Iowa Admin. Code r. 185-10.23 - Ex parte communication
(1)
Prohibited
communications. Unless required for the disposition of ex parte
matters specifically authorized by statute, following issuance of the notice of
hearing, there shall be no communication, directly or indirectly, between the
presiding officer and any party or representative of any party or any other
person with a direct or indirect interest in such case in connection with any
issue of fact or law in the case except upon notice and opportunity for all
parties to participate. This does not prohibit persons jointly assigned such
tasks from communicating with each other Nothing in this provision is intended
to preclude the presiding officer from communicating with members of the
division or seeking the advice or help of persons other than those with a
personal interest in, or those engaged in personally investigating as defined
in subrule 10.10(2), prosecuting, or advocating in, either the case under
consideration or a pending factually related case involving the same parties as
long as those persons do not directly or indirectly communicate to the
presiding officer any ex parte communications they have received of a type that
the presiding officer would be prohibited from receiving or that furnish,
augment, diminish, or modify the evidence in the record.
(2)
Length of prohibitions.
Prohibitions on ex parte communications commence with the issuance of the
notice of hearing in a contested case and continue for as long as the case is
pending.
(3)
Forms of ex
parte communication. Written, oral or other forms of communication are
"ex parte" if made without notice and opportunity for all parties to
participate.
(4)
Notice. To avoid prohibited ex parte communications, notice
must be given in a manner reasonably calculated to give all parties a fair
opportunity to participate. Notice of written communications shall be provided
in compliance with rule 10.13(17A) and may be supplemented by telephone,
facsimile, electronic mail or other means of notification. Where permitted,
oral communications may be initiated through conference telephone call
including all parties or their representatives.
(5)
Communication between presiding
officers. Persons who jointly act as presiding officer in a pending
contested case may communicate with each other without notice or opportunity
for parties to participate.
(6)
Deliberations. The administrator or other persons may be
present in deliberations or otherwise advise the presiding officer without
notice or opportunity for parties to participate as long as they are not
disqualified from participating in the making of a proposed or final decision
under any provision of law and they comply with subrule 10.23(1).
(7)
Scheduling or procedural
matters. Communications with the presiding officer involving
uncontested scheduling or procedural matters do not require notice or
opportunity for parties to participate. Parties should notify other parties
prior to initiating such contact with the presiding officer when feasible, and
shall notify other parties when seeking to continue hearings or other deadlines
pursuant to rule 10.17(17A).
(8)
Disqualification of presiding officer A presiding officer who
receives a prohibited ex parte communication during the pendency of a contested
case must initially determine if the effect of the communication is so
prejudicial that the presiding officer should be disqualified. If the presiding
officer determines that disqualification is warranted, a copy of any prohibited
written communication, all written responses to the communication, a written
summary stating the substance of any prohibited oral or other communication not
available in written form for disclosure, all responses made, and the identity
of each person from whom the presiding officer received a prohibited ex parte
communication shall be submitted for inclusion in the record under seal by
protective order If the presiding officer determines that disqualification is
not warranted, such documents shall be submitted for inclusion in the record
and served on all parties. Any party desiring to rebut the prohibited
communication must be allowed the opportunity to do so upon written request
filed within ten days after notice of the communication.
(9)
Disclosure of prohibited
communications. Promptly after being assigned to serve as presiding
officer at any stage in a contested case proceeding, a presiding officer shall
disclose to all parties material factual information received through ex parte
communication prior to such assignment unless the factual information has
already been or shortly will be disclosed pursuant to Iowa Code section
I7A.I3(2) or through discovery. Factual information contained in an
investigative report or similar document need not be separately disclosed by
the presiding officer as long as such documents have been or will shortly be
provided to the parties.
(10)
Sanctions. The presiding officer may render a proposed or
final decision imposing appropriate sanctions for violations of this rule
including default, a decision against the offending party , censure, or
suspension or revocation of the privilege to practice before the division .
Violation of ex parte communication prohibitions by division personnel shall be
reported to the administrator or the administrator 's designee for possible
sanctions including censure, suspension, dismissal, or other disciplinary
action.
Notes
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