Administrative Adjudication Bill of Rights

In the California Government Code, there are administrative adjudication procedures for state departments and agencies. Among those provisions is a “bill of rights” related to administrative adjudication. Government Code Section 11425.10 specifies requirements that must be included in the governing procedure by which a state agency conducts an adjudicative proceeding. Those requirements include the following:

• 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.

• The agency shall make available to the person to which the agency action is directed a copy of the governing procedure.

• The hearing shall be open to public observation.

• The adjudicative function shall be separated from the investigative, prosecutorial, and advocacy functions within the agency.

• The presiding officer is subject to disqualification for bias, prejudice, or interest.

• The decision shall be in writing, be based on the record, and include a statement of the factual and legal basis of the decision.

• A decision may not be relied on as precedent unless the agency designates and indexes the decision as precedent.

• Ex parte communications shall be restricted.

• Language assistance shall be made available by an agency.

Section 11425.20 requires a hearing to be open to public observation, but a presiding officer has authority to order closure of a hearing or make other protective orders to the extent necessary or proper.

To the extent a hearing is conducted by telephone, television, or other electronic means, and is not closed as otherwise required by law, the requirement that the meeting is open to public observation is satisfied if members of the public have an opportunity to do hear or inspect the agency’s record, and be physically or virtually present at the place where the presiding officer is conducting the hearing.

Section 11425.30 prohibits a person from serving as a presiding officer in an adjudicative proceeding if the person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage, or 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, with specified exceptions.

Section 11425.40 specifies that the presiding officer is subject to disqualification for bias, prejudice, or interest in the proceeding. 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. And, an agency that conducts an adjudicative proceeding may provide by regulation for peremptory challenge of the presiding officer.

Section 11425.50 requires the decision to be in writing and include a statement of the factual and legal basis for the decision. The statement of the factual basis for the decision may be in the language of, or by reference to, the pleadings.

In addition, the statement of the factual basis for the decision must 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.

Section 11425.60 provides that a decision may not be expressly relied on as precedent unless it is designated as a precedent decision by the agency. 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, and it is not subject to judicial review.

In addition, an agency must maintain an index of significant legal and policy determinations made in precedent decisions. The index must be updated annually and be made available to the public by subscription.