Iowa Administrative Code › Agency 641 - Public Health Department › Chapter 33 - Plumbing and Mechanical Systems Board-contested Cases › Rule 641-33.27 - Ex Parte Communication

Current through Register Vol. 47, No. 3, July 24, 2024
(1) Unless
			 requested for the disposition of ex parte matters specifically authorized by
			 statute, following issuance of the statement of charges and 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. Nothing in this provision is intended to preclude board members
			 from communicating with other board members or members of the board staff,
			 other than those with a personal interest in, or those engaged in personally
			 investigating as defined in subrule 33.11(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 statement of charges and
			 notice of hearing in a contested case and continue for as long as the case is
			 pending before the board.
(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
			 will be provided in compliance with rule
			 641-33.14 (17A) and may be
			 supplemented by telephone, facsimile, electronic mail, or other means of
			 notification. When permitted, oral communications may be initiated through
			 conference telephone call including all parties or their
			 representatives.
(5) Persons who
			 jointly act as a presiding officer in a pending contested case may communicate
			 with each other without notice or opportunity for parties to
			 participate.
(6) The executive
			 officer or other persons may be present during deliberations as long as the
			 executive officer or other person is not disqualified from participating
			 pursuant to rule 641-33.11 (17A).
(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 641-33.22 (17A).
(8) A presiding officer who receives a
			 prohibited ex parte communication during the contested case process 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 will 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.