Iowa Administrative Code › Agency 650 - Dental Board › Title VI - Professional Regulation › Chapter 51 - Contested Cases › Rule 650-51.23 - 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. Nothing in this provision is intended to preclude board
				members from communicating with other board members or members of the board
				staff, other than those with a personal interest in, or those engaged in
				personally investigating as defined in subrule 51.10(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 before the board.
(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 650-51.13 (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 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 under rule 650-51.10
				(17A).
(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 650-51.18 (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.
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, suspension or revocation of the privilege to practice
				before the board. Violation of ex parte communication prohibitions by board
				personnel shall be reported to the board and its executive director for
				possible sanctions including censure, suspension, dismissal, or other
				disciplinary action.