Current through September 17, 2024
006.01 Prehearing conferences and orders
A hearing officer designated to conduct a hearing may
determine, subject to the agency's rules and regulations, whether a prehearing
conference will be conducted. If a prehearing conference is not held, a hearing
officer for the hearing may issue a prehearing order, based on the pleadings,
to regulate the conduct of the proceedings.
006.01A If a prehearing conference is
conducted:
006.01A1 The hearing officer shall
promptly notify the agency of the determination that a prehearing conference
will be conducted. The agency may assign another hearing officer for the
prehearing conference; and
006.01A2
The hearing officer for the prehearing conference shall set the time and place
of the conference and give reasonable written notice to all parties and to all
persons who have filed written petitions to intervene in the matter. The agency
shall give notice to other persons entitled to notice.
006.01A3 The notice referred to in subsection
006.01A 2 shall include the following:
006.01A3(a) The names and mailing addresses
of all parties and other persons to whom notice is being given by the hearing
officer;
006.01A3(b) The name,
official title, mailing address, and telephone number of any counsel or
employee who has been designated to appear for the agency;
006.01A3(c) The official file or other
reference number, the name of the proceeding, and a general description of the
subject matter;
006.01A3(d) A
statement of the time, place, and nature of the prehearing
conference;
006.01A3(e) A statement
of the legal authority and jurisdiction under which the prehearing conference
and the hearing are to be held;
006.01A3(f) The name, official title, mailing
address, and telephone number of the hearing officer for the prehearing
conference;
006.01A3(g) A statement
that a party who fails to attend or participate in a prehearing conference,
hearing, or other stage of a contested case or who fails to make a good faith
effort to comply with a prehearing order may be held in default under the
Administrative Procedure Act; and
006.01A3(h) Any other matters that the
hearing officer considers desirable to expedite the proceedings.
Source: Neb. Rev. Stat. §
84-913.01
006.01B The hearing officer shall conduct a
prehearing conference, as may be appropriate, to deal with such matter as
exploration of settlement possibilities, preparation of stipulations,
clarification of issues, rulings on identity and limitation of the number of
witnesses, objections to proffers of evidence, determination of the extent to
which direct evidence, rebuttal evidence, or cross-examination will be
presented in written form and the extent to which telephone, television, or
other electronic means will be used as a substitute for proceedings in person,
order of presentation of evidence and cross examination, rulings regarding
issuance of subpoenas, discovery orders, and protective orders, and such other
matters as will promote the orderly and prompt conduct of the hearing. The
hearing officer shall issue a prehearing order incorporating the matters
determined at the prehearing conference.
Source: Neb. Rev. Stat. §
84-913.02
006.01C The
hearing officer may conduct all or part of the prehearing conference by
telephone, television, or other electronic means if each participant in the
conference has an opportunity to participate in, to hear, and, if technically
feasible, to see the entire proceeding while it is taking place.
Source: Neb. Rev. Stat. §
84-913.03
006.02
Discovery in contested cases
006.02A. The
hearing officer or a designee, at the request of any party or upon the hearing
officer's own motion, may issue subpoenas, discovery orders, and protective
orders in accordance with the rules of civil procedure except as may otherwise
be prescribed by law. Requests for subpoena shall meet the requirements of
section 006.06. Subpoenas and orders issued under this subsection may be
enforced by the district court. Discovery in contested cases shall be conducted
as expeditiously and inexpensively as possible consistent with the need of all
parties to obtain relevant evidence. In any event, all discovery must be
completed within 15 days before the date set for hearing or such other time set
by the hearing officer.
Sources: Neb. Rev. Stat. §§
84-909,
84-914(2),
20-334(1),
20-336(3)(a)
006.02B Any
prehearing motion to compel discovery, motion to quash, motion for protective
order or other discovery-related motion shall:
006.02B1 Quote the interrogatory, request,
question, or subpoena at issue, or be accompanied by a copy of the
interrogatory, request, subpoena or excerpt of a deposition;
006.02B2 State the reasons supporting the
motion;
006.02B3 Be accompanied by
a statement setting forth the steps or efforts made by the moving party or his
or her counsel to resolve by agreement the issues raised and that agreement has
not been achieved; and
006.02B4 Be
filed with the agency. The moving party must serve copies of all such motions
to all parties to the contested case.
006.02C Other than is provided in subsection
006.02B 4 above,
discovery materials need not be filed with the agency.
006.03 Continuances
The hearing officer may, in his or her discretion, grant
extensions of time or continuances of hearings upon the hearing officer's own
motion or at the timely request of any party for good cause shown. A party must
file a written motion for continuance which states in detail the reasons why a
continuance is necessary and serve a copy of the motion on all other
parties.
006.03A Good cause. Good
cause for an extension of time or continuance may include, but is not limited
to, the following:
006.03A1 Illness of the
party, legal counsel or witness;
006.03A2 A change in legal representation;
or
006.03A3 Settlement negotiations
are under way.
006.04 Amendments
006.04A A charge under the Fair Housing Act
may be amended at any time before an answer is filed or is due if notice is
given to the respondent or his or her attorney. In all other cases, a
complainant must request permission to amend from the hearing
officer.
006.04B A hearing officer
may also allow, in his or her discretion, the filing of supplemental pleadings
alleging facts material to the case occurring after the original pleadings were
filed. A hearing officer may also permit amendment of pleadings where a mistake
appears or where amendment does not materially change a claim or
defense.
