Is it constitutional for one Tennessee municipal hearing officer to issue a building code citation and then preside over the appeal?

Subject

Opinion No. 12-78, Municipal Administrative Hearing Officer Act, July 27, 2012

Plain-English summary

The Municipal Administrative Hearing Officer Act lets a Tennessee city create, by ordinance, an administrative hearing officer to handle building and property maintenance code violations. The officer reviews citations transmitted by code enforcement, makes an initial determination of whether a violation occurred, can set a fine and a remedy period, and then, if the alleged violator requests it in writing, conducts a hearing.

Josh Jones at UT-Municipal Technical Advisory Services asked whether having one officer perform all those functions, citation review, initial determination, hearing, and decision, violates due process. The AG said no.

The opinion reasons that:

• A fine for a building or property maintenance code violation does implicate a protected property interest, so procedural due process applies (Herrada v. City of Detroit; Hlad v. Tennessee Secondary Sch. Athletic Assoc.).
• Due process requires a fair hearing before an impartial tribunal (Cooper v. Williamson County Bd. of Educ.; In re Murchison; Gibson v. Berryhill). That requirement extends to administrative hearings (Martin v. Sizemore).
• The U.S. Supreme Court has held in Withrow v. Larkin that the mere combining of investigative and adjudicative functions in the same administrative actor does not, by itself, violate due process. Administrators are entitled to a "presumption of honesty and integrity."
• To win a due process challenge based on the combination of functions, a party must show that the risk of actual bias is intolerably high. The risk is high in defined categories: a pecuniary interest in the outcome (Tumey v. Ohio), being the target of personal abuse from a party, direct involvement in other related matters, or prejudgment from prior participation (Hookason v. Jones).
• Under the Tennessee statute, the officer's initial determination is essentially a "show cause" trigger that frames the issue for the hearing. Courts have upheld parallel arrangements (Morris v. City of Danville; Harless v. City of Kingsport).
• The Act builds in safeguards: strict ex parte communication rules (Tenn. Code Ann. § 6-54-1003); appointment for a four-year term by the local governing body (Tenn. Code Ann. § 6-54-1006(a)); independence from the city department that enforces the codes; and no pay tied to outcomes.

The AG's bottom line: absent actual bias in a particular case, an alleged violator's due process rights are not violated merely because the hearing officer reviews the citation, makes an initial determination, and then conducts the hearing.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

What the Act allows

Under Tenn. Code Ann. § 6-54-1001, a Tennessee municipality can create the office of administrative hearing officer by ordinance to adjudicate building and property maintenance code violations. The mechanics are:

• A municipal officer issues a citation to the alleged violator and transmits it to the administrative hearing officer (§ 6-54-1008).
• The hearing officer reviews the citation and makes an initial determination of whether a violation exists (§ 6-54-1009(a)).
• If a violation is found, the officer may set a fine and a reasonable period of time to remedy the violation (§ 6-54-1009(a) & (b)).
• The alleged violator may request a hearing in writing, which the hearing officer must hold (§ 6-54-1009(c) & (d)).

The hearing officer is appointed by the local governing body for a four-year term and serves at the pleasure of that body (§ 6-54-1006(a)).

Procedural safeguards

The Act prohibits the hearing officer from communicating ex parte about any pending issue (§ 6-54-1003(a)). The officer may consult municipal employees or members of the city attorney's staff only if those persons do not transmit prohibited ex parte communications and do not modify the evidentiary record (§ 6-54-1003(b)). Parties and others are likewise prohibited from communicating with the hearing officer ex parte (§ 6-54-1003(c)).

Due process framework applied

Procedural due process under the Fourteenth Amendment and Article I, Section 8 of the Tennessee Constitution requires (1) a protected property or liberty interest and (2) a fair process to deprive someone of it. The AG accepted, citing Herrada and Hlad, that a fine creates a sufficient property interest to invoke due process.

