Iowa Administrative Code › Agency 721 - Secretary of State › Division II - Elections › Chapter 25 - Election Administration-administrative Complaint Procedure › Rule 721-25.26 - 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 proceeding in connection with
				any issue of fact or law in the proceeding 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 those
				engaged in personally investigating as defined in subrule 25.14(2), or
				advocating in either the proceeding under consideration or a pending factually
				related proceeding 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 complaint proceeding and continue for as long as the
				proceeding 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 721-25.4(17A,39A,47) 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 officers in a pending complaint proceeding may
				communicate with each other without notice or opportunity for parties to
				participate.
(6) The director of
				elections 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 the director or other persons are not disqualified from
				participating in the making of a proposed or final decision under any provision
				of law and comply with subrule 25.26(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
				721-25.20
				(17A).
(8) Disclosure of prohibited
				communications. A presiding officer who receives a prohibited ex parte
				communication during the pendency of a complaint proceeding 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 complaint 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, or censure.