Effective January 1, 2022, new PERB regulations are going into effect regarding: (1) the circumstances requiring Board members and employees to recuse themselves from proceedings; (2) the filing of exceptions to Proposed Decisions; (3) the use of subpoenas and motions in formal hearings; and (4) standards for obtaining continuances of a formal hearing. The text of the new regulations can be found here.
Here are some of the highlights of the new regulations:
- Subpoenas: The regulations now distinguish between a “testimonial subpoena” and a “records subpoena” and, for the first time, provide timelines for the service of subpoenas. There are also new timelines for filing a motion to revoke or limit a subpoena. Also of note, as an alternative to seeking Superior Court enforcement of a subpoena the new regulations now allow the ALJ to draw an “adverse inference” from a party’s failure to comply with a valid subpoena. (PERB Reg. 32150)
- Motions: The regulations now provide that any motions, including motions to dismiss and motions “styled as motions for summary judgment or for judgment on the pleadings,” must be filed no later than 45 days prior to the first day of hearing. (PERB Reg. 32190)
- Continuances of a Formal Hearing: Requests to continue a formal hearing filed fewer than 7 days prior to the hearing must now demonstrate “extraordinary circumstances.” Requests filed more than 7 days prior to the hearing must still demonstrate “good cause.” (PERB Reg. 32205)
- Exceptions to the Board: There is now a 14,000 word limit for the statement of exceptions to a proposed decision and for any response. (PERB Reg. 32300, 32310) For the first time, the regulations now expressly permit the filing of a reply brief within 10 days following the filing of the response to exceptions/cross-exceptions. The reply brief is limited to 5,000 words. (PERB Reg. 32312)