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     DIVISION 3.  EXECUTIVE DEPARTMENT                                          
     PART 1.  STATE DEPARTMENTS AND AGENCIES                                   
      CHAPTER 3.5.  ADMINISTRATIVE REGULATIONS AND RULEMAKING                  
       Article 1.  General ...................................... 11340-11340.7
       Article 2.  Rules and Regulations ........................ 11342-11342.4
       Article 3.  Filing and Publication ....................... 11343-11343.8
       Article 4.  The California Administrative Register and                  
                   Code ......................................... 11344-11344.9
       Article 5.  Public Participation:  Procedure for Adoption               
                   of Regulations ............................... 11346-11347.3
       Article 6.  Review of Proposed Regulations ............... 11349-11349.6
       Article 7.  Review of Existing Regulations ............. 11349.7-11349.9
       Article 8.  Judicial Review .............................. 11350-11350.3
       Article 8.  Exemptions                                                  
       Article 9.  Special Procedures ............................. 11351-11359
      CHAPTER 4.  OFFICE OF ADMINISTRATIVE HEARINGS                            
       Article 1.  General                                                     
       Article 1.  General Provisions ........................... 11370-11370.5
       Article 2.  Medical Quality Hearing Panel ................ 11371-11373.3
       Article 3.  State Agency Reports and Forms Appeals ..............  11380
      CHAPTER 4.5.  ADMINISTRATIVE ADJUDICATION:  GENERAL                      
                    PROVISIONS                                                 
       Article 1.  Preliminary Provisions ...................... 11400-11400.20
       Article 2.  Definitions .............................. 11405.10-11405.80
       Article 3.  Application of Chapter ................... 11410.10-11410.60
       Article 4.  Governing Procedure ...................... 11415.10-11415.60
       Article 5.  Alternative Dispute Resolution ........... 11420.10-11420.30
       Article 6.  Administrative Adjudication Bill of Rights 11425.10-11425.60
       Article 7.  Ex Parte Communications .................. 11430.10-11430.80
       Article 8.  Language Assistance ...................... 11435.05-11435.65
       Article 9.  General Procedural Provisions ............ 11440.10-11440.60
       Article 10.  Informal Hearing ........................ 11445.10-11445.60
       Article 11.  Subpoenas ............................... 11450.05-11450.50
       Article 12.  Enforcement of Orders and Sanctions ..... 11455.10-11455.30
       Article 13.  Emergency Decision ...................... 11460.10-11460.80
       Article 14.  Declaratory Decision .................... 11465.10-11465.70
       Article 15.  Conversion of Proceeding ................ 11470.10-11470.50
      CHAPTER 5.  ADMINISTRATIVE ADJUDICATION:  FORMAL HEARING .... 11500-11529


Administrative Adjudication by State Agencies    
25 Cal. Law Rev. Comm'm Reports 55 (Jan. 1995)


CHAPTER 4. OFFICE OF ADMINISTRATIVE HEARINGS
Gov’t Code §§ 11370-11370.5 (article heading added). General
provisions
Article 1. General Provisions
Comment. Chapter 4 (commencing with Section 11370) is divided
into articles for organizational purposes.
Gov’t Code § 11370 (amended). Administrative Procedure Act
11370. Chapter 3.5 (commencing with Section 11340),
Chapter 4 (commencing with Section 11370), Chapter 4.5
(commencing with Section 11400), and Chapter 5
(commencing with Section 11500) constitute, and may be
cited as, the Administrative Procedure Act.
Comment. Section 11370 is amended to recognize the addition of
Sections 11400-11470.50. The administrative adjudication provisions of
the Administrative Procedure Act are found in Chapters 4.5
(administrative adjudication: general provisions) and 5 (administrative
adjudication: formal hearing). Section 11400 (administrative adjudication
provisions of Administrative Procedure Act).
