Iowa Administrative Code › Agency 605 - Homeland Security and Emergency Management Department › Chapter 6 - Contested Cases › Rule 605-6.23 - 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 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
			 6.9(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
			 6.12(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 6.23(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 6.17(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 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
			 17A13(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 director for possible sanctions including
			 censure, suspension, dismissal, or other disciplinary action.