Rains Lucia Stern St. Phalle & Silver

California's premier full-service law firm with an emphasis on the representation of peace officers in disciplinary, criminal, labor, workers' compensation, personal injury and other civil matters.

  • About Us
  • Practice Areas
    • Labor Representation
    • Civil Litigation
    • Personal Injury
      • Example of Case Results
    • Workers’ Compensation
    • Maritime Law
    • Estate Planning
    • DOE Security Clearance Hearings
    • Peace Officers
    • Firefighters
    • EMS Agency Investigations
    • Criminal Defense
    • CalPERS Appeals
  • Our Team
  • Classes
  • Media
    • Bulletins
    • RLS in the News
  • Resources
    • Links
    • Resources
    • Newsletters
  • Clients
  • Career Opportunities
  • Contact Us
  • Disclaimer

Remote Administrative Hearings

March 23, 2021 by Hien Nguyen

Is the expediency of proceeding remotely worth the conceivable risks?

By: Robert M. Wexler

As COVID-19 continues to ravage, its effects have been felt in all walks of life. Like others who have had to adapt to meet the needs of clients, labor lawyers have turned to technology to supplement our traditional means of delivering services. Ten months ago, few people knew of Zoom, and even fewer would have imagined it would so quickly morph into a widely used verb that permeates our daily vernacular (“Do you want to Zoom this afternoon?”). Similar products like Teams, WebEx, GoToMeeting and Google Meets have allowed parties to “meet” remotely, when in-person meetings are unadvisable. But what about conducting full-blown administrative evidentiary hearings using these remote meetings tools?  Is it advisable?  What are the pitfalls?

With the initial “stay at home” mandates, most pending hearings were temporarily postponed by weeks or months. But as reality set in, it became apparent that pending administrative trials, which routinely require multiple people be in one room – litigants, investigators, witnesses, lawyers, a court reporter and a hearing body – may need to be postponed indefinitely, especially if one or more of the necessary participants was deemed at “high risk” of succumbing to the worst effects of the virus. To address the growing backlog of pending cases, some hearing bodies began offering litigants the opportunity to conduct remote “virtual” hearings.  Others, such as the Los Angeles County Civil Service System, have even attempted to mandate participation in remote evidentiary hearings.

In the case of Los Angeles County, that decision, made unilaterally and without acquiescence of the affected unions, is the subject of a legal challenge. Unions should know that any substantive changes to the administrative disciplinary appeal process is likely a mandatory subject of bargaining. (Phillips v. State Personnel Bd. (1986) 184, Cal.App.3d 651; Cerini v. City of Cloverdale (1987) 191 Cal.App.3d 1471.) Any mandate to participate in a remote hearing, where the rules either expressly or implicitly provide for an in-person hearing, is likely going to require the employer to meet and confer in good faith with the recognized employee organization and either reach agreement or exhaust the applicable impasse processes. Thus, an employee organization faced with an employer proposal to move to remote hearings should, minimally, avail itself of the opportunity to meet and confer, if for no other reason than to address the issues identified below.

Whether the labor union of an employee facing a disciplinary appeal hearing voluntarily agrees to a remote hearing is a matter that must be decided on a case-by-case basis, after consultation with legal counsel. However, serious consideration should be given to some of the limitations necessarily applicable to remote hearings, which could significantly compromise parties’ examination and cross-examination of witnesses and impact the outcome. Some of the issues that should be addressed, to the extent possible, are:

  • Ensuring witness seclusion. A witness who is testifying at a remote location is not improperly reading a script, accessing documents, or being coached remotely (e.g., text message) by someone else in the same room as the witness who is not visible on camera;
  • Compelling “attendance” of a witness remotely. Witnesses, especially adverse witnesses, must have the means to navigate the remote meeting program, have computer access with adequate internet bandwidth, and be willing and competent enough to overcome the myriad internet issues that could occur mid-hearing;
  • Introducing evidence. Planning how to introduce and share evidence when the witness, parties, hearing body and court reporter are each at separate, remote locations presents advocacy challenges. Mandating advance exchange of exhibits may address this issue somewhat, but doing so may significantly impact trial strategy and due process. For various reasons a party may not want to grant the hearing body advance access to evidence that is ultimately inadmissible, or may wish to withhold certain evidence until the hearing has begun. Also, there is no meaningful way to “surprise” an adverse witness on the stand with evidence on cross-examination if the evidence must be sent to the witness in advance of the hearing;
  • Impeachment evidence. Using impeachment evidence effectively is significantly impacted as there are limited ways to provide the impeachment evidence to all the relevant parties in the middle of a witness’s testimony, unless all participants agree to monitor their email during the hearing or documents can be displayed and shared on video screens;
  • Attorney-client communications. Attorneys and their clients must pre-plan how they will confer with each other during the hearing and out of earshot of the opposition or hearing body;
  • Use of physical evidence. Testimony sometimes requires the use of demonstrative, physical evidence (i.e., baton, handcuffs, gun), and sometimes witnesses must meaningfully “act out” physical actions. Both presentations of evidence are significantly impacted by a remote hearing;
  • Witness credibility. Lastly, and most critically, viewing a witness through a screen, when the witness’s face is front-and-center and appears larger than real life, can significantly impact a hearing body’s credibility assessments. Witnesses must be coached to mind their presence and facial expressions more than ever.

The above list is not intended to suggest that remote hearings per se impair justice or should be avoided. To the contrary, this author has, in consultation with his clients, agreed to conduct certain hearings remotely. This article is meant only to advise associations of their right to meet and confer over mandates to utilize remote hearings and to suggest that they consider each of the above issues – at least – in determining whether the expediency of proceeding remotely is worth the conceivable impacts to a case.

Be Safe!

About the author

Robert Wexler is the managing partner of the firm’s Southern California practice.  He has been representing public employee associations and their members for over 25 years and has represented some of the largest law enforcement and firefighter unions in California. 

RLS partner Ken Yuwiler provided meaningful input for this article.

Disclaimer: Case law and analysis can change over time. The information in this article is accurate as of the date the article was written and should not constitute legal advice. Always consult with an attorney.

Filed Under: Bulletins Tagged With: robert-m-wexler

Consultation Form

Offices across California to serve you.
Contact us now to schedule a consultation.
Contact form not loading? Click here!
Rains Lucia Stern St. Phalle & Silver, PC publishes this website as a service to our clients and other friends for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of information through this website is not intended to create an attorney-client relationship between sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

© 2023 Rains Lucia Stern St. Phalle & Silver, PC. All Rights Reserved. | Disclaimer

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept”, you consent to the use of ALL the cookies.
Do not sell my personal information.
Cookie settingsACCEPTREJECT
Privacy & Cookies Policy

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Non-necessary
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
SAVE & ACCEPT
  • Contact Us

  • News Alerts

Official logo for Rains Lucia Stern St. Phalle & Silver
Rains Lucia Stern St. Phalle & Silver Logo
  • About Us
  • Practice Areas
    ▼
    • Labor Representation
    • Civil Litigation
    • Personal Injury
      ▼
      • Example of Case Results
    • Workers’ Compensation
    • Maritime Law
    • Estate Planning
    • DOE Security Clearance Hearings
    • Peace Officers
    • Firefighters
    • EMS Agency Investigations
    • Criminal Defense
    • CalPERS Appeals
  • Our Team
  • Classes
  • Media
    ▼
    • Bulletins
    • RLS in the News
  • Resources
    ▼
    • Links
    • Resources
    • Newsletters
  • Clients
  • Career Opportunities
  • Contact Us
  • Disclaimer
Hotline phone numbers. Northern California: 925-609-1699. Southern California: 310-393-1486.