California OAH special education order · May 21, 2013

Order Following Continued Prehearing Conference

OAH Case No. 2013040872 · ALJ Rebecca Freie

OAH declined to exclude Parent's witnesses in advance. The hearing ALJ decides who testifies, and Aspire must make its employees and contracted staff available without subpoenas or witness fees.

Denied Evidence and witnesses

This case went to decision

Aspire Public Schools v. Student: Aspire Public Schools may not implement an IEP written at a meeting held without parents after Mother asked to reschedule. (2013)

Summary

Aspire moved to exclude witnesses it considered unnecessary and to require Parent to subpoena them. At a continued prehearing conference, ALJ Rebecca Freie ruled that the ALJ conducting the hearing decides whether a witness may testify, based on offers of proof about relevance and redundancy. Aspire employees and people working at Aspire under contract must be made available to testify without a subpoena or witness fee. A SELPA employee must be subpoenaed, but the fee is limited to $35 per day plus $0.20 per mile under Government Code section 68093, not the $150 Aspire cited under section 68096.1.

Why it matters

A district cannot use a pretrial motion to block a parent's witnesses or make the parent subpoena and pay district staff. Parents should know that witness fees for agency employees in OAH hearings are limited to the modest statutory rate.

Key authority cited

Gov. Code, § 68093
Gov. Code, § 68096.1

People named in the order

Sue Shalvey, Representative for Aspire
Meghann Cazalle, Representative for Aspire
Margaret Broussard, ALJ who conducted the original prehearing conference

Topics

witnesses motion to exclude subpoena witness fees self-represented parent charter school

Order details

OAH case number: 2013040872
Order date: May 21, 2013
Order type: Evidence and witnesses
Ruling: Denied
Administrative law judge: Rebecca Freie
Moving party: Aspire Central Valley Regional Office
Case filed by: District
Education agency: Aspire Central Valley Regional Office
Student's counsel: Parent (self-represented)
District's counsel: Sue Shalvey; Meghann Cazalle
Official order: OAH PDF

Orders in this case

May 9, 2013: Short continuance granted; hearing on District's IEP-implementation case reset to May 22, 2013. (PDF)
May 17, 2013: Telephonic continued prehearing conference set for May 20, 2013, at 3:00 p.m. (PDF)
May 21, 2013: Order Following Continued Prehearing Conference
May 24, 2013: Amended order corrects hearing location; hearing set June 4–7, 2013, in Stockton. (PDF)
May 24, 2013: Hearing set for June 4–7, 2013, at San Joaquin County Office of Education in Stockton. (PDF)
June 12, 2013: Written closing arguments ordered by June 18, 2013, limited to 20 pages. (PDF)
Decision (2013-07-09)

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 Matter of:

ASPIRE CENTRAL VALLEY REGIONAL OAH CASE NO. 2013040872

OFFICE,

ORDER FOLLOWING CONTINUED

v. PREHEARING CONFERENCE

PARENT ON BEHALF OF STUDENT.

On May 20, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Rebecca Freie, Office of Administrative Hearings (OAH). Ms. Sue Shalvey and Ms. Meghann Cazalle appeared on behalf of Aspire Central Valley Regional Office (Aspire). Parent appeared on behalf Student and Parents (Student).

The PHC was recorded. This PHC was held so that the parties could be given additional instructions concerning the due process hearing that is scheduled to begin on May 22, 2013, and to rule on Aspire’s motion to exclude witnesses that was recently filed with OAH.

Based on discussion of the parties, the ALJ issues the following order:

1. Hearing Dates, Times, and Location. The hearing dates and location

indicated on the original order following PHC conducted by ALJ Margaret Broussard are confirmed. However, on May 22, 2013, the hearing shall end at 4:00 p.m.

At a minimum for the hearing, the room shall have separate tables capable of being moved into a courtroom configuration, as follows: (1) one table for Student’s representatives;

(2) one table for the District’s representatives; (3) one table for the ALJ with a nearby electrical outlet; and (4) one witness table. The District shall ensure that all parties and the ALJ have drinking water available to them, and there shall be a box of tissues on the witness table.

2. Witnesses. On May 16, 2013, Aspire filed a motion to exclude witnesses. In

essence, Aspire asked that witnesses who Parent wished to call which Aspire deemed to be unnecessary be excluded, and that Parent be required to subpoena those witnesses. However, the ALJ conducting a due process hearing will make the determination as to whether specific witnesses a party wishes to call should be allowed to testify.

At the PHC conducted by ALJ Broussard, the parties were ordered to make witnesses under their control available for the hearing. This means that employees of Aspire may be called as witnesses by Parent, without the need to subpoena them as witnesses, or pay witness fees. In addition, persons who work at Aspire pursuant to an agreement with a school district or other agency may also be called as witnesses by Parent, without the need to subpoena them as witnesses, or pay witness fees.

Parent indicated that she may call an employee of the special education local planning area (SELPA). This person will need to be subpoenaed by Parent. However, if this witness demands a witness fee, it may be $35.00 per day, plus $.20 per mile, as provided by Government Code section 68093. The $150.00 fee quoted by the District in its motion pursuant to Government Code 68096.1 is not applicable in these proceedings.

In its motion to exclude witnesses, Aspire listed 10 witnesses it intends to call, with a tentative schedule. At the beginning of the hearing the parties shall be prepared to give a time estimate for direct and cross examination for each of those witnesses. When Aspire has completed the presentation of its case, Parent shall be prepared to make an offer of proof as to each witness she intends to call, and the ALJ will determine whether that witness is likely to provide relevant evidence that is not redundant or duplicative. If any of these witnesses are employed at Aspire, or performing services at Aspire pursuant to a contract, Aspire shall make these witnesses available to testify.

Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

Prior to the commencement of the due process hearing, the ALJ and the parties will discuss the length of time anticipated for cross-examination of each witness and scheduling issues for individual witnesses, and the ALJ will finalize the witness schedule. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.

3. Scope of Witness Examination. If Parent intended to call a witness that the

District calls when presenting its case in chief, Parent shall be permitted to expand the cross examination of that witness to issues Parent wishes to present, subject to the ALJ’s determination that those issues are relevant. However, after the first direct and cross- examinations, each party shall be limited in examining the witness to only those matters raised in the immediately preceding examination.

IT IS SO ORDERED.

Dated: May 21, 2013 /s/

REBECCA FREIE

Administrative Law Judge Office of Administrative Hearings