PERB: No Sua Sponte Amendment Of Complaint By ALJ

City of Inglewood (2015) PERB Decision No. 2424-M (Issued on 6/1/15)

This was a procedurally odd case. But for purposes of discussion, the only necessary fact is this: At a hearing involving an employee in pro per, the administrative law judge amended the complaint sua sponte (Latin for “of one’s own will”) to allege that the employer did not follow its own local rules. The employer objected.

In addressing this issue, the Board affirmed the general “unalleged violations doctrine” which allows an ALJ to amend a complaint to include unalleged violations under the following circumstances: (1) adequate notice and opportunity to defend has been provided to the respondent; (2) the conduct is intimately related to the subject matter of the complaint and part of the same course of conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have had the opportunity to examine and be cross-examined. However, in this case the Board emphasized that the “unalleged violations doctrine” requires a party to raise the issue; it should not be done by the ALJ. According to the Board:

[S]ua sponte amendments are not authorized by the regulations. They encroach on the duties and powers of the Office of the General Counsel, impair the rights of the parties to control the litigation and raise questions of neutrality.

Thus, the Board held that it was improper for the ALJ in this case to amend the complaint on the ALJ’s own motion.

Comments:

I only highlight this case because it offers a chance review the “unalleged violations doctrine.” This doctrine is important because it often arises during a hearing. The reality is that unless you can show that you would be prejudiced in some way, most motions to amend a complaint to include unalleged violations are granted. So that’s something practitioners should be aware of when conducting a hearing.
I didn’t provide a summary of the facts since it was not necessary to my main point. However, the City in this case did make a motion to dismiss the complaint prior to hearing, which was partially granted. In its decision, the Board stated that this case should have been disposed of in its entirety based on the motion to dismiss. I note this because I am often asked by clients whether it’s possible to get a complaint dismissed on a motion prior to hearing. I always say that it’s possible, but very difficult. As this case demonstrates, if the motion to dismiss is purely one of law—something akin to a demurrer—then that’s something the ALJ will hopefully consider and rule on before a hearing. However, if the motion to dismiss is more akin to a motion for summary judgment, where disputed issues of fact may exist, that’s something the ALJ will deny.