Nebraska Administrative Code
Topic - PUBLIC EMPLOYEES RETIREMENT SYSTEMS
Title 303 - PUBLIC EMPLOYEES RETIREMENT BOARD
Chapter 12 - APPEAL OF BOARD ACTIONS AND DECISIONS
Section 303-12-005 - SETTING THE MATTER FOR HEARING

Universal Citation: 303 NE Admin Rules and Regs ch 12 ยง 005

Current through March 20, 2024

005.01 Not later than 30 days after the Director has received the petition, the Director shall appoint a Hearing Officer to conduct a prehearing conference and a hearing and to submit to the Board a recommended decision. If the Director determines that the matter is one of significance and that it is a matter on which Board guidance is needed, the Director may alternatively appoint a Board member as hearing officer and the hearing shall be conducted before the Board.

005.02 The Hearing Officer shall not be:

005.02(a) . A person who has served as investigator, prosecutor, or advocate in the contested case or its prehearing stage, nor may the hearing officer be advised or assisted by such a person;

005.02(b) . A person who is subject to the authority, direction, or discretion of a person described in subsection 005.02A.

005.02(c) . If all parties consent, a person as described in subsections 5005.02A or 005.02B may assist the hearing officer in the preparation of orders in the contested case.

005.02(d) . A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as hearing officer or assist or advise a hearing officer in the same proceeding.

005.02(e) . A person may serve as hearing officer at successive stages of the same contested case.

005.03 Prehearing Procedures

005.03(a) . Answer
005.03(a)(i) . The Agency shall file an answer to the issues of fact and law raised in the petition within 45 days after the receipt of the petition.

005.03(a)(ii) . The Agency shall serve the answer on all parties and the Hearing Officer personally or by first-class or certified mail.

005.03(b) . Prehearing conferences and orders. A hearing officer designated to conduct a hearing may determine, pursuant to these rules, whether a prehearing conference will be conducted. After such a prehearing or if a prehearing conference is not held, the hearing officer shall issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.

005.03(c) . If a prehearing conference is conducted:
005.03(c)(i) . 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;

005.03(c)(ii) . 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.

005.03(c)(iii) . The notice referred to in subsection 005.03C(ii) shall include the following:
005.03(c)(iii)(A) . The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;

005.03(c)(iii)(B) . The name, official title, mailing address, and telephone number of every counsel or employee who has been designated to appear for the agency;

005.03(c)(iii)(C) . The official file or retirement number, the name of the proceeding, and a general description of the subject matter;

005.03(c)(iii)(D) . A statement of the time, place, and nature of the prehearing conference;

005.03(c)(iii)(E) . A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

005.03(c)(iii)(F) . The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;

005.03(c)(iii)(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 Procedures Act; and

005.03(c)(iii)(H) . Any other matters that the hearing officer considers desirable.

005.03d. The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matters 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, televisions, or other electronic means will be used as a substitute for proceedings in person, or 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 prompts conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.

005.03e. 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 proceedings while it is taking place.

005.04 Discovery in Contested Cases

005.04(a) . 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. Subpoenas and orders issued under this subsection may be enforced by the district court.

005.04(b) . Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall:
005.0(b)(i) . 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.

005.04(b)(ii) . State the reasons supporting the motion;

005.04(b)(iii) . 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 a statement that agreement has not been achieved; and

005.04(b)(iv) . Be filed with the agency. The moving party shall serve copies of all such motions to all parties to the contested case.

005.04(c) . Other than as it is provided in subsection 005.04B, discovery materials may be provided to the agency at the discretion of the hearing officer.

005.05 Continuances

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 shall file a written motion for continuance that states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties.

005.05(a) . Good cause: Good cause for an extension of time or continuance may include, but is not limited to the following:
005.05(a)(i) . Illness of the Party, legal counsel or witness;

005.05(a)(ii) . A change in legal representation; or

005.05(a)(iii) . Continuing good-faith settlement negotiations.

005.06 Informal Disposition

Informal Disposition: Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default by any party.

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