Trustees of the California State University (East Bay) (PERB A404H)

LIU,
STATE OF CALIFORNI
DECISION OF T
PUBLIC EMPLOYMENT RELATIONS BOARD
Charging Party,
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (EAST BAY),
Case No. SF-CE-1009-H
PERB Order No. Ad-404-H
November 22, 2013
Res ondent.
Appearances: Wenjiu Liu, on his own behalf; Dawn
S.
Theodora, University Counsel, for
Trustees
of
the California State University (East Bay).
DECISION
This case is before the Public Employment Relations Board (PERB or Board) on a
request under PERB Regulation 3215 5(d), 	"Disqualification
of
Board Agent or Board
Members" by Wenjiu Liu (Liu). Liu requests special permission to appeal a decision by an
administrative law judge (ALJ) who refused to disqualify himself from adjudicating Case
No. SF-CE-1009-H, in which Liu is the charging party. For reasons discussed more fully
below, we summarily deny this request, as Liu's initial request for disqualification did not
comply with PERB Regulation 32155(c).
PROCEDURAL HISTORY
On April 2 to April 5, 2013, PERB conducted a formal hearing on a complaint against
the Trustees
of
the California State University (East Bay) (CSU) that alleged CSU violated the
Higher Education Employer-Employee Relations Act (HEERA 	by the manner in which it
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2 HEERA is codified at Government Code section 3560 et seq.
A
HE
v.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WENJIU LIU,
Charging Party,
V .
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (EAST BAY),
Respondent.
Case No. SF-CE-1009-H
PERB Order No. Ad-404-H
November 22, 2013
Appearances: Wenjiu Liu, on his own behalf; Dawn S. Theodora, University Counsel, for
Trustees of the California State University (East Bay).
DECISION
This case is before the Public Employment Relations Board (PERB or Board) on a
request under PERB Regulation 32155(d),
1
"Disqualification of Board Agent or Board
Members" by Wenjiu Liu (Liu). Liu requests special permission to appeal a decision by an
administrative law judge (ALJ) who refused to disqualify himself from adjudicationg Case
No. SF-CE-1009-H, in which Liu is the charging party. For reasons discussed more fully
below, we summarily deny this request, as Liu's initial request for disqualification did not
comply with PERB Regulation 32155(c).
PROCEDURAL HISTORY
On April 2 to April 5, 2013, PERB conducted a formal hearing on a complaint against
the Trustees of the California State University (East Bay) (CSU) that alleged CSU violated the
Higher Education Employer-Employee Relations Act (HEERA)"	)2by the manner in which it
1
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2 HEERA is codified at Government Code section 3560 et seq.

processed several
of
Liu's grievances. PERB's Chief ALJ presided over this hearing, which
was the second formal hearing involving these litigants in which he served as ALJ.
On June 20, 2013, approximately two-and-a-half months after the close
of
the formal
hearing, Liu filed a sworn written request with the ALJ, asking that the ALJ recuse himself
from further consideration in Case No. SF-CE-1009-H. Liu alleged that statements the ALJ
Because Liu did not serve his June 20, 2013 request on CSU, the ALJ forwarded it to
CSU' s counsel on June 24, 2013, and gave CSU 14 days to respond. CSU filed its opposition
on July 8, 2013.
On July 9, 2013, the ALJ issued a written ruling denying Liu's request for recusal. On
the same day, Liu filed with the Board itself a request for special permission to appeal the
ALJ's ruling, based on PERB Regulation 32155(d).
The ALJ initially noted that Liu's request for disqualification was late under PERB
Any party may request the Board agent to disqualify himself . . .
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. . . . The request must be made prior
to the taking
of
any evidence in an evidentiary hearing or the
actual commencement
of
any other proceeding.
(Emphasis added.) The ALJ noted that Liu' s request was based on statements made during
the April 2 to April 5, 2013, hearing in Case No. SF-CE-1009-H and that Liu did not make his
request until nearly two-and-a-half months later.
The ALJ issued his proposed decision in Case No. SF-CE-995-H on May 8, 2013,
dismissing the complaint against CSU.
