Electronic Hearings During Covid-19

Purpose

On March 4, 2020, Governor Gavin Newsom declared a State of Emergency in the State of California due to the COVID-19 pandemic. In response, state and local authorities have implemented public health measures including the closure of, and limits on, access to public spaces. These measures have impacted the ability of state and local agencies to perform in-person hearings or other public functions. The following guidance from the Department of Pesticide Regulation (DPR) responds to inquiries from county agricultural commissioners (CACs) regarding the ability to conduct administrative civil penalty hearings by electronic means during the COVID-19 emergency. This guidance is subject to change as the state responds to evolving emergency circumstances.

Background

CACs hold administrative hearings at the request of a respondent to a notice of proposed action to levy an administrative civil penalty for violations of state pesticide laws or regulations. (Food & Agr. Code, § 12999.5; Bus. & Prof. Code, § 8617.) In addition to applicable processes under the Food and Agricultural Code, these hearings must comply with Chapter 4.5 of the Administrative Procedure Act (APA) Gov. Code, § 11400 et seq.) DPR previously provided CACs with guidance on actions CACs must take to comply with the APA requirements. (See Director’s Decision on an Appeal of a County Agricultural Commissioner Decision (Docket Number 130) and New Requirements Governing CAC Hearings, Enforcement Branch, ENF 08-10 (Apr. 25, 2008);¹ Notice Requirements Governing CAC Hearings, Enforcement Branch, ENF 08-31 (Nov. 7, 2008).²

Ordinarily, the APA permits hearings to be conducted electronically only if the following requirements are also met:

• Each participant in the hearing has an opportunity to participate in and hear the entire proceeding and observe exhibits;
• No party objects to conducting the meeting electronically;
• The public may observe the hearing by inspecting or hearing the agency’s record and any hearing transcripts or recordings; and
• The public may observe the hearing by being physically present at the place where the presiding officer is conducting the hearing.

(Gov. Code, §§ 11440.30, 11425.20, subd. (b).). Whether held electronically or in-person, the public does not have a right under the APA to comment in these quasi-adjudicative hearings. CAC hearings continue to be open to public observation.

¹ Available at https://www.cdpr.ca.gov/docs/county/cacltrs/penfltrs/penf2008/2008010.htm.

² Available at https://www.cdpr.ca.gov/docs/county/cacltrs/penfltrs/penf2008/2008031.htm.

Executive Order N-63-20 Suspends Certain Hearing Requirements to Facilitate Electronic Hearings

Because COVID-19 and resulting public health measures have impacted the ability of state and local agencies to perform in-person hearings, Governor Newsom has suspended several of the APA requirements governing electronic hearings during the emergency. Paragraph 11 of Executive Order N-63-20 (May 7, 2020) suspends those APA provisions that permit a party or witness to participate in a hearing in person, that permit a member of the public to be physically present at the place where a presiding officer conducts a hearing, or that allow a party to object to an electronic hearing. Instead, Executive Order N-63-20 establishes the following requirements:

1. Each participant in the hearing must have an opportunity to participate in and to hear the entire proceeding while it is taking place, and to observe exhibits;
2. The public must be able to observe the hearing using electronic means; and
3. The presiding officer must satisfy all requirements of the Americans with Disabilities Act and Unruh Civil Rights Act.

Requirements for Conducting Electronic Hearings

On March 20, 2020, DPR issued guidance to CACs providing that timely compliance with all federal, state, and local pesticide requirements is considered to be an essential function during the COVID-19 emergency and that CACs should continue to enforce pesticide use requirements, with a focus on resolving priority and drift incidents. Consistent with this guidance, DPR expects CACs to conduct most, if not all, pesticide-related hearings by electronic means, such as by teleconference or internet/video conference. Statutes of limitation for CACs to initiate enforcement actions for pesticide violations have not been extended or waived, so conducting hearings electronically will be necessary to timely resolve enforcement actions for pesticide use violations.

