(a) Unless required for the disposition of ex parte matters authorized by law, no hearing officer or member of an agency who, in a contested case, is to render a final decision or to make a proposed final decision shall communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or, in connection with any issue of law, with any party or the party's representative, without notice and opportunity for all parties to participate.
(b) Notwithstanding the provisions of subsection (a) of this section, a member of a multimember agency may communicate with other members of the agency regarding a matter pending before the agency, and members of the agency or a hearing officer may receive the aid and advice of members, employees, or agents of the agency if those members, employees, or agents have not received communications prohibited by subsection (a) of this section.
(c) Unless required for the disposition of ex parte matters authorized by law, no party or intervenor in a contested case, no other agency, and no person who has a direct or indirect interest in the outcome of the case, shall communicate, directly or indirectly, in connection with any issue in that case, with a hearing officer or any member of the agency, or with any employee or agent of the agency assigned to assist the hearing officer or members of the agency in such case, without notice and opportunity for all parties to participate in the communication.
(d) The provisions of this section apply from the date the matter pending before the agency becomes a contested case to and including the effective date of the final decision. Except as may be otherwise provided by regulation, each contested case shall be deemed to have commenced on the date designated by the agency for that case, but in no event later than the date of hearing.
(1971, P.A. 854, S. 16; P.A. 88-317, S. 19, 107; P.A. 89-174, S. 3, 7.)
History: P.A. 88-317 designated former section as Subsec. (a) and amended Subsec. (a) to apply restriction on communications to a “hearing officer or member of any agency” instead of to “members or employees of an agency”, to insert “final”, to substitute “proposed final decision” for “findings of fact and conclusions of law in a contested case”, and to make technical changes, deleted provision authorizing agency members to communicate with each other and to have the aid and advice of personal assistants and substituted new Subsec. (b) re communications among members of multimember agency and receipt of aid and advice by members of an agency or a hearing officer and added new Subsec. (c) re communications involving parties, intervenors, other agencies and persons having an interest in the outcome and new Subsec. (d) re period when section applicable, effective July 1, 1989, and applicable to all agency proceedings commencing on or after that date; P.A. 89-174 deleted provision in Subsec. (b) which had required agency to disclose in case record identity of employees or agents communicating with an agency member or a hearing officer.
Cited. 168 C. 435; 171 C. 691; 172 C. 263; 173 C. 462; 183 C. 128; 186 C. 153; 191 C. 173. Once violation of statute proved by party seeking relief, burden shifts to agency to prove no prejudice resulted from prohibited ex parte communication; waiver of claim to disqualification discussed. 202 C. 453. Where record shows prima facie violation of section, burden shifted to agency to prove no resulting prejudice. 207 C. 296. Cited. 212 C. 471; 215 C. 49; 226 C. 105; 239 C. 32.
Cited. 1 CA 1. To be entitled to relief, plaintiff must show prejudice to his rights resulting from an ex parte communication in violation of statute. 4 CA 143. Cited. 9 CA 622; 27 CA 495; judgment reversed, see 225 C. 499; 36 CA 587; 37 CA 777; 43 CA 512; 44 CA 622. Investigator's report cannot be construed as ex parte communication where other party has notice of report and opportunity to participate in presentation of allegations to the fact finder. 47 CA 325. Plaintiff was deprived of due process of law when commissioner engaged in ex parte communications with plaintiff's former attorney and issued unilateral order awarding attorney's fees without providing plaintiff with notice or opportunity to present evidence. Id., 391.
Subsec. (b):
Cited. 37 CA 653; judgment reversed, see 238 C. 361. It was not improper for zoning commission to consider memorandum after close of public hearing because it was sent from one commission member to another concerning commission's deliberations and contained a summary of the member's opinion. 112 CA 484.