for withdrawal from participation.
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
investigation process, 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.
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
g. Has any other
legally sufficient cause to withdraw from participation in the decision making
in that case.
"Personally investigated" defined.
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 board 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
Determination that withdrawal is not necessary. 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 by affidavit for the record
the relevant information and shall provide for the record a statement of the
reasons for the determination that withdrawal is unnecessary.
disqualification. If a party asserts disqualification on any
appropriate ground, including those listed in subrule 35.13(1), the party shall
file a motion supported by an affidavit pursuant to Iowa Code section 17A. 11
(3). The motion shall 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. The individual
against whom disqualification is asserted shall make the initial determination
as to whether disqualification is required. If the individual elects not to
disqualify, the board shall make the final determination as to disqualification
of that individual as part of the record in the case.
Admin. Code r.
ARC 9412B, IAB 3/9/11,
September 27, 2017/Volume XL, Number 7, effective