EXCLUSION HEARINGS

CITY OF LaVonne Griffin-Valade, City Auditor 1900 SW 4th Avenue, Room 3100 Portland, Oregon 97201
PORTLAND, OREGON
Telephone: (503) 823-7307 Fax: (503) 823-4347
OFFICE OF THE CITY AUDITOR
TDD: (503) 823-6868
Hearings Office
www.portlandonline.com/auditor/heariqgs
HEARINGS OFFICER'S ORDER
TriMet vs. Steve P. Mansell
CASE NO. 3090530
(TriMet Exclusion Number 165108)
HEARING DATE: January 5, 2010
APPEARANCES:
Steve P. Mansell, Excluded Party
Rail Supervisor Mark Levingston, for TriMet
HEARINGS OFFICER: Mr. Gregory J. Frank
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
Timelines: The Hearings Officer finds the following concerning the Notice ofExclusion being issued:
TriMet issued the Notice ofExclusion to Mr. Steve P. Mansell on December 25,2009. The case was forwarded to the City ofPortland Hearings Office on December 29,2009. The Hearings Office mailed a hearing-notice to the parties on December 29,2009, within the time prescribed in the TriMet Code. The notice contained the required information concerning Mr. Mansell's rights in the hearing process.
SufficiencyoftheNotice ofExclusion: Acopy oftheNotice ofExclusionwasprovidedtoMr. Mansellwhenhe was excluded. The notice did reference the violating conduct/applicable code provision.
Stays: The exclusion was subject to an automatic stay upon being issued.
Mitigating and/or Aggravating Factors: The Hearings Officer fmds Mr. Mansell's conduct on December 25,2009 interfered with the safe operation ofa District Vehicle and posed a serious threat to his personal safety.
Probability that the excluded individual engaged in the conduct supporting the exclusion: Mr. Mansell appeared at the hearing and testified on his own behalf. Rail Supervisor Levingston appeared at the hearing and testified on behalfofTriMet. The Hearings Officer makes this decision based upon the testimony ofMr. Mansell and Supervisor Levingston and the documents admitted into the evidentiary record (Exhibits 1 through and including 3 and 5 through and including 7). Exhibit 4 was not admitted because Mr. Mansell did not have a copy, at the hearing, ofExhibit 4 and the Hearings Officer determined that with the presence of Supervisor Levingston neither party would be prejudiced by the exclusion ofExhibit 4.
CASE NO. 3090530 Page No. 2
Mr. Mansell and Supervisor Levingston, by their testimony at the hearing, agreed that on December 25, 2009 Mr. Mansell did climb upon the back "coupler" (equipment at the end ofa Max train car used to connect to another Max train car) and ride for a distance. Mr. Mansell stated that he only rode upon the "coupler" because the doors were closed. Supervisor Levingston stated that a driver ofa bus following the Max train observed Mr. Mansell riding on the "coupler" and contacted TriMet dispatch who in tum contacted Supervisor Levingston and the TriMet Max train operator. Supervisor Levingston stated that the Max train operator stopped the Max train and asked Mr. Mansell to get offofthe "coupler" and then waited for Supervisor Levingston to arrive. Supervisor Levingston stated that the Max train, upon which Mr. Mansell was riding the "coupler" was delayed by Mr. Mansell for approximately 5 minutes.
Mr. Mansell received a Notice ofExclusion on December 25,2009 for allegedly violating TMC 28.15 D (4) (Interferenceffrespass on Right ofWay). The Hearings Officer finds no dispute among the witnesses that Mr. Mansell did get upon and ride a Max train "coupler" on December 25, 2009. The Hearings Officer finds that riding a Max train "coupler" constitutes, while on the TriMet right-of-way, a hazard to Mr. Mansell and interfered with the timely passage ofa TriMet Max train. The Hearings Officer finds it more probable than not that on December 25,2009 Mr. Mansell did violate TMC 28.15 D (4). The Hearings Officer finds the Notice of Exclusion issued to Mr. Steve P. Mansell on December 25, 2009 is valid.
Special Exceptions: The Hearings Officer fmds Mr. Mansell is transit dependant and partially disabled. The Hearings Officer finds that Mr. Mansell needs access, Monday through and including Friday, to bus lines 8 and 15 and the Blue Line Max trains between 9:00 a.m. and 5:00 p.m. The Hearings Officer notes that Mr. Mansell was infonned at the hearing that if similar conduct occurs (endangering his personal safety and the safety ofothers on the TriMet system)· and he requests a qualified exclusion such request will likely be denied.
ORDER AND DETERMINATION:
1. Validity ofthe Notice ofExclusion:
The Hearings Officer modifies the Notice ofExclusion issued to Mr. Steve P. Mansell on December 25, 2009.
2.
Length ofthe Exclusion:
The exclusion shall become effective with this Order, on January 13, 2010, and shall conclude on April 7, 2010 at 5:00 p.m.
3.
Scope ofthe Exclusion:
Mr. Mansell shall have access, Monday through and including Friday between 9:00 a.m. and 5:00 p.m., to bus lines 8 and 15 and Blue Line Max trains.
4.
This order has been mailed to the parties on January 7, 2010, not more than five (5) business days following the hearing, and will become final on January 13, 2010.
CASE NO. 3090530 Page No. 3
5. This order may be appealed to a court ofcompetent jurisdiction pursuant to ORS 34.010 et seq.
Dated: January 7, 2010
GJF: gj/cb
Enclosure
Exhibit #
DescriDtion
Submitted bv
DisDosition
1
Anneal Form nal!e 2
Turner Anna
Received
2
TriMet Fare Insnection System nrint out
Turner. Anna
Received
3
Notice ofExclusion
Turner. Anna
Received
4
Issuinl! Person's Affidavit
Turner Anna
Reiected
5
Mailinl! list
HearinQ:s Office
Received
6
HearinQ: notice
Hearin2s Office
Received
7
Statement ofRiehts
Hearines Office
Received