California OAH special education order · February 8, 2019
Order Disclosing Student's Ex Parte Communication to Upland Unified School District and Notice of No Action
OAH Case No. 2018120181 · ALJ Peter Paul Castillo
OAH disclosed Parent's unserved letter seeking removal of the assigned ALJ as an improper ex parte communication and took no action, because it was not served on the District and was not a formal motion.
This case went to decision
Upland Unified School District v. Student: Upland Unified may not reassess student without consent because its assessment plan was not in Parent's native Spanish. (2019)
Summary
Parent sent OAH a letter complaining about the assigned ALJ, Alexa Hohensee, and asking that she be removed and that earlier rulings be revisited. Parent did not send a copy to Upland's attorney. OAH treated the letter as a prohibited ex parte communication, disclosed it to Upland, and made it part of the record. OAH took no action on the letter because prior orders can only be set aside on a formal motion served on the other side, and it reminded Parent to serve every filing on Upland's counsel.
Why it matters
Parents representing themselves must serve every document they send to OAH on the other side's attorney at the same time. Unserved letters asking to remove a judge or change rulings will be disclosed as ex parte communications and will not be acted on; a formal, properly served motion is required.
Key authority cited
- Cal. Code Regs., tit. 5, § 3084
People named in the order
- Alexa Hohensee, Administrative Law Judge assigned to hear the matter
- Peter Paul Castillo, Presiding Administrative Law Judge (signed order)
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:
UPLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2018120181 v. ORDER DISCLOSING STUDENT’S
EX PARTE COMMUNICATION TO
PARENT ON BEHALF OF STUDENT. UPLAND UNIFIED SCHOOL
DISTRICT AND NOTICE OF NO
ACTION
On February 7, 2019, the Office of Administrative Hearings received from Student’s parent a document purporting to be a complaint against the Administrative Law Judge assigned to hear this matter, currently scheduled for hearing on February 21, 2019. It does not appear that Parent provided Upland Unified School District’s attorney with a copy of this request, which is an attempt to have Administrative Law Judge Alexa Hohensee removed from hearing this matter based on rulings that she and other Administrative Law Judges have made in this matter.1 The February 7, 2019 letter filed by Parent on behalf of Student is deemed an ex parte communication during the pendency of the proceedings in the above captioned case.
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 OAH with the expectation that someone from OAH would remove Administrative Law Judge Hohensee from hearing this matter and to revisit prior orders issued in this matter. Further the reader of Student’s request could include an Administrative Law Judge assigned to hear this matter, who would read the document, and intended to affect the conduct of this proceeding. As such, it must be Student has properly served Upland’s attorney with other documents filed in this case.
disclosed to all parties, and made a part of the record. This Notice therefore discloses the communication to Upland. Further, OAH cannot set aside its prior orders unless Student makes a formal motion, which is served upon Upland’s attorney so Upland may submit a response.
The February 7, 2019 letter shall be attached to this Notice and shall be made part of the record in this matter. The undersigned has taken no action based upon the allegations contained in February 7, 2019 letter, and OAH shall take no action in response to the letter as Parent did not serve a copy of the letter on Upland’s attorney, other than to remind Parent that a copy of any document submitted to OAH must also be provided to Upland’s counsel at the same time.
IT IS SO ORDERED.
DATE: February 8, 2019
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings