Iowa Administrative Code › Agency 495 - Iowa Public Employees' Retirement System › Chapter 26 - Appeals and Contested Cases-proceedings › Rule 495-26.24 - 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 commimicating 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
			 26.10(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 commimications
			 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 opportimity to participate.
			 Notice of written communications shall be provided in compliance with rule
			 26.13(17A,97B) and may be supplemented by telephone, facsimile, electronic mail
			 or other means of notification. Where permitted, oral commimications may be
			 initiated through a conference telephone call including all parties or their
			 representatives.
(5) Persons who
			 jointly act as presiding officer or are a committee assigned to conduct a
			 contested case may communicate with each other without notice or opportunity
			 for parties to participate.
(6) The
			 CEO, or designee, 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 26.24(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
			 26.18(17A,97B).
(8) Disclosure of
			 prohibited communications. A presiding officer who receives a prohibited ex
			 parte communication while a contested case is pending 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 and disclosed to
			 all parties having an interest in the contested case. 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 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.
(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 agency.
			 Violation of ex parte communication prohibitions by agency personnel shall be
			 reported to the CEO or agency general counsel for possible sanctions including
			 censure, suspension, dismissal, or other disciplinary action.