CHAPTER 26
CONTESTED CASE PROCEEDINGS
[Prior to 9/24/86, Employment Security[370] Ch 6]
[Former 345—6.5(96) and 6.8(96) transferred to 345—9.2(17A,96) and 9.1(17A,96) respectively, IAC 6/10/92]
[Prior to 3/12/97, Job Service Division [345] Ch 6]
871—26.1(17A,96) Applicability. The rules in this chapter govern the procedures for contested case proceedings brought pursuant to Iowa Code chapter 96.
871—26.2(17A,96) Definitions. Terms defined in the Iowa employment security law and the Iowa administrative procedure Act and which are used in these rules shall have the same meaning as provided by such laws. In addition, the following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
“Contested case” means a proceeding defined in Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case in 1998 Iowa Acts, chapter 1202, section 14. It specifically includes any appeal from a determination of a representative of the department or any appeal or request for a hearing by an employer or employing unit from an experience rating, charge determination or other decision affecting its liability. Except as provided in subrule 26.17(5), a final decision of the employment appeal board of the department of inspections and appeals shall constitute final agency action. A presiding officer’s decision shall be the final decision of the department if there is no appeal therefrom to the employment appeal board of the department of inspections and appeals.
“Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.
“Presiding officer” means an administrative law judge employed by the department of workforce development.
871—26.3(17A,96) Time requirements.
	26.3(1) Time shall be computed as provided in Iowa Code section 4.1(34).
	26.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute.
[ARC 3009C, IAB 3/29/17, effective 5/3/17]
871—26.4(17A,96) Commencement of unemployment benefits contested case.
	26.4(1) An unemployment benefits contested case is commenced with the filing, by mail, facsimile, or email, online, or in person, of a written appeal by a party with the appeals bureau of the department. The appeal shall be addressed or delivered to: Appeals Bureau, Iowa Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319. An online appeal is filed by completing and submitting an online appeal form available on the Iowa workforce development website.
	26.4(2) An appeal from an initial decision concerning the allowance or denial of benefits shall be filed, by mail, facsimile, or email, online, or in person, not later than ten calendar days, as determined by the postmark or the date stamp, after the decision was mailed to the party at its last-known address and shall state the following:
	a. 	The name, address and social security number of the claimant;
	b. 	A reference to the decision from which appeal is taken; and
	c. 	The grounds upon which the appeal is based.
	26.4(3) Notwithstanding the provisions of subrule 26.4(2), a contributory employer, which has not previously received a notice of the filing of a valid claim for benefits, may appeal an individual’s eligibility to receive benefits within 30 days from the mailing date of the quarterly statement of benefit charges.
	26.4(4) Also notwithstanding the provisions of subrule 26.4(2), a reimbursable employer, which has not previously received a notice of the filing of a valid claim for benefits, may appeal an individual’s eligibility to receive benefits within 15 days from the mailing date of the quarterly billing of benefit charges.
	26.4(5) Appeals transmitted by facsimile, by email, or online which are received by the appeals bureau after 11:59 p.m.  Central time shall be deemed filed as of the next regular business day.
[ARC 1276C, IAB 1/8/14, effective 2/12/14; ARC 3343C, IAB 9/27/17, effective 11/1/17]
871—26.5(17A,96) Commencement of employer liability contested case.
	26.5(1) An employer liability contested case is commenced with the filing of a written appeal with the tax bureau of the department by mail, facsimile, or email, online, or in person. The appeal shall be addressed or delivered to: Tax Bureau, Iowa Workforce Development, 1000 East Grand Avenue, Des Moines, Iowa 50319.
	26.5(2) An appeal from a decision of the tax bureau of the department concerning employer status and liability, assessments, contribution (tax) rate, successorship, workers’ status, and all questions regarding coverage of a worker or group of workers shall be filed, by mail, facsimile, or email, online, or in person, not later than 30 calendar days, as determined by the postmark or the date stamp, after the decision was mailed to the party at the party’s last-known address and shall set forth the following:
	a. 	The name, address, and Iowa employer account number of the employer;
	b. 	The name and title of the person filing the appeal;
	c. 	A reference to the decision from which the appeal is taken; and
	d. 	The grounds upon which the appeal is based.
	26.5(3) Appeals transmitted by facsimile, by email, or online which are received by the tax bureau after 11:59 p.m.	Central time shall be deemed filed as of the next regular business day.
