(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. If the licensee elects to appear before the board in the
investigative process pursuant to 653-paragraph 24.2(5)"d, "
the licensee waives this provision.
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 who:
(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.
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:
a. General direction and supervision of
assigned investigators;
b.
Unsolicited receipt of information which is relayed to assigned
investigators;
c. Review of another
person's investigative work product in the course of determining whether there
is probable cause to initiate a proceeding; or
d. 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 presiding officer in that case shall
be disclosed if required by Iowa Code section 17A. 17(3) and subrules 25.8(3)
and 25.21(8).
By electing to participate in an appearance before the board
pursuant to 653-paragraph 24.2(5)"d, " the licensee waives any
objection to a board member's both participating in the appearance and later
participating as a decision maker in a contested case proceeding on the grounds
that the board member "personally investigated" the matter under this
provision.
(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
25.8(1), the party shall file a motion supported by an affidavit pursuant to
Iowa Code section 17A. 17(7). The motion must be filed as soon as practicable
after the reason alleged in the motion becomes known to the party. The board
shall determine the matter as part of the record in the case.