- Establishing the Code Enforcement Board
- Changing Ordinances and Code Provisions
- Model Code Enforcement Board Ordinance
The goal of most cities is to obtain compliance with their codes and ordinances. Successfully prosecuting a violator in a criminal forum and obtaining a conviction does not necessarily mean that the violation of the city’s code or ordinance has been or will be corrected. The use of state court system criminal processes as the primary means of enforcing many types of city ordinances has proven to be less than satisfactory for many Kentucky city governments. It is the exception, rather than the rule, for a county attorney to vigorously prosecute and a district judge to impose a meaningful fine or sentence for what is generally viewed to be an inconsequential and minor offense. Many code violations are unfortunately viewed as nuisances that only unnecessarily burden an already over crowded court docket. In light of the poor ordinance enforcement success rate experienced by many cities, it is not surprising that non-judicial alternatives are being developed and explored. The establishment of a code enforcement board is purely discretionary on the part of the city. A city remains free to use one or more of the other methods of code enforcement that have been previously discussed. However, the utilization of the code enforcement board process has the potential to return to individual cities the ability to focus on code compliance and enforce their codes and ordinances through a unique forum in an efficient and cost effective manner.
Establishing the Code Enforcement Board
In order to enforce its ordinances through the procedures, a city legislative body must first establish a code enforcement board (CEB). As defined by KRS 65.8805, a CEB is an administrative body created and acting under the authority of the Local Government Code Enforcement Act. This board may only be established by ordinance. Once created, a CEB has the power to issue remedial orders and impose civil fines as a way to enforce local ordinances. In reality, a CEB is an administrative body with quasi-judicial powers and functions.
Membership of Board - KRS 65.8811. A code enforcement board must consist of three (3), five (5) or seven (7) members. The members must be appointed by the executive authority of the local government, subject to the approval of the legislative body. No member of the CEB may hold any elected or appointed office, whether paid or unpaid, or any position of employment with the city that has created the CEB. Additionally, by requiring approval of the legislative body of any appointments to the CEB, the statute seems to imply that membership on the board constitutes a nonelected city office as contemplated under KRS 83A.080. Assuming it is an “office,” before appointing an individual to the board it would be wise to consider the issue of incompatible offices.
KRS 61.080 prohibits an individual from holding two municipal offices or a county office and a municipal office at the same time. If a person already holds a county office, or an office on a board, etc. in another city, the person may not be able to serve on a city CEB without the risk of vacating the original office. Therefore, it would be prudent to seek advice from legal counsel before accepting such a position. Also, because this may limit the pool of available candidates for service on the CEB, a three (3) or five (5) member board may be easier to establish than a seven (7) member board.
The initial appointments to a three (3) member CEB should be as follows:
- One (1) member for a term of one (1) year.
- One (1) member for a term of two (2) years.
- One (1) member for a term of three (3) years.
The initial appointments to a five (5) member CEB should be as follows:
- One (1) member appointed for a term of one (1) year.
- Two (2) members appointed for a term of two (2) years each.
- Two (2) members appointed for a term of three (3) years each.
The initial appointments to a seven (7) member CEB should be as follows:
- Two (2) members appointed for a term of one (1) year each.
- Three (3) members appointed for a term of two (2) years each.
- Two (2) members appointed for a term of three (3) years each.
All subsequent appointments will be made for a term of three (3) years. A current member of the board may be reappointed, subject to approval of the legislative body. Unlike most other nonelected city offices, there is a residency requirement for all board members. Because board members will be enforcing local ordinances and imposing fines on the local citizens, it only seems logical that they be familiar with local customs and attitudes as well as be subject to the same ordinances they are enforcing. Therefore, before an individual may serve on the CEB, he or she must have resided within the city limits for a period of at least one (1) year prior to the date of the member’s appointment.
Additionally, all members of the board must reside within the city limits throughout their term in office. Although there are no statutory requirements as far as qualifications of board members are concerned, it would be prudent, when possible, to select individuals based on their experience and interest in community issues and based on any specialized technical expertise they may offer.
Since many of the violations brought before a CEB will no doubt revolve around unsafe and unfit structure codes and nuisances codes, architects, general contractors, electricians and realtors would make excellent choices as board members. Additionally, businessmen, teachers, and other community leaders who are interested in improving the quality of life in their communities would be a welcome addition to the code board.
