Iowa Administrative Code › Agency 191 - Insurance Division › Organization and Procedures › Chapter 3 - Contested Cases › Rule 191-3.23 - Ex Parte Communication

Current through Register Vol. 47, No. 3, July 24, 2024
(1) Unless required
				for the disposition of ex parte matters specifically, through communication
				either written, oral, or other forms 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 division 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 3.9(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) 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
				191-3.12 (17A) and may be
				supplemented by telephone, facsimile, email or other means of
				notification.
(4) 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.
(5) 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
				191-3.16 (17A).
(6) 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, either under seal
				by protective order or in the public file, at the discretion of the presiding
				officer. 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.
(7) 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.
(8) 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 division. Violation of ex parte communication prohibitions
				by division personnel shall be reported to the first deputy commissioner or
				designee for possible sanctions including censure, suspension, dismissal or
				other disciplinary action.