Table of Contents I. Basic Hearing Rules... 2 A. Agency v. Respondent... 2 B. Relaxed rules of evidence... 2 C. Weight and admissibility... 2 D. Objections to evidence... 2 E. Hearsay ~ What s your backup?... 2 F. Credibility ~ When evidence conflicts... 3 G. Burden of Proof... 3 H. If it is not presented through a witness, it does not exist... 3 I. Evidence... 3 J. Impartiality... 4 K. No ex parte... 4 II. Avoid even a perception of bias... 4 A. Give the Respondent the case file well in advance of the hearing... 4 B. Tell the Respondent if new evidence is going to be brought in to the hearing... 4 C. Let the Respondent know which witnesses you plan to use at the hearing.... 4 D. Due Process... 4 E. Hearing Officer should not only be, but also appear, impartial... 5 F. Avoid prejudices... 5 G. Use only relevant facts... 5 III. Respondent s file... 5 IV. Elements... 6 V. Stipulations... 6 VI. Exhibits... 6 VII. Order of Legal Authority... 6 VIII. Witness testimony... 7 IX. Administrative Hearing Structure... 8 A. Pre-Hearing... 8 B. Agency s Opening Statement... 8 C. Respondent s choice to give Opening Statement here... 8 D. City s Case-in-Chief... 8 E. Respondent s choice to give Opening Statement here... 9 F. Respondent s Case-in-Chief... 9 G. City s Closing Statement... 9 H. Respondent s Closing Statement... 10 I. Close of Hearing... 10 X. Don t forget the necessities!... 10 XI. Translator... 10 XII. Hearing Officer ~ Duty of Inquiry... 10 XIII. Hearing Officer Decision... 11 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 1
Basic Administrative Hearing Rules, Procedures, and Guidelines A. City v. Respondent The City is prosecuting the case through an advocate, and the Property/Business Owner is responding to it. The Property/Business Owner is called the Respondent. B. Relaxed rules of evidence An administrative hearing operates under relaxed rules of evidence. This means the hearing is less formal than a trial in a court room. For example, unlike in court, a hearing allows hearsay into evidence, and Respondents can offer narrative testimony. This is to allow non-lawyers a chance to feel more comfortable, and have a fair shake at presenting their argument and evidence. A hearing may be able to stay less formal procedurally as well so long as both sides behave. However, as soon as emotions start to rise if litigants get heated, then more formal procedures are quickly put into place and must be followed. Keeping things more formal can quickly reduce emotional outbursts. The best tip it to be sure everyone clearly understands they will have a chance at the hearing to be heard, and will be allowed to say all they want to say in their entirety, and that almost all evidence is allowed in. C. Weight and admissibility Under the relaxed rules of evidence in a hearing, most evidence is admissible, even hearsay. However, just because evidence is allowed in, does not mean that all evidence carries the same weight. Some evidence will have a greater sway than other evidence. You want to be sure that the evidence you submit carries great weight. Think about the evidence you are offering. Is it credible? Is it relevant? Does it prove an element? It will likely carry weight. Is it redundant? Is it only based on hearsay? Does it not solve any issues at hand? It will likely have no weight. Evidence once in gets weighed by the hearing officer, and the more weight the evidence has, the more the scale will tip in that direction. D. Objections to evidence The only real objections to allowing evidence in at an administrative hearing are relevance and repetitious. If someone objects, the hearing officer can ask the other party for an offer of proof (ask them to explain the purpose of introducing that testimony or evidence) and then make a determination on the objection. A hearing officer can raise an objection themselves if the testimony being given is irrelevant, or repetitive. E. Hearsay ~ What s your backup? Hearsay is defined as an out of court statement offered to prove the truth of the matter asserted. If someone is quoting what was said earlier, it is hearsay if the quote is being offered only to prove that what was said is true. In administrative hearings, hearsay is admissible but must be backed up by other credible evidence in order to carry any weight. An element cannot be satisfied merely by hearsay. Make sure to introduce more proof that just what someone else said. Example: The neighbor said there were tall weeds and garbage in the yard. (Hearsay. While admissible, this is not enough evidence to prosecute a citation if no other evidence is introduced.) 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 2
