2022-01-07 EMC special meeting draft minutes

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erroneous or an abuse of discretion. Therefore, the only thing the Commission can find today is that the director's decision should be affirmed. Thank you very much. ADAMS: Thank you. Now we move to Commission discussion and deliberation. I would like a commissioner –maybe I'll tap Vice Chair Rick Gaffney if you would, to make a motion on whether or not we should affirm the decision of the director of the Department of Environmental Management or whether we should reverse, modify or remand the director's decision. Can I get that motion? Or pick a motion, which action do you want to take? Motion and second:Vice Chair Gaffney made a motion, to which Commissioner Fulton seconded, to modify the Director’s decision. Discussion: ADAMS: I'll reiterate a little bit of what has been said by our attorneys. According to EMC Rule 7-13, the standard of appeal decision appealed from may be reversed or modified, and the motion is to modify only if the Commission finds that the decision is 1) in violation of the code or other applicable law; 2) clearly erroneous in view of the reliable probative and substantial evidence on the whole record; or 3) arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. We also have the opportunity if you wish to go into executive session, with our corporation counsel, but we don't have to. Are we ready for an open discussion on the motion to modify? Okay. I guess I'd like to know what the motioners were thinking in terms of the modification. GAFFNEY: I'll start because I was asked to make the motion. I think that there's two questions facing us here. One is whether or not the decision to charge two sewer fees for this property was correct. And then the second decision is whether or not the $7,888, I think, was the figure that was potentially overcharged based on that decision should be returned to the Appellant. And so I personally would like to break the question and modification of the decision into those two pieces. ADAMS: And then would you explain to us what decision you would make on both of those? GAFFNEY: Yeah, I'm not sure about the secondary one. And I do want to ask our attorney a quick question, the legal definition of arbitrary. I think I know what arbitrary and capricious means, but I'd like to hear the legal definition of arbitrary and capricious before we proceed with that question. WONG: Sure, I can give a general definition. So a decision is arbitrary or capricious if the decision does not articulate a rational connection between the facts found and the conclusions made, that's generally what it is. ADAMS: Dee Fulton, comment? 35