PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD – Administrative Procedure Act as Affecting PERB Jurisdiction and Procedure

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Pursuant to EERA section 3541.3(h), Chapter 4.5 of the Administrative Procedure Act (APA) applies to PERB unfair practice hearings but not to other types of PERB hearings. APA Chapter 4.5 contains both mandatory and optional provisions. Section 11440.30(b), contained in Chapter 4.5, prohibits the taking of testimony by telephone if a party objects. Neither the APA nor the Law Revision Commission comments to the APA state whether section 11440.30 is mandatory or optional. Some agencies have adopted regulations applying section 11440.30(b) to their hearings, while others have adopted regulations exempting their hearings from section 11440.30(b). In light of the legislative history of APA Chapter 4.5, which shows the Legislature intended to allow agencies to “opt in” to the optional provisions rather than making them defaults, these regulations indicate that section 11440.30 is an optional provision and is therefore not binding on PERB. Accordingly, the ALJ did not err in allowing the witness to testify by telephone over the other party’s objection.