Here is a picture of the yard when I went there to investigate. Note the tall weeds and garbage. (Now you have the neighbor s quote to show when the weeds were first complained about, supported by a photograph, backed up by the investigator s testimony at the hearing.) F. Credibility ~ When evidence conflicts When two people give conflicting evidence at a hearing, the hearing officer has to determine which evidence is more credible. The hearing officer MAY NOT make this decision based upon a gut feeling. The only way credibility can lawfully be established (or destroyed) is through other evidence. If a Respondent says, I received a building permit before I put that addition on, and the City says, They had no permit when they started their addition, the Hearing Officer can only decide which testimony appears more credible through the other evidence introduced. Is there a date on the permit? Is there a dated letter denying the permit application? Is there a permit for a garage? Are there pictures with dates? Is there more than one witness testifying to the same evidence? The Hearing Officer must look for supporting/conflicting evidence to determine whether someone s testimony is more credible. Just saying it doesn t make it true. If you want to be credible, be prepared to have back up of your testimony! However, once a witness credibility has been destroyed with some of their testimony, a Hearing Officer can doubt the credibility of any part of the rest of their testimony. So make sure all that you say is accurate, and is supported through other evidence. G. Burden of Proof The City must proof its case through a Preponderance of the Evidence, which means, More likely than not. This means there must be a 50.01% likelihood that what was testified to at the hearing was likely true. It is a very low burden, but must be met before the hearing officer can support a City s citation. If the Respondent s argument and evidence appears more likely to be the case, then the Hearing Officer must support that defense in the decision. H. If it is not presented through a witness, it does not exist If the evidence is not presented through a witness, it does not exist. Just because you have a piece of paper in a binder, and then hand the binder to the Hearing Officer at the start of the hearing, does not mean that piece of paper is now introduced as evidence. It must be testified to. Someone must explain what it is, why it is there, and how it relates to the issues being addressed. Think ahead, ask yourself about each document and each picture. Who is Going To Testify about This Evidence? I. Evidence How are you getting it in? Are you meeting each element? (Don t even bother if you can t the decision will only be in your favor if you have proven EACH and EVERY element!) Do you have hearsay back-up? Can you bring something in to show your witness is credible? Make a chart: List each element of the charge, next to it list each evidence you have to prove that element, and next to that list write down which witness you plan to use to get that evidence in. 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 3
J. Impartiality A Hearing Officer s decision cannot be based on personal opinion. It must be based on the evidence presented, and the credibility of each witness. K. No ex parte An ex parte discussion means you are speaking to the hearing officer without the other party being present or notified of the entirety of that conversation. Neither the City nor the Respondent is allowed to discuss the issues of the case with the Hearing Officer unless both parties are present, or copied on an email, or on the same phone call, or copied on the letter. The only thing a party can talk to the Hearing Officer about before or during a hearing, or after a hearing but before the decision is handed down, are logistical things such as the time the hearing is set for, or where it will be held, or what the parties need for the hearing to occur. No substantive discussions! II. Avoid even a perception of bias The hearing needs to not only be fair and impartial, but it must appear fair and impartial as well. Here are some ways to ensure both burdens are met: A. Give the Respondent the case file well in advance of the hearing When you send the Respondent a copy of their file before the Hearing, make sure it is complete, and exactly mirrors the file you are sending the Hearing Officer. If something is highlighted in one file, be sure it is highlighted in another. If there are color pictures in one file, there should be color pictures in the other. What language does the Respondent speak? It may be you will want to send the file out translated so that they know the charges against them. B. Tell the Respondent if new evidence is going to be brought in to the hearing Each fact will be evidence to introduce through a witness. Where did the evidence come from? When was it gathered? Who obtained it? What element does it satisfy? Use facts, not opinions, when putting your file together. The Respondent should be able to determine these things when looking at the file. This will help the Respondent decide whether or not to contest the charge, or what defense to rely upon. C. Let the Respondent know which witnesses you plan to use at the hearing. All relevant witnesses should be available at the hearing if at all possible. The inspector who saw the violation, the code enforcement specialist who wrote the citation, the person who took the photo (even if they no longer work in that department, or even for the City, they can still be called as a witness for the hearing) the finance person if any billings are being introduced as evidence for the Respondent to pay. The Respondent should have an opportunity to cross exam each person who gave the City any evidence. D. Due Process The City must prove that it met the requirements of Due Process, or the hearing cannot go forward. Due Process means the Respondent was given proper advanced notice of the hearing date, time and place, and an opportunity to be heard. Without proof that the Respondent was given sufficient notice and an opportunity to be heard, you have no case. If you mailed a letter, and it came back you have no notice. If you sent a certified letter, and they didn t sign it, you 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 4
