163 Neb. Admin. Code, ch. 1, § 009

Current through September 17, 2024

Section 163-1-009 - Rules of practice and procedure for hearings in contested cases

009.01 These rules and regulations governing practice and procedure for hearings in contested cases before the Game and Parks Commission are adopted under authority of the Administrative Procedure Act, sections 84-901 through 84-920, R.R.S. 1999. These rules and regulations are effective following enactment by the Game and Parks Commission, approval by Attorney General and Governor and when five days have elapsed since filing with the Secretary of State.

009.01A Definitions The following definitions shall apply as used throughout these rules and regulations.

009.01A1 Agency shall mean the Game and Parks Commission, its Director and the staff.

009.01A2 Commission shall mean the eight Commissioners as defined in section 37-101, R.R.S., 2004.

009.01A3 Commission Director shall mean the Secretary as defined in section 37-106, R.R.S., 2004.

009.01A4 Contested case shall mean a proceeding before the Commission in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after a Commission hearing.

009.01A5 Ex parte communication shall mean an oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. Ex parte communication shall not include:

009.01A5a Communications which do not pertain to the merits of a contested case;

009.01A5b Communications required for the disposition of ex parte matters as authorized by law;

009.01A5c Communications in a rate-making or rulemaking proceeding; and

009.01A5d Communications to which all parties have given consent.

009.01B Hearing officer shall mean the person or persons conducting a hearing, contested case, or other proceeding pursuant to the Administrative Procedure Act, whether designated as the presiding officer, administrative law judge, or some other title designation. When appropriate, hearing officer shall include the Commissioners, the Director if authority to conduct a hearing is delegated to him or her, or other hearing officer selected by the Commission.

009.01C Party means the person by or against whom a contested case is brought or a person allowed to intervene in a contested case.

009.01D Petition means the initial document filed by or with the Commission that sets forth a claim and request for Commission action.

009.02 Prohibitions Against Ex parte Communications

009.02A Prohibitions; when applicable. The prohibitions found in this Section shall apply beginning at the time notice for hearing is given.

009.02B Prohibitions; to whom applicable.

009.02B1 Parties and public. No party in a contested case or other person outside the Agency having an interest in the contested case shall make or knowingly cause to be made an ex parte communication to the hearing officer or to the Commissioners, the Director or Agency employee who is or may reasonably be expected to be involved in the decision making process of the contested case.

009.02B2 Persons in decision making roles. No hearing officer or Commissioners or Agency employee who is or may reasonably be expected to be involved in the decision making process of the contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the Agency having an interest in the contested case.

009.02B3 Investigators. The Director or Agency employee engaged in the investigation or enforcement of a contested case shall not make or knowingly cause to be made an ex parte communication to a hearing officer or Commissioner or Agency employee who is or may reasonably be expected to be involved in the decision making process of the contested case.

009.02C Disclosure of contacts. The hearing officer or Commissioners or Agency 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 set forth in subsections 009.02B1 through 009.02B3 shall file in the record of the contested case:

009.02C1 All such written communications;

009.02C2 Memoranda stating the substance of all such oral communications; and

009.02C3 All written responses and memoranda stating the substance of all oral responses to all the ex parte communications.

009.02C4 The filing shall be made within two working days of the receipt or making of the ex parte communication. Notice of the filing, with an opportunity to respond, shall be given to all parties of record.

009.02C5 Filing and notice of filing provided under subsection 009.02C4 shall not be considered on the record and reasonable notice for purposes of the definition of ex parte communication.

009.03 Intervention in a contested case

009.03A Intervention in a contested case shall be allowed when the following requirements are met:

009.03A1 A petition for intervention must be submitted in writing to the hearing officer or designee at least five days before the hearing. Copies must be mailed by the petitioner for intervention to all parties named in the hearing officer's notice of the hearing;

009.03A2 The petition must state facts demonstrating that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and

009.03A3 The hearing officer or designee must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.

009.03B The hearing officer or designee may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.

009.03C If a petitioner qualifies for intervention, the hearing officer or designee may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Those conditions may include:

009.03C1 Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;

009.03C2 Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and

009.03C3 Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings.

009.03D The hearing officer or designee, at least 24 hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order.

009.03D1 The hearing officer or designee may modify the order at any time, stating the reasons for the modification.

009.03D2 The hearing officer or designee shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.

009.04 Commencement of a contested case

009.04A The contested case begins with the filing of a petition and request for hearing, if applicable, with the Commission. The petition is the initial document filed by or with the Commission that sets forth a claim and request for Agency action.

