Section 144-1-006 - Prehearing Procedures006.01 Prehearing conferences and orders A hearing officer designated to conduct a hearing may determine, subject to the agency's rules and regulations, whether a prehearing conference will be conducted. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.
006.01A If a prehearing conference is conducted:006.01A1 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; and006.01A2 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.006.01A3 The notice referred to in subsection 006.01A 2 shall include the following: 006.01A3(a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;006.01A3(b) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the agency;006.01A3(c) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;006.01A3(d) A statement of the time, place, and nature of the prehearing conference;006.01A3(e) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;006.01A3(f) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;006.01A3(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 Procedure Act; and006.01A3(h) Any other matters that the hearing officer considers desirable to expedite the proceedings. Source: Neb. Rev. Stat. § 84-913.01
006.01B The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matter 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, television, or other electronic means will be used as a substitute for proceedings in person, order 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 prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference. Source: Neb. Rev. Stat. § 84-913.02
006.01C 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 proceeding while it is taking place. Source: Neb. Rev. Stat. § 84-913.03
006.02 Discovery in contested cases006.02A. 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. Requests for subpoena shall meet the requirements of section 006.06. Subpoenas and orders issued under this subsection may be enforced by the district court. Discovery in contested cases shall be conducted as expeditiously and inexpensively as possible consistent with the need of all parties to obtain relevant evidence. In any event, all discovery must be completed within 15 days before the date set for hearing or such other time set by the hearing officer. Sources: Neb. Rev. Stat. §§ 84-909, 84-914(2), 20-334(1), 20-336(3)(a)
006.02B Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall: 006.02B1 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;006.02B2 State the reasons supporting the motion;006.02B3 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 that agreement has not been achieved; and006.02B4 Be filed with the agency. The moving party must serve copies of all such motions to all parties to the contested case.006.02C Other than is provided in subsection 006.02B 4 above, discovery materials need not be filed with the agency.006.03 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 must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties.
006.03A Good cause. Good cause for an extension of time or continuance may include, but is not limited to, the following:006.03A1 Illness of the party, legal counsel or witness;006.03A2 A change in legal representation; or006.03A3 Settlement negotiations are under way.006.04 Amendments 006.04A A charge under the Fair Housing Act may be amended at any time before an answer is filed or is due if notice is given to the respondent or his or her attorney. In all other cases, a complainant must request permission to amend from the hearing officer.006.04B A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense.006.05 Motions Any motion other than motions made at hearing shall be in writing, shall state briefly the order or relief sought, and shall include the grounds for the motion. Motions shall be filed with the Commission at its principal office and a copy sent or delivered to the hearing officer. The moving party shall serve a copy either personally or by certified mail upon the other party or parties. Responses and objections to the motion, if any, shall be made in writing, filed with the Commission, and served upon the hearing officer and all parties of record within three (3) business days after service of the motion, or at a time otherwise set by the hearing officer. The hearing officer may decide all motions with or without oral argument and, when oral argument is had, will notify the parties of the time and place for oral argument. All oral arguments on motions shall be transcribed and shall be made part of the official record of the proceedings, except that argument received in camera and determined by the hearing officer as appropriate to preserve confidentiality may be sealed and subject to opening only by the Commission, the hearing officer, or by a court of competent jurisdiction.
006.06 Issuance of Subpoenas for Discovery and Hearing Upon written request filed with the Commission or hearing officer, the Commission Chair or the hearing officer shall issue a subpoena, on a form prescribed by the Commission, whenever necessary to compel the attendance of a witness or to require the production for examination of any books, payrolls, records, correspondence, documents, papers or other evidence in any contested case proceeding before a hearing officer.