have no notice. If you called them, and they hung up on you, you have no notice. You can post notice on the property at issue; and if the person is homeless, or does not own the property at issue, and may have moved, you can publish the notice in the newspaper. Look up the statute that applies to the regulations being cited, and make sure you have followed the timelines for notice. Without proof of providing notice, the hearing cannot go forward. Sometimes the fact that a letter was mailed and was not returned is sufficient to show the City gave the Respondent notice of the hearing. However, this only gives rise to the presumption that the Respondent received that letter. If the Respondent later contests that they never got the letter, it may mean the hearing decision is appealable on that issue, and may not stand on appeal. E. Hearing Officer should not only be, but also appear, impartial The Hearing Officer should have had no role whatsoever in the citation or in gathering evidence for the case. Not the inspector, or the inspector s supervisor, or even the inspector s good friend from another department. Even if any of these folks can honestly be objective to the case, there is still a threat of a perception of bias, and they should not be the hearing officer. The hearing should be seen as objective. Think about the choice of the hearing officer if you were the Respondent. How would you feel? Would you believe they were going to be fair? F. Avoid prejudices Most people think they don t have prejudices when they want to be objective. However, some prejudices are more subtle than others. The most common prejudices are manifested as stereotypes. What is the advocate or hearing officer s feeling about big businesses? About wealthy people? Poor people? Small businesses? Whether they have a good or bad feeling about a specific group, it is still a prejudice. They will tend to pre-judge that situation, which is an element of bias. It is important that each hearing officer and City advocate strive to be objective and fair, and not assume the Respondent is in the wrong just because there was a citation, nor assume they are innocent just because they are ignorant of the law. G. Use only relevant facts Sometimes when you cite someone, you will have a past history of interactions with them. Some of these interactions may be irrelevant to the citation at hand. If it is, don t introduce it. Do you have an issue with them on a different property? Have you cited them before? Were they rude? Did you feel they treated you poorly? These are the types of things that have no place as evidence when you present your case. Be sure that what you offer as evidence is there to meet an element, not to relieve emotion. Only relevant evidence is admissible. III. Respondent s file First impressions count. Does your file look organized? Detailed? Respectful to the Respondent? These are the types of things you may think won t matter, but it is easy to formulate an opinion of a case, just based on how the file looks. Make sure your evidence is organized, relevant, and in an order that makes sense to the case. Limit the number of pages with each tab. Don t stick 10 pages under one tab, that span over a month of time. Each tab should relate to one event, if possible. It is better to have a lot of tabs, than to have a lot of papers behind one tab. With each tab, think Elements! Think Due Process! Have you met them? Can you prove it? Who will introduce it? 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 5
IV. Elements When the City cites someone for breaking a law, it is important to understand each and every element of that law, and make sure each element can be satisfied with a fact that can be presented at the hearing. Meeting only some of the elements is not sufficient. Meeting the majority of the elements is not sufficient. Being able to prove only some of the necessary facts is not sufficient. There must be evidence and/or testimony for each and every element in the law being charged, in order to meet your burden of proof. Read the law that the citation is based upon carefully. How many different things must you prove to show that law was violated? Break the statute or regulation down into small pieces, and be sure you are able to prove each and every piece of that law, or the citation will not stand. V. Stipulations A stipulation is a voluntary legal contract. There are pros and cons to getting the Respondent