Nebraska Administrative Code
Topic - BANKING AND FINANCE, DEPARTMENT OF
Title 49 - DEPARTMENT OF BANKING AND FINANCE
Chapter 4 - RULE OF PRACTICE AND PROCEDURE FOR HEARINGS IN CONTESTED CASES
Section 49-4-009 - CONDUCTING A CONTESTED CASE HEARING

Universal Citation: 49 NE Admin Rules and Regs ch 4 ยง 009

Current through March 20, 2024

009.01 Official Record

All hearings before the Department in contested cases shall be recorded by a court reporter of the Department's selection, unless otherwise agreed to by all the parties.

009.02 Order

Unless special circumstances exist, as determined at the discretion of the hearing officer, the hearing shall be conducted in the following order:

009.02A The hearing is called to order by the hearing officer, and any preliminary motions, stipulations or agreed orders shall be considered after the hearing is called to order.

009.02B Each party is permitted to make an opening statement. Opening statements shall take place in the same order as the presentation of evidence.

009.02C Presentation of evidence.
009.02C1 Evidence will be received in the following order:
009.02C1(a) Evidence is presented by the Department.

009.02C1(b) Evidence is presented by the Respondent or, if multiple Respondents, by each Respondent in the order in which responsive pleadings were filed.

009.02C1(c) Rebuttal evidence is presented by the Department.

009.02C1(d) Surrebuttal evidence is presented by the Respondent or Respondents, in the same order as evidence was presented.

009.02C1(e) Summary motions may be made by any party at the close of each party's presentation or at the close of the presentation of all evidence.

009.02C1(f) The hearing officer shall determine the time at which non-party participants are allowed to make a statement on the record.

009.02C2 With regard to each witness who testifies, the following examination may be conducted:
009.02C2(a) Direct examination conducted by the party who calls the witness;

009.02C2(b) Cross-examination by the opposing party or parties, in the order established by the hearing officer;

009.02C2(c) Redirect examination by the party who called the witness; and

009.02C2(d) Recross-examination by the opposing party or parties.

009.02D After the evidence is presented, each party shall have 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.

009.02E Post-Hearing Submissions.
009.02E1 Submission of briefs may be required, or permitted at the request of a party by the Director or the hearing officer. The time in which briefs shall be filed and the number of copies required will be fixed at the close of the hearing by the Director or the hearing officer. Briefs submitted to the Department shall be on white paper, 8 ½ inches x 11 inches, with margins of at least 1 inch on all sides, and shall be double spaced. No brief shall be longer than 25 pages. The Department will not consider any portion of the brief which exceeds the page limitation.

009.02E2 The hearing officer may request the parties submit proposed findings of fact and conclusions of law in lieu of, or in addition to, briefs pursuant to Section 009.02E1 of this Rule. The hearing officer shall establish the time schedule for such filing and any other restrictions that he or she deems appropriate under the circumstances.

009.03 Evidence

009.03A In contested cases the Director or 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 cumulative or repetitious evidence.

009.03B Any party to a formal hearing before the Department, from which a decision may be appealed, may request that the parties be bound by the rules of evidence applicable in district court by delivering to the Department at least three days prior to the holding of the hearing a written request therefore. Such 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.

009.03C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.
009.03C1 Parties shall furnish accurate copies of all documentary evidence offered at the hearing for the official record, to the Director or hearing officer, and all parties to the proceeding.

009.03C2 When documents are numerous, such as bank records or negotiable instruments, the Director or hearing officer may refuse to receive in evidence more than a limited number appearing to be representative. The party will be required to abstract in orderly fashion the relevant data from these documents, affording other parties reasonable opportunity to examine both the documents and the abstract, and thereupon offer the abstract in evidence in exhibit form.

009.03C3 Relevant portions of books, papers or documents shall be plainly designated and distinguished from all irrelevant portions before the relevant material may be offered into evidence. Where the irrelevant material in the book, paper or document is voluminous so as to encumber the record, the book, paper or document may be marked for identification and the relevant material read into the record. Upon direction of the Director or hearing officer, a true copy of the relevant matter may be received as an exhibit, provided that copies are delivered to all parties of record and provided all parties of record are afforded an opportunity to examine the book, paper or document and to offer in evidence in like manner other portions thereof, if found to be material and relevant.

009.03C4 All of the exhibits introduced in evidence shall be confined to a maximum size of 8 1/2 inches x 11 inches or be placed upon paper which may be folded to such size.
009.03C4(a) Enlarged charts of exhibits may be utilized at the hearing but the exhibit to be made a part of the record shall be of such size as heretofore stated.

009.03C5 Exhibits may be sealed upon a determination by the hearing officer that the exhibit contains information which is confidential in nature and which, if made public, could harm any person.

009.03D All evidence including records and documents in the possession of the Department of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.
009.03D1 Any party desiring to introduce into evidence any part or parts of official files shall obtain certified copies thereof from the Department in advance of the hearing.

009.03E A hearing officer may administer oaths and issue subpoenas in accordance with the Nebraska 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 of Lancaster County, Nebraska.

009.03F The Department shall give effect to the rules of privilege recognized by law.

009.03G The hearing officer may take administrative notice of cognizable facts and in addition may take administrative notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by the Department.
009.03G1 Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

009.03G2 Parties shall be afforded an opportunity to contest facts so noticed.

009.03G3 The record shall contain a written record of every fact or item administratively noticed.

009.03H The Department may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

009.03I Parties to any proceeding may agree upon any facts involved in the controversy, either by written stipulation entered into the record as an exhibit, or by oral agreement stated on the record; provided, that the Director or hearing officer shall not be irrevocably bound by such stipulation.