Gov’t Code § 11370.3 (amended). Personnel
11370.3. The director shall appoint and maintain a staff of
full-time, and may appoint pro tempore part-time,
administrative law judges qualified under Section 11502
which is sufficient to fill the needs of the various state
agencies. The director shall also appoint hearing officers,
shorthand reporters, and such any other technical and clerical
personnel as may be required to perform the duties of the
office. The director shall assign an administrative law judge
for any proceeding arising under Chapter 5 (commencing
with Section 11500) and, upon request from any agency, may
1995] ADMINISTRATIVE PROCEDURE ACT 131
assign an administrative law judge or a hearing officer to
conduct other administrative proceedings not arising under
that chapter and shall assign hearing reporters as required.
The director shall assign an administrative law judge for any
proceeding arising pursuant to Chapter 20 (commencing with
Section 22450) of Division 8 of the Business and Professions
Code upon the request of a public prosecutor. Any
administrative law judge, hearing officer, or other employee
so assigned shall be deemed an employee of the office and
not of the agency to which he or she is assigned. When not
engaged in hearing cases, administrative law judges and
hearing officers may be assigned by the director to perform
other duties vested in or required of the office, including
those provided for in Section 11370.5.
Comment. The references in Section 11370.3 to hearing officers and
shorthand reporters are deleted to reflect current practice. The fourth
sentence is deleted as unnecessary. See Bus. & Prof. Code § 22460.5.
Gov’t Code § 11370.5 (amended). Administrative law and procedure
11370.5. The office is authorized and directed to study the
subject of administrative law and procedure adjudication in
all its aspects; to submit its suggestions to the various
agencies in the interests of fairness, uniformity and the
expedition of business; and to report its recommendations to
the Governor and Legislature at the commencement of each
general session. All departments, agencies, officers, and
employees of the State shall give the office ready access to
their records and full information and reasonable assistance in
any matter of research requiring recourse to them or to data
within their knowledge or control. Nothing in this section
authorizes an agency to provide access to records required by
statute to be kept confidential.
Comment. Section 11370.5 is amended to limit the authority of the
Office of Administrative Hearings to administrative adjudication. For
authority of the Office of Administrative Law to study administrative
132 ADMINISTRATIVE ADJUDICATION [Vol. 25
rulemaking, see Section 11340.4. Section 11370.5 is also amended to add
language protecting confidentiality of records.
Gov’t Code §§ 11371-11373.3 (article heading added). Medical
Quality Hearing Panel
Article 2. Medical Quality Hearing Panel
Comment. Chapter 4 (commencing with Section 11370) is divided
into articles for organizational purposes.
Gov’t Code § 11380 (added). State Agency Reports and Forms
Appeals
Article 3. State Agency Reports and Forms Appeals
§ 11380. State agency reports and forms appeals
11380. (a)(1) The office shall hear and render a decision on
any appeal filed by a business, pursuant to subdivision (c) of
Section 14775, in the event the business contests the
certification by a state agency head that reporting
requirements meet established criteria and shall not be
eliminated.
(2) Before a business may file an appeal with the office
pursuant to subdivision (c) of Section 14775, the business
shall file a challenge to a form or report required by a state
agency with that state agency. Within 60 days of filing the
challenge with a state agency, the state agency shall either
eliminate the form or report or provide written justification
for its continued use.
(3) A business may appeal a state agency’s written
justification for the continued use of a form or report with the
office.
(4) If a state agency fails to respond within 60 days of the
filing of a challenge pursuant to paragraph (2), the business
shall have an immediate right to file an appeal with the office.
1995] ADMINISTRATIVE PROCEDURE ACT 133
(b) No later than January 1, 1996, the office shall adopt
procedures governing the filing, hearing, and disposition of
appeals. The procedures shall include, but shall not be limited
to, provisions that assure that appeals are heard and decisions
rendered by the office in a fair, impartial, and timely fashion.
(c) The office may charge appellants a reasonable fee to pay
for costs it incurs in complying with this section.
Comment. Section 11380 continues former Section 11530 without
change.
