CHAPTER 4
CONTESTED CASES
685—4.1(17A) Informal settlements. Informal settlements of controversies over rules of OSA that may culminate in contested case proceedings, are encouraged.
	4.1(1) All such informal settlements or waivers shall be made by the director when possible and by the parties contesting the rule in question.
	4.1(2) Both parties to a contested case proceeding may, by written stipulation representing an informed mutual consent, waive any provision of Iowa Code chapter 17A relating to proceedings on contested cases when the following rules are followed:
	a. 	All waivers for settling a controversy over a rule of OSA are made by and between the director and by a representative of the party contesting the rule.
	b. 	All such waiver action can be initiated by either the director or by the representative of the party contesting the rule in question.
	c. 	If the rule, order or regulation over which the controversy was raised, is amended, or repealed as mutually agreed upon by the director and a representative of the party contesting the rule, the procedures of rule adoption pursuant to Iowa Code section 17A.4 are followed.
This rule is intended to implement Iowa Code section 17A.10.
685—4.2(17A) Contested cases. Except when inconsistent with Iowa Code chapter 263B, this chapter applies to contested case proceedings conducted by OSA.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.3(17A) Definitions. Except where otherwise specifically defined by law:
“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under Iowa Code section 17A.10A.
“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.
“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 the state archaeologist, the designee of the state archaeologist or, under certain circumstances, the administrative law judge.
“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which the state archaeologist did not preside.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.4(17A) Time requirements.
	4.4(1) Time shall be computed as provided in Iowa Code section 4.1(34).
	4.4(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.5(17A) Requests for contested case proceeding. Any person claiming an entitlement to a contested case proceeding shall file a written request for such a proceeding within the time specified by the particular rules or statutes governing the subject matter or, in the absence of such law, the time specified in the OSA action in question. The request for a contested case proceeding should state the name and address of the requester, identify the specific OSA action which is disputed and, where the requester is represented by a lawyer, identify the provisions of law or precedent requiring or authorizing the holding of a contested case proceeding in the particular circumstances involved, and include a short and plain statement of the issues of material fact in dispute.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.6(17A) Notice of hearing.
	4.6(1) Delivery. Delivery of the notice of hearing by OSA constitutes the commencement of the contested case proceeding. Delivery may be executed by:
	a. 	Personal service as provided in the Iowa Rules of Civil Procedure; or
	b. 	Certified mail, return receipt requested; or
	c. 	First-class mail; or
	d. 	Publication, as provided in the Iowa Rules of Civil Procedure.
	4.6(2) Contents. The notice of hearing shall contain the following information:
	a. 	A statement of the time, place, and nature of the hearing;
	b. 	A statement of the legal authority and jurisdiction under which the hearing is to be held;
	c. 	A reference to the particular sections of the statutes and rules involved;
	d. 	A short and plain statement of the matters asserted. If OSA or another party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished;
	e. 	Identification of all parties including the name, address and telephone number of the person who will act as advocate for OSA or the state and of parties’ counsel where known;
	f. 	Reference to the procedural rules governing conduct of the contested case proceeding;
	g. 	Reference to the procedural rules governing informal settlement;
	h. 	Identification of the presiding officer, if known. If not known, a description of who will serve as presiding officer; and
	i. 	Notification of the time period in which a party may request, pursuant to Iowa Code section 17A.11, that the presiding officer be an administrative law judge.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.7(17A) Presiding officer.
	4.7(1) Any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within 20 days after service of a notice of hearing which identifies or describes the presiding officer as the state archaeologist or the designee of the state archaeologist.
	4.7(2) The state archaeologist may deny the request only upon a finding that one or more of the following apply:
	a. 	There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.
	b. 	An administrative law judge is unavailable to hear the case within a reasonable time.
	c. 	The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.
	d. 	The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.
	e. 	Funds are unavailable to pay the costs of an administrative law judge and an interdivision appeal.
	f. 	The request was not timely filed.
	g. 	The request is not consistent with a specified statute.
	4.7(3) The state archaeologist shall issue a written ruling specifying the grounds for the decision within 20 days after a request for an administrative law judge is filed.