[ARC 1276C, IAB 1/8/14, effective 2/12/14; ARC 3343C, IAB 9/27/17, effective 11/1/17]
871—26.6(17A,96) Notice of hearing.
	26.6(1) A notice of hearing shall be sent by first-class mail or via email to all parties at their last-known address at least ten calendar days in advance of the hearing date and shall include:
	a. 	The date, time and place of an in-person hearing, or the date and time of a telephone hearing, including instructions for contacting the appeals bureau in advance of the hearing to provide the names and telephone numbers of all participants and witnesses; and
	b. 	The nature of the hearing, including the legal authority and jurisdiction under which the hearing is held; and
	c. 	A statement of the issues and the applicable sections of the Iowa Code or Iowa Administrative Code; and
	d. 	A description of the administrative law judge who will serve as presiding officer.
	26.6(2) The ten-day notice of hearing may be waived upon the agreement of the parties.
	26.6(3) An in-person hearing shall be scheduled in the following workforce development centers: Burlington, Carroll, Cedar Rapids, Creston, Council Bluffs, Davenport, Decorah, Des Moines, Dubuque, Fort Dodge, Mason City, Ottumwa, Sioux City, Spencer, Storm Lake, and Waterloo.
	26.6(4) A hearing shall be scheduled promptly and shall be conducted by telephone unless a party requests that it be held in person. A request for an in-person hearing may be denied if factors such as the distance between the parties, the number of parties or the health of any party make it impractical or impossible to conduct a fair hearing in person. An in-person hearing may be scheduled at the discretion of the presiding officer to whom the contested case is assigned or by the manager or chief administrative law judge of the appeals bureau. The party requesting an in-person hearing will ordinarily be required to travel the greater distance if all parties are not located near the same hearing site. As a matter of discretion, the appeals bureau may schedule an in-person hearing at a regular hearing site approximately equidistant from the parties. In the discretion of the presiding officer to whom the contested case is assigned, or the manager or chief administrative law judge of the appeals bureau, witnesses or representatives may be allowed to participate via telephone in an in-person hearing.
	26.6(5) Whenever it appears that other parties should be joined to dispose of all issues in a contested case, the presiding officer shall so order and shall grant such continuance and hold such additional proceedings, upon notice to all parties, as may be necessary.
	26.6(6) Any number of appeals involving similar issues of law or fact may be consolidated for hearing so long as no substantial rights of any party would be prejudiced by so doing.
	26.6(7) Any party may appear in any proceeding. Any partnership, corporation, or association may be represented by any of its members, officers, or a duly authorized representative. Any party may appear by, or be represented by, an attorney-at-law or a duly authorized representative of an interested party.
	26.6(8) Where a party not attending the hearing will be represented by another person, such person shall submit written proof of such representation, signed by the party such person purports to represent, at least three days before the hearing to the presiding officer.
[ARC 1276C, IAB 1/8/14, effective 2/12/14; ARC 3009C, IAB 3/29/17, effective 5/3/17; ARC 3343C, IAB 9/27/17, effective 11/1/17]
871—26.7(17A,96) Recusal.
	26.7(1) A presiding officer shall withdraw from participation in the hearing or the making of any decision in a contested case if:
	a. 	The presiding officer has a personal bias or prejudice concerning a party or a representative of a party;
	b. 	The presiding officer has personally investigated, prosecuted or advocated, in connection with that case, the specific controversy underlying the case, or another pending factually related case or pending factually related controversy that may culminate in a contested case involving the same parties;
	c. 	The presiding officer is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying the contested case, or a pending factually related contested case or controversy involving the same parties;
	d. 	The presiding officer has acted as counsel to any person who is a private party to that proceeding within the past two years;
	e. 	The presiding officer has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;
	f. 	The presiding officer has a spouse or relative within the third degree of relationship that: is a party to the case, or an officer, director or trustee of a party; is a lawyer in the case; is known to have an interest that could be substantially affected by the outcome of the case; or is likely to be a material witness in the case; or
	g. 	The presiding officer has any other legally sufficient cause to withdraw from participation in the hearing and decision making in that case.
	26.7(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case. Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17 as amended by 1998 Iowa Acts, chapter 1202, section 19, and subrule 26.10(7).
	26.7(3) If the presiding officer knows of information which might reasonably be deemed a basis for recusal but decides recusal is unnecessary, the presiding officer shall submit the relevant information for the record along with a statement of the reasons for declining recusal.