CACs may hold electronic hearings over the objection of a party during the COVID-19 emergency. However, hearings may be held in-person if: (1) the CAC determines there is a critical need for an in-person hearing; and (2) the hearing can be conducted while providing sufficient social distancing and other public health protections in compliance with all applicable state and local public health requirements and guidelines.

During the COVID-19 emergency, electronic hearings must meet the following requirements:

1. Provide the opportunity for each participant to participate in and hear the entire hearing, and to observe and present exhibits. CACs should request and provide exhibits to participants before the hearing. See guidance below on electronically transferring and securing exhibits, including confidential exhibits.
2. Allow a member of the public to observe the hearing. CACs should provide the hearing information upon request from the public.
3. Allow the public to hear or view the hearing recording during business hours.
4. Provide accommodations for participants upon request, including language translation services, oral descriptions of exhibits, and/or accessible meeting platforms. CACs may ask that participants specify the accommodation needed.

CACs must continue to comply with the remaining hearing requirements under the APA and Food and Agricultural Code. These requirements include, but are not limited to, providing a notice of the proposed action and right to hearing, providing an opportunity for the person requesting a hearing to present and rebut evidence, providing a copy of the governing procedure, ensuring separation of functions, providing an unbiased presiding officer, preparing a written hearing decision, restricting ex parte communications, and providing language assistance. (See Food & Agr. Code, § 12999.5; Gov. Code, § 11425.10 et seq.)

Similarly, CACs must continue to effectively communicate the status and outcome of investigations and enforcement proceedings to complainants and other interested members of the public, including persons with limited English proficiency.

³ Available at https://www.gov.ca.gov/wp-content/uploads/2020/05/5.7.20-EO-N-63-20-text.pdf.

⁴ COVID-19 – Essential Functions, Executive Office #20-01 (Mar. 20, 2020), available at https://www.cdpr.ca.gov/docs/county/cacltrs/exec/2020/exec2001.pdf.

Best Practices for Electronic Hearings

Pre-hearing Conferences

CACs should encourage parties to participate in pre-hearing conferences and discussions through electronic means to resolve any issues and agree to any stipulations before the hearing. This is also an appropriate time to identify any accommodations necessary at the hearing to comply with the Americans with Disabilities Act. CACs should also determine whether any party requires language assistance at the hearing. If language assistance is requested, the CAC must provide an interpreter for the party. (Gov. Code, § 11435.60.) The CAC should determine what accommodations may be necessary to have an interpreter available for an electronic hearing.

Sharing Exhibits

To ensure that each party and the hearing officer have access to hearing exhibits, CACs should ensure that exhibits are submitted and distributed before the hearing to the parties and the hearing officer. Because some exhibits may contain sensitive or confidential information, CACs should ensure that exhibits are shared physically by mail or electronically through a secure file transfer that includes encryption to prevent unintentional exposure or disclosure. Do not share exhibits by unencrypted e-mail. DPR also recommends not sharing exhibits live over an internet/video conference, which may not have adequate security protocols to protect confidential exhibits.

Recording the Hearing

CACs should continue to record hearings to allow for an adequate record on which to base a hearing decision. Before an electronic hearing begins, the hearing officer or host should inform all participants that the hearing is being recorded.

Teleconference Hearings

If holding hearings through teleconference services, such as CenturyLink Conferencing, ReadyTalk, or The Conferencing Center, DPR recommends the following best practices:

Provide in the hearing notice information that the hearing will be held by teleconference and a contact person for requesting the teleconference phone number and password. Do not share the phone number and password on an unrestricted publicly available social media post.