2
processed several of Liu's grievances. PERB's Chief ALJ presided over this hearing, which
was the second formal hearing involving these litigants in which he served as ALJ.3
On June 20, 2013, approximately two-and-a-half months after the close of the formal
hearing, Liu filed a sworn written request with the ALJ, asking that the ALJ recuse himself
from further consideration in Case No. SF-CE-1009-H. Liu alleged that statements the ALJ
made during the hearing on the merits
of
that case between April 2 to April 5, 2013, caused
Liu to believe that the ALJ had pre-judged the case against Liu.
made during the hearing on the merits of that case between April 2 to April 5, 2013, caused
Liu to believe that the ALJ had pre-judged the case against Liu.
Because Liu did not serve his June 20, 2013 request on CSU, the ALJ forwarded it to
CSU's counsel on June 24, 2013, and gave CSU 14 days to respond. CSU filed its opposition
on July 8, 2013.
On July 9, 2013, the ALJ issued a written ruling denying Liu's request for recusal. On
the same day, Liu filed with the Board itself a request for special permission to appeal the
ALJ's ruling, based on PERB Regulation 32155(d).
ALJ'S DECISION	ALJ'S DECISION
The ALJ initially noted that Liu's request for disqualification was late under PERB
Regulation 32155(c), which provides, in pertinent part:	Regulation 32155(c), which provides, in pertinent part:
Any party may request the Board agent to disqualify himself . . .
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. . . . The request must be made prior
to the taking of any evidence in an evidentiary hearing or the
actual commencement of any other proceeding.
(Emphasis added.) The ALJ noted that Liu's request was based on statements made during
the April 2 to April 5, 2013, hearing in Case No. SF-CE-1009-H and that Liu did not make his
request until nearly two-and-a-half months later.
3
The ALJ issued his proposed decision in Case No. SF-CE-995-H on May 8, 2013,
dismissing the complaint against CSU.
2

the untimeliness
of
the request, the ALJ addressed Liu's contentions on the
merits, and concluded that there was no basis to support his recusal from the case.
DISCUSSION
As noted above, PERB' s procedure for requesting disqualification
of
a board agent
quite specifically requires that the request for disqualification or recusal be filed prior to the
taking
of
evidence in an evidentiary hearing. In this case, the evidentiary portion
of
the
hearing occurred between April 2 to April 5, 2013. Yet Liu did not file his request for recusal
until after the completion
of
the evidentiary hearing. He asserts that certain remarks made by
the ALJ during the April 2 to April 5, 2013, hearing demonstrate the ALJ's alleged prejudice
against him. Under the plain meaning
of
subdivision (c)
of
PERB Regulation 32155, a request
to disqualify the ALJ is simply not available to Liu, because the request did not comply with
the requirement that such requests must be made before the taking
of
any evidence. (Regents
of
the University
of
California (1987) PERB Decision No. 615-H.)
Subdivision (d)
of
PERB Regulation 32155 provides:
(d)
If
the Board agent does not disqualify himself or herself and
withdraw from the proceeding, he or she shall so rule on the
record, state the grounds for the ruling, and proceed with the
hearing or investigation and the issuance
of
the decision. The
party requesting the disqualification may, within ten days, file
with the Board itself a request for special permission to appeal
the ruling
of
the Board agent.	
If
permission is not granted, the
party requesting disqualification may file an appeal, after hearing
or investigation and issuance
of
the decision, setting forth the
grounds
of
the alleged disqualification along with any other
exceptions to the decision on its merits.
Reading subdivisions (c) and (d)
of
PERB Regulation 32155 together, it is clear that the
procedure was intended as a mechanism to disqualify a Board agent before that Board agent
has undertaken proceedings based on any enumerated grounds for disqualification set forth in
Because we deny Liu's filing on procedural grounds, it is not necessary to discuss the
ALJ' s ruling on the merits of the recusal request.
3
Despite the untimeliness of the request, the ALJ addressed Liu's contentions on the
merits, and concluded that there was no basis to support his recusal from the case."
4
DISCUSSION
As noted above, PERB's procedure for requesting disqualification of a board agent
quite specifically requires that the request for disqualification or recusal be filed prior to the
taking of evidence in an evidentiary hearing. In this case, the evidentiary portion of the
hearing occurred between April 2 to April 5, 2013. Yet Liu did not file his request for recusal
until after the completion of the evidentiary hearing. He asserts that certain remarks made by
the ALJ during the April 2 to April 5, 2013, hearing demonstrate the ALJ's alleged prejudice
against him. Under the plain meaning of subdivision (c) of PERB Regulation 32155, a request
to disqualify the ALJ is simply not available to Liu, because the request did not comply with
the requirement that such requests must be made before the taking of any evidence. (Regents
of the University of California (1987) PERB Decision No. 615-H.)
