Current through March 20, 2024
007.01 Order
At the discretion of the hearing officer, the hearing may be
conducted in the following order:
007.01A The hearing is called to order by the
hearing officer. Any preliminary motions, stipulations or agreed orders are
entertained.
007.01B Each party may
be permitted to make an opening statement. Opening statements take place in the
same order as the presentation of evidence.
007.01C Presentation of evidence.
007.01C1 Evidence will be received in the
following order:
007.01C1(a) Evidence is
presented by the complainant;
007.01C1(b) Evidence is presented by the
respondent;
007.01C1(c) Rebuttal
evidence is presented by the complainant; and
007.01C1(d) Surrebuttal evidence is presented
by the respondent.
007.01C2 With regard to each witness who
testifies, the following examination may be conducted:
007.01C2(a) Direct examination conducted by
the party who calls the witness;
007.01C2(b) Cross-examination by the opposing
party;
007.01C2(c) Redirect
examination by the party who called the witness; and
007.01C2(d) Recross-examination by the
opposing party.
007.01D After the evidence is presented, each
party may 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.
007.01E The hearing
officer may continue a hearing from day to day or adjourn it to a later date by
announcement at the hearing or by appropriate notice to all parties.
007.01F To maintain decorum of the
proceedings, the hearing officer may exclude from the hearing room or from
further participation in the proceedings, any person, other than a party, who
engages in improper conduct at the hearing.
007.01G At the request of either party, the
hearing officer shall sequester witnesses from the hearing room, except that
the hearing officer may not exclude a party who is a natural
person, an officer or employee of a party that is not a natural person who is
specifically designated as its representative, or an expert or other person
shown by a party to be essential to the presentation of that party's
case.
007.02 Evidence
007.02A In contested cases an agency 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
repetitious evidence. The hearing officer shall have full authority to control
the process of the hearing and to admit or exclude testimony or other evidence
in accordance with the Administrative Procedure Act. The hearing officer shall
rule upon all motions and objections during hearing made by any party after his
appointment and prior to the issuance of the recommended order and decision.
Motions and objections during hearing shall be stated orally on the record and
shall, with the rulings by the hearing officer, be included in the stenographic
transcript of the hearing, except that evidence and argument received in camera
or under conditions appropriate to the preservation of confidentiality may be
sealed to be opened only by the Commission, the hearing officer, or by a court
of competent jurisdiction upon appeal.
Sources: Neb. Rev. Stat. §§
84-914,
84-915.01,
20-336(1)
and (2)
007.02B Rules of Evidence
007.02B1 Fair Housing Act. The rules of
evidence shall apply to the presentation of evidence in hearings under the Fair
Housing Act and the standard of proof shall be by a preponderance of the
evidence.
Source: Neb. Rev. Stat. §
20-336(2).
See e.g., Osborn v. Kellogg, 4 Neb. App. 594, 547 N.W.2d 504(1996); Ventura v.
State, 246 Neb. 116, 517 N.W.2d 368 (1994).
007.02C Documentary evidence may
be received in the form of copies or excerpts or incorporated by reference.
Written stipulations may be introduced in evidence if signed by the attorneys
of the parties sought to be bound thereby, or by a party personally if she or
he is not represented by an attorney. Oral stipulations may be made on the
record of any public hearing.
Source: Neb. Rev. Stat. §
84-914(3)
007.02D All
evidence including records and documents in the possession of the agency 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.
Source: Neb. Rev. Stat. §
84-914(3)
007.02E A hearing
officer or designee may administer oaths and issue subpoenas in accordance with
the rules of civil procedure except as may otherwise be prescribed by law.
Subpoenas shall meet the requirements of section 006.06 above. Subpoenas and
orders issued under this subsection may be enforced by the district court.
Source: Neb. Rev. Stat. §§
84-914(2),
20-334
007.02F An agency
shall give effect to the rules of privilege recognized by law.
Source: Neb. Rev. Stat. §
84-914(1)
007.02G An agency
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 such agency.
007.02G1 Parties shall be notified either
before or during the hearing or by reference in preliminary reports or
otherwise of materials so noticed.
007.02G2 Parties shall be afforded an
opportunity to contest facts so noticed.
007.02G3 The record shall contain a written
record of everything officially noticed.
Source: Neb. Rev. Stat. §
84-914(5)
007.02H An agency may utilize its experience,
technical competence and specialized knowledge in the evaluation of the
evidence presented to it.
Source: Neb. Rev. Stat. §
84-914(5)
007.03
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.
007.04 Official
record
007.04A The Commission 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 agency upon request and
tender of the cost of preparation, or unless a recommended decision and order
of the hearing officer is to be reviewed by the Commission, in which event the
transcript of the public hearing shall be made at cost of the Commission and
filed at the time the order and decision of the hearing officer is filed.
Source: Neb. Rev. Stat. §
84-913
007.04B An agency
shall 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.
Source: Neb. Rev. Stat. §
84-915.01
007.04C The
agency record shall consist only of the following:
007.04C1 Notices of all
proceedings;
007.04C2 Any
pleadings, motions, requests, preliminary or intermediate rulings and orders,
and similar correspondence to or from the agency pertaining to the contested
case;
007.04C3 The record of the
hearing before the agency, including all exhibits and evidence introduced
during such hearing, a statement of matters officially noticed by the agency
during the proceeding, and all proffers of proof and objections and rulings
thereon; and
007.04C4 The final
order.
Source: Neb. Rev. Stat. §
84-915.01
007.04D As provided in section 002.03 of
these regulations, the hearing officer or agency head, or 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 shall
make the appropriate filings which shall be included in the official record of
the contested case.
007.04E Except
to the extent that the Administrative Procedure Act or another statute provides
otherwise, the agency record shall constitute the exclusive basis for agency
action in contested cases under the act and for judicial review thereof.
Source: Neb. Rev. Stat. §
84-915.01
007.05
Costs
All costs of a formal hearing shall be paid by the party or
parties against whom a final decision is rendered.
007.05A Under section
20-341
of the Fair Housing Act, in any action brought under 20-336, the hearing
officer may allow the prevailing party, other than the state, reasonable
attorney's fees and costs. The state shall be liable for such fees and costs to
the same extent as a private person.
Source: Neb. Rev. Stat. §
20-341
007.06
Record Open to Public
During a contested case proceeding, any request to review
the record of a pending case must be made in writing to the Commission at its
principal office in Lincoln. Additional time may be required to compile the
record for review during the pendency of the case. Portions of the record are
made and kept by the hearing officer and the file at the principal office of
the Commission may be incomplete. At the conclusion of a case, the Commission
shall arrange for a record of the proceedings of any public hearing to be made,
transcribed, and filed in the principal offices of the Commission. Any public
portions of such record will be available for examination at the principal
office of the Commission at a reasonable time during its regular business hours
in accordance with public records laws.