to stipulate to something: If you have to prove 5 elements, and one of them is John Doe is the owner of 123 Main Street, consider asking John Doe to stipulate to the fact he is the owner of 123 Main Street. That way, you have now just met one of your elements. John Doe may not care at all that you met that element. Sometimes both parties will agree to a stipulation because the Respondent does not fully understand the power of the stipulation, and doesn t quite grasp that they cannot dispute it later. In some cases, it is appropriate for the Hearing Officer to deny the stipulation agreement, and require the City to present the evidence to prove that element. It is important that there is a balance of power, and it is the Hearing Officer s job to ensure that the City is on a fair playing field in litigating their case. Stipulations ideally are sent out as a request to be considered at the same time the file is sent to the Respondent. However, a stipulation may be made at any time, even in the middle of the hearing. Typically, stipulations are reviewed and discussed with all parties and the hearing officer at the prehearing. Once it is clear which, if any, stipulations are agreed to, they must be put on the record during the actual hearing, and kept with the evidence. VI. Exhibits Evidence can only come in through a witness. If no one testifies to it, it doesn t exist. Evidence can be excluded in an administrative hearing is if it is unduly repetitious, irrelevant, or immaterial. VII. Order of Legal Authority Constitution Case Law Statute/Regulation Published Written Policy Unpublished Written Policy (like a supervisor s letter) Verbal Policy (like at a staff meeting) When inconsistencies seem to appear in the law (and there are many), the Hearing Officer must always defer to the higher authority. If the City s written policy conflicts with the Constitution, the Constitution prevails. The order is important to determine which law to follow. 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 6
A Respondent cannot be held accountable for unpublished rules or laws. In order to meet the Constitutional requirement for notice, the law being charged must be published. VIII. Witness testimony The only reason your witness is testifying, is so that you can prove an element. In order to do this effectively, it is important to talk with your witness beforehand, and ask them to explain what they know about the case. Understand what they are bringing to the table, and what their perspective is. You may explain what your elements are to them, and how you see them as fitting in, but you may not ask them to use certain words, or say certain things. Their testimony should be their own. The only thing you may change is how you word your questions. When you have more than one witness, and they know each other, it is best not to interview them ahead of time together. Keep the stories separate from each other. Ask them to not discuss the case. The more they start to use the same words and share the exact same dates and measurements, the less credible they sound. Witnesses naturally have a little bit different story from each other. That is ok. It is normal. It is what will make them appear credible and not in cahoots. Witnesses can appear by telephone at a hearing. They still must be under oath though, just as witnesses at the hearing must be under oath. Witnesses should not be in the room before they offer their own testimony. They should be sequestered separately in another room until it is time to call them to testify. Do not ask your witness any leading questions. Isn t it true you saw him dump garbage in the yard? Your witness won t appear credible if they have to be led. Instead, let them come up with the answer naturally, Did you see him do anything in the yard? Yes. What was that? He dumped a bunch of garbage there every morning. Encourage concise answers from your witness. The longer they talk, the less the Hearing Officer will hear. Short answers are far more poignant. Make sure to tell your witness ahead of time to keep each answer to just a few words if they can. Whenever you hear a good quote (from a witness, or from the Respondent) write it down right away. Good quotes are useful at closing. (More on that later.) If a witness is being questioned by the Respondent, and you want to follow up on a question, or clarify something, write it down. This way you won t forget, and you won t improperly interrupt. If your witness shows up to the hearing holding a wad of notes from which they intend to answer questions from under oath, please understand that the other side has the right to see all of those notes. Tell your witness not to bring anything to the hearing that they do not want read by someone else. Witnesses are asked if they swear or affirm to tell the truth, the whole truth, and nothing but the truth. This is so that if a witness prefers not to swear to God, they can simply affirm they will tell the truth, and they are then bound by the same punishment for perjury as the next witness who swore under oath. 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 7
