Current through Register Vol. 47, No. 6, September 18, 2024
(1) A presiding
officer or other person will withdraw from participation in the making of any
proposed or final decision in a contested case if that person:
a. Has a personal bias or prejudice
concerning a party or a representative of a party;
b. Has personally investigated, prosecuted,
or advocated, in connection with that case, the specific controversy underlying
that case, another pending factually related contested case, or a pending
factually related controversy that may culminate in a contested case involving
the same parties;
c. Is 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;
d. Has acted as counsel to any person who is
a private party to that proceeding within the past two years;
e. Has a personal financial interest in the
outcome of the case or any other significant personal interest that could be
substantially affected by the outcome of the case;
f. Has a spouse or relative within the third
degree of relationship who:
(1) Is a party to
the case, or an officer, director or trustee of a party;
(2) Is a lawyer in the case;
(3) Is known to have an interest that could
be substantially affected by the outcome of the case; or
(4) Is likely to be a material witness in the
case; or
g. Has any other
legally sufficient cause to withdraw from participation.
(2) 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:
a. General direction and supervision
of assigned investigators;
b.
Unsolicited receipt of information that is relayed to assigned
investigators;
c. Review of another
person's investigative work product in the course of determining whether there
is probable cause to initiate a proceeding; or
d. Exposure to factual information while
performing other board functions, including fact gathering for purposes other
than investigation of the matter that culminates in a contested
case.
(3) Factual
information relevant to the merits of a contested case received by a person who
later serves as presiding officer in that case will be disclosed if required by
Iowa Code section 17A.17(3) and
subrule 33.27(9).
(4) By electing
to participate in an appearance before the board pursuant to rule
641-34.7 (17A), the licensee
waives any objection to a board member's participating as a decision maker in a
contested case proceeding on the grounds that the board member "personally
investigated" the matter under this provision.
(5) If a presiding officer or other person
knows of information that might reasonably be deemed to be a basis for
disqualification and decides voluntary withdrawal is unnecessary, that person
will submit the relevant information from the records by affidavit including a
statement of the reasons for the determination that withdrawal is
unnecessary.
