Decision A498E – Barstow Community College District
LA-CE-6666-E
Decision Date: December 13, 2022
Decision Type: Administrative Appeal
Description: Barstow Community College District appealed an administrative determination. PERB’s Appeals Office rejected as untimely the District’s response to exceptions by the California School Employees Association, Chapter 176 (CSEA) to the proposed decision of an Administrative Law Judge (ALJ). The District’s response was due on November 7, 2022 at 11:59 p.m., but was filed on November 8, 2022 at 12:01 a.m.
The District filed a timely appeal asserting good cause for its untimely filing. The District asserted that its counsel, while working remotely, discovered the digital pen he customarily signs documents with had a dead battery, and was delayed trying and failing to print, sign, and scan via his home printer and the looking for a replacement battery. The District argues these circumstances establish good cause for late-filing as an honest mistake arising from circumstances beyond the control of the District’s counsel. CSEA filed a timely opposition to the District’s appeal, arguing that the District failed to establish good cause for its late filing, including because PERB Regulations deem a document to have been signed when electronically filed, meaning even with a faulty pen and malfunctioning scanner, the District’s counsel could have timely filed.
The Board noted that while the brief delay was not prejudicial, it nonetheless did not find that the District established good cause for late filing. A review of the current applicable PERB Regulations would have revealed that District counsel’s customary practice of signing with his digital pen was not necessary. Under PERB Regulation 32092, subdivision (a), a digital pen is not required to execute a valid electronic signature. Under subdivision (b), PERB would have deemed the District’s response to have been signed when it was electronically filed, even without the written signature of the digital pen. Therefore, the District’s counsel could have timely submitted the District’s response through e-PERB without spending time searching for a battery for his digital pen. Furthermore, it was within the District’s counsel’s control to ensure his digital pen was working or to have an extra battery readily available when he knew he planned to use this tool to file.
Disposition: The Board affirmed the Appeals Office’s rejection of the District’s late filing.
Perc Vol: 47
Perc Index: 94
Decision Headnotes
1110.01000 – In General; Standards
Generally, “good cause to excuse a late filing exists where the delay is of short duration and based on circumstances that were either unanticipated or beyond the party’s control.” (City and County of San Francisco (2021) PERB Decision No. 2757-M, p. 9, citing Regents of the University of California (2018) PERB Decision No. 2601-H, p. 15; see, e.g., Trustees of the California State University (2016) PERB Order No. Ad-432-H, p. 8; State of California (Department of Corrections) (2006) PERB Decision No. 1806-S, p. 7; United Teachers of Los Angeles (Kestin) (2003) PERB Order No. Ad-325, p. 4.) A late filing will generally be excused when it has resulted in a short and non-prejudicial delay, and it was the result of either “circumstances beyond the control of the filing party or from excusable misinformation, where the filing party’s explanation was credible on its face or was corroborated by other facts or testimony.” (Bellflower Unified School District (2017) PERB Order No. Ad-447, p. 4 (Bellflower).) Regardless of the particular reason(s) given, the party must provide sufficient factual detail to establish a “reasonable and credible” explanation for its untimely filing or show that it at least made a conscientious effort to comply with the filing deadline. (Trustees of the California State University, supra, PERB Order No. Ad-432-H, p. 8; Newport-Mesa Unified School District (2008) PERB Order No. Ad-373, p. 3.)
1110.01000 – In General; Standards
On multiple occasions, the Board has found no good cause where the party’s attorney failed to follow or misconstrued PERB’s filing regulations. (See Lake Elsinore Unified School District (2017) PERB Order No. Ad-446, pp. 10-11; State of California (Department of Corrections) (2003) PERB Order No. Ad-328-S, pp. 3-5; State of California (Water Resources Control Board) (1999) PERB Order No. Ad-294-S, pp. 5-6; Calipatria Unified School District (1990) PERB Order No. Ad-217, pp. 12-13.) Here, the Board found that the existence of a regulation which would have allowed the District to timely file, even given the circumstances outlined in the appeal, supports that the District did not have good cause for an untimely filing.
1503.03000 – Regulations Considered (By Number) (Continued)
The Board affirmed the Appeals Office’s determination that the District’s response to CSEA’s exceptions was due by 11:59 p.m. on November 7, and that because PERB Regulation 32110, subdivision (f) deems a document filed after 11:59 p.m. as being filed the next business day, the District’s response through e-PERB on November 8, at 12:01 a.m., was untimely.
1503.03000 – Regulations Considered (By Number) (Continued)
Under PERB Regulation 32092, subdivision (a), a digital pen is not required to execute a valid electronic signature. Under subdivision (b), PERB would have deemed the District’s response to have been signed when it was electronically filed, even without the written signature of a digital pen. Therefore, the District’s counsel could have timely submitted the District’s response through e-PERB without spending time searching for a battery for his digital pen. The Board found that the existence of a regulation which would have allowed the District to timely file, even given the circumstances outlined in the appeal, supports that the District did not have good cause for an untimely filing.