IX. Administrative Hearing Structure A. Pre-Hearing This is the formally informal portion of the Hearing. It is an opportunity for everyone to ask questions, and understand the procedure that is going to be used for the hearing. It is a time for explanations, and a time to review any stipulations. Evidence is marked and any objections to evidence is put on the record later once the hearing begins. Also, be sure this question is answered by both parties: What do you want decided upon today? It is amazing how many hearings end right there, because the Respondent did not want to contest the citation, but merely wanted a chance to explain their actions and hope for a lower fine, etc. Any testimony offered or evidence presented during a pre-hearing is not in evidence until it is raised during the hearing, and introduced by a witness. Mentioning a stipulation, or showing the hearing officer evidence during the pre-hearing does nothing until it is on the record, during the hearing. B. City s Opening Statement During an opening statement, the only thing you can state is what you know you can prove. If you are unsure at all whether you will be able to successfully prove something, do not bring it up in the opening statement. Do not offer any of your own opinions in the opening statement. I think that or I believe do not belong in opening statements. Avoid the use of the words I or We. It is better to refer to the City by name, i.e. The City will show rather than We will show Opening statements are an opportunity to tell the story as a narrative, and to put all the pieces together so that they make sense. It must be short, and it must be objective. Practice it a few times before the hearing so that it sounds natural. You know your case by now. Don t just read a statement. Think about what you want to say, and say it off of a bulleted reminder list. It will sound more natural, and get the Hearing Officer s attention better than if you read a paragraph from a page. Go through each element. During the opening statement, tick off the elements on your fingers, then state each bit of evidence you will bring in to prove that element. Details are helpful! Keep any and all emotion out the opening statement. Emotions do not belong here. The City gives their opening statement first, as they have the burden of proof. This should not take more than 5-10 minutes at most, and can be a narrative story behind the citation, to tell which witnesses will tell which part of that story. C. Respondent s choice to give Opening Statement here The Respondent has an opportunity to give their opening statement right after the City s opening, if they wish to do so. Otherwise, they can choose to wait and offer it later, after the City s case-in-chief. D. City s Case-in-Chief This is the portion of the hearing in which the City s advocate performs direct examination of its own witnesses, then the Respondent has an opportunity to cross-exam each witness after the advocate has finished each direct exam. Once the Respondent has finished asking questions of that witness, the advocate can ask follow up questions about anything the Respondent raised in cross. After that, the Respondent can re-cross that witness, asking questions about anything the City raised on re-direct. 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 8
Under the advocate s direct exam of their witness, no leading questions are allowed. However, the Respondent is allowed to ask leading questions on cross. When both sides are finished with this process (which can continue and include another re-direct and re-cross, etc), the City can then introduce its next witness. If the City only has one witness, then the City tells the Hearing Officer that they have completed the presentation of their evidence. At the hearing IRAC the citation: I State the Issue: What is being contested? R Identify the Rule: What law is the citation based upon? What are the elements of that law? A Make the Argument: Explain each fact that applies in this case to show the law was violated. C Explain your Conclusion: Explain how those facts combined violated the law E. Respondent s choice to give Opening Statement here If the Respondent did not give an opening statement after the City s opening statement, they can do so at this time. If they did present one earlier, they cannot give a second one at this point. F. Respondent s Case-in-Chief Similar to the City s Case-in-Chief, the Respondent can call their first witness to introduce any evidence or testimony. They must not ask leading questions on their direct exam. Once they are finished on direct, the City can cross that witness using leading questions. As before, the Respondent can then re-direct the witness, but only on issues raised by the City in cross. And, as before, the City can re-cross afterward, only on issues raised on the re-direct by the Respondent. Once both sides are finished with the witness, the Respondent can call their next witness. Typically the Respondent themselves are a witness. Under the relaxed rules of evidence, the Respondent can offer testimony as a narrative. When they are finished doing so, the City can then cross-examine