	26.7(4) If a party asserts disqualification of the presiding officer for any appropriate ground, the party shall file an affidavit pursuant to Iowa Code section 17A.17 as amended by 1998 Iowa Acts, chapter 1202, section 19, as soon as the reason alleged in the affidavit becomes known to the party. If, during the course of a hearing, a party first becomes aware of evidence of bias or other ground for recusal, the party may move for recusal but must establish the grounds by the introduction of evidence into the record. If the presiding officer determines that recusal is appropriate, the presiding officer shall withdraw. If the presiding officer decides that recusal is not required, the presiding officer shall enter an order to that effect. This order may be the basis of the aggrieved party’s appeal from the decision in the case.
871—26.8(17A,96) Withdrawals, dismissals, and postponements.
	26.8(1) An appeal may be withdrawn at any time prior to the issuance of a decision upon the request of the appellant and with the approval of an administrative law judge or the manager or chief administrative law judge of the appeals bureau. Requests for withdrawal may be made in writing or orally, provided the oral request is tape-recorded by the presiding officer.
An appeal may be dismissed upon the request of a party or in the agency’s discretion when the issue or issues on appeal have been resolved in the appellant’s favor.
	26.8(2) A hearing may be postponed by the presiding officer for good cause, either upon the presiding officer’s own motion or upon the request of any party in interest. A party’s request for postponement may be in writing or oral, provided the oral request is tape-recorded by the presiding officer, and is made not less than three days prior to the scheduled hearing. A party shall not be granted more than one postponement except in the case of extreme emergency.
	26.8(3) If, for good cause, a party, having received due notice, is unable to attend a hearing or request postponement within the prescribed time, the presiding officer may, if no decision has been issued, reopen the record and, with notice to all parties, schedule another hearing.
“Good cause” for purposes of this rule is defined as an emergency circumstance that is beyond the control of the party and that prevents the party from being able to participate in the hearing. Examples of good cause include, but are not limited to, death, sudden illness, or accident involving the party or the party’s immediate family (spouse, partner, children, parents, sibling) or other circumstances evidencing an emergency situation which was beyond the party’s control and was not reasonably foreseeable. Examples of circumstances that do not constitute good cause include, but are not limited to, a lost or misplaced notice of hearing, confusion as to the date and time for the hearing, failure to follow the directions on the notice of hearing, oversleeping, or other acts demonstrating a lack of due care by the party.
	26.8(4) A request to reopen a record or vacate a decision must be made in writing. If necessary, the presiding officer may hear, ex parte, additional information regarding the request for reopening. The granting or denial of such a request may be used as a grounds for appeal to the employment appeal board of the department of inspections and appeals upon the issuance of the presiding officer’s final decision in the case.
	26.8(5) If good cause for postponement or reopening has not been shown, the presiding officer may make a decision based upon whatever evidence is properly in the record or—in appropriate cases—may enter default as set forth in rule 871—26.14(17A,96).
[ARC 3009C, IAB 3/29/17, effective 5/3/17; ARC 5727C, IAB 6/30/21, effective 8/4/21]
871—26.9(17A,96) Discovery.
	26.9(1) Discovery procedures applicable to civil actions are available to all parties in interest in contested cases.
	26.9(2) Unless otherwise limited by a protective order, discovery is not limited. Upon application by any adversely affected party or upon the presiding officer’s own motion, the presiding officer may limit discovery in the following situations:
	a. 	The discovery sought is unduly repetitious, or the information sought can be obtained by another method that is more convenient, less burdensome or less expensive; or
	b. 	The party seeking discovery has had prior ample opportunity to obtain the information; or
	c. 	The discovery is unduly burdensome or expensive when viewed in the context of the factual issues to be resolved, the limited resources of the parties, and the parties’ interest in prompt resolution of the contested case.
	26.9(3) A party may obtain discovery regarding any matter, not privileged, relevant to the subject matter involved in the contested case, including the existence, description, nature, custody, condition and location of any tangible items and the identity and location of persons having knowledge of discoverable matters. Information may be discovered, even if inadmissible itself, if it appears reasonably calculated to lead to the discovery of admissible evidence. The names of a party’s witnesses, their expected testimony, and exhibits to be offered into evidence may be obtained by discovery.
	26.9(4) A party who responded to a request for discovery with a response which was complete and accurate when made need not supplement the response to include information obtained later. However, a party must promptly supplement its response to requests for the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called to testify at the hearing, and the party must produce copies of exhibits expected to be offered into evidence at the hearing as such decisions are made. A party must also promptly amend any response if it obtains information showing that its prior response was incorrect when made or, though correct when made, is no longer correct.
