Iowa Administrative Code › Agency 653 - Medicine Board › Chapter 25 - Contested Case Proceedings › Rule 653-25.21 - 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 statement of charges, 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.
			 Nothing in this provision is intended to preclude board members from
			 communicating with other board members or members of the board staff, other
			 than those with a personal interest in, or those engaged in personally
			 investigating as defined in subrule 25.8(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 statement of charges in
			 a contested case and continue for as long as the case is pending before the
			 board.
(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
			 653-25.11
			 (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 to the
			 extent necessary to carry out their function as presiding officer.
(6) The executive director or director of
			 legal affairs may be present during deliberations as long as that person is not
			 disqualified from participating under rule
			 653-25.8 (17A).
			 The executive director or director of legal affairs shall not attempt to
			 influence the board's decision in the proceeding.
(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
			 653-25.16
			 (17A).
(8) Disclosure of prohibited
			 communications. A presiding officer who receives a prohibited ex parte
			 communication during the contested case process must initially determine if the
			 effect of the communication is so prejudicial that the presiding officer should
			 be disqualified.
a. 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.
b. 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.