the Respondent with questions. When the City is done doing so, then the Respondent can add testimony if they so wish, and the City can follow up with any re-cross. The Respondent and the City can call back an earlier witness for rebuttal purposes or clarification if necessary. For instance, if a witness offers testimony later that seems to conflict with an earlier witness, the first witness can be called back to try and determine why there is a difference in testimony. This gives both sides a chance to clarify any discrepancies. Once both sides have finished with all witnesses, they then each have a chance to offer closing statements. G. City s Closing Statement The City offers a closing statement first, because it carries the burden of proof. No new facts can be added in the statement. This is only an opportunity to focus the hearing officer s attention on the facts that were already introduced during the hearing, and to remind the hearing officer of specific quotes or facts that support the citation. Opinions are not admissible on closing. Do not use the words, I or We. Again, refer to the City by name, The City showed that 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 9
This is the time to S*P*E*L*L I*T O*U*T. Tell the story, connect the dots. Remind the Hearing Officer why certain testimony and exhibits fit in to your argument. This is a good time to repeat critical quotes that were said during the hearing. Don t ignore conflicting witness testimony. Confront it headon with your explanation of which one was credible, and which one wasn t, and why, or why the difference was irrelevant, or why the difference wasn t really as different as it sounds. Explain. H. Respondent s Closing Statement After the City s closing, the Respondent has an opportunity to close as well, following the same rules. No new facts. No opinions. This is only a chance to recap the evidence that came in using legal argument and relevant facts. I. Close of Hearing Once both parties have offered a closing argument, the parties rest, and the Hearing Officer can close the hearing. No new evidence is allowed in after that. Sometimes through a stipulation, the parties can agree the hearing will not close at that point in order to allow in more legal argument by way of written briefs, or to allow in critical evidence which could not be obtained earlier. Sometimes the parties will stipulate that that hearing officer can go to the scene of the citation to make personal observations. These types of after hearing procedures are rare, and not the norm. While these types of things are not common, they are allowable. (A hearing officer cannot conduct any investigation after the close of the hearing without the express written stipulation of both parties.) X. Don t forget the necessities! This is a list of what each administrative hearing typically can use in the room: Digital recorder, Water for anyone, Business cards of city witnesses. XI. Translator If the Respondent does not speak fluent English, consider sending them the legal notices in their native language, and ensure they understand their right to bring witnesses and exhibits. Each question and answer must be properly parsed out so that the translator can accurately translate the words without having to remember a paragraph. A translated hearing often takes more than twice the time a single language hearing will take. Translator must take oath to translate accurately. They must accurately translate sentences such as, I said ok to I said ok and not convert it to He said ok. These are common examples of how testimony can quickly become twisted. XII. Hearing Officer ~ Duty of Inquiry Justice Brennan said every Administrative Law judge has a duty of inquiry. The adjudicator has the responsibility to ask questions in order to seek information to develop evidence. The hearing should not be decided based on an omitted question. The Hearing Officer must ensure that no question is left unasked. Every case should be decided on the merits not on the mistakes. The Hearing Officer has the duty to understand the testimony and the evidence. They have the duty to ask sufficient questions until they do. The Hearing Officer has a duty to be neutral. Hearing officers have a right to ask questions at any time Hearing officers can call witnesses to testify, and the duty to ensure the pertinent witnesses are being called for a pro per Respondent. 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 10
XIII. Hearing Officer Decision A Hearing Officer can only follow the law not their own personal opinion on how the decision should play out. The decision must be based on how the law applies to the facts at hand, and not based on what outcome they want to have happen. The Hearing Officer s finding is an institutional decision. The published decision made is a decision of the City. The Hearing Officer should be able to cite whatever authority they are relying on in a decision. The Hearing Officer has a lot of implied authority, and the hearing should be held with the same level of justice that a court offer. 4/10/2014 Dinah V. Sapia s administrative hearing tips Page 11