(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 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).
(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, 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.
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 497-4.24 (17A) and seek a stay under
rule 497-4.28 (17A).
