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Although the California Administrative Procedure Act (APA), Gov. Code, § 11340 et seq., broadly prohibits ex parte contacts between parties, including agency parties, and decisionmakers during administrative adjudicative proceedings, communications are permitted regarding uncontroversial procedural matters. Gov. Code, § 11430.20, subd. (b). An agency decisionmaker may receive advice from nonadversarial agency personnel. An otherwise prohibited ex parte communication will be allowed if it is for the purpose of assistance and advice to the presiding officer from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall not furnish, augment, diminish, or modify the evidence in the record. Gov. Code, § 11430.30, subd. (a). Prosecutors and other adversarial agency employees are not permitted to have off-the-record contact about substantive issues with the agency head, or anyone to whom the agency head delegates decisionmaking authority, during the pendency of an adjudicative proceeding. Thus, the APA sets out a clear rule: an agency prosecutor cannot secretly communicate with the agency decisionmaker or the decisionmaker's advisor about the substance of the case prior to issuance of a final decision.
The Department of Alcoholic Beverage Control (Department) has exclusive licensing authority over entities that sell alcoholic beverages. Its procedures for adjudicating whether licensees have violated the terms of their licenses include an evidentiary hearing at which a Department prosecutor makes the Department's case to an administrative law judge (ALJ), and a second level of decisionmaking in which the Department's director or a delegee decides whether to adopt the ALJ's proposed decision. The Alcoholic Beverage Control Appeals Board concluded that the failure of the Department of Alcoholic Beverage Control to screen its decision maker and the decision maker’s advisers from communications with the department’s prosecutors deprived licensees of the right to a fair trial by a fair tribunal and constituted a due process violation. The Court of Appeal, Second Dist., Div. Seven, No. B177986, affirmed the board's decision, concluding that the department’s practice of having its prosecutor prepare a report of hearing, including a recommended outcome, and forward it to the department’s chief counsel while a final department decision was still pending, violated the licensees’ due process rights.
Was the Department's argument that the limits on ex parte communications extended only to communications during the trial stage, and not to those during the decision stage tenable?
The court addressed how the California Administrative Procedure Act (APA), Gov. Code, § 11340 et seq., and the Due Process Clause applied to a unitary administrative agency that combined prosecutorial and adjudicative functions in resolving administrative matters. It concluded that the Department's procedure violated the APA's bar against ex parte communications. The APA did not permit ex parte contacts between the Department's prosecutor and its ultimate decisionmaker or the decisionmaker's advisors about the substance of the case, prior to the decisionmaker rendering a final decision. While agencies had considerable leeway in how they structured their adjudicatory functions, they could not disregard certain basic precepts. One fairness principle directed that in adjudicative matters, one adversary should not be permitted to bend the ear of the decisionmaker in private. Another directed that the functions of prosecution and adjudication be kept separate, carried out by distinct individuals. The court rejected the Department's argument that limits on ex parte communications extended only to communications during the trial stage, not to those during the decision stage.