(1) A
presiding
officer or other person shall withdraw from participation in the making of any
proposed or final decision in a
contested case if that person:
a. Has a personal bias or prejudice
concerning a party or a representative of a party;
b. Has personally investigated, prosecuted or
advocated in connection with that case, the specific controversy underlying
that case, another pending factually related contested case, or a pending
factually related controversy that may culminate in a contested case involving
the same parties;
c. Is subject to
the authority, direction or discretion of any person who has personally
investigated, prosecuted or advocated in connection with that contested case,
the specific controversy underlying that contested case, or a pending factually
related contested case or controversy involving the same parties;
d. Has acted as counsel to any person who is
a private party to that proceeding within the past two years;
e. Has a personal financial interest in the
outcome of the case or any other significant personal interest that could be
substantially affected by the outcome of the case;
f. Has a spouse or relative within the third
degree of relationship that:
(1) is a party
to the case, or an officer, director or trustee of a party;
(2) is a lawyer in the case;
(3) is known to have an interest that could
be substantially affected by the outcome of the case; or
(4) is likely to be a material witness in the
case; or
g. Has any other
legally sufficient cause to withdraw from participation in the decision making
in that case.
(2) The
term "personally investigated" means taking affirmative steps to interview
witnesses directly or to obtain documents or other information directly. The
term "personally investigated" does not include general direction and
supervision of assigned investigators, unsolicited receipt of information which
is relayed to assigned investigators, review of another person's investigative
work product in the course of determining whether there is probable cause to
initiate a proceeding, or exposure to factual information while performing
other division functions, including fact gathering for purposes other than
investigation of the matter which culminates in a contested case. Factual
information relevant to the merits of a contested case received by a person who
later serves as presiding officer in that case shall be disclosed if required
by Iowa Code section 17A.17 as amended by 1998 Iowa
Acts, chapter 1202, section 19, and subrules 22.9(3) and 22.23(9).
(3) In a situation where a presiding officer
or other person knows of information which might reasonably be deemed to be a
basis for disqualification and decides voluntary withdrawal is unnecessary,
that person shall submit the relevant information for the record by affidavit
and shall provide for the record a statement of the reasons for the
determination that withdrawal is unnecessary.
(4) If a
party asserts disqualification on
any appropriate ground, including those listed in subrule 22.9(1), the
party
shall file a motion supported by an affidavit pursuant to 1998 Iowa Acts,
chapter 1202, section 19(7). The motion must be filed as soon as practicable
after the reason alleged in the motion becomes known to the
party.
If, during the course of the hearing, a party first becomes
aware of evidence of bias or other grounds for disqualification, the party may
move for disqualification but must establish the grounds by the introduction of
evidence into the record.
If the presiding officer determines that disqualification is
appropriate, the presiding officer or other person shall withdraw. If the
presiding officer determines that withdrawal is not required, the presiding
officer shall enter an order to that effect. A party asserting disqualification
may seek an interlocutory appeal under rule 22.25(17A) and seek a stay under
rule 22.29(17A).