The fair-process inquiry turns on Withrow v. Larkin: combining investigative and adjudicative functions in the same officer is not, by itself, a due process violation. The challenger must show an intolerably high risk of actual bias. The AG ran through Tumey v. Ohio (pecuniary interest in outcome creates bias) and concluded the Act's structure avoids the Tumey problem because:

• The hearing officer is appointed for a fixed four-year term by the local governing body and serves at its pleasure, not at the pleasure of the code enforcement department.
• The hearing officer is not an employee of the department that enforces the codes.
• Compensation does not vary with rulings.

The AG also pointed to Morris v. City of Danville (city manager's initial decision did not disqualify him as ultimate decision-maker) and Harless v. City of Kingsport (Tennessee Court of Appeals upheld building official acting as both investigator and hearing officer in similar circumstances).

Common questions

Does my city have one of these hearing officers?
Only if the city has passed an ordinance creating the office under § 6-54-1001. The Act is permissive, not mandatory. Some cities use this structure; others handle building and property maintenance violations through municipal court or a board of code appeals.

Can I challenge the hearing officer based on actual bias in my case?
Yes. The AG opinion is about facial constitutionality. An individual challenge based on facts showing actual bias, prejudgment, or improper communication remains available under Withrow v. Larkin and the Tennessee precedents the AG cites.

What can I do if the hearing officer fines me?
Tennessee Code Ann. § 6-54-1009 lets an alleged violator request a hearing in writing. After the hearing, judicial review is typically available, though the specific procedural path depends on the city's ordinance and applicable provisions of the Act. Consult a Tennessee attorney for the deadlines and process in your jurisdiction.

Why does it matter that the hearing officer can also impose a fine before the hearing?
This is the "combination of functions" worry: if one person flags the violation and the same person decides whether you actually committed it, the second decision may be tainted. The AG accepts the U.S. Supreme Court's Withrow rule that such combination does not by itself violate due process, on the premise that administrators are presumed impartial and that protections like ex parte rules and structural independence reduce the bias risk.

Citations

Statutes:

• Tenn. Code Ann. §§ 6-54-1001 to -1018 (Municipal Administrative Hearing Officer Act)

Constitution:

• U.S. Const. amend. XIV; Tenn. Const. art. I, § 8

Cases:

• Withrow v. Larkin, 421 U.S. 35 (1975)
• Tumey v. Ohio, 273 U.S. 510 (1927)
• In re Murchison, 349 U.S. 133 (1955)
• Gibson v. Berryhill, 411 U.S. 564 (1973)
• Martin v. Sizemore, 78 S.W.3d 249 (Tenn. Ct. App. 2001)
• Cooper v. Williamson County Bd. of Educ., 803 S.W.2d 200 (Tenn. 1990)
• Herrada v. City of Detroit, 275 F.3d 553 (6th Cir. 2001)
• Hlad v. Tennessee Secondary Sch. Athletic Assoc., 305 F.Supp. 2d 830 (M.D. Tenn. 2004)
• Morris v. City of Danville, 744 F.2d 1041 (4th Cir. 1984)
• Harless v. City of Kingsport, 1998 WL 131519 (Tenn. Ct. App. Mar. 25, 1998)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-078.pdf

Original opinion text

S T A T E OF T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
P.O. BOX 20207
NASHVILLE, TENNESSEE 37202

July 27, 2012

Opinion No. 12-78

Municipal Administrative Hearing Officer Act

QUESTION

Does the Municipal Administrative Hearing Officer Act, codified at Tenn. Code Ann. §§ 6-54-1001 to -1018, violate due process standards established by the United States and Tennessee Constitutions?

OPINION

No.

