POSSIBLE MANUAL CHANGES 2019-10-15.DOCX
Extracted text (via pymupdf)
6356 characters
5080 NORTH 40TH STREET, SUITE 245 PHOENIX, ARIZONA 85018 TELEPHONE: 480-505-3900 FACSIMILE: 480-505-3901 ERIC L. HISER DIRECT LINE: 480-505-3927 EMAIL: ehiser@jhjlawyers.com M E M O R A N D U M TO: Maricopa County Air Pollution Hearing Board members FROM: Eric L. Hiser DATE: October 15, 2019 SUBJECT: Possible revisions to APHB Manual of Procedures As discussed at the last two meetings of the Air Pollution Hearing Board (APHB), we have reviewed the existing APHB Manual of Procedures (Manual) to find ways to expedite and make hearings clearer and less confusing to the participants. We have sought input from some private practitioners and received input from the Maricopa County Attorney’s Office. We also appreciate the comments and recommendations of Board member Kim MacEachern, who provided a set of wide-ranging comments and suggestions. Based upon all of this feedback, we are submitting the draft document to you for your review and comment. Next Steps Please review this memorandum and the attached Manual, which shows the red-lined changes from the prior version. Major changes are discussed below. If you have questions, please contact me directly by email (ehiser@jhjlawyers.com) or phone (480-505-3927). Please do not “REPLY ALL” to the email so that we do not commit an Open Meeting Law violation inadvertently. Similarly, please DO NOT DISCUSS these changes among yourselves except at a duly called meeting. If no member has any significant comments or concerns, then we will advise Brian that this is the case and ask him to call a regular/public meeting where we will present and explain the changes, you can ask questions and suggest comments, and we will answer questions from the public. If you are in agreement, you would then authorize the draft Manual to be posted on the Board’s website for at least 30 days of public notice and take comment on it. After the conclusion of that period, we would hold another regular/public meeting to review any comments, amend the Manual as appropriate based upon it, and then vote to adopt the final draft and recommend it to the Board of Supervisors for adoption as binding. Major Recommendations We recommend that the Board publish Standing Order No. 1R1 with the Manual. Possible revisions to APHB Manual of Procedures October 15, 2019 Page 2 of 3 We recommend that the Board consider having a Presiding Officer resolve all prehearing matters in lieu of the Board, with an appeal time set at the start of the hearing. This would greatly expedite the hearing and reduce the burden of trying to assemble the whole Board to rule on preliminary matters. We recommend that the Board move to electronic filing of all documents after the initial Notice of Appeal/Request for Hearing unless a party files a motion showing cause to retain paper filing (for example, they don’t have reasonable access to email). Electronic filing facilitates the handling of documents and record retention. If the Board elects to go with a presiding officer approach, we recommend a new subsection 3.24(D) to allow presiding officer to rule on trial motions and objections, subject to appeal to the Board at the close of each party’s case and at close of argument. This would allow the expedition of a single decider to move the case forward while still allowing the full Board to rule on any meaningful issues and ensure the Board hears all the evidence that it wants. Add a new subsection 3.25(A) to provide for preparation of a proposed findings and conclusions by the parties and by the presiding officer or Board counsel for the Board’s consideration. We should discuss whether the Board wants to hear argument about the draft or just deliberate upon the draft. Eliminate the 15 day requirement to produce an opinion after close of hearing. This is not required by statute and creates difficulties if any Board members or counsel are traveling. Less Significant Changes Title Recommend changing title of Board to conform to statute. 1.3 Mission The Board may wish to consider a more neutral mission, such as the revisions shown. 2.D Presiding Officer Recommend broadening this slightly to allow different presiding officers for different parts of the proceeding. For example, the Board might want counsel to handle prehearing matters and then a Board member with legal experience to serve as the presiding officer during the hearing. 2.6 Adoption of Rules, Manual, Standing Orders Recommend making this less restrictive by eliminating the first “regular” meeting requirement in favor of a “public” meeting, which would not necessarily require the whole Board to be in attendance. Also clarify that publication should be on the Board website, if possible. 3.4(A) Docket and Record Clarifies docket to include exhibit. 3.4(E) Record Possible revisions to APHB Manual of Procedures October 15, 2019 Page 3 of 3 Adds definition of record for appeal purposes. 3.5 Filing and Service of Documents Adds electronic filing by email of all documents after initial paper filing of Notice of Appeal or Request for Hearing. Allows for “opt out” for cause at Board’s or presiding officer’s order. Adds email address requirement and some rules for proper filing by email. Likely should add PDF and 10 MB limit. 3.6(B) Computation of Time…. Provides no additional time for email service. 3.9 Contents of Answer Adds conforming changes for email service 3.11 Notice of Hearing Explicitly allows for stipulated dates or later dates by consent of the parties. Adds advisory about translator services. 3.24(D) Hearing Adds provisions for Presiding Officer hearing more explicitly. 3.25(A) Adds provisions allowing for appeal of Presiding Officer decisions. Drops the current requirement that opinion be issued within 15 days of hearing, which is not required by rule or statute and has been problematic in practice due to travel schedules. Please feel free to reach out to me with any questions or concerns. I can be reached at ehiser@jhjlawyers.com or at 480-505-3927. I will be out from October 21-25, 2019. If everyone could let me know whether they are content to move forward with this draft or some amended version, I will request that Brian Davidson call a regular/public meeting in November so we can start the adoption process.