Order Following Expedited Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

BERKELEY UNIFIED SCHOOL OAH Case No. 2018120695

DISTRICT,

ORDER FOLLOWING EXPEDITED

v. PREHEARING CONFERENCE

PARENT ON BEHALF OF STUDENT.

On January 18, 2019, a telephonic prehearing conference was held before Administrative Law Judge Tiffany Gilmartin, Office of Administrative Hearings. Jennifer Nix, Attorney at Law, appeared on behalf of Berkeley Unified School District. Parent appeared on behalf of Student. The PHC was recorded.

Based upon discussion with the parties, the ALJ issues the following order:

1. Hearing Dates, Times, and Location. The hearing shall take place on January

29 and 30, 2019, continuing day to day at the discretion of the ALJ. The hearing shall take place at the OAH’s Oakland office located at 1515 Clay Street, Suite 206, Oakland, CA

94612. The hearing shall begin at 9:30 a.m. the first day of the hearing and at 9:00 a.m. all

other days, unless otherwise ordered.

2. Issue and Proposed Resolution. The issues at the due process hearing, and the

proposed resolutions, are listed below.

May Berkeley move Student to a 45-school day Interim Alternative Educational Placement (IAES) at Spectrum Center—Camden Campus, a nonpublic school located in Oakland, California because maintaining Student in his current educational placement is substantially likely to result in injury to Student, other students, and Berkeley’s staff or agents as provided for in 20 U.S.C. § 1415(k)(3)(A) and 34 C.F.R. §300.532(a)? As resolution Berkeley requests an order from OAH that maintaining Student in his current educational placement is substantially likely to result in injury to other students and/or Berkeley’s staff, and therefore Student should be placed in a 45-day alternative placement at Spectrum Center – Camden Campus.

3. Exhibits. Exhibits shall be pre-marked and placed in three-ring exhibit

binders prior to the hearing. The parties shall use numbers to identify exhibits, but shall place the letter “S” or “D” in front of the exhibit to designate if it is a Student or District exhibit (for example, “S-5, S-6, or D-1, D-2”). Each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be Bates-stamped. Each exhibit binder shall contain a detailed table of contents. The parties shall serve their evidence binders on each other in compliance with Education Code section 56505, subdivision (e)(7). At the hearing, each party shall supply an exhibit binder containing its exhibits for use by the ALJ, and a second exhibit binder for use by witnesses. The parties may not serve exhibits on OAH prior to the hearing. In the event of duplicate exhibits, the most legible version will be used.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely exchanged shall not be admitted into evidence at the hearing unless the ALJ rules that it is admissible.

Parent failed to timely submit a prehearing conference statement. Parent may provide Berkeley with a list of proposed exhibits by 2:00 p.m. on Tuesday, January 22, 2019.

4. Witnesses. Each party is responsible for procuring the attendance at hearing

of its own witnesses. Each party shall make witnesses under its control reasonably available. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order. Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement except for good cause shown at the discretion of the ALJ.

The parties are encouraged to review and shorten their witness lists prior to the hearing, bearing in mind that evidence will be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

The parties shall attempt to reach agreement on a witness list for the first day of hearing. Berkeley shall have witnesses available in case agreement on a witness list is not reached. Prior to the commencement of the due process hearing, the ALJ and the parties will discuss the length of time anticipated for direct and cross-examination of each witness and scheduling issues for individual witnesses, and the ALJ will finalize the witness schedule.

Additionally, the parties shall be prepared at the end of each day of hearing to discuss the witnesses for the next day and the time the testimony of each such witness is expected to take.

Parent failed to timely submit a prehearing conference statement. Parent may provide Berkeley with a list of proposed witnesses by 2:00 p.m. on Tuesday, January 22, 2019.

5. Scope of Witness Examination. Each witness shall be called to testify only

once, except for rebuttal purposes, and all parties shall examine the witness on all issues when the witness is first called. 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. The order in which the parties present their cases in chief shall be subordinate to the need for each witness to appear only once.

