Director’s Decision on an Appeal of a County Agricultural Commissioner Decision (Docket Number 130) and New Requirements Governing CAC Hearings

Enclosed is Administrative Docket Number 130, which contains the Director’s Decision on an Appeal of an Agricultural Civil Penalty, levied against Patterson Flying Service by the Stanislaus County Agricultural Commissioner for a violation of Food & Agricultural Code (FAC) section 12973 that was issued in May 2006. This Director’s Decision was appealed to Superior Court and subsequently to the Fifth Appellate District Court of Appeals. The Court of Appeals has recently issued an opinion upholding the Director’s Decision.

The Court of Appeals also made important rulings about the agricultural civil penalty hearing process. The Court of Appeals found the County Agricultural Commissioner (CAC) is “an agency created or appointed by joint or concerted action of the state and one or more local agencies” under Government Code section 11410.30(c). This means the CAC hearing process must comply with Chapter 4.5 of the Administrative Procedure Act (beginning at Government Code section 11400).

Chapter 4.5 sets forth certain basic requirements intended to ensure a fair hearing. These requirements are consistent with the Department’s existing guidance regarding CAC hearings and complying with Chapter 4.5 will not require fundamental changes in the way CAC hearing are currently conducted. However, the following requirements should be reviewed and followed to assure a court will not overrule a Commissioner’s decision based on the failure to meet the requirements of Chapter 4.5 of the Administrative Procedures Act.

Administrative Procedures Act Requirements

• The CAC must give the respondent notice and an opportunity to be heard, including the opportunity to present and rebut evidence. (Gov. Code, § 11425.10, (a)(1).)
  
  Comment: Service by certified mail to the respondent’s last known address, as provided by FAC section 12999.5, is sufficient. However, if the certified mail is not claimed, the CAC should check that the address is current and, if it is, resend the notice by regular mail and/or fax or take other reasonable steps to provide actual notice.
  The Notices of Proposed Action (NOPA) must cite the statute or regulation the respondent is charged with violating and indicate what the CAC alleges the Respondent did that violated that law.
  
• The CAC must make a copy of the procedure governing the hearing available to the respondent and include a statement that the formal hearing provisions of Chapter 5 of the APA do not apply to the proceeding. (Gov. Code section 11425.10, (a)(2).)
  
  Comment: The CAC should send the description of its hearing procedure to the Respondent with the notice of hearing that conforms to the Administrative Procedure Act (APA) requirements. The CAC must inform the Respondent in the description of the process that the provisions relating to the formal hearings under Chapter 5 of the APA (Government Code sections 11500-11529) do not apply (this is a new requirement).
  
  This can be accomplished by attaching the enclosed brochure entitled, “Preparing for Your Administrative Pesticide Penalty Hearing” to any NOPA for administrative civil penalty hearings initiated pursuant to the authority of FAC section 12999.5 or Business and Professions Code section 8617. This pamphlet is a revision of the previous hearing pamphlet entitled, “Preparing for Your Administrative Hearing”, also known as form PR-ENF-086, available through the county forms requisition process. Discard any old copies of the form/brochure and begin using the new “Preparing for Your Administrative Pesticide Penalty Hearing” – the revision date (rev. 04/08), can be found on the back of the brochure. The new pamphlet will be available through the forms requisition process beginning on April 25, 2008.
  
  If your county publishes its own hearing brochure please work through your Enforcement Branch Liaison to make arrangements to have it reviewed by Enforcement headquarters staff to make sure it conforms to APA requirements. In the interim, we recommend you use the enclosed brochure.
  
• With limited exceptions, the hearing officer must open the hearing to public observation. (Gov. Code section 11425.10(a)(3).
  
  Comment: Public observation is not participation. Participation should be limited to witnesses, the parties, and their attorneys. An officer or employee of a respondent company, or family member of an individual respondent, may speak for the Respondent at the hearing as the “party”, just as a CAC employee is designated to act as the party bringing the case. The Respondent has the right to be represented by counsel, but the hearing officer should not allow the unlicensed practice of law in CAC hearings. If an individual is not an officer or employee of the respondent company, or family member of the individual respondent, the hearing officer should not, in most circumstances, allow them to represent the Respondent.
  
• If anyone participating or observing a hearing disobeys a lawful order from the hearing officer not to disrupt or interfere with the hearing, or otherwise engages in disorderly, contemptuous, insolent behavior toward the hearing officer, the hearing officer may cite them for contempt. (Gov. Code, sections 11455.10-11455.30.)
  
  Comment: The hearing officer cannot impose sanctions directly, but the Act provides a procedure for obtaining penalties for the contempt from a superior court.
  
• The CAC must separate the adjudicative function from the investigative, prosecutorial, and advocacy functions within the agency. (Gov. Code section 11425.10, (a)(4).) Comment: The hearing officer must not be, or be under the supervision or direction of, someone who investigated, prosecuted, or advocated the case at any stage. Nevertheless, the hearing officer or the CAC can be a person who has participated only as the decision maker or advisor to the decision maker in making the determination as to whether an investigation produced sufficient evidence to warrant proceeding with the case.
  
• The hearing officer is subject to disqualification for bias, prejudice, or interest. (Gov. Code section 11425.10, (a)(5).)
  
• The decision shall be in writing, be based on the record, and include a statement of the factual and legal basis of the decision. (Gov. Code section 11425.10, (a)(6).)
  
  Comment: The decision must state the findings of fact that support that decision. If there was conflicting testimony and the hearing officer made a finding of fact material to the decision because they believed one witness rather than another, the decision should say so and note any observed demeanor, manner, or attitude of the witness supporting that finding.
  
• The hearing officer and the CAC must not communicate separately with a party, party representative, investigator/witness, or advocate about an issue in the case without the other party present (ex parte communication). This does not include non-controversial matters of practice or procedure, such as scheduling. If the hearing officer does engage in ex parte communication, the APA provides a procedure to cure the noncompliance. (Gov. Code sections 11430.10-11430.80.)

Please make this information available as soon as possible to your staff for use in training and so they can comply with these requirements as they bring cases to hearing.

If you have any questions, please contact Mr. Louis Watson, Senior Special Investigator, at (916) 445-3894, or the Enforcement Branch Liaison assigned to your county.

Sincerely,