THE ORDINANCES ACCORDING TO CHERRYL WALKER
by Margaret Goodwin
October 2, 2013
Josephine County, Oregon. —On September 25, Commissioner Cherryl Walker gave what she referred to as a “factual” presentation on the four ordinances that have been referred to the voters by referendum petition. In Commissioner Walker Explains it All for You, we examined a couple of interesting contradictions that arose in the course of her presentation.
In this article, we’ll explore some of her imaginative interpretations of these ordinances, and compare and contrast them with the reality.
What Legal Experience Are Hearings Officers Required to Have?
When Commissioner Walker addressed the Hearings Officer Ordinance in her presentation, she said “They have very specific requirements. That's what's in the new ordinance, specific requirements. The ordinance doesn't spell out that they have to be a member of the bar, but they do have to have legal experience. They do have to know the administrative procedures. And those individuals may be people who were formerly members of the bar who are now retired. So there are also a lot of people who have law degrees who work in administrative processes for corporations or other nonprofits or entities. And some are tribal. So those would be the requirements for the Hearings Officer in all of these.”
Actually, those are not the requirements for a Hearings Officer in the actual Hearings Officer Ordinance she’s asking us to vote for. There is only one qualification, which is stated in Section 6.2, and the only requirement is “Hearings Officers shall have demonstrated thorough knowledge of administrative law and procedure as a requirement of employment.”
Administrative law refers to the procedures created by administrative agencies involving rules, regulations, applications, licenses, permits, etc. Demonstrating knowledge of administrative law and procedures does not require any actual legal experience. In fact, the people most familiar with administrative law and procedures are the employees (or former employees) of the very departments that will be issuing citations and bringing their cases before the Hearings Officers. Considering that this same ordinance authorizes the department issuing the citation to prosecute the case at the hearing, and that any fines imposed will be paid back to that same department, if the Hearings Officer were a former employee of the same department as well, it would certainly give the appearance of a stacked deck.
While it may be Commissioner Walker’s personal intention to hire Hearings Officers who were formerly members of the bar, or who have law degrees but are not practicing lawyers, it is the ordinance, as written, on which we will be voting. If the voters adopt this ordinance, it will remain in force long after Commissioner Walker is gone. And the ordinance itself has no requirement for Hearings Officers to have ever been members of the bar, or to have ever earned a law degree, or to have ever practiced law in any capacity. And in light of that, it is also worth noting that these Hearings Officers are empowered to impose both civil and criminal penalties.
Meth Labs, Birdhouses, and Rentals
During the comments from citizens, several people voiced objections to a provision in the Code Enforcement Officer Ordinance that says, if any profit should result through any violation, the property owner may be sentenced to pay up to twice the value of the property on which the violation occurred.
Commissioner Walker responded “People keep referring to Section 18.6 in this ordinance, and that isn't just anyone that can be charged a fine, a double fine, it is unlawful profit. If someone has derived profit from doing some kind of activity that is a violation of the ordinances, whether it be -- the only thing I can think of right now is like manufacturing or using chemicals that are illegal under the law -- that would be the ordinance application of 18.6.”
That may be the only situation Commissioner Walker can think of in which this provision would apply. But, again, we are not voting on how Commissioner Walker would apply these ordinances, we are voting on the ordinances, as written. And this ordinance does not simply refer to a double fine, as Commissioner Walker mentioned in her response. It authorizes the County to sentence the defendant to pay up to twice the value of the property on which the violation was committed, if the defendant has gained any money or property through commission of a violation.
And there is nothing in the ordinance that limits this penalty to illegal drug manufacturers. It applies to any profit gained through any violation of any County code, ordinance, rule, regulation, or other law.
So let’s consider a different example. Suppose you build birdhouses as a hobby, and sell them from your home. And suppose you paint a sign on a piece of wood and nail it to a tree in your yard saying you have birdhouses for sale. Unless you’ve paid the County for a Home Occupation Permit, this is a violation of a County code, and this ordinance authorizes the County to sentence you to pay twice the value of your home because you gained a profit through commission of a code violation.
As another example, suppose you own a rental property and you built a deck, which increased the rental value of the property. If you didn’t get a permit before you built that deck, then you gained a profit through a violation of a County code, and you could be sentenced to pay the County twice the fair market value of your rental property.
This might not be the way Commissioner Walker imagines this ordinance being enforced, but the way the ordinance is actually written, it authorizes these kinds of abuses.
But that’s Not What the Ordinance Says
In the KAJO radio interview on May 28, Commissioner Walker stated that the new ordinances always require a complaint from a member of the public before an Enforcement Officer is sent out. During the citizen comments after her presentation on September 25, several people pointed out that the only complaint required in the proposed Code Enforcement Officer Ordinance is the one filed by the Code Enforcement Officer issuing the citation.
Commissioner Walker responded “A complaint can be instituted by Enforcement Officers, but those are when there's no one available to complain, for instance, our codes, and as Ms. Chase said, these codes are going to apply to such things as restaurant inspection, hotel/motels, swimming pools, and animal control. And lots of times, those are situations that come to their attention because they're doing some job under statutes required by law. They're going on a premise because they're required to inspect a restaurant. If there's a violation, there's no one else to complain.”
Again, that may be the way Commissioner Walker imagines this ordinance working, but that is not the way the ordinance is written. Section 8.1 of the Code Enforcement Officer Ordinance says a Code Enforcement Officer “may issue a Citation for violations of County ordinances, codes, rules, and regulations, and for any other violations which may be charged in the County as crimes or violations of law.” It goes on to say that all Citations shall conform to the following requirements. Section 8.2 states simply that a Citation consists of a Complaint and a Summons. Section 8.3 lists the information required in the Complaint, which includes the name of the Code Enforcement Officer issuing the Citation and a statement that the Code Enforcement Officer has reasonable grounds to believe the person named in the Complaint committed the violation specified. Section 8.4 says the Summons shall be printed on the reverse side of the Complaint.
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Nowhere in the Code Enforcement Officer Ordinance is there any mention of a complaint from a citizen. A citizen complaint is only required for a violation of the Solid Waste and Nuisance Ordinance. For all other violations, the only complaint required is the one written by the Code Enforcement Officer on the front of the Citation, with the Summons on the back