City Commission - workshop

Thank you. Okay.

Praise the Lord.

I'd like to call the workshop to order. This is a workshop of the City Commission. The topic is the Administrative Hearing Bureau. We'll be hearing information on this. Will you please note the attendance for the record? And I know there's quite a few of the commissioners that are not able to be here. At this time, I'd like to turn it over to our city manager.

Thank you, Mayor. So one of the things that the commission has discussed and discussed with me is an administrative hearing bureau that they would like to see. And our city attorney has pulled together a presentation to talk about what that structure could look like. And I will turn it over to Mr. Campbell.

I'm going to have to have public comment. I didn't realize it was on the agenda. Is there any public comment at this time? Is there any public comment? Yes, Autumn Smith, please.

Good evening. Autumn Smith. I want to start by saying that I believe in clean neighborhoods. I believe in accountability. I believe the city has a responsibility to address legitimate code violations. But accountability without constitutional protections becomes government overreach. The concern with the proposed Administrative Hearing Bureau is not that administrative hearings exist. Administrative processes are used throughout government. The concern is whether this specific system protects due process, independence, and the rights of citizens who will be affected by it. I want you to know there is a difference between something being legal and something being lawful. Something may be legal because it was passed through the proper government process, but something is only lawful when it is also respects the Constitution, protects individual rights, and protects due process. Government cannot simply create a process and declare it fair because it was approved by a vote. Every government action is still limited by the US Constitution and the rights of the people. The 14th Amendment guarantees that citizens cannot be deprived of life, liberty, or property without due process of law. That includes meaningful notice, a fair hearing, and an impartial decision maker, and a realistic opportunity to challenge government action. The concerns with this proposal includes an appeal process that may require residents to post a bond equal to fines and costs before seeking court review. Civil violations could eventually lead to criminal penalties. A hearing officer structure where the city controls the appointment compensation and removal authority. When the same government entity issues a citation, controls the hearing process, and collects fines, citizens have a right to ask, where are the checks and balances? That question is not anti-government. It's pro-constitution. I have also heard that a former city attorney was involved in bringing this concept forward. If that is accurate, it is important to recognize the difference between the role of legal counsel and the role of elected official. The city attorney represents legal interests of the municipality. Commissioners represent the people. Commissioners do not take an oath to protect an administration, a department, or a recommendation from legal counsel. They take an oath to uphold the Constitution and faithfully serve their constituents. Before approving a system that impacts the property rights and due process protections of citizens, commissioners have a responsibility to ensure there are adequate safeguards, independent oversight, and protections against conflicts of interest. We can address blight, we can enforce codes, and we can improve our neighborhoods. But we must do it the right way with transparency, accountability, and respect for the constitutional rights of every citizen. A government that expects trust from its citizen must first show it respects them. Thank you.

Thank you for your comments. Joe?

Joe Harris Battle Creek. Just a few items on the Administrative Hearing Bureau proposal. The Administrative Hearing Officer needs to be completely unbiased, just like a District Court Judge or a Circuit Court Judge. And that all said, with all due respect to the City Manager, I do not believe that Administrative hearing officers should be appointed by the city manager. The reason being, the city manager is most likely going to do what's best for the city, ergo a bias already exists within the hiring process. According to research that I have done, administrative hearing officers need to be completely independent and unbiased. The hiring of an administrative hearing officer should be done in full view of the public, much like how the city manager was hired within the public eye. The city commissioners should be able to question and vet out any and all candidates for administrative hearing officers and then give their directives to the city manager on who to hire or who not to hire. It's the commission who are the representatives of the people of Battle Creek. You are the people's voice and the people should be able to come to you with concerns, questions and the like in regard to potential administrative hearing officer candidates. I believe that the proposal needs to be changed in that it's not the city manager who's going to appoint or hire administrative hearing officers, but it's going to be the city commission who will direct the city manager on who to hire as an administrative bureau officer. Reason being, you are the voice of the people, and this change puts the hiring into the hands of the people. As it sits right now, the people's voice is taken out of the hiring process by giving the city manager the power to hire and appoint administrative bureau officers. Second, being at the Administrative Hearing Bureau as funded by Battle Creek, how much is this going to cost the taxpayer? Do we have any of those numbers available for the public to see? Third, in regard to the qualifications for an administrative board officer, I think there needs to be something added that in addition to being a practicing attorney for five years, there has to be something stating that potential candidates should have been focused on constitutional law, as well as to help ensure that constitutional rights not violated during administrative bureau hearings. Thank you for your time.

