303 Neb. Admin. Code, ch. 12, § 006

Current through September 17, 2024

Section 303-12-006 - CONDUCTING HEARING IN A CONTESTED CASE

006.01 Determination of hearing formality

Determination of hearing formality: The hearing officer shall consult the parties and thereafter determine whether disposition shall be by a formal hearing, or whether informal disposition of the matter is appropriate. If the hearing officer determines that a formal disposition is required the parties request it, or one or more of the parties request it, this section shall govern the hearing.

006.02 Order

Order: If required pursuant to 006.01, the hearing shall be conducted in the following order:

006.02(a) . The hearing is called to order by the hearing officer. Any preliminary motions, stipulations, or agreed orders are entertained.

006.02(b) . Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

006.02(c) . Presentation of evidence.

006.02(c)(i) . Evidence will be received in the following order:

006.02(c)(i)(A) Evidence is presented by the petitioner;

006.02(c)(i)(B) Evidence is presented by the Agency or respondent;

006.02(c)(i)(C) Rebuttal evidence is presented by the petitioner; and

006.02(c)(i)(D) Surrebuttal evidence is presented by the Agency or respondent.

006.02(c)(ii) . With regard to each witness who testifies, the following examination may be conducted;

006.02(c)(ii)(A) Direct examination by the party who calls the witness;

006.02(c)(ii)(B) Cross-examination by the opposing party;

006.02(c)(ii)(C) Redirect examination by the party who called the witness; and

006.02(c)(ii)(D) Recross-examination by the opposing party.

006.02d. 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.

006.03 Evidence

006.03(a) . In contested cases, the hearing officer may admit and give 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.

006.03(b) . Any party to a hearing conducted pursuant to this section, from which a decision may be appealed to the courts of this state, may request that the agency and hearing be bound by the rules of evidence applicable in district court by delivering to the agency at least three days prior to the holding of the hearing a written request therefore. If the request is made, the hearing officer shall grant it as a matter of right, and the hearing officer shall conduct the hearing under the rules of evidence applicable in district court. 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.

006.03(c) . Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

006.03(d) . 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.

006.03(e) . 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.

006.03(f) . The agency shall give effect to the rules of privilege recognized by law.

006.03(g) . 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.

006.03(g)(i) . Parties shall be notified either before or during the hearing or by references in preliminary reports, or otherwise, of the materials so noticed by the agency.

006.03(g)(ii) . Parties shall be afforded an opportunity to contest facts so noticed.

006.03(g)(iii) . The record shall contain a written record of everything officially noticed.

006.03(h) . An agency may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

006.04 Conducting the hearing by electronic means

The hearing officer may conduct all or a 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.

006.05 Official Record

006.05(a) . 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, reference to the Board, or appeal pursuant to the Administrative Appeals Act. If these events occur, the transcript and record shall be furnished by the agency upon request and tender of the cost of preparation.

006.05(b) . 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.

006.05(c) . The agency record shall consist only of the following:

006.05(c)(i) . Notices of all proceedings;

006.05(c)(ii) . Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;

006.05(c)(iii) . 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; and

006.05(c)(iv) . The final order, as adopted by the Board.

006.05(d) . As provided in 53 NAC 4 Section 002.03, the hearing officer or the director or employee who is or reasonably may 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 for in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.

006.05(e) . 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.

006.06 Costs

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

303 Neb. Admin. Code, ch. 12, § 006