California OAH special education order · April 29, 2016
Order Vacating Order to Show Cause
OAH Case No. 2015120777 · ALJ Dena Coggins
OAH vacated an order to show cause against Student's attorney for missing a prehearing conference, accepting her calendaring-error explanation but warning that a repeat could lead to cost-shifting.
Summary
Student's attorney, Barbara Fielden, could not be reached for a scheduled telephonic prehearing conference, so the ALJ did not hold it. OAH then issued an order to show cause on its own motion, asking her to explain her absence. At the April 29, 2016 hearing, she explained that a calendaring error caused her to miss the conference and accepted responsibility. OAH vacated the order to show cause without imposing sanctions, but warned that if it happens again it may shift costs to her, and kept the June 15, 2016 status conference on calendar.
Why it matters
Attorneys who miss OAH conferences can face an order to show cause and possible cost-shifting, even when the cause is an honest calendaring mistake. A credible explanation and acceptance of responsibility may avoid sanctions the first time, but OAH may not be lenient again.
People named in the order
- Barbara Fielden, Student's attorney
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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2015120777 v. ORDER VACATING ORDER TO
SHOW CAUSE
SAN JOSE UNIFIED SCHOOL DISTRICT
AND SANTA CLARA COUNTY OFFICE
OF EDUCATION.
On April 22, 2016, Administrative Law Judge Dena Coggins, Office of Administrative Hearings, attempted to convene the scheduled telephonic prehearing conference in this matter. The undersigned ALJ attempted to reach Barbara Fielden, Student’s attorney, at the telephone numbers listed on the pleadings. Ms. Fielden could not be reached despite multiple attempts to reach her. Counsel for San Jose Unified School District and Santa Clara County Office of Education was available for the PHC. The ALJ did not convene the PHC on April 22, 2016 because of Ms. Fielden’s unavailability.
On April 26, 2016, the Office of Administrative Hearings issued an order to show cause for Ms. Fielden to establish why she failed to participate in the scheduled PHC and advance the case for hearing. A telephonic hearing on the order to show case was set for April 29, 2016.
An ALJ has the duty and responsibility to control due process proceedings under the Individuals with Disabilities Education Act similar to those in a civil or criminal action before other tribunals. Counsel appearing before OAH should be aware of OAH’s policies regarding notification of settlements and requests for continuances, as well as the obligation of counsel to appear for all calendared matters. These procedures are in place to ensure that cases are processed in a timely manner. The procedures are designed to protect the rights of all parties. When the procedures are not followed, the impact upon OAH and the parties’ rights can be significant. Ms. Fielden’s failure to appear resulted in wasted time and resources not only for this tribunal but for San Jose and Santa Clara as well.
On April 29, 2016, Ms. Fielden and counsel for San Jose and Santa Clara appeared for the hearing on the order to show cause. Ms. Fielden adequately explained her calendaring error, which resulted in her non-appearance at the PHC. Although Ms. Fielden genuinely accepts responsibility for not appearing at the PHC, such conduct will not be tolerated in the future. Ms. Fielden is hereby on notice that if such conduct occurs again, OAH may entertain shifting costs to her. The order to show cause is vacated. The status conference, set for June 15, 2016, will remain on calendar.
IT IS SO ORDERED.
DATE: April 29, 2016
DENA COGGINS
Administrative Law Judge Office of Administrative Hearings