California OAH special education order · December 13, 2019
Order Granting Request for Telephonic Testimony and Ordering All Parties to Appear
OAH Case No. 2019100433 · ALJ Tiffany Gilmartin
OAH let Father testify by telephone because of his recent health issues, and denied the districts' request to continue the hearing so he could testify in person.
Summary
Student asked OAH to let Father, the last witness in the due process hearing, testify by telephone because of his ongoing health issues. Pleasanton and Contra Costa jointly opposed. They argued telephone testimony would hurt their ability to challenge his credibility and to present rebuttal documents without disclosing them in advance. In the alternative, they asked for a brief continuance so he could appear in person. The ALJ granted the request under her discretion over telephone testimony and denied the continuance. She required Student's counsel to make sure Father has every party's evidence binders and to set up a way for the districts to deliver rebuttal documents to him during his testimony.
Why it matters
Parents with health problems can ask to testify by phone, and OAH may allow it over objection. The party asking should be ready to handle logistics such as getting evidence binders and rebuttal documents to the witness. The other side can still ask for in-person testimony later if specific problems come up.
Key authority cited
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
- Cal. Rules of Court, rule 3.60(g)
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,
v.
PLEASANTON UNIFIED SCHOOL DISTRICT AND CONTRA COSTA
COUNTY OFFICE OF EDUCATION.
OAH CASE NUMBER 2019100433
ORDER GRANTING REQUEST FOR TELEPHONIC TESTIMONY AND
ORDERING ALL PARTIES TO APPEAR
On December 12, 2019, Student filed with the Office of Administrative Hearings a request to allow Father to testify telephonically in the above due process hearing.
Pleasanton and Contra Costa County Office of Education filed a joint opposition to Student’s request for telephonic testimony, and in the alternative, a brief continuance of this matter to allow Father to testify in person. Pleasanton and Contra Costa argue allowing Father to testify telephonically would impede their ability to challenge the credibility of his behavior and present rebuttal documents without needing to disclose them prior to testimony.
Student’s request for telephonic testimony is based on the on-going health issues Father has recently incurred. Student requests Father be allowed to testify telephonically in this matter. Father is the last witness to testify in the due process hearing.
Whether a witness may appear by telephone is a matter within the discretion of the ALJ. (Cal. Code Regs., tit 5, § 3082, subd. (g).) Student’s motion to allow Father to testify telephonically is granted. Counsel for Student is responsible for ensuring Father has access to the evidence binders of all parties. Counsel for Student is further responsible for arranging a mechanism for Pleasanton and Contra Costa to deliver rebuttal documents to Father as the testimony occurs. The ALJ will seek confirmation of the delivery method at the beginning of the reconvened hearing.
Pleasanton’s and Contra Costa’s alternative request for continuance is denied. All parties will appear at 9:30 a.m. on Monday at the Pleasanton District Offices. Pleasanton will ensure there is a telephone with speaker phone capability available in the room for Father to be contacted. Nothing in this order will preclude Father from appearing in person on Monday.
Respondents are not precluded from requesting further in-person testimony of Father to be scheduled on a different date should specific issues regarding telephonic testimony arise. (Cal. Rules of Court, rule 3.60(g)) The ALJ retains discretion to continue the matter and order in person testimony should she deem it necessary.
IT IS SO ORDERED.
DATED: December 13, 2019 Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings