California OAH special education order · May 26, 2017

Notice of Ex Parte Communication

OAH Case No. 2017021090 · ALJ June R. Lehrman

OAH disclosed Parent's letter complaining about the ALJ as a prohibited ex parte communication, made it part of the record, and treated it as a motion to disqualify the ALJ for bias.

Ruling Other orders

This case went to decision

Upland Unified School District v. Student: Upland Unified may reassess a fourth grader without parental consent; parent cannot limit test choice or timing. (2017)

Summary

Parent sent a letter to OAH's Presiding Judge and state officials. The letter complained that ALJ Tara Doss favored District during the prehearing conference and that Parent was not receiving due process. Because the letter was sent while the case was pending and apparently was not shared with District, OAH deemed it an ex parte communication under California Code of Regulations, title 5, section 3084, disclosed it to District, and attached it to the record. OAH treated the letter as a motion to disqualify ALJ Doss for bias, to be ruled on later, and ordered District to respond by noon on May 30, 2017, so the May 31 hearing would not be delayed.

Why it matters

Parents who are concerned about an ALJ's fairness should not send private letters to OAH supervisors or state officials while a case is pending. That is an ex parte communication: it will be disclosed to the other side and placed in the record. Concerns about bias should be raised through a formal motion to disqualify that is served on all parties.

Key authority cited

  • Cal. Code Regs., tit. 5, § 3084, subd. (a)
  • Cal. Code Regs., tit. 5, § 3084, subds. (c)-(e)

People named in the order

  • Tara Doss, Administrative Law Judge (hearing judge)
  • Margaret Gibson, OAH Presiding Judge (letter addressee)
  • Bob Varma, OAH Division Presiding Judge
  • Daniel Kim, Director, Department of General Services
  • Marybel Batjer, Secretary, Government Operations Agency
  • Dave Palmer, Non-attorney representative for Student

Topics

ex parte communication judicial bias disqualification self-represented parent prehearing conference

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:

UPLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2017021090 v. NOTICE OF EX PARTE

COMMUNICATION

PARENT ON BEHALF OF STUDENT.

On May 22, 2017, a telephonic prehearing conference was held before Administrative Law Judge Tara Doss, Office of Administrative Hearings. Jonathan Read and Maryam Rastegar, Attorneys at Law, appeared on behalf of District. Dave Palmer, a non-attorney representative, and Parent appeared on behalf of Student. The prehearing conference was recorded. The Prehearing Conference Order was issued on May 23, 2017. The hearing is scheduled to commence on May 31, 2017, before ALJ Doss.

On May 25, 2017, the Office of Administrative Hearings received a letter from Parent. The letter was addressed to Presiding Judge Margaret Gibson, and was copied to Division Presiding Judge Bob Varma, Director of the Department of General Services Daniel Kim, and Secretary of the Government Operations Agency Marybel Batjer. OAH has no indication that it was also provided to District.

OAH staff forwarded the letter to the undersigned Presiding Judge as the direct-line Supervisor to ALJ Doss.

The letter set out concerns that Parent had regarding the manner in which ALJ Doss conducted the prehearing conference. It asserted that favorable treatment was being given to District in its presentation of the case and that Parent is concerned that she is not receiving due process.

The letter from Parent, directed to OAH, is deemed an ex parte communication during the pendency of these proceedings.

Ex parte communications are not permitted while a due process proceeding is pending. “[W]hile special education due process hearing proceedings are pending there shall be no communication, direct or indirect, regarding any issue in the proceeding, to a hearing officer from an employee or representative of a party or from an interested person unless the communication is made on the record at the hearing.” (Cal. Code. Regs., tit. 5, § 3084, subd.

(a).) When an ex parte communication is received, the administrative law judge presiding over the matter must disclose the communication to all parties, make it part of the record, and allow the parties an opportunity to address the matter within 10 days of receipt of the notification of communication. (Cal. Code. Regs., tit. 5, § 3084, subds. (c)-(e).)

Here, the ex parte communication was made to an OAH Presiding ALJ rather than to ALJ Doss. It is nonetheless, an ex parte communication during the pendency of these proceedings. As such, it must be disclosed to all parties, made a part of the record, and all parties must be allowed an opportunity to address the matter within 10 days of receipt of the notification of communication. This Notice therefore discloses the communication to District. The letter shall be attached to this Notice and shall be made part of the record in this matter.

Parent’s letter is treated as a Motion for Disqualification of ALJ Doss as the hearing judge, based upon allegations of bias, and will be ruled on in due course. To allow the District’s response to be considered and the Motion for Disqualification to be ruled upon, without delaying the hearing that is scheduled to commence on May 31, 2017, District’s response is ordered to be filed by 12:00 PM on Tuesday May 30, 2017.

DATE: May 26, 2017

JUNE R. LEHRMAN

Presiding Administrative Law Judge Office of Administrative Hearings