Iowa Administrative Code › Agency 282 - Educational Examiners Board › Chapter 11 - Complaints, Investigations, Contested Case Hearings › Rule 282-11.24 - 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 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 11.11(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 commimication 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
			 282-11.13 (17A,272) 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) Board members
			 acting as presiding officers 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
			 11.24(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
			 282-11.19
			 (17A,272).
(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 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 department.
			 Violation of ex parte communication prohibitions by department personnel shall
			 be reported to (agency to designate person to whom violations should be
			 reported) for possible sanctions including censure, suspension, dismissal, or
			 other disciplinary action.