	26.9(5) No motion relating to discovery, including motions for imposition of sanctions, will be considered unless the moving party states that it made a good-faith but unsuccessful effort to resolve the issues raised in the motion with the opposing party without intervention by the presiding officer.
	26.9(6) Upon motion by a party or the person from whom discovery is sought or by any person who may be adversely affected thereby, and for good cause shown, the presiding officer before whom the contested case is pending may make any order which justice requires to protect a party or person from oppression or undue burden or expense. Such order may deny the request for discovery or limit terms, conditions, manner and scope thereof.
	26.9(7) A party may, in accordance with subrule 26.9(5), ask the presiding officer for an order compelling discovery if the other party fails within a reasonable time to make a complete, good-faith response. After notice to both parties and hearing on the motion, the presiding officer shall enter an order which denies or compels discovery. This order may be combined with a protective order pursuant to subrule 26.9(6).
	26.9(8) Upon written request by any party or upon the presiding officer’s own motion, the presiding officer may impose sanctions for the failure to respond to discovery requests; however, sanctions shall not be imposed without prior specific notice from the presiding officer of the contemplated sanction, opportunity to be heard and, if necessary, further opportunity to cure its failure. The sanctions may include the following:
	a. 	Postponing and rescheduling the hearing if requested by the party demonstrably prejudiced by the failure;
	b. 	Excluding testimony of witnesses not identified in response to a specific request for such information;
	c. 	Excluding from the record those exhibits not identified in response to a specific request for such information;
	d. 	Excluding the party from participating in the contested case proceedings;
	e. 	Dismissing the party’s appeal.
	26.9(9) Requests for discovery shall be served on the opposing party by ordinary mail, fax or email. Responses must be served on the party requesting the discovery within ten days after the discovery request is sent unless the presiding offer grants an extension of time to comply. Requests for discovery must be made at least ten days before a scheduled contested case hearing. A party’s inattention to preparation is not good cause to postpone the hearing.
[ARC 1276C, IAB 1/8/14, effective 2/12/14; ARC 3266C, IAB 8/16/17, effective 9/20/17]
871—26.10(17A,96) Ex parte communications.
	26.10(1) An ex parte communication is an oral or written communication relating directly to the facts or legal questions at issue in a contested case proceeding which is made by a party to the presiding officer to whom the case has been assigned without the knowledge or outside the presence of the other parties and with the object of affecting the outcome of the case.
	26.10(2) Ex parte communication does not include:
	a. 	Statements given by the parties to representatives of the department for use in making the initial determination;
	b. 	Statements contained in a party’s appeal from the initial determination;
	c. 	Statements relating only to procedural or scheduling matters, such as requests for discovery, subpoenas, postponements or withdrawals of appeals;
	d. 	Requests for clarification of a legal issue involved in a contested case, but only to the extent of requesting information on the applicable law sections and not as to matters of fact.
	26.10(3) Unless required for the disposition of ex parte matters specifically authorized by statute, no party or its representative shall communicate directly or indirectly with the presiding officer to whom a contested case is assigned, nor shall the presiding officer communicate directly or indirectly with a party or its representative concerning any issue of fact or law in a contested case unless:
	a. 	Each party or its representative is given written notification of the communication. Such notification shall contain a summary of the communication, if oral, or a copy of the communication, if written, as well as the time, place and means of the communication.
	b. 	After notification, all parties have the right, upon written demand, to respond to the ex parte communication, including the right to be present and heard if an oral communication has not been completed. If the communication is written, or if oral and completed, all other parties have the right, upon written demand, to a special hearing to respond to the ex parte communication.
	c. 	Whether or not any party requests the opportunity to respond to an ex parte communication made in violation of Iowa Code section 17A.17(2) as amended by 1998 Iowa Acts, chapter 1202, section 19, the presiding officer shall include such communication in the official record of the contested case.
	26.10(4) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending.
	26.10(5) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible.
	26.10(6) A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial as to require the presiding officer’s recusal. If the presiding officer determines that recusal is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order or disclosed. If the presiding officer determines that recusal is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.
	26.10(7) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment unless the factual material has already been or shortly will be disclosed. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or shortly will be provided to the parties.
	26.10(8) The presiding officer may impose appropriate sanctions for violations of this rule, including dismissal of an appellant’s contested case, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the agency. Violation of ex parte communication prohibitions by agency personnel shall be reported to the manager or chief administrative law judge of the appeals bureau for possible sanctions.