6. Telephonic Testimony. No telephonic testimony is anticipated by either party.

Whether a witness may appear by telephone is a matter within the discretion of the ALJ.

(Cal. Code Regs., tit. 5, § 3082, subd. (g).) Any party seeking to present a witness by telephone shall move in advance for leave to do so. The proponent of the witness shall provide the proposed witness with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing; and shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings. No witness will be heard by telephone unless all these requirements have been fulfilled. The parties did not ask to have any witness testify telephonically.

7. Electronic Recording of Hearing.

a. Audio Recording. Berkeley’s motion to make an audio recording of

the hearing is granted, subject to the following conditions: 1) that OAH’s recording is the only official recording; 2) that the recorder will be turned on and off at the same time as the ALJ’s recorder, in order to avoid recording conversations while off the record; and 3) that operation of the party’s recording mechanism will not be allowed to delay the hearing. If Parent desires to make such a recording, Parent shall move for leave to do so in advance of the hearing, and the same conditions shall apply.

b. Video Recording. No party, witness or anyone else present may

make any video recording of any part of the proceedings. Any person doing so shall be subject to sanctions.

8. Order of Presentation of Evidence. In an administrative proceeding, the

burden of proof is ordinarily on the party requesting the hearing. (Schaffer v. Weast (2005)

546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, Berkeley is the petitioning party, and thus, bears the burden of proof. Accordingly, Berkeley shall present its case-in- chief, followed by Parent.

9. Motions. Mother asked that Father be dismissed as a party from the

complaint. Mother can provide a copy of a Superior Court order indicating Mother is the sole education rights holder to Berkeley at the start of the expedited hearing on January 22, 2019.

Mother’s request to continue the expedited matter was also denied. There is no provision in the Individuals with Disabilities Education Act that permits an expedited hearing to be continued. No other pretrial motions are pending or contemplated. Any motion filed after this date shall be supported by a declaration establishing good cause as to why the motion was not made three business days before the PHC.

10. Compensatory Education/Reimbursement. Any party seeking reimbursement

of expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of expenditures, as part of its case in chief. A party seeking compensatory education should provide evidence regarding the type, amount, duration, and need for any requested compensatory education.

11. Stipulations. Stipulations to pertinent facts, contentions or resolutions are

encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.

12. Conduct of Counsel and Hearing Room Decorum. Counsel, all parties, and all

witnesses shall conduct themselves in a professional and courteous manner at all times.

Cellular phones, pagers, recorders, and other noisemaking electronic devices shall be shut off or set to vibrate during the hearing unless permission to the contrary is obtained from the

ALJ.

13. Special Needs and Accommodations.

A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the mediation or hearing may contact the assigned calendar staff, identified in the scheduling order, at (916) 263-0880, as soon as the need is known.

Additional information concerning requests for reasonable accommodation is available on OAH’s website at https://www.dgs.ca.gov/oah/Home/Accessibility.aspx.

14. Hearing Closed to the Public. The hearing will be closed to the public.

15. Settlement. The parties are encouraged to continue working together

to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.

IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED

AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A

VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE

PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR

PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE

PARTIES SHOULD SIMULTANEOUSLY EMAIL THE SIGNATURE PAGE OF THE

SIGNED AGREEMENT WITH A LETTER WITHDRAWING THE CASE TO THE OAH

AT https://www.applications.dgsapps.dgs.ca.gov/oah/oahsftweb. IF THE SETTLEMENT

AGREEMENT IS SUBJECT TO BOARD APPROVAL, THE LETTER

ACCOMPANYING THE SIGNATURE PAGE OF THE AGREEMENT SHALL

CONTAIN THE DATE OF THE MEETING WHEN THE BOARD WILL CONSIDER

THE AGREEMENT.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.

16. Failure to comply with this order may result in the exclusion of evidence or

other sanctions.

IT IS SO ORDERED.

DATE: January 18, 2019

TIFFANY GILMARTIN

Administrative Law Judge Office of Administrative Hearings