Prohibition on Ex Parte Communication
An “ex parte” communication is a communication between a hearing officer, an AHO staff member, or another member of the hearing team and one party or one party’s representative, when all of the other parties or their representatives have not been notified of the communication or have not been given opportunities to participate in the communication. An ex parte communication could include a communication between a Board staff member who is on the hearing team or a Board member and one or more parties (or their representatives) about a hearing, when all of the other parties or their representatives have not been notified of the communication or have not been given opportunities to participate in the communication.
In enforcement proceedings, there normally is a Prosecution Team, which includes attorneys from the Board’s Office of Enforcement and staff from the Division of Water Rights Enforcement Section. The Prosecution Team is a party to such proceedings and is subject to these ex parte communication rules.
The AHO normally prohibits all ex parte communications involving AHO hearing officers or AHO staff. This means that parties to a hearing may not communicate, off the record, with AHO hearing officers or AHO staff about the substance of the hearing or major hearing procedures unless the AHO has notified all other parties of the proposed communication and given all other parties opportunities to participate in the communication or discussion.
To avoid ex parte communications, all communications about a hearing with the AHO hearing officer or other AHO staff, or with Board staff on the hearing team or Board members, should be through e-mails with the e-mail addresses of all other parties included on the “cc” line of the e-mail, or by paper letters, with all other parties listed on the letter’s “cc” list. Upon receipt of communications addressed to the AHO, or communications to Board staff or Board members concerning matters before the AHO, the AHO will file copies of the communications in the folder on the Board’s FTP site for the matter.
Parties to a hearing may communicate with each other (such as during settlement negotiations or to make arrangements about exhibits) at any time. As long as no AHO hearing officer or other AHO staff member is involved, these are not improper ex parte communications.
For more information about the Water Board’s policies on ex parte communication, please see the memo entitled “Ex Parte Questions and Answers” available at https://www.waterboards.ca.gov/laws_regulations/docs/exparte.pdf.