Iowa Administrative Code › Agency 185 - Alcoholic Beverages Division › Chapter 10 - Contested Cases › Rule 185-10.23 - 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 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 10.10(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)
Length of prohibitions.
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)
Forms of ex
			 parte communication.
Written, oral or other forms of communication are
			 "ex parte" if made without notice and opportunity for all parties to
			 participate.
(4)
Notice.
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 10.13(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 call
			 including all parties or their representatives.
(5)
Communication between presiding
			 officers.
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)
Deliberations.
The administrator 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 10.23(1).
(7)
Scheduling or procedural
			 matters.
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 10.17(17A).
(8)
Disqualification of presiding officer 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 under seal by
			 protective order 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)
Disclosure of prohibited
			 communications.
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
			 I7A.I3(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)
Sanctions.
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 administrator or the administrator's designee for possible
			 sanctions including censure, suspension, dismissal, or other disciplinary
			 action.