Expert Advice

By Mark Fogelman and Sarah E. Leeper
     
      Responsibility for assuring the ?reasonable? quality of California?s ground and surface waters rests with the State Water Resources Control Board and nine Regional Water Quality Control Boards. (Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13000?14958.) The regional boards establish and oversee waste-discharge requirements?and with the advent of more stringent requirements and aggressive enforcement, they increasingly threaten million-dollar fines for extended violations.
     
      Despite the high stakes, litigants are rarely afforded the due process rights typically provided in adjudicatory hearings before other administrative agencies?a serious concern given that a regional board hearing is the only opportunity a litigant has to present a case and that the agency is accorded a high level of deference on appeal.
     
      Until the Legislature or the courts strengthen the procedural safeguards for such proceedings, or the boards themselves institute reforms, practitioners and litigants must be prepared to fight aggressively for fair hearings. Knowing what to expect?and not expect?when you arrive for such a hearing can help.
     
      Don?t expect a formal hearing. The regional boards are required to provide ?formal hearing procedures? when the facts are disputed and $1,000 or more is at stake. (Cal. Gov?t Code § 11445.20; see Cal. Code Regs. tit. 23, § 648.7.) However, don?t expect to be afforded full and unfettered rights to discovery, to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses, to impeach any witness, or to rebut adverse evidence. (See Cal. Gov?t Code § 11513(b).)
     
      Instead, the boards commonly use procedures under Chapter 4.5 of the California Administrative Procedure Act, which may limit the parties to providing written or oral comments and may limit or eliminate entirely ?the use of witnesses, testimony, evidence, and argument, ? and the use of pleadings, intervention, discovery, prehearing conferences, and rebuttal.? (Cal. Gov?t Code § 11445.40.) Litigants are often afforded little more than the opportunity to make a speech at the hearing, which is normally one of dozens of items taken up by the water board at its monthly public meeting.
     
      Don?t expect a judge. Under the Administrative Procedure Act, a hearing in a contested case is supposed to be presided over by an administrative law judge. (Cal. Gov?t Code §§ 11502 and §11512; Usher v. County of Monterey, 65 Cal. App. 4th 210, 219 (1998).) However, don?t expect the board to appoint one, even though it has the authority to do so?and it is unrealistic to expect board members, who are not paid professionals, to dedicate the time and attention necessary to hear all the evidence, fully analyze the issues, and draft a proposed decision in such proceedings.
     
      Don?t expect evidence under oath. The California Government Code mandates that ?oral evidence shall be taken only on oath or affirmation.? (Cal. Gov?t Code §11513(a).) However, the regional boards commonly administer the oath en masse to everyone seated in the audience who may choose to take the oath. There is no record of whether a particular witness is under oath. Nevertheless, the statements of all the participants in the hearing become part of the public record.
     
      Expect potential conflicts of interest among staff. The government code requires that the ?adjudicative function shall be separated from the investigation, prosecutorial, and advocacy functions within the agency.? (Cal. Gov?t Code §11425.10(a)(4); see also, Haas v. County of San Bernardino, 27 Cal. App. 4th 1017, 1024 (2002).) However, counsel and staff acting as prosecutors before the regional board may also be acting in other matters as advisors to the board in its decision making, or as advisors to the state board as appellate tribunal.
     
      In fact, most such counsel have their offices together in the state board?s Office of Chief Counsel. As a result, an attorney who serves as a prosecutor in one case could have confidential communications or a special relationship with members of the decision-making or appellate tribunal in another case. This is true even though the knowledge of one attorney is generally imputed to all other attorneys in the office on the rationale that those working together share confidential information. (Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal. App. 4th 81, 93 (2003); Quintero v. City of Santa Ana, 114 Cal. App. 4th 810, 816 (2003); City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839 (2006); Cal. Gov?t Code §11430.10(a).)
     
      Mark Fogelman (mfogelman@reedsmith.com) is a partner at Reed Smith LLP and Sarah E. Leeper (sleeper@steefel.com) is an associate at Steefel, Levitt & Weiss, both in San Francisco, where both specialize in regulatory and appellate litigation.

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