Iowa Administrative Code › Agency 491 - Racing and Gaming Commission › Chapter 4 - Contested Cases and Other Proceedings › Rule 491-4.39 - 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
			 commission 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 4.25(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 communication shall be provided in compliance with rule
			 491-4.28
			 (17A) and may be supplemented by telephone, facsimile. E-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 administrator
			 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 subrule 4.25(1) or other law and they comply
			 with subrule 4.39(1).
(7)
			 Communications with the presiding officer involving scheduling or procedural
			 matters uncontested 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
			 491-4.33
			 (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 on a hearing panel, as a member of
			 a full board hearing, on an intra-agency appeal, or other basis, 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
			 commission. Violation of ex parte communication prohibitions by commission
			 personnel shall be reported to the administrator for possible sanctions
			 including censure, suspension, dismissal, or other disciplinary
			 action.