Cal. Code Regs. Tit. 4, § 12012 - Ex Parte Communication

(a) For purposes of this section, "ex parte communication" or "ex parte" means a communication upon the merits of an application without notice and opportunity for all parties to participate in the communication.

(b) The limitations on ex parte communication imposed by Business and Professions Code section 19872, subdivisions (a) and (b) apply when an application is submitted to the Bureau for investigation until the Bureau report is submitted to the Commission and the communication is upon the merits of the application.

(c) The limitations on ex parte communication imposed by Business and Professions Code sections 19872, subdivisions (a) and (c) apply when the Bureau report is submitted to the Commission until a decision is final pursuant to Section 12066 and the communication is upon the merits of the application.

(d) When the ex parte provisions of subsections (b) or (c) apply, the following communications will not be considered ex parte:

(1) Communications related to undisputed issues of practice and procedure that are not upon the merits of an application.

(2) Communications made at an evidentiary hearing or Commission meeting and which concern a properly noticed matter.

(3) Information or documents provided by the applicant, or his, her, or its designated agent, upon the merits of an application pending disposition before the Bureau or Commission to an advisor or member of the Commission which is simultaneously provided to the Bureau or advocate of the Commission, if one has been designated.

(4) Information or documents provided by the Bureau or an advocate of the Commission, upon the merits of an application pending disposition before the Commission to an advisor or member of the Commission which is simultaneously provided to the applicant.

(5) Information or documents provided by any other interested person upon the merits of an application pending disposition before the Bureau or Commission to an advisor or member of the Commission which is simultaneously provided to both the Bureau and an advocate of the Commission, if one has been designated, and the applicant.

(6) Communications between an advisor of the Commission and a member of the Commission.

(7) Information or documents provided by the Bureau upon the merits of an application pending disposition before the Commission to an advisor or member of the Commission pursuant to Business and Professions Code section 19822, subdivision (b), but that cannot be provided to the applicant pursuant to Business and Professions Code section 19821, subdivision (d), and section 19868 subdivisions (b)(3) and (c)(2), and which is provided as follows:

(A) The Bureau first provides redacted information or documents to both an advisor or member of the Commission and the applicant;

(B) If an advisor or member of the Commission requests an unredacted copy of the information or documents, the Commission will provide a notice to the applicant, pursuant to Section 12006, allowing at least 14 calendar days for the applicant to object and pursue any appropriate judicial remedies to challenge the request and seek a judicial in camera review of the confidentiality and relevancy of the information; and,

(C) The Bureau will provide the unredacted information or documents only to an advisor or member of the Commission and only after the time period specified to seek judicial review has elapsed, or the appropriate judicial remedies have been exhausted, whichever is later.

(e) The limitations on ex parte communication imposed by Government Code sections 11430.10 through 11430.80 apply from when:

(1) The Executive Director has elected to hold an evidentiary hearing under subsection (a) of Section 12060 until any decision is final pursuant to Section 12066;

(2) The Commission has elected to hold an evidentiary hearing under paragraph (4) of subsection (a) of Section 12054 until any decision is final pursuant to Section 12066; or,

(3) The Bureau has filed an accusatory pleading under Section 12554 or Business and Professions Code section 19930 until any decision is final pursuant to Government Code section 11519.

(f) If an applicant, the Bureau or other interested person or an advocate of the Commission, if one has been designated, communicates directly or indirectly on an ex parte basis with a member of the Commission, including indirectly through submission of information or documentation to an advisor of the Commission, then:

(1) All information, documentation and responses must immediately be provided to the Bureau, or an advocate of the Commission, if one has been designated, and the applicant.

(2) That communication, if by the applicant, may be used as a basis for denial of the application pursuant to Business and Professions Code sections 19856, 19857 and subdivision (d) of section 19872.

(3) Any meeting or hearing following the provision of this communication may be delayed as necessary to allow for the full participation of all parties.

(g) A member of the Commission who is involved in a communication on an ex parte basis with an applicant, the Bureau, other interested persons or an advocate of the Commission, if one has been designated, must publicly disclose the communication, and provide notices to both the applicant and Bureau pursuant to Section 12006. The notice will contain any information or document(s) conveyed and will be provided to the applicant and the Bureau as soon as possible so that they may participate in the communication. Any meeting or hearing following the provision of this communication may be delayed as necessary to allow for the full participation of all parties. The member of the Commission may voluntarily withdraw from consideration of an application as long as the withdrawal would not prevent the existence of a quorum qualified to act on the particular application.

(h) An advisor of the Commission may communicate and convey information or documents upon the merits of an application as long as it is simultaneously conveyed to the applicant, the Bureau, and the advocate of the Commission, if one has been designated, so that they may participate in the communication.

Notes

Cal. Code Regs. Tit. 4, § 12012

1. New section filed 11-25-2014; operative 1-1-2015 (Register 2014, No. 48).
2. Amendment of subsections (b)-(d) and (d)(3), new subsection (d)(6), subsection renumbering, amendment of newly designated subsections (d)(7)(B)-(C) and subsections (e), (f)(1) and (g) filed 1-22-2020; operative 4-1-2020 (Register 2020, No. 4).
3. Amendment of subsections (a), (d)(2) and (e)(2) filed 2-8-2022; operative 4-1-2022 (Register 2022, No. 6).

Note: Authority cited: Sections 19811, 19823, 19824, 19840, 19841 and 19872, Business and Professions Code; and Sections 11400.20, 11410.40, 11415.10 and 11415.20, Government Code. Reference: Sections 19821, 19822, 19825, 19868, 19870, 19871, 19872 and 19930, Business and Professions Code; and Sections 11425.10, 11430.10, 11430.20, 11430.30, 11430.50 and 11430.60, Government Code.

1. New section filed 11-25-2014; operative 1/1/2015 (Register 2014, No. 48).
2. Amendment of subsections (b)-(d) and (d)(3), new subsection (d)(6), subsection renumbering, amendment of newly designated subsections (d)(7)(B)-(C) and subsections (e), (f)(1) and (g) filed 1-22-2020; operative 4/1/2020 (Register 2020, No. 4).
3. Amendment of subsections (a), (d)(2) and (e)(2) filed 2-8-2022; operative 4/1/2022 (Register 2022, No. 6).