Office of Administrative Hearings Procedures – Part 4

Section 1262 explains that an application for a declaratory decision may be filed to determine the applicability of agency rules, orders, statutes, or final administrative decisions to a matter within the agency’s primary jurisdiction. In addition, the existence of another adequate remedy at law does not preclude an agency from granting an application for a declaratory decision when the agency determines issuing a declaratory decision is appropriate.

Section 1264 allows any person to file a written application with an agency requesting the issuance of a declaratory decision. An application for a declaratory decision must be directed to the agency head and be delivered personally or by certified mail. An application for a declaratory decision must be signed by the applicant or by the applicant’s attorney or representative and must identify seven specified items of information.

There is provided a Model Application for a Declaratory Decision.

Section 1266 states that the agency may return an application to an applicant for failure to meet the criteria in Regulation 1264. A return of an application is not a denial. Interested parties need not be notified when an application is returned on this basis.

In addition, the agency may request the applicant to submit additional facts, make a more precise statement of particular facts, or narrow the request for applicability of the law to a situation. And, the agency may choose to select or eliminate certain issues presented in the application for declaratory decision.

Section 1270 explains that, within 30 days of a receipt of an application for declaratory decision, if the application is not returned, an agency must give notice of application receipt to all Persons to whom notice is required by law.

Section 1272 states that, if the agency determines an application for a declaratory decision should be considered, the agency is required to grant the application and commence a declaratory decision proceeding by giving notice as required.

Section 1274 explains that a decision not to issue a declaratory decision is within the discretion of the agency. An agency’s failure to take action within 60 days of receipt of an application constitutes non-acceptance of the application. The agency is required to deny the application if, after commencement of a declaratory decision proceeding, the agency determines that four specified conditions exist.

The agency’s denial of an application for a declaratory decision must be in writing and state the reasons for denying the application for a declaratory decision. Notice of the denial is required to be served upon the pplicant and every party and sent to each person who was given notice of the application or who requested a notice.

Section 1276 provides that, within 60 days of receipt of an application and at least 45 days before a hearing is held in a declaratory decision proceeding or, when no hearing is held, at least 45 days before issuing a declaratory decision, the agency is required to serve on the applicant and any other party and mail notice of the declaratory decision proceeding to the five specified persons.

In addition, this notice must be by any method reasonably calculated to give notice to interested persons of these matters, and may include agency newsletters to specific classes of licensees, the California Regulatory Notice Register, or first class mail. The agency’s notice of its intent to hold a hearing or issue a declaratory decision, whether mailed or published, is required to state at least six specified items.

There is provided a Model Agency Notice of Intent to Issue Declaratory Decision.

Section 1278 authorizes any person to request an agency to provide notice of commencement of, or other action concerning, a declaratory decision proceeding. Any request for this notice is required to be in writing and be directed to the agency head. Requests are also required to be renewed annually.

Section 1280 requires a person who does not consent to a declaratory decision proceeding is required to submit a protest or dissent in writing within 25 days of the date of the notice specified. Failure to dissent within this time period is deemed a waiver. Written comments are to be directed to the agency head or agency contact person, must be signed by the person filing the comment or by his attorney or other representative and contain the name and telephone number of the person filing the comment or his attorney or other representative.

Section 1282 states that, within 25 days of notice of an application for declaratory decision or the agency’s commencement of a declaratory decision proceeding, any person may file a request with the agency head or agency contact person to become a party or intervenor in the declaratory decision proceeding.

Section 1284 allows the agency to direct a hearing to be held in a declaratory decision proceeding whenever the agency determines that a hearing would be helpful in issuing a declaratory decision or to determine if the person filing the application, the parties, the intervenors, and other persons directly affected by the declaratory decision agree on a set of undisputed facts sufficient to support a meaningful declaratory decision; to confirm the matter is not the subject of a pending adjudication; or to verify a genuine controversy exists.

When the agency determines to hold a hearing, unless an applicant, party, or intervenor waives the opportunity to be heard, the agency, the applicant, the parties, the intervenors and, at the agency’s discretion, any other interested person, may each be permitted equal time in the discretion of the agency to make oral presentations.