006.06A Request for Subpoena. A request for subpoena must: 006.06A1 Be submitted 006.06A1(a) at least ten (10) calendar days prior to the date set for the witness's appearance for deposition or production or at on a time line prescribed by the hearing officer;006.06A1(b) at least six (6) calendar days prior to the date set for the witness's appearance at hearing.006.06A2 Designate the manner of service;006.06A3 Be accompanied by payment of the cost of service if service is other than by return receipt mail;006.06A4 Include any witness fee and mileage required, except that a state agency may substitute a statement in place of the fee and mileage advising the witness of the amount of fee and mileage that he or she will be paid following his or her attendance.006.06A5 Any subpoena shall be delivered personally by a sheriff or served by registered or certified mail, return receipt required: 006.06A5(a) At least three (3) days before the date set for the witness's appearance at deposition or for production for examination or within such other time set by the hearing officer.006.06A5(b) Not less than six (6) days before the date set for the witness's appearance at hearing. Proof of service shall be filed with the Commission. Sources: Neb. Rev. Stat. §§84-909, 20-334, 25-1226, 25-1228(2)
006.06B Witness Fees and Mileage. Witnesses summoned by subpoena in Fair Housing Act cases shall be entitled to the same witness and mileage fees as witnesses in proceedings in district court. Sources: Neb. Rev. Stat. §20-334(2)
006.06C Responsibility for Payment. Fees payable to a witness summoned by a subpoena issued at the request of a party shall be paid by that party, except: 006.06C1 When a party in a Fair Housing Act matter is unable to pay, the fees will be paid by the Commission;006.06C2 When a subpoena is applied for and issued at the request of the Commission, a member thereof, or a hearing officer in pursuance of the presentation of evidence relating to pending charge, then the cost of such service and witness and mileage fees shall be borne by the Commission. Sources: Neb. Rev. Stat. §§ 84-909, 20-334(2)
006.06D Motion For Protective Order or to Quash Subpoena. Within five (5) business days after the service of a subpoena, or before the date set for a witness's appearance, a person required to attend as a witness at any deposition or hearing, or required to produce any evidence in her or his possession or under her or his control may file a motion for protective order or to quash the subpoena with the Commission, with a copy served on all parties personally or by certified mail. The motion shall meet the requirements of 006.02B and shall be handled as provided in the Administrative Procedure Act, Neb. Rev. Stat. §84-914. Source: Neb. Rev. Stat. §§ 84-909, 84-913, 84-914(2). See the Nebraska Discovery Rules for All Civil Cases and, on motions to quash generally, see State ex rel. Acme Rug Cleaner, Inc. V. Hon. Mary G. Likes, 256 Neb. 34, 588 N.W.2d 783 (1999).
006.07 Settlement Prior to Recommended Order and Decision in FHA Cases006.07A If, after issuance and service of a charge and notice of hearing but prior to the close of the public hearing, the parties jointly notify the Commission in writing that they agreed to terms of settlement, the Hearing Officer may order a postponement of the scheduled public hearing date, or a recess of the public hearing if it is already in process. The parties shall submit to the Commission and the Hearing Officer a copy of the fully executed settlement agreement or, in the event of settlement without Commission involvement, a fully executed withdrawal form supplied by the Commission. 006.07A1 Any conciliation agreement: 006.07A1(a) must be approved by the Commission;006.07A1(b) may provide for binding arbitration;006.07A1(c) before issuance of a final order, shall require the consent of the aggrieved person on whose behalf the charge is issued; and006.07A1(d) when approved by the Commission, shall not be deemed an adjudication that the respondent has engaged in a discriminatory practice nor shall it be subject to an order for relief under section 20-337, unless entered after an adjudication pursuant to an administrative proceeding or a civil action pursuant to state or federal law in which the respondent was found to have committed a discriminatory practice.006.07B If the terms of settlement agreed to by the parties are approved by the Commission, or if said terms as modified by the Commission are agreed to by the parties, the Commission shall thereupon enter upon the parties an Order in Accord with the executed conciliation agreement.006.07C After the Commission has entered an Order of Accord, it shall dismiss the charge, but subject to the Commission's right to refer the matter to the Attorney General for action under 20-329 and the right of complainant to bring an action under section 20-342(1) in case of breach.006.07D If settlement is made between the parties without Commission involvement, the Commission will not enter upon the parties an Order in Accord with said terms of and may close the case as having been settled on terms not approved by the Commission. When a private settlement agreement is made, an alleged breach thereafter is not subject to referral to the Attorney General for enforcement.144 Neb. Admin. Code, ch. 1, § 006