the role of the municipal hearings officer steven p. rourke, general counsel department of fire...

The Role of The Municipal Hearings Officer

Steven P. Rourke, General Counsel Department of Fire Services

Topics to be Covered

• Background• Ticket Process• Duties of Hearings Officer• Basic Principles• Conduct of the Hearing• Evidence• Written Decision• Potential Problems• Conclusion

I. Background

• M.G.L. c. 148A passed as part of comprehensive Fire Safety Act (c. 304 of the Acts of 2004)

• Allows non-criminal citations (scheduled assessment) for certain violations of fire and building codes

• Condition to city/town participation is appointment of trained, designated hearings officer (DHO)

II. Ticket Process

• As an alternative to criminal process, state or local code enforcement officers may cite for approved violations of State Fire Code (527 CMR) or State Building Code (801 CMR)

• Approval of violations (Scheduled Assessments) is made by the Joint Chiefs of the Housing and District Courts on petition of the State Fire Marshal and Commissioner of Public Safety

II. Ticket Process

• Approved assessments are as follows:– $100.00 for 1st Offense– $500.00 for 2nd Offense– $1,000.00 for 3rd or subsequent offense

• More than 200 fire code violations have been approved

• Currently 6 violations of the building code have been approved.

II. Ticket Process

• Appeals of state issued tickets go to Clerk Magistrate of Housing Court

• Appeals of local issued tickets go to city/town designated hearings officer (DHO)

• Fines assessed for local violations are paid to city/town

• Violator must pay ticket or request a hearing within 21 days

II. Ticket Process

• Municipal Hearing to be held within 45 days

• Appeal of DHO decision is to clerk magistrate of Housing Court within 10 days of decision

• Appeal of Housing Court clerk’s decision (also within 10 days) is to a single Justice of the Housing Court. This decision is FINAL!

II. Ticket Process

• All fines, penalties and assessments for local code violations are paid to General Fund of citing city/town and are earmarked for enforcement, training, and education for local fire and building officials.

• Fund may be used to pay stipend to DHO for $2,500 annually.

III. Duties of Hearings Officer

• Schedule the hearing upon receipt of appeal request (within 21 days from receipt of citation). DHO must notify alleged violator of date, time, and location of hearing.

• Impartially hear and decide the case before you, applying the facts to the law in order to decide the case.

• Preserve the record by writing a proper decision of the case.

III. Duties of Hearings Officer

• Swear in witnesses, maintain decorum and made rulings on objections or motions, as necessary.

• Avoid improper conflicts or conduct.

IV. Basic Principles

• Due Process – (state cannot deprive any person of life, liberty, or property without due process of law).

• Safeguards include: notice, confrontation, defense, counsel, fair hearing, judicial review. (Non-criminal hearings usually involve deprivation of property i.e. money (fine) or permit, license, etc.)

• The record is basis for making decisions. It includes testimony, exhibits, findings of fact, conclusions of law and the ultimate decision.

IV. Basic Principles

• Burden of Proof – the citing party, fire or building department, has the burden to persuade the DHO that it is more likely than not, based upon the evidence in the record, that the violation occurred. This is referred to as “preponderance of the evidence” standard.

IV. Basic Principles

• Procedural Issues – Discovery

– In most instances, there will be little need for the DHO to be involved in the discovery process.

– DHO may rule on a party’s request to “compel discovery” these include requests for documents, depositions, interrogatories, etc.

– DHO in all cases must determine if the information sought is (1) relevant and (2) privileged or confidential (consult with Town Attorney on discovery or complex motions)

V. Conduct of the Hearing

• Chapter 148A states the hearings shall be “informal and the formal rules of evidence shall not apply.”

• Informal does not mean lack of decorum. The parties should conduct themselves as commonly observed in Court.

• Presiding officer (DHO) should– Swear witnesses

– Conduct hearing

– Maintain order

– Rule on procedural issues and/or admission of evidence

V. Conduct of the Hearing

(A) Order of the Hearings Process

(1) Opening the Hearing

- Read notice into the record including time, please, etc. “Hearing being held in accordance with M.G.L. c. 148A”

(2) Identify Parties

- Parties should state name and roles into the record (i.e. Attorney, Party, Witness, etc.)

