County Agriculture Commissioner’s Changes to Hearing Officer Decisions

The Enforcement Branch and the Office of Legal Affairs have reexamined a previous guidance regarding County Agriculture Commissioner´s (CAC) recourse when they disagree with the decision of a hearing officer conducting a hearing on their behalf. This guidance is formalized in the Hearing Officer Roundtable Project, Section 6.2.

The Department of Pesticide Regulation (DPR) previously took a careful approach about allowing CACs to change a hearing officer´s decision. There was concern that hearing officer decisions might be changed without a full understanding of the limits placed on the CAC when making those changes. In light of more consistent formalized guidance about our administrative civil penalty programs and recent legislation, now is an appropriate time to encourage CACs to take a critical look at the decisions they sign, for the purpose of correcting mistakes that might come before the Director or the Disciplinary Review Committee in an appeal.

A CAC is not bound to adopt a decision of a hearing officer if the hearing officer has made an error regarding an interpretation of law or a finding of fact. However, once the CAC has adopted the hearing officer´s decision, the CAC cannot rescind or appeal the decision (as was recently attempted in the matter of appeal Docket Number S-010.)

As before, the hearing officer is the “finder of fact” in a hearing authorized by Food and Agricultural Code (FAC) section 12999.5 and Business and Professions Code (BPC) section 8617. Also as before, the record of the hearing is the sole source of facts in the case.

This expansion allowing CACs to change a hearing officer decision is not without limitations. You should carefully consider the following paragraphs and the enclosure before making changes to a hearing officer´s decision.

Before adopting a hearing officer’s decision, and after reviewing the record of the hearing, the CAC may make a correction to the hearing officer’s decision if the hearing officer’s interpretation of law or finding of fact was incorrect.

The CAC must carefully explain its reasoning in his or her final decision. Letting the respondent know the basis of the CAC’s action respects the respondent’s procedural (due process) rights and can avoid unnecessary expense for everyone involved.

In a few days, DPR will replace the guidance found in the online version of the Hearing Officer Roundtable Project, Section 6.2, which will be renamed, “Commissioner´s Discretion to Change a Decision.” Please ensure all staff or contractors involved in advocacy, hearing officer, or other activities on your behalf are appraised of this guidance change. You may vie w the Hearing Officer Roundtable Project at www.cdpr.ca.gov/docs/county/training/hrngofcr/horp.pdf.

Please contact your Enforcement Branch Liaison if you have any questions.

Sincerely,