	4.7(4) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the state archaeologist. A party must seek any available intra-agency appeal in order to exhaust adequate administrative remedies.
	4.7(5) Unless otherwise provided by law, the state archaeologist, when reviewing a proposed decision upon intra-agency appeal, shall have the powers of and shall comply with the provisions of this chapter which apply to presiding officers.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.8(17A) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, OSA in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.9(17A) Telephone proceedings. The presiding officer may resolve preliminary procedural motions by telephone conference in which all parties have an opportunity to participate. Other telephone proceedings may be held with the consent of all parties. The presiding officer will determine the location of the parties and witnesses for telephone hearings. The convenience of the witnesses or parties, as well as the nature of the case, will be considered when location is chosen.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.10(17A) Disqualification.
	4.10(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:
	a. 	Has a personal bias or prejudice concerning a party or a representative of a party;
	b. 	Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;
	c. 	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 that contested case, or a pending factually related contested case or controversy involving the same parties;
	d. 	Has acted as counsel to any person who is a private party to that proceeding within the past two years;
	e. 	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. 	Has a spouse or relative within the third degree of relationship that: (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or
	g. 	Has any other legally sufficient cause to withdraw from participation in the decision making in that case.
	4.10(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 OSA 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 chapter 17A.
	4.10(3) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.
	4.10(4) If a party asserts disqualification on any appropriate ground, the party shall file a motion supported by an affidavit pursuant to Iowa Code section 17A.11. The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party. If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must establish the grounds by the introduction of evidence into the record.
If the presiding officer determines that disqualification is appropriate, the presiding officer or other person shall withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer shall enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal and seek a stay pursuant to these rules.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.11(17A) Consolidation—severance.
	4.11(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where (a) the matters at issue involve common parties or common questions of fact or law; (b) consolidation would expedite and simplify consideration of the issues involved; and (c) consolidation would not adversely affect the rights of any of the parties to those proceedings.
	4.11(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.12(17A) Pleadings.
	4.12(1) Petition. A petition in a contested case proceeding shall state in separately numbered paragraphs the following:
	a. 	The persons or entities on whose behalf the petition is filed;
	b. 	The particular provisions of statutes and rules involved;
	c. 	The relief demanded and the facts and law relied upon for such relief; and
	d. 	The name, address and telephone number of the petitioner and the petitioner’s attorney, if any.
	4.12(2) Answer. An answer shall be filed within 20 days of service of a petition unless otherwise ordered. A party may move to dismiss or apply for a more definite and detailed statement when appropriate. An answer shall show on whose behalf it is filed and specifically admit, deny, or otherwise answer all material allegations of the pleading to which it responds. The answer shall state any facts deemed to show an affirmative defense and contain as many additional defenses as the pleader may claim. An answer shall state the name, address and telephone number of the person filing the answer, the person or entity on whose behalf it is filed, and the attorney representing that person, if any. Any allegation in the petition not denied in the answer is considered admitted. The presiding officer may refuse to consider any defense not raised in the answer which could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.
	4.12(3) Amendment. Any notice of hearing, petition, or other charging document may be amended before a responsive pleading has been filed. Amendments to pleadings after a responsive pleading has been filed and to an answer may be allowed with the consent of the other parties or at the discretion of the presiding officer, who may impose terms or grant a continuance.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.13(17A) Service and filing of pleadings and other papers.
	4.13(1) Except where otherwise provided by law, every pleading, motion, document, or other paper filed in a contested case proceeding and every paper relating to discovery in such a proceeding shall be served upon each of the parties of record to the proceeding, including the person designated as advocate or prosecutor for the state or OSA, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.
	4.13(2) Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last-known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.
	4.13(3) After the notice of hearing, all pleadings, motions, documents or other papers in a contested case proceeding shall be filed with the Office of the State Archaeologist, 700 South Clinton Street Building, University of Iowa, Iowa City, Iowa 52242-1030. All pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with OSA.
	4.13(4) Except where otherwise provided by law, a document is deemed filed at the time it is delivered to OSA, delivered to an established courier service for immediate delivery to that office, or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.
