Section 04.11.01.425 - AGENCY HEAD'S CONSIDERATION OF RECOMMENDED OR PRELIMINARY ORDERThis rule sets forth procedures to be followed by the agency head, agency attorneys, agency staff, and hearing officers after the hearing officer's recommended order or preliminary order has been placed before the agency head for review. (3-31-22)
01.The Agency Head. In considering the hearing officer's recommended order or preliminary order, the agency head may consult with an agency attorney assigned to advise or assist the agency head and with agency staff who did not participate in the investigation or prosecution of the complaint. As allowed in Subsection 423.01.b. when one (1) or more members of the agency head and the hearing officer hear the complaint, the agency head may consult with the hearing officer who heard the complaint and prepared the recommended order or preliminary order or with other hearing officers. 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; except: (3-31-22) a. Bench Rulings, etc. When the agency head 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 the agency head 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 agency head 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 agency head. (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 agency head may direct that person to perform the calculations, etc., for the agency head's use in the final order. (3-31-22)02.The Agency Attorney. (3-31-22)a. Prosecutorial/Investigative Attorneys. No agency attorney involved in the investigation or prosecution of a complaint shall consult with the agency head considering the hearing officer's recommended order or preliminary order, except as provided in Subsections 423.01 and 423.02.a. An agency attorney who was involved in the investigation or prosecution of the complaint may attend public meetings of the agency head that consider complaints and may respond to questions from the agency head so long as the meetings have been noticed to all parties and all parties have the same opportunity to respond to questions from the agency head as the agency's prosecutorial/investigative attorneys. (3-31-22)b. Advisory Attorneys. An agency attorney assigned to advise or assist the agency head in consideration of the complaint may consult with the agency head in preparation for or while the agency head is considering the hearing officer's recommended order or preliminary order or draft final order when one or more members of the agency head heard the case with the hearing officer. (3-31-22)03.The Agency Staff. (3-31-22) a. Prosecutorial/Investigative Staff. No member of the agency staff involved in the investigation or prosecution of the complaint shall consult with the agency head in its consideration of the recommended order or preliminary order, but a member of the agency staff who participated in the investigation or prosecution of the complaint may provide technical computations, etc., at the direction of the agency head as provided in Subsection 425.01 of this rule. (3-31-22)b. Advisory Staff. Any member of the agency staff assigned to advise or assist the agency head may consult with the agency head at the agency head's direction. (3-31-22)04.Hearing Officers. No hearing officer shall consult with any person other than the agency head or attorneys assigned to advise or assist the agency head during the agency head's consideration of the hearing officer's recommended order or preliminary order. A hearing officer may consult with a member of the agency head or the entire agency head or attorneys assigned to advise or assist the agency head only as allowed by Subsections 423.01.b. and 423.04 and Subsection 425.01.a. of this rule when one (1) or more members of the agency head and the hearing officer heard the complaint. (3-31-22)Idaho Admin. Code r. 04.11.01.425