• Provide the teleconference phone number and password to all parties and the hearing officer before the hearing. Provide the teleconference phone number and password to any member of the public upon request.
• Assign a host who is not a hearing participant to start the meeting and manage attendance.
• Set a “host code” and a “participant code” to ensure that only those with a password are able to call into the meeting and that the meeting does not start before the host arrives.
• Avoid any communications (other than verifying attendance) until all parties are present to prevent unintentional ex parte communications.
• Use Entry or Exit Tone or Announce Name Feature to prevent someone from joining the teleconference without your knowledge.
• Verify at the beginning of the hearing that all parties are able to hear and participate in the teleconference.
• If language assistance is being provided, explain to the parties how interpretation will be provided over the teleconferencing line. Remind parties as necessary during the hearing to allow time for the interpreter to translate.
• Request that parties mute their lines when not speaking. If a significant number of people will be participating, DPR recommends using a service that allows for “mute on entry” to prevent unintentional interruptions of the hearing.
• Verify attendance before the hearing begins. If a member of the public is observing, they should identify themselves as a member of the public.
• Distribute evidence and exhibits to all parties and to the hearing officer before the hearing. When presenting evidence, have parties refer to the specific tab or document that they are presenting before proceeding. Evidence may also be read into the record if any party is unable to find the referenced exhibit.

Internet Video Hearings

If holding hearings through internet video platforms, such as WebEx, Zoom, or Microsoft Teams/Skype, DPR recommends the following best practices:

• Provide in the hearing notice information that the hearing will be held through an internet video platform and a contact person for requesting the meeting information and password. Do not share the meeting number and password on an unrestricted publicly available social media post.
• Schedule the hearing in advance to obtain a unique meeting number and password. Do not use a personal meeting room or personal ID. If provided the option to set your own password, set a strong password that includes a mix of uppercase and lowercase letters, numbers, and special characters (for example, $Ta0qedOx!). Do not reuse passwords for meetings.
• Provide the link to the hearing directly to the parties and to the public upon request. Do not share the link on an unrestricted publicly available social media post.
• Use Entry or Exit Tone or Announce Name Feature to prevent someone from joining the audio portion of your meeting without your knowledge.
• Assign a host who is not a hearing participant to start and control the meeting. CACs may also assign an alternate host in case the primary host inadvertently loses connection to the meeting or is otherwise unable to host the meeting.
• Do not allow attendees or panelists to join before host. (This is typically set by default.)
• Disable “File Transfer” unless you know this feature will be required.
• Disable annotation if you do not need it.
• Disable the chat feature to prevent an unintentional ex parte communication between the hearing officer and the parties.
• If provided, use a waiting room to control the admittance of guests into meetings. This will ensure that the host knows who is attending the meeting. Members of the public may attend anonymously but the CAC may request that the public inform them in advance that they wish to observe the hearing so that they are aware that an anonymous participant will join.
• If file sharing is necessary, use a platform that allows you to upload a file to the platform before the meeting rather than sharing your screen. This will prevent accidental exposure of sensitive information on your screen.
• Manage screen sharing options to be “host only.”
• Ensure users are using the updated version of the remote access/meeting application used for the hearing. Regularly check and apply software updates.
• To protect your personal data, do not use Facebook or any other social media site to sign in to the hearing.
• Verify at the beginning of the hearing that all parties are able to hear and participate in the hearing.
• If language assistance is being provided, explain to the parties how interpretation will be provided through the video conferencing site. Remind parties as necessary during the hearing to allow time for the interpreter to translate.
• Request that parties mute their lines when not speaking. If a significant number of people will be participating, DPR recommends using a meeting platform that allows for “mute on entry” to prevent unintentional interruptions of the hearing. Members of the public should remain muted throughout the hearing and do not have a right of participation in the hearing.
• Expel disruptive non-party attendees at any time during a meeting. Identify the name of the attendee to remove, then select that participant and remove/expel an attendee. In addition, disable “Allow Removed Participants to Rejoin” so that attendees who were removed from the hearing cannot re-enter.
• If attending a video teleconferencing on a computer, use a separate device to access exhibits or email.
• Practice using the virtual platform of choice to avoid technical issues during the hearing.
• Distribute evidence and exhibits to all parties and to the hearing officer before the hearing. When presenting evidence, have parties refer to the specific tab or document that they are presenting before proceeding. Evidence may also be read into the record if any party is unable to find the referenced exhibit. To protect sensitive or confidential information, do not share visuals of the evidence over video at the hearing.

If you have any questions, please contact your Enforcement Branch Liaison or Mr. Joe Marade, DPR’s County/State Liaison, at 916-893-5578 or Joe.Marade@cdpr.ca.gov.

Sincerely,