Iowa Admin. Code r. 621-2.20 - Ex parte communications
(1)
Prohibited communications. Unless required for the disposition of ex parte
matters specifically authorized by statute, a presiding officer in a contested
case, or in proceedings on a petition for declaratory order in which there are
two or more parties, shall not communicate directly or indirectly with any
party, representative of any party or any other person with a direct or
indirect interest in such case, nor shall any such party, representative or
person communicate directly or indirectly with the presiding officer concerning
any issues of fact or law in that case, except upon notice and opportunity for
all parties to participate. Nothing in this provision precludes the presiding
officer, without such notice and opportunity for all parties to participate,
from communicating with members of the agency or seeking the advice or help of
persons other than those with a personal interest in, or those engaged in
personally investigating, 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. 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's investigative work product in the course of determining whether to
initiate a proceeding or exposure to factual information while performing other
agency 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 a presiding officer in that case shall be disclosed if required
by Iowa Code section
17A.17.
(2) Prohibitions on ex parte communications
commence with the issuance of the notice of hearing in a contested case and
with the filing of the petition in a declaratory order proceeding in which
there are two or more parties, and continue for as long as the case is
pending.
(3) Communications with a
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 prior to seeking to continue hearings
or other deadlines.
(4) Disclosure
of prohibited communications. A presiding officer who receives a prohibited ex
parte communication during the pendency of a contested case or proceedings on a
petition for declaratory order in which there are two or more parties shall
disclose to all parties and place on the record of the pending matter all such
written communications, all written responses to the communication, and a
memorandum stating the substance of all such oral and other communications
received, all responses made and the identity of each person from whom the
presiding officer received a prohibited ex parte communication. The presiding
officer shall notify all parties that these matters have been placed on the
record. Any party desiring to rebut the prohibited communication will be
allowed the opportunity to do so upon written request filed within ten days
after the giving of notice that the matters have been placed on the
record.
(5) If the presiding
officer determines that the effect of a prohibited ex parte communication is so
prejudicial that it cannot be cured by the procedure specified in subrule
2.20(4), the presiding officer shall be disqualified and the portions of the
record pertaining to the communication shall be sealed by protective
order.
(6) Promptly after being
assigned to serve as presiding officer, either individually, on a hearing panel
or on an intra-agency appeal, a presiding officer shall disclose to all parties
any material factual information received through ex parte communication prior
to such assignment, unless the factual information has or soon will be
disclosed pursuant to Iowa Code section 17A. 13 (2) or through
discovery.
(7) Sanctions for
prohibited communications.
a. The agency and
any party may report any violation of this rule to appropriate authorities for
any disciplinary proceedings provided by law.
b. The presiding officer may render a
proposed decision or, in the case of the board or a majority thereof, a final
decision, imposing appropriate sanctions for violations of this rule including
a decision against the offending party, censure, suspension, or revocation of
the privilege to practice before the agency.
c. Alleged violations of ex parte
communication prohibitions by agency personnel shall be reported to the
chairperson for the possible imposition of sanctions including censure,
suspension, dismissal or other disciplinary action.
Notes
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