City of Lowell, MA Part 4 Hearing Procedure [1]

[Added 11-19-1991]

[1] Editor's Note: Item 9 of the ordinance adopted 8-26-2014 provided that the Executive Director of the Water Department shall provide quarterly reports to the City Council regarding a summary of decisions from the Water Board and/or from the Municipal Hearing Officer.

Article VII Investigation and Resolution of Disputes

§ 272-89 Applicability.

The procedure described in this Part 4 shall apply to any bill disputed by a customer regarding its charges for water and sewerage service.

§ 272-90 Definitions.

[Amended 8-26-2014]

As used in this Part 4, the following terms shall have the meanings indicated:

BOARD

A three-member board consisting of a resident of the City of Lowell who is not an employee of the City, the Executive Director of the Lowell Regional Water or Wastewater Utility or his designee and the Commissioner of Public Works or his designee.

EXECUTIVE DIRECTOR

Applies to both the Director of the Water Department and the Director of the Wastewater Treatment Facility.

MUNICIPAL HEARING OFFICER

An individual who, pursuant to MGL c. 40U, § 6, is authorized to hear municipal appeals and render final decisions.

PARTY and PARTIES

The participant(s) in an investigation by the Water Utility or a hearing before the Board. These terms include the City and any person who has a right under these regulations to appeal a decision of any department of the City regarding nonpayment of charges for water and sewerage service, including any person (or his successor in interest) who has timely appealed any such decision pursuant to Articles VII and VIII of this chapter prior to the conveyance or transfer of the property for which said charges have been accrued. Any party may appear on his/her own behalf or with or by legal counsel.

§ 272-91 Notice of dispute; procedure; resolution.

[Amended 8-26-2014]

A. Resolution procedure. A party having a right to an investigation under these regulations shall notify the Department of Public Works of a dispute by telephone, mail or in person. The matter shall be referred initially to the Executive Director of Lowell Regional Water or Wastewater Utility. The Executive Director shall make his or her best effort to resolve the dispute and shall notify the party of that resolution in accordance with § 272-92 of this article.

B. The Executive Director shall have the power to take equitable action to modify a bill, for reasons including, but not limited to, the following:

(1) The recalculation of the bill applying the average usage over the period of estimation at the rate in effect during the period of calculated usage.

(2) Establishment of a repayment plan for these accounts staying or waiving interest and penalties during the repayment period, provided that the account remains in good standing.

(3) Waiver of repayment of estimated usage that extends beyond a change in property ownership.

(4) Waiver of payment for any bill(s) first generated and mailed to the owner of record three years after the initial billing date.

C. Conference. A party receiving a notice of resolution may request a conference with the Executive Director who signed the notice of resolution for the purpose of clarifying the resolution or explaining circumstances relating to the dispute. The customer shall notify the Executive Director of his or her request for a conference within seven days, excluding Saturdays, Sundays and legal holidays, of receipt of the notice of resolution. The Executive Director shall schedule the conference for the earliest possible mutually convenient date, but in no event shall the conference take place more than two weeks after the date on which the party made the request.

§ 272-92 Notice of resolution; right of appeal.

[Amended 8-26-2014]

The party initiating an investigation shall be notified in writing as to the Executive Director of the Lowell Regional Water Utility resolution of the disputed matter within 20 days of initial receipt of the complaint. Such notification shall also include the following statement:

If you still consider your bill to be inaccurate in any respect or if you have any other complaint pertaining to this matter, you may request a conference with the undersigned within seven days, excluding Saturdays, Sundays and legal holidays, of receipt of this notice. This request may be made by calling the undersigned at [phone] during normal business hours.

If your dispute is not resolved at the conference, you have a right to a further appeal, provided that you request such an appeal on a form provided by, and available from, the City within seven days, excluding Saturdays, Sundays and legal holidays, of the date of the conference.

If you do not choose to request a conference, you have a right to a further appeal, provided that you request such appeal on a form provided by, and available from, the City within seven days, excluding Saturdays, Sundays and legal holidays, of receipt of this notice.

To obtain the appeal form, write or call the Lowell Water and Wastewater Utilities at:

Lowell Regional Water Utility

First Street Boulevard

Lowell, MA 01852

Attn: Collection Manager

Tel. [phone]

§ 272-93 Appeal procedure.

[Amended 12-23-2008; 8-26-2014]

If the customer disputes the Executive Director's written notice of decision, the customer shall notify the City, within seven days, excluding Saturdays, Sundays and legal holidays, of receipt of such or within seven days, excluding Saturdays, Sundays and legal holidays, following a conference held under the provisions of § 272-91C, that he or she wishes to appeal. The notice of appeal shall be on a form prescribed and supplied by the City. The City shall thereupon assign the matter to the Board, as defined in § 272-90, to conduct a hearing. Such hearing shall be conducted in accordance with the procedures set forth in this Part 4.

Article VIII Hearings

§ 272-94 Application.

A. The rules set forth in this article shall govern all hearings with respect to billing held before the Board for the City.

