Nebraska Administrative Code
Topic - PUBLIC ADVOCACY, COMMISSION ON
Title 70 - NEBRASKA COMMISSION ON PUBLIC ADVOCACY
Chapter 16 - PROCEDURE FOR HEARINGS IN CONTESTED CASES BEFORE THE COMMISSION
Section 70-16-007 - Conducting a Contested Case Hearing

Universal Citation: 70 NE Admin Rules and Regs ch 16 ยง 007

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.
007.01C(1) Evidence will be received in the following order:
007.01C(1)(a) Evidence is presented by the petitioner;

007.01C(1)(b) Evidence is presented by the respondent;

007.01C(1)(c) Rebuttal evidence is presented by the petitioner; and

007.01C(1)(d) Surrebuttal evidence is presented by the respondent.

007.01C(2) With regard to each witness who testifies, the following examination may be conducted:
007.01C(2)(a) Direct examination conducted by the party who calls the witness;

007.01C(2)(b) Cross-examination by the opposing party;

007.01C(2)(c) Redirect examination by the party who called the witness: and

007.01C(2)(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.

007.02 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.

007.02B Any party to a formal hearing before an agency, from which a decision may be appealed to the courts of this state, may request that the agency be bound by the rules of evidence applicable in district court by delivering to the agency 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, including the cost of court reporting services which the requesting party shall procure for the hearing.

007.02C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

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.

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 and orders issued under this subsection may be enforced by the district court.

007.02F An agency shall give effect to the rules of privilege recognized by law.

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.
007.02G(1) Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

007.02G(2) Parties shall be afforded an opportunity to contest facts so noticed.

007.02G(3) The record shall contain a written record of everything officially noticed.

007.02H An agency may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

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 agency 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.

007.04B An agency shall maintain an official record of each contested case under rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;
007.04C(3) 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

007.04C(4) The final order.

007.04D As provided in 53 Neb. Admin. Code 4 § 002.03 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.

007.05 Costs

All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.

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