Iowa Administrative Code › Agency 661 - Public Safety Department › Chapter 10 - Practice and Procedure Before the Department of Public Safety › Rule 661-10.323 - Ex Parte Communication

Current through Register Vol. 47, No. 3, July 24, 2024
(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 agency 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 10.309(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
			 10.312(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 officer in a pending contested case may communicate
			 with each other without notice or opportunity for parties to
			 participate.
(6) The commissioner
			 of public safety 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 they are not disqualified from participating in the
			 making of a proposed or final decision under any provision of law and they
			 comply with subrule 10.323(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
			 10.317(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 or disclosed, as determined by the presiding officer. 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 agency. Violation of ex parte communication prohibitions by
			 department personnel shall be reported to the Professional Standards Bureau,
			 Department of Public Safety, State Public Safety Headquarters Building, 215
			 East 7th Street, Des Moines, Iowa 50319, for possible sanctions including
			 censure, suspension, dismissal, or other disciplinary action.
[Editorial change: IAC Supplement 2/11/09]