New Motor Vehicle Board (Zaheri) (1997) 55 Cal.App.4th 1305, 1319, the Court spoke of the harm that secret ex parte communications could have on the requirement of due process: When an administrative adjudicator uses evidence outside the record there is a denial of a fair hearing because, as to that evidence, there has been no hearing at all, for the disadvantaged party has not been heard. (Citations omitted.) If a trialtype hearing is required by due process of law (see 2 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) § 9.5, pp. 4361), its deprivation a fortiori violates the due process precept. The prohibitions against improper ex parte communications are measures imposed to avert this kind of due process violation. Proper adherence to the rules regarding the avoidance of improper ex parte communications, as well as the duty to report such communications, assures the parties and the public that the decisionmakers have comported themselves in an impartial manner. (See Zaheri, supra, 55 Cal.App.4th at 1319; D.0707020, 22.) When an ex parte violation has been found, “the Commission has broad authority under the Public Utilities Code to impose such penalties and sanctions, or make any other order, as it deems appropriate to ensure the integrity of the formal record and to protect the public interest.” The Commission may consider if sanctions should be imposed pursuant to Pub. Util. Cod §§ 701, 2107, 2108, and Rule 1.1 of the Commission’s Rules of Practice and Procedure. As such, it is the Commission’s duty, even in the context of considering whether to approve a Settlement Agreement, to weigh the fundamental policy goals behind the Commission’s ex parte rules to determine if the settlement terms are both a sufficient penalty and a deterrent against such conduct occurring in the future.
New Motor Vehicle Board (Zaheri) (1997) 55 Cal.App.4th 1305, 1319, the Court spoke of the harm that secret ex parte communications could have on the requirement of due process: When an administrative adjudicator uses evidence outside the record there is a denial of a fair hearing because, as to that evidence, there has been no hearing at all, for the disadvantaged party has not been heard. (Citations omitted.) If a trialtype hearing is required by due process of law (see 2 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) § 9.5, pp. 4361), its deprivation a fortiori violates the due process precept. The prohibitions against improper ex parte communications are measures imposed to avert this kind of due process violation. Proper adherence to the rules regarding the avoidance of improper ex parte communications, as well as the duty to report such communications, assures the parties and the public that the decisionmakers have comported themselves in an impartial manner. (See Zaheri, supra, 55 Cal.App.4th at 1319; D.0707020, 22.) When an ex parte violation has been found, “the Commission has broad authority under the Public Utilities Code to impose such penalties and sanctions, or make any other order, as it deems appropriate to ensure the integrity of the formal record and to protect the public interest.” The Commission may consider if sanctions should be imposed pursuant to Pub. Util. Cod §§ 701, 2107, 2108, and Rule 1.1 of the Commission’s Rules of Practice and Procedure. As such, it is the Commission’s duty, even in the context of considering whether to approve a Settlement Agreement, to weigh the fundamental policy goals behind the Commission’s ex parte rules to determine if the settlement terms are both a sufficient penalty and a deterrent against such conduct occurring in the future.
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