(a)(1) "Recusal" means refraining from participation in a case or proceeding, including but not limited to refraining from an attempt to influence any other person with respect to the matter.(2) "Party representative," as used in this Section, means any person who has advised a party regarding the specific events giving rise to the case or proceeding at issue, entered an appearance in the case or proceeding, or otherwise been designated by a party as that party's representative in the case or proceeding.(b) A Board member, Board agent, conciliator, mediator, or other PERB officer, employee, or contractor shall recuse themselves from a case or proceeding if any one of the following circumstances exists: (1) They have a financial interest in the outcome of the case or proceeding, or is indebted, through money borrowed as a loan, to a party, party representative, or witness in the case or proceeding.(2) They are related, by consanguinity or affinity within the third degree computed according to the rules of law, to a party, party representative, or witness in the case or proceeding.(3) They at any time participated in the specific events giving rise to the case or proceeding, or served as a party representative in the case or proceeding.(4)(A) For personnel covered by this Section other than Board members and Legal Advisors, within one year prior to the initial filing date of the case or proceeding, or at any time thereafter, they: 1. were an officer, director, trustee, or employee of an entity that is a party in the case or proceeding;2. personally served as an attorney, or as a non-attorney representative, on behalf of any person or entity that is a party or witness in the case or proceeding; or3. held a paid position, including but not limited to a position as an employee, contractor, partner, or shareholder, with a law firm, legal department, or other organization representing a person or entity that is a party or witness in the case or proceeding.(B) For Board members and Legal Advisors, if, within one year prior to the date that any appeal, exceptions, motion, or request in the case or proceeding was first placed on the Board's docket, or at any time thereafter, they: 1. were an officer, director, trustee, or employee of an entity that is a party in the case or proceeding;2. personally served as an attorney, or as a non-attorney representative, on behalf of any person or entity that is a party or witness in the case or proceeding; or3. held a paid position, including but not limited to a position as an employee, contractor, partner, or shareholder, with a law firm, legal department, or other organization representing a person or entity that is a party or witness in the case or proceeding.(5) As a result of other circumstances, they cannot fairly consider the case or proceeding, or the interests of justice require recusal.(c) If a Board member learns of any facts which, under the provisions of this Section, warrant recusal from a case or proceeding before the Board itself, they shall recuse and notify the Board of such recusal. If the General Counsel, Chief Administrative Law Judge, or Division Chief of the State Mediation and Conciliation Service learns of any facts which, under the provisions of this Section, warrant recusal from a case or proceeding in which they would otherwise be directly or indirectly involved, they shall recuse, notify the Board of such recusal, and designate a replacement to act in their place regarding such case or proceeding. If any other Board agent, conciliator, mediator, or PERB official, employee, or contractor learns of any facts which, under the provisions of this Section, warrant recusal from a case or proceeding in which they might otherwise be directly or indirectly involved, they shall notify their supervisor, who shall take appropriate action.(d) Any party to a case or proceeding before the Board itself may file directly with a Board member a written motion for recusal. The motion shall set forth by competent evidence all relevant facts. A motion for recusal must be filed and served on all parties no later than twenty (20) days after the party seeking recusal first knew or should have known that the Board member was eligible to be assigned to a panel in the case or proceeding and should be recused from the case or proceeding. Any response to such a motion by another party must be filed and served on all parties within ten (10) days after service of the motion. There shall be no reply briefs unless requested by the Board. The Board member subject to the recusal motion shall decide the motion. If the motion is denied, then the party seeking recusal can seek review from the Board itself within ten (10) days from such denial. Any response by another party to such a request for review must be filed and served on all parties within ten (10) days after service of the motion. There shall be no reply briefs regarding such a request for review, unless requested by the Board.(e) Any party to a case or proceeding that is not before the Board itself may file a motion for recusal directly with any Board agent, conciliator, or mediator to whom the matter is assigned. Such motion shall be written, or if oral, reduced to writing within 24 hours of the motion. The motion shall set forth by competent evidence all relevant facts. A motion for recusal must be filed no later than twenty (20) days after the party first knew or should have known that the Board agent, conciliator, or mediator has been assigned a formal role in the case or proceeding. Any response to such a motion by another party must be filed and served on all parties within ten (10) days after service of the motion. There shall be no reply briefs unless requested by the Board agent. The Board agent, conciliator, or mediator subject to the recusal motion shall decide the motion, unless otherwise ordered. If the motion is granted, a new Board agent, conciliator, or mediator shall be assigned. If the motion is denied, the party seeking recusal may, within ten (10) days after its motion for recusal is denied, file with the Board itself a request for special permission to appeal such denial. If the Board does not grant special permission to appeal the denial, the party seeking recusal may file an appeal after hearing or investigation and issuance of any decision, and may choose to combine such an appeal with an appeal or exceptions as to the merits.(f) Any party aggrieved by the Board's determination regarding a motion for recusal may include the matter in a writ of extraordinary relief filed pursuant to Government Code Section 3509.5, 3520, 3524.73, 3542, 3564, 71639.4 or 71825.1 or Public Utilities Code section 99562 seeking judicial review of the Board's decision on the merits, or, in cases reviewed by the Board itself pursuant to Section 32635, in a writ proceeding in superior court challenging the Board's refusal to issue a complaint.(g) Nothing herein shall preclude any person subject to recusal from invoking the rule of necessity as provided for under section 87101 of the Government Code.Cal. Code Regs. Tit. 8, § 32155
Note: Authority cited: Sections 3509(a), 3513(h), 3524.52(a), 3541.3(g), 3551(a), 3555.5(c), 3563, 3603, 71639.1(b) and 71825(b), Government Code; and Sections 28849(b), 30751, 40122, 40122.1(a), 70122, 90300, 98162.5, 99561(f), 100301, 101344, 102399(b), 102403, 103401, 120505, 125521, Appendix 1, Section 4.4 and Appendix 2, Section 13.91, Public Utilities Code. Reference: Sections 3509, 3509.5, 3513, 3520, 3524.52(a), 3524.73, 3541.3, 3542, 3551(a), 3555.5(c), 3557, 3563, 3564, 71639.1, 71639.4, 71825 and 71825.1, Government Code; and Sections 25052, 28849(b), 28851, 30751, 40122, 40122.1(a), 50121, 70122, 90300, 95651, 98162.5, 99561, 99562, 100301, 101344, 102399(b), 102403, 103401, 120505, 125521, Appendix 1, Section 4.4 and Appendix 2, Section 13.91, Public Utilities Code.
