SECTIONS 401-413 - California Statutes

UNEMPLOYMENT INSURANCE CODE

SECTION 401-413

401. There is in the department an Appeals Division consisting of
the California Unemployment Insurance Appeals Board and its
employees. The appeals board consists of seven members. Five members
shall be appointed by the Governor, subject to the approval of the
Senate. One member shall be appointed by the Speaker of the Assembly,
and one member shall be appointed by the Senate Rules Committee. Two
of the members of the appeals board shall be attorneys at law
admitted to practice in the State of California. The other members
need not be attorneys. Each member of the board shall devote his full
time to the performance of his duties. The chairman and each member
of the board shall receive the annual salary provided for by Chapter
6 (commencing with Section 11550) of Part 1 of Division 3 of Title 2
of the Government Code. The Governor shall designate the chairman of
the appeals board from the membership of the appeals board. The
person so designated shall hold the office of chairman at the
pleasure of the Governor. The chairman shall designate a member of
the appeals board to act as chairman in his absence.

402. Each member of the appeals board shall serve for a term of
four years and until his successor is appointed and qualifies. The
term of office of each member of the board appointed pursuant to the
1967 amendment to this section shall also be for four years;
provided, however, that of the two board members first appointed
pursuant to such amendments, one shall be appointed for a term which
shall expire July 1, 1970, and one for a term which shall expire July
1, 1971.
A vacancy shall be filled by the appointing power by appointment
for the unexpired term. A vacancy filled by the Governor shall be
subject to the approval of the Senate.

403. All personnel of the Appeals Division shall be appointed,
directed and controlled only by the appeals board or its authorized
deputies or agents to whom it may delegate such powers.
The appeals board shall prepare a budget covering the necessary
administrative costs of the Appeals Division. Such budget shall not
be subject to change by the director except as agreed to by the
appeals board. In the event that agreement cannot be reached, the
final decision shall rest with the Governor. The director shall
furnish the equipment, supplies, housing and nonpersonal and
housekeeping services required by the Appeals Division and shall
perform such other mechanics of administration as the appeals board
and the director may agree upon.

404. The appeals board, or the executive officer subject to its
direction and control to whom it delegates such responsibility, shall
appoint and direct the activities of one or more impartial
administrative law judges who shall hear and render a decision in
every matter in which a petition is filed with, or an appeal is taken
to, an administrative law judge as provided in this division. The
compensation of the administrative law judges shall be fixed by the
State Personnel Board at a rate comparable to that of other
administrative law judges or hearing officers in state service whose
duties and responsibilities are comparable, without regard to whether
such other positions have membership in the State Bar of California
as a prerequisite to appointment. No administrative law judge shall
participate in any case in which he is an interested party.

405. The appeals board shall appoint a chief administrative law
judge who shall be a member in good standing of the State Bar of
California.

406. The duties of the chief administrative law judge include:
(a) Serving as the chief executive of the board in the
administration of the activities of administrative law judges and
their staffs.
(b) Maintaining a continuous review of the decisions of
administrative law judges from which no appeal is taken to uncover
decisions which appear inconsistent with the law, with established
judicial decisions, with prior decisions of the board or with each
other and recommending such cases to the appeals board for
certification to itself for a further hearing.

407. In any case before it, the appeals board may delegate to any
one of its members or to a special examiner or administrative law
judge the taking or hearing of evidence. The appeals board and its
duly authorized representatives in the performance of its duties
under this division shall have the powers of a head of a department
as set forth in Sections 11180 to 11191, inclusive, of the Government
Code.

