1. (a) A board member or hearing officer, who received a communication about a pending proceeding prior to serving as a board member or hearing officer that would violate section 618.1 if it had been received while presiding at a hearing, shall promptly:

   1. (1) disclose the content of the communication on the record; and
   2. (2) give all parties an opportunity to respond under subdivision (d).

2. (b) If the board, a board member, or hearing officer receives a communication in violation of section 618.1 the board or hearing officer shall include the following in the record of the hearing:

   1. (1) a copy of any written communication;
   2. (2) a copy of any written response to a written or oral communication;

   3. (3) a memorandum about an oral communication that shall include:

      1. (A) the substance of the oral communication;
      2. (B) the substance of any oral response to the communication; and
      3. (C) the identity of each person from whom the communication was received.

3. (c) The board or hearing officer shall notify all parties that:

   1. (1) an impermissible ex parte communication was received; and
   2. (2) that the materials required by subsection (b) have been included in the hearing record.

4. (d) A party may comment on the prohibited ex parte communication if the party requests to comment within ten days of receiving the notice required by this section.

   1. (1) The board or hearing officer may allow a party who makes a timely request to present evidence about the subject of the communication.
   2. (2) The board or hearing officer may reopen the record of a hearing that has been concluded in order to take evidence permitted by subsection (d)(1).

Note: Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11430.40 and 11430.50, Government Code.

History

1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.

2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).

3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).