Section 144-1-007 - Conducting a contested case hearing007.01 Order At the discretion of the hearing officer, the hearing may be conducted in the following order:
007.01A The hearing is called to order by the hearing officer. Any preliminary motions, stipulations or agreed orders are entertained.007.01B Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.007.01C Presentation of evidence. 007.01C1 Evidence will be received in the following order: 007.01C1(a) Evidence is presented by the complainant;007.01C1(b) Evidence is presented by the respondent;007.01C1(c) Rebuttal evidence is presented by the complainant; and007.01C1(d) Surrebuttal evidence is presented by the respondent.007.01C2 With regard to each witness who testifies, the following examination may be conducted: 007.01C2(a) Direct examination conducted by the party who calls the witness;007.01C2(b) Cross-examination by the opposing party;007.01C2(c) Redirect examination by the party who called the witness; and007.01C2(d) Recross-examination by the opposing party.007.01D After the evidence is presented, each party may have opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing arguments.007.01E The hearing officer may continue a hearing from day to day or adjourn it to a later date by announcement at the hearing or by appropriate notice to all parties.007.01F To maintain decorum of the proceedings, the hearing officer may exclude from the hearing room or from further participation in the proceedings, any person, other than a party, who engages in improper conduct at the hearing.007.01G At the request of either party, the hearing officer shall sequester witnesses from the hearing room, except that the hearing officer may not exclude a party who is a natural person, an officer or employee of a party that is not a natural person who is specifically designated as its representative, or an expert or other person shown by a party to be essential to the presentation of that party's case.007.02 Evidence 007.02A In contested cases an agency or hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence. The hearing officer shall have full authority to control the process of the hearing and to admit or exclude testimony or other evidence in accordance with the Administrative Procedure Act. The hearing officer shall rule upon all motions and objections during hearing made by any party after his appointment and prior to the issuance of the recommended order and decision. Motions and objections during hearing shall be stated orally on the record and shall, with the rulings by the hearing officer, be included in the stenographic transcript of the hearing, except that evidence and argument received in camera or under conditions appropriate to the preservation of confidentiality may be sealed to be opened only by the Commission, the hearing officer, or by a court of competent jurisdiction upon appeal. Sources: Neb. Rev. Stat. §§ 84-914, 84-915.01, 20-336(1) and (2)
007.02B Rules of Evidence 007.02B1 Fair Housing Act. The rules of evidence shall apply to the presentation of evidence in hearings under the Fair Housing Act and the standard of proof shall be by a preponderance of the evidence. Source: Neb. Rev. Stat. § 20-336(2). See e.g., Osborn v. Kellogg, 4 Neb. App. 594, 547 N.W.2d 504(1996); Ventura v. State, 246 Neb. 116, 517 N.W.2d 368 (1994).
007.02C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference. Written stipulations may be introduced in evidence if signed by the attorneys of the parties sought to be bound thereby, or by a party personally if she or he is not represented by an attorney. Oral stipulations may be made on the record of any public hearing. Source: Neb. Rev. Stat. § 84-914(3)
007.02D All evidence including records and documents in the possession of the agency of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case. Source: Neb. Rev. Stat. § 84-914(3)
007.02E A hearing officer or designee may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas shall meet the requirements of section 006.06 above. Subpoenas and orders issued under this subsection may be enforced by the district court. Source: Neb. Rev. Stat. §§ 84-914(2), 20-334
007.02F An agency shall give effect to the rules of privilege recognized by law. Source: Neb. Rev. Stat. § 84-914(1)
007.02G An agency may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by such agency. 007.02G1 Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.007.02G2 Parties shall be afforded an opportunity to contest facts so noticed.007.02G3 The record shall contain a written record of everything officially noticed. Source: Neb. Rev. Stat. § 84-914(5)
007.02H An agency may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it. Source: Neb. Rev. Stat. § 84-914(5)
007.03 Conducting the hearing by electronic means The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.
007.04 Official record 007.04A The Commission shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the agency upon request and tender of the cost of preparation, or unless a recommended decision and order of the hearing officer is to be reviewed by the Commission, in which event the transcript of the public hearing shall be made at cost of the Commission and filed at the time the order and decision of the hearing officer is filed. Source: Neb. Rev. Stat. § 84-913
007.04B An agency shall maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order. Source: Neb. Rev. Stat. § 84-915.01
007.04C The agency record shall consist only of the following: 007.04C1 Notices of all proceedings;007.04C2 Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;007.04C3 The record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and007.04C4 The final order. Source: Neb. Rev. Stat. § 84-915.01
007.04D As provided in section 002.03 of these regulations, the hearing officer or agency head, or employee who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.007.04E Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the agency record shall constitute the exclusive basis for agency action in contested cases under the act and for judicial review thereof. Source: Neb. Rev. Stat. § 84-915.01
007.05 Costs All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.
007.05A Under section 20-341 of the Fair Housing Act, in any action brought under 20-336, the hearing officer may allow the prevailing party, other than the state, reasonable attorney's fees and costs. The state shall be liable for such fees and costs to the same extent as a private person. Source: Neb. Rev. Stat. § 20-341
007.06 Record Open to Public During a contested case proceeding, any request to review the record of a pending case must be made in writing to the Commission at its principal office in Lincoln. Additional time may be required to compile the record for review during the pendency of the case. Portions of the record are made and kept by the hearing officer and the file at the principal office of the Commission may be incomplete. At the conclusion of a case, the Commission shall arrange for a record of the proceedings of any public hearing to be made, transcribed, and filed in the principal offices of the Commission. Any public portions of such record will be available for examination at the principal office of the Commission at a reasonable time during its regular business hours in accordance with public records laws.
144 Neb. Admin. Code, ch. 1, § 007