134 ADMINISTRATIVE ADJUDICATION [Vol. 25
III. Administrative Adjudication: General Provisions
Gov’t Code § 11400-11470.50 (added). Administrative adjudication:
general provisions
CHAPTER 4.5. ADMINISTRATIVE ADJUDICATION:
GENERAL PROVISIONS
Article 1. Preliminary Provisions
§ 11400. Administrative adjudication provisions of Administrative
Procedure Act
11400. (a) This chapter and Chapter 5 (commencing with
Section 11500) constitute the administrative adjudication
provisions of the Administrative Procedure Act.
(b) A reference in any other statute or in a rule of court,
executive order, or regulation, to a provision formerly found
in Chapter 5 (commencing with Section 11500) that is
superseded by a provision of this chapter, means the
applicable provision of this chapter.
Comment. Section 11400 makes clear that references to the
administrative adjudication provisions of the Administrative Procedure
Act include both this chapter (general provisions) and Chapter 5 (formal
hearing). The formal hearing provisions of Chapter 5 apply to an
adjudicative proceeding as determined by the statutes relating to the
proceeding. Section 11501. The general provisions of this chapter apply
to all statutorily and constitutionally required state agency adjudicative
proceedings, including proceedings under Chapter 5. See Section
11410.10 and sections following.
References in section Comments in this chapter and Chapter 5 to the
“1981 Model State APA” mean the Model State Administrative
Procedure Act (1981) promulgated by the National Conference of
Commissioners on Uniform State Laws. See 15 U.L.A. 1 (1990).
References to the “Federal APA” mean the Federal Administrative
Procedure Act, 5 U.S.C. §§ 551-583, 701-706, 1305, 3105, 3344, 5372,
7521 (1988 & Supp. V 1993), and related sections (originally enacted as
Act of June 11, 1946, ch. 324, 60 Stat. 237). A number of the
1995] ADMINISTRATIVE PROCEDURE ACT 135
administrative adjudication provisions of the Administrative Procedure
Act are drawn from the Federal APA.
§ 11400.10. Operative date
11400.10. (a) This chapter is operative on July 1, 1997.
(b) This chapter is applicable to an adjudicative proceeding
commenced on or after July 1, 1997.
(c) This chapter is not applicable to an adjudicative
proceeding commenced before July 1, 1997, except an
adjudicative proceeding conducted on a remand from a court
or another agency on or after July 1, 1997.
Comment. Section 11400.10 provides a deferred operative date to
enable state agencies to make any necessary preparations for operation
under this chapter.
§ 11400.20. Adoption of regulations
11400.20. (a) Before, on, or after July 1, 1997, an agency
may adopt interim or permanent regulations to govern an
adjudicative proceeding under this chapter.
(b) Except as provided in Section 11351:
(1) Interim regulations need not comply with Article 5
(commencing with Section 11346) or Article 6 (commencing
with Section 11349) of Chapter 3.5, but are governed by
Chapter 3.5 (commencing with Section 11340) in all other
respects.
(2) Interim regulations expire on December 31, 1998, unless
earlier terminated or replaced by or readopted as permanent
regulations under paragraph (3). If on December 31, 1998, an
agency has completed proceedings to replace or readopt
interim regulations and has submitted permanent regulations
for review by the Office of Administrative Law, but
permanent regulations have not yet been filed with the
Secretary of State, the interim regulations are extended until
the date permanent regulations are filed with the Secretary of
State or March 31, 1999, whichever is earlier.
136 ADMINISTRATIVE ADJUDICATION [Vol. 25
(3) Permanent regulations are subject to all the provisions of
Chapter 3.5 (commencing with Section 11340), except that if
by December 31, 1998, an agency has submitted the
regulations for review by the Office of Administrative Law,
the regulations are not subject to review for necessity under
Section 11349.1 or 11350.