009.04B The parties to a contested case shall be the petitioner or person by whom a contested case is brought and the respondent or person against whom a contested case is brought.

009.04C A party may appear on their own behalf in a contested case proceeding or may be represented by an attorney or other representative as permitted by law.

009.04D The pleadings in a contested case may include a petition, answer, reply, notice, motion, stipulation, objection or order or other formal written document filed in a proceeding before the Commission. Any pleading filed in a contested case shall meet the following requirements:

009.04D1 The pleading shall contain a heading specifying the Commission and the title or nature of the pleading, shall state material factual allegations and state concisely the action the Commission is being requested to take, shall contain the name and address of the petitioner, and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of that attorney.

009.04D1a Attorneys shall also include their address, telephone number and bar number.

009.04D1b The initial petition shall also contain the name and address of the respondent.

009.04D2 All pleadings shall be made on white, letter-sized (8 1/2 x 11) paper and shall be legibly typewritten, photostatically reproduced, printed or handwritten. If handwritten, a pleading must be written in ink.

009.04E All pleadings shall be filed with the Commission at P.O Box 30370, 2200 North 33rd St., Lincoln, NE 68503-0370. Filing may be accomplished by personal delivery or mail to the Director and will be received during regular office hours of 8:00 a.m. to 5:00 p.m., Monday through Friday.

009.04F The Agency shall serve a copy of the petition on each respondent listed in the petition personally or by first-class or certified mail. Written proof of such service shall be filed with the Commission. Each respondent who chooses to file a responsive pleading must do so within 20 days from the date of personal service or the date of Agency mailing of the petition.

009.04G All pleadings subsequent to the initial petition shall be served by the party filing such pleading upon all attorneys of record or other representatives of record and upon all unrepresented parties. Service shall be made personally or by first-class or certified mail. Written proof of such service shall be filed with the Commission.

009.04H Unless state law provides that a hearing is not required, a hearing date shall be set by the Commission in accordance with statutory requirements. A written notice of the time and place of hearing and the name of the hearing officer, if known, shall be served by the Agency upon all attorneys of record or other representatives of record and upon all unrepresented parties. The notice must include a proof of such service and will be filed with the Commission.

009.04I In computing time prescribed or allowed by these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or state holiday, the period shall include the next working day.

009.05 Hearing officer; criteria

009.05A The Commission may delegate to its Director or a hearing officer other than the Commissioners, the functions of conducting a prehearing conference and/or a hearing and submitting a recommended decision to the Commission.

009.05B A person who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or assist or advise a hearing officer in the same proceeding except as provided in subsection 009.05D.

009.05C A person who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or advise a hearing officer in the same proceeding except as provided in subsection 009.05D.

009.05D If all parties consent, a person who has served as, or who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may assist a hearing officer in the preparation of orders.

009.05E A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as hearing officer or assist or advise a hearing officer in the same proceeding.

009.05F A person may serve as hearing officer at successive stages of the same contested case.

009.06 Prehearing Procedures

009.06A Prehearing conferences and orders. A hearing officer designated to conduct a hearing may determine, subject to the Commission'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.

009.06A1 If a prehearing conference is conducted:

009.06A1a The hearing officer shall promptly notify the Commission of the determination that a prehearing conference will be conducted. The Commission may assign another hearing officer for the prehearing conference; and

009.06A1b 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.

009.06A1c The notice referred to in subsection 009.06A 1b shall include the following:

009.06A1c(1) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;

009.06A1c(2) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the Agency;

009.06A1c(3) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;

009.06A1c(4) A statement of the time, place, and nature of the prehearing conference;

009.06A1c(5) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

009.06A1c(6) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;

009.06A1c(7) 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; and

009.06A1c(8) Any other matters that the hearing officer considers desirable to expedite the proceedings.

009.06A2 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.

009.06A3 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.

009.06B Discovery in contested cases.

009.06B1 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. Subpoenas and orders issued under this subsection may be enforced by the district court.

009.06B2 Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall:

009.06B2a 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;

009.06B2b State the reasons supporting the motion;

009.06B2c Be accompanied by a statement setting forth the steps or efforts made by the moving party or their counsel to resolve by agreement the issues raised and that agreement has not been achieved; and

009.06B2d Be filed with the Commission. The moving party must serve copies of all such motions to all parties to the contested case.

009.06B3 Other than is provided in subsection 009.06B2d above, materials need not be filed with the Commission.

009.06C Continuances. The hearing officer may, in their 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.

009.06C1 Good cause. Good cause for an extension of time or continuance may include, but is not limited to, the following:

009.06C1a Illness of the party, legal counsel or witness;

009.06C1b A change in legal representation; or

009.06C1c Settlement negotiations are underway.

