FPPC staff proposes tighter deadlines, limits on discovery in probable-cause conferences

Senior Commission Counsel John Fizer presented proposed amendments to regulation 18361.4 that would narrow the scope and speed the probable-cause conference used in enforcement of the Political Reform Act.

Fizer said the amendments were “prompted by the Commission's request that staff provide recommendations to limit delay in the completion of probable cause proceedings” and explained the package would remove provisions for records production, set firm deadlines for scheduling, and eliminate witnesses and supplemental evidence after the probable-cause hearing.

The proposal would align the probable-cause step more closely with other preliminary procedures and reduce administrative delay before full adjudication under the Administrative Procedure Act, Fizer said. He emphasized that a probable-cause conference is preliminary: “A probable cause conference is not a trial. Instead, it is a process to determine whether the enforcement division summary of evidence is sufficient to constitute probable cause,” he told the commission.

Why it matters: probable-cause findings are the gating step before a respondent can be put into the formal APA adjudication process. Commissioners and staff framed the proposal as an efficiency and fairness measure: shortening preliminaries, the staff argued, will shorten case resolution timelines while preserving the respondent’s rights in the subsequent APA hearing.

Key elements of the proposal described to the commission - Remove the regulation provisions that provide for records production/document requests during probable-cause proceedings, relying instead on the enforcement division’s summary of evidence. Fizer said additional records are generally unnecessary because the hearing officer does not decide ultimate facts at probable cause. - Establish a hard scheduling cap: a probable-cause hearing should be set within 75 days after a request and, if not scheduled within 75 days, set to occur within an additional 14 days; the hearing officer would no longer have open-ended discretion to continue beyond those limits except by mutual party agreement. - Eliminate rules allowing witnesses, third‑party hearing participants, and submission of supplemental evidence after the probable-cause hearing, because those practices “tend to mislead respondents about the nature and scope of probable cause proceedings,” Fizer said.

Commissioners asked multiple procedural questions. Commissioner Ortiz and others sought clarity about timelines and whether respondents could still obtain documents informally or via the later APA discovery process; Fizer and enforcement staff said summaries of evidence (including exculpatory material) would still be provided and that formal discovery remains available after an administrative accusation is filed under the APA. Commissioner Brandt pressed on how discovery has been used in practice during the pre-hearing period and whether informal document exchanges would be foreclosed; staff replied those exchanges could still occur informally but would not be a codified part of the probable-cause regulation.

Next steps: Legal staff told the commission they plan to return in January with the proposed regulatory text for possible adoption. Fizer emphasized the amendments are intended to place probable cause “in its proper place as a procedure that is preliminary to formal administrative adjudication.”

Ending: Commissioners did not vote on the proposal at the October meeting; staff will circulate draft regulatory text and take comments before the January adoption hearing.