§ 28-32-37 — Ex parte communications

North Dakota § 28-32-37

• Jurisdiction: North Dakota
• Title 28: Judicial Procedure, Civil
• Ch. 28-32: Administrative Agencies Practice Act

Text

1. Except as provided in subsections 2 and 4 or unless required for the disposition of
ex parte matters specifically authorized by another statute, an agency head or hearing
officer in an adjudicative proceeding may not communicate, directly or indirectly,
regarding any issue in the proceeding, while the proceeding is pending, with any party,
with any person who has a direct or indirect interest in the outcome of the proceeding,
with any other person allowed to participate in the proceeding, or with any person who
presided at a previous stage of the proceeding, without notice and opportunity for all
parties to participate in the communication.
2. When more than one person is the hearing officer in an adjudicative proceeding, those
persons may communicate with each other regarding a matter pending before the
panel. An agency head or hearing officer may communicate with or receive aid from
staff assistants if the assistants do not furnish, augment, diminish, or modify the
evidence in the record.
3. Except as provided in subsection 4 or unless required for the disposition of ex parte
matters specifically authorized by statute, no party to an adjudicative proceeding, no

person who has a direct or indirect interest in the outcome of the proceeding, no
person allowed to participate in the proceeding, and no person who presided at a
previous stage in the proceeding may communicate directly or indirectly in connection
with any issue in that proceeding, while the proceeding is pending, with any agency
head or hearing officer in the proceeding without notice and opportunity for all parties
to participate in the communication.
4. In an adjudicative proceeding conducted by a hearing officer other than the agency
head, counsel for the administrative agency and the agency head, without notice and
opportunity for all parties to participate, may communicate and consult regarding the
status of the adjudicative proceeding, discovery, settlement, litigation decisions, and
other matters commonly communicated between attorney and client, to permit the
agency head to make informed decisions. This subsection does not apply after
recommended findings of fact, conclusions of law, and orders have been issued,
except counsel for the administrative agency and the agency head may communicate
regarding settlement and negotiation after recommended findings of fact, conclusions
of law, and orders have been issued.
5. If, before being assigned, designated, or appointed to preside in an adjudicative
proceeding, a person receives an ex parte communication of a type that could not
properly be received while presiding, the person, promptly after being assigned,
designated, or appointed, shall disclose the communication in the manner prescribed
in subsection 6.
6. An agency head or hearing officer in an adjudicative proceeding who receives an
ex parte communication in violation of this section shall place on the record of the
pending matter all written communications received, all written responses to the
communications, or a memorandum stating the substance of all oral communications
received, all responses made, and the identity of each person from whom the person
received an ex parte oral communication, and shall advise all parties, interested
persons, and other persons allowed to participate that these matters have been placed
on the record. Any person desiring to rebut the ex parte communication must be
allowed to do so, upon requesting the opportunity for rebuttal. A request for rebuttal
must be made within ten days after notice of the communication.
7. If necessary to eliminate the effect of an ex parte communication received in violation
of this section, an agency head or hearing officer in an adjudicative proceeding who
receives the communication may be disqualified, upon good cause being shown in
writing to the hearing officer or to the agency. The portions of the record pertaining to
the communication may be sealed by protective order issued by the agency.
8. The agency shall, and any party may, report any willful violation of this section to the
appropriate authorities for any disciplinary proceedings provided by law. In addition, an
administrative agency may, by rule, provide for appropriate sanctions, including
default, for any violations of this section.
9. Nothing in this section prohibits a member of the general public, not acting on behalf or
at the request of any party, from communicating with an agency in cases of general
interest. The agency shall disclose such written communications in adjudicative
proceedings.