	4.13(5) Proof of mailing includes either a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:

I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Office of the State Archaeologist, 700 South Clinton Street Building, University of Iowa, Iowa City, Iowa 52242-1030, and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or university mail).	
(Date)	(Signature)	
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.14(17A) Discovery.
	4.14(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.
	4.14(2) Any motion relating to discovery shall allege that the moving party has previously made a good-faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in rule 685—4.4(17A).
	4.14(3) The presiding officer may rule on the basis of the written motion and any response or may order argument on the motion.
	4.14(4) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.15(17A) Subpoenas.
	4.15(1) Issuance.
	a. 	An OSA subpoena shall be issued to a party on request. Such a request must be in writing. In the absence of good cause for permitting later action, a request for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address, and telephone number of the requesting party.
	b. 	Except to the extent otherwise provided by law, parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.
	4.15(2) Motion to quash or modify.  The presiding officer may quash or modify a subpoena for any lawful reason upon motion in accordance with the Iowa Rules of Civil Procedure. A motion to quash or modify a subpoena shall be set for argument promptly.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.16(17A) Motions.
	4.16(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.
	4.16(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by rules of OSA or the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.
	4.16(3) The presiding officer may schedule oral argument on any motion.
	4.16(4) Motions pertaining to the hearing must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of OSA or an order of the presiding officer.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.17(17A) Prehearing conference.
	4.17(1) Any party may request a prehearing conference. A written request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion shall be filed not less than seven days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date. Written notice of the prehearing conference shall be given by the presiding officer to all parties. For good cause, the presiding officer may permit variances from this rule.
	4.17(2) Each party shall bring to the prehearing conference:
	a. 	A final list of the witnesses who the party anticipates will testify at 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 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.
	c. 	Witness or exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.
	4.17(3) In addition to the requirements of subrule 4.17(2), the parties at a prehearing conference may:
	a. 	Enter into stipulations of law or fact;
	b. 	Enter into stipulations on the admissibility of exhibits;
	c. 	Identify matters which the parties intend to request be officially noticed;
	d. 	Enter into stipulations for waiver of any provision of law; and
	e. 	Consider any additional matters which will expedite the hearing.
	4.17(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.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.18(17A) Continuances. Unless otherwise provided, applications for continuances shall be made to the presiding officer.
	4.18(1) A written application for a continuance shall:
	a. 	Be made at the earliest possible time and no less than seven days before the hearing except in case of unanticipated emergencies;
	b. 	State the specific reasons for the request; and
	c. 	Be signed by the requesting party or the party’s representative.
An oral application for a continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within five days after the oral request unless that requirement is waived by the presiding officer. No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible. OSA may waive notice of such requests for a particular case or an entire class of cases.
	4.18(2) In determining whether to grant a continuance, the presiding officer may consider:
	a. 	Prior continuances;
	b. 	The interests of all parties;
	c. 	The likelihood of informal settlement;
	d. 	The existence of an emergency;
	e. 	Any objection;
	f. 	Any applicable time requirements;
	g. 	The existence of a conflict in the schedules of counsel, parties, or witnesses;
	h. 	The timeliness of the request; and
	i. 	Other relevant factors.
The presiding officer may require documentation of any grounds for continuance.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.19(17A) Withdrawals. A party requesting a contested case proceeding may withdraw that request prior to the hearing only in accordance with OSA rules. Unless otherwise provided, a withdrawal shall be with prejudice.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.20(17A) Intervention.
	4.20(1) A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.
	4.20(2) Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor shall be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances which would delay the proceeding will ordinarily be denied.
	4.20(3) The movant shall demonstrate that (a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; (b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and (c) the interests of the movant are not adequately represented by existing parties.
	4.20(4) If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.21(17A) Hearing procedures.
	4.21(1) The presiding officer presides at the hearing and may rule on motions, require briefs, issue a proposed decision, and issue such orders and rulings as will ensure the orderly conduct of the proceedings.
	4.21(2) All objections shall be timely made and stated on the record.
	4.21(3) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations, or associations may be represented by any member, officer, director, or duly authorized agent. Any party may be represented by an attorney or another person authorized by law.
