(a) If a
Board member determines that personal bias or other reason for that Board
member's disqualification exists in a contested case, that Board member shall
decline to participate in the hearing or decision.
(b) If any party in a contested case, in good
faith, has evidence that a Board member is personally biased or another reason
for disqualification exists, the party may file and serve a motion for
disqualification, which must be supported by a sworn, notarized affidavit
testifying to the facts relevant to disqualification.
(c) Ex parte communication by or on behalf of
a party with a Board member about the facts of a case at any time during either
the investigation or prosecution of potential violations shall be grounds for
disqualification of that Board member, other than communications by Board
counsel and staff during the course of seeking a summary suspension or
communications during any other proceeding before the Board. Before a hearing
begins, or during the hearing, if applicable, both the Board member and the
party must disclose the communications between the Board member and a party
about the facts of the case to the Board and to the parties.
(d) A party may file and serve a motion for
disqualification less than ten days before or during a hearing only when based
on newly discovered evidence that by due diligence could not have been
discovered in time to file a timely motion. Under these circumstances, the
hearing shall continue with the challenged Board member sitting.
(e) The Board shall decide whether the
evidence requires disqualification before it renders the final agency decision
in the contested case. The decision about the disqualification of a Board
member shall be made by the other Board members. The Board is not required to
grant a new hearing if a Board member is disqualified during the course of a
(f) The presiding officer
may determine the method of resolving the motion for disqualification in the
presiding officer's discretion under
150B-40. This may include the authority to
direct that the Board's Executive Director oversee an investigation of the
allegations and report the findings to the Board.
(g) In the event of disqualification, the
disqualified member shall not participate in further deliberation or decision
of the case but may be called on to furnish information to the other members of
(h) If three or more
members of the Board are disqualified pursuant to this Rule, the Board shall
petition the Office of Administrative Hearings to appoint an administrative law
judge to hear the contested case pursuant to
21 N.C. Admin.
Code 46 .2011
Eff. July 1, 1988;
Amended Eff. May 1,
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. October 3, 2017;
Carolina Register Volume 35, Issue 05, September 1, 2020