Are there any other public comments at this time? Yes, John.

Everything that I've seen from John Kennebec 204 South Avenue, everything that I've seen from what government does, it tries to get bigger and bigger. I've seen a couple of operations by the dangerous building officer, another person, which I was denied the right. I was there and I spoke in regards to a matter, but never was involved in the Housing Board of Appeals. This is just increasing government and its operations. The more you do that, the more the people of Battle Creek are disenfranchised. You're making more government, not less. You're becoming more inefficient, not less. If you're turning this into a communist operation, you're doing an excellent job. Thank you.

Do we have any other public comment at this time? Is there any other public comment? See, now I'm going to turn it back over to our city attorney.

Mayor, I'll come up to the podium for this. Good evening, commissioners. I'M HERE TO TALK TO YOU ABOUT THE PROPOSED ADMINISTRATIVE HEARING BUREAU ORDINANCE THAT IS ON THE AGENDA FOR THIS EVENING'S MEETING. FIRST I'M GOING TO BE GOING OVER JUST KIND OF THE BASIC STATUTORY BACKGROUND AND STATUTORY AUTHORITY THAT ALLOWS THE CITY TO ENACT AND IMPLEMENT AN ADMINISTRATIVE HEARING BUREAU. THEN JASON FRANCISCO THE COMMUNITY DEVELOPMENT DIRECTOR WILL BE giving you some more background about the activities of his department and how that kind of ties in with all of this. And finally, I'll just kind of summarize the points of the current ordinance, the ordinance that we're proposing. So first off, the statutory authority comes from the Home Rule City Act itself. That's the act that empowers the city to charter. It's our charter's authority that allows the city to an administrative hearings bureau that AHB can adjudicate and impose sanctions for violations of the charter or ordinances designated in the charter or ordinance as a blight violation. The AHB can accept admissions of responsibility for blight violations and collect civil fines and costs pursuant to a schedule of such fines and costs. The municipality that establishes an AHB is responsible for funding its operations, and the municipality must designate by ordinance what other ordinances are within the jurisdiction of the AHB. An Administrative Hearings Bureau cannot have jurisdiction over criminal offenses, traffic civil infractions, general municipal civil infractions, or state civil infractions. Its jurisdiction is strictly on the ordinances that are designated as blight violations. And a hearing bureau cannot order incarceration or impose a civil fine in excess of $10,000. The following ordinance types can be designated as blight violations. So that would be zoning ordinances, building or property maintenance ordinances, solid waste and legal dumping ordinances, disease and sanitation, noxious weeds, abandoned vehicles, right-of-way signage, and dangerous buildings. And then the statute which allows the city to establish an AHB requires that the ordinance has to satisfy various requirements. Those requirements include ensuring that there is procedural and due process, that there are standards set for the appointment, authority, and duties of the administrative hearing officers, There have to be standards set for the conduct of hearings and for the imposition of penalties. There have to be provisions for enforcement of orders and judgments. And there have to be provisions for appellate review of the AHB's decisions in the local circuit court. At this point, I'll turn it over to Jason.

