Subject: RE: questions for upcoming Charter Commission mtg
Date: Wed, 10 Oct 2007 01:09:18 -0500
From: JimE@ci.mounds-view.mn.us
To: barbaralthomas@hotmail.com

Hi Barbara.
 
I'll respond to your questions in the order they were posed.
 
1.  Where in the Charter would it go?
The Administrative Offense (AO) matter has two components--the allowance to be granted by the Charter to issue AOs and the allowance to certify unpaid property-based AO fines, as we presently do for nuisance abatements, diseased tree removals, unpaid utility bills, etc.  As to the latter of the two components, I would propose adding a new section very similar to Section 8.05.  The new section could be worded along the following lines:
 
Section 8.06.  Other Miscellaneous Assessments.  The Council may provide by ordinance that the costs associated with code abatements, diseased tree removals and unpaid administrative fines or utlity bills may be assessed against the associated property and may be collected in the same manner as special assessments.
 
Regarding the authority to issue AOs in the first place, the City has been doing so for many years--I think the practice began in 1988 but am not certain.  At some point subsequent to 1996 the scope of the AOs was expanded to include minor moving violations, a tool designed to be used at an officer's discretion.  The City Attorney feels that given the uncertainty relating to a City's statutory right to issue Administrative Offenses for minor moving violations, it might help legitimize or validate our practice if articulated in the Charter.  I would suggest such a clause be added under the miscellaneous provisions of Chapter 12, specifically, a new Section 12.14 (the existing 12.14 would become 12.15.)  The clause could read something like...:

Section 12.14. Notwithstanding any state law to the contrary, the Council may by ordinance establish an Administrative Offense enforcement procedure to address property-based code violations and minor moving violations. Fines associated with such Administrative Offenses shall be established by ordinance and recipients of an Administrative Offense shall be provided with a hearing if so requested.
 
I'll need to check with City Attorney Riggs whether in his opinion we already have the ability to issue AO tags for property based violations.  If we do, adding such language to the Charter may be unnecessary although it probably wouldn't hurt to do so.
 
2.  What will the process be?
 
The process is already spelled out in Section 702.02 of the Code.  We'd likely tweak the language a bit for clarification purposes, but for the most part it would remain as originally drafted in 1988.
 
3.  What limitations do we need to include for application?
 
The Code, in Chapters 104 and 702, is fairly straightforward as to its application.  Not sure anything further is needed, although I need to double-check the language specific to minor moving violations.
 
4.   What fees/ fines will it include?
As for property-based violations, the Code presently limits the fines to $100.  We will propose increasing this fine in 2008 (twenty years after the fine was first instituted) and may consider a graduated fine schedule for repeated 'same or similar' violations within a twelve month period.  For police issued AOs, the fee schedule presently limits their application to speeding, stop sign, semaphore or unsafe lane-use infractions with a fine of $40 (significantly less than a Court Citation, if such a ticket were issued.)

5.  How do you limit increased usage where enforcement is subjective?

I'm not sure there's a need to impose limitations to prevent increased usage.  In Community Development, we always give property owners ample time to correct violations, probably too much time if you ask the neighbor of an offending property.  It's never our intent to blanket someone with tickets despite the Code allowing for a ticket to be issued EVERY DAY a violation persists.  We seek compliance and use the tickets to help achieve that simple goal when other avenues have proven fruitless.  The problem presently with an AO is that the ticket has no 'teeth', which by that I mean if the property owner ignores it, we have no recourse but to issue a Ramsey County Court Citation for the offense.  A Court Citation naturally is a more serious step and requires the offender to appear in court and potentially pay a fine that greatly exceeds our AO fine.  This course of action however is slow, often taking months to schedule the court hearing, all the while the original violation may still persist.  Because of this, we've actually skipped the AO process altogether in many cases to help expedite resolution of the violation.  Establishing the authority to certify these unpaid AO fines to the offending party's property taxes gives the AO the teeth it needs to resolve violations by creating a disincentive for the property owner to simply ignore the problem. 
 
6.  Does a change of this nature require a ballot measure?
 
No.  The requested Charter amendments would formailize our authority to issue AOs, a practice we've employed since 1988.  Some would suggest that we already have the ability to issue AOs and certify unpaid property-based fines even absent explicit Charter authorization, and if that's the case, then the amendments serve to reinforce this authority.  Besides, the community has long been clammoring for tighter enforcement against habitual offenders--the amendments will help to address that by reinforcing our ability to issue tags and assess any unpaid fines.  I would think the changes suggested are minor in nature, esp when compared to other recently adopted Charter amendments.
 
7.  Is there language currently in code and where is it?

Yes.  Chapter 702 establishes the AO process. All we would need to add is the authority to certify unpaid property based fines to the property taxes as a special assessment, in the exact same manner as we do for abatements, diseased tree removals and delinquent utility bills.
 
8.  Do we need a list of specific offenses or is there an existing category to reference?

The Code, in Section 104.01 as well as in Section 702.02, essentially indicates that ANY violation of ANY section of City Code can result in an AO being issued, so long as there is a penalty articluated therein.  Specifically, Section 104.01 says, 'Any person violating an administrative rule shall be subject to the scheduled penalty not to exceed one hundred dollars ($100.00) for each offense.'  Section 702.02 indicates that 'Offenses that are declared misdemeanors by this Code may be charged as administrative offenses, at the election of the City...'  Most of the sections of the Code conclude with an enforcement provision which reiterates that any violation of the Code constitutes a misdemeanor.
 
9.  Do we want a separate appeal process or use the original fine process already in place?
 
The existing Code provides for a hearing opportunity for any person having received an administrative offense.  Section 702.02, Subd 7 outlnies the steps pertaining to an appeal:

a. Request for Hearing: Any person aggrieved by this Section may request, within seven (7) days of the time of issuance of the notice, to be heard by the hearing officer who shall hear and determine the grievance.

b. Hearing Officer: The Clerk-Administrator shall be the hearing officer, and the Clerk-Administrator or a designee is authorized to hear or determine a case or controversy relative to this Section. The hearing officer is not a Judicial officer and is a public officer as defined by Minnesota Statutes, section 609.415 and subject to Minnesota Statutes relating to public officers. (1988 Code §400.03)

c. Determination of Case: The hearing officer shall have the authority to dismiss the violation for cause, reduce or waive the penalty upon such terms and conditions as can be agreed upon by the parties; however, reasons for such dispositions shall be stated, in writing, by said hearing officer. If the violation is sustained by the hearing officer, the violator shall pay satisfaction of the penalty or shall sign an agreement to pay upon such terms and conditions as set forth by the hearing officer.

Jeremiah and I have been discussing for some time now the possibility of revising this process to establish an impartial hearing officer rather than the City Administrator.  Some residents, when faced with appealing an AO, have expressed doubt that the City Administrator would provide a fair and impartial ruling.  To that extent we agree, in that the administrator probably would *not* be an unbiased arbiter.  Some communities contract with independent administrative hearing judges to consider city-issued tickets and fines.  If there's a way to do this economically (for both the City and the person receiving the ticket) we may want to give that serious consideration.  Ultimately, the City Council would make the final determination pertaining to any such fine via the assessment hearing, if it got to that point.

Whew....

I think I addressed all your questions.  If you have any follow up questions, please do not hesitate to give me a call.  I will *try* and make it to the Charter Commission meeting on Thursday, however my kids have conferences at 5:30 and 6:00 so I would not be there right at 7:00 pm.

Thanks,

Jim