Should a vacancy occur on the CEB, the executive authority is required to name a replacement, subject to legislative approval, within sixty (60) days from the date the vacancy occurs. If the executive authority fails to appoint a replacement within the sixty (60) day time limit, the remaining code board members must fill the vacancy. All vacancies must be filled for the remainder of the unexpired term.
In addition to the regular members, the executive authority of the local government may appoint two (2) alternate members to serve on the CEB in the absence of regular members. Like regular members of the CEB, the appointment of alternate board members is subject to the approval of the legislative body. Additionally, alternate board members must meet all of the qualifications and be subject to all of the requirements that apply to regular members.
If circumstances warrant, any member of the CEB may be removed by the appointing authority for misconduct, inefficiency, or willful neglect of duty. An example may be excessive absenteeism. The local legislative body, or the CEB itself, may set forth rules of attendance and conduct for board members. Because the statute is silent as to what constitutes misconduct, inefficiency, or willful neglect of duty, it is left to each local jurisdiction to set forth those standards.
Although the appointing authority needs legislative approval for the appointment of a member to the code board, no approval is required for the removal of a code board member. However, an appointing authority who does exercise the power to remove a member of the CEB must submit a written statement to the member to be removed and to the legislative body of the local government setting forth the reasons for the removal. A member who is removed has the right to appeal the removal to the circuit court of the county where the CEB has its principal place of business.
All board members are required, before entering upon their duties, to take the oath of office prescribed by Section 228 of the Constitution of the Commonwealth of Kentucky. For the sake of convenience and information, the constitutional oath of office, as it appears in Section 228, reads as follows:
I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of _______ according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.
The members of the CEB may be reimbursed for expenses or compensated, or both, as specified in the ordinance creating the board. Because of the time and effort that will be put in by the board members and the difficulty in finding citizens to serve on this board, the city should seriously consider compensating it’s board members in some manner.
Organization of Board - KRS 65.8815. After the initial appointments have been made, the CEB members are required to elect a chair from among their number. The election of a chairman must be done on a yearly basis. The chairman serves as the board’s presiding officer. The presiding officer remains a full voting member of the CEB and may participate fully in all proceedings. If the presiding officer is absent from a meeting, the remaining members of the board must select a fellow board member to preside in place of the chair and exercise the powers of the chair.
These powers include:
- calling meetings and hearings to order;
- controlling the general flow of business;
- recognizing members entitled to the floor;
- putting all legitimate questions to a vote;
- ruling improperly made motions “out of order;”
- ruling on evidentiary and procedural matters;
- and declaring the meetings and hearings adjourned at the proper time.
The presiding officer also has the authority and responsibility to administer oaths to all witness appearing before the CEB.
It takes two (2) members on a three (3) member board to constitute a quorum. The presence of three (3) or more members constitutes a quorum on a five (5) member board, and the presence of four (4) or more members constitutes a quorum on a seven (7) member board. The affirmative vote of a majority of the members constituting a quorum is required before any official action may be taken. For example, on a three (3) member board, it takes two (2) votes to take any official action.
If a member of the CEB has any direct or indirect financial or personal interest in any matter to be decided, the member must disclose the nature of the interest and refrain from voting or otherwise participating with respect to the matter. Additionally, the member may not be counted for purposes of establishing a quorum.
The CEB must have a regular schedule of meetings. The meeting schedule of the CEB must be set forth in the ordinance that creates the CEB. Because the CEB will be considered a “public agency” under the Open Meetings Act (KRS 61.805 to 61.850), all meetings and hearings of the CEB must be open to the public at all times. KRS 65.8815 (5) also requires all meetings and hearings of a CEB to be open to the public. Since a CEB is a public agency, it must comply with special meeting requirements of the Open Meetings Act.
This means that any meeting or hearing that is not a regularly scheduled meeting or hearing is a “special meeting” under the Open Meetings Act.
Before a special meeting may be conducted, all notification requirements must be met. This includes notification of all board members, media outlets (if any have requested notification in writing), and the public at least twenty-four (24) hours in advance of the meeting. If a meeting is held in violation of the Open Meetings Act, any action taken at that meeting could be voided.
This is particularly critical in the case of a CEB which determines whether violations of law have been committed and imposes fines or penalties against individuals. If an Open Meetings violation is deemed to have occurred, the finding of a violation, and the imposition of fines and penalties could be negated.
