HomeMy WebLinkAbout11/05/2013 05H Transit and Park Exclusion Appeals Contract for a Hearing ExaminerBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of: 11/5/2013
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ITEM TITLE: Resolution authorizing a Professional Services Contract to
secure a Hearing Examiner to preside over transit and park
exclusion appeals.
SUBMITTED BY: Cynthia I. Martinez, Senior Assistant City Attorney/575-6030
SUMMARY EXPLANATION:
In 2010, the Yakima City Council passed an ordinance that allowed Transit employees and the
Yakima Police Department to exclude individuals from transit facilities for failing to follow the
code of conduct or breaking the law. In 2011, a similar ordinance was passed that allowed
Yakima Police to exclude individuals from City parks. To comply with Constitutional due
process of law, both ordinances included an appeal process that requires a neutral hearing
examiner. Since the adoption of these ordinances we have only had one excluded individual
request a full hearing. Marty Dixon is a local attorney and former prosecutor who is familiar with
Due Process of Law and Administrative Law Procedure. He has agreed to be our on-call
hearing examiner for transit and park exclusion appeals.
Resolution: X
Other (Specify):
Contract: X
Start Date: 11/6/2013
Item Budgeted: Yes
Funding Source/Fiscal
Impact:
Strategic Priority:
Insurance Required? No
Mail to: City of Yakima Legal
Phone: 509-575-6030
APPROVED FOR
Ordinance:
Contract Term: 11/6/2013 to
12/31/2015
End Date: 12/31/2015
Amount:
Public Safety
Department
City Manager
SUBMITTAL:
RECOMMENDATION:
Adopt Resolution.
ATTACHMENTS:
Description Upload Date Type
Resolution -Transit Hearing Examiner 10/16/2013 Resollution
Transit Hearing Examiner Contract 10/16/2013 Contract
RESOLUTION NO. R -2013-
A RESOLUTION authorizing and directing the City Manager of the City of
Yakima to execute a Professional Services Contract to secure
a Hearing Examiner to preside over transit and park exclusion
appeals.
WHEREAS, the Yakima City Council has approved an ordinance allowing the Parks
Director and City of Yakima Police to exclude individuals from city transit facilities and parks
when there is probable cause to believe the person has broken a transit rule or committed
an infraction or crime at a transit facility or within a city park; and
WHEREAS, an excluded individual has the opportunity to request the decision to
exclude be reviewed by a neutral Hearing Examiner; and
WHEREAS, Marty Dixon, is an attorney doing business in the City of Yakima, and is
knowledgeable regarding Due Process of Law and the Probable Cause standard; and
WHEREAS, the Yakima City Council finds it in the best interest of the City of Yakima
to enter into this Professional Services Contract with Marty Dixon; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to execute
the attached and incorporated "Professional Services Contract" between the City of Yakima
and Marty Dixon to provide Hearing Examiner services for transit and park exclusion
appeals as described respectively in section 7.90.050 and section 13.16.160 of the City of
Yakima Municipal Code.
ADOPTED BY THE CITY COUNCIL this 51h day of November, 2013.
Micah Cawley, Mayor
ATTEST:
Sonya Claar Tee, City Clerk
PROFESSIONAL SERVICES CONTRACT
FOR
CITY OF YAKIMA TRANSIT AND PARK EXCLUSION HEARING EXAMINER
PARTIES:
The parties to this contract are the CITY OF YAKIMA, a municipal corporation, located at
129 N. Second Street, Yakima, Washington 98901 ("City" herein), and MARTY DIXON, Attorney
at Law, located at 32 N. Third Street, Suite 435, Yakima, Washington 98901 ("Dixon" or
"Examiner" herein).
RECITALS:
1. City of Yakima has established an appeals process for transit and park exclusion
matters occurring throughout the City.
2. In order to encourage consistency, and because of Dixon's legal experience and
knowledge of Due Process, the City wishes to contract with Dixon as a Transit and Park
Exclusion Hearing Examiner for the purpose of deciding transit and park exclusion appeals.
AGREEMENT:
1. Engagement of Hearing Examiner. The City hereby hires Dixon, and Dixon
agrees to serve, as the appointed Transit and Park Exclusion Hearing Examiner for the purpose
of conducting hearings on transit and park exclusion appeals.
2. Character and Extent of Services. Dixon shall be an appointed Transit and
Park Hearing Examiner for the City as described respectively in section 7.90.050 and section
13.16.160 of the Yakima Municipal Code.
