17A.17 - EX PARTE COMMUNICATIONS AND SEPARATION OF FUNCTIONS.
17A.17 EX PARTE COMMUNICATIONS AND SEPARATION OF
FUNCTIONS.
1. a. Unless required for the disposition of ex parte matters
specifically authorized by statute, a presiding officer in a
contested case, shall not communicate, directly or indirectly, in
connection with any issue of fact or law in that contested case, with
any person or party, except upon notice and opportunity for all
parties to participate as shall be provided for by agency rules.
b. However, without such notice and opportunity for all
parties to participate, a presiding officer in a contested case may
communicate with members of the agency, and may have the aid and
advice of persons other than those with a personal interest in, or
those engaged in personally investigating, prosecuting or advocating
in, either the case under consideration or a pending factually
related case involving the same parties so 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. Unless required for the disposition of ex parte matters
specifically authorized by statute, parties or their representatives
in a contested case and persons with a direct or indirect interest in
such a case shall not communicate, directly or indirectly, in
connection with any issue of fact or law in that contested case, with
a presiding officer in that contested case, except upon notice and
opportunity for all parties to participate as shall be provided for
by agency rules.
3. If, before serving as the presiding officer in a contested
case, a person receives an ex parte communication relating directly
to the merits of the proceeding over which that person subsequently
presides, the person, promptly after starting to serve, shall
disclose to all parties any material factual information so received
and not otherwise disclosed to those parties pursuant to section
17A.13, subsection 2, or through discovery.
4. A presiding officer who receives an ex parte communication in
violation of this section shall place on the record of the pending
matter all such written communications received, all written
responses to the communications, 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, and
shall advise all parties that these matters have been placed on the
record. Any party desiring to rebut the prohibited ex parte
communication must be allowed to do so, upon requesting the
opportunity for rebuttal within ten days after notice of the
communication.
5. If the effect of an ex parte communication received in
violation of this section is so prejudicial that it cannot be cured
by the procedure in subsection 4, a presiding officer who receives
the communication shall be disqualified and the portions of the
record pertaining to the communication shall be sealed by protective
order.
6. The agency and any party may report any violation of this
section to appropriate authorities for any disciplinary proceedings
provided by law. In addition, each agency by rule shall provide for
appropriate sanctions, including default, suspending or revoking a
privilege to practice before the agency, and censuring, suspending,
or dismissing agency personnel, for any violations of this section.
7. A party to a contested case proceeding may file a timely and
sufficient affidavit alleging a violation of any provision of this
section. The agency shall determine the matter as part of the record
in the case. When an agency in these circumstances makes such a
determination with respect to an agency member, that determination
shall be subject to de novo judicial review in any subsequent review
proceeding of the case.
8. An individual who participates in the making of any proposed
or final decision in a contested case shall not have personally
investigated, prosecuted, or advocated in connection with that case,
the specific controversy underlying that case, or another pending
factually related contested case, or pending factually related
controversy that may culminate in a contested case, involving the
same parties. In addition, such an individual shall not be subject
to the authority, direction, or discretion of any person who has
personally investigated, prosecuted, or advocated in connection with
that contested case, the specific controversy underlying that
contested case, or a pending factually related contested case or
controversy, involving the same parties. However, this section shall
not be construed to preclude a person from serving as a presiding
officer solely because that person determined there was probable
cause to initiate the proceeding. Section History: Early Form
[C75, 77, 79, 81, § 17A.17] Section History: Recent Form
98 Acts, ch 1202, §19, 46; 2008 Acts, ch 1032, §201
Referred to in § 2C.9, 17A.9, 86.17, 216.15, 421.17, 542.11