Iowa Administrative Code › Agency 193 - Professional Licensing and Regulation Bureau › Chapter 7 - Contested Cases › Rule 193-7.28 - 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 will 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 board
			 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
			 7.14(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 needs to be given in a manner
			 reasonably calculated to give all parties a fair opportunity to participate.
			 Notice of written communications will be provided in compliance with rule
			 193-7.17 (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 officers in a pending contested case may communicate
			 with each other without notice or opportunity for parties to
			 participate.
(6) The executive
			 officer 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 the executive officer or other persons are not disqualified from
			 participating in the making of a proposed or final decision under any provision
			 of law and the executive officer or other persons comply with subrule
			 7.28(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 will notify other parties when seeking to continue
			 hearings or other deadlines pursuant to rule
			 193-7.22 (17A).
(8) Disclosure of prohibited communications.
			 A presiding officer who receives a prohibited ex parte communication during the
			 pendency of a contested case will 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 will be
			 submitted for inclusion in the record under seal by protective order. If the
			 presiding officer determines that disqualification is not warranted, such
			 documents will be submitted for inclusion in the record and served on all
			 parties. Any party desiring to rebut the prohibited communication will 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 will 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 board. Violation of ex parte communication prohibitions by board personnel
			 will be reported to the administrator for possible sanctions including censure,
			 suspension, dismissal, or other disciplinary action.