Iowa Administrative Code › Agency 701 - Revenue Department › Title I - Administration › Chapter 7 - Appeals, Taxpayer Representation, and Other Administrative Procedures › Rule 701-7.23 - Ex Parte Communications and Disqualification

Current through Register Vol. 47, No. 3, July 24, 2024
(1)
Ex parte communication.
A party that has knowledge of a prohibited communication by any party or
				presiding officer should file a copy of the written prohibited communication or
				a written summary of the prohibited oral communication with the clerk. The
				clerk will transfer to the presiding officer the filed copy of the prohibited
				communication.
a.
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
				department 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 this rule, 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. 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.
b.
"Ex parte" communication
				defined.
Written, oral or other forms of communication are "ex parte"
				if made without notice and opportunity for all parties to
				participate.
c.
How to
				avoid prohibited communications.
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 this chapter and may be supplemented by
				telephone, facsimile, electronic mail, or other means of notification. Where
				permitted, oral communications may be initiated through conference telephone
				calls including all parties or their representatives.
d.
Joint presiding officers.
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.
e.
Advice to
				presiding officer.
Persons may be present in deliberations or
				otherwise advise the presiding officer without notice or opportunity for
				parties to participate as long as the parties are not disqualified from
				participating in the making of a proposed or final decision under any provision
				of law and the parties comply with these rules.
f.
Procedural
				communications.
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.
g.
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.
h.
Disclosure by presiding
				officer.
Promptly after receiving the communication or 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.
i.
Sanction.
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 department or the administrative hearings division.
				Violation of ex parte communication prohibitions by department personnel or
				their representatives shall be reported to the clerk for possible sanctions
				including censure, suspension, dismissal, or other disciplinary
				action.