October 2012

Ex Parte Communications with the Water Boards Are Now Permissible

Attorney Authors: 

Public entities, businesses, and anyone else regulated by the State and Regional Water Boards have something new to cheer about: ex parte communications are now allowed in specified adjudicatory proceedings.  Governor Brown recently signed SB 965 into law, which allows interested persons to communicate with members of the water board while one of the following actions is pending: adoption, modification, or rescission of (1) state waste discharge requirements and federal NPDES permits, (2) conditional waivers of waste discharge requirements, and (3) conditions of water quality certifications.  However, the boards can choose to block further ex parte communications beginning 14 days before the proceeding occurs. Existing law prohibited all such communications at any time while an adjudication was pending before the boards.

There is one big catch, however. 

Peace Officer Personnel Records May Be Discoverable In Administrative Proceedings

The Pitchess procedure allows for the discovery of confidential personnel records of peace officers in specific circumstances.  These records can be disclosed only where they are material to the subject matter of pending litigation, and only after an in camera inspection of the records by a court prior to disclosure.  Typically, Pitchess motions – which are usually made by criminal defendants – occur in the courts.  Under existing case law, Pitchess discovery cannot be used in certain administrative hearings, particularly where the records are not relevant to the issues in the hearing.  Many assumed that Pitchess discovery could not be used in any administrative proceeding.