265—7.23(17A) Ex parte communication.

1. 7.23(1)  Iowa Code section 17A.17 governs ex parte communications in authority contested cases. This does not prohibit persons jointly assigned tasks related to the contested case from communicating with each other. Nothing in this provision is intended to preclude the presiding officer 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 as defined in subrule 7.9(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. 7.23(2)  Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue while the case is pending.
3. 7.23(3)  Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.
4. 7.23(4)  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 265—7.12(17A) and may be supplemented by telephone, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call or other electronic means including all parties or their representatives.
5. 7.23(5)  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. 7.23(6)  The director 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 7.23(1).
7. 7.23(7)  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 265—7.17(17A).
8. 7.23(8)  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, the procedures indicated in Iowa Code section 17A.17(4) apply.
9. 7.23(9)  Presiding officers shall disclose pre-assignment ex parte communications in accordance with Iowa Code section 17A.17(3). 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 be provided to the parties.
10. 7.23(10)  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 authority. Violation of ex parte communication prohibitions by authority personnel shall be reported to the director for possible sanctions, including censure, suspension, dismissal, or other disciplinary action.

[ARC 9405C, IAB 7/9/25, effective 8/13/25]