Order Setting Due Process Hearing and Prehearing Status Conference by Videoconference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENT ON BEHALF OF STUDENT,

v.

BELLFLOWER UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2019060636

ORDER

SETTING DUE PROCESS HEARING AND PREHEARING

STATUS CONFERENCE BY VIDEOCONFERENCE

MAY 1, 2020

On May 1, 2020, Administrative Law Judge Judith L. Pasewark, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ; the Office of Administrative Hearings is called OAH; and a prehearing conference is called a PHC.

Andrew Greer, Attorney at Law, appeared on behalf of Student. Marcia Brady, Attorney at Law, appeared on behalf of Bellflower Unified School District. The Trial Setting Conference was not recorded. Based upon discussion with the parties, the ALJ issues the following order:

HEARING DATES, TIMES, AND LOCATION

PREHEARING STATUS CONFERENCE AND DUE PROCESS HEARING

A Prehearing Status Conference is scheduled for 3:00 PM on June 15, 2020, to discuss technical issues regarding witness testimony.

The due process hearing will resume on June 17 through June 18, 2020, and continue day to day at the discretion of the ALJ. The hearing shall begin at 9:30 AM each day and generally end at 3:30 PM, unless otherwise ordered. The parties anticipate it will take two days to complete the hearing. Additional hearing dates will be discussed with the ALJ during the hearing. Good cause exists to delay the hearing until June 17, 2020, to schedule and coordinate the testimony of expert witnesses.

HEARING LOCATION

Bellflower Unified School District’s objection to conducting the due process hearing by videoconferencing is overruled, and continuance of the remainder of the hearing to a date certain available for physical attendance at hearing is denied.

OAH is authorized to conduct due process hearings by videoconference or telephone. (5 C.C.R. § 3082, subd. (g).) Based on state and federal guidance to address safety procedures due to the novel coronavirus, COVID-19, OAH will conduct the due process hearing by videoconference using the Microsoft Teams application. Unless otherwise ordered, participants are required to appear by videoconference using a webcam and Microsoft Teams.

The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses, if necessary, to ensure that the witnesses will appear to testify. A party’s failure to notify or subpoena a witness to testify will not be considered a showing good cause to continue the hearing.

EXHIBITS

Each party shall file one copy of any additional exhibits with OAH at 2349 Gateway Oaks Drive, Suite 200, Sacramento, CA 95833, by noon on the Friday before the first day of hearing. The parties shall also upload their exhibits, including those already provided to the ALJ, electronically according to the instructions provided.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely exchanged as required by Education Code section 56505, subdivision (e)(7) shall not be admitted into evidence at the hearing unless the ALJ rules that it is admissible.

PAPER COPIES OF EXHIBITS

The paper copies of exhibits shall have previously been exchanged between the parties, and the ALJ has paper copies of the exhibit binders. Therefore, the parties need not send an additional paper copy to OAH in Sacramento.

ELECTRONIC COPIES OF EXHIBITS

Electronic copies of the exhibits filed with OAH shall be filed by noon on the Friday before the first day of hearing. The parties may file their electronic copies of the exhibits prior to the Prehearing Meeting on June 15, 2020. The electronic copies must be an exact duplicate of the paper copies filed with OAH. OAH will issue a separate Order Setting Procedures for Filing Exhibits Electronically that includes instructions for how to file exhibits electronically.

WITNESSES

The parties shall serve their list of witnesses on each other in compliance with Education Code section 56505. No party shall be permitted to call any witnesses not timely disclosed except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

Parties are responsible for ensuring that all participants are familiar with and follow the Instructions for Joining the Online Due Process Hearing provided with this Order. Participants that have not previously used the MS Teams platform, may also find informative videos available like the one at this link from Microsoft:

https://support.office.com/en-us/article/join-a-teams-meeting-078e9868-f1aa-4414- 8bb9-ee88e9236ee4.

The parties are responsible for ensuring that witnesses join the virtual hearing room at the designated date and time to testify. Witnesses are required to join the due process hearing by computer and appear by videoconference unless they do not have the necessary computer equipment. In that situation, the ALJ may permit the witnesses to appear by audio only or by telephone. “Audio only” means using a computer without webcam. Witness ability to attend the hearing by videoconference shall be discussed at the start of the hearing.

Parties are responsible for producing their own witnesses unless otherwise ordered by the ALJ. Parties shall make witnesses under their control reasonably available. The parties must schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order. Neither party will be permitted to call any witnesses not timely disclosed except for good cause shown, and at the discretion of the ALJ.

The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony. Education Code, section 56505.1, subd. (h), empowers the ALJ to set a reasonable limit on the length of the hearing after consideration of four factors. The first two factors are the issues to be heard and the complexity of facts to be proven. The second two factors are the ability of the parties or their representatives to present their respective cases and the parties’ estimates of the time needed to present their cases.