[ARC 3009C, IAB 3/29/17, effective 5/3/17]
871—26.11(17A,96) Motions.
	26.11(1) No technical form for motions is required. Nevertheless, prehearing motions must be in writing, state the grounds for relief and state the relief sought.
	26.11(2) Any party may file a written response to a motion within five business days after the motion is served, unless the time period is extended or shortened by the presiding officer, who may consider failure to respond within the required time period in the ruling on a motion.
	26.11(3) The presiding officer may schedule oral arguments on any motion.
	26.11(4) Motions pertaining to the hearing must be filed and served at least five days prior to the date of the hearing unless there is good cause for permitting later action or the time is lengthened or shortened by the presiding officer.
871—26.12(17A,96) Prehearing conference.
	26.12(1) Any party may request a prehearing conference. A request, or an order for a prehearing conference on the presiding officer’s own motion, shall be filed not less than five days prior to the hearing. A prehearing conference shall be scheduled not less than three business days prior to the hearing date. Written notice of the prehearing shall be given by the presiding officer to all parties. For good cause, the presiding officer may permit variance from this rule.
	26.12(2) Each party shall bring to the prehearing conference:
	a. 	A final list of witnesses who the party anticipates will testify at the hearing. Witnesses not listed may be excluded from testifying unless there was good cause for the failure to include their names; and
	b. 	A final list of exhibits which the party anticipates will be introduced at the hearing. Exhibits other than rebuttal exhibits that are not listed may be excluded from admission into evidence unless there was good cause for the failure to include them.
Witness or exhibit lists may be amended subsequent to the prehearing within time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.
	26.12(3) In addition to the requirements of subrule 26.12(2), the parties at a prehearing conference may: enter into stipulations of fact; enter into stipulations on the admissibility of exhibits; identify matters the parties intend to request be officially noticed; and consider any additional matters which will expedite the hearing.
	26.12(4) Prehearing conferences shall be conducted by telephone unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists in advance of a telephone prehearing conference.
871—26.13(17A,96) Subpoenas for witnesses and documents.
	26.13(1) It is the responsibility of the parties to request the attendance of witnesses the parties believe have knowledge of the facts in issue in the contested case.
	26.13(2) Upon the written request of a party in interest received at least three days prior to the hearing date, the presiding officer shall issue a subpoena compelling the attendance of a person at the contested case hearing.
	26.13(3) The written request shall include:
	a. 	The full name and mailing address or email address of the person to be served; and
	b. 	A statement of the relevance of the witness’s testimony and that it will not repeat or duplicate the testimony of other witnesses.
	26.13(4)  Upon the written request of a party in interest received at least three days prior to the hearing date, the presiding officer shall issue a subpoena duces tecum for documents or other items believed to be relevant to the facts in issue in the contested case. The request must specifically describe the items to be provided pursuant to the subpoena duces tecum.
	26.13(5)  Documents or other items subpoenaed for hearings shall be mailed, faxed, or emailed to the appeals bureau and to the other parties to the proceeding prior to the hearing date.
	26.13(6)  If the presiding officer deems it appropriate, the entity or person to whom a subpoena is directed shall be notified and given the opportunity to object to its issuance.
	a. 	If an objection to the issuance of the subpoena is raised, the presiding officer, as a matter of discretion, may hear and rule on the objection prior to commencing the evidentiary hearing or may postpone the evidentiary hearing and schedule a special hearing to receive arguments from all parties concerning the issuance of the subpoena.
	b. 	The presiding officer shall issue the subpoena if it is established to the presiding officer’s satisfaction that the testimony or document sought is material and relevant, is not unduly repetitious of other evidence already of record or expected to be submitted by any party, and, in the case of the subpoena duces tecum, the records requested do not disclose business secrets or cause undue burden on the party to whom the subpoena is directed.
	26.13(7) If the subpoena is granted over objection, the aggrieved party may, in accordance with Iowa Code section 17A.13(1), petition the district court for review of the action before proceeding further. The aggrieved party must promptly notify the presiding officer that a petition for judicial review of the subpoena order will be filed immediately so the contested case may be postponed until the court has issued its ruling. Nothing herein shall preclude an aggrieved party from including the granting or denial of a subpoena as grounds for appeal of the presiding officer’s decision in the contested case to the employment appeal board of the department of inspections and appeals.
