Procedural Requirements for Adjudicative Proceedings

In Government Code Title 2, Division 3, Part 1, Chapter 4.5, Article 9, there are a number of general procedural provisions. Section 11440.10 allows an agency head to do any of three specified actions for a decision of the presiding officer or the agency. Also, by regulation, an agency may mandate review, or may preclude or limit review, of a decision of the presiding officer or the agency.

Section 11440.20 provides that service of a writing or electronic document on, or giving of a notice to, a person in a procedure provided in this chapter is subject to specified provisions. The writing, electronic document, or notice must be delivered personally or sent by mail, electronic, or other means to the person at the person’s last known address.

Section 11440.30 allows the presiding officer to conduct all or part of a hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits. There are specified procedures if a party objects to an electronic hearing.

Section 11440.40 provides that, in a proceeding alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery, evidence of specific instances of a complainant’s sexual conduct with individuals other than the alleged perpetrator is subject to specified limitations.

Moreover, evidence of specific instances of a complainant’s sexual conduct with individuals other than the alleged perpetrator is presumed inadmissible absent an offer of proof establishing its relevance and reliability and that its probative value is not substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or confuse the issue. The term “complainant” is defined.

Section 11400.45 defines the terms “accident,” “benevolent gestures,” and “family.” In addition, the portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person is inadmissible as evidence of an admission of liability. A statement of fault, however, which is part of, or in addition to, any of the above is admissible pursuant to this section.

Section 11440.50 states that this section applies in adjudicative proceedings of an agency if the agency by regulation provides that this section is applicable in the proceedings. In addition, the presiding officer must grant a motion for intervention if all of the four specified conditions are satisfied.

Moreover, if an applicant qualifies for intervention, the presiding officer may impose conditions on the intervenor’s participation in the proceeding, either at the time that intervention is granted or at a subsequent time. Conditions may include the four that are specified in this section.

Section 11440.60 defines the term “quasi-judicial proceeding” to be one of five types of hearings. It is also defined the term “written communication” to mean any report, study, survey, analysis, letter, or any other written document.

Article 10 deals with informal hearings. Section 11445.10 authorizes an agency to conduct an adjudicative proceeding under the informal hearing procedure provided in this article. There are three legislative findings and declarations.

Section 11445.20 allows an agency to use an informal hearing procedure in any of the specified proceedings if in the circumstances its use does not violate another statute or the federal or state Constitution.

Section 11445.30 requires the notice of hearing to state the agency’s selection of the informal hearing procedure. Any objection of a party to use of the informal hearing procedure is required to be made in the party’s pleading.

Section 11445.40 states that the hearing procedures otherwise required by statute for an adjudicative proceeding apply to an informal hearing. In addition, in an informal hearing, the presiding officer regulates the course of the proceeding.

Section 11445.50 allows the presiding officer to deny use of the informal hearing procedure, or may convert an informal hearing to a formal hearing after an informal hearing is commenced, if it appears to the presiding officer that cross-examination is necessary for proper determination of the matter and that the delay, burden, or complication due to allowing cross-examination in the informal hearing will be more than minimal.

In addition, an agency, by regulation, may specify categories of cases in which cross-examination is deemed not necessary for proper determination of the matter under the informal hearing procedure. Note that the actions of the presiding officer under this section are not subject to judicial review.

Section 11445.60 states that, if the presiding officer has reason to believe that material facts are in dispute, the presiding officer may require a party to state the identity of the witnesses or other sources through which the party would propose to present proof if the proceeding were converted to a formal or other applicable hearing procedure.

In addition, if a party has reason to believe that essential facts must be obtained in order to permit an adequate presentation of the case, the party may inform the presiding officer regarding the general nature of the facts and the sources from which the party would propose to obtain the facts if the proceeding were converted to a formal or other applicable hearing procedure.