291 Neb. Admin. Code, ch. 1, § 003

Current through June 17, 2024

Section 291-1-003 - RULES OF PRACTICE AND PROCEDURE FOR HEARINGS IN CONTESTED CASES:

003.01Contested Case: A matter filed with the Commission is deemed to be a contested case if:

003.01A a person files a petition or application with the Commission and a person files a formal intervention or protest within thirty (30) days of the date notice is published;

003.01B a person files a formal complaint with the Commission;

003.01C a departmental complaint is filed with the Commission; or

003.01D a matter is declared to be a contested case upon the Commission's own motion.

003.02Parties: The parties to a contested case must be the petitioner, applicant, complainant, or other person by whom a contested case is brought and the respondent or person against whom a contested case is brought and includes any formal intervenors or protestants.

003.03Hearing: Unless state law provides that a hearing is not required, a hearing date must 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, must be served by the Commission 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.

003.04Formal Intervention: Any person who has an interest in any proceeding pending before the Commission but who does not desire to file a formal protest, may file a Petition of Formal Intervention. Such person shall be designated as a "formal intervenor", and shall become a party to the proceeding.

003.04AContent: A Petition of Formal Intervention shall set forth the name and address of the intervenor, a statement of the interest of the intervenor in the proceeding, the grounds upon which the intervention is made and shall specify the facts and circumstances relied upon for such intervention.

003.04B:When Filed; Service: A Petition of Formal Intervention shall be filed with the Commission within the timeframe specified in 02.12C1 for the filing of a formal protest. A copy of the Petition of Formal Intervention shall be served upon all parties of record to the proceedings or upon their attorneys of record.

003.04C:Participation in the Proceedings: A formal intervenor shall be entitled to participate in the proceeding to the extent of his/her express interest in the matter. Such participation may include, presentation of evidence and argument, cross-examination of witnesses and submission of rebuttal evidence. As a party, a formal intervenor shall have the right of appeal.

003.05Informal Intervention in a Contested Case: Any person may file a Petition of Informal Intervention. Such Petition of Informal Intervention shall set forth the information required in 003.04A above. Any person who files a Petition of Informal Intervention shall be designated as an "Informal Intervenor".

003.05AWhen Filed: A Petition of Informal Intervention shall be filed not later than fifteen days prior to the date the hearing in the proceeding commences and shall be accompanied by the statement referred to in 003.05C and any exhibits to be offered by the Informal Intervenor's witness at the hearing. A copy of the Petition of Informal Intervention and all accompanying pre-filed material shall be served on all parties to the proceeding, or upon their attorneys of record.

003.05BApproval by the Commission: Leave to intervene informally shall be granted only if the petitioner addresses issues reasonably pertinent to the issues already presented and does not unduly broaden the scope of the proceeding. If leave is granted by the Commission, the petition becomes an informal intervenor but does not become a party to the proceeding.

003.05CParticipation in the Proceedings: Participation by an informal intervenor shall be limited to the presentation of a pre-filed statement of a single witness together with exhibits by such witness, and participation in oral argument submission or briefs. An informal intervenor shall not be permitted to engage in discovery or cross-examine or otherwise interrogate the witnesses in the proceeding called by any party. An informal intervenor providing a statement at a hearing may be subject to cross-examination by the other parties to the proceeding.

003.06Prehearing Procedures:

003.06A 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.

003.06A1 If a prehearing conference is conducted the following will apply:

003.06A1a The Hearing Officer will 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

003.06A1b The Hearing Officer for the prehearing conference will 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 Commission shall give notice to other persons entitled to notice.

003.06A1c The notice referred to in subsection 004.05A1b will include the following:

003.06A1c(i) The names and mailing addresses of all parties and other persons to whom notice is being given by the Hearing Officer;

003.06A1c(ii) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the Commission;

003.06A1c(iii) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;

003.06A1c(iv) A statement of the time, place, and nature of the prehearing conference;

003.06A1c(v) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

003.06A1c(vi) The name, official title, mailing address, and telephone number of the Hearing Officer for the prehearing conference;

003.06A1c(vii) 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

003.06A1c(viii) Any other matters that the Hearing Officer considers desirable to expedite the proceedings.