006.05 Motions
Any motion other than motions made at hearing shall be in
writing, shall state briefly the order or relief sought, and shall include the
grounds for the motion. Motions shall be filed with the Commission at its
principal office and a copy sent or delivered to the hearing officer. The
moving party shall serve a copy either personally or by certified mail upon the
other party or parties. Responses and objections to the motion, if any, shall
be made in writing, filed with the Commission, and served upon the hearing
officer and all parties of record within three (3) business days after service
of the motion, or at a time otherwise set by the hearing officer. The hearing
officer may decide all motions with or without oral argument and, when oral
argument is had, will notify the parties of the time and place for oral
argument. All oral arguments on motions shall be transcribed and shall be made
part of the official record of the proceedings, except that argument received
in camera and determined by the hearing officer as appropriate to preserve
confidentiality may be sealed and subject to opening only by the Commission,
the hearing officer, or by a court of competent jurisdiction.
006.06 Issuance of Subpoenas for Discovery
and Hearing
Upon written request filed with the Commission or hearing
officer, the Commission Chair or the hearing officer shall issue a subpoena, on
a form prescribed by the Commission, whenever necessary to compel the
attendance of a witness or to require the production for examination of any
books, payrolls, records, correspondence, documents, papers or other evidence
in any contested case proceeding before a hearing officer.
006.06A Request for Subpoena. A request for
subpoena must:
006.06A1 Be submitted
006.06A1(a) at least ten (10) calendar days
prior to the date set for the witness's appearance for deposition or production
or at on a time line prescribed by the hearing officer;
006.06A1(b) at least six (6) calendar days
prior to the date set for the witness's appearance at hearing.
006.06A2 Designate the manner of
service;
006.06A3 Be accompanied by
payment of the cost of service if service is other than by return receipt
mail;
006.06A4 Include any witness
fee and mileage required, except that a state agency may substitute a statement
in place of the fee and mileage advising the witness of the amount of fee and
mileage that he or she will be paid following his or her attendance.
006.06A5 Any subpoena shall be delivered
personally by a sheriff or served by registered or certified mail, return
receipt required:
006.06A5(a) At least three
(3) days before the date set for the witness's appearance at deposition or for
production for examination or within such other time set by the hearing
officer.
006.06A5(b) Not less than
six (6) days before the date set for the witness's appearance at hearing.
Proof of service shall be filed with the Commission.
Sources: Neb. Rev. Stat. §§
84-909,
20-334,
25-1226,
25-1228(2)
006.06B Witness Fees and Mileage. Witnesses
summoned by subpoena in Fair Housing Act cases shall be entitled to the same
witness and mileage fees as witnesses in proceedings in district court.
Sources: Neb. Rev. Stat.
§20-334(2)
006.06C Responsibility for Payment. Fees
payable to a witness summoned by a subpoena issued at the request of a party
shall be paid by that party, except:
006.06C1
When a party in a Fair Housing Act matter is unable to pay, the fees will be
paid by the Commission;
006.06C2
When a subpoena is applied for and issued at the request of the Commission, a
member thereof, or a hearing officer in pursuance of the presentation of
evidence relating to pending charge, then the cost of such service and witness
and mileage fees shall be borne by the Commission.
Sources: Neb. Rev. Stat. §§
84-909,
20-334(2)
006.06D Motion For Protective Order or to
Quash Subpoena. Within five (5) business days after the service of a subpoena,
or before the date set for a witness's appearance, a person required to attend
as a witness at any deposition or hearing, or required to produce any evidence
in her or his possession or under her or his control may file a motion for
protective order or to quash the subpoena with the Commission, with a copy
served on all parties personally or by certified mail. The motion shall meet
the requirements of
006.02B and shall
be handled as provided in the Administrative Procedure Act,
Neb. Rev.
Stat. §
84-914.
Source: Neb. Rev. Stat. §§
84-909,
84-913,
84-914(2).
See the Nebraska Discovery Rules for All Civil Cases and, on motions to quash
generally, see State ex rel. Acme Rug Cleaner, Inc. V. Hon. Mary G. Likes, 256
Neb. 34, 588 N.W.2d 783 (1999).
006.07 Settlement Prior to Recommended Order
and Decision in FHA Cases
006.07A If, after
issuance and service of a charge and notice of hearing but prior to the close
of the public hearing, the parties jointly notify the Commission in writing
that they agreed to terms of settlement, the Hearing Officer may order a
postponement of the scheduled public hearing date, or a recess of the public
hearing if it is already in process. The parties shall submit to the Commission
and the Hearing Officer a copy of the fully executed settlement agreement or,
in the event of settlement without Commission involvement, a fully executed
withdrawal form supplied by the Commission.
006.07A1 Any conciliation agreement:
006.07A1(a) must be approved by the
Commission;
006.07A1(b) may provide
for binding arbitration;
006.07A1(c) before issuance of a final order,
shall require the consent of the aggrieved person on whose behalf the charge is
issued; and
006.07A1(d) when
approved by the Commission, shall not be deemed an adjudication that the
respondent has engaged in a discriminatory practice nor shall it be subject to
an order for relief under section
20-337,
unless entered after an adjudication pursuant to an administrative proceeding
or a civil action pursuant to state or federal law in which the respondent was
found to have committed a discriminatory practice.
006.07B If the terms of settlement
agreed to by the parties are approved by the Commission, or if said terms as
modified by the Commission are agreed to by the parties, the Commission shall
thereupon enter upon the parties an Order in Accord with the executed
conciliation agreement.
006.07C
After the Commission has entered an Order of Accord, it shall dismiss the
charge, but subject to the Commission's right to refer the matter to the
Attorney General for action under 20-329 and the right of complainant to bring
an action under section
20-342(1)
in case of breach.
006.07D If settlement is made between the
parties without Commission involvement, the Commission will not enter upon the
parties an Order in Accord with said terms of and may close the case as having
been settled on terms not approved by the Commission. When a private settlement
agreement is made, an alleged breach thereafter is not subject to referral to
the Attorney General for enforcement.
