Section 04.11.01.423 - PROCEDURES AFTER ISSUANCE OF A COMPLAINT AND BEFORE THE AGENCY HEAD'S CONSIDERATION OF THE COMPLAINTThis rule sets forth procedures to be followed by the agency head, agency attorneys, agency staff and hearing officers after a complaint is issued, while investigation or discovery is underway, while a hearing is conducted, and before the recommended order or preliminary order of the hearing officer is submitted to the agency head (if a hearing officer hears the complaint and issues a recommended or preliminary order). (3-31-22)
01.The Agency Head. (3-31-22) a. Prohibited Contacts--allowable Managerial Reporting. Unless authorized or required by statute, the agency head shall not discuss the substance of the complaint ex parte with any representative of any party or with agency attorneys or agency staff involved in the prosecution or investigation of the complaint. The agency head may request periodic progress reporting on staff preparation from an executive director or other staff member in charge. For example, the agency head may ask whether the agency staff will be prepared to present its case by a given date. As required to perform statutory supervisory duties, the agency head may approve or disapprove expenditures associated with the prosecution, authorize retention of experts or outside counsel for the prosecution, address policy issues that may affect the prosecution, and otherwise discharge the agency head's statutory management and supervisory duties. (3-31-22)b. Allowed Contacts. The agency head may discuss the substance of the complaint with agency attorneys and agency staff who are not involved in the prosecution or investigation of the complaint. When one or more members of the agency head sits with a hearing officer to hear the contested case, any member of the agency head not participating in the prosecution and not supervising prosecutorial/investigative personnel may discuss the substance of the complaint with the hearing officer. (3-31-22)02.The Agency Attorney. (3-31-22)a. Prosecutorial/Investigative Attorneys. Except as authorized by Subsection 423.01.a. of this rule, no agency attorney involved in the investigation or prosecution of a complaint shall discuss the substance of the complaint ex parte with the agency head, a hearing officer assigned to hear the complaint, or with any agency attorney assigned to advise or assist the agency head or to advise or assist a hearing officer assigned to hear the complaint; provided, that when a hearing officer has made a bench ruling and has on the record directed the agency attorney to prepare findings of fact and other reasoning supporting the decision in conformance with the bench ruling, or when a hearing officer has by written document served on all parties ordered the agency attorney to prepare findings of fact and other reasoning supporting the decision in conformance with the written document, the agency attorney may contact the hearing officer in connection with the preparation of the written document to be submitted to the hearing officer. (3-31-22)b. Advisory Attorneys. Except as authorized by Subsection 423.01.a. of this rule, no agency attorney assigned to advise or assist the agency head or hearing officer shall discuss the substance of the complaint ex parte with any representative of any party or with agency attorneys or agency staff involved in the prosecution or investigation of the complaint. An agency attorney assigned to advise or assist the agency head or hearing officer may discuss the substance of the complaint with the hearing officer or agency head. (3-31-22)03.The Agency Staff. (3-31-22) a. Prosecutorial/Investigative Staff. Except as authorized by Subsection 423.01.a. of this rule, no member of the agency staff involved in the investigation or prosecution of the complaint shall discuss the substance of the complaint ex parte with the agency head, a hearing officer assigned to hear the complaint, or with any agency attorney assigned to advise or assist the agency head or to advise or assist a hearing officer assigned to hear the complaint, except as provided in Subsection 423.04.b. of this rule and in Subsections 425.01 and 425.03. (3-31-22)b. Advisory Staff. Except as authorized by Subsection 423.01.a. of this rule, no agency staff assigned to advise or assist the agency head or hearing officer shall discuss the substance of the complaint ex parte with any representative of any party or with agency attorneys or agency staff involved in the prosecution or investigation of the complaint. Agency staff assigned to advise or assist the agency head or hearing officer may discuss the substance of the complaint with the hearing officer or agency head. (3-31-22)04.Hearing Officers. Hearing officers may discuss the substance of the complaint with attorneys of the agency assigned to advise or assist the hearing officer and with other hearing officers. Hearing officers may discuss the substance of the complaint with the agency head as authorized by Subsection 423.01.b of this rule. No hearing officer shall discuss the substance of the complaint ex parte with any representative of any party or with agency attorneys or agency staff involved in the prosecution or investigation of the complaint; except: (3-31-22)a. Bench Rulings, etc. When a hearing officer has made a bench ruling and has on the record directed the attorney for a party or the agency attorney to prepare findings of fact and other reasoning supporting the decision in conformance with the bench ruling, or when a hearing officer has by written document served on all parties directed the attorney for a party or the agency attorney to prepare findings of fact and other reasoning supporting the decision in conformance with the written document, the hearing officer may contact the attorney for the party or the agency attorney in connection with the preparation of the written document to be submitted to the hearing officer. (3-31-22)b. Technical Calculations. If the consideration of the complaint requires technical calculations, etc., that can most efficiently be performed by a person who participated in the investigation or hearing, the hearing officer may direct that person to perform the calculations, etc., for the hearing officer's use in the recommended order or preliminary order. (3-31-22)Idaho Admin. Code r. 04.11.01.423