	4.21(4) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.
	4.21(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.
	4.21(6) Witnesses may be sequestered during the hearing.
	4.21(7) The presiding officer shall conduct the hearing in the following manner:
	a. 	The presiding officer shall give an opening statement briefly describing the nature of the proceedings.
	b. 	The parties shall be given an opportunity to present opening statements.
	c. 	Parties shall present their cases in the sequence determined by the presiding officer.
	d. 	Each witness shall be sworn or affirmed by the presiding officer or the court reporter and be subject to examination and cross-examination. The presiding officer may limit questioning in a manner consistent with law.
	e. 	When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.22(17A) Evidence.
	4.22(1) The presiding officer shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.
	4.22(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.
	4.22(3) Evidence in the proceeding shall be confined to the issues to which the parties received notice prior to the hearing unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.
	4.22(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties. All exhibits admitted into evidence shall be appropriately marked and be made part of the record.
	4.22(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.
	4.22(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.23(17A) Default.
	4.23(1) If a party fails to appear or participate in a contested case hearing after proper service of notice, the presiding officer may, if no continuance is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.
	4.23(2) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case hearing become final agency action unless, within 20 days after the mailing of the decision to the parties, a motion to vacate pursuant to subrule 4.23(3) is filed and served on all parties or, if the decision is a proposed decision within the meaning of Iowa Code section 17A.15(2), an appeal from the decision on the merits is filed within the time provided by rule 685—4.28(17A).
	4.23(3) A motion to vacate may be filed only by a party who failed to appear for the hearing and against whom the decision was rendered. The motion must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to and filed and served with the motion.
	4.23(4) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown, in accordance with Iowa Rule of Civil Procedure 1.977. The burden of proof as to the existence of good cause is on the moving party. Adverse parties may, within ten days of the service of the motion and supporting affidavit(s) upon them, file a response to the motion. Adverse parties shall be allowed to conduct discovery as to the issue of the existence of good cause and to present evidence on the issue prior to a ruling on the motion, if a request to do so is included in that party’s response.
	4.23(5) The time for the filing of an intra-agency appeal from or petition for review of a decision for which a timely motion to vacate has been filed is stayed pending the issuance of the presiding officer’s ruling on the motion to vacate.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.24(17A) Ex parte communication.
	4.24(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, a presiding officer in a contested case or in proceedings on a petition for declaratory order in which there are two or more parties shall not communicate directly or indirectly with any party, representative of any party or any other person with a direct or indirect interest in such case, nor shall any such party, representative or person communicate directly or indirectly with the presiding officer concerning any issues of fact or law in that case, except upon notice and opportunity for all parties to participate. Nothing in this provision precludes the presiding officer, without such notice and opportunity for all parties to participate, from communicating with members of the agency or seeking the advice or help of persons other than those with a personal interest in, or those engaged in personally investigating, either the case under consideration or a pending factually related case involving the same parties as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish or modify the evidence in the record. 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’s investigative work product in the course of determining whether 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 a presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17.
	4.24(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and with the filing of the petition in a declaratory order proceeding in which there are two or more parties and continue for as long as the case is pending.
	4.24(3) Communications with a 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 and shall notify other parties prior to seeking to continue hearings or other deadlines.
	4.24(4) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case or proceedings on a petition for declaratory order in which there are two or more parties shall disclose to all parties and place on the record of the pending matter all such written communications, all written responses to the communication, and a memorandum stating the substance of all such oral and other communications received, all responses made and the identity of each person from whom the presiding officer received a prohibited ex parte communication. The presiding officer shall notify all parties that these matters have been placed on the record. Any party desiring to rebut the prohibited communication will be allowed the opportunity to do so upon written request filed within ten days after the giving of notice that the matters have been placed on the record.
	4.24(5) If the presiding officer determines that the effect of a prohibited ex parte communication is so prejudicial that it cannot be cured by the procedure specified in subrule 4.24(4), the presiding officer shall be disqualified and the portions of the record pertaining to the communication shall be sealed by protective order.