B. In addition, the Board is authorized to refer any appeal to the Municipal Hearing Officer for a full hearing and final decision. In the event that an appeal is heard by the MHO, there shall be no further rights of appeal to the full Board or any other avenue of appeal.

[Added 8-26-2014]

§ 272-95 Statement of basis for appeal.

A. Time for filing; contents. Within seven days, excluding Saturdays, Sundays and legal holidays, following a party's notice to the City that the party wishes to appeal the resolution of the Department of Public Works, the party shall file with the City a clear and concise written statement of the grounds for the appeal. This statement shall be made on a form prescribed by the City, which the customer may obtain at the offices of the City. The party shall file a separate statement for each account at issue. On the form, the party shall provide the following information:

(1) The name, address and telephone number of the party bringing the appeal;

(2) If the party filing the statement is represented by counsel, the name, address and business telephone number of each such attorney;

(3) A short statement of the matter upon which the appeal is based and the party's objections to the decision or resolution of the Water Utility representative; and

(4) The amount of the charges the party believes are in dispute.

B. Failure to file. The Board may, at its discretion, dismiss a party's appeal for failure to timely file, or for failure to file in proper form, the statement of the basis for appeal required by this section.

§ 272-96 Notice of hearing; continuance; failure to appear.

A. Timing; contents. The Board shall give written notice of a scheduled hearing to:

(1) All parties (either directly or to their counsel);

(2) Executive Director;

[Amended 8-26-2014]

(3) The department of the City whose action is in dispute;

(4) Others who have made a written request for notice of a hearing in particular matter; and

(5) Such other persons as deemed necessary or appropriate by the City.

B. Such notice shall include, but need not be limited to, the time, date, place and nature of the hearing. Notice of a hearing shall be mailed at least seven days, excluding Saturdays, Sundays and legal holidays, before the day on which the hearing is to be held.

C. Continuance. At its discretion, the Board may grant a continuance at the request of any party. Reasonable costs may be assessed against the party requesting the continuance.

D. Failure to appear; dismissal; reinstatement. If a party fails to appear for a hearing after notice has been duly served on the party and/or his or her representative counsel, the Board may by order dismiss the appeal or find against the party by default. The Board, for good cause shown, may reinstate the appeal or withdraw such a finding upon motion made by the affected party within 15 days of receipt by the party of the Board's order. Any order issued under the authority granted by the first sentence of this subsection shall contain a notice of the party's right to seek reinstatement or withdrawal of the finding.

§ 272-97 Hearing procedure.

A. Presiding officer. The hearing shall be conducted by the Board, whose Chairperson shall act as presiding officer.

B. Presence of staff members. The names of the members of the City's technical staff present at a hearing, including investigators, hearing officers and others who have been assigned to work on or to assist in the proceeding, shall be noted in the record.

C. Conduct of persons present. All parties, counsel, witnesses and other persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of the Commonwealth of Massachusetts. Where such decorum is not observed, the Chairperson may take such action as he or she deems appropriate.

D. Evidence; witnesses; discovery. Each party shall have the right to call and examine witnesses under oath, to introduce exhibits, to cross-examine witnesses who testify, and to submit rebuttal evidence. At any time before or during a hearing, the Board may, upon its own motion or that of a party, require a party to produce documents relevant to the appeal. Except upon a showing that it is necessary for the expeditious decision of the matter at issue, discovery shall be limited to the production of documents. Where the Board finds another type of discovery necessary, it may order any form of discovery permitted by the Massachusetts Rules of Civil Procedure. However, it is the City's express intention to limit discovery to the production of documents except in those situations where there is no feasible substitute for another form of discovery.

E. Evidence; procedure. The Board shall make all decisions regarding the admission or exclusion of evidence or any other procedural matters which may arise in the course of the hearing. The Board need not observe the rules of evidence observed by courts but shall observe the rules of privileges recognized by law. The Board may exclude evidence, although it may be relevant, if its probative value is outweighed by the danger of unfair prejudice or confusion of the issues or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

F. Official notice. Official notice may be taken by the Board of such matters as might be judicially noticed by the courts of the United States or of the Commonwealth of Massachusetts.

G. Burden of proof; order of presentation. In a hearing on an appeal of any resolution of a customer dispute specified as appealable under these regulations, the resolution shall be presumed to be correct. The burden to prove otherwise shall rest on the party challenging that resolution. If that party, at the end of his or her case, has failed to establish substantial evidence indicating that the resolution is reasonably in dispute, the Board, on its own motion or on the action of any other party, may dismiss the appeal. The party filing the statement of the basis for appeal prescribed in § 272-95 shall present its case first. The Board shall determine the order of presentation by all other parties to the appeal. The Board may permit rebuttal to the extent it deems proper and relevant.

