Private Detective License Suspension Hearing
In Donkin v. Director of Professional and Vocational Standards (1966) a hearing officer recommended, pursuant to Government Code section 11517, former subdivision (b), that Mr. Donkin's private detective license be suspended for 60 days.
The Director of Professional and Vocational Standards (who had all the powers of the agency pursuant to Bus. & Prof. Code, 7550) "declined to adopt the Proposed Decision of the Hearing Officer . . . ." ( Donkin v. Director of Professional and Vocational Standards, supra, 240 Cal. App. 2d at p. 196.) He "notified the parties that the Director would thereafter decide the case himself . . . ." (Ibid.)
The director then "adopted the entire decision of the Hearing Officer . . . except that portion dealing with the proposed penalty and in that regard revoked the . . . license of" Mr. Donkin. (Id. at p. 195.)
The director's decision stated that the hearing officer's proposed decision was "adopted and incorporated herein by reference . . . ." ( Id. at p. 196.)
Mr. Donkin's superior court petition for writ of mandate was denied, and the Court of Appeal affirmed. Mr. Donkin unsuccessfully contended, that former subdivision (b) prohibited the director from adopting all of the hearing officer's proposed decision except the proposed penalty, and imposing a greater penalty.
The Court of Appeal pointed out, just as we have done, that this argument overlooks the former subdivision (c) power of the agency to decide the case itself. the Court of Appeal stated:
"The word 'adopted' as it appears in the quotation just made is an unfortunate choice, but cannot be fairly interpreted as a reversal of the director's determination, so plainly expressed and implied elsewhere, not to accept as his the proposed decision, but to proceed to make his own." (240 Cal. App. 2d at p. 196.)
At the time of the Donkin decision, Government Code section 11517, former subdivisions (b) and (c), read as follows:
"(b) If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. a copy of the proposed decision shall be filed by the agency as a public record and a copy of the proposed decision shall be served by the agency on each party in the case and his attorney. the agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision.
"(c) If the proposed decision is not adopted as provided in subdivision (b), the agency itself may decide the case upon the record, including the transcript, with or without taking additional evidence, or may refer the case to the same or another hearing officer to take additional evidence. If the case is so assigned to a hearing officer he shall prepare a proposed decision as provided in subdivision (b) upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing. a copy of such proposed decision shall be furnished to each party and his attorney as prescribed by subdivision (b). the agency itself shall decide no case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself no agency member may vote unless he heard the additional oral evidence." (Stats. 1955, ch. 1661, p. 2995, 1, italics added.)