California Correctional Peace Officers Association (Ford) (PERB A168S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE A. 	FORD,
Charging 	Party,
v.
CALIFORNIA 	CORRECTIONAL 	PEACE
OFFICERS 	ASSOCIATION,
Respondent.
Case No. 	LA-CO-23-S
Interlocutory 	Appeal
PERB Order No. 	Ad-168-S
April 21, 	1988
Appearances; 	Dale M. 	Fiola, 	Attorney, 	for Joyce A. 	Ford;
Neyhart, 	Anderson, 	Nussbaum, 	Reilly & Freitas by Roland M. 	Katz
for 	the 	California 	Correctional 	Peace 	Officers 	Association.
Before: 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	Joyce A. 	Ford 	(Ford) 	requests 	special
permission, 	pursuant 	to 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	Regulation 32155(d),1 to appeal 	the refusal of an
1PERB 	Regulations 	are 	codified 	at 	title 	8, 	part 	III,
California Administrative 	Code, 	section 	31001 et 	seq. 	PERB
Regulation 32155(d) provides:
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 	. 	. 	. 	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
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administrative 	law 	judge 	(ALJ) 	to disqualify himself 	from
presiding over 	an administrative hearing.2
PERB 	rule 	32155(d) 	is 	intended 	to permit 	the 	Board 	to 	grant
immediate 	interlocutory 	appeal 	of 	a 	Board 	agent's 	refusal 	to
disqualify him 	or herself 	whenever 	the 	Board 	determines 	that
permitting 	such 	an 	immediate 	appeal 	would 	effectuate 	the
purposes 	of 	the 	Educational 	Employment 	Relations 	Act 	(Gov. 	Code
sec. 	3540 et seq.). 	Where such special permission to appeal 	is
denied, 	the moving party 	is 	free 	to reassert 	its 	arguments
concerning 	disqualification 	in 	its 	exceptions 	to 	the 	ALJ's
proposed 	decision.
disqualification may 	file 	exceptions, 	after
hearing 	. 	. 	. and issuance of the decision,
setting 	forth 	the 	grounds 	of 	the 	alleged
disqualification 	along 	with 	any 	other
exceptions 	to the 	decision on 	its 	merits.
2Ford's 	underlying disqualification 	motion was
made pursuant to PERB Regulation 32155(a)(4), 	which
provides:
(a) 	No 	. . . 	Board 	agent 	performing 	an
adjudicatory function, 	shall 	decide or
otherwise 	participate 	in any 	case 	or
proceeding:
(4) 	When it 	is made 	to appear probable
that, 	by reason of prejudice of such
. 	. 	. 	Board agent, 	a fair and impartial
consideration 	of 	the 	case 	cannot be had
before him or her.
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We have 	reviewed 	Ford's 	request 	for 	special 	permission,
including her 	grounds 	for 	urging disqualification of 	the ALJ,
and we 	find 	that 	it 	would 	not 	effectuate 	the purposes 	of 	the
Act 	to 	grant 	interlocutory 	review.
Ford's 	request 	for 	special 	permission 	to appeal her motion
for 	disqualification of 	an Administrative 	Law Judge 	in Case 	No.
LA-CO-23-S 	is DENIED.
Members 	Porter 	and 	Craib 	joined 	in 	this 	Decision.
w	
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