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Help & SupportChapter 1-3: Quasi-Judicial Hearings7
1-3-1 Legislative Intent and Application of Chapter.
The following rules of procedure are intended to provide a uniform, consistent, and expeditious method for conducting quasi-judicial hearings held by city officers, employees, departments, divisions, boards, commissions, and the city council and to afford persons due process of law. An agency may supplement the provisions of this chapter by adopting further rules of procedure not inconsistent herewith. An agency may grant the opportunity for public testimony and shall permit public testimony whenever required by city charter, ordinance, or code or state or federal constitution or law. This chapter applies whenever a quasi-judicial hearing is required by any provision of city charter, ordinance, or code or state or federal constitution or law, unless another procedure is provided by city charter, ordinance, code, or contract or state or federal constitution or law. Nothing in this chapter shall be interpreted to grant any person the right to appeal to any agency or to have a hearing before it unless a specific provision of city charter, ordinance, or code or state or federal constitution or law grants such a right. This chapter does not apply to any pre-disciplinary procedures involving any employee of the city.
(Ordinance Nos. 4879 (1985); 5202 (1989))
As used in this chapter:
"Agency" means the city council and any officer, employee, department, division, or other agency of the City of Boulder, including boards and commissions but excluding the municipal court.
"Interested person" means any person described as "interested" by city charter, ordinance, or code or state or federal constitution or law, or any person having a legally protected interest under city charter, ordinance, or code or state or federal constitution or law that is subject to potential injury in fact due to proposed final agency action, or any person having a right of appeal from proposed final agency action by virtue of a specific provision of city charter, ordinance, or code or state or federal constitution or law. "Interested person" may include a city agency.
"Party" to a hearing means any interested person who requests a hearing, appears at a hearing, or submits a written entry of appearance at or before a hearing.
"Pre-disciplinary procedures" means any and all activities conducted by supervisory personnel of the city prior to imposition of disciplinary action.
"Proponent of an order" means the party requesting proposed final agency action.
(Ordinance Nos. 4879 (1985); 5202 (1989))
1-3-3 Notice of Agency Action.
(a) Except as provided by section 1-3-4, "Exception For Emergencies," B.R.C. 1981, no agency may take final agency action subject to this chapter unless, before taking such proposed action, the agency has given all known interested persons notice by hand delivery, posting on the property subject to agency action, or regular mail, or publication once in a newspaper of general circulation in the city of:
(1) The proposed agency action;
(2) The legal authority under which it is proposed to be taken;
(3) The opportunity for any interested person to submit written data, views, and arguments with respect to such proposed action; and
(4) Either:
(A) The date of a hearing if city charter, ordinance, or code or state or federal constitution or law requires a hearing without a request therefor before proposed agency action; or
(B) The opportunity for any interested person to request a hearing on such proposed agency action by filing a written request therefor that is received by the agency no more than ten days after the date the notice is deposited in the mail, hand delivered, posted, or published.
Notice shall be given at least ten days before the date of the hearing. If the notice is mailed, it is given when mailed to the address shown on the license, permit, or application in question or in the records of the county clerk or tax assessor or any other official custodian of public records of property ownership for any specific property in question. For purposes of this subsection, public records means those records defined in 24-72-202(6), C.R.S.
(b) If an interested person requests a hearing as prescribed by subparagraph (a)(4)(B) of this section, the agency shall give notice at least ten days before the hearing of the date, time, place, and nature of the hearing to all known interested persons. Unless otherwise provided by city charter, ordinance, or code or state or federal constitution or law, such notice shall be given to the person first requesting the hearing upon depositing the notice in the mail or hand delivering the notice at least ten days before the date of the hearing to the last address furnished to the agency by the person requesting the hearing. The agency shall notify all other known interested persons by the means specified in subsection (a) of this section of the date, time, place, and nature of the hearing; that they may participate in the hearing; and that failure to appear at the hearing waives any hearing right.
1-3-4 Exception For Emergencies.
(a) The requirements of prior notice and hearing in section 1-3-3, "Notice of Agency Action," B.R.C. 1981, do not apply when the agency determines that the public health, safety, or welfare requires emergency agency action pending a hearing. If the agency takes emergency action, it shall provide timely notice of the action and shall thereafter provide the notices required by section 1-3-3, "Notice of Agency Action," B.R.C. 1981, and an opportunity for a post-emergency action hearing to interested persons by the means prescribed by section 1-3-3, "Notice of Agency Action," B.R.C. 1981.
