California OAH special education order · May 18, 2015
Order Following Pre-Hearing Conference in OAH Case Number 2015040452
OAH Case No. 2015050532, 2015040452 · ALJ Cole Dalton
OAH denied Student's request for telephonic testimony by a local private occupational therapist but granted witness exclusion and party audiotaping of the hearing, after consolidating the cases without District opposition.
Summary
District did not oppose consolidation, so OAH merged Student's and District's cases, which made most of the prehearing conference in District's case moot. OAH kept several rulings for the consolidated case. It denied, without prejudice, Student's request to have a private occupational therapist testify by phone, because the therapist was in Whittier and the only reason given was time away from office visits. It also denied Student's request to audiotape the prehearing conference, since OAH's recording is the official record. It granted Student's motion to exclude witnesses other than Parents and a District representative, and it granted the joint request to audiotape the hearing under seven confidentiality and use conditions.
Why it matters
A request for telephonic testimony needs a real reason beyond the witness's inconvenience, especially when the witness is local. Parties can audiotape a hearing, but only under strict limits on use, confidentiality, and destruction of the recording.
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. 2015050532 (Primary)
v.
SOUTH WHITTIER ELEMENTARY
SCHOOL DIST,
SOUTH WHITTIER ELEMENTARY OAH Case No. 2015040452
SCHOOL DIST,
v.
ORDER FOLLOWING PRE-HEARING
PARENT ON BEHALF OF STUDENT. CONFERENCE IN OAH CASE
NUMBER 2015040452
On May 15, 2015, Administrative Law Judge Cole Dalton, Office of Administrative Hearings held a telephonic prehearing conference in OAH Case Number 2015040452.
Margot Stevens and Jennifer Guze Campbell, Attorneys at Law, appeared on behalf of Student. Darin Barber, Attorney at Law, appeared on behalf of District. The PHC was recorded.
On May 15, 2015, after the PHC, Student filed a complaint and motion to consolidate. District reported during the PHC that it would not oppose consolidation. The undersigned therefore granted Student’s motion on May 15, 2015, consolidated the two cases, and continued the dates in the consolidated cases to the dates set in Student’s original scheduling order. As a result, the PHC in District’s case became moot, except for the following orders made during District’s PHC, which shall apply to the consolidated matters.
1. Motions.
a) The following motions were denied without prejudice and will be reconsidered during the PHC in the consolidated matter:
i) Telephonic Testimony. During the PHC, Student moved to have the private occupational therapist testify telephonically. The occupational therapist is located in Whittier, and, other than taking time away from office visits, no reason was provided for the need to have the witness testify telephonically. The motion is denied, without prejudice to renewing it at the continued PHC.
ii. Audiotaping PHC. Student’s request to audiotape the PHC is denied without prejudice to Student renewing it at the continued PHC for reasons other than to create “a complete record.” The OAH’s recording is the official recording of the proceedings.
b. The following motions were granted, but may be reconsidered at the PHC for
the consolidated matters based on a showing of good cause to reconsider.
i. Exclusion of witnesses. Student’s motion to exclude all witnesses from the hearing room, other than Student’s parents is granted, with the exception that the District may have its representative present throughout the hearing, who may also be on the witness list, regardless of the order of testimony.
ii. Audiotaping hearing. Student’s request to audiotape the hearing was joined by District. The request is granted, subject to the following conditions: (1) such recording shall only be used for review and preparation; (2) the parties shall turn the recording devices on and off at the same time that the ALJ is on and off the record; (3) the parties shall not play any part of the recording for a prospective witness; (4) the audio recording shall remain confidential and shall only be used for purposes of the hearing; (5) the hearing will not be stopped or interrupted for the parties to change tapes, batteries or any other reason created by the use of the recording devices; (6) the parties shall not use the recording in any subsequent due process hearing; (7) the parties shall dispose of the unofficial recordings when this matter, as well as any appeals, is concluded.
2. Continued PHC. All other routine matters discussed during the PHC in District’s
case are moot and will be reconsidered during the PHC in the consolidated matter.
IT IS SO ORDERED.
DATE: May 18, 2015
/ S/
COLE DALTON
Administrative Law Judge Office of Administrative Hearings