3. Pro Tem Hearing Examiner. It is contemplated that the Public Works Director
will appoint an alternate Hearing Examiner to serve in the event of absence or inability of Dixon
to act.
4. Case Assignment. The Public Works Director, or his designee, shall assign
cases. While it is contemplated that Dixon will hear the majority of cases, the Public Works
Director shall assure that an alternate is assigned a sufficient number and variety of cases to
maintain the skills necessary for effective performance of Transit and Park Exclusion Hearing
Examiner.
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 1
5. Additional Duties. The Examiner shall coordinate with the alternate designee to
ensure consistency of analysis and efficient decision-making. The Examiner's duty to determine
matters efficiently shall include the duty to issue written findings and conclusions for all matters
coming before the Examiner within ten (10) working days of the conclusion of the hearing on
each matter unless a longer period is agreed to in writing by the applicant. The Examiner's
failure to comply with this duty will result in deduction from compensation otherwise due the
Examiner in the amount of $100.00 for each day of delay beyond ten (10) working days after the
hearing conclusion.
6. Liaison. The Public Works Director, or his representative, shall serve as the
City's liaison with the Examiner.
7. Independent Contract. The relationship of the Examiner to the City is that of an
independent contractor rendering professional services. The Examiner shall have no authority
to execute contracts or to make commitments on behalf of the City, except as authorized herein
or by City ordinances, and nothing contained herein shall be deemed to create the relationship
of employer and employee or principal and agent between the City and the Examiner.
8. Professional Fees. The Examiner shall be paid by the City for professional
services rendered under this contract at the rate of One Hundred Twenty Dollars ($120.00) per
hour. The payment provided in this section shall be full compensation for services rendered,
including all labor, materials, supplies, equipment, and necessary incidentals.
9. Itemized Statements. By the 5th day of each month the Examiner will provide to
the City an itemized statement for services and expenses incurred during the previous month, if
any.
10. Payment Schedule. Payments shall be made on the 20th of the month for
statements received by the 5th day of the same month.
11. Facilities to be Furnished by Hearing Examiner. The Examiner shall furnish
and maintain an office, equipment, library, and clerical staff suitable and adequate for
performing the services to be rendered pursuant to this contract. The City shall provide at its
expense hearing rooms, recording equipment, and related supplies.
12. Ownership of Documents. The record developed before the Examiner,
including the Examiner's decision or recommendation, shall be the property of the City. The
Examiner's work product, consisting of notes, research, and preliminary drafts, shall be the
property of the Examiner.
13. Right to Terminate Contract. This contract may be terminated by the City for
cause. For purposes of this paragraph, "cause" shall include, but not be limited to, a
determination by the City Council that the Examiner is not giving due consideration to proper
procedure or is not conducting hearings in a prudent manner, giving due regard to the
appearance of fairness doctrine, laws regarding conflicts of interest, and/or other laws,
procedures, and regulations dealing with the subject matter under consideration.
The Examiner may terminate this contract for cause or without cause upon giving
the City ninety (90) days written notice.
14. No Personal Liability. The City shall defend, indemnify and hold harmless the
Examiner from all liability, loss or damage, including costs of defense she may suffer as a result of
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 2
claims, demands, actions, damages, costs or judgments which result from the activities to be
performed by the Examiner pursuant to this Agreement. This defense and indemnity agreement
does not apply to claims arising from bad faith or malicious performance by the Examiner of his
duties herein.
15. Non -Assignment. This contract is personal to the Examiner and is not
assignable by the Examiner to any other individual.
16. Amendment. This contract can only be amended by the written agreement of
both parties.
17. Interest of Public Officials. No member of the governing body of the City and
no officer, employee, or agent of the City shall have any personal financial interest, direct or
indirect, in this contract. The Examiner shall take appropriate steps to assure compliance.
18. Interest of Hearing Examiner. The Examiner covenants that he presently has
no interest and shall not acquire an interest, direct or indirect, in any property, which is the
subject of a proceeding before the Examiner, which would conflict in any manner or degree with
the performance of his services hereunder.
19. Term. This contract shall commence November 6, 2013 and terminate
December 31, 2015 unless prior to said date it is renewed for an additional period on terms
agreeable to the City and the Examiner.
EXECUTED this
day of , 2013
CITY OF YAKIMA
By:
Tony O'Rourke
Yakima City Manager
ATTEST:
By:
Sonya Claar Tee
City Clerk
EXECUTED this day of , 2013.
HEARING EXAMINER
By:
Marty Dixon
Attorney at Law
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 3