Good afternoon, Commission. This process will affect code compliance officials, our zoning department, and our inspections team. Those groups ensure that all of our residential and commercial properties meet all local housing and public maintenance standards, especially our position in code compliance to protect public health and safety. We are code officials are in neighborhoods to make sure that we are supporting quality neighborhoods and addressing issues that contribute to blight and unsafe living conditions. Specifically with code enforcement, uh, within the last few years, our job is to start with education. Well, yes, you will receive a notice, but hoping that generates a conversation. We want a property owner to reach out to us, explore some options, see what can be done, see what kind of resources are out there to bring their property into compliance. Again, this consists of all housing and property maintenance code standards. Inspections includes all residential, commercial, and including rental properties. This will encompass the rental permit and inspection process as we move those properties through the rental process. Our job is to support property owners to support rental property owners, we identify violations and find a way to bring those properties into compliance. The citation process is used as a tool of last resort. Currently, we issue approximately 250 to 350 citations per year. Before we issue these citations, we're talking about junk and trash notices, inoperable vehicles. A notice gets sent out to a property owner giving them 14 days to correct it. It's a 10 day order. We add a few extra days to kind of account for some mailing because as we know that mailing is taking three or four days now to even to get here in this city. Housing code issues. Back in 2016, we adopted the property maintenance code. The property maintenance code allowed us to change compliance violations into a 60-day time frame rather than the minimum housing code standards, Chapter 1460, where we only had a 30-day order to repair. So just giving the additional 30 days along with housing code violations has helped significantly. Back in 2015, 2014, And we were writing anywhere between 800 and 900 citations. Again, we're down to 250 to 350 citations a year. Just a quick number, back in 2022, 2023, out of all the enforcements that we did, we only wrote citations 4% of the time. So the number that we issue citations is not very high. Once we issue those citations, they are sent over to the Calhoun County District Court. Again, we're playing the waiting game, right? It's 45 to 60 days before we get a notice that we're going to appear for a pretrial. At that pretrial, There will be a new compliance date worked out with the property owner, the owner of the vehicle, whoever that citation was issued to, and the new compliance date is established. Is that 30 days? Is that 60 days? It's what makes sense. So here now we are another 30 to 60 days out. If the violation still isn't corrected after 60 days, we have to issue a... affidavit that says the violation still exists that gets sent back to the 10th district court, which now we are before we have a formal hearing or a show cause hearing. We are still 45 to 60 days out again. Um, this is a time frame issue. You know, I take us back to when Enbridge was in town and we had the oil spill, they were traveling down Burnham and on Fonda. We had a property that with just a junk and trash violation, It took the court almost 18 months to get through the court process for just junk and trash. We're talking of fines anywhere between $50 and $100. Currently, the court adds on an additional $130. So we're looking at fines currently at $180 to $230 total.