However, no cross-examination is permitted. Parties may stipulate to additional facts or information to assist the agency’s understanding of the situation. The hearing need not be reported by a stenographic reporter, but in that instance a written summary of each oral presentation must be submitted at the hearing.

Section 1286 requires the agency to keep, in accordance with the State Records Management Act, a record of each declaratory decision proceeding, which must include six specified items of information. In addition, this declaratory decision proceeding record is a public record and is available to the public as provided by law.

Section 1288 requires the declaratory decision to be based on the statement of undisputed facts submitted by the parties, written comments, oral presentations, and any other matters deemed appropriate by the agency. A copy of the agency’s written declaratory decision must be served upon every party.

Section 1290 that that a declaratory decision binds the agency, the applicant, and any other parties to the proceeding to the determination of issues reached in the declaratory decision. 

In addition, a declaratory decision may be given precedential effect, if the agency so designates.

Section 1292 explains that an agency’s refusal or failure to issue a declaratory decision is not subject to judicial review. A declaratory decision is subject to judicial review in the same manner as the agency’s final decision or order in a contested adjudicative proceeding.

Section 1300 provides an introduction that this subchapter governs the procedure for arbitration proceedings to resolve claims arising under or relating to contracts by Public Agencies under the State Contract Act.

Section 1301 provides the following definitions:

“Arbitration” means the proceeding for resolving claims pursuant to Sections 10240 through 10245.4 of the Public Contract Code.

“Arbitrator” means the person or persons selected pursuant to Section 10240.3 of the Public Contract Code.

“Contract” means an agreement entered into pursuant to the State Contract Act.

“Contractor” means the prime contractor who entered into the contract with the Public Agency.

“Decision on Costs” means a decision, in accordance with these rules, the Contract and Section 10240.13 of the Public Contract Code, which results from a separate supplementary Arbitration proceeding after determining the merits of a matter in Arbitration, and which considers assessing costs, interest and fees against a Party or Parties.

“Decision on the Merits” means the decision, other than a Decision on Costs, resolving the matter which is the subject of an Arbitration proceeding pursuant to these rules, the Contract and Public Contract Code Section 10100 et seq.

“Interested Party” means a Party other than the Contractor and the Public Agency who may be joined in the Arbitration as a Party under the provisions of Section 10240.9 of the Public Contract Code.

“Party” means any person so named in the Arbitration pleadings.

“Petitioner” means the Contractor or Public Agency who files a complaint in Arbitration of a claim under the provisions of the Public Contract Code.

“Public Agency” means any Department of the State of California which entered into the Contract. A Public Agency also means a political subdivision or public agency pursuant to Public Contract Code Section 22200.

“Respondent” means the Contractor or Public Agency against whom a complaint in Arbitration is filed.

Section 1302 requires the arbitrator to to interpret and apply the provisions of this subchapter insofar as they relate to the arbitrator’s powers and duties. If there is more than one arbitrator, the interpretation and application of these rules must be decided by a majority vote. In addition to the authority expressly granted by law or otherwise by these rules, the arbitrator must have the power to issue such orders as necessary to implement these rules.

In addition, the OAH must in the administration of arbitrations interpret and apply the rules of this subchapter relating to the powers and duties of that office.

Section 1303 explains that no disclosure of any offers of settlement made by any party is to be made to the arbitrator prior to the filing of the decision on the merits, without the express consent of all parties.

In addition, there cannot be ex parte communication by counsel or any party with the arbitrator or a potential arbitrator on the merits of a contested matter in the absence of or without the express consent of all parties.

Section 1304 states that, in proceedings under this subchapter, an individual party may appear in person, a corporate party by an officer or employee thereof, a partnership or joint venture party by an authorized member or employee thereof, or any of these by a member in good standing of the State Bar of California.

Section 1305 provides that, whenever a party is required or permitted to file any document, the document must be filed in the Sacramento office of the OAH together with proof of service of a copy on all other parties, unless filing prior to service is authorized for good cause by the OAH.