408. All decisions and orders of the Appeals Board shall be in
writing.

409. The chairperson shall assign cases before the board to any two
members of the board for consideration and decision. Assignments by
the chairperson of members to the cases shall be rotated so as to
equalize the workload of the members, but with the composition of the
members so assigned being varied and changed to assure that there
shall never be a fixed and continuous composition of members. Except
as otherwise provided, the decision of the two members assigned the
case shall be the decision of the appeals board. In the event that
the two members do not concur in the decision, the chairperson or
another member of the board designated by the chairperson shall be
assigned to the panel and shall resolve the impasse. A case shall be
considered and decided by the appeals board acting as a whole at the
request of any member of the appeals board.
The appeals board shall meet as a whole when the chairperson may
direct to consider and pass on any matters that the chairperson may
bring before it, and to consider and decide cases that present issues
of first impression or that will enable the appeals board to achieve
uniformity of decisions by the respective members.
The appeals board, acting as a whole, may designate certain of its
decisions as precedents. Precedent decisions of the appeals board
are subject to Section 11425.60 of the Government Code. The appeals
board, acting as a whole, may, on its own motion, reconsider a
previously issued decision solely to determine whether or not the
decision shall be designated as a precedent decision. Decisions of
the appeals board acting as a whole shall be by a majority vote of
its members. The director and the appeals board administrative law
judges shall be controlled by those precedents except as modified by
judicial review. If the appeals board issues decisions other than
those designated as precedent decisions, anything incorporated in
those decisions shall be physically attached to and be made a part of
the decisions. The appeals board may make a reasonable charge as it
deems necessary to defray the costs of publication and distribution
of its precedent decisions and index of precedent decisions.

409.1. If a final judgment of a court of competent jurisdiction
reverses or declares invalid a precedent decision of the appeals
board issued under Section 409 or this section, the appeals board,
acting as a whole, shall promptly modify the precedent decision to
conform in all respects to the judgment of the court. The modified
precedent decision shall supersede the prior precedent decision for
all purposes. The appeals board shall promptly notify the director,
the administrative law judges of the appeals board, and all other
subscribers to the precedent decisions, of the modified precedent
decision.

409.2. Any interested person or organization may bring an action
for declaratory relief in the superior court in accordance with the
provisions of the Code of Civil Procedure to obtain a judicial
declaration as to the validity of any precedent decision of the
appeals board issued under Section 409 or 409.1.

410. A decision of the appeals board is final, except for such
action as may be taken by a judicial tribunal as permitted or
required by law.
A decision of the appeals board is binding on the director with
respect to the parties involved in the particular appeal.
The director shall have the right to seek judicial review from an
appeals board decision irrespective of whether or not he or she
appeared or participated in the appeal to the administrative law
judge or to the appeals board.
Notwithstanding any other provision of law, the right of the
director, or of any other party except as provided by Sections 1241,
1243, and 5313, to seek judicial review from an appeals board
decision shall be exercised not later than six months after the date
of the decision of the appeals board or the date on which the
decision is designated as a precedent decision, whichever is later.
The appeals board shall attach to all of its decisions where a
request for review may be taken, an explanation of the party's right
to seek such review.

411. The appeals board, acting as a whole, may promulgate rules or
amend or rescind rules pertaining to hearing appeals and other
matters falling within its jurisdiction. All these rules, amendments
thereto, or repeals thereof, shall be made in accordance with the
provisions of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.

412. (a) The appeals board acting as a whole may, by notice mailed
to the director and the parties prior to the mailing of an
administrative law judge's decision on an appeal or petition under
this division pending before any administrative law judge, on its own
motion either:
(1) Transfer the proceedings to another administrative law judge;
or
(2) Remove the proceedings to itself for review and decision.
(b) If the appeals board removes any proceedings to itself for
review and decision pursuant to this section, the appeals board may
order the taking of additional evidence and may affirm, reverse,
modify, or set aside any findings or action of the department from
which the appeal or petition to the administrative law judge was
taken in the proceedings. The appeals board shall promptly notify the
department and the parties to the proceedings of its order or
decision.

413. (a) The appeals board acting as a whole may, by notice mailed
to the director and the parties not later than 30 days after the
mailing of an administrative law judge's decision on an appeal or
petition under this division to the administrative law judge, on its
own motion either:
(1) Set aside the decision of the administrative law judge and
remand the proceedings to another administrative law judge for review
and decision; or
(2) Remove the proceedings to itself for review and decision.
(b) If the appeals board removes any proceedings to itself for
review and decision pursuant to this section, the appeals board may
order the taking of additional evidence and may affirm, reverse,
modify or set aside the decision of the administrative law judge. The
appeals board shall promptly notify the department and the parties
to the proceedings of its order or decision.
(c) Notwithstanding any other provision of this division, no
decision of an administrative law judge under this division shall be
final if the appeals board pursuant to this section sets aside such
decision or removes the proceedings to itself for review and
decision.