Comment. Subdivision (a) of Section 11400.20 makes clear that an
agency may act to adopt regulations under this division after enactment
but before the division becomes operative. This will enable the agency to
have any necessary regulations in place on the operative date. It should
be noted that revisions of regulations that merely conform to the new law
may be adopted by simplified procedures under the rulemaking
provisions of the Administrative Procedure Act pursuant to 1 California
Code of Regulations Section 100.
Under subdivision (b), an agency may adopt interim procedural
regulations without the normal notice and hearing and Office of
Administrative Law review processes of the Administrative Procedure
Act. However, this does not excuse compliance with the other provisions
of the Administrative Procedure Act, including but not limited to the
requirements that (1) regulations be consistent and not in conflict with
statute and reasonably necessary to effectuate the purpose of the statute
(Section 11342.2), (2) regulations be filed and published (Sections
11343-11344.9), and (3) regulations are subject to judicial review
(Section 11350). Compliance with these provisions is not required for
agencies exempted by statute. See Section 11351.
Interim regulations are only valid through December 31, 1998. They
may be replaced by or readopted as permanent regulations before then,
through the standard administrative rulemaking process. In case
permanent regulations are pending on December 31, 1998, interim
regulations may be extended up to three months.
Subdivision (b)(3) makes clear that permanent regulations governing
administrative adjudication are subject to normal rulemaking procedures,
other than review for necessity under Section 11349.1 (Office of
Administrative Law) or 11350 (declaratory relief) in the case of
permanent regulations promulgated during the transitional period.
1995] ADMINISTRATIVE PROCEDURE ACT 137
Article 2. Definitions
§ 11405.10. Application of definitions
11405.10. Unless the provision or context requires
otherwise, the definitions in this article govern the
construction of this chapter.
Comment. Section 11405.10 limits these definitions to the general
provisions on administrative adjudication. For definitions governing the
formal hearing procedure under Chapter 5, see Section 11500.
§ 11405.20. Adjudicative proceeding
11405.20. “Adjudicative proceeding” means an evidentiary
hearing for determination of facts pursuant to which an
agency formulates and issues a decision.
Comment. Section 11405.20 is intended for drafting convenience.
§ 11405.30. Agency
11405.30. “Agency” means a board, bureau, commission,
department, division, office, officer, or other administrative
unit, including the agency head, and one or more members of
the agency head or agency employees or other persons
directly or indirectly purporting to act on behalf of or under
the authority of the agency head. To the extent it purports to
exercise authority pursuant to this chapter, an administrative
unit otherwise qualifying as an agency shall be treated as a
separate agency even if the unit is located within or
subordinate to another agency.
Comment. Section 11405.30 is drawn from 1981 Model State APA §
1-102(1). It supplements Section 11000. See also Section 11500(a). The
intent of the definition is to subject as many governmental units as
possible to this chapter. The definition explicitly includes the agency
head and those others who act for an agency, so as to effect the broadest
possible coverage. The definition also would include a committee or
council.
The last sentence of the section is in part derived from Federal APA §
551(1) (1988), treating as an agency “each authority of the Government
of the United States, whether or not it is within or subject to review by
138 ADMINISTRATIVE ADJUDICATION [Vol. 25
another agency.” A similar provision is desirable here to avoid difficulty
in ascertaining which is the agency in a situation where an administrative
unit is within or subject to the jurisdiction of another administrative unit.
An administrative unit of an agency that has no authority to issue
decisions or take other action on behalf of the agency is not an “agency”
within the meaning of this section.
§ 11405.40. Agency head
11405.40. “Agency head” means a person or body in which
the ultimate legal authority of an agency is vested, and
includes a person or body to which the power to act is
delegated pursuant to authority to delegate the agency’s
power to hear and decide.
Comment. The first portion of Section 11405.40 is drawn from 1981
Model State APA § 1-102(3). The definition of agency head is included
to differentiate for some purposes between the agency as an organic
entity that includes all of its employees, and those particular persons in
which the final legal authority over its operations is vested.
The last portion is drawn from Section 11500(a), relating to use of the
term “agency itself” to refer to a nondelegable power to act. An agency
may delegate review authority. Section 11440.10.
