(A) General; hearings examiners. The City Council shall hear all appeals, but in lieu thereof may appoint one or more hearing examiners, or designate one of its own members, to serve as a hearing examiner to conduct the hearings. The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the City Council for decision. Once the examiner’s decision is presented to the Council, as provided below, only those City Council members attending the presentation may participate in the decision.
(B) Record. A record of the entire proceedings shall be made by tape recording.
(C) Continuances. The City Council may grant continuances for good cause shown; however, when a hearing examiner has been assigned to such hearing, no continuances may be granted except by the examiner for good cause shown so long as the matter remains before the examiner.
(D) Oaths - certification. In any proceedings under this section, the City Council, any council member, the city attorney, or the hearing examiner has the power to administer oaths and affirmations.
(E) Reasonable dispatch. The City Council and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives.
(F) Form of notice of hearing. The notice to appellant shall be substantially in the following form, but may include other information:
“You are hereby notified that the hearing related to your appeal will be held before (the City Council or name of hearing examiner) at ____________________ on the _____ day of _______________, at the hour of __________ . You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. If you do not appear, your appeal may be denied.”
(G) Conduct of hearing.
(1) Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
(2) Oral evidence shall be taken only on oath or affirmation.
(3) Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions pursuant to the Rules of Civil Procedure applicable to the Circuit Courts for the State of Oregon.
(4) Any relevant evidence shall be admitted if it is of the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions pursuant to the Oregon Rules of Civil Procedure applicable in Circuit Court.
(5) Irrelevant and unduly repetitious evidence shall be excluded.
(6) Each party shall have these rights, among others:
(a) To call and examine witnesses on any matter relevant to the issues of the hearing;
(b) To introduce documentary and physical evidence;
(c) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
(d) To impeach any witness regardless of which party first called the witness to testify;
(e) To rebut the evidence; and
(f) To be represented by anyone who is lawfully permitted to do so.
(7) Official notice.
(a) In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or of official records of this city.
(b) Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein, or appended thereto.
(c) Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the City Council or the hearing examiner.
(d) The City Council or the hearing examiner may inspect any building or premises involved in the appeal during the course of the hearing, provided that (I) notice of such inspection shall be given to the parties before the inspection is made, (ii) the parties are given an opportunity to be present during the inspection, and (iii) the City Council or the hearing examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the City Council or hearing examiner. A request for an appeal before the City Council shall constitute irrevocable permission for any and all inspections deemed necessary or important by the City Council or hearing examiner.
(H) Method and form of decision.
(1) When a contested case is heard before the City Council itself, a member thereof who did not hear the evidence shall not vote on or take part in the decision.
(2) If a contested case is heard by one or more hearing examiners, the examiner, or examiners as the case may be, shall within a reasonable time (not to exceed 45 days from the date the hearing is closed) submit a written report to the City Council. Such report shall contain a brief summary of the evidence considered and state the findings, conclusions and recommendations. The report also shall contain a proposed decision in such form that it may be adopted by the City Council as its decision in the case. All examiner’s reports filed with the City Council shall be matters of public record. A copy of each such report and proposed decision shall be mailed to each party listed as an appellant on the notice of appeal on the date they are filed with the City Council. With the approval of the City Council, the examiner may have the assistance of the city attorney in drafting the report and other required documents.
(3) The City Council shall fix the time, date and place to consider the examiner’s report and proposed decision. Notice thereof shall be mailed to each interested party not less than five days prior to the date fixed, unless it is otherwise stipulated by all of the parties. At such time as the examiner’s report is considered, there shall be no more evidence submitted, nor arguments made by any party except as provided in § 97.09(H)(4). The consideration of the examiner’s report, and the meeting called therefore, is solely for the opportunity of the City Council to deliberate.
(4) Not later than three business days before the date set to consider the report, any party may file written exceptions to any part or all of the examiner’s report and may attach thereto a proposed decision together with written argument in support of such decision.
(5) The City Council may adopt or reject the proposed decision in its entirety, or may modify the proposed decision with or without the assistance of the city attorney.
(6) If the proposed decision is not adopted as provided in § 97.09(H)(5), the City Council may decide the case upon the entire record before it, or may refer the case to the same or another hearing examiner or examiners to take additional evidence. If the case is reassigned to a hearing examiner or examiners, the examiner(s) shall prepare a report and proposed decision as provided in § 97.09(H)(2) hereof after any additional evidence is submitted. Consideration of such proposed decision by the City Council shall comply with the provisions of this section.
(7) The decision of the City Council shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with. A copy of the decision shall be delivered to the appellant, or appellants, personally or sent by certified mail, postage prepaid, return receipt requested.
(8) The effective date of the decision shall be as stated therein.
(Ord. 542, passed 11-10-2014; Ord. 547, passed 4-13-2015)