Iowa Admin. Code r. 193-7.28 - [Effective until 8/14/2024] Ex parte communication
(1) Prohibited communications. Unless
required for the disposition of ex parte matters specifically authorized by
statute, following issuance of the notice of hearing, there shall be no
communication, directly or indirectly, between the presiding officer and any
party or representative of any party or any other person with a direct or
indirect interest in such case in connection with any issue of fact or law in
the case except upon notice and opportunity for all parties to participate.
This does not prohibit persons jointly assigned such tasks from communicating
with each other Nothing in this provision is intended to preclude the presiding
officer from communicating with members of the board or seeking the advice or
help of persons other than those with a personal interest in, or those engaged
in personally investigating as defined in subrule 7.14(2), prosecuting, or
advocating in, either the case under consideration or a pending factually
related case involving the same parties as long as those persons do not
directly or indirectly communicate to the presiding officer any ex parte
communications they have received of a type that the presiding officer would be
prohibited from receiving or that furnish, augment, diminish, or modify the
evidence in the record.
(2)
Prohibitions on ex parte communications commence with the issuance of the
notice of hearing in a contested case and continue for as long as the case is
pending.
(3) Written, oral or other
forms of communication are ex parte if made without notice and opportunity for
all parties to participate.
(4) To
avoid prohibited ex parte communications, notice must be given in a manner
reasonably calculated to give all parties a fair opportunity to participate.
Notice of written communications shall be provided in compliance with rule
7.17(17A) and may be supplemented by telephone, facsimile, electronic mail or
other means of notification. Where permitted, oral communications may be
initiated through conference telephone call including all parties or their
representatives.
(5) Persons who
jointly act as presiding officers in a pending contested case may communicate
with each other without notice or opportunity for parties to
participate.
(6) The executive
officer or other persons may be present in deliberations or otherwise advise
the presiding officer without notice or opportunity for parties to participate
as long as the executive officer or other persons are not disqualified from
participating in the making of a proposed or final decision under any provision
of law and the executive officer or other persons comply with subrule
7.28(1).
(7) Communications with
the presiding officer involving uncontested scheduling or procedural matters do
not require notice or opportunity for parties to participate. Parties should
notify other parties prior to initiating such contact with the presiding
officer when feasible, and shall notify other parties when seeking to continue
hearings or other deadlines pursuant to rule 7.22(17A).
(8) Disclosure of prohibited communications.
A presiding officer who receives a prohibited ex parte communication during the
pendency of a contested case must initially determine if the effect of the
communication is so prejudicial that the presiding officer should be
disqualified. If the presiding officer determines that disqualification is
warranted, a copy of any prohibited written communication, all written
responses to the communication, a written summary stating the substance of any
prohibited oral or other communication not available in written form for
disclosure, all responses made, and the identity of each person from whom the
presiding officer received a prohibited ex parte communication shall be
submitted for inclusion in the record under seal by protective order If the
presiding officer determines that disqualification is not warranted, such
documents shall be submitted for inclusion in the record and served on all
parties. Any party desiring to rebut the prohibited communication must be
allowed the opportunity to do so upon written request filed within ten days
after notice of the communication.
(9) Promptly after being assigned to serve as
presiding officer at any stage in a contested case proceeding, a presiding
officer shall disclose to all parties material factual information received
through ex parte communication prior to such assignment unless the factual
information has already been or shortly will be disclosed pursuant to Iowa Code
section
17A.13(2)
or through discovery. Factual information
contained in an investigative report or similar document need not be separately
disclosed by the presiding officer as long as such documents have been or will
shortly be provided to the parties.
(10) The presiding officer may render a
proposed or final decision imposing appropriate sanctions for violations of
this rule including default, a decision against the offending party, censure,
or suspension or revocation of the privilege to practice before the board.
Violation of ex parte communication prohibitions by board personnel shall be
reported to the administrator for possible sanctions including censure,
suspension, dismissal, or other disciplinary action.
Notes
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