ANALYSIS

The Municipal Administrative Hearing Officer Act (the "Act") authorizes municipalities to create by ordinance the office of administrative hearing officer to adjudicate building and property maintenance code violations. Tenn. Code Ann. § 6-54-1001. In municipalities passing such an ordinance, a municipal officer issues a citation to the alleged violator and then transmits the citation to the administrative hearing officer. Tenn. Code Ann. § 6-54-1008. Upon receipt of the citation from the issuing officer, the administrative hearing officer makes an initial determination whether a violation exists. Tenn. Code Ann. § 6-54-1009(a). If the administrative hearing officer determines a violation exists, he or she may set a fine and a reasonable period of time for the alleged violator to remedy the violation. Tenn. Code Ann. § 6-54-1009(a) & (b). Upon written request of the violator, the administrative hearing officer shall conduct a hearing on the citation. Tenn. Code Ann. § 6-54-1009(c) & (d).

The question posed is whether the administrative process established by the Act satisfies due process standards established by the United States and Tennessee Constitutions. The Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article I, Section 8 of the Tennessee Constitution provide similar procedural protections and guarantees. Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997); Eye Clinic, P.C. v. Jackson–Madison County Gen. Hosp., 986 S.W.2d 565, 578 (Tenn. Ct. App. 1998). Both provisions established procedural protections for property and liberty interests against arbitrary governmental interference. Armstrong v. Department of Veterans Affairs, 959 S.W.2d 595, 598 (Tenn. Ct. App. 1997). While they contain a guarantee of fair process, they do not prevent the deprivation of property or liberty interests. Zinermon v. Burch, 494 U.S. 113, 125 (1990); Daniels v. Williams, 474 U.S. 327, 337 (1986). Rather, procedural due process guards against unfair or mistaken deprivations. Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972).

The threshold consideration with regard to any procedural due process claim is whether the plaintiff has a liberty or property interest that is entitled to due process protection. Rowe v. Board of Educ., 938 S.W.2d 351, 354 (Tenn. 1996); Armstrong, 959 S.W.2d at 597–98. With respect to fines, courts have found that the imposition of a fine is a sufficient property interest to support a procedural due process claim. See Herrada v. City of Detroit, 275 F.3d 553, 556 (6th Cir. 2001); Hlad v. Tennessee Secondary Sch. Athletic Assoc., 305 F.Supp. 2d 830, 835 (M.D. Tenn. 2004). Thus, a person who receives a citation setting forth a fine for a building or property maintenance code violation, pursuant to Tenn. Code Ann. § 6-54-1009, is entitled to procedural due process protection.

"[D]ue process requires the opportunity of the party charged to be heard at a meaningful time and in a meaningful manner, before an impartial tribunal." Cooper v. Williamson County Bd. of Educ., 803 S.W.2d 200, 202 (Tenn. 1990). A fair trial before an impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955). This requirement applies to administrative proceedings as well. Gibson v. Berryhill, 411 U.S. 564, 579 (1973); Martin v. Sizemore, 78 S.W.3d 249, 263-64 (Tenn. Ct. App. 2001).

Due process does not, however, require that an administrative tribunal be completely unfamiliar with the factual issues presented at a hearing. Administrative decision-makers, like judicial ones, are entitled to a "presumption of honesty and integrity." See Withrow v. Larkin, 421 U.S. 35, 47 (1975); Jones v. Greene, 946 S.W.2d 817, 825 (Tenn. Ct. App. 1996). The mere combining of investigative and adjudicative functions in an administrative board or hearing officer "does not, without more, constitute a due process violation." Withrow, 421 U.S. at 58. See Martin, 78 S.W.3d at 264 (stating that some combination or overlapping of functions in an administrative proceeding is not inconsistent with fundamental fairness).

Accordingly, a party basing a procedural due process claim on a claim that the hearing officer possesses both investigative and adjudicative functions must demonstrate that the risk of actual bias is intolerably high, not merely that a combination of these functions exists. Withrow, 421 U.S. at 58; Martin, 78 S.W.3d at 265. The types of cases where actual bias may be found are generally categorized as those in which the decision-maker (1) has a pecuniary interest in the outcome of the case, (2) has been the target of personal abuse or criticism from the parties seeking the decision-maker's disqualification, (3) is directly involved in other matters concerning the litigation, or (4) may have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decision-maker. Hookason v. Jones, 757 S.W.2d 347, 349 (Tenn. Ct. App. 1988) (citing Withrow, 421 U.S. at 47).

