Principles for Public Safety Employment

Effective January 1, 2011, subsection (b) states: “Notwithstanding subdivision (a), if the employing department is subject to a memorandum of understanding that provides for binding arbitration of administrative appeals, the arbitrator or arbitration panel shall serve as the hearing officer in accordance with [the Administrative Procedures Act] Chapter 5 (commencing with Section 11500) of Part I of Division 3 or Title 2 and notwithstanding any other provision that hearing officer’s decision shall be binding. However, a memorandum of understanding negotiated with an employing agency shall not control the process for administrative appeals instituted with licensing or certifying agencies. Any administrative appeal instituted with licensing or certifying agencies shall adhere to the requirements prescribed in subdivision (a).” The Administrative Procedure Act (“APA”) 271 contains a variety of hearing procedures. According to the APA, an agency must conduct an evidentiary hearing before issuing a decision if a statute or the due process clause of the California or U.S. Constitutions so requires. 272 In the employment context, an evidentiary hearing is generally required whenever an employee has lost  The informal hearing procedure in which no pre-hearing discovery or cross examination is used. 274  The formal hearing procedure in which pre-hearing discovery and cross examination are used. 275  Alternative dispute resolution procedures, including binding and non-binding arbitration, and mediation. 276 No matter which hearing category is used, the APA Bill of Rights applies. 277 At a minimum, the APA Bill of Rights requires that hearing proceedings provide the following:  Notice and an opportunity to be heard, including the opportunity to present and rebut evidence.  Written hearing procedures.  Hearings open to the public unless necessary to protect confidential or privileged information or to ensure a fair hearing.  Separate investigative, prosecutorial, adjudicative, and advocacy functions.  A presiding officer who is subject to disqualification for bias, prejudice, or interest. 278  A written decision that is based on the record and includes the factual and legal basis for the decision.  Restrictions on ex parte communications. any amount of pay as a result of a public agency decision. 273 The following are some of the categories of APA hearings:

To ensure compliance with the FBOR, agencies are advised to update their procedures to comport with the APA.

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