Vol. 14 No. 17 – Administrative Hearings & Creating the Record

December 7, 1999

To: All Police Chiefs and Sheriffs

From: Paul R. Coble

Administrative Hearings & Creating the Record

You have an administrative adjudicatory hearing . . . disciplinary, permit revocation, land use, etc. . . . where testimony and evidence are taken. The appellant decides to challenge the decision resulting from this hearing, and so files a petition for writ of mandate in Superior Court. The appellant asks for the administrative record. No problem, you say, because you tape recorded the entire hearing . . . or so you thought.

Code of Civil Procedure §1094.5 fixes responsibility on the petitioner . . . the person seeking judicial review of the administrative decision . . . for preparation and filing of the record of the administrative hearing. However, it is the responsibility of the agency conducting the administrative hearing to have kept a complete record so that the petitioner who seeks judicial review can fulfill his/her responsibility of providing the record to the court.

Many agencies tape record administrative hearings. This usually represents an economy in lieu of the greater expense of a certified stenographic reporter. Often this works well, particularly where the hearing is held in a facility which already has extensive tape recording equipment maintained in good working order.

However, we have had a number of instances where the taped record of a hearing is afterward found to be virtually unintelligible due to poor equipment, microphones not placed close enough to the speaker, etc. In one recent instance, we had to incur substantial expense to have an audio engineering firm enhance the quality of the tapes, and even then it was extremely difficult for a transcriber to create a complete and accurate record.

In another particularly troublesome case, we found after the fact that the person in charge of the tape recorder had recorded on three sides of a two-sided tape, e.g., had turned the tape over a second time when it had already been recorded on the first side. That agency (and we) ended up having to go all the way through Superior Court to the Court of Appeal on the question of whether the fact that the testimony of four witnesses was lost in whole or in part necessitated an entire rehearing of the matter. Though we prevailed on that issue, great time and expense resulted from the failed taping of a portion of the hearing.

We are even starting to encounter arbitrators and hearing officers who say that they will not rely on a taped record because they often find the quality to be so poor as to be useless.

This leads us to a couple of recommendations.

The first is that, if at all possible, administrative hearings . . . or at least those involving more serious penalties or issues. . . should be recorded through the use of a stenographic reporter.

If tape recording must be used, take steps to ensure that all testimony is recorded and that all of that which is recorded is intelligible. This may be through the use of in-place taping equipment as in council or board chambers. Or it may be accomplished through the relatively inexpensive ($15 – $20) purchase of an “area” microphone specifically designed to be used in conference settings. But whatever approach or technique is used, it is the responsibility of the governmental entity to do whatever is necessary to create a complete, accurate and intelligible record of administrative adjudicatory hearings.

Recall to mind age-old homilies such “Penny wise and pound foolish,” “An ounce of prevention is worth a pound of cure,” and so forth. A relatively small expense up front can save great expense . . . and perhaps an adverse court ruling . . . later on.

As always, if there are questions or you wish to discuss this issue in greater detail, please do not hesitate to call.



1a-Vol14#17 Website