Decision 2461Ma – County of Tulare

SA-CE-782-M

Decision Date: February 29, 2016

Decision Type: PERB Decision

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Perc Vol: 40
Perc Index: 145

Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.10000 – Request for Reconsideration

Reconsideration procedure is not interchangeable with a motion for recusal under PERB Regulation 32155. Because Union was on notice as of the date of board member’s appointment to PERB that he could have been assigned to a panel that considered this case, Union could have filed a motion for his recusal pursuant to PERB Regulation 32155, subdivision (f) upon learning of his appointment to the Board. The event triggering the time limits in PERB Regulation 32155, subdivision (f) is simply the possibility, not a certainty, that the board member in question may be on a particular panel. Board refuses to strike language in its decision that union considered “derogatory commentary” because it denied request for reconsideration.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.16000 – Disqualification or Bias of Board Agent

Reconsideration procedure is not interchangeable with a motion for recusal under PERB Regulation 32155. Because Union was on notice as of the date of board member’s appointment to PERB that he could have been assigned to a panel that considered this case, Union could have filed a motion for his recusal pursuant to PERB Regulation 32155, subdivision (f) upon learning of his appointment to the Board. The event triggering the time limits in PERB Regulation 32155, subdivision (f) is simply the possibility, not a certainty, that the board member in question may be on a particular panel. The term “counsel” in PERB Regulation 32155, subdivision (a)(3) does not include a consultant who is not an attorney. PERB Regulation 32155, subdivision (a)(3) describes three conditions requiring recusal, two of which apply to attorneys or “counsel” and one which applies to any person who has given advice to a party “upon any matter involved in the proceeding before the Board.” Thus, an “attorney or counsel for any party” must recuse himself or herself from a case in which he or she has represented a party in the “case or proceeding.” Likewise, a person who “has been retained or employed as attorney or counsel for any party within one year prior to the commencement of the case at the Board level” is subject to recusal. Because Board member was not an attorney or counsel, the one-year interdiction on participating in cases does not apply to him. No evidence was produced, nor argument made, that member gave advice to any party upon any matter involved in the proceeding before the Board, i.e. the County of Tulare. None of the circumstances contemplated by PERB Regulation 32155, subdivision (a)(3) are applicable to this case. Under PERB Regulation 32155, subdivision (a)(4), a board member, by virtue of his or her past employment, may not be considered automatically prejudiced in favor of a client of his or her former employer, and against any adversary of that client. Under PERB Regulation 32155, subdivision (e), in the absence of any facts supplied by a sworn declaration, mere past association with a law firm that represents the respondent does not establish that board member had knowledge of any facts pertaining to this case which would disqualify him to consider any case before the board.