Iowa Administrative Code › Agency 621 - Public Employment Relations Board › Chapter 2 - General Practice and Hearing Procedures › Rule 621-2.20 - Ex Parte Communications

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, a presiding officer in a contested
			 case, or in proceedings on a petition for declaratory order in which there are
			 two or more parties, shall not communicate directly or indirectly with any
			 party, representative of any party or any other person with a direct or
			 indirect interest in such case, nor shall any such party, representative or
			 person communicate directly or indirectly with the presiding officer concerning
			 any issues of fact or law in that case, except upon notice and opportunity for
			 all parties to participate. Nothing in this provision precludes the presiding
			 officer, without such notice and opportunity for all parties to participate,
			 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, 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. The term "personally investigated" means taking
			 affirmative steps to interview witnesses directly or to obtain documents or
			 other information directly. The term "personally investigated" does not include
			 general direction and supervision of assigned investigators, unsolicited
			 receipt of information which is relayed to assigned investigators, review of
			 another's investigative work product in the course of determining whether to
			 initiate a proceeding or exposure to factual information while performing other
			 agency functions, including fact-gathering for purposes other than
			 investigation of the matter which culminates in a contested case. Factual
			 information relevant to the merits of a contested case received by a person who
			 later serves as a presiding officer in that case shall be disclosed if required
			 by Iowa Code section
			 17A.17.
(2) Prohibitions on ex parte communications
			 commence with the issuance of the notice of hearing in a contested case and
			 with the filing of the petition in a declaratory order proceeding in which
			 there are two or more parties, and continue for as long as the case is
			 pending.
(3) Communications with a
			 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 prior to seeking to continue hearings
			 or other deadlines.
(4) Disclosure
			 of prohibited communications. A presiding officer who receives a prohibited ex
			 parte communication during the pendency of a contested case or proceedings on a
			 petition for declaratory order in which there are two or more parties shall
			 disclose to all parties and place on the record of the pending matter all such
			 written communications, all written responses to the communication, and a
			 memorandum stating the substance of all such oral and other communications
			 received, all responses made and the identity of each person from whom the
			 presiding officer received a prohibited ex parte communication. The presiding
			 officer shall notify all parties that these matters have been placed on the
			 record. Any party desiring to rebut the prohibited communication will be
			 allowed the opportunity to do so upon written request filed within ten days
			 after the giving of notice that the matters have been placed on the
			 record.
(5) If the presiding
			 officer determines that the effect of a prohibited ex parte communication is so
			 prejudicial that it cannot be cured by the procedure specified in subrule
			 2.20(4), the presiding officer shall be disqualified and the portions of the
			 record pertaining to the communication shall be sealed by protective
			 order.
(6) Promptly after being
			 assigned to serve as presiding officer, either individually, on a hearing panel
			 or on an intra-agency appeal, a presiding officer shall disclose to all parties
			 any material factual information received through ex parte communication prior
			 to such assignment, unless the factual information has or soon will be
			 disclosed pursuant to Iowa Code section 17A. 13 (2) or through
			 discovery.
(7) Sanctions for
			 prohibited communications.
a. The agency and
			 any party may report any violation of this rule to appropriate authorities for
			 any disciplinary proceedings provided by law.
b. The presiding officer may render a
			 proposed decision or, in the case of the board or a majority thereof, a final
			 decision, imposing appropriate sanctions for violations of this rule including
			 a decision against the offending party, censure, suspension, or revocation of
			 the privilege to practice before the agency.
c. Alleged violations of ex parte
			 communication prohibitions by agency personnel shall be reported to the
			 chairperson for the possible imposition of sanctions including censure,
			 suspension, dismissal or other disciplinary action.