Iowa Administrative Code › Agency 281 - Education Department › Title I - General Information- Department Operations › Chapter 6 - Appeal Procedures › Rule 281-6.14 - 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 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
				6.7(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.
				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 executive director 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
				6.14(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 6.4(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. 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 agency personnel shall be
				reported to the legal consultant for the department of education for possible
				sanctions including censure, suspension, dismissal, or other disciplinary
				action.