Iowa Administrative Code › Agency 655 - Nursing Board › Chapter 20 - Contested Cases › Rule 655-20.28 - 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 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 agency
			 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
			 20.11(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
			 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
			 655-20.17 (17A,272C) and may be supplemented by telephone, facsimile,
			 electronic mail or other means of notification. Where permitted, oral
			 communications may be initiated through telephone conference call which
			 includes 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 or designee may be
			 present in deliberations or otherwise advise the presiding officer without
			 notice or opportunity for parties to participate as long as the executive
			 director or designee is not disqualified from participating in the making of a
			 proposed or final decision under subrule 20.11(1) or other law and the
			 executive director or designee complies with subrule 20.28(1).
(7) Communications with the presiding officer
			 involving scheduling or uncontested procedural matters do not require notice or
			 opportunity for parties to participate. A party should notify other parties
			 prior to initiating such contact with the presiding officer when
			 feasible.
(8) A presiding officer
			 who received 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 10 days after notice of the
			 communication.
(9) Promptly after
			 being assigned to serve as presiding officer, the 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 board. Violation of ex parte communication prohibitions by board personnel
			 shall be reported to the board's executive director for possible sanctions
			 including: censure, suspension, dismissal, or other disciplinary
			 action.