13.16.420 Procedure for conduct of hearing.
A. Hearing examiners. The Utility Board of Appeals may appoint 1 or more hearing examiners or designate 1 or more of its members to serve as hearing examiners to conduct the hearings. The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the Board for decision.
B. Record. A record of the entire proceedings shall be made by tape recording, or by any other means of permanent recording determined to be appropriate by the Board.
C. Reporting. The proceedings at the hearing shall also be reported by a phonographic reporter if requested by any party thereto. A transcript of the proceedings shall be made available to all parties upon request and upon payment of the fee prescribed therefor. The fees may be established by the Board, but shall in no event be greater than the cost involved.
D. Continuances. The Board may grant continuances for good cause shown; however, when a hearing examiner has been assigned to the hearing, no continuances may be granted except by him or her for good cause shown so long as the matter remains before him or her.
E. Oaths—Certification. In any proceedings under this article, the Board, any Board member, or the hearing examiner has the power to administer oaths and affirmation and to certify to official acts.
F. Reasonable dispatch. The Board and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives.
G. Form of notice of hearing. The notice to appellant shall be substantially in the following form, but may include other information:
You are hereby notified that a hearing will be held before the Utility Board of Appeals of the Rapid City Common Council at _______ on the ____ day of ___________, at the hour, ________ upon the notice and order served upon you. You may be present at the hearing. You may be, or may not be, represented by counsel, you may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things by filing an affidavit therefor with the Utility Board of Appeals.
H. Subpoenas.
1. Filing of affidavit. The Utility Board of Appeals or examiner may obtain the issuance and service of a subpoena for the attendance of witnesses or the production of other evidence at a hearing upon the request of a member of the Board or upon the written demand of any party. The issuance and service of the subpoenas shall be obtained upon the filing of an affidavit therefor which states the name and address of the proposed witness; specifies the exact things sought to be produced and the materiality thereof in detail to the issues involved; and states that the witness has the desired things in his or her possession or under his or her control. A subpoena need not be issued when the affidavit is defective in any particular.
2. Cases referred to examiner. In cases where a hearing is referred to an examiner, all subpoenas shall be obtained through the examiner.
3. Penalties. Any person who refuses without lawful excuse to attend any hearing, or to produce material evidence in his or her possession or under his or her control as required by any subpoena served upon the person as provided for herein shall be guilty of a misdemeanor.
I. Conduct of hearing.
1. Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
2. Hearsay evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be efficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state.
3. Admissibility of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions in courts of competent jurisdiction in the state.
4. Oral evidence. Oral evidence shall be taken only as an oath or affirmation.
5. Excluding of evidence. Irrelevant and unduly repetitious evidence shall be excluded.
6. Rights of parties. Each party shall have these rights, among others:
a. To call and examine witnesses on any matter relevant to the issues of the hearing;
b. To introduce documentary and physical evidence;
c. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
d. To impeach any witness regardless of which party first called him or her to testify;
e. To rebut the evidence against him or her; and
f. To represent himself or herself or to be represented by anyone of his or her choice who is lawfully permitted to do so.
7. Official notice—What may be noticed. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of the state or of official records of the Utility Board of Appeals or departments and ordinances of the city or rules and regulations of the Utility Board of Appeals.
8. Parties to be notified. Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein or appended thereto.
9. Opportunity to refute. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of the refutation to be determined by the Utility Board of Appeals or hearing examiner.
10. Inspection of the premises. The Utility Board of Appeals or the hearing examiner may inspect any building or premises involved in the appeal during the course of the hearing; provided, that (i) notice of the inspection shall be given to the parties before the inspection is made, (ii) the parties are given an opportunity to be present during the inspection, and (iii) the Board or the hearing examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the Board or hearing examiner.
J. Method and form of decision.
1. Hearing before the Utility Board of Appeals itself. Where a contested case is heard before the Utility Board of Appeals itself, no member thereof who did not hear the evidence or has not read the entire record of the proceedings shall vote on or take part in the decision.
2. Hearing before examiner. If a contested case is heard by a hearing examiner alone, he or she shall within a reasonable time (not to exceed 90 days from the date the hearing is closed) submit a written report to the Board. The report shall contain a brief summary of the evidence considered and state the examiner’s findings, conclusions and recommendations. The report also shall contain a proposed decision in such form that it may be adopted by the Board as its decision in the case. All examiner’s reports filed with the Board shall be matters of public record. A copy of each such report and proposed decision shall be mailed to each party on the date they are filed with the Board.
3. Consideration of report by Board notice. The Board shall fix a time, date and place to consider the examiner’s report and proposed decision. Notice thereof shall be mailed to each interested party not less than 5 days prior to the date fixed, unless it is otherwise stipulated by all of the parties.
4. Exceptions to report. Not later than 2 days before the date set to consider the report, any party may file written exceptions to any part or all of the examiner’s report and may attach thereto a proposed decision with written argument in support of the decision. By leave of the Board, any party may present oral argument to the Utility Board of Appeals.
5. Disposition by the Board. The Board may adopt or reject the proposed decision in its entirety, or may modify the proposed decision.
6. Proposed decisions not adopted. If the proposed decision is not adopted as provided in subdivision 5. of this subsection J., the Board may decide the case upon the entire record before it, with or without taking additional evidence or may refer the case to the same or another hearing examiner to take additional evidence. If the case is reassigned to a hearing examiner, he or she shall prepare a report and proposed decision as provided in subdivision 2. of this subsection J. after any additional evidence is submitted. Consideration of the proposed decision by the Board shall comply with the provisions of this section.
7. Form of decision. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with. A copy of the decision shall be delivered to the appellant personally or sent to him or her by certified mail, postage prepaid, return receipt requested.
8. Effective date of decision. The effective date of the decision shall be as stated therein.