Just to add on to what Mr. Francisco said, I would also add that currently because the cases are being adjudicated in the district court, those fines and costs are split between the city and the county. So the city doesn't receive the whole amount of fines or the costs that are assessed. The majority of those actually go to the county for all the other violations that are prosecuted there. What one thing the Commission should note is that the Calhoun County District Court currently has a heavy caseload, and that means the city's code enforcement cases are only a small part of the of the district courts docket. In particular, criminal cases by law and by court rule have to be prioritized over almost everything else in the docket because of. Speedy trial rights that make it a constitutional imperative for those cases to get priority treatment. And as Jason said, the time for the initial violation notice to the formal hearing can take anywhere from six to 12 months or longer. Going on to kind of the basic proposal that we are putting before the commission tonight, the adjudication process would be relatively straightforward. When the authorized officials, that would be Jason and his staff, issue a violation notice and file the case with the hearing bureau, Respondents would have two weeks in which to either accept responsibility, deny responsibility, or accept responsibility with an explanation, or do nothing. If they accept responsibility, then they would receive an order to pay a fine and correct the violation, and that would essentially terminate the case. If they deny responsibility or offer an explanation, at that point it kind of enters the formal hearing process where there's, similar to the district court, there'd be a pretrial hearing at some point. That would then lead to a formal contested hearing, at which time the city would have to prove that the violation existed and the respondent was responsible for that. In case they just do nothing at that point, a default order would be entered, in which case they would be ordered to pay the fines and costs for the violation. After the order is issued, the respondents may appeal to the circuit court. The statute requires that, as part of doing so, that they post a bond in the amount of the fines and costs that have been assessed. The district court does have the authority to reduce that fee and bond, but the request for that would have to come from the respondent, and they would have to justify that to the circuit court judge as part of the appeal. The appeal costs as well would also be potentially waivable for indigent appellants, but that would be on request to the circuit court itself. In my experience in prior positions, we've worked to set up similar systems with the Administrative Hearing Bureau. I'd say the vast majority of the cases it reduces the time from issuance of the citation to a final order that can be appealed or enforced to two to three months in the vast majority of the cases. So one of the major advantages is it basically allows the city to be more agile and responsive to the needs of the community and to addressing issues as they arise. I'M NOT GOING TO READ THROUGH ALL OF THE ORDINANCES I HAVE LISTED HERE IN THE JURISDICTION AND SCOPE PAGE. ESSENTIALLY THESE ARE ALL THE ORDINANCES THAT UPON REVIEW OF OUR ENTIRE CODE OF ORDINANCES WOULD FALL WITHIN THOSE CATEGORIES THAT I LISTED BEFORE THAT WE CAN DESIGNATE AS BLIGHT VIOLATIONS. SO ESSENTIALLY ANY VIOLATIONS OF THESE ORDINANCES COULD BE BROUGHT BEFORE THE ADMINISTRATIVE HEARING BUREAU TO BE PROSECUTED THERE. A variety of reasons. We might want to still bring this to the circuit court of the district court and we would still have that option even though they are designated as blight violations. It's essentially the discretion of the city in which in which venue to bring these kind of claims. The Hearing officer, if a violation is established, can order the assessment of fines and costs for the violation in an amount or in amounts that correspond to what this commission would set as part of a posted schedule of fines and costs. They also have certain equitable powers in that they can order the respondent to correct the violation. And they can also order that if the respondent does not correct the violation within a reasonable amount of time, that the city would be authorized to correct the violation itself and to assess those costs against the property owner. That doesn't apply all the time, but it would apply, I would say, most of the time in most situations. With certain limitations, the fines and costs that are assessed by the Administrative Hearing Bureau become a lien against the property and could be collected as would unpaid taxes. So essentially if it goes through this process, if the order is not appealed or is upheld on appeal and the fines and costs are not paid, ultimately the city would be able to recover those fines and costs at a later date. Our proposal for administration and staffing is first to make sure that the AHB has the authority to make its rules and procedures so that it can essentially create forms and define how it will handle various procedural matters to ensure that basically to ensure the due process is satisfied. Those rules and procedures will be subject to the commission's review. Essentially, those rules and procedures once proposed by the AHB would be submitted to the commission, and they would go into effect unless the commission decides that it rejects them in whole or in part, and they could bring that up in a resolution to do so. Administrative hearing officers would be appointed by the city manager. The requirements listed there are all basically within the statute. So those are the minimum requirements that have to be done in order to satisfy our statute. And the city attorney's office is able to and willing to basically develop a training program for those administrative hearing officers to ensure that they know the scope of their authority, what they can do, what they can't do, how to basically respect people's due process rights, and how to basically conduct themselves as a neutral arbiter here. I think one thing that's important to stress is that the statute requires that hearing officers can only be removed for reasonable cause. That provision is there in the statute to essentially make sure that they are somewhat isolated, I guess, from political pressure so that their focus is on essentially enforcing the law and being a neutral arbiter rather than trying to satisfy their appointing authorities or anything like that. The HB would be basically another city division department that would be staffed at the direction of the city manager. I believe that the details in that are kind of still in process, but they're, they're being worked on. Um, and essentially the city attorney's office would continue to act as the prosecutor in those cases. Uh, that's one of the reasons why the hearing officers don't report to this wouldn't report to the city attorney or be in our department or chain of command is because they need to be separate so that we can actually prosecute the violations when they occur. And I guess lastly here, we have a proposed implementation timeline. This is a somewhat aggressive timeline, but we believe that it is reasonable and doable. The first step would be for the city commission to enact the enabling ordinance. And assuming that that can happen by next month, at that point, we can begin developing the procedures and the protocols for the hearing bureau. And we can also begin recruiting the hearing officers and any necessary support staff. We would project to have that done by September, which would then leave us basically October and December to train the hearing officers and the city staff on those procedures and protocols that have been developed with the objective of basically starting ramping it up and starting to hear cases in January of 27. Starting in the middle of winter, basically, It's probably the ideal time because the generally the number of violations are lower in the winter, so it'll give us a ramp up time before. The good weather hits and and. The caseloads go up. So I at this point I guess are there any questions from the Commission for either Jason or myself?

Any questions of the city attorney or Jason? Yes, Commissioner Lacoste.

Where would we be getting these attorneys from? I think, technically.

