Nebraska Administrative Code
Topic - ATHLETIC COMMISSION
Title 38
Chapter 7 - PRACTICE AND PROCEDURE
Section 38-7-001.06 - CONDUCTING A CONTESTED CASE HEARING

Universal Citation: 38 NE Admin Rules and Regs ch 7 ยง 001-06

Current through March 20, 2024

001.06(A)ORDER. At the discretion of the hearing officer, the hearing may be conducted in the following order:

001.06(A)(i) The hearing is called to order by the hearing officer. Any preliminary motions, stipulations, or agreed orders are entertained.

001.06(A)(ii) Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

001.06(A)(iii) Evidence will be received in the following order:
001.06(A)(iii)(1) Evidence is presented by the petitioner;

001.06(A)(iii)(2) Evidence is presented by the respondent;

001.06(A)(iii)(3) Rebuttal evidence is presented by the petitioner; and

001.06(A)(iii)(4) Surrebuttal evidence is presented by the respondent.

001.06(A)(iv) With regard to each witness who testifies, the following examination may be conducted:
001.06(A)(iv)(1) Direct examination conducted by the party who calls the witness;

001.06(A)(iv)(2) Cross-examination by the opposing party;

001.06(A)(iv)(3) Redirect examination by the party who called the witness; and

001.06(A)(iv)(4) Recross-examination by the opposing party.

001.06(A)(v) After the evidence is presented, each party may have the opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing arguments.

001.06(B) EVIDENCE.

001.06(B)(i) In contested cases the hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

001.06(B)(ii) Any party to a formal hearing in a contested case, from which a decision may be appealed to the courts of this state, may request that the proceeding be bound by the rules of evidence applicable in district court by delivering to the hearing officer, at least three days prior to the holding of the hearing, a written request therefore. Such a request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party procures for the hearing.

001.06(B)(iii) Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

001.06(B)(iv) All evidence including records and documents in the possession of the Commission of which it desires to avail itself must be offered and made a part of the record in the case. No factual information or evidence other than the record will be considered in the determination of the case.

001.06(B)(v) The hearing officer may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.

001.06(B)(vi) The hearing officer will give effect to the rules of privilege recognized by law.

001.06(B)(vii) The hearing officer may take official notice of cognizable facts and, in addition, may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by the Commission.
001.06(B)(vii)(1) Parties must be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

001.06(B)(vii)(2) Parties must be afforded an opportunity to contest facts so noticed.

001.06(B)(vii)(3) The record must contain a written record of everything officially noticed.

001.06(B)(viii) The hearing officer may utilize his or her experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.

001.06(C) CONDUCTING THE HEARING BY ELECTRONIC MEANS. The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear and, if technically feasible, to see the entire proceeding while it is taking place.

001.06(D) OFFICIAL RECORD.

001.06(D)(i) The Commission shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it is not necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record must be furnished by the Commission upon request and tender of the cost of preparation.

001.06(D)((ii) The Commission must maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order.

001.06(D)(iii) The official record consists only of the following:
001.06(D)(iii)(1) Notices of all proceedings;

001.06(D)(iii)(2) Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Commission pertaining to the contested case;

001.06(D)(iii)(3) The record of the hearing before the hearing officer, including all exhibits and evidence introduced during the hearing, a statement of matters officially noticed by the Commission or other hearing officer during the proceeding, and all proffers of proof and objections and rulings thereon; and

001.06(D)(iii)(4) The final order.

001.06(D)(iv) As provided in subsection 001.01(c), the hearing officer, the Commissioner, or an employee who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection must make the appropriate filings which are included in the official record of the contested case.

001.06(D)(v) Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Commission record constitutes the exclusive basis for Commission action in contested cases under the act and for judicial review thereof.

001.06(E) COSTS. All costs of a formal hearing will be paid by the party or parties against whom a final decision is rendered.

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