic wells and are probably not familiar with all the rules and statutes to which they may be subject.
The Hearings Officer Ordinance establishes a panel of Hearings Officers, who serve at the pleasure of the County Commissioners, to adjudicate cases between the County and private citizens. Cases may be prosecuted by the County department that issued the citation, which is also the recipient of whatever fines are imposed.
There’s an inherent conflict of interest when a Hearings Officer is appointed to adjudicate a case to which their employer is a party. Furthermore, this ordinance gives a County department that has a financial interest in the outcome of the case two bites at the apple, first by issuing the citation and then by prosecuting the case themselves.
In a county that can’t afford Sheriff’s patrols, and releases hard core criminals because we can’t afford to staff the jail, the combination of the new Code Enforcement Ordinance and the new Hearings Officer Ordinance make property owners who inadvertently violate a code far more likely to suffer consequences than actual criminals are.
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These are difficult economic times, and all County departments are scrambling to find funding to sustain themselves. Whether the Board of County Commissioners intended it or not, these ordinances provide a financial incentive for County departments to actively seek out code violations to fund themselves through fines, insidiously pitting our County departments against the very citizens they’re intended to serve.
For more information on the Code Enforcement Ordinance, see Part 3 or this series. For information on the new Solid Waste and Nuisance Abatement Ordinance, see Part 2. Part 1 provides an overview and background on all the ordinances.
Want to ask Commissioner Cherryl Walker or Commissioner Keith Heck about the scheme? They can be reached at the office of the County Commissioners, (541) 474-5221, Ext. 2 or by e-mail at [email protected], and [email protected]
� 2013 - Margaret Goodwin - All Rights Reserve