Subdivision (d) of PERB Regulation 32155 provides:
(d) If the Board agent does not disqualify himself or herself and
withdraw from the proceeding, he or she shall so rule on the
record, state the grounds for the ruling, and proceed with the
hearing or investigation and the issuance of the decision. The
party requesting the disqualification may, within ten days, file
with the Board itself a request for special permission to appeal
the ruling of the Board agent. If permission is not granted, the
party requesting disqualification may file an appeal, after hearing
or investigation and issuance of the decision, setting forth the
grounds of the alleged disqualification along with any other
exceptions to the decision on its merits.
Reading subdivisions (c) and (d) of PERB Regulation 32155 together, it is clear that the
procedure was intended as a mechanism to disqualify a Board agent before that Board agent
has undertaken proceedings based on any enumerated grounds for disqualification set forth in
4
Because we deny Liu's filing on procedural grounds, it is not necessary to discuss the
ALJ's ruling on the merits of the recusal request.
3

(a), i.e., Board agent has a financial interest in the outcome
of
the case, Board
agent is related to a party or attorney, etc. Although Liu's filing is styled as a "request for
special permission," we cannot treat it as such because he did not request that the ALJ
disqualify himself prior to the taking
of
evidence at the formal hearing. Therefore, we
summarily deny Liu's filing because Liu's request for disqualification does not come within
the purview
of
subdivision (c) as a threshold matter.
Where a claim
of
prejudice or bias by a Board agent does not arise until the evidentiary
hearing itself, the appeal procedures set forth in subdivision (d)
of
PERB Regulation 32155 do
not apply. Such is the case here. Liu's claim
of
prejudice by the ALJ is based on statements
the ALJ made during, not prior to, the taking
of
evidence at the formal hearing.
The proposed decision in Case No. SF-CE-1009-H has not issued as
of
this date.
	If
it is
adverse to Liu, he may file exceptions to it, including an exception based on his claim that
certain remarks made by the ALJ during the formal hearing demonstrate the ALJ' s alleged
prejudice against him. (Coachella Valley Mosquito & Vector Control District (2009) PERB
Decision No. 2031-M, at pp. 23-24 [Board refused to reverse findings in ALJ's proposed
decision based on district's claim that ALJ was biased, because district failed to alleged any
evidence
of
bias other than the fact that the ALJ resolved factual questions contrary to its
position].)
ORDER
Wenjiu Liu's filing in Case No. SF-CE-1009-H is SUMMARILY DENIED.
PERCURIAM
4
subdivision (a), i.e., Board agent has a financial interest in the outcome of the case, Board
agent is related to a party or attorney, etc. Although Liu's filing is styled as a "request for
special permission," we cannot treat it as such because he did not request that the ALJ
disqualify himself prior to the taking of evidence at the formal hearing. Therefore, we
summarily deny Liu's filing because Liu's request for disqualification does not come within
the purview of subdivision (c) as a threshold matter.
Where a claim of prejudice or bias by a Board agent does not arise until the evidentiary
hearing itself, the appeal procedures set forth in subdivision (d) of PERB Regulation 32155 do
not apply. Such is the case here. Liu's claim of prejudice by the ALJ is based on statements
the ALJ made during, not prior to, the taking of evidence at the formal hearing.
The proposed decision in Case No. SF-CE-1009-H has not issued as of this date. If it is
adverse to Liu, he may file exceptions to it, including an exception based on his claim that
certain remarks made by the ALJ during the formal hearing demonstrate the ALJ's alleged
prejudice against him. (Coachella Valley Mosquito & Vector Control District (2009) PERB
Decision No. 2031-M, at pp. 23-24 [Board refused to reverse findings in ALJ's proposed
decision based on district's claim that ALJ was biased, because district failed to alleged any
evidence of bias other than the fact that the ALJ resolved factual questions contrary to its
position].)
ORDER
Wenjiu Liu's filing in Case No. SF-CE-1009-H is SUMMARILY DENIED.
PER CURIAM
4