Governor Newsom Signs Bill Allowing for Virtual Administrative Hearings

On September 30, 2021, California Governor Gavin Newsom signed into law Assembly Bill (AB) No. 1578, which amends Government Code section 11425.20(a) to provide that administrative hearings shall be open to the public, including by live audio or video. The law becomes effective on January 1, 2022.

The legislative counsel’s digest summary of AB 1578 noted that “existing law requires an administrative hearing to be open to public observation, unless otherwise specified, and requires certain conditions to be met if the hearing is conducted by telephone, television, or other electronic means, including that the public have an opportunity to be physically present at the place where the presiding officer is conducting the hearing.” The law prescribes locations where an administrative hearing is authorized to take place.

AB 1578 amends the Government Code to “specify that, to the extent a hearing is conducted by telephone, television, or other electronic means, and is not closed as otherwise required by law, the requirement that the meeting be open to public observation can be satisfied if members of the public have an opportunity to be virtually present where the presiding officer is conducting the hearing.” Under AB 1578, in order for members of the public to be “virtually present” at a hearing, they must be able to “observe the meeting via a live audio or a video feed of the hearing made available to the public on the internet or by teleconference.”

Government Code section 11440.20 “requires a writing served to a person in conjunction with an administrative hearing to meet specified requirements, including that the writing be sent by mail to the person’s last known mailing address.” Government Code Section 11507.6 provides the requirements “for discovery and evidence review in relation to an administrative hearing.”

AB 1578 allows a written document to “be an electronic document,” and also “allow[s] a writing, electronic document, or notice to be delivered to the person’s last known mailing address by electronic means.” AB 1578 specifies that “discovery of certain categories of evidence may be conducted electronically by means prescribed by an administrative law judge.” Government Code section 11440.30 “authorizes the presiding officer of an administrative hearing to conduct all or part of a hearing by telephone, television, or other electronic means, as provided, unless a party objects.”

AB 1578 instead “limit[s] a party to objecting only when the entire hearing is being conducted by telephone, television, or other electronic means and require the presiding officer to consider the party’s objections.” Under the amended law, “the presiding officer, in their discretion, [may] structure the hearing to address the specific objections and to require specified persons to be present in a physical location during all or part of the hearing.”

Pursuant to California Labor Code section 148.7, the Occupational Safety and Health Appeals Board (OSHAB) “may adopt, amend, or repeal rules of practice and procedure pertaining to hearing appeals and other matters falling within its jurisdiction.” OSHAB’s rules are required to be made in accordance with the Government Code’s requirements regarding administrative hearings. Thus, it is expected that with the governor having approved AB 1578, at some point in the future, OSHAB will amend its regulations under Title 8 of the California Code of Regulations to allow for its hearings to be conducted virtually.