File 2: Opinion of Chairman Cabaniss

[ v62 p152 ]

Concurring opinion of Chairman Cabaniss:

      While I agree with the resolution of this case, I write separately to express my disagreement with the consideration of evidence submitted after the due date for responses to the Notice and Order to Show Cause issued by the Authority in this case.

      The record shows that on September 28, 2005, the Authority's former Office of Case Control issued a show-cause order in which the parties were to brief the issue of why the union's petition should not be dismissed because the agency head's disapproval of certain provisions of the parties' collective bargaining agreement was not timely served on the union, thus making the petition for review moot. The due date for briefs was October 12, 2005. On October 7, 2005, the agency requested an extension of time to file its brief, and the extension was granted until October 17, 2005. The union filed its brief on October 12, 2005, and the agency filed its brief on October 17, 2005. The union then requested leave to file a supplemental brief on October 24, 2005 to respond to the "misrepresentations" contained in the agency's brief, and provided supplemental information.

      While the show-cause order was pending, the parties, with the concurrence of the Authority's representative, continued to provide evidence and arguments related to the issue raised in the show-cause order. To support the Authority's decision that the agency head's disapproval was not timely served on the union, the Authority now cites to the evidence included in the union's supplemental response, and obtained from the parties during the processing of the petition for review. [n*]  This evidence was obtained well after the show-cause order's deadline for briefs on this issue had passed.

      I disagree with the Authority's consideration of evidence provided by the parties after the deadline stated in the show-cause order. This process renders the order's deadline superfluous, and gives the parties the opportunity to continue to argue the issue raised by the show-cause order in a virtually unlimited fashion until the Authority decides the issue. I am unaware of any other adjudicatory agency that would allow parties to continually argue an issue in this manner.

      The Authority routinely rejects party filings if they are submitted even a day late. Yet, in this case the Authority is not only considering evidence provided by the parties in a proceeding that is clearly outside the parameters of the show-cause order, and filed much later than the show-cause order's due date, but it is encouraging parties to submit such evidence. This case-by-case consideration of e