§ 11405.50. Decision
11405.50. (a) “Decision” means an agency action of
specific application that determines a legal right, duty,
privilege, immunity, or other legal interest of a particular
person.
(b) Nothing in this section limits any of the following:
(1) The precedential effect of a decision under Section
11425.60.
(2) The authority of an agency to make a declaratory
decision pursuant to Article 14 (commencing with Section
11465.10).
Comment. Section 11405.50 is drawn from 1981 Model State APA §
1-102(5). The definition of “decision” makes clear that it includes only
legal determinations made by an agency that are of specific applicability
because they are addressed to particular or named persons. More than
one identified person may be the subject of a decision. See Section 13
1995] ADMINISTRATIVE PROCEDURE ACT 139
(singular includes plural). “Person” includes legal entity and
governmental subdivision. Section 11405.70 (“person” defined); see also
Section 17 (“person” defined).
A decision includes every agency action that determines any of the
legal rights, duties, privileges, or immunities of a specific, identified
individual or individuals. This is to be compared to a regulation, which is
an agency action of general application, applicable to all members of a
described class. See Section 11342 (“regulation” defined). This section is
not intended to expand the types of cases in which an adjudicative
proceeding is required; an adjudicative proceeding under this chapter is
required only where another statute or the constitution requires one.
Section 11410.10 (application to constitutionally and statutorily required
hearings).
Consistent with the definition in this section, rate making and licensing
determinations of specific application, addressed to named or particular
parties such as a certain power company or a certain licensee, are
decisions subject to this chapter. Cf. Federal APA § 551(4) (1988)
(defining all rate making as rulemaking). On the other hand, rate making
and licensing actions of general application, addressed to all members of
a described class of providers or licensees, are regulations under the
Administrative Procedure Act. Section 11342 (“regulation” defined).
However, some decisions may have precedential effect pursuant to
Section 11425.60 (precedent decisions).
§ 11405.60. Party
11405.60. “Party” includes the agency that is taking action,
the person to which the agency action is directed, and any
other person named as a party or allowed to appear or
intervene in the proceeding. If the agency that is taking action
and the agency that is conducting the adjudicative proceeding
are separate agencies, the agency that is taking action is a
party and the agency that is conducting the adjudicative
proceeding is not a party.
Comment. The first sentence of Section 11405.60 is drawn from
subdivision (b) of Section 11500; see also 1981 Model State APA § 1-
102(6). The second sentence is new.
“Person” includes legal entity and governmental subdivision. Section
11405.70 (“person” defined); see also Section 17 (“person” defined).
Under this definition, if an officer or employee of an agency appears in
an official capacity, the agency and not the person is a party. A staff
140 ADMINISTRATIVE ADJUDICATION [Vol. 25
division authorized to act on behalf of the agency may be a party under
this chapter. See Section 11405.30 & Comment (“agency” defined).
This section is not intended to address the question of whether a person
is entitled to judicial review. Standing to seek judicial review is dealt
with in other law.
§ 11405.70. Person
11405.70. “Person” includes an individual, partnership,
corporation, governmental subdivision or unit of a
governmental subdivision, or public or private organization or
entity of any character.
Comment. Section 11405.70 supplements the definition of “person” in
Section 17 (“person” defined). It is drawn from 1981 Model State APA §
1-102(8). It would include the trustee of a trust or other fiduciary.
The definition is broader than Section 17 in its application to a
governmental subdivision or unit; this would include an agency other
than the agency against which rights under this chapter are asserted by
the person. Inclusion of such agencies and units of government insures,
therefore, that other agencies or other governmental bodies can, for
example, apply to an agency for a decision, and will be accorded all the
other rights that a person has under this chapter.
§ 11405.80. Presiding officer
11405.80. “Presiding officer” means the agency head,
member of the agency head, administrative law judge, hearing
officer, or other person who presides in an adjudicative
proceeding.
Comment. Section 11405.80 is intended for drafting convenience.
