California OAH special education order · July 8, 2013
Order Re District's Request for an Additional Hearing Date, and Confirming Venue
OAH Case No. 2013010033, 2012120631 · ALJ Rebecca Freie
OAH rejected the District's attempt to move the hearing location two business days before hearing, holding that only OAH can change venue, and sealed settlement communications Student had filed.
This case went to decision
Student v. Fresno Unified School District (consolidated): Fresno Unified's assessments upheld and parents' IEP claims denied, but its four-school placement offer cannot be implemented. (2013)
Summary
Two business days before hearing, the District filed a notice changing the hearing location and asked to add July 22, 2013, as a hearing day because a witness would be out of the country. OAH held that the District could not change the venue on its own, since only OAH has that power. It noted that the location had been set in the prehearing conference order and that Student had already served subpoenas listing it. The unopposed request for an extra day was left to the hearing ALJ to add as needed. OAH also sealed settlement-negotiation emails that Student attached to his reply, citing Evidence Code section 1152, and directed both parties not to file settlement communications in the future.
Why it matters
A district cannot change the hearing location on its own once OAH has set it, especially after subpoenas have gone out. Parties should never attach settlement emails or letters to OAH filings, because OAH treats those talks as confidential and will seal them.
Key authority cited
- Evid. Code, § 1152
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013010033
v.
FRESNO UNIFIED SCHOOL DISTRICT,
FRESNO UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2012120631
v.
PARENT ON BEHALF OF STUDENT. ORDER RE DISTRICT’S REQUEST FOR
AN ADDITIONAL HEARING DATE,
AND CONFIRMING VENUE.
On July 3, 2013, the District filed a document entitled “Notice of Change of Hearing Location.” It also filed a request to schedule an additional day of hearing this matter. On July 8, 2013, Student filed a “Reply to District’s Motions for Change of Venue and Additional Days.”
Currently this case scheduled to be heard on July 9 through 11, and July 16 through 18, 2013, at 4120 North 1st Street, Fresno, California 93726. The location of the due process hearing was determined at a telephonic prehearing conference (PHC) conducted by OAH on May 13, 2013. The order following the PHC affirmed the hearing location that is stated above. The District cannot unilaterally change the location of the hearing two business days prior to the date the hearing is to commence, and cannot do so when Student has had subpoenas issued and served with the location of hearing reflected as that in the PHC order from May 2013. It is OAH that has jurisdiction to change venue, not the District. The hearing shall commence on July 9, 2013, at 9:30 a.m. at 4120 North 1st Street, Fresno, California 93726. The ALJ hearing the case will determine the location of the hearing needs to be changed.
The District has asked that an additional day of hearing, specifically July 22, 2013, be scheduled because one of its witnesses will be out of the country on a prepaid trip that was scheduled before the Office of Administrative Hearings (OAH) set this matter as it is currently scheduled. Student does not oppose the request to add July 22, 2013, as an additional day of hearing.
Dates for hearing are determined by the Administrative Law Judge (ALJ) presiding over the hearing. That ALJ will determine if additional days need to be scheduled in the course of the hearing, and those days will be added as necessary.
Finally, it is troubling that Student attached to his reply, correspondence and emails that appear to be settlement negotiations between the parties. 1 Settlement negotiations are confidential. Although the administrative proceedings conducted by OAH are not subject to the Evidence Code, OAH looks to the Evidence Code for guidance. Evidence Code section 1152 protects communications made in the course of settlement negotiations. The parties are advised that they shall not submit settlement negotiation documents to OAH in the future.
The documents Student submitted to OAH with his reply will be sealed.
ORDERS
1. This matter will be heard as currently scheduled, at 4120 North 1st Street,
Fresno, California 93726, unless otherwise ordered by the ALJ presiding over the hearing.
2. The ALJ presiding over the due process hearing shall order additional hearing
dates, as necessary, during the course of the due process hearing.
3. The parties shall not submit documents to OAH that contain settlement
discussions. Documents that contain these discussions that were previously submitted to OAH shall be sealed.
Dated: July 8, 2013 /s/
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings The parties are engaged in extensive litigation in Fresno County Superior Court involving matters that are related to this consolidated due process case.