§ 10115.2. Appeal of Notice of Penalty Assessment; Conference Process and Delegation of Authority; Notice of Findings, Service.

(a) The Administrative Director may appoint a designee to conduct the appeal conference.

(b) The conference shall be held at the place, time, and date scheduled unless, upon a showing of good cause, a continuance has been granted. Notice of the conference date will be provided to the parties no late than thirty days before the conference.

(c) The appeals conference is an informal hearing in which the parties are given an opportunity to explain their positions and to present evidence in support of their positions. The conference need not be conducted in accordance with the formal rules of evidence, and legal representation is not required.

(d) The conference will be tape recorded, unless a party chooses to have it recorded by a court reporter. Should a party choose to use a court reporter, the party shall: (1) notify the Administrative Director and the opposing party no later than five days before the conference that a court reporter will be provided; and (2) make the arrangements for the reporter and pay the costs of the reporter and transcription, including the cost of a copy of the transcript for the Administrative Director.

(e) Either party may present live testimony or documentary evidence at the conference. The Administrative Director may issue subpoenas for the attendance of witnesses at the conference, or subpoenas duces tecum for the production of documents, if requested by a party in writing within a reasonable time before the conference. Any person who is subpoenaed to appear may, instead of appearing at the time specified in the subpoena, agree with the party at whose request the subpoena was issued to appear at another time or upon agreed notice. Any failure to appear according to that agreement may be treated in all respects as a failure to appear in response to the original subpoena. The facts establishing or disproving the agreement and failure to appear may be proved by an affidavit of any person having personal knowledge of the facts.

(f) All testimony shall be made on oath or affirmation administered by the Administrative Director or designee.

(g) The Administrative Director or the Director's designee shall preside over the conference and shall have authority to admit any relevant testimony or documentary evidence into the record, and to decide any issues which arise during the conference including objections to evidence, privileges, claims and defenses.

(h) If the appellant fails to appear at the conference, the Administrative Director shall dismiss the request for conference and issue an order affirming the notice of penalty assessment.

(i) Within 15 days of the date the appeal is submitted for decision, the Administrative Director shall issue a Notice of Findings. When a written decision without a conference was requested, the date of submission is the date the Administrative Director receives the Audit Unit's written response to the appeal unless that date is extended by the Administrative Director for good cause. The time limits for action by the Administrative Director are directory and not jurisdictional.

(j) The Notice of Findings shall be served on the appellant by registered or certified mail, and is final for purposes of judicial review upon receipt.

(k) The appellant must pay any amount found due by the Administrative Director within 30 days after receiving the Notice of Findings, but the 30-day period shall be tolled if the appellant files a timely petition for writ of mandate, as to any assessment included for review in the petition proceeding, until that proceeding has become final.

(l) The appellant may file a petition for a writ of mandate from the Administrative Director's Notice of Findings in accordance with Labor Code section 129.5(f). The deadline for filing the petition for writ is 30 days after receipt of the Notice of Findings.

HISTORY

1. Renumbering and amendment of former sections 10114 and 10115 to section 10115.2 filed 1-28-94; operative 1-28-94. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 94, No. 4).

2. Amendment of subsections (d), (g) and (l) filed 4-20-2009; operative 5-20-2009 (Register 2009, No. 17).

Note

Note: Authority cited: Sections 59, 129.5, 133 and 5307.3, Labor Code. Reference: Sections 7, 129 and 129.5, Labor Code.