§ 84-914 — Contested cases; evidence; procedure; ex parte communications

Nebraska § 84-914

• Jurisdiction: Nebraska
• Ch. 84: State Officers

Text

In contested cases:
(1) An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. An agency shall give effect to the rules of privilege recognized by law. Any party to a formal hearing before an agency, from which a decision may be appealed to the courts of this state, may request that the agency be bound by the rules of evidence applicable in district court by delivering to the agency at least three days prior to the holding of the hearing a written request therefor. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered;
(2) The hearing officer or a designee, at the request of any party or upon the hearing officer's own motion, may administer oaths and issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court;
(3) All evidence including records and documents in the possession of the agency of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference;
(4) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence;
(5) An agency may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by such agency. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of material so noticed. Parties shall be afforded an opportunity to contest facts so noticed. The record shall contain a written record of everything officially noticed. An agency may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it; and
(6)(a) No party in a contested case or other person outside the agency having an interest in the contested case shall make or knowingly cause to be made an ex parte communication to the hearing officer or to an agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
(b) No hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the agency having an interest in the contested case.
(c) No agency head or employee engaged in the investigation or enforcement of a contested case shall make or knowingly cause to be made an ex parte communication to a hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
(d) The hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication set forth in subdivisions (6)(a) through (c) of this section shall file in the record of the contested case (i) all such written communications, (ii) memoranda stating the substance of all such oral communications, and (iii) all written responses and memoranda stating the substance of all oral responses to all the ex parte communications. The filing shall be made within two working days of the receipt or making of the ex parte communication. Notice of the filing, with an opportunity to respond, shall be given to all parties of record.
(e) The prohibitions of subdivision (6) of this section shall apply beginning at the time notice for hearing is given. An agency may designate an earlier time, but such earlier time shall be required to be set forth in the agency's rules of procedure.
(f) The prohibitions contained in subdivisions (6)(a) and (b) of this section shall not apply to ex parte communications to or from an elected official. However, the disclosure requirements contained in subdivision (6)(d) of this section shall apply to ex parte communications to or from an elected official.

Legislative History

Source: Laws 1959, c. 456, § 7, p. 1513; Laws 1967, c. 618, § 3, p. 2072; Laws 1987, LB 253, § 16; Laws 1994, LB 414, § 136; Laws 1994, LB 446, § 35. Annotations: 1. Rules of evidence 2. Evidentiary and trial procedures 3. Judicial notice 4. Miscellaneous 1. Rules of evidence The "rules of evidence applicable in district court" are the Nebraska Evidence Rules codified in Chapter 27 of the Nebraska Revised Statutes. Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998). The Board of Nursing is not bound by the law of evidence unless a party so requests. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976). Prior to hearing before Director of Banking, protestants requested that rules of evidence applicable to the district court be made binding and district court on appeal made findings in accordance with applicable statute and affirmed order of the director. Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 (1974). The Administrative Procedure Act controls the appeal of prison disciplinary cases, but not the conduct of an initial prison disciplinary hearing. An inmate is not entitled to the application of the rules of evidence at a prison disciplinary committee hearing. Dailey v. Nebraska Dept. of Corr. Servs., 6 Neb. App. 919, 578 N.W.2d 869 (1998). 2. Evidentiary and trial procedures Evidentiary and trial procedures herein govern proceeding before Nebraska Power Review Board on application for approval of agreement between public power districts limiting areas in which and customers to whom electrical energy would be furnished at wholesale. City of Lincoln v. Nebraska P.P. Dist., 191 Neb. 556, 216 N.W.2d 722 (1974). Section details evidentiary and trial procedures for all administrative agencies. Weiner v. State Real Estate Commission, 184 Neb. 752, 171 N.W.2d 783 (1969). 3. Judicial notice In a contested case, all evidence in possession of the agency, of which it desires to avail itself, shall be made a part of the record and applicant is also entitled to notice of any facts which will be judicially noticed by the commission. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975). The Nebraska State Racing Commission could properly take judicial notice that the electrical device in possession of jockey was designed to increase or decrease the speed of a horse. Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975). 4. Miscellaneous Pursuant to subsection (5) of this section, a district court, in its de novo review of a disciplinary adjudication by the Department of Health and Human Services, properly took into consideration the expert opinions of the Director of Health and Human Services because the director was not substituting his expert knowledge for evidence in the record of the hearing; rather, the director used his experience and knowledge in evaluating the facts in the record. Pursuant to subsection (5) of this section, notification of parties is required when an agency intends to take notice of facts within its specialized knowledge; however, notification of parties is not required when an agency merely utilizes its expertise in evaluating evidence presented to it. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998). Policy behind this statute is to give full and fair warning of Public Service Commission's intention to take notice of a matter so as to avoid prejudice or surprise. In this case method of taking notice may have been technically improper; nonetheless, taking notice caused no unfair surprise or prejudice to the parties and therefore was permissible. In re Application of ATS Mobile Telephone, 213 Neb. 403, 330 N.W.2d 123 (1983). Presumed that Department of Banking offered only records or documents in its possession of which it desired to avail itself, and any not offered were not considered. Douglas County Bank v. Department of Banking, 187 Neb. 545, 192 N.W.2d 401 (1971). Study based on information compiled from unsworn statements and involving many judgment decisions wherein basic data used was not available at the time of hearing could not be used to sustain action of State Board of Equalization and Assessment. County of Sarpy v. State Board of Equalization & Assessment, 185 Neb. 760, 178 N.W.2d 765 (1970); County of Sioux v. State Board of Equalization & Assessment, 185 Neb. 741, 178 N.W.2d 754 (1970). An agency is required to make an official record containing all the factual information or evidence required to be determined after an agency hearing. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966). Ex parte communications that the director of the Department of Motor Vehicles had with police officers who were potential witnesses at a motorist's administrative license revocation hearing did not violate the motorist's due process rights; neither officer was a party in the license revocation proceeding nor a person outside the Department of Motor Vehicles having an interest in the motorist's case. Walz v. Neth, 17 Neb. App. 891, 773 N.W.2d 387 (2009).