	4.24(6) Promptly after being assigned to serve as presiding officer, a presiding officer shall disclose to all parties any material factual information received through ex parte communication prior to such assignment, unless the factual information has or soon will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery.
	4.24(7) Sanctions for prohibited communications.
	a. 	The agency and any party may report any violation of this rule to appropriate authorities for any disciplinary proceedings provided by law.
	b. 	The presiding officer may render a proposed decision or, in the case of OSA, a final decision imposing appropriate sanctions for violations of this rule including a decision against the offending party, censure, suspension, or revocation of the privilege to practice before the agency.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.25(17A) Recording costs. Upon request, OSA shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party. Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means shall bear the cost of that recordation, unless otherwise provided by law.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.26(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the state archaeologist may review an interlocutory order of the presiding officer. In determining whether to do so, the state archaeologist shall weigh the extent to which its granting the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by OSA at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order but no later than the time for compliance with the order or the date of hearing, whichever is first.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.27(17A) Final decision.
	4.27(1) When the state archaeologist presides over the reception of evidence at the hearing, the decision is a final decision.
	4.27(2) When the state archaeologist does not preside at the reception of evidence, the presiding officer shall make a proposed decision. The proposed decision becomes the final decision of OSA without further proceedings unless there is an appeal to, or review on motion of, the state archaeologist within the time provided in rule 685—4.28(17A).
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.28(17A) Appeals and review.
	4.28(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the state archaeologist within 30 days after issuance of the proposed decision.
	4.28(2) Review. The state archaeologist may initiate review of a proposed decision on the state archaeologist’s own motion at any time within 30 days following the issuance of such a decision.
	4.28(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with OSA. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify:
	a. 	The parties initiating the appeal;
	b. 	The proposed decision or order appealed from;
	c. 	The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;
	d. 	The relief sought;
	e. 	The grounds for relief.
	4.28(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal, or by a nonappealing party, within 14 days of service of the notice of appeal. The state archaeologist may remand a case to the presiding officer for further hearing or may personally preside at the taking of additional evidence.
	4.28(5) Scheduling. OSA shall issue a schedule for consideration of the appeal.
	4.28(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 20 days thereafter, any party may file a responsive brief. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall be filed with the briefs. The state archaeologist may resolve the appeal on the briefs or provide an opportunity for oral argument. The state archaeologist may shorten or extend the briefing period as appropriate.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.29(17A) Applications for rehearing.
	4.29(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.
	4.29(2) Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the decision on the existing record and whether, on the basis of the grounds enumerated in subrule 4.28(4), the applicant requests an opportunity to submit additional evidence.
	4.29(3) Time of filing. The application shall be filed with OSA within 20 days after issuance of the final decision.
	4.29(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein. If the application does not contain a certificate of service, OSA shall serve copies on all parties.
	4.29(5) Disposition. Any application for a rehearing shall be deemed denied unless OSA grants the application within 20 days after its filing.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.30(17A) Stays of OSA actions.
	4.30(1) When available.
	a. 	Any party to a contested case proceeding may petition OSA for a stay of an order issued in that proceeding or for other temporary remedies, pending review by OSA. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The state archaeologist may rule on the stay or authorize the presiding officer to do so.
	b. 	Any party to a contested case proceeding may petition OSA for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy.
	4.30(2) When granted. In determining whether to grant a stay, the presiding officer or state archaeologist shall consider the factors listed in Iowa Code section 17A.19(5)“c.”
	4.30(3) Vacation. A stay may be vacated by the issuing authority by application of any party to OSA or by OSA acting sua sponte.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
685—4.31(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the Iowa Rules of Civil Procedure and these administrative rules that govern such motions.
[ARC 9025B, IAB 8/25/10, effective 9/29/10]
These rules are intended to implement Iowa Code chapter 17A.
[Filed 10/27/77, Notice 8/24/77—published 11/16/77, effective 12/21/77]
[Delayed 12/13/77—published 12/28/77; delay lifted 2/14/78—published 3/8/78]
[Filed emergency 2/19/88—published 3/9/88, effective 2/19/88]
[Filed ARC 9025B (Notice ARC 8870B, IAB 6/30/10), IAB 8/25/10, effective 9/29/10]