009.06D Amendments.

009.06D1 A petition may be amended at any time before an answer is filed or is due if notice is given to the respondent or their attorney. In all other cases, a petitioner must request permission to amend from the hearing officer.

009.06D2 A hearing officer may also allow, at their 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.

009.06E Informal Disposition. Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

009.07 Conducting a contested case hearing

009.07A Order. At the discretion of the hearing officer, the hearing may be conducted in the following order:

009.07A1 The hearing is called to order by the hearing officer. Any preliminary motions, stipulations or agreed orders are entertained.

009.07A2 Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

009.07A3 Presentation of evidence.

009.07A3a Evidence will be received in the following order:

009.07A3a(1) Evidence is presented by the petitioner;

009.07A3a(2) Evidence is presented by the respondent;

009.07A3a(3) Rebuttal evidence is presented by the petitioner; and

009.07A3a(4) Surrebuttal evidence is presented by the respondent.

009.07A3b With regard to each witness who testifies, the following examination may be conducted:

009.07A3b(1) Direct examination conducted by the party who calls the witness;

009.07A3b(2) Cross-examination by the opposing party;

009.07A3b(3) Redirect examination by the party who called the witness; and

009.07A3b(4) Recross-examination by the opposing party.

009.07A4 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.

009.07B Evidence.

009.07B1 In contested cases the Commissioners or other 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.

009.07B2 Any party to a formal hearing before the Commission, from which a decision may be appealed to the courts of this state, may request that the Commission be bound by the rules of evidence applicable in district court by delivering to the Commission at least three days prior to the holding of the hearing a written request therefore. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing.

009.07B3 Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

009.07B4 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.

009.07B5 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 and orders issued under this subsection may be enforced by the district court.

009.07B6 The Commission or other hearing officer shall give effect to the rules of privilege recognized by law.

009.07B7 The Commission or other hearing officer 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 the Commission.

009.07B7a Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

009.07B7b Parties shall be afforded an opportunity to contest facts so noticed.

009.07B7c The record shall contain a written record of everything officially noticed.

009.07B8 The Commission or other hearing officer may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

009.07C 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.

009.07D Official Record.

009.07D1 The Agency 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.

009.07D2 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.

009.07D3 The official record shall consist only of the following:

009.07D3a Notices of all proceedings;

009.07D3b Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Commission pertaining to the contested case;

009.07D3c The record of the hearing before the Commission or other hearing officer, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the Commission or other hearing officer during the proceeding, and all proffers of proof and objections and rulings thereon; and

009.07D3d The final order.

009.07D4 As provided in 163 NAC 1 Section 009.02C the Commission, its Director or any other hearing officer or Agency employee, 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.

009.07D5 Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Commission record shall constitute the exclusive basis for Commission action in contested cases under the act and for judicial review thereof.

009.07E Costs. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.

009.08 Decision and order in a contested case

009.08A If a hearing officer other than the Commission, conducts the hearing, the hearing officer will submit recommended findings of fact and conclusions of law to the Commission, and the final decision and order. The Commission shall also receive a tape-recording or written transcript of the hearing as well as copies of all exhibits.

009.08B Every decision and order adverse to a party to the proceeding, rendered by the Commission in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law.

009.08C The decision and order should include:

009.08C1 The name of the Commission and name of the proceeding;

009.08C2 The time and place of the hearing;

009.08C3 The names of all parties or their attorneys who entered an appearance at the hearing;

009.08C4 The findings of fact consisting of a concise statement of the conclusions upon each contested issue of fact;

009.08C5 The conclusions of law consisting of the applications of the controlling law to the facts found and the legal results arising therefrom; and

009.08C6 The order consisting of the action taken by the Commission as a result of the facts found and the legal conclusions arising therefrom.

009.08D Parties to the proceeding shall be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed upon request to each party or their attorney of record.

009.09 Appeals

009.09A Any person aggrieved by a final decision in a contested case is entitled to judicial review under the Administrative Procedure Act or to resort to such other means of review as may be provided by law.

009.09B Parties desiring to appeal the Commission decision must file a petition for review in the district court of the county where the Commission action is taken within thirty days after the service of the final decision by the Commission. The thirty day period for appeal commences to run from the date of mailing of the notice of order and decision to the parties or their attorneys of record. Service of the petition and summons must be made in accordance with Nebraska law.

009.09C Unless otherwise provided by statute, the procedures of section 84-917, R.R.S. 1999 govern the procedure for taking an appeal.

163 Neb. Admin. Code, ch. 1, § 009