Note: Authority cited: Sections 3509(a), 3513(h), 3524.52(a), 3541.3(g), 3551(a), 3555.5(c), 3563, 3603, 71639.1(b) and 71825(b), Government Code; and Sections 30751, 40122, 70122, 90300, 98162.5, 99561(f), 100301, 101344, 102403, 103401, 120505, 125521, Appendix 1, Section 4.4 and Appendix 2, Section 13.91, Public Utilities Code. Reference: Sections 3509, 3509.5, 3513, 3520, 3524.52(a), 3524.73, 3541.3, 3542, 3551(a), 3555.5(c), 3557, 3563, 3564, 71639.1, 71639.4, 71825 and 71825.1, Government Code; and Sections 4.4, 13.91, 25052, 28851, 30751, 40122, 50121, 70122, 90300, 95651, 98162.5, 99561, 99562, 100301, 101344, 102403, 103401, 120505 and 125521, Public Utilities Code.
1. New section filed 1-20-83; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 83, No. 4).
2. Amendment of subsections (b)-(d) filed 10-10-85; effective thirtieth day thereafter (Register 85, No. 41).
3. Amendment of subsections (b) and (c) filed 12-29-88; operative 1-28-89 (Register 89, No. 4).
4. Amendment of subsection (a)(3) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).
5. Amendment of Note filed 6-11-2001 as an emergency; operative 7-1-2001 (Register 2001, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-29-2001 or emergency language will be repealed by operation of law on the following day.
6. Amendment of subsections (d) and (h) and amendment of Note filed 6-13-2001; operative 6-13-2001 (Register 2001, No. 24).
7. Certificate of Compliance as to 6-11-2001 order transmitted to OAL 10-18-2001 and filed 12-4-2001 (Register 2001, No. 49).
8. Amendment of subsection (h) and amendment of Note filed 2-2-2004 as an emergency; operative 2-2-2004 (Register 2004, No. 6). A Certificate of Compliance must be transmitted to OAL by 6-1-2004 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-2-2004 order transmitted to OAL 5-4-2004 and filed 6-8-2004 (Register 2004, No. 24).
10. Amendment of subsection (h) and amendment of Note filed 8-30-2004 as an emergency; operative 8-30-2004 (Register 2004, No. 36). A Certificate of Compliance must be transmitted to OAL by 12-28-2004 or emergency language will be repealed by operation of law on the following day.
11. Amendment of subsection (h) and amendment of Note refiled 12-27-2004 as an emergency; operative 12-29-2004 (Register 2004, No. 53). A Certificate of Compliance must be transmitted to OAL by 4-28-2005 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 12-27-2004 order transmitted to OAL 4-26-2005 and filed 5-31-2005 (Register 2005, No. 22).
13. Amendment of subsection (h) and Note filed 4-11-2006; operative 5-11-2006 (Register 2006, No. 15).
14. Amendment of subsection (a) and amendment of Note filed 3-18-2013; operative 7-1-2013 (Register 2013, No. 12).
15. Amendment of subsection (h) and Note filed 12-6-2013 as an emergency; operative 12-6-2013 pursuant to Government Code section 110035.5 (Register 2013, No. 51). This regulatory action is deemed an emergency exempt from OAL review and was filed directly by the agency with the Secretary of State pursuant to Government Code section 110035.5. A Certificate of Compliance must be transmitted to OAL by 6-4-2014 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 12-6-2013 order transmitted to OAL 5-29-2014 and filed 7/10/2014 (Register 2014, No. 28).
17. Change without regulatory effect amending subsection (h) and Note filed 5-8-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 19).
18. Amendment of Note filed 12-27-2019; operative 4/1/2020 (Register 2019, No. 52).
19. Amendment of section heading and repealer and new section filed 10-20-2021; operative 1/1/2022 (Register 2021, No. 43). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20.
20. Amendment of subsection (f) and Note filed 4-18-2023; operative 7/1/2023 (Register 2023, No. 16).
21. Change without regulatory effect amending section filed 7-27-2023 pursuant to section 100, title 1, California Code of Regulations (Register 2023, No. 30).
22. Change without regulatory effect amending subsection (c) filed 11-6-2023 pursuant to section 100, title 1, California Code of Regulations (Register 2023, No. 45).
23. Amendment of NOTE filed 6-5-2024; operative 10/1/2024 (Register 2024, No. 23).