Iowa Administrative Code › Agency 561 - Natural Resources Department › Chapter 7 - Rules of Practice in Contested Cases › Rule 561-7.9 - Separation of Functions and Ex Parte Communications

Current through Register Vol. 47, No. 3, July 24, 2024
(1)
Separation of functions.
A staff attorney for the department shall perform the investigative
			 and prosecuting functions for the department. Additional employees of the
			 department may be designated by the director to perform these functions as
			 necessary during the course of the case. No person performing these functions
			 shall participate or advise in any decision arising out of that case except as
			 witness or counsel in public proceedings.
(2)
Communications initiated by
			 administrative law judge or agency member
a. Except as provided in paragraphs
			 7.9(2)
"b"
and
"c,"
or unless required for the
			 disposition of ex parte matters specifically authorized by statute, following
			 issuance of the notice of hearing, the presiding officer and members of the
			 agency having jurisdiction of the case shall not communicate, directly or
			 indirectly, in connection with any issue of fact or law in that case with any
			 person or party or representative of any party, or any other person with a
			 direct or indirect interest in such case. 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 permitted or
			 allowed by Iowa Code chapter 21, "Official Meetings Open to Public (Open
			 Meetings)."
b. The presiding
			 officer having jurisdiction of a case may communicate in connection with issues
			 of fact or law in the case, upon notice and opportunity for all parties to
			 participate. Where members of the agency are acting as the presiding
			 officer(s), they may communicate in connection with issues of fact or law in
			 the case, upon notice and opportunity for all parties to participate and to the
			 extent permitted by Iowa Code chapter 21, "Official Meetings Open to Public
			 (Open Meetings)." Notice of the time and place of the discussion and the issues
			 of fact or law to be discussed shall be delivered by first-class mail to the
			 parties. The discussion shall not extend to issues of fact or law not specified
			 in the notice unless all parties participate in the discussion. The time of the
			 discussion shall not be sooner than ten days after receipt of the
			 notice.
c. The presiding officer or
			 members of the agency having jurisdiction of the case may communicate with
			 members of the department and may have the aid and advice of persons other than
			 those with a personal interest in, or those engaged in personally
			 investigating, 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. All employees of the
			 department other than those performing the investigative and prosecuting
			 functions in the case shall be available to advise the agency and presiding
			 officer on any of those employees' functions relating to the case and any
			 appeal, provided communications with those employees meet the above
			 specifications.