Declaratory Decisions in Administrative Adjudications

California’s Government Code, in Title 2, Division 3, Parti 1, Chapter 4.5, Article 14, deals with declaratory decisions. Section 11465.10 allows an agency to conduct an adjudicative proceeding under the declaratory decision procedure provided in this article.

Section 11465.20 specifies that a person may apply to an agency for a declaratory decision as to the applicability to specified circumstances of a statute, regulation, or decision within the primary jurisdiction of the agency. The agency may issue a declaratory decision in response to the application. However, the agency cannot issue a declaratory decision if any of three specified circumstances apply. Also, an application for a declaratory decision is not required for exhaustion of the applicant’s administrative remedies for purposes of judicial review.

Section 11465.30 states that, within 30 days after receipt of an application for a declaratory decision, an agency must give notice of the application to all persons to which notice of an adjudicative proceeding is otherwise required, and may give notice to any other person.

Section 11465.40 provides that the provisions of a formal, informal, or other applicable hearing procedure do not apply to an agency proceeding for a declaratory decision, except to the extent provided in this article or to the extent the agency so provides by regulation or order.

Section 11465.50 requires an agency, within 60 days after receipt of an application for a declaratory decision, to take one of four specified actions in writing. A copy of the agency’s action is required to be served promptly on the applicant and any other party. If an agency has not taken action within 60 days after receipt of an application for a declaratory decision, the agency is considered to have declined to issue a declaratory decision on the matter.

Section 11465.60 requires a declaratory decision to contain the names of all parties to the proceeding, the particular facts on which it is based, and the reasons for its conclusion. In addition, a declaratory decision has the same status and binding effect as any other decision issued by the agency in an adjudicative proceeding.

Section 11465.70 requires the Office of Administrative Hearings to adopt and promulgate model regulations under this article that are consistent with the public interest and with the general policy of this article to facilitate and encourage agency issuance of reliable advice. The model regulations must provide for four specified items.  These regulations are intended to apply in an adjudicative proceeding, unless an agency adopts its own regulations to govern declaratory decisions of the agency. However, note that this article does not apply in an adjudicative proceeding to the extent an agency by regulation provides inconsistent rules or provides that this article is not applicable in a proceeding of the agency.

Article 15 deals with conversion of a proceeding. Section 11470.10 states that, subject to any applicable regulation adopted, at any point in an agency proceeding, the presiding officer or other agency official responsible for the proceeding (a) may convert the proceeding to another type of agency proceeding provided for by statute if the conversion is appropriate, is in the public interest, and does not substantially prejudice the rights of a party, or (b) must convert the proceeding to another type of agency proceeding provided for by statute, if required by regulation or statute.

Section 11470.20 states that, if the presiding officer or other agency official responsible for the original proceeding would not have authority over the new proceeding to which it is to be converted, the agency head is then required to appoint a successor to preside over or be responsible for the new proceeding.

Section 11470.30 provides that, to the extent practicable and consistent with the rights of parties and the requirements of this article relating to the new proceeding, the record of the original agency proceeding is to be used in the new agency proceeding.

Section 11470.40 states that, after a proceeding is converted from one type to another, the presiding officer or other agency official responsible for the new proceeding must do three specified actions.

Section 11470.50 authorizes an agency to adopt regulations to govern the conversion of one type of proceeding to another. The regulations may include an enumeration of the factors to be considered in determining whether and under what circumstances one type of proceeding will be converted to another.