As previously stated, under the Act the hearing officer has several responsibilities. The officer upon receipt of a citation determines if a violation exists. If a violation is found, the officer may impose a fine and set a reasonable time for payment of the fine, and the officer is required to conduct a hearing if requested in writing by the person committing the violation. Tenn. Code Ann. § 6-54-1009. Under this statutory scheme, an administrative hearing officer does not cease to be an impartial decision-maker simply by virtue of making an initial determination that a building or property maintenance violation exists. The administrative hearing officer's initial determination is tantamount to a "show cause" order that notifies the alleged violator of the issue to be resolved at the hearing. The administrative hearing officer's initial determination that a violation exists, based upon a citation received from the issuing officer, merely reflects that the citation is sufficient to impose a fine if the alleged violator does not refute the violation in the citation at a hearing. In similar instances, courts have found that an administrative hearing officer's making such a determination does not automatically preclude the administrative hearing officer's further participation in the proceedings. See, e.g., Morris v. City of Danville, 744 F.2d 1041, 1044-46 (4th Cir. 1984) (fact that city manager made initial conditional decision to terminate the police chief pending further administrative developments did not constitutionally disqualify him as ultimate decision-maker on the ground of bias); Harless v. City of Kingsport, No. 03A01-9707-CH-00289, 1998 WL 131519 (Tenn. Ct. App. March 25, 1998) (building official serving as both investigator and hearing officer did not result in denial of due process). See also Withrow, 421 U.S. at 47 (mere exposure to evidence presented in nonadversary investigative procedures was insufficient in itself to impugn fairness of administrative board members at later adversary hearing).

Furthermore, the Act erects various processes to ensure the ultimate impartiality of the hearing officer. For example, the administrative hearing officer is not permitted to "communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, with any person without notice and opportunity for all parties to participate in the communication," unless required for the disposition of ex parte matters specifically authorized by statute. Tenn. Code Ann. § 6-54-1003(a). An administrative hearing officer also may only communicate with municipal employees or officials regarding a matter pending before the administrative body or receive aid from staff assistants, members of the staff of the city attorney or a licensed attorney, if such persons do not receive ex parte communications of a type that the administrative hearing officer would be prohibited from receiving, and do not furnish, augment, diminish or modify the evidence in the record. Tenn. Code Ann. § 6-54-1003(b). Further, unless required for the disposition of ex parte matters specifically authorized by statute, no party to a contested case and no other person may communicate, directly or indirectly, in connection with any issue in that proceeding, while the proceeding is pending, with any person serving as an administrative hearing officer without notice and opportunity for all parties to participate in the communication. Tenn. Code Ann. § 6-54-1003(c).

Nor does the compensation of the officer appear to be impacted by his or her decisions, a factor which if it existed could implicate due process concerns. An administrative hearing officer is appointed by the local governing body for a four-year term and serves at the pleasure of the appointing governing body. Tenn. Code Ann. § 6-54-1006(a). The administrative hearing officer is not an employee of the municipal department that oversees compliance with the municipality's building and property maintenance codes. Therefore, the administrative hearing officer's decisions do not appear to affect personal compensation or otherwise personally benefit him or her. See Tumey v. Ohio, 273 U.S. 510, 532-33 (1927) (bias exists for disqualifying a hearing officer when the decision maker has strong institutional responsibilities requiring him or her to rule in the institution's favor); Martin, 78 S.W.3d at 266 n. 4 (there is a natural suspicion that adjudicators will act favorably toward their employers).

In sum, in the absence of actual bias being demonstrated in a particular case, an alleged violator's due process rights are not violated merely because an administrative hearing officer reviews the citation, makes a determination that a violation exists, and then conducts a hearing on the citation.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
Josh Jones, Legal Consultant
University of Tennessee
Municipal Technical Advisory Services
600 Henley Street, Suite 120
Knoxville, TN 37996-4105