Iowa Administrative Code › Agency 685 - Archaeologist › Chapter 4 - Contested Cases › Rule 685-4.24 - 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, a presiding officer in a contested case or in proceedings on a
			 petition for declaratory order in which there are two or more parties shall not
			 communicate directly or indirectly with any party, representative of any party
			 or any other person with a direct or indirect interest in such case, nor shall
			 any such party, representative or person communicate directly or indirectly
			 with the presiding officer concerning any issues of fact or law in that case,
			 except upon notice and opportunity for all parties to participate. Nothing in
			 this provision precludes the presiding officer, without such notice and
			 opportunity for all parties to participate, from communicating 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, 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. The term "personally
			 investigated" means taking affirmative steps to interview witnesses directly or
			 to obtain documents or other information directly. The term "personally
			 investigated" does not include general direction and supervision of assigned
			 investigators, unsolicited receipt of information which is relayed to assigned
			 investigators, review of another's investigative work product in the course of
			 determining whether to initiate a proceeding or exposure to factual information
			 while performing other agency functions, including fact-gathering for purposes
			 other than investigation of the matter which culminates in a contested case.
			 Factual information relevant to the merits of a contested case received by a
			 person who later serves as a presiding officer in that case shall be disclosed
			 if required by Iowa Code section
			 17A.17.
(2) Prohibitions on ex parte communications
			 commence with the issuance of the notice of hearing in a contested case and
			 with the filing of the petition in a declaratory order proceeding in which
			 there are two or more parties and continue for as long as the case is
			 pending.
(3) Communications with a
			 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 prior to seeking to continue hearings
			 or other deadlines.
(4) Disclosure
			 of prohibited communications. A presiding officer who receives a prohibited ex
			 parte communication during the pendency of a contested case or proceedings on a
			 petition for declaratory order in which there are two or more parties shall
			 disclose to all parties and place on the record of the pending matter all such
			 written communications, all written responses to the communication, and a
			 memorandum stating the substance of all such oral and other communications
			 received, all responses made and the identity of each person from whom the
			 presiding officer received a prohibited ex parte communication. The presiding
			 officer shall notify all parties that these matters have been placed on the
			 record. Any party desiring to rebut the prohibited communication will be
			 allowed the opportunity to do so upon written request filed within ten days
			 after the giving of notice that the matters have been placed on the
			 record.
(5) If the presiding
			 officer determines that the effect of a prohibited ex parte communication is so
			 prejudicial that it cannot be cured by the procedure specified in subrule
			 4.24(4), the presiding officer shall be disqualified and the portions of the
			 record pertaining to the communication shall be sealed by protective
			 order
(6) Promptly after being
			 assigned to serve as presiding officer, a presiding officer shall disclose to
			 all parties any material factual information received through ex parte
			 communication prior to such assignment, unless the factual information has or
			 soon will be disclosed pursuant to Iowa Code section
			 17A.13(2)
			  or through discovery.
(7) Sanctions for prohibited communications.
a. The agency and any party may report any
			 violation of this rule to appropriate authorities for any disciplinary
			 proceedings provided by law.
b. The
			 presiding officer may render a proposed decision or, in the case of OSA, a
			 final decision imposing appropriate sanctions for violations of this rule
			 including a decision against the offending party, censure, suspension, or
			 revocation of the privilege to practice before the agency.