Iowa Administrative Code › Agency 531 - Lottery Authority, Iowa › Chapter 5 - Contested Cases › Rule 531-5.23 - 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
			 communications, 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 lottery 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 5.9(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
			 5.12(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 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 5.23(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 5.17(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 lottery. Violation of ex parte communication prohibitions by agency
			 personnel shall be reported to the chief executive officer of the lottery for
			 possible sanctions including censure, suspension, dismissal, or other
			 disciplinary action.