Iowa Administrative Code › Agency 875 - Labor Services Division › Chapter 1 - Description of Organization and Procedures Before the Division › Division V - Contested Cases › Rule 875-1.86 - 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 the 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 division 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 1.72(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
				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
				1.75(17A) and may be supplemented by telephone, facsimile, electronic mail or
				other means of notification. Where permitted, oral communications may be
				initiated through conference telephone calls including all parties or their
				representatives.
(5) Persons who
				jointly act as presiding officer in a pending contested case may communicate
				with each other without notice or opportunity for parties to
				participate.
(6) The commissioner
				and 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 1.86(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 1.80(17A).
(8) Disclosure of prohibited communications.
				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. 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 imder seal by protective order or
				disclosed. 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 division.
				Violation of ex parte communication prohibitions by division personnel shall be
				reported to the commissioner for possible sanctions including censure,
				suspension, dismissal, or other disciplinary action.