Minutes must be kept for all proceedings of the CEB and the vote of each member on any issue decided by the board must be recorded in the minutes. Again, because the CEB is a public agency, its records, including minutes, will be subject to disclosure to the public under the Kentucky Open Records Act, KRS 61.870 to 61.884. Additionally, to assist the CEB with recordkeeping, word processing, and other administrative duties, the local government legislative body is required to provide clerical and administrative personnel, as reasonably required by the CEB, to assist it in carrying out its functions.
Powers of Board - KRS 65.8821. The CEB has the authority to adopt rules and regulations to govern its operation and the conduct of its hearings, as long as the rules and regulations are consistent with the Local Government Code Enforcement Board Act and with the ordinances of the local government.
The CEB has the authority to conduct hearings to determine whether there has been a violation of a local government ordinance. The CEB may subpoena alleged violators, witnesses and evidence to its hearings. Subpoenas that are issued by the board may be served by any code enforcement officer. Additionally, the CEB may take testimony under oath and the chairman of the board is authorized to administer oaths to witnesses prior to their testimony.
Based on the testimony and evidence that is presented during its hearings, the board may make findings of fact, draw conclusions regarding legal responsibility, issue orders necessary to remedy any violation of a local ordinance, and impose civil fines on any person found to have violated an ordinance.
It is important to be aware of the CEB’s jurisdiction. The CEB may only enforce ordinances, issue remedial orders, and impose fines for violations of ordinances over which it has jurisdiction. Obviously, the CEB may not impose fines for actions that take place in the county or in a neighboring city because it has no jurisdiction there.
But just as important, there may certain ordinances that the CEB may not have the authority to enforce in its own city. For instance, the CEB may not enforce moving motor vehicle laws. Nor may the CEB impose a fine for any violation that would constitute an offense under any provision of the Kentucky Revised Statutes, including any provision of the Kentucky Penal Code. Additionally, the local legislative body may, when setting up the CEB, set limits on the types of ordinances the CEB may enforce.
One city council may authorize its CEB to enforce only the city’s nuisance and existing housing ordinances, while another may allow it’s CEB to enforce a broader range of local ordinances that address matters such as occupational and business license taxes, permitting requirements, and parking violations. Therefore, it is important that CEB members understand the board’s role and its limitations when it is asked to enforce a particular ordinance.
Changing Ordinances and Code Provisions
After all of the evidence has been taken, and the CEB has issued a decision finding an individual in violation of a particular ordinance, an appropriate penalty should be imposed. It is up to the legislative body of each city to set the penalty for violating a particular ordinance. According to KRS 65.8808, the legislative body of each city may elect to enforce any ordinance by classifying a violation of the ordinance as a “civil offense.” Most cities, at this time, do not classify ordinance violations as civil offenses. Therefore, before the code enforcement board process may begin, the penalty section of all of the ordinances that a city intends to enforce through this process must be amended.
If the penalty sections of these ordinances are not amended to classify a violation thereof as a civil offense, they may not be legally enforced by a code enforcement board. Additionally, just as a reminder, an ordinance may only be amended by another ordinance. It may not be amended by a municipal order or resolution.
Finally, when setting the fine for a particular violation, we suggest that the local legislative body establish a fine schedule to distinguish between particular ordinances, different levels of seriousness, and whether or not it is an individual’s first offense or not. Obviously, the violation of some ordinances are more serious than others and, therefore, require a higher or more severe penalty. By the same token, if an individual has been cited for the same violation two (2) or three (3) times, it only seems logical that the person should be required to pay a higher fine.
A city legislative body would be within its authority to set different levels of fines for a particular violation based upon whether or not it was the individual’s first, second, or third violation of the same ordinance.
The city legislative body must also, according to the Act, establish a lesser fine for those instances in which a violator chooses not to contest the citation. In other words, in order to induce the violator to pay the fine and avoid a hearing, the city must give the violator a “break” by imposing a smaller fine. Therefore, each ordinance must contain a fine schedule that includes a lesser fine for uncontested citations.
Model Code Enforcement Board Ordinance
Beginning on the following page, you will find a model code enforcement board ordinance. This model ordinance is provided to assist you in establishing your city’s code enforcement board program. As you review the model, keep in mind that every city is unique and must tailor its legislation to meet its specific needs.
The model ordinance on the following pages contains all of the basics needed to fully implement your code board process, including, among others, sections that establish the code board, create a schedule of fines, outline the enforcement procedures, and address the imposition of liens and fines. However, it is only intended as a very basic model and, therefore, should not be used verbatim without very careful analysis. Each city should thoroughly review it’s own needs and goals and any ordinance enacted should reflect those specific needs and goals.
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