McGeorge Professor Nicole Kuenzi, an expert on California water law, is a hearing officer in California’s Administrative Hearings Office, which was created in 2019. The hearings office is housed within the California State Water Resources Control Board, which is the agency charged with safeguarding the state’s water resources for all Californians.Prof. Kuenzi’s role gives her an inside view into the workings of agencies and administrative hearings. We spoke with her at a webinar to hear more about the hearing process at the agency where she works. We also discussed how the McGeorge online Master of Legal Studies program prepares students to work with state agencies and administrative law issues.
California State Water Resources Control Board and the Administrative Hearings Office
The California State Water Resources Control Board (the “Board”) is an agency that regulates water across a range of substantive issues, including water quality, drinking water systems, and water rights. Within that agency, the Administrative Hearings Office is a new independent unit that was put in place by statute in 2019.
The Administrative Hearings Office (AHO) is an independent unit of the Board. The AHO was created in 2019 to conduct neutral, fair, and efficient administrative hearings about water matters. Qualified and impartial AHO hearing officers conduct hearings and submit proposed orders for consideration to the Board.
“The legislature made it a point to uphold principles of fairness when establishing the office,” said Prof. Kuenzi. They established an office within the agency that separates the hearing officers from the staff who serve as prosecutors.
Workings of the Administrative Hearings Office
The AHO hearings typically involve enforcement actions, water rights applications, and water rights petitions. They also can involve matters where a hearing is not statutorily required but is valuable for good governance, offering an opportunity for a neutral decision-maker to look at the evidence and make an assessment regarding a dispute.
Prof. Kuenzi said the hearing process shares similarities with a trial process. There are, however, important differences between trials and administrative hearings, either generally or within the AHO.
One difference is that parties are required to submit evidence in advance of the hearing. The evidence, including testimony of witnesses, is available to all other parties. Witnesses submit their testimony in writing, and typically a rebuttal period establishes an opportunity for other parties to respond to the initial evidence.
“Everyone has a chance to respond and think about the other party’s evidence,” said Prof. Kuenzi. She continued: “The element of surprise that is really fun in Law and Order proceedings hopefully doesn’t happen in AHO cases. We don’t want an element of surprise. Coming into the hearing, everyone will know what the hearing will be about.”
The strict rules of evidence don’t necessarily apply in administrative hearings. The prohibition on hearsay evidence, for example, doesn’t apply. This is because the goal of a hearing is to gather the type of evidence that a reasonable person would consider in making an important decision, and hearsay evidence may support that goal.
During the hearing most parties are represented by legal counsel, though there may be unrepresented parties in some cases. “We want the process to be understood by the public whether or not a party has representation by a lawyer,” Prof. Kuenzi explained.
The Role of a Hearing Officer
Throughout the hearing process, the hearing officer is charged with making procedural decisions. “The role is similar to that of a judge, though I am not a judge,” said Prof. Kuenzi. “The difference is important. I ask the parties to not call me ‘your honor’ because I haven’t been elevated to that position, though the hearing officer role is similar.”
The hearing officer’s focus is to maintain an orderly, fair, respectful, and efficient process. At the end of the process, the hearing officer drafts a proposed order based on all the evidence and legal arguments.
The Board makes the final decision whether to adopt the order or make changes to it. The Board may even send the issues back to the hearing officer and ask the hearing officer to conduct additional proceedings and consider additional evidence.
Transparency and Fairness
Transparency and public access are important aspects of the hearing process. Prof. Kuenzi said that from the beginning, the AHO broadcasted its hearings live on YouTube and made recordings available to the public.
Additionally, all the case filings, including all the evidence and rulings from the hearing officer, are available to the public in an electronic docket. This level of accessibility and transparency makes the process more fair and efficient.
Hearing rules prohibit ex parte communication. This means that outside or other interested parties are prohibited from communicating with members of the hearing team in a manner or at a time where other parties can’t participate. The only opportunity to communicate with the hearing officer is when all of the parties are present (such as during a scheduled hearing or cc’d in email) and have the opportunity to hear what the communication is about and respond to it.
To further ensure fairness, Prof. Kuenzi said, “We try to make sure any unrepresented parties understand they have an opportunity to be heard, and we support them in telling their story.” The AHO developed an FAQ on their website to explain the hearing process to people who may be unfamiliar with its workings.
Prof. Kuenzi explained that their office is committed to holding timely hearings, which is one of the mandates the legislature set for the office. “It’s important for members of the public or the parties who have an interest in the outcome of a case to know where things stand,” she said.
Administrative Law and the Online MSL Curriculum
Training about administrative hearings is part of the McGeorge online MSL curriculum. Prof. Kuenzi teaches a course called “The Executive Branch and the Administrative State,” which explores administrative agencies and processes at the federal, state, and local levels, with a focus on the relationship between these institutions and the executive branch, legislature, and courts.
As a student in Prof. Kuenzi’s course, you learn about the difference between a hearing process and other types of agency actions, such as rulemaking. You learn how different types of agency actions can be used to solve different types of policy problems, and how to interact with agencies through their rulemaking, adjudication, and investigatory processes.
“The course introduces students to opportunities to engage with agencies,” said Prof. Kuenzi. “This is really important. As someone who has worked within an agency for almost ten years, I can say it really makes a huge difference in outcomes.”
“There are many types of hearing officers and administrative law judges who make decisions in different areas of the law,” Prof. Kuenzi concluded. “Hearing officers and administrative law judges make decisions about matters that touch almost every part of everyday life. Understanding how administrative hearings work, and having comfort and familiarity with the process, is important across all areas of the law.”
McGeorge’s Online MSL & LLM Programs
McGeorge offers two fully online part-time Master of Science in Law programs:
- The MSL in Government Law & Policy is designed for local, state, and federal agency employees, and for lobbyists, legislative staff, and others who seek to enhance their skills in lawmaking, regulation, election law, and lobbying but who do not require a traditional law degree.
- The MSL in Water & Environmental Law provides value to land use planners, engineers, environmental consultants, and others who seek expertise in this continually-evolving field but who do not require a law degree.
Additionally, a fully online part-time LLM in Water & Environmental Law program is for attorneys, recent law school graduates, or foreign-educated legal professionals to develop depth of knowledge in a specialized area of environmental, water resources, regulatory compliance, and public agency law.
Students build marketable expertise with the guidance of expert faculty chosen for outstanding teaching as well as depth of knowledge in government law, water resources, or environmental law. Courses emphasize real-world knowledge and development of practical skills. The programs are convenient and are specifically designed for working professionals or students who need flexibility due to career, family, or other obligations, and who want to further their education and advance their career.For more information, contact us at graduatelaw@pacific.edu or 916.739.7019.