Iowa Administrative Code › Agency 263 - City Development Board › Chapter 9 - Committee Proceedings on Petitions for Involuntary City Development Action › Rule 263-9.5 - Ex Parte Communication

Current through Register Vol. 47, No. 3, July 24, 2024
(1) There shall be
			 no communication, direct or indirect, between the committee members that would
			 constitute prohibited ex parte communications pursuant to Iowa Code section
			 17A.17. Nothing in this
			 provision is intended to preclude the committee members from seeking the advice
			 or help of board staff or persons other than those with a personal interest in,
			 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 a committee member any ex parte
			 communications that those persons have received of a type that the committee
			 member would be prohibited from receiving or that furnish, augment, diminish,
			 or modify the evidence in the record.
(2) Prohibitions on ex parte communications
			 pursuant to subrule 9.5(1) commence with the receipt of a petition for board
			 members and with appointment to a committee for local representatives and
			 continue for as long as the case is pending.
(3) To avoid prohibited ex parte
			 communications, notice must be given in a manner reasonably calculated to give
			 all parties a fair opportunity to participate in any communications with the
			 committee. Notice of written communications shall be provided in compliance
			 with rule 263-9.4 (368) and may be
			 supplemented by telephone, email or other means of notification. Where
			 permitted, oral communications may be initiated through electronic means as
			 long as those means include all parties or their representatives.
(4) Committee members may communicate with
			 each other without notice or opportunity for parties to participate, provided
			 that a quorum of the committee is not present.
(5) Board staff or other persons may be
			 present in deliberations or otherwise advise the committee members without
			 notice or opportunity for parties to participate as long as the board staff or
			 other persons are not disqualified from participating in the making of a
			 proposed or final decision under any provision of law and the board staff or
			 other persons comply with subrule 9.5(1).
(6) Communications with the committee members
			 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 committee members when feasible and shall
			 notify other parties when seeking to continue hearings or other deadlines
			 pursuant to rule 263-9.9 (368).
(7) A committee member who receives a
			 prohibited ex parte communication must initially determine if the effect of the
			 communication is so prejudicial as to warrant disqualification pursuant to rule
			 263-9.6 (17A). If
			 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 committee member received a prohibited ex parte
			 communication shall be submitted for inclusion in the record under seal by
			 protective order. If the committee member determines that disqualification is
			 not warranted, the documents identified in this subrule shall be included in
			 the record of the proceeding 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.
(8) Promptly after
			 being assigned to serve as committee member, a committee member 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 a petition or similar
			 document need not be separately disclosed by the committee member as long as
			 such documents have been or will shortly be provided to the parties.
(9) The committee 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
			 committee.