Guest commentary | Open government important to the city of Maple Valley | Christy Todd
By CHRISTY TODD
Covington Reporter Columnist
July 16, 2012 · Updated 7:48 PM
Editor's note: This is a response to the editorial "Failing to be open and transparent."
I sincerely appreciate Mr. Box’s willingness in his July 12 editorial to acknowledge that legal matters can be difficult to understand. It appears, after investigating the matter involved in the June 27-28 hearings that one or more city staff misunderstood some legal matters, and may have given incorrect information to reporter TJ Martinell.
I strive to do my utmost to assist staff and elected officials in their understanding of legal matters and in their compliance with requirements for open government. I wish to assure both the Reporter and the public that the city is open and transparent and strives at all times to follow to the letter the requirements of state law for open government. The city may have fallen short of its usual and customary efforts to be open and transparent on June 27-28, but the facts need to be fully presented before anyone rushes to judgment about whether what occurred that day is characteristic of the city as a whole and its compliance with open government requirements.
The city held a two day contested hearing before the city’s hearing examiner on June 27-28 because the defendants requested the hearing. That is their right under adopted city code when a citation is issued by the city for a code violation. The hearing was not a “closed record hearing” as characterized in the July 12 editorial, nor was it an “appeal hearing” and a staff member that provided that information to Mr. Martinell was incorrect in using those terms.
By way of explanation, citations issued by the city to a code violator have one of three options for a response by the violator: pay the fine, request a mitigation hearing to explain the circumstances (essentially admitting to the violation); or request a contested hearing. In a contested hearing, the city’s burden of proof is “preponderance of the evidence.” This is the lowest burden of proof that exists in the law — it means the city has to prove “more likely than not” the violation occurred. This is a different burden of proof than a criminal trial, which is “beyond a reasonable doubt.” The city puts on its case, through documents and witnesses, and the violator gets to cross examine the city’s witnesses, and then put on its case through documents and witnesses, with an opportunity for the city to cross-examine. The hearing is very similar to a civil trial in that way. The Maple Valley hearing examiner presides over the hearing, and the result can be appealed to Superior Court.
The hearing began on Wednesday, June 27. No one was present other than the parties to the case when the hearing began at 9 a.m. The hearing lasted all day, and continued to Thursday, June 28. On Thursday, June 28, in the middle of the afternoon, and after the hearing had resumed following a lunch break, reporter, TJ Martinell came to the city asking to attend the hearing.
City staff that assisted him was aware that all witnesses who had not yet testified were excluded from the hearing until the conclusion of their testimony — by order of the hearing examiner (this is very common in these types of proceedings, and at trial). City staff had also been asked the day before by the hearing examiner not to interrupt the proceedings. This was because the defendant’s witnesses had interrupted the proceedings on the first morning of the hearing which required us to go “off the record” for the interruption and to take a break while their attorney left the room.
The hearing examiner asked the defendant’s attorney to ask his clients not to interrupt the proceedings any further in the interests of time, but to instead use other methods to get a message to him — smart phone text messaging for example. The examiner’s request was conveyed by me to city staff. Because of the examiner’s request for no interruptions, city staff was instructed they should not interrupt the proceedings once the door was closed and the hearings had resumed.
I was later told that the defendant’s witnesses were frequently asking city staff to interrupt the proceedings even after this instruction from the hearing examiner was given. I was told after the hearings concluded that city staff had to repeatedly stop the defendant’s witnesses from walking past the reception desk, through City Hall, into the conference room where the hearing was taking place. This was stressful for city staff who are not used to being in a policing role of this nature.
When Mr. Martinell came to the city in the afternoon of the second day of the hearing, the hearing had resumed following a lunch break. I have received conflicting information about what occurred that day. I was not informed that Mr. Martinell came to the city that day, and in fact didn’t learn about it until several days later. I had a conversation with Mr. Martinell about this matter on July 5 after I learned that he was contacting city staff to ask questions.
It is important to explain that the city does not have a courtroom style facility that would allow the public to come and go from the hearing location without serious interruption to the proceedings. We use a conference room at City Hall for these proceedings. Opening the door of this conference room in the middle of a witnesses’ testimony is a serious disruption to the proceedings. An interruption would require us to “go off the record,” take time to instruct the person where to sit, and what the expectations are for conduct during the proceedings. These proceedings do not allow an opportunity for a member of the public to participate by asking questions, or interacting with the hearing examiner or the witnesses. As I understand it, Mr. Martinell did not arrive at the start of the proceedings on the morning of June 27 because he was incorrectly informed by a city employee over the telephone that he could not attend. Mr. Martinell also did not arrive at the start of the continued proceedings on June 28, but instead arrived in the middle of the afternoon. Staff working in the reception area had been asked by the hearing examiner not to interrupt the proceedings and he was told that.
In the future, if Mr. Martinell or a member of the public wishes to attend a contested hearing the city will be happy to accommodate that. I will be working with the examiner about how to accommodate the public in a way that minimizes disruption to the hearing process. As I understand it, this is the first time that any member of the public has asked to attend a contested civil violation hearing.
I’ve been with the city over four years, and the city has conducted very few contested hearings in that time, and no one other than a party has been present for the hearing. If city reception staff was confused on this one instance, I believe it was related to the hearing examiner’s request for no interruptions.
Other city employees will need some education and instruction about the nature of these hearings to clear up any confusion about the type of hearings they are. The fact that no one has ever asked to attend in the past, also contributed to the confusion of some staff, as the code is not specific about attendance by the public.
As city attorney, I am well aware of the state of Washington’s legal requirements for open government. I have taken the time to train all city staff and our elected and appointed officials in the requirements of the Open Public Meetings Act, the Public Records Act, and, where applicable, the Appearance of Fairness Doctrine.
If you have made it through this entire response, I thank you for your time and attention. It would be a mistake to extrapolate beyond the facts present with this particular matter and conclude the city does not value open government and transparency. Open government is an important value of the city of Maple Valley as well as of our society.
I truly believe city staff attempts to live up to those values on a daily basis, and I can tell you that they frequently consult me when they have questions about their duties under the law. I am working to clear up any confusion staff has about the nature of contested violation hearings and have faith that in the future, matters will go more smoothly if a member of the public wishes to attend this type of hearing.
Contact Covington Reporter Columnist Christy Todd at email@example.com.