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(b) A communication made on the record in the hearing is permissible.
(c) A communication concerning a matter of procedure or practice is presumed to be permissible unless the topic of the communication appears to the Hearing Officer to be controversial in the context of the specific case. If so, the Hearing Officer shall so inform the other participant and may terminate the communication or continue it until after giving all Parties notice and an opportunity to participate. Any written communication concerning a matter of procedure or practice, and any written response, or a written memorandum identifying the participants and stating the substance of any such oral communication or response, shall be added to the case file so that all Parties have a reasonable opportunity to review it. Unless otherwise provided by statute or these Rules, the appointed Hearing Officer may determine a matter of procedure or practice based upon a permissible ex-parte communication. The term matters of procedure or practice shall be liberally construed.
(d) A communication from the Chief DAS to the Hearing Officer or the Administrator which is deemed permissible under Government Code section 11430.30 is permitted only if any such written communication and any written response, or a written memorandum identifying the participants and stating the substance of any such oral communication or response, is added to the case file so that all Parties have a reasonable opportunity to review it.
(e) If the Hearing Officer or the Administrator receives a communication in violation of this Rule, he or she shall comply with the requirements of Government Code section 11430.50.
(f) To the extent not inconsistent with Labor Code section 1777.7, the provisions of Article 7 of Chapter 4.5 of Title 2, Division 3, Part 1 (commencing with section 11430.10) of the Government Code governing ex parte communications in administrative adjudication proceedings shall apply to review proceedings conducted under these Rules.
(g) This Rule shall not be construed as prohibiting communications between the Administrator and the Chief DAS or between the Administrator and any other interested Person on issues or policies of general interest that coincide with issues involved in a pending review proceeding; provided that (1) the communication does not directly or indirectly seek to influence the outcome of any pending proceeding; (2) the communication does not directly or indirectly identify or otherwise refer to any pending proceeding; and (3) the communication does not occur at a time when the Director or the other party to the communication knows that a proceeding in which the other party to the communication is interested is under active consideration by the Administrator.
Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11430.10, 11430.20, 11430.30, 11430.40, 11430.50, 11430.60, 11430.70 and 11430.80, Government Code.
1. New section filed 7-29-2004; operative 8-28-2004 (Register 2004, No. 31).
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