	26.13(8) If any entity or person to whom a subpoena is directed refuses to honor the subpoena, the aggrieved party may, in accordance with Iowa Code section 17A.13(1), apply to the appropriate district court for an order to compel the entity or person to obey the subpoena.
[ARC 3530C, IAB 12/20/17, effective 1/24/18]
871—26.14(17A,96) Conduct of hearings.
	26.14(1) Each contested case hearing shall be heard and decided by a presiding officer who is an administrative law judge.
	a. 	All contested case hearings except as provided in paragraphs “b” and “c” below shall be heard and decided by an administrative law judge employed by the department of workforce development. The qualifications for administrative law judges employed by the department of workforce development shall be the same as the qualifications for administrative law judges employed by the division of administrative hearings of the department of inspections and appeals.
	b. 	 Contested case hearings in which the department of workforce development is a party may be heard and decided by an administrative law judge employed by the division of administrative hearings of the department of inspections and appeals.
	c. 	The department of workforce development is a party to contested case hearings in which it is the employer. The department of workforce development is a party to contested case hearings involving issues of employer liability and employee/independent contractor status that arise from decisions issued by the tax bureau.
	26.14(2) The presiding officer shall inquire fully into the factual matters at issue and shall receive in evidence the sworn testimony of witnesses and physical evidence which are material and relevant to such matters. Upon the presiding officer’s own motion or upon the written application of any party, and for good cause shown, the presiding officer may reopen the record for additional material, relevant and nonrepetitious evidence not submitted at the original contested case hearing.
	26.14(3) The presiding officer shall begin each hearing with a brief statement identifying the parties and issues, outlining the history of the case, advising the parties of their appeal rights and announcing what matters, if any, will be officially noticed. Any party may inspect and use any portion of the administrative file necessary for the presentation of its case. The administrative file may include information from the claimant’s files maintained in the agency’s computer system.
	26.14(4) The hearing shall be confined to evidence relevant to the issue or issues stated on the notice of hearing. If, during the course of a hearing, it appears to the presiding officer that a section of the Iowa Code not set forth in the notice of hearing may affect the presiding officer’s decision, the presiding officer shall so notify the parties and announce willingness to continue taking testimony on the underlying factual matters if the parties agree to waive on record further notice and make no objection to continuing. If any party objects, the presiding officer shall postpone the hearing and cause new notices of hearing, containing all relevant issues and law sections, to be sent to the parties. Notwithstanding, voluntary quits and discharges generally shall be construed to constitute the single issue of separation from employment so that evidence of either or both types of separation may be received in a single hearing.
	26.14(5) If factual issues generally relevant to a party’s eligibility or liability for benefits but unrelated to the underlying facts in controversy in the present contested case are exposed, the presiding officer shall not take testimony or evidence on such issue but shall remand the issue to the appropriate section of the department for investigation and preliminary determination.
	26.14(6) If one or more parties which received notice for a contested case hearing fail to appear at the time and place of an in-person hearing, the presiding officer may proceed with the hearing. If the appealing party fails to appear, the presiding officer may decide the party is in default and dismiss the appeal. The hearing may be reopened if no decision has been issued and if the absent party makes a request in writing to reopen the hearing under subrule 26.8(3) and shows good cause for reopening the hearing.
	a. 	If an absent party arrives for an in-person hearing while the hearing is in session, the presiding officer shall pause to admit the party, summarize the hearing to that point, administer the oath, and resume the hearing.
	b. 	If an absent party arrives for an in-person hearing after the record has been closed and after any party which had participated in the hearing has departed, the presiding officer shall not take the evidence of the late party.
	26.14(7) If a party has not responded to a notice of telephone hearing by providing the appeals bureau with the names and telephone numbers of the persons who are participating in the hearing by the scheduled starting time of the hearing or is not available at the telephone number provided, the presiding officer may proceed with the hearing. If the appealing party fails to provide a telephone number or is unavailable for the hearing, the presiding officer may decide the appealing party is in default and dismiss the appeal as provided in Iowa Code section 17A.12(3). The record may be reopened if no decision has been issued and if the absent party makes a request in writing to reopen the hearing under subrule 26.8(3) and shows good cause for reopening the hearing.
	a. 	If an absent party responds to the hearing notice while the hearing is in progress, the presiding officer shall pause to admit the party, summarize the hearing to that point, administer the oath, and resume the hearing.
	b. 	If a party responds to the notice of hearing after the record has been closed and any party which has participated is no longer on the telephone line, the presiding officer shall not take the evidence of the late party.
	c. 	Failure to read or follow the instructions on the notice of hearing shall not constitute good cause for reopening the record.
