Neb. Admin. Code tit. 297 — Procedures for Negotiated Rulemaking, Petitions for Rulemaking, Agency Declaratory Orders, and Hearings

Chapter 1 Procedures for Negotiated Rulemaking

Neb. Admin. Code tit. 297, ch. 1 Procedures for Negotiated Rulemaking {#sec-297-nac-1 omnilex-key=us-ne-regs-official--title-297--297 NAC 1}

001 General Information

001.01 Application of Rules. These rules are promulgated pursuant to Neb. Laws 1994, LB 446, and 53 Nebraska Administrative Code, Chapter 1.

002 Negotiated rulemaking generally . The purpose of these regulations is to establish a framework for the conduct of negotiated rulemaking consistent with the Administrative Procedure Act and the Negotiated Rulemaking Act. The negotiated rulemaking process can be used by the Real Property Appraiser Board, whenever appropriate, to resolve controversial issues prior to the commencement of formal rulemaking. Negotiated rulemaking is not a substitute for the requirements of the Administrative Procedure Act, but may be used as a supplemental procedure to permit the direct participation of affected interests in the development of new rules or the amendment or repeal of existing rules. The negotiated rulemaking process also does not preclude other Appraiser Board efforts or processes designed to reach consensus with affected or interested persons concerning the content of rules or regulations. A consensus agreement on a proposed rule reached by a negotiated rulemaking committee may be modified by the Appraiser Board as a result of a subsequent formal rulemaking process.

003 Definitions . For purposes of this Chapter of these model procedural rules:

003.01 APA shall mean the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 through 84-920.

003.02 Agency shall mean the Appraiser Board, including the Director and staff. Agency shall not include those entities exempted in Neb. Rev. Stat. § 84-901 (1).

003.03 Board shall mean the Nebraska Real Property Appraiser Board the governing board of state government which is promulgating these procedural rules.

003.04 Consensus shall mean unanimous concurrence among the interests represented on a negotiated rulemaking committee unless the committee agrees upon another specified definition.

003.05 Convenor shall mean a person who impartially assists the Board in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate for a particular rulemaking procedure.

003.06 Facilitator shall mean a person who impartially aids in the discussion and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule. A facilitator shall not have decision-making authority.

003.07 Director shall mean the person appointed as the Director of the Board by the Board pursuant to NEB. REV. STAT. §76-2224.

003.08 Interest shall mean, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner.

003.09 Negotiated rulemaking shall mean rulemaking through the use of a negotiated rulemaking committee.

003.10 Negotiated rulemaking committee or committee shall mean an advisory committee established to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule.

003.11 Person shall mean an individual, partnership, limited liability company, corporation, association, governmental subdivision, agency, or public or private organization of any character.

003.12 Rule or regulation shall mean any rule, regulation, or standard issued by the Board, including the amendment or repeal thereof whether with or without prior hearing and designed to implement, interpret, or make specific the law enforced or administered by it or governing its organization or procedure, but not including rules and regulations concerning the internal management of the Board not affecting private rights, private interests, or procedures available to the public, and any rules of interpretation thereof, and for the purpose of the APA, every rule and regulation which shall prescribe a penalty shall be presumed to have general applicability or to affect private rights and interests.

004 Establishment of a Negotiated Rulemaking Committee; criteria . The Board may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the Board determines that the use of the negotiated rulemaking procedure is in the public interest. In making that determination, the Board shall consider whether:

004.01 There is a need for the rule.

004.02 There are a limited number of identifiable interests that will be significantly affected by the rule.

004.03 There is a reasonable likelihood that a committee can be convened with a balanced representation of persons who:

004.03A Can adequately represent the interests identified; and

004.03B Are willing to negotiate in good faith to reach a consensus on the proposed rule.

004.04 There is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time.

004.05 The negotiated rulemaking procedure will not unreasonably delay the notice of proposed formal rulemaking and the issuance of the final rule pursuant to the APA.

004.06 The Board has adequate resources and is willing to commit those resources, including technical assistance, to the committee.

004.07 The Board, to the maximum extent possible consistent with the legal obligations of the Board, will use the consensus of the committee as the basis of the rule proposed by the Board in the formal rulemaking process of the APA.

005 Convenors; selection; duties . The Board, at its discretion, may use the services of a convenor.

005.01 The Board may employ or contract for an organization or an individual to serve as a convenor, or may use the services of a state employee to act as a convenor. A convenor shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The Board shall determine whether a person under consideration as a convenor has such an interest. A person disqualified under this criterion shall be dropped from further consideration.

005.02 The convenor may assist the Board in making the determination of need for a negotiated rulemaking process discussed in section 004 above. The convenor may also assist the agency in:

005.02A Identifying persons who will be significantly affected by a proposed rule.

005.02B Conducting discussions with affected persons on the issues of concern and ascertaining whether the establishment of a negotiated rulemaking committee is feasible and appropriate for the particular rulemaking.

005.03 The convenor shall report findings and make recommendations to the Board. Upon request of the Board, the convenor shall ascertain the names of persons who are willing and qualified to represent the interests that will be significantly affected by the proposed rule. That report by the convenor and any recommendations of the convenor shall be public records and made available to the public for review upon request.

006 Petitions for the use of a negotiated rulemaking committee . Any person may petition the Board to request the use of a negotiated rulemaking committee in the development or revision of a rule, as provided below.

