What Does It Take To Disqualify a Board Agent?

United Teachers of Los Angeles (Adams) (2011) PERB Decision No. 2205-E (Issued on 9/27/11)

Unlike the courts and some administrative agencies, PERB does not have a process allowing for a preemptory challenge against a Board agent and/or Administrative Law Judge.  Instead, PERB regulation 32155 provides that a party can request a Board agent to disqualify himself or herself, “whenever it appears that it is probable that a fair and impartial hearing or investigation cannot be held by the Board agent to whom the matter is assigned.”  What exactly does that mean?  In this case, the Board held that under PERB regulation 32155:

PERB has held that a “fixed anticipatory prejudgment” against a party must be shown to establish “prejudice” [footnote omitted] sufficient for Board agent disqualification.  (Gonzales Union High School District (1985) PERB Decision No. 480 (Gonzales); Coachella Valley Mosquito & Vector Control District (2009) PERB Decision No. 2031 -M.) Such prejudgment is established through statements or conduct by the Board agent indicating a clear predisposition against a party.  (Gonzales).  Adverse rulings by a Board agent against a party in a previous case, or erroneous legal or factual rulings, do not in themselves indicate prejudice. (Chula Vista Elementary EA, CTA (Larkins) (2003) PERB Order No. Ad-322 (Chula Vista).)

Practically, the standard above means that it is exceedingly difficult to disqualify a PERB
Board agent.  To my knowledge, there has never been a PERB decision finding that a Board agent should have disqualified herself or himself.  So word to the wise,
be careful making a disqualification motion.  You better have really solid evidence …

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