MEET AND CONFER

The parties are encouraged to review and shorten their witness and exhibit lists before the hearing. Evidence may be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

The parties are ordered to meet and confer prior to June 15, 2020, to discuss scheduling witnesses and how much time each witness will take. The parties shall discuss any issues pertaining to the parties, counsel and witnesses appearing by videoconference for hearing and electronically viewing exhibits during the hearing. The parties should attempt to eliminate duplicate exhibits from their hearing exhibits. The parties shall discuss whether they can produce a written stipulation as to pertinent facts, contentions, resolutions and authenticity and admissibility of documents to shorten the length of time needed for the hearing.

As part of the meet and confer process, Student shall inform Bellflower Unified School District which proposed witnesses are district employees. Bellflower Unified School District shall also identify the witnesses on the respective witness lists that require a subpoena, and agree to accept service or provide Student with the witness’ most recent contact information.

UPDATED PARTICIPANT INFORMATION FORM

Both parties shall have an ongoing obligation to ensure that the information on the Participant Information Form filed with OAH is current, and shall file an updated Form as necessary. The ongoing obligation to ensure that the Participant Information Form filed with OAH is current does not change the parties’ statutory obligation to timely disclose their witnesses to the other party(s) at least five business days prior to hearing. The parties must file an updated Participant Information Form to inform OAH of any changes, additions, or deletions, and include the required information no later than 5:00 PM at least two business days before the first day of hearing.

Any contact information provided by District shall be used by Student for the limited purpose of issuing subpoenas or for contacting the witness(es) for purposes of attending the hearing and shall not be disclosed to any other person(s).

EVIDENCE PRESENTATION

WITNESS LISTS

The parties must provide a joint proposed witness list to the ALJ on the first day of hearing. The list should include the first and last name of the witness, which party(s)

are calling the witness to testify and their contact information, and include dates and time estimates of each witness’ expected testimony.

At the beginning of the hearing, the ALJ and the parties will discuss the length of time anticipated for each witness and scheduling issues for individual witnesses. The ALJ will finalize the witness schedule. Parties must be prepared at the end of each day to discuss the witnesses to be presented the next day and the estimated time for the testimony each witness.

AUDIO ONLY OR TELEPHONIC TESTIMONY

Whether a witness may appear by audio only or telephone instead of videoconference 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 audio only or telephone shall request permission to do so before the hearing. Any party seeking to present a witness who cannot access exhibits electronically must inform the ALJ at the beginning of the hearing.

ELECTRONIC RECORDINGS

AUDIO RECORDING

Each party may make an audio recording of the hearing. Permission to make an audio recording is subject to the ALJ’s discretion and based upon certain conditions.

The conditions are:

• the OAH recording is the only official recording;

• participants shall not use Teams to record the hearing;

• the parties shall turn their recording device on and off at the same time

that the ALJ is on and off the record to avoid recording conversations while off the record;

• operation of the party’s recording mechanism will not be allowed to delay

the hearing;

• a parties’ recording may not be given, provided or played to a witness, or

potential witness; and

• the recording is subject to the same confidentiality as the due process

hearing;

• use of the chat function in the videoconference is prohibited and shall not

be part of the official record;

• participants shall not take screenshots of the videoconference, or share or

VIDEO RECORDING

No party, witness or anyone else may make any video recording of any part of the proceedings or stream live through any means.

STIPULATIONS

Stipulations to pertinent facts, contentions, resolutions and authenticity and admissibility of documents are encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in writing prior to the start of the hearing.

CONDUCT OF COUNSEL AND HEARING ROOM DECORUM

All participants to the videoconference should observe the same decorum as in an in-person due process hearing. Counsel, all parties, and all witnesses must conduct themselves in a professional and courteous manner at all times. Cellular phones, telephones and computer notifications must be shut off or set to silent during the hearing unless the ALJ grants permission otherwise. Counsel, parties, and witnesses shall appear from a private location, unless otherwise ordered. Participants should take reasonable efforts to minimize background noise maintain adequate room lighting. Use of virtual background images are at the discretion of the ALJ. Witnesses are prohibited from reading exhibits, documents, notes, text messages, telephones or computers while testifying, unless permitted to do so by the ALJ. Parties, counsel and witnesses are prohibited from passing notes to, exchanging electronic messages with, or signaling the witness in any way while the witness is testifying.

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 if 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. At the same time, the parties should send the signature page of the signed agreement or a letter withdrawing the case to OAH at https://www.applications.dgs.ca.gov/oah/oahsftweb.

If a full and final written settlement agreement is reached after 4:00 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.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received and processed 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 before the hearing.

If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement, the parties shall provide the date of the next board meeting. The hearing dates will not be cancelled without this information.

FAILURE TO COMPLY

The failure to comply with this Order may result in the exclusion of evidence or other sanctions.

IT IS SO ORDERED.

Judith Pasewark Administrative Law Judge Office of Administrative Hearings