V. Conduct of the Hearing

(3) Swear Witnesses

- ‘Do you solemnly swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth?’ (Get verbal affirmation)

(4) Brief Opening Statements

- Summary of evidence, what was violated, and what action they want the DHO to take

V. Conduct of the Hearing

(5) Complainant’s Case

- Complainant goes first (usually the building or fire department)

- States the facts of the case

- Calls witnesses

- Offers exhibits

- Respondent may cross examine witnesses

(6) Respondent’s Case

- Same as above including cross examination

V. Conduct of the Hearing

(7) Brief Closing Arguments

- Summary of the evidence presented as applied to the law (the party that opens first, closes last).

(8) Close the Hearing

- DHO announces that no further testimony is to be offered, declares the hearing closed, and goes off record at ____ (state the time).

VI. Evidence

• Evidence = proof submitted at a tribunal as means of ascertaining the truth of any matter or fact under investigation before it.

• Chapter 148A § 2(c) states the formal rules of evidence do not apply except for rules of privilege.

• The standard for admitting evidence in hearings is “evidence may be admitted and given probative effect if it is the kind of evidence which reasonable persons would rely on in the conduct of serious affairs.”

VI. Evidence

• DHO should exclude unduly repetitious evidence offered at any time by either party if it does not add to the weight of already presented evidence.

• Any evidence to be relied on must be made part of the record (i.e. testimony, exhibits, photos, stipulations, etc.)

• Use stipulations whenever possible to speed process. Stipulation is agreement that a certain fact is not in dispute.

VI. Evidence

• In summary, DHO may admit any reasonable offer of evidence, exclude unreliable or repetitive evidence and must observe the rules of privilege.

• Privilege is a claim by the holder that there is a legal right to prevent or prohibit testimony, for example:

• Self-incrimination (5th Amendment)

• Certain relationships (attorney-client, husband-wife, doctor-patient, and priest-penitent)

VI. Evidence

• Hearsay is generally admitted then weighed for its credibility.

• DHO should not rely exclusively on hearsay evidence, especially in the face of conflicting direct evidence to the contrary.

• DHO should err on the side of allowing rather than excluding evidence in at the hearing.

VII. Written Decision

(A) Uniform Format

- Although not mandated, the Court prefers some uniformity to administrative decisions. Most administrative decisions in the Commonwealth use a format consisting of the following:

(1) Caption - Town of Everywhere Fire Department v. John Doe Corporation

(2) Statutory/Regulatory Framework – Appeal is under M.G.L. c. 148A for violation of 527 CMR ____ or 801 CMR _____.

VII. Written Decision

(3) Procedural History – brief history of how appeal got here

(4) Issue to be Decided – whether John Doe Corporation violated 527 CMR 14.00?

(5) Evidence Received – i.e. testimony of Fire Lt. X, Fire/Bldg Dept. report, photos, etc.

(6) Subsidiary Findings of Fact – all relevant facts presented.

VII. Written Decision

(7) Ultimate Findings of Fact / Rulings of Law – facts as found and how they apply to law.

(8) Order/Decision – how the DHO rules, either in favor of the Complainant (building or fire department) or the Respondent

(9) Right of Appeal Notice – “If aggrieved by this decision, you may file within 10 days from the date of receipt, an appeal with the ___________ Housing Court as provided in M.G.L. c. 148A § 2(d).”

Potential Problems - Traps for the Unwary!!!

• Bias – when you are so pre-disposed to a matter that you cannot reasonably expect to fairly and impartially adjudicate a matter.

• Ex-parte contact – you should not discuss the particulars of any case with either of the parties while the case is pending (this includes during recess of a case).

Potential Problems - Traps for the Unwary!!!

• Conflict of Interest – don’t participate in a hearing in which you/your family have a direct or substantial interest in (i.e. the Appellant is your cousin’s husband). If you know upfront, recuse yourself. If you find out during the proceedings, recess the hearing and seek advice from Town Counsel.

• Personal Investigations – you may not conduct personal independent investigations to conclude the truth of a case (i.e. recreating a scenario or viewing a scene by yourself). If you believe it is necessary, request to do so with all parties present.

IX. Conclusion• Things to Remember:

– Always try to remain fair and impartial

– Treat others as you would want to be treated

– Document the evidence and the process as much as possible (helps to avoid having your decision over turned!)

– Legal Counsel is key – if necessary, consult your Legal Counsel as a resource in your community.

– Good Luck!