Iowa Administrative Code › Agency 161 - Civil Rights Commission › Chapter 4 - Contested Cases › Rule 161-4.14 - 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 to
			 render a proposed or final decision or to make findings of fact or conclusions
			 of law in the contested case 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 4.13(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
			 161-4.6
			 (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) 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
			 161-4.11
			 (17A).
(7) 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.
(8) 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.
4.14(9)
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 agency
			 personnel shall be reported to the executive director for possible sanctions
			 including censure, suspension, dismissal, or other disciplinary
			 action.