2007 California Government Code Article 6. Administrative Adjudication Bill Of Rights 11425.10-11425.60

CA Codes (gov:11425.10-11425.60)

11425.10.  (a) The governing procedure by which an agency conducts
an adjudicative proceeding is subject to all of the following
requirements:
   (1) The agency shall give the person to which the agency action is
directed notice and an opportunity to be heard, including the
opportunity to present and rebut evidence.
   (2) The agency shall make available to the person to which the
agency action is directed a copy of the governing procedure,
including a statement whether Chapter 5 (commencing with Section
11500) is applicable to the proceeding.
   (3) The hearing shall be open to public observation as provided in
Section 11425.20.
   (4) The adjudicative function shall be separated from the
investigative, prosecutorial, and advocacy functions within the
agency as provided in Section 11425.30.
   (5) The presiding officer is subject to disqualification for bias,
prejudice, or interest as provided in Section 11425.40.
   (6) The decision shall be in writing, be based on the record, and
include a statement of the factual and legal basis of the decision as
provided in Section 11425.50.
   (7) A decision may not be relied on as precedent unless the agency
designates and indexes the decision as precedent as provided in
Section 11425.60.
   (8) Ex parte communications shall be restricted as provided in
Article 7 (commencing with Section 11430.10).
   (9) Language assistance shall be made available as provided in
Article 8 (commencing with Section 11435.05) by an agency described
in Section 11018 or 11435.15.
   (b) The requirements of this section apply to the governing
procedure by which an agency conducts an adjudicative proceeding
without further action by the agency, and prevail over a conflicting
or inconsistent provision of the governing procedure, subject to
Section 11415.20.  The governing procedure by which an agency
conducts an adjudicative proceeding may include provisions equivalent
to, or more protective of the rights of the person to which the
agency action is directed than, the requirements of this section.



11425.20.  (a) A hearing shall be open to public observation.
Nothing in this subdivision limits the authority of the presiding
officer to order closure of a hearing or make other protective orders
to the extent necessary or proper for any of the following purposes:

   (1) To satisfy the United States Constitution, the California
Constitution, federal or state statute, or other law, including but
not limited to laws protecting privileged, confidential, or other
protected information.
   (2) To ensure a fair hearing in the circumstances of the
particular case.
   (3) To conduct the hearing, including the manner of examining
witnesses, in a way that is appropriate to protect a minor witness or
a witness with a developmental disability, as defined in Section
4512 of the Welfare and Institutions Code, from intimidation or other
harm, taking into account the rights of all persons.
   (b) To the extent a hearing is conducted by telephone, television,
or other electronic means, subdivision (a) is satisfied if members
of the public have an opportunity to do both of the following:
   (1) At reasonable times, hear or inspect the agency's record, and
inspect any transcript obtained by the agency.
   (2) Be physically present at the place where the presiding officer
is conducting the hearing.
   (c) This section does not apply to a prehearing conference,
settlement conference, or proceedings for alternative dispute
resolution other than binding arbitration.



11425.30.  (a) A person may not serve as presiding officer in an
adjudicative proceeding in any of the following circumstances:
   (1) The person has served as investigator, prosecutor, or advocate
in the proceeding or its preadjudicative stage.
   (2) The person is subject to the authority, direction, or
discretion of a person who has served as investigator, prosecutor, or
advocate in the proceeding or its preadjudicative stage.
   (b) Notwithstanding subdivision (a):
   (1) A person may serve as presiding officer at successive stages
of an adjudicative proceeding.
   (2) A person who has participated only as a decisionmaker or as an
advisor to a decisionmaker in a determination of probable cause or
other equivalent preliminary determination in an adjudicative
proceeding or its preadjudicative stage may serve as presiding
officer in the proceeding.
   (c) The provisions of this section governing separation of
functions as to the presiding officer also govern separation of
functions as to the agency head or other person or body to which the
power to hear or decide in the proceeding is delegated.




11425.40.  (a) The presiding officer is subject to disqualification
for bias, prejudice, or interest in the proceeding.
   (b) It is not alone or in itself grounds for disqualification,
without further evidence of bias, prejudice, or interest, that the
presiding officer:
   (1) Is or is not a member of a racial, ethnic, religious, sexual,
or similar group and the proceeding involves the rights of that
group.
   (2) Has experience, technical competence, or specialized knowledge
of, or has in any capacity expressed a view on, a legal, factual, or
policy issue presented in the proceeding.
   (3) Has as a lawyer or public official participated in the
drafting of laws or regulations or in the effort to pass or defeat
laws or regulations, the meaning, effect, or application of which is
in issue in the proceeding.
   (c) The provisions of this section governing disqualification of
the presiding officer also govern disqualification of the agency head
or other person or body to which the power to hear or decide in the
proceeding is delegated.
   (d) An agency that conducts an adjudicative proceeding may provide
by regulation for peremptory challenge of the presiding officer.



11425.50.  (a) The decision shall be in writing and shall include a
statement of the factual and legal basis for the decision.
   (b) The statement of the factual basis for the decision may be in
the language of, or by reference to, the pleadings.  If the statement
is no more than mere repetition or paraphrase of the relevant
statute or regulation, the statement shall be accompanied by a
concise and explicit statement of the underlying facts of record that
support the decision.  If the factual basis for the decision
includes a determination based substantially on the credibility of a
witness, the statement shall identify any specific evidence of the
observed demeanor, manner, or attitude of the witness that supports
the determination, and on judicial review the court shall give great
weight to the determination to the extent the determination
identifies the observed demeanor, manner, or attitude of the witness
that supports it.
   (c) The statement of the factual basis for the decision shall be
based exclusively on the evidence of record in the proceeding and on
matters officially noticed in the proceeding.  The presiding officer'
s experience, technical competence, and specialized knowledge may be
used in evaluating evidence.
   (d) Nothing in this section limits the information that may be
contained in the decision, including a summary of evidence relied on.

   (e) A penalty may not be based on a guideline, criterion,
bulletin, manual, instruction, order, standard of general application
or other rule subject to Chapter 3.5 (commencing with Section 11340)
unless it has been adopted as a regulation pursuant to Chapter 3.5
(commencing with Section 11340).



11425.60.  (a) A decision may not be expressly relied on as
precedent unless it is designated as a precedent decision by the
agency.
   (b) An agency may designate as a precedent decision a decision or
part of a decision that contains a significant legal or policy
determination of general application that is likely to recur.
Designation of a decision or part of a decision as a precedent
decision is not rulemaking and need not be done under Chapter 3.5
(commencing with Section 11340).  An agency's designation of a
decision or part of a decision, or failure to designate a decision or
part of a decision, as a precedent decision is not subject to
judicial review.
   (c) An agency shall maintain an index of significant legal and
policy determinations made in precedent decisions.  The index shall
be updated not less frequently than annually, unless no precedent
decision has been designated since the last preceding update.  The
index shall be made available to the public by subscription, and its
availability shall be publicized annually in the California
Regulatory Notice Register.
   (d) This section applies to decisions issued on or after July 1,
1997.  Nothing in this section precludes an agency from designating
and indexing as a precedent decision a decision issued before July 1,
1997.