Operating Rules - Chapter 16 - Hearing Procedures for Disputes Under the Operating Rules

CHAPTER 16 – HEARING PROCEDURES FOR DISPUTES UNDER THE OPERATING RULES


16.01   Application of this Chapter.  Except as provided in Chapters 15–Drought Response and 19–Disposition of Unclaimed Property of these Rules, the hearing and appeal procedures established by this Chapter 16 shall apply to all complaints concerning the interpretation, application or enforcement of Denver Water Operating Rules.  The hearing and appeal procedures established by this Chapter 16 shall not apply to the following matters:

a.          Complaints arising out of the interpretation of the terms of Denver Water contracts, which are governed by the provisions of Chapter 20 of these Rules.

b.         Personnel matters, which shall be governed exclusively by Denver Water’s Personnel Policies.

c.         The administration of Denver Water’s Engineering Standards, including interpretation, enforcement, revision, waiver and variance, which has been delegated by the Manager to the Director of Engineering.

d.         Any claim not arising from the Operating Rules, such as tort-type claims for damages.

16.02   Informal Resolution.  Complaints concerning the interpretation, application, or enforcement of the Operating Rules must be presented in writing to the Sales Administrator. Customers affected by billing problems or potential suspension of service under a license, as provided in Rule 2.10, may notify Denver Water by telephone. Upon receipt of a complaint, the Sales Administrator shall conduct a full and complete review of the allegations contained in the complaint. If the complainant requests a hearing, the Sales Administrator shall schedule and conduct a hearing within 30 days after receipt of the complaint. If the complainant wishes to send a representative to the hearing to appear on the complainant’s behalf, the complainant shall provide written authorization for such representation prior to hearing. After completing the hearing or the investigation, the Sales Administrator shall take such action as may be warranted; and shall notify the complainant of the resolution of the matter by U S. mail, within 15 days after receipt of the complaint or the conclusion of the hearing, as the case may be. If the Sales Administrator has previously participated in the matter, the Manager shall appoint another employee to resolve the dispute.

16.03   Formal Hearing.  If a complainant is unsatisfied with the decision of the Sales Administrator in the informal resolution process, the complainant may seek a formal hearing before a Hearing Officer.

16.03.1  Appointment of Hearing Officer.  The Manager shall designate a Hearing Officer to conduct hearings under this Chapter 16.  The Hearing Officer may be an officer, agent, or employee of Denver Water, but shall not have participated in any manner in the decision or action complained of.

16.03.2  Request for Formal Hearing.  A complainant must submit a request for a formal hearing in writing to the Sales Administrator within 15 days after the date of the original decision of the Sales Administrator.  The Sales Administrator shall refer a request for formal hearing to a Hearing Officer appointed in accordance with this Chapter.

16.03.3  Timing of Formal Hearing.  Within 30 days after receipt of the request for a formal hearing, the Hearing Officer shall conduct a hearing in accordance with this chapter, or shall schedule a hearing on a date agreeable to both parties. If the complaint involves a proposed suspension of service under Rule 2.10, Denver Water shall provide to the complainant a statement of current account on the subject premises within a reasonable period of time prior to the date set for the hearing.

16.03.4  Notice of Hearing.  A complainant shall be given notice of any hearing before a Hearing Officer by U.S. mail at least seven (7) calendar days prior to the date of the hearing, unless the complainant requests or agrees to a hearing in less time.  When a complainant is represented by an attorney, notice of any action, finding, determination, decision or order affecting the complainant shall also be served upon the attorney by U.S. mail.

16.04   Conduct of Hearing.

16.04.1  Attendance.  The complainant shall be permitted to appear in person. The complainant and Denver Water may have authorized representatives at the hearing, who may include legal counsel. If the complainant wishes to send a representative to appear on the complainant’s behalf, the complainant shall provide written authorization for such representation prior to the hearing.

16.04.2  Rights of the Parties.  The complainant and Denver Water shall have the right to present evidence, testimony and argument; and the right to confront and cross?examine the other party’s witnesses.

16.04.3  Evidence.  The Hearing Officer may receive and consider any evidence having probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs.  The Hearing Officer will endeavor to consider only relevant and trustworthy evidence and will reject any evidence that the Hearing Officer determines is irrelevant or untrustworthy.

16.04.4  Burden of Proof.  Denver Water shall have the burden of showing that reasonable grounds exist to support the challenged interpretation, application or enforcement of the Operating Rules.  The complainant shall have the burden of showing sufficient extenuating circumstances to justify an exception to the challenged interpretation, application or enforcement.

16.04.5  Recording.  The hearing shall be recorded by a court reporter. If the decision of the hearing officer becomes the subject of an appeal, a transcript of the hearing will be prepared at the expense of the party filing the appeal.

16.05   Decision of the Hearing Officer.  The Hearing Officer shall determine whether reasonable grounds exist to support the challenged interpretation, application or enforcement of the Operating Rules and, if so, whether the challenged interpretation, application or enforcement should be undertaken in the particular case, with due consideration for such extenuating circumstances as may exist.  The Hearing Officer's decision shall be based upon evidence presented at the hearing.  The Hearing Officer shall issue written findings and an order resolving the matter and shall provide the complainant with a copy of such decision by U.S. mail within 15 days after the date of the hearing.

16.06   Jurisdiction of the Hearing Officer.  The Hearing Officer, while having the right to correct errors, interpret rules and regulations, make adjustments and otherwise do equity, shall not have the authority to alter or make any finding contrary to Denver Water Operating Rules.

16.07   Appeals to the Manager.  Denver Water or the complainant may appeal the Hearing Officer’s decision to the Manager.  The party wishing to appeal must submit a notice of appeal to the Manager within 15 days of the date of the Hearing Officer’s decision. 

In order for the Manager to agree to hear the appeal, the notice of appeal must demonstrate one of the following grounds:

a.         The decision of the Hearing Officer involves an erroneous interpretation of these Rules, other Denver Water policies or applicable law; or

b.         The decision of the Hearing Officer may set a precedent and involves policy considerations that may have effect beyond the case at hand.

The Manager shall have 15 days to determine whether the notice of appeal establishes the required grounds for appeal. If the Manager determines the notice of appeal does not establish any of the required grounds for appeal, the Manager shall reject the appeal and inform the parties that the decision of the Hearing Officer is the final decision of Denver Water. The Manager will notify the parties if the appeal is accepted.

16.07.1  Nonpayment Appeal.  If the matter involves a proposed suspension of service for non-payment of charges due, service will not be suspended while the appeal is pending if the complainant deposits the amount of disputed charges and pays current bills.  If no such deposit is made to Denver Water, service may be suspended.

16.07.2  Procedure for Appeals to the Manager.  The Manager shall confine the review to the record made before the Hearing Officer, supplemented by additional statements from the complainant and Denver Water staff in support of their respective positions.  A new hearing is not allowed.

16.07.3  Manager’s Decision.  If the Manager accepts the appeal, the Manager shall have 30 days after receipt of the record to enter an order affirming, reversing or modifying the Hearing Officer’s decision and shall inform the complainant of the order by U.S. mail. The Manager’s decision exhausts the Denver Water’s appeal process and constitutes the final decision of Denver Water.

16.08   Final Decision and Judicial Review. The final decision of Denver Water may be reviewed under Rule 106(a)(4) of the Colorado Rules of Civil Procedure.  The District Court of the Second Judicial District of the state shall have jurisdiction to review the final decision of Denver Water under Rule 106(a)(4).