H. Additional evidence. At any stage of the hearing, the Board may call for further evidence upon any issue and require such evidence to be presented by the party or parties concerned or by the staff counsel, either at that hearing or at adjournments thereof. At the hearing, the Board may authorize any party to file specific documentary evidence as a part of the record within a specified time. If the Board permits the submission for the record of additional documentary evidence following completion of the hearing, the party submitting the document shall, at the same time, serve copies on all parties to the hearing. Service shall be upon the parties or the attorneys for the parties. Any party wishing to file material in rebuttal to the submission shall submit it to the Board and serve it on the other parties within seven days, excluding Saturdays, Sundays and legal holidays, of receipt of the submission.

I. Record; transcript. Unless the Board otherwise orders, the hearing shall be recorded on a sound reproduction machine provided by the City. The City will preserve tapes of hearings for a period of one year after the date a decision becomes final, as defined in Subsection L. Any party requesting a transcript of the hearing shall be required to pay the reasonable cost of preparing it before a copy is made available to that party. If a party wishes to have the proceedings officially recorded by a reporter, that party shall retain the reporter and bear all the costs of the reporter's services. Neither the City nor any other party shall be obligated to share this expense or to purchase a copy of the transcript from the reporter. A party retaining a reporter for a hearing shall notify the Board at least one day in advance of the day of the hearing.

J. Interlocutory orders. The Board shall have the authority to issue all such interlocutory orders which it deems necessary. All interlocutory orders dealing with matters of substance, such as determinations of amounts not reasonably in dispute under § 272-98, shall be reduced to writing and served on all parties. If such an order is issued orally in the course of a hearing, it shall take effect immediately unless the Board otherwise specifies. In all other cases, such an interlocutory order shall take effect upon receipt by the parties.

K. Briefs; proposed findings. The Board shall establish a briefing schedule for the parties.

(1) Filing; service. Briefs not filed and served on or before the date fixed for filing by the Board will not be accepted for filing. All briefs shall be accompanied by a certificate showing service upon all parties to the proceeding and the filing of four copies with the Board. Failure to submit a brief shall in no way prejudice the rights of a party.

(2) Length; citations. Briefs shall not exceed 20 double-spaced, typewritten pages 8 1/2 inches by 11 inches in size with margins of 1 1/4 inches. Any brief more than five pages in length shall begin with a summary of the arguments contained therein. Each factual argument must be supported by specific citations to the record. Each legal argument must be supported by specific citations to valid authorities. The Board shall reject any argument not supported.

(3) Proposed findings. At its discretion, the Board may request proposed findings of fact and law from the parties. However, where the appellant is represented by counsel, the Board shall not request proposed findings.

L. Decisions. All final decisions on appeals heard by the Board shall be in and shall include a statement of reasons for, and a determination of each issue of law or fact necessary to, the decision. A copy of the decision shall be served on all parties within 30 days from the date of hearing.

§ 272-98 Determination of amount of charges reasonably in dispute.

[Amended 8-26-2014]

A. If a party has appealed from a determination of the Water Utility to the amount of charges due the City but either the party has failed to indicate the amount reasonably in dispute on the statement of the basis for appeal required by § 272-95; or the party has failed to pay the amount indicated on the statement of the basis of appeal as not being in dispute; or another party has questioned whether the calculation of the charges in dispute as represented on the statement of the basis for appeal was made in good faith, the Board shall make a determination of the amount of the charges reasonably in dispute. This determination shall be made at the outset of the hearing. Upon making this determination, the Board shall order the party appealing to pay the amount of the charges found to be not reasonably in dispute to the City forthwith.

B. The Board or Municipal Hearing Officer shall have the power to take equitable action to modify a bill, for reasons including, but not limited to, the following:

(1) The recalculation of the bill applying the average usage over the period of estimation at the rate in effect during the period of calculated usage.

(2) Establishment of a repayment plan for these accounts staying or waiving interest and penalties during the repayment period, provided that the account remains in good standing.

(3) Waiver of repayment of estimated usage that extends beyond a change in property ownership.

(4) Waiver of payment for any bill(s) first generated and mailed to the owner of record three years after the initial billing date.

C. Method of calculation. The Board shall calculate the amount of the charges reasonably in dispute using the procedure adopted by the City for determining average daily use of water and sewer services and applying the rate applicable for the period of the disputed charges. The sum of the charges so calculated shall be multiplied by 0.75, and the resulting amount shall be deemed the amount not reasonably in dispute. The Board shall add to this sum the amount of any applicable delinquency charges.

D. Contents of order. The Board shall state in the order compelling payment of charges not reasonably in dispute that if the customer fails to pay the stated amount to the City within seven days, excluding Saturdays, Sundays and legal holidays, of the date of the order, the City may proceed to terminate service.

E. Overpayment. If, based upon the evidence produced at the hearing, the Board determines that the amount of the charges not reasonably in dispute was less than the amount paid to the City as a result of an order issued under the preceding subsections, the Board shall abate the amount it adjudges due the City by a sum equal to the amount of the overpayment plus interest at the rate of 14% per annum on the overpayment calculated from the date of the customer's payment. If the overpayment and the interest thereon exceed the total amount due to the City, the Board shall, at the option of the customer, order a refund or an appropriate adjustment of the City's next bill to the customer.