California Code of Regulations
Title 2 - Administration
Division 1 - Administrative Personnel
Chapter 1 - State Personnel Board
Subchapter 1.2 - Hearings and Appeals
Article 6 - Evidentiary Hearing Process
Subarticle 1 - Administrative Law Judges
Section 56.4 - Ex Parte Communications

Universal Citation: 2 CA Code of Regs 56.4

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

(a) While any adjudicatory proceeding is pending before the board or a presiding officer, there shall be no communication, direct or indirect, regarding any issue in the proceeding, to the presiding officer from any party, party representative, or interested third party, or to any party, party representative, or interested third party, from a presiding officer, without notice and opportunity for all parties to participate in the communication.

(1) Nothing in this section precludes a communication made on the record at the hearing.

(2) For the purpose of this section, a proceeding is pending from the submission of an appeal to the Appeals Division.

(b) A communication otherwise prohibited under subdivision (a) is permissible in any of the following circumstances:

(1) The communication is required for disposition of an ex parte matter specifically authorized by statute;

(2) The communication concerns a matter of procedure or practice; or

(3) The communication is directly related to settlement negotiations between the parties and both parties are aware that the presiding officer is discussing issues related to settlement with both parties.

(c) If, while the proceeding is pending, but before serving as the presiding officer, a person receives a communication of a type that would be in violation of this section if received while serving as the presiding officer, the person promptly after starting to serve, shall disclose the content of the communication on the record and give all parties an opportunity to address it in the manner provided in subdivision (d).

(d) If a presiding officer receives a communication in violation of this section,

(1) The presiding officer shall make all of the following a part of the record in the proceedings:
(A) If the communication is written, the writing and any written response of the presiding officer to the communication; or

(B) If the communication is oral, a memorandum stating the substance of the communication, any response made by the presiding officer, and the identity of each person from whom the presiding officer received the communication.

(2) The presiding officer shall notify all parties that a communication described in this section has been made a part of the record.

(3) If a party requests an opportunity to address the communication within 10 days after receipt of notice of the communication:
(A) The party shall be allowed to comment on the communication. The presiding officer shall have the discretion to permit either written or oral comment; and

(B) The presiding officer has the discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen a hearing that has been concluded.

(e) Receipt or initiation by the presiding officer, other than a board member, of a communication in violation of this article may be grounds for disqualification of the presiding officer. If the presiding officer is disqualified, the portion of the record pertaining to the ex parte communication may be sealed by protective order of the disqualified presiding officer.

1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section heading, repealer and new section and amendment of NOTE filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering of former section 56.4 to new section 67.5 and new section 56.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Amendment of subsections (a) and (b)(1)-(2), new subsection (b)(3) and amendment of subsections (d)(1) and (e) filed 4-12-2013; operative 4-12-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 15).

Note: Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11430.10, 11430.20, 11430.30, 11430.40, 11430.50 and 11430.60, Government Code.

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