We would basically have to just post that, like, probably post a request for a proposal from local attorneys and attorneys from the surrounding counties to say that the city of Battle Creek is seeking administrative hearing officers to, my projection would be basically one or two days a month with one day for hearing cases and one day for kind of prep work and after hearing work and see what kind of proposals we can get. And select the best attorneys that we can from that.

How does it work like in other areas? Do they have? Any problems, I guess. You know, getting these attorneys to apply and.

I've not heard that any of the other that have hearing bureaus have had problems finding attorneys. In my experience, it was, I won't say it was easy to staff with hearing officers, but with effort, we developed a good slate of candidates that we worked through. I think one of the advantages that we would have is that a lot of attorneys will see an opportunity like this as a chance to, I guess, I want to say buff their resume, but it's an opportunity to demonstrate that they have that ability to kind of run a hearing in a courtroom. And if they're thinking at some point that they want to try to get run for or get appointed as a judge, serving as basically a hearing officer for a local municipality is going to look good in their resume.

Right. OK. Also, I know you mentioned the waiver of fees. So that's not something we can do here, correct? That's through the court?

The statute requires that the statute is written in a way where the bond for an appeal is mandatory. It uses the mandatory language shall. So it's questionable at best whether we have the authority to just waive that entirely. But as I mentioned, the existing court rules do have that authority, give that authority to the courts itself. So the process that I see would happen is that if there was an individual who wanted to appeal, They could file the appeal with the circuit court. And they would have to request the indigent waiver for the appellate fees and a fee and bond waiver. I will say that the fee waiver is going to be a little bit more challenging because it's going to be discretionary on the part of the circuit court. But it's going to be basically the appellant's burden to demonstrate to the court that a waiver is warranted.

Right. OK. And then last question. What about the cost currently versus like what it was projected to be with this type of system?

The cost currently is essentially the staff time that's dedicated to prosecuting these cases in the district court. Those costs would largely be the same. They may be even a little bit reduced because this would likely take less time and there would be less of those intermediary steps that Jason mentioned earlier. I think the largest Initial cost would be the cost of retaining and appointing a hearing officer. As I said, I'm kind of projecting that it would require about two days a month, so I'm guessing about 16 hours at attorney rates. The attorneys that we would be seeking would not be looking for $300, $400, $500 an hour rates here, but they would be needing to be compensated as attorneys, so I would guess that something we would expect to receive proposals, something in the area of Between 175 to 225 most likely, although that's essentially speculation based on my experience. And that would be essentially an hourly rate that they would be charging us for their time that they were working on either as a hearing officer or doing the paperwork required.

OK, thank you very much.

Commissioner, are you done?

Yes, I am, thank you.

Patrick, I know you just arrived, but do you have any comments or questions?

I'm not yet. I'll go over that later. OK, very good. I'm sorry for being so late. I actually understand you're not alone. OK, thank you.

Counselor, I'm not detecting universal support at this time for your proposal. I think it is worthy of some discussion upon. At least four members of the City Commission for ad hoc committee to be appointed by myself subject to support by the commission i'd like to see us also include a representative from the citizens of battle creek in each ward or each commissioner so there would be 13 people all together on this committee that would make a full recommendation back to the city commission for either support or change it to better get support i would also ask that the city manager and the city attorney assist the committee to negotiate uh entered into some lively discussion and come back with a good proposal that everyone can support so that's what i'll be asking i'll probably have to have it on the city commission meeting just as quickly as possible but if the commission doesn't want that i can understand we'll see what happens i think it's for the betterment of our city government any comments or questions

Mayor, if I may, Commissioner Simmons said that he does have questions. He texted me and said that he has questions. I'm assuming that he's on, Chad.

Yes, I'm here. Oh, I'm sorry, Chris. Chris, do you have any comments?

That's OK. Yeah, a couple of comments and then I guess a couple of questions.

I'm sorry, Chris, we can't hear you. We can't hear you.

Well. Is that any better?

Yes, a little bit.

