The presiding officer shall be in control of the proceedings
and shall have the authority to administer oaths and to admit or exclude
testimony or other evidence and shall rule on all motions and objections. The
board may request that an administrative law judge assist the board by
performing any of these functions. Parties have the right to participate or to
be represented in all hearings. Any party may be represented by an attorney at
the party's expense.
(1)
Examination of witnesses. All witnesses shall be sworn or
affirmed by the presiding officer or the court reporter, and shall be subject
to cross-examination. Board members and the administrative law judge have the
right to examine witnesses at any stage of a witness's testimony. The presiding
officer may limit questioning in a manner consistent with law.
(2)
Public hearing. The
hearing shall be open to the public unless a licensee or licensee's attorney
requests in writing that a licensee disciplinary hearing be closed to the
public. At the request of a party or on the presiding officer's own motion, the
presiding officer may issue a protective order to protect all or a part of a
record or information which is privileged or confidential by law.
(3)
Record of proceedings.
Oral proceedings shall be recorded either by mechanical or electronic means or
by certified shorthand reporters. Oral proceedings or any part thereof shall be
transcribed at the request of any party with the expense of the transcription
charged to the requesting party. The recording or stenographic notes of oral
proceedings or the transcription shall be filed with and maintained by the
board for at least five years from the date of decision.
(4)
Order of proceedings.
Before testimony is presented, the record shall show the identities of any
board members present, the identity of the administrative law judge, the
identities of the primary parties and their representatives, and the fact that
all testimony is being recorded. In contested cases initiated by the board,
such as licensee discipline, hearings shall generally be conducted in the
following order, subject to modification at the discretion of the board:
a. The presiding officer or designated person
may read a summary of the charges and answers thereto and other responsive
pleadings filed by the respondent prior to the hearing.
b. The assistant attorney general
representing the state interest before the board shall make a brief opening
statement which may include a summary of charges and the names of any witnesses
and documents to support such charges.
c. Each respondent shall be offered the
opportunity to make an opening statement, including the names of any witnesses
the respondent(s) desires to call in defense. A respondent may elect to make
the opening statement just prior to the presentation of evidence by the
respondent(s).
d. The presentation
of evidence on behalf of the state.
e. The presentation of evidence on behalf of
the respondent(s).
f.Rebuttal
evidence on behalf of the state, if any.
g. Rebuttal evidence on behalf of the
respondent(s), if any.
h. Closing
arguments first on behalf of the state, then on behalf of the respondent(s),
and then on behalf of the state, if any.
The order of proceedings shall be tailored to the nature of the
contested case. In license reinstatement hearings, for example, the respondent
will generally present evidence first because the respondent is obligated to
present evidence in support of the respondent's application for reinstatement
pursuant to rule
193-7.38
(17A,272C). In license denial hearings, the state will generally first
establish the basis for the board's denial of licensure, but thereafter the
applicant has the burden of establishing the conditions for licensure pursuant
to rule
193-7.39
(546,272C).
(5)
Decorum. The presiding officer shall maintain the decorum of
the hearing and may refuse to admit or may expel anyone whose conduct is
disorderly.
(6)
Immunity. The presiding officer shall have authority to grant
immunity from disciplinary action to a witness, as provided by Iowa Code
section
272C.6(3),
but only upon the unanimous vote of all members of the board hearing the case.
The official record of the hearing shall include the reasons for granting the
immunity.
(7)
Sequestering
witnesses. The presiding officer, on the officer's own motion or upon
the request of a party, may sequester witnesses.
(8)
Witness representation.
Witnesses are entitled to be represented by an attorney at their own expense.
In a closed hearing, the attorney may be present only when the client
testifies. The attorney may assert legal privileges personal to the client, but
may not make other objections. The attorney may only ask questions of the
client to prevent a misstatement from entering the record.
(9)
Depositions. Depositions
may be used at hearing to the extent permitted by Iowa Rule of Civil Procedure
1.704.
(10)
Witness
fees. The parties in a contested case shall be responsible for any
witness fees and expenses incurred by witnesses appearing at the contested case
hearing, unless otherwise specified or allocated in an order. The costs for lay
witnesses shall be determined in accordance with Iowa Code section
622.69. The costs
for expert witnesses shall be determined in accordance with Iowa Code section
622.72.
Witnesses are entitled to reimbursement for mileage and may be entitled to
reimbursement for meals and lodging, as incurred.