	26.14(8) The presiding officer shall record all communications with late parties. If the presiding officer does not reopen the record, the decision in the contested case shall state the presiding officer’s reason for so doing.
	26.14(9) Rescinded IAB 1/8/14, effective 2/12/14.
	26.14(10) Whenever necessary, the presiding officer may require the attendance at a hearing of department employees having knowledge of the facts in controversy or having technical knowledge concerning the issues raised in appeal.
	a. 	If the primary issue is the claimant’s ability to work, availability for work or work search, the department shall be named as respondent. The presiding officer may call department personnel having knowledge of the facts in controversy as witnesses.
	b. 	If the issue on appeal is an offer of or recall to work or a job referral by a local workforce development center, both the employer making the offer or recall and the workforce development center representative making the referral may be witnesses at the hearing.
	c. 	If the issue on appeal is the claimant’s refusal of employment because of wages, the presiding officer may take the testimony of the workforce development representative having knowledge of prevailing wages in the vicinity. The presiding officer may also obtain testimony and evidence of the hours and other conditions of work for similar jobs in the area.
	26.14(11) In the discretion of the presiding officer, witnesses may be excluded from the hearing room or telephone hearing until called to testify. The presiding officer shall admonish such witnesses not to discuss the case among themselves until after the record has been closed. All witnesses shall be subject to examination by the presiding officer and by all parties.
	26.14(12) The presiding officer may expel or refuse admittance to any party, witness or other person whose conduct at the hearing is disorderly.
	26.14(13) If the parties agree that no dispute of material facts exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant material evidence either by stipulation or otherwise as agreed by the parties, without the necessity of a formal evidentiary hearing.
[ARC 1277C, IAB 1/8/14, effective 2/12/14; ARC 3009C, IAB 3/29/17, effective 5/3/17; ARC 3343C, IAB 9/27/17, effective 11/1/17; ARC 5727C, IAB 6/30/21, effective 8/4/21]
871—26.15(17A,96) Evidence.
	26.15(1) The presiding officer shall accept testimony and other evidence in accordance with Iowa Code section 17A.14.
	26.15(2) The parties may stipulate as to all or a portion of the facts at issue in the contested case. The presiding officer may accept the stipulation as establishing the facts of the case or may take additional evidence.
	26.15(3) Documentary evidence, whether or not verified, may be accepted by the presiding officer. Documentary evidence may be received in the form of copies or excerpts, if the originals are not readily available, provided the copies or excerpts are properly authenticated.
	26.15(4) Objections to evidentiary offers shall be specific in nature and shall be noted in the record by the presiding officer. The presiding officer may rule immediately or defer ruling until the final decision.
	26.15(5) Proposed exhibits must be sent to the appeals bureau and to the other party or parties to the proceeding before the hearing date by mail, fax, email or hand-delivery.
[ARC 3009C, IAB 3/29/17, effective 5/3/17; ARC 3266C, IAB 8/16/17, effective 9/20/17]
871—26.16(17A,96) Recording costs.
	26.16(1) The presiding officer shall electronically record all evidentiary hearings, prehearing conferences and hearings on motions, all of which constitute a part of the record of the contested case. A party may, at its own expense, also record any hearing electronically or by certified shorthand reporter.
	26.16(2) The appeals bureau of the department of workforce development shall provide a copy of the whole or a part of the record at cost, unless there is further appeal in which event the record shall be provided to all parties at no cost.
[ARC 1276C, IAB 1/8/14, effective 2/12/14]
871—26.17(17A,96) Decisions.
	26.17(1) The presiding officer shall issue a written, signed decision as soon as practicable after the closing of the record in a contested case. Each decision shall:
	a. 	Set forth the issues, appeal rights, a concise history of the case, findings of essential facts, the reasons for the decision and the actual disposition of the case;
	b. 	Be based on the kind and quality of evidence upon which reasonably prudent persons customarily rely for the conduct of their serious affairs, even if none of such evidence would be admissible in a jury trial in the Iowa district court; and
	c. 	Be sent by first-class mail or email to each of the parties in interest and their representatives.
	26.17(2) In reaching a decision, the presiding officer shall apply relevant portions of the Iowa Code, decisions of the Supreme Court of Iowa, published decisions of the Iowa Court of Appeals, the Iowa Administrative Code and pertinent state and federal court decisions, statutes and regulations.
