ARB CASE NO. 99-011
ALJ CASE NO. 97-CAA-12
DATE: JUL 10 2000
In the Matter of:
MARK DUNCAN,
COMPLAINANT,
v.
SACRAMENTO METROPOLITAN AIR
QUALITY MANAGEMENT DISTRICT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Mark Duncan, pro se, Shingle Springs, California
For the Respondent:
Kenneth Swenson, Esq., Matthew D. Evans, Esq., Duncan, Ball,
Evans & Ubaldi, Sacramento, California
ORDER
Complainant Mark Duncan filed a "Motion to Accept New Evidence Into
the Record and Motion to Grant a Thirty-Day Extension for the Filing of the Initial Brief." This
motion requested the Administrative Review Board to accept the following new evidence into the
record: 1) transcripts of the arbitration proceedings which arose from Duncan's discharge from
employment by the respondent Sacramento Metropolitan Air Quality Management District (the
District), including the exhibits presented during those proceedings; 2) a May 13, 1999 complaint of
blacklisting against the District and associated attachments previously filed with the Board; and 3)
a bank statement showing payment of check #2008 from Duncan to the District, covering the cost
of his alleged misuse of a District cellular phone. Duncan subsequently filed a "Motion to
Expand the Initial Brief Page Limitation from Thirty to Fifty Pages."
In response to Duncan's request to supplement the record, the District filed a
"Statement of Provisional Non-Opposition to Complainant Duncan's Motion to Supplement
the Record" (Statement of Provisional Non-Opposition). The District stated that it does not
oppose the motion to supplement the record provided that the Board also admits into evidence the
[Page 2]
Arbitration Opinion and Award that resulted from the arbitration proceeding. The District
subsequently filed a "Motion to Reopen the Record to Supplement it with the Arbitration
Opinion and Award Concerning Termination of Complainant Mark Duncan; and Declaration of
Kenneth L. Swenson in Support Thereof' (District's Motion to Reopen the Record).
On June 13, 2000, the Board issued an Order: 1) allowing Duncan to file a
response to the District's Motion to Reopen the Record on or before June 27, 2000; 2) remanding
the blacklisting complaint to the San Francisco Occupational Safety and Health Office for
investigation as provided in 29 C.F.R. §24.4; and 3) denying Duncan's motion to reopen the
record to introduce the bank statement showing payment of check #2008. On June 27, 2000, Duncan
responded to the District's Motion to Reopen the Record stating that he did not oppose the District's
request to add the arbitration decision to the record in this case.
As indicated in our June 13th Order, when considering a motion to reopen the
record to admit new evidence, the Board ordinarily relies upon the same standard found in the Rules
of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law
Judges, 29 C.F.R. Part 18, (as did the Board's predecessor, the Secretary), which provides:
Once the record is closed, no additional evidence shall be accepted into the record
except upon a showing that new and material evidence has become available which
was not readily available prior to the closing of the record.
29 C.F.R. § 18.54(c). See, e.g., Lassin v. Michigan State University, 93-ERA-31, Fin.
Dec. & Ord. (June 29, 1995). The ALJ initially closed the record in this case on March 26, 1998.
See Order to Show Cause (April 13, 1998). However, by order dated May 7, 1998, the ALJ
reopened the record upon the District's motion to allow the District to submit into evidence a copy
of an arbitrator's decision dated March 25, 1998, concerning Duncan's challenge of a five-day
suspension the District had imposed in March 1997. The District also asserts in its Statement of
Provisional Non-Opposition that the ALJ issued an order on July 7, 1999, again reopening the record
to permit Duncan to introduce ALJX9, "`transcript of the May 14, 1998 arbitration proceeding
before arbitrator Geraldine M. Randall."' Although an examination of the record did not reveal
the ALJ's July 7, 1999 order, ALJX9 is, in fact, in the ALJ record. The ALJ issued his Recommended
Decision and Order on October 16, 1998.
The Arbitration Award the District seeks to introduce into evidence was not
issued until November 23, 1998. Thus, it was not available prior to the closing of the record or the
issuance of
the ALJ's decision. The arbitration transcripts and exhibits Duncan seeks to introduce first became
available after the ALJ closed the record, but apparently before the ALJ issued his decision.1
1 Both the District and
Duncan successfully petitioned the ALJ to reopen the record to include additional evidence after he initially
closed the record. Duncan does not explain why he did not request the ALJ to reopen the record to accept
the transcripts and exhibits so that the ALJ could initially rule upon the request and, if he granted it, could
consider the transcripts and exhibits in rendering his recommended decision and order. Allowing the ALJ
initially to consider this request would certainly be the preferred course of action.