Iowa Administrative Code › Agency 657 - Pharmacy Board › Chapter 35 - Contested Cases › Rule 657-35.28 - Exparte 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 board 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 35.13(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)
Duration of prohibition.
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)
"Exparte "
			 defined.
Written, oral, or other forms of communication are "ex parte"
			 if made without notice and opportunity for all parties to
			 participate.
(4)
Authorized
			 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 rule
			 657-35.17
			 (17A,272C) and may be supplemented by telephone, facsimile, electronic mail, or
			 other means of notification. Where permitted, oral communications may be
			 initiated through conference telephone call including all parties or their
			 representatives.
(5)
Communications between presiding officers.
Persons who jointly
			 act as presiding officers in a pending contested case may communicate with each
			 other without notice or opportunity for parties to participate.
(6)
Others authorized to communicate
			 with presiding officer
The executive director 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 they are not
			 disqualified from participating in the making of a proposed or final decision
			 under any provision of law and they comply with subrule 35.28(1).
(7)
Communications not
			 prohibited.
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
			 657-35.23
			 (17A,272C).
(8)
Disclosure
			 of prohibited communications received during pendency of case.
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.
a. 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.
b. 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.
c. 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.