009.03J During any proceedings, the Director or hearing officer may request any party to furnish and serve designated late-filed exhibits. Such exhibits shall be filed within such time as specified by the Director or hearing officer.

009.03K The Director or any person or persons designated by the Director may make such investigations as deemed necessary to assist in the determination of matters pending before the Department. Any finding or exhibits resulting from such investigation which the Director uses in making a decision will be included and become a part of the evidence of such pending matter.

009.04 Witnesses

009.04A The Director, hearing officer, or any person designated by the hearing officer shall administer an oath to all witnesses providing testimony in a contested case prior to their testimony.

009.04B The Director or hearing officer, upon a showing of cause, may grant a motion by any party to sequester witnesses, except that:
009.04B1 Any individual who is a Respondent in a contested case shall not be sequestered; and

009.04B2 Every party to a contested case may select one representative to assist its counsel during the hearing. Such representative, even if designated as a witness, shall not be sequestered.

009.04C Every party to a contested case shall have the right to cross-examine each witness who testifies at a hearing. Where it appears that the cross-examination by one party will protect the rights of all parties similarly situated, the hearing officer may limit cross-examination to one party on either side of an issue.

009.04D A subpoena requiring the attendance of a witness shall be issued by the Director or hearing officer, on good cause shown, for the purpose of taking evidence or compelling the production of any papers, books, accounts, and documents which are relevant and material to the hearing.
009.04D1 A party directed to produce accounts, books, documents, or papers shall furnish and deliver the same at the time and place to the person specified in the subpoena.

009.04D2 A subpoena issued pursuant to this Rule may be served in any manner permitted by law including service by certified or registered mail, return receipt requested.

009.04D3 In the case of disobedience of a subpoena, the Director may invoke the aid of the applicable District Court in requiring the attendance and testimony of witnesses and in the production of accounts, books, documents, or papers.

009.04D4 Charges for serving a subpoena are to be paid prior to the date set for hearing by the party at whose instance the subpoena is issued.

009.04E Any witness who is subpoenaed and who responds thereto is entitled to the same fee as is paid for like service in the District Courts of Nebraska. Such fee is to be paid by the party at whose instance the witness's testimony is to be taken.

009.05 Appearances

Any party may appear in his or her own behalf at the hearing. An individual may appear on behalf of a party only if he or she:

009.05A Is admitted to practice law before the Nebraska Supreme Court; or

009.05B Is admitted to and engaged in the practice of law in the courts of record of another state, the District of Columbia, or a territory of the United States, and has associated with and is appearing with an attorney who is a resident of Nebraska, duly and regularly admitted to practice in the courts of record of this state, and upon whom service may be had in all matters connected with the action with the same force and effect as if personally made on such foreign attorney within this state, upon the filing of an appropriate pro hac vice motion with the Department.

009.06 Conducting the hearing by electronic means

The hearing officer may conduct oil or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in the entire proceeding while it is taking place.

009.07 Official record

009.07A The Department shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the Department upon request and tender of the cost of preparation.

009.07B The Department shall maintain an official record of each contested case under the APA for at least four years following the date of the final order.

009.07C The Department record shall consist only of the following:
009.07C1 Notices of all proceedings;

009.07C2 Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department pertaining to the contested case;

009.07C3 The record of the hearing before the Department, including all exhibits and evidence introduced during such hearing, a statement of matters administratively noticed by the Department during the proceeding, and all proffers of proof and objections and rulings thereon;

009.07C4 Any filing requirement pursuant to Section 004.03 of this Rule;

009.07C5 The recommended order of the hearing officer; and

009.07C6 The final order.

009.07D Except to the extent that the APA or another statute provides otherwise, the Department record shall constitute the exclusive basis for Department action in contested cases under the APA and for judicial review thereof.

009.07E If the hearing is closed to the public as set forth in Section 009.09 of this Rule, the entire record shall be a non-public record pursuant to Neb. Rev. Stat. § 84-712.05(5).

009.08 Costs

Except as provided in Section 009.04D of this Rule, all costs of a formal hearing, including, but not limited to, court reporter fees and fees for the Director and hearing officer's time shall be paid by the party or parties against whom a final decision is rendered, unless the hearing officer or Director determines that another allocation is appropriate.

009.09 Non-Public Hearing

009.09A Hearings subject to the provisions of this Rule shall be open to the public unless the Director specifically determines that circumstances warrant closing of the hearing to the public. Such circumstances shall include, but shall not be limited to:
009.09A1 Allegations involving criminal misconduct are the subject of the hearing.

009.09A2 Confidential financial information from an institution regulated by the Department is likely to be disclosed at the hearing.

009.09A3 The reputation of an individual could be needlessly injured.

009.09A4 The financial condition of an institution regulated by the Department could be needlessly injured.

009.09A5 The public interest would be protected.

009.09B If the Director determines that the hearing will be closed to the public, notice of that fact shall be served upon the parties to the hearing at the time notice of the hearing itself is served.
009.09B1 Upon motion by any party to the hearing, the Director shall reconsider the determination that the hearing will be closed to the public. Such motion shall be filed with the Department at least five (5) days prior to the date of the hearing.

009.09B2 If the notice of hearing does not specify that the hearing is to be closed to the public, any party may request that the hearing be closed pursuant to this Rule. Any such request must specify the reason for closing the hearing and must be submitted to the Director at least ten (10) days prior to the hearing. The party requesting the closing of the hearing shall serve a copy of the request on all parties or their attorneys of record.

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