Section 1306 states that any party who proceeds with the arbitration after knowledge that any provision or requirement of this subchapter has not been complied with, and who fails to state objections thereto in writing, is to be deemed to have waived the objection unless it is an objection that the arbitrator has no jurisdiction of the subject of the claim.

Section 1310 requires the OAH to provide all administrative services for arbitrations except that, unless otherwise agreed to by the parties and the OAH, these services do not include the services of reporters or transcribers or personnel of the OAH.

The services of the arbitrator are provided by a contract between the OAH and the person selected to be the arbitrator and as consented to by the parties. The OAH compensates the arbitrator directly. And, the OAH is the repository of the official file for any proceeding until expiration of the period for an appeal.

Section 1311 specifies that the OAH may order the Petitioner, Respondent, or any Interested Party at any time to make deposits as may be necessary to assure payment of costs incurred in arbitration as prescribed by these rules.

Section 1312 states that, promptly upon receiving the complaint, the OAH is required to docket the arbitration and notify all Parties designated in the complaint of the docketing.

Section 1313 specifies that, if a complaint in arbitration is filed prior to issuance of a final written decision by the public agency and less than 240 days have expired since the date of acceptance of the work, the OAH is required to dismiss the complaint without prejudice to the filing of a timely complaint.

Section 1314 states that, in the absence of an appointed arbitrator, the OAH may decide, with consent of the petitioner and respondent, procedural and discovery questions as necessary to avoid delay in the expeditious completion of the arbitration proceedings.

Section 1320 requires any arbitrator appointed to be neutral, subject to disqualification for the reasons specified in Section 1323.

Section 1321 provides that, unless the petitioner and respondent otherwise agree, there is only one arbitrator who is selected as provided. The two parties have until 20 days after service of the complaint upon respondent to agree on the selection of an arbitrator. If no agreement is reached, the petitioner and respondent must, within 30 days after service of the complaint upon respondent, file a list of 5 acceptable arbitrators ranked in order of preference with the OAH.

OAH then strikes any names over five. If either or both petitioner or respondent fails to submit a list or to include 5 names on its list the OAH is required to compose the list with names of persons selected at random, who have been enrolled on the panel certified by the Public Works Contract Arbitration Committee and who have indicated a willingness to serve as an arbitrator in the location for the hearing.

The petitioner and respondent are then required, within 15 days from the mailing date of the list, cross off any names to which it objects, number the remaining names indicating the order of preference, and file the list with the OAH with a copy to each other. If either or both petitioner or respondent does not return the list within the time specified or does not indicate an order of preference, all persons named are be deemed equally acceptable.

From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the OAH appoints the arbitrator. If for any reason the appointment cannot be made from the submitted list, the OAH repeats the submission process with an entirely different list of 20 names selected at random from those who have indicated a willingness to serve as an arbitrator in the location for the hearing.

Section 1322 requires the OAH to notify the arbitrator of selection as arbitrator. On notice of selection, the prospective arbitrator must disclose to the OAH any circumstances likely to prevent a prompt hearing and decision or to create a presumption of bias. The disclosures must satisfy the requirements of specified standards.

Upon disclosure, the OAH must advise the parties of the information in writing. The prospective arbitrator is required to be disqualified by the OAH if an objection is made to the OAH by petitioner or respondent within 10 days from the date of receipt of the information. If neither petitioner or respondent objects within the time specified, the prospective arbitrator is deemed acceptable.

Section 1323 requires the notice of the appointment of the arbitrator to be mailed to the arbitrator by the OAH, together with a copy of these rules and an oath of office as prescribed by the OAH.

Section 1324 provides that, if after appointment, any arbitrator who dies, refuses, or is unable to perform the duties of office or be disqualified during the course of the proceeding, a substitute arbitrator must be identified from the list of names as preferred by the petitioner and respondent and from which the original arbitrator was selected if possible or in the manner set forth in Section 1321.

Section 1330 requires jurisdiction of the arbitrator to be in accordance with Article 7.1 of the Public Contract Code.

Section 1331 allows the arbitrator to raise the issue of jurisdiction to proceed by an appropriate order after affording the parties an opportunity to be heard.