17A.11 - PRESIDING OFFICER, DISQUALIFICATION, SUBSTITUTION.
17A.11 PRESIDING OFFICER, DISQUALIFICATION,
SUBSTITUTION.
1. a. If the agency or an officer of the agency under whose
authority the contested case is to take place is a named party to
that proceeding or a real party in interest to that proceeding the
presiding officer may be, in the discretion of the agency, either the
agency, one or more members of a multimember agency, or one or more
administrative law judges assigned by the division of administrative
hearings in accordance with the provisions of section 10A.801.
However, a party may, within a time period specified by rule, request
that the presiding officer be an administrative law judge assigned by
the division of administrative hearings. Except as otherwise
provided by statute, the agency shall grant a request by a party for
an administrative law judge unless the agency finds, and states
reasons for the finding, that any of the following conditions exist:
(1) There is a compelling need to expedite issuance of a final
decision in order to protect the public health, safety, or welfare.
(2) A qualified administrative law judge is unavailable to hear
the case within a reasonable time.
(3) The case involves significant policy issues of first
impression that are inextricably intertwined with the factual issues
presented.
(4) The demeanor of the witnesses is likely to be dispositive in
resolving the disputed factual issues.
(5) Funds are unavailable to pay the costs of an administrative
law judge and an intra-agency appeal.
(6) The request was not timely filed.
(7) There is other identified good cause, as specified by rule,
for denying the request.
b. If the agency or an officer of the agency under whose
authority the contested case is to take place is not a named party to
that proceeding or a real party in interest to that proceeding the
presiding officer may be, in the discretion of the agency, either the
agency, one or more members of a multimember agency, an
administrative law judge assigned by the division of administrative
hearings in accordance with the provisions of section 10A.801, or any
other qualified person designated as a presiding officer by the
agency. Any other person designated as a presiding officer by the
agency may be employed by and officed in the agency for which that
person acts as a presiding officer, but such a person shall not
perform duties inconsistent with that person's duties and
responsibilities as a presiding officer.
c. For purposes of paragraph "a", the division of
administrative hearings established in section 10A.801 shall be
treated as a wholly separate agency from the department of
inspections and appeals.
2. Any person serving or designated to serve alone or with others
as a presiding officer is subject to disqualification for bias,
prejudice, interest, or any other cause provided in this chapter or
for which a judge is or may be disqualified.
3. Any party may timely request the disqualification of a person
as a presiding officer by filing a motion supported by an affidavit
asserting an appropriate ground for disqualification, after receipt
of notice indicating that the person will preside or upon discovering
facts establishing grounds for disqualification, whichever is later.
4. A person whose disqualification is requested shall determine
whether to grant the request, stating facts and reasons for the
determination.
5. If a substitute is required for a person who is disqualified
or becomes unavailable for any other reason, the substitute shall be
appointed by either of the following:
a. The governor, if the disqualified or unavailable person is
an elected official.
b. The appointing authority, if the disqualified or
unavailable person is an appointed official.
6. Any action taken by a duly-appointed substitute for a
disqualified or unavailable person is as effective as if taken by the
latter. Section History: Early Form
[C75, 77, 79, 81, § 17A.11] Section History: Recent Form
88 Acts, ch 1109, § 4; 98 Acts, ch 1202, §15, 46
Referred to in § 8A.413, 10A.801, 17A.9, 86.17, 148.2A, 148.7,
169.5, 169.14, 256B.6, 421.17, 505.29, 524.228, 533.501, 903A.1
Board of medicine alternate members for contested case hearings,
see § 148.2A