003.06A2 The Hearing Officer will 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 will issue a prehearing order incorporating the matters determined at the prehearing conference.

003.06A3 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.

003.06B The Hearing Officer or staff designated by the Hearing Officer may conduct informal planning conferences during the pendency of an action to discuss scheduling, discovery, and other procedural issues.

003.07Continuances: 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.

003.07A Good cause for an extension of time or continuance may include, but is not limited to, the following:

003.07A1 Illness of the party, legal counsel or witness;

003.07A2 A change in legal representation; or

003.07A3 Settlement negotiations are underway.

003.08Conducting a Contested Case Hearing:

003.08A At the discretion of the Hearing Officer, the hearing may be conducted in the following order:

003.08A1 The hearing is called to order by the Hearing Officer. Any preliminary motions, stipulations or agreed orders are entertained.

003.08A2 Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

003.08B Evidence will be received in the following order. Presentation of evidence by Commission staff may be offered during the hearing at the discretion of the Hearing Officer:

003.08B1 Evidence is presented by the applicant, petitioner, or complainant;

003.08B2 Evidence is presented by the intervenor, protestant, or respondent;

003.08B3 Rebuttal evidence is presented by the applicant, petitioner, or complainant; and

003.08B4 Surrebuttal evidence is presented by the intervenor, protestant, or respondent, if permitted by the Hearing Officer. If surrebuttal evidence is permitted, the applicant, petitioner, or complainant will have an opportunity to respond.

003.08C With regard to each witness who testifies, the following examination may be conducted:

003.08C1 Direct examination conducted by the party who calls the witness;

003.08C2 Cross examination by the opposing party;

003.08C3 Redirect examination by the party who called the witness; and

003.08C4 Recross examination by the opposing party, if permitted by the Hearing Officer. If recross is permitted, the party sponsoring the witness will have an opportunity to respond.

003.08D After the evidence is presented, each party may request the opportunity to make a closing argument. Closing arguments will be made in the same order as the presentation of evidence. The Hearing Officer may limit the time allowed for each party's closing argument, however, each party will be allowed equal time. The Hearing Officer may request that the parties file briefs.

003.09Evidence:

003.09A In contested cases the Commission 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.

003.09B 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 (3) days prior to the holding of the hearing, a written request therefore. Such request will 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 will procure for the hearing.

003.09C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

003.09D All evidence including records and documents in the possession of the Commission of which it desires to avail itself will be offered and made a part of the record in the case. No factual information or evidence other than the record will be considered in the determination of the case.

003.09E 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.

003.09F The Commission will give effect to the rules of privilege recognized by law.

003.09G The Commission 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.

003.09G1 Parties will be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

003.09G2 Parties will be afforded an opportunity to contest facts so noticed.

003.09G3 The record will contain a written record of everything officially noticed.

003.09H The Commission may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

003.09I The Hearing Officer may conduct all or part of the hearing by television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, if technically feasible, to see the entire proceeding while it is taking place, and oaths can be properly administered to witnesses.

003.09J Testimony of a witness may be adduced by use of a prepared statement, if the witness is present for cross examination.

003.09K The Hearing Officer may authorize any party to furnish and serve designated late filed exhibits within a specified time after the close of the hearing.

003.10Official Record:

003.10A The Commission will prepare an official record, which will include testimony and exhibits, in each contested case, but it will 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 will be furnished by the Commission upon request and tender of the cost of preparation.

003.10B The Commission will maintain an official record of each contested case under the Administrative Procedure Act for at least four (4) years following the date of the final order.

003.10C The Commission record will consist only of the following:

003.10C1 notices of all proceedings;

003.10C2 any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Commission pertaining to the contested case;

003.10C3 the record of the hearing before the Commission, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the Commission during the proceeding, and all proffers of proof and objections and rulings thereon;

003.10C4 any notices of any ex parte communications and responses thereto filed pursuant to section 004.01C; and

003.10C5 the final order.

003.10D The Commission record will constitute the exclusive basis for Commission action in contested cases under the act.

003.11Costs: All costs of a formal hearing will be paid by the party or parties as may be ordered by the Commission.

291 Neb. Admin. Code, ch. 1, § 003

Adopted effective 4/21/2019