What does the Hearing Examiner do?
The basic functions of the Hearing Examiner are similar to those of a judge. “Administrative Law Judge” and “Administrative Hearing Officer” are other titles used for this kind of position.) In the course of an appeal, the examiner is authorized to regulate the conduct of the hearing, administer oaths, issue subpoenas, decide procedural questions, receive evidence, hold conferences, and prepare decisions or recommendations to the City Council.
What decisions can be appealed to the Hearing Examiner?
The Tacoma Municipal Code1.23.050 – Areas of Jurisdiction, authorizes the Hearing Examiner to hold hearings and decide many different types of appeals including:
- Land Use Decisions
- Local Improvement Districts (formation and assessments)
- Tax and License Code Appeals
- Ethics Complaints
- Property Forfeiture Hearings under the Uniform Controlled Substances Act (RCW 69.50.505(e))
- Street Vacation Proceedings
- Code Enforcement Appeals
- Wetland Development Permit Appeals
- Environmental Code Appeals
- Utility Billing Disputes
- Dangerous Animal Appeals
What are the procedures for Appeal Hearings?
Appeal hearings will be informal in nature, but organized so that testimony and other evidence can be presented efficiently. Witnesses are called to stand by the parties to the appeal and testimony is given under oath. Members of the general public do not testify unless called as a witness by a party. An appeal hearing typically includes the following steps:
- An introductory outline of the procedure by the Examiner
- Any preliminary matters
- Opportunity for opening statements
- Presentation of appellant(s) case, including any witnesses
- Opportunity for cross-examination of appellant(s) and witnesses
- Presentation of the City case, including any witnesses
- Opportunity for cross-examination of City staff and witnesses
- Presentation by the other respondent(s) and witnesses
- Opportunity for cross-examination of respondent(s) and witnesses
- Questions by the Examiner
- Rebuttal evidence, if any entry of stipulated exhibits
- Closing arguments
The Hearing Examiner may change the order of presentation at his or her discretion. Following the hearing, the Hearing Examiner prepares written findings of fact, conclusions of law and decisions which are forwarded to parties in the case.
How are public hearings different from appeal hearings?
The Hearing Examiner holds a public hearing in order to gather information that will inform the Hearing Examiner’s final decision on a preliminary subdivision application, and the Hearing Examiner’s recommendation to the Council on the other types of actions such as Local Improvement District formation or Street Vacations. On all but preliminary subdivision applications, the hearing also forms part of the record that will be presented to the City Council for final decision.
Generally, anyone who wishes to be heard will have an opportunity to speak, but it may be necessary to limit the amount of time available to each speaker. Written comments are acceptable, and in the case of a Hearing Examiner’s recommendation, the comments become part of the record sent on to the City Council.
Following the hearing, the Hearing Examiner prepares findings, conclusions and a recommendation that is sent to the City Council along with all the exhibits and other materials in the hearing record. The City Council will often use these as the basis for its decision. For preliminary subdivisions, the Hearing Examiner issues a final decision. The Hearing Examiner’s recommendation, or final decision on a preliminary subdivision application, will be sent to the applicant, the appropriate City department and those who request a copy of the decision.
How do I file an appeal?
You must prepare a written document that identifies the decision you are appealing and the reasons for your appeal and file it together with any required filing fee. Your appeal should include the following items:
- A copy of the Order or Decision you are appealing
- Your name and address (mailing and legal, if different) and, if applicable, the name and address of your representative
- A daytime phone number
- A brief statement why you are appealing
- A statement of the relief you are seeking
In order for the Hearing Examiner to be able to consider an appeal, it must be received by the Office of the Hearing Examiner by 5 PM of the last day of the appeal period. The Hearing Examiner does not have the authority to change or extend an appeal period.
What is a pre-hearing conference?
This is a meeting held prior to the hearing to help sort out, simplify, and clarify the issues and procedural aspects of the hearing. Typical topics for a pre-hearing conference would include identifying the legal issues on appeal, discussing whether the subjects included in the appeal are within the Hearing Examiner’s jurisdiction, exploring whether there is a potential for settling the dispute, identifying who the witnesses will be, and how long the presentations are expected to take. Any party may request that a pre-hearing conference be scheduled, and the Hearing Examiner may schedule one without such a request.
If I’m not sure about what to do, who should I ask?
The Office of the Hearing Examiner can answer procedural questions, explain the appeal process, and describe how hearings usually run and what to expect. It cannot assist with, or give legal advice on how to put together your presentation, what questions to ask witnesses, whether to get a lawyer to help, etc., as this could be interpreted as advocating for your position.
During a hearing, if you are unsure of the procedure or what you should be doing, you can ask the Hearing Examiner to explain. Before and after the hearing, you should direct your questions to someone on staff other than the Hearing Examiner who is hearing the appeal. This is necessary to avoid the prohibition on communicating with the Hearing Examiner outside the actual hearing.
Why can’t I talk to the Hearing Examiner directly?
By law, no one is to talk to the Hearing Examiner about the merits of an appeal except during the hearing. Talking with the Hearing Examiner outside of the hearing or pre-hearing conference is prohibited except for procedural matters. This is to prevent people from trying to influence the Hearing Examiner or add information that is not presented at hearing where all parties can discuss and question it. (Such communications are referred to as ex parte contacts and are prohibited by law.) If questions or problems arise outside of the hearing, you should ask to speak to someone in the Office of the Hearing Examiner other than the Hearing Examiner assigned to hear the appeal. In certain situations a conference call including all parties and the Hearing Examiner can be arranged to discuss important issues.
Do I have to have an attorney?
Appeal hearings are legal proceedings, in that they are established by law and result in decisions that have legal force and effect. Some people involved in appeal hearings have lawyers to represent them, but many citizens and City agencies represent themselves. It is not necessary to have an attorney, and you don’t have to be an attorney to represent yourself in a proceeding before the Hearing Examiner. Nevertheless, representation by an attorney may be extremely helpful for complex appeals with difficult legal and factual issues.
To make the hearing process more accessible and “user friendly” for non-lawyers, the Hearing Examiner explains various aspects of the hearing during opening remarks and encourages procedural questions. In recognition of the importance of the issues to those involved, and the legal effect of the outcome, hearings do have a structured format. That structure and the Hearing Examiner’s control of the proceedings, help to ensure that all participants have a fair opportunity to present their points of view.
Appeals from Hearing Examiner Decisions
The Hearing Examiner’s decision contains information on the time limits and methods of appeal for each decision.
An appeal or request for reconsideration must be filed within the specified time limit in order for the decision to receive further consideration. The postscript at the end of the decision indicates what opportunity there is for further review.
Most decisions must be appealed directly to Superior Court. Usually, new evidence cannot be raised on appeal. All relevant evidence and arguments should be presented at the hearing before the Hearing Examiner.