Section 4-1-(6) - CONTESTED CASES(a) PROCEDUREiINITIATION AND NOTICE OF HEARING: Any person aggrieved by a decision or action of the Commission, except the issuance of an advisory opinion by the Commission, may file a written request for hearing with the Commission. Hearings initiated by the Commission or upon such written request shall be ordered upon a vote of at least five members at any regular or special meeting of the Commission. Reasonable written notice of such hearing shall be given to all parties by certified mail, return receipt requested showing to whom and where delivered and the date of delivery. The notice shall state the time and place of the hearing. In the case of a request for hearing, it shall be accompanied by a copy of the written request for hearing. In the case of a hearing initiated by the Commission, it shall state the issues to be heard. In the case of the mailing of a notice to a corporation or an entity other than an individual, the notice shall be sent to the registered office, the usual place of business, or to an officer of the corporation or entity. In the case of notice to a political committee, the notice may be sent to its candidate, chairman or treasurer. Notices thereafter, if a party is represented by an attorney of record, need be given only to the attorney of record for any party.iiPLEADINGS: The written request for hearing or the notice of hearing shall set forth the following:(a) The venue of the matter, to wit: "Before the Nebraska Accountability and Disclosure Commission";(b) A heading specifying the subject matter;(c) The name and address of the Commission or the person requesting such hearing and, if any, the names and addresses or all other parties alleged to have a legal right, duty or privilege to be determined in said hearing;(d) A statement of the grounds upon which the Commission's authority or jurisdiction depends;(e) A statement averring the legal capacity of the party instigating the proceedings;(f) The facts constituting a cause of action; and(g) a prayer or statement of the action to be taken or relief requested.In the case of a written request for hearing the same shall be signed by the party requesting the same or by his or her attorney in which case the attorney shall also state his or her name, address and telephone number. The request for hearing shall be accompanied by copies in sufficient number for service on each other person or entity alleged to be a party. The notice of hearing and a copy of the request for hearing shall be served by the Commission in the manner set forth in subparagraph i hereof on the party requesting the hearing and on each other person or entity alleged in the request for hearing to be a party. Any parties to the hearing after notice pursuant to subparagraph i may file responsive pleadings by way of an answer which may include the raising of issues customarily raised by special appearance, demurrer or other motion in district court. A party filing a responsive pleading shall serve an original upon the Commission and a copy upon each other party to the proceedings by certified mail, return receipt requested, at least three days prior to the date of the hearing, except for good cause shown.
iiiCONTINUANCES: Any party desiring a continuance shall, immediately upon receipt of the notice of hearing, or any other notice in the proceedings, or as soon thereafter as the facts necessitating such continuance come to his or her knowledge, notify the Executive Director in writing of said desire and stating in said notification the reasons for such continuance and may support a motion for continuance by affidavits. The Executive Director or Hearing Officer may grant a continuance for good cause shown and may at any time order a continuance on his or her own motion or upon resolution of the Commission. Copies of a request for a continuance and all supporting documents shall be served by the requesting party on all other parties of record .ivWITNESS FEE: Any witness who is subpoenaed and who appears is entitled to the same fee as is paid to subpoenaed witnesses in the district court.vSUBPOENAS: A subpoena requiring the attendance of a witness shall be issued by the executive director on written application of any party, or upon the executive director's own motion or upon resolution of the Commission. Subpoenas for the production of accounts, books, documents, or papers upon written application by a party must state which accounts, books, documents, or papers are required. All person directed to produce accounts, books, documents, or papers shall furnish and deliver the same at the time and place specified in the subpoena. A subpoena issued pursuant to this rule shall be served in the manner provided by law or upon any party by certified mail, return receipt requested.viHEARING OFFICER: The person conducting a hearing pursuant to paragraph xi is hereby designated a hearing officer. The hearing officer shall be the executive director, a person which the executive director is hereby authorized to designate or employ or a person appointed by the Commission.The commission may by resolution make other provisions for the conduct of such hearing, including but not limited to, providing for the matter to be heard before a hearing officer who shall be delegated the authority and authorized to administer oaths, hear the testimony, rule on motions, objections and evidence, and recommend findings of fact and conclusions of law which shall be submitted to the Commission along with a transcript of the proceedings, evidence and exhibits for its deliberation, findings of fact, conclusions of law and order.
The hearing officer may be present during the deliberations of the commission but only to advise the commission on questions of law and procedure. The hearing officer shall not participate in the deliberations on the evidence or vote unless he or she is a member of the commission.
The authority of the executive director pursuant to section 1-(6) of this rule may be exercised by the chairperson in the absence of the executive director and the vice chairperson in the absence of the chairperson.
However, once a hearing officer has been designated or employed pursuant hereto such authority shall be exercised only by the hearing officer.