Article 3. Application of Chapter
§ 11410.10. Application to constitutionally and statutorily required
hearings
11410.10. This chapter applies to a decision by an agency
if, under the federal or state Constitution or a federal or state
statute, an evidentiary hearing for determination of facts is
required for formulation and issuance of the decision.
1995] ADMINISTRATIVE PROCEDURE ACT 141
Comment. Section 11410.10 limits application of this chapter to
constitutionally and statutorily required hearings of state agencies. See
Section 11410.20 (application to state). The provisions do not govern
local agency hearings except to the extent expressly made applicable by
another statute. Section 11410.30 (application to local agencies).
Section 11410.10 states the general principle that an agency must
conduct an appropriate adjudicative proceeding before issuing a decision
where a statute or the due process clause of the federal or state
constitutions necessitates an evidentiary hearing for determination of
facts. Such a hearing is a process in which a neutral decision maker
makes a decision based exclusively on evidence contained in a record
made at the hearing or on matters officially noticed. The hearing must at
least permit a party to introduce evidence, make an argument to the
presiding officer, and rebut opposing evidence.
The coverage of this chapter is the same as coverage by the existing
provision for administrative mandamus under Code of Civil Procedure
Section 1094.5(a). That section applies only where an agency has issued
a final decision “as the result of a proceeding in which by law a hearing
is required to be given, evidence is required to be taken, and discretion in
the determination of facts is vested in the [agency].” Numerous cases
have applied Code of Civil Procedure Section 1094.5(a) broadly to
administrative proceedings in which a statute requires an “administrative
appeal” or some other functional equivalent of an evidentiary hearing for
determination of facts — an on-the-record or trial-type hearing. See, e.g.,
Eureka Teachers Ass’n v. Board of Educ. of Eureka City Schools, 199
Cal. App. 3d 353, 244 Cal. Rptr. 240 (1988) (teacher’s right to appeal
grade change was right to hearing — Code Civ. Proc. § 1094.5 applies);
Chavez v. Civil Serv. Comm’n of Sacramento County, 86 Cal. App. 3d
324, 150 Cal. Rptr. 197 (1978) (right of “appeal” means hearing required
— Code Civ. Proc. § 1094.5 available).
In many cases, statutes or the constitution call for administrative
proceedings that do not rise to the level of an evidentiary hearing as
defined in this section. For example, the constitution or a statute might
require only a consultation or a decision that is not based on an exclusive
record or a purely written procedure or an opportunity for the general
public to make statements. In some cases, the agency has discretion to
provide or not provide the procedure. This chapter does not apply in such
cases. Examples of cases in which the required procedure does not meet
the standard of an evidentiary hearing for determination of facts are:
Goss v. Lopez, 419 U.S. 565 (1975) (informal consultation between
student and disciplinarian before brief suspension from school); Hewitt v.
Helms, 459 U.S. 460 (1983) (informal nonadversary review of decision
to place prisoner in administrative segregation — prisoner has right to
142 ADMINISTRATIVE ADJUDICATION [Vol. 25
file written statement); Skelly v. State Personnel Bd., 15 Cal. 3d 194, 539
P. 2d 774, 124 Cal. Rptr. 14 (1975) (informal opportunity for employee
to respond orally or in writing to charges of misconduct prior to removal
from government job); Wasko v. Department of Corrections, 211 Cal.
App. 3d 996, 1001-02, 259 Cal. Rptr. 764 (1989) (prisoner’s right to
appeal decision does not require a hearing — Code Civ. Proc. § 1094.5
inapplicable); Marina County Water Dist. v. State Water Resources
Control Bd., 163 Cal. App. 3d 132, 209 Cal. Rptr. 212 (1984) (hearing
discretionary, not mandatory — Code Civ. Proc. § 1094.5 inapplicable).
Agency action pursuant to statutes that do not require evidentiary
hearings are not subject to this chapter. Such statutes include the
California Environmental Quality Act (Pub. Res. Code §§ 21000-
21178.1), the Bagley-K