Go ahead, Chris. OK, I yeah, yeah, sorry about that. I don't know what's going on here. I've had some connectivity issues here recently. A couple of questions or a couple of comments and then a couple of questions. Comments being that I remember first talking about this quite some time ago with our previous city attorney. Joel Steele about the idea and I was intrigued because I do believe that it has some merit to bring this kind of thing. in-house due process. I think it has been addressed as far as the process for residents to have their concerns or if they want to appeal to a higher authority. That's been addressed. Due process goes the other way, too. Not just for city government, but for other residents that might have something going on in their neighborhood that is unappealing trash. And I quite frequently get complaints that the city is unresponsive to these kind of things. Well, after further investigation, we find out the city is responsive, but the process is... very slow and bureaucratic. And so that's why I think there is some merit to this, that we need to have some further conversation. So due process is a concern. The adjudicators or the judges, administrative officials, being an employee of the city, albeit for a short period of time, a couple days a month, as the city attorney mentioned, I'm a little concerned about. I'm wondering... If any of other communities have set up anything where as we're contracting with maybe a third party firm that would supply independent kind of administrative officials that really wouldn't be contracting with us directly. for an hourly fee, if there's some other model that we could look at as far as setting this up to make these folks more impartial.

I'm unaware of any municipalities that have contracted with a larger firm or kind of a third party firm to handle that. The vast majority either have the staff in-house, I think Detroit does that, or have contracts with local attorneys who handle the hearings for them on these kind of long-term contracts for a year, two years, three years, that kind of thing. I think to assuage the concerns of essentially, I guess, undue influence and to make sure that they are truly neutral arbiters, As I said, the major factor to that is going to be the removal for cause provision, that they can only basically remove for reasonable cause. And along with that, the requirements that they have, that they get the necessary training basically know what it is what it means to be a neutral arbiter because while they may be paid by the city they're not there to represent the city uh that is that's frankly a distinction that i think attorneys are any attorney is going to be able to make because that's kind of what we're trained to do and what we're trained those distinctions are what we're trained to uh to kind of execute in our day-to-day uh you know kind of similarly like the county pays both the county prosecutor's office uh the district court and circuit court judges and the public defender's office. And they all have different roles in that system. So the fact that the city would be paying hearing officers doesn't itself create a conflict of interest or mean that they can't be a neutral arbiter in these matters.

I actually appreciate that analogy as far as the criminal public defenders. uh and that that coming from from the county is that is it something that uh say we could uh he reached out to the county and he would would there be anybody in the judicial system that would be available for contract uh to say to do this uh for for the city is would that be an option um

I think it would likely violate, if you're talking about seeing if there are judges or sitting judges who could do that, I think that would likely violate the judicial canons. We want our judges to not be basically involved in other things besides what they do, especially since the appeal for the hearing bureau goes to the circuit court. So that would immediately disqualify any of those judges. And in terms of the prosecutor's office or the public defender's office, neither of those would really be appropriate for that either.

Thank you for that. I do think this, again, has merit. I think we can address the due process. The due process goes both ways, as I've said, and if we can properly address the impartiality of the administrative officials in this, I think this has some merit to move forward more in some further discussion. Do we rush it and put it on an agenda still yet this month or in August? I think I just tend to lean with the mayor and say, let's have some further discussions when we have the entire commission available and then give staff a little further direction from our elected leaders.

Thank you, Chris. Yes.

I know that you had to mention about the timeline that we've been looking at currently for some of the things that go through the courts. And I was just wondering, because I've heard that some of those have actually taken up two years, a couple of years, three years, and onward, actually. Is that the case in some of the prior issues?

Well, I mean, as Jason mentioned, the case would be, can you tell them a little bit more about that case?

Because that predates me. Yeah, that was a junk and trash issue that we issue a notice for it. They don't do anything. We issue a citation, go to court. Yep, we're going to clean it up in 30 days. I mean, this is two hours worth of work. And you have your next hearing, the next show cause. It's still not done. You write another affidavit. You're 30. That's a little different. We have some, say we write a citation for a roof. You're talking $15,000. Coming up with that kind of money, that may push it down the line. We're looking for some assistance. The one here, back when Enbridge was in town, they have all of their trucks. That's the last thing we want is all of these people from out of town saying, what is going on in Battle Creek? They're driving right down Fonda to put the boats on the river. It looks like this for a long time. 18 months for Two hours worth of work.

I think that's all I have right now.

Any other comments? All right. I want to thank everyone for participating in this workshop. I'm sure that there will be other questions and commentary, and the commission will report back. Thanks.

Thank you.

Thank you, Mayor.

Thank you.