viiBRIEFS: Submission of briefs may be required by the hearing officer or the Commission. If required, the time in which briefs shall be filed and the number of copies to be filed shall be fixed by the hearing officer at the close of the hearing.viii ORAL ARGUMENT: Oral argument may be permitted at the close of a hearing at the discretion of the hearing officer or the Commission.ixOFFICIAL RECORD-COST: Charges for preparing an official record for the purpose of rehearing or judicial review, including the transcribing of testimony shall be paid by the party requesting the same. The record of testimony shall be made by an official court reporter in all contested cases in which the evidentiary rules of the district court are invoked pursuant to the provisions of section 84-914(1), R.R.S., 1943. The hearing officer or the Commission may cause a transcript of the record, or any part thereof, to be made.xCONTINUANCE OF DELIBERATIONS: The Commission after commencing deliberations on the evidence after the close of such hearing may by a vote of at least five members continue such deliberations to a fixed time and place and from time to time.xiCONDUCT OF HEARING: The hearing will be conducted by the hearing officer, who, among other matters, will open the proceedings, enter into the record the notice of hearing and evidence of service thereof, and take appearances. He or she shall rule on matters relating to the pleadings and upon motions and objections relating to procedure and evidence, and shall close the proceedings. Any ruling of a hearing officer which would amount to a dismissal of the case must have the concurrence of at least five members of the Commission. The hearing officer as well as members of the Commission may interrogate witnesses. Except for good cause shown, in any proceeding initiated by the Commission the evidence shall be presented first by the staff, then by other parties, and then rebuttal, if any, by the staff. Except for good cause shown, in any proceeding initiated by any party other than the Commission, evidence shall be presented first by the initiating party, then by other parties and staff in that order, and then rebuttal, if any, by the initiating party. Every party shall have the right to cross-examine all witnesses who testify.xiiREHEARING: Within 10 days from the issuance of notice of a decision and order, any decision and order adverse to a party to the proceedings rendered by the Commission in a contested case may be the subject of a motion for rehearing before the Commission. If upon a vote of at least five members, the Commission orders a rehearing, notice by certified mail, return receipt requested, shall be given to all parties. A motion for rehearing and a ruling thereon is not required prior to an appeal of the decision and order of the Commission or other judicial review thereof. Said motion for rehearing shall set forth the grounds for the same but the party requesting the same and the other parties to the proceedings shall not be heard thereon unless otherwise ordered by resolution of the Commission. The party filing a motion for rehearing shall send copies thereof to the other parties to the proceedings, who may file objections thereto. Neither the filing of, nor the granting of, a motion for rehearing shall toll the period within which a party must perfect his or her appeal to the District Court pursuant to the provisions of § 84-917 through § 84-919 of the Administrative Procedures Act.xiiiINFORMAL DISPOSITION: Informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.xivAPPEAL: Judicial review of any decision by the Commission in a contested case or declaratory ruling shall be governed by the provisions of sections 49-14,131, R.R.S., 1943, and 84-917 to 84-919, R.S.Supp., 1990.(b) EVIDENCE:iGENERAL: Evidence which is admissible in civil actions under the revised statutes of Nebraska is admissible in a hearing in a contested case before the Commission. While the Commission is not bound to follow the rules of evidence, except as provided in Section 84-914(1), the hearing officer may admit and the Commission may give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. Effect shall be given to the rules of privilege recognized by law. Incompetent, irrelevant, immaterial, and unduly repetitious evidence may be excluded.iiEXHIBITS: All exhibits received into evidence shall remain a part of the record of the contested case. In the event that any exhibits are to be withdrawn, duplicate copies must be available to be substituted at the time of the hearing, unless otherwise ordered by the hearing officer. Parties shall furnish accurate copies of all documentary evidence offered at the hearing to all members of the Commission and to all parties to the proceeding.iiiFILING AND SERVING OF EXHIBITS PRIOR TO HEARING: In any proceeding where detailed or complicated exhibits are to be use, the hearing officer may require any party to file and serve copies of such exhibits or other necessary information within a specified time in advance of the hearing in order to enable the other parties and the Commission to study the same and prepare cross-examination with reference thereto.ivJUDICIAL OR OFFICIAL NOTICE: The Commission may take notice of judicially or officially cognizable fact in any proceeding and in addition may take notice of general, technical, or scientific facts within its specialized knowledge. Parties to a proceeding shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the facts so noticed and shall be afforded an opportunity to contest such facts.vEVALUATION OF EVIDENCE: The Commission may utilize its experience, technical competence, and specialized knowledge in the evaluation of evidence presented to it. In all matters subject to sanctions pursuant to section 49-14,126, there shall be no finding of violation except upon a preponderance of the evidence. However, there shall be no finding of violation pursuant to section 49-1491 of the Nebraska Political Accountability and Disclosure Act except upon clear and convincing evidence.viDISCOVERY:A. Depositions: The use of depositions in proceedings before the Commission is governed by the revised statutes of Nebraska and rules of the Nebraska Supreme Court except a deposition will be taken only upon the order of the executive director. This order may issue on the executive directors's own initiative or for good cause shown by any party to a proceeding. Applications requesting that a deposition be taken shall be filed with the Commission with due regard to the time provisions of subparagraph i hereof and shall clearly set forth the name and address of the witness, the time and place, the official before whom it is to be taken, and the reason for taking such deposition. The order of the executive director that a deposition be taken shall specify the witness whose deposition is to be taken, shall state the time, the place, and the official before whom taken, and shall be served upon all parties of record as provided by law or by certified mail, return receipt requested.B. Written Interrogatories: Parties served with the order for the taking of a deposition may promptly submit written interrogatories to the person before whom said deposition is to be taken who shall propound such questions to the witness and record his or her answers verbatim. Such interrogatories need not be served upon the party at whose instance the deposition is taken. No other interrogatories shall be used.C. Filing: The officer taking the deposition shall promptly seal the deposition along with all exhibits in an envelope endorsed with the title of the proceeding, and send the same by certified mail, return receipt requested, to the Commission. The deposition shall be filed with the Commission, except for good cause shown, at least five calendar days prior to the date of the hearing at which it is to be offered as evidence. The party taking the deposition shall cause prompt notice of its filing to be given to all parties to the proceeding.4 Neb. Admin. Code, ch. 1, § (6)