CHERRYL PERIL - PART II By Jack Swift
It is barely 4 months since Walker and Heck were sworn in. We are confronted with a massive expansion of the power of our County bureaucracy. On April 17, the new BoCC adopted a package of County organizational reforms. I am referring to the newly adopted Ordinances 2013-003, 2013-004, and 2013-005. You might not have heard about them. The package is patterned after the system of hearing officer courts used in Jackson County for the adjudication of land use disputes. It is one we have a lot of experience with. As Sheriff Gil has observed, the USFS (or BLM) writes a regulatory rule. An FS officer then cites an offender of the rule. Then another FS officer judges the case. And the FS wins.
Ordinance 2013-003 grants enforcement authority to bureaucrats in County departments. They will be called “enforcement officers.” Department heads and the employees they designate are empowered to investigate alleged violations of County ordinances, codes, and rules. It is important to note that these cases are not complaint driven. They are based upon any “reasonable cause.” They can cite offenders into a special court (called a hearing officer) and they prosecute the case against the offender. For a trial, the offender must first pay the presumed fine. After the case is heard - without relying upon technical rules of evidence, a fine is imposed- for an ongoing offense $200 per day up to $10,000. Fines recovered are then paid to the Department that issued the citation. This is a bureaucrat’s dream come true. One the one hand, it expands their power and on the other hand, it pays them to use it on the public. Also note that it applies to any and all County ordinances, codes and rules - from animal control to food handling to land use.
Ordinance 2013-004 institutionalizes the hearing officer concept. It establishes a panel of hearings officers and establishes the rules of court for these pundits. Being a hearing officer requires no legal training, degree or bar membership. It merely requires a demonstrated knowledge of the codes, ordinances and rules. What better candidate than a former employee in the planning department? The hearings officers will serve at the pleasure of the BoCC and, incredibly, they are charged to be fair and unbiased.
Ordinance 2013-005 is jurisdictional. Just in case we don’t have enough County ordinances, codes and rules, this ordinance adopts all State statutes, ordinances and administrative rules relating to tourist facilities, pool facilities, restaurants and bed and breakfast facilities, commissaries, mobile units, vending machines and public water systems (including domestic wells) as County ordinances for prosecution of offenses before hearings
The effect of the package is to create within County government a second tier of law enforcement. It relates to bureaucratic rule enforcement with its own enforcement police and its own court system. It is potentially entirely self-sustaining based upon the fine revenue it can generate.
You might not have heard about this package of legislation. That is because it has been hidden behind Ordinance 2013-002, which is a “public nuisance” reform measure. It repeals the existing solid waste and public nuisance ordinance and replaces it with a "better" version. That is the law the commissioners want to talk about. They can speak emotionally to “eye sore” abuses. They claim the present $500 fine is inadequate and too difficult to enforce. For teeth, this new ordinance provides for violations as a Class A misdemeanor with up to one year in jail and $2500 fine. Reform also makes things easier for the County. The old law only applied to situations visible from a public road. And, most cumbersome of all, it required the signed complaint of three people living within ½ mile of the offense. The new law deletes these technicalities and allows for prosecution before the hearings officers. It only requires the complaint of one disgruntled individual.
What the commissioners do not tell you is that the existing law, ordinance 90-16, was adopted by the voters back in November of 1990. It was enacted after a package similar to the 2013-002, 003, and 004 was rejected by the same voters in 1988. One would think that the law’s limitations -three local people, visibility limitations, and $500 fine rather than criminal punishment - were safeguards important to the voters, even if bureaucrats didn’t like them.
Citizens in JoCo have witnessed a fundamental transformation of government. Forget about police states. We have created a police county.
Dare I say, “I told you so.”
May 4, 2013
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