	26.17(3) Copies of all presiding officer decisions shall be kept on file for public inspection at the administrative office of the department of workforce development, filed according to hearing (appeal) number and indexed by the social security number of the claimant.
	26.17(4) A presiding officer’s decision allowing benefits shall result in the prompt payment of all benefits due. An appeal shall not stay the payment of benefits. A presiding officer’s decision reversing an allowance of benefits shall include a statement of overpayment of benefits erroneously paid.
	26.17(5) A presiding officer’s decision constitutes final agency action in an employer liability contested case.
	a. 	Any party in interest may file with the presiding officer a written application for rehearing within 20 days after the issuance of the decision. A request for rehearing is deemed denied unless the presiding officer grants the rehearing request within 20 days after its filing.
	b. 	Any party in interest may file a petition for judicial review in the Iowa district court within 30 days after the issuance of the decision or within 30 days after the denial of the request for rehearing.
[ARC 3009C, IAB 3/29/17, effective 5/3/17]
These rules are intended to implement Iowa Code chapters 17A and 96.
[Filed 10/28/75, Notice 9/22/75—published 11/17/75, effective 12/23/75]
[Filed 4/29/76, Notice 3/22/76—published 5/17/76, effective 6/21/76]
[Filed 12/9/76, Notice 11/3/76—published 12/29/76, effective 2/2/77]
[Filed 9/30/77, Notice 8/24/77—published 10/19/77, effective 11/23/77]
[Filed 5/24/78, Notice 4/5/78—published 6/14/78, effective 7/19/78]
[Filed 2/12/80, Notice 10/31/79—published 3/5/80, effective 4/9/80]
[Filed 7/31/80, Notice 4/30/80—published 8/20/80, effective 9/24/80]
[Filed emergency 4/20/81—published 5/13/81, effective 4/20/81]
[Filed 11/6/81, Notice 5/13/81—published 11/25/81, effective 12/30/81]
[Filed emergency 1/10/84—published 2/1/84, effective 1/10/84]
[Filed 4/27/84, Notice 2/29/84—published 5/23/84, effective 6/28/84]
[Filed 8/24/84, Notice 6/20/84—published 9/12/84, effective 10/17/84]
[Filed emergency 7/1/86—published 7/30/86, effective 7/1/86]
[Filed emergency 9/5/86—published 9/24/86, effective 9/5/86]
[Filed emergency 10/1/86—published 10/22/86, effective 10/1/86]
[Filed 12/8/86, Notice 10/22/86—published 12/31/86, effective 2/4/87]
[Filed emergency 6/12/87—published 7/1/87, effective 7/1/87]
[Filed 9/4/87, Notice 7/1/87—published 9/23/87, effective 10/28/87]
[Filed 3/31/89, Notice 2/22/89—published 4/19/89, effective 5/24/89]
[Filed 5/22/92, Notice 4/15/92—published 6/10/92, effective 7/15/92]
[Filed 10/23/92, Notice 9/16/92—published 11/11/92, effective 12/16/92]
[Transferred from 345—Ch 6 to 871—Ch 26 IAC Supplement 3/12/97]
[Filed 7/2/99, Notice 3/24/99—published 7/28/99, effective 9/1/99]1
[Filed ARC 1276C (Notice ARC 1094C, IAB 10/16/13), IAB 1/8/14, effective 2/12/14]
[Filed ARC 1277C (Notice ARC 1095C, IAB 10/16/13), IAB 1/8/14, effective 2/12/14]
[Filed ARC 3009C (Notice ARC 2823C, IAB 11/23/16), IAB 3/29/17, effective 5/3/17]
[Filed ARC 3266C (Notice ARC 3137C, IAB 6/21/17), IAB 8/16/17, effective 9/20/17]
[Filed ARC 3343C (Notice ARC 3227C, IAB 8/2/17), IAB 9/27/17, effective 11/1/17]
[Filed ARC 3530C (Notice ARC 3421C, IAB 10/25/17), IAB 12/20/17, effective 1/24/18]
[Filed ARC 5727C (Notice ARC 5561C, IAB 4/21/21), IAB 6/30/21, effective 8/4/21]
1	At its meeting held August 3, 1999, the Administrative Rules Review Committee voted to impose a 70-day delay on amendments published in the July 28, 1999, Iowa Administrative Bulletin as ARC 9215A.