(b) Nothing in this chapter shall be deemed to prohibit an agency from ordering interim relief to preserve the status quo pending a hearing.
(Ordinance No. 5099 (1988))
1-3-5 Hearings and Determinations.
(a) The agency may charge a fee for a hearing, if so authorized by city code or ordinance. The hearing officer or agency may waive or refund the fee upon a showing of undue hardship.
(b) Any interested person shall be admitted as a party to the hearing upon filing a written entry of appearance before the hearing, setting forth a brief and plain statement of the facts that entitle such person to be admitted and the matters that the person claims should be decided.
(c) The hearing shall be conducted by the agency; by an employee, agent, or subcommittee of the agency; or by one or more hearing officers who have not personally determined the factual issues in controversy at the hearing and have no personal financial interest in the outcome of the hearing. In its discretion the agency may, but need not, appoint an employee of the city or other person possessing qualifications acceptable to the agency as a hearing officer to hear and receive evidence and render a decision on the law and the facts. The hearing officer has all the authority possessed by the agency to render decisions. While presiding at a hearing, the agency or hearing officer shall determine whether the proposed agency action comports with the requirements and standards in the applicable provisions of city charter, ordinance, or code or state or federal constitution or law.
(d) The agency or hearing officer has authority to administer oaths and affirmations; sign and issue subpoenas; waive or refund hearing fees; rule upon offers of proof; compel testimony; receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing; set the time and place for continued hearings; fix the time for filing of briefs and other documents; direct the parties to appear and confer to consider simplification of issues, admissions of facts or documents to avoid unnecessary proof, and limitation of the number of witnesses; issue appropriate orders that control the subsequent course of the proceeding; dispose of motions; and control the decorum and conduct of the proceeding.
(e) All testimony shall be taken under oath or by affirmation.
(f) No person shall fail to comply with the orders of the agency or hearing officer at the hearing. Violation of this requirement may be prosecuted in municipal court in the same manner that other municipal offenses are prosecuted.
(g) The proceedings of the hearing shall be recorded through tape recording, stenographic, or other verbatim reproduction, and copies of transcriptions of the proceedings shall be available, upon payment of the reasonable costs thereof, to the parties to the hearing.
(h) Unless otherwise provided by city charter, ordinance, or code or by state or federal constitution or law, the proponent of an order has the burden of proof, and every party to the proceeding has the right to present such party's case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross examination as may be required for a full and true disclosure of the facts.
The agency or hearing officer may receive all or part of the evidence in written form if the interests of the parties will not be prejudiced substantially and if the hearing will be expedited thereby. The rules of evidence and requirements of proof and procedure shall conform to the extent practicable to those in civil nonjury cases, but when necessary to ascertain facts affecting the substantial rights of the parties to the proceeding, the agency or hearing officer may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. The person conducting the hearing shall give effect to the rules of privilege required by law, may exclude incompetent and unduly repetitious evidence, and may receive documentary evidence in the form of a copy or excerpt if the copy is authenticated. The agency or hearing officer shall use its experience, technical competence, and specialized knowledge in evaluating the evidence presented to it. Parties to the hearing may make objections to evidentiary offers, which shall then be noted in the record. In the absence of objection, the hearing may be conducted informally, and failure to request any procedure shall constitute a waiver thereof.
(i) The agency or hearing officer may issue a decision at the hearing and shall issue a written decision with findings of fact and conclusions of law, setting forth the grounds of the decision, based on the evidence presented at the hearing. The agency shall serve the decision on each party to the hearing by personal service or by mailing by regular mail to the last address furnished to the agency by the party. The decision shall be effective as to such party on the date mailed or on such other date as is stated in the decision.
(j) Unless otherwise provided by city charter, ordinance, or code or by state or federal constitution or law, the decision of the agency or hearing officer is final subject only to judicial review pursuant to Colorado Rule of Civil Procedure 106(a)(4). No defense or objection may be presented for judicial review unless it is first presented to the agency or hearing officer, prior to the decision thereof.
(Ordinance No. 4879 (1985))
No ex parte material or representation of any kind or any other communication outside the hearing shall be considered by the agency or hearing officer conducting the hearing unless it is fully disclosed on the hearing record and an opportunity is given for comment thereon at the hearing.
7 Adopted by Ordinance No. 4615. See 24-4-105, C.R.S.
8 Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).