006.01 A negotiated rulemaking process may be requested on any topic appropriate for a rule or regulation by the agency.

006.01A A negotiated rulemaking process may be requested only to develop or revise rules which carry out statutes that are within the authority of the Board to implement.

006.01B A negotiated rulemaking process may not be requested to develop a rule or regulation to vary or change the specific terms of a statute.

006.01C A negotiated rulemaking process may not be requested to negotiate a rule on a matter which is not within the definition of a rule or regulation as set forth in subsection 003.12 above.

006.02 A request for the use of a negotiated rulemaking procedure shall be made by a petition that meets the requirements of form set out in this subsection. In the event that it does not, the Board may refuse to accept it.

006.02A A petition may be in the form of a pleading that contains a caption, heading, and name as set forth on Attachment 1, which is attached to these model rules and made a part of them by reference.

006.02B A petition may also be made in the form of a letter so long as the letter contains all of the information required by these regulations and is clearly delineated as a petition for negotiated rulemaking.

006.02C All petitions must be on white, letter sized paper (8 1/2 by 11) of standard weight.

006.02D Petitions must be legible, and may be typewritten, photostatically reproduced, printed, or handwritten. If handwritten, petitions must be in ink. Only one side of a page of a petition shall contain any writing.

006.02E Any documents that are intended to accompany a petition shall be securely fastened, clearly marked as attachments to the petition, and meet the other requirements of this section as to size, print and legibility.

006.03 A petition for a negotiated rulemaking procedure shall meet the following requirements for content and substance. In the event that it does not, the Board may refuse to accept it.

006.03A The petition must identify the general subject matter about which the negotiated rulemaking procedure is requested, including the statutes or legislative bill(s) which provide authority for the desired regulation, and, if amendments to existing regulations are sought, identification of the regulations by title, chapter and name.

006.03B The petition must identify the specific issue(s) proposed for inclusion in the negotiated rulemaking process.

006.03C The petition must discuss the facts surrounding each problem or issue proposed for inclusion in the negotiated rulemaking process.

006.03D The petition must discuss why a negotiated rulemaking process is in the public interest, including information on each of the criteria set out in subsections 004.01 through 004.05 above. The petition may also include information on the criteria included in subsections 004.06 and 004.07 above, to the extent such information is available to the petitioner. The petitioner may also submit such other information as may assist the Board in making a decision.

006.03E The petition must identify persons who will be significantly affected by any rule which might result from the proposed negotiated rulemaking process, to the extent known by the petitioner. The petitioner may also suggest the names of persons who are willing and qualified to represent the interests that will be significantly affected by the negotiated rulemaking process and the proposed rule.

006.04 A petition for a negotiated rulemaking process shall be filed with the agency director. Filing may be made by personal delivery during regular Agency office hours or by mail.

006.05 Upon the filing of a petition for a negotiated rulemaking procedure, the agency director or convenor designated by the Board may recommend to the Board whether a negotiated rulemaking process should be initiated.

006.06 Within sixty (60) days after submission of a petition for a negotiated rule making procedure, the Board shall:

006.06A Deny the petition in writing, stating the reason(s) for denial; or

006.06B Initiate the negotiated rulemaking process as provided in these rules.

006.07 The decision of the Board with respect to a petition for a negotiated rule making procedure may be made in the form of a pleading or a letter clearly designated as the decision on the petition. The petitioner shall be served with a copy of the Board's final decision by certified mail, return receipt requested.

006.08 A decision by the Board with respect to a petition for a negotiated rulemaking procedure is not subject to judicial review, although nothing herein shall bar a judicial review if such is otherwise provided by law.

007 Notice of a Negotiated Rulemaking Committee; Comment; Applications for Membership . If the Board decides to go forward with the establishment of a negotiated rulemaking committee, the Board shall proceed with the following process. The Agency shall give notice to the Secretary of State, publish notice in a newspaper having general circulation in the state, and, as appropriate, publish notice in other newspapers and publications. The notice shall include:

007.01A An announcement that the Board intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule.

007.01B A description of the subject and scope of the rule to be developed and the issues to be considered.

007.01C A list of interests likely to be significantly affected by the proposed rule.

007.01D A list of the persons proposed to represent the affected interests and the Board.

007.01E A proposed schedule for completing the work of the committee.

007.01F An explanation of how a person may apply for or nominate another person for membership on the committee.

007.02 Persons interested in making comments upon the formation of a particular proposed negotiated rulemaking committee shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Such comments shall be in writing, and shall either be personally delivered or mailed to the Agency at its business office.

007.03 Persons interested in applying for membership on a particular proposed negotiated rulemaking committee or in nominating other persons for such membership shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Persons making application for membership or nominations for membership shall do so on Attachment 2 which is attached to these regulations and made a part of these regulations by reference, and which shall be provided by the Agency. Persons making application for membership or nominations for member-ship may also do so by letter, so long as the letter contains all of the information set out in Attachment 2 and is clearly delineated as an application or nomination for membership on a specific negotiated rulemaking committee.

008 Establishment of a Negotiated Rulemaking Committee; Procedure . After publication of notice and termination of the comment and membership application period, the Board will consider the comments and membership applications for a particular negotiated rulemaking committee and determine whether such a committee can adequately represent the interests of the persons that will be significantly affected by a proposed rule, and whether such a committee is feasible and appropriate in the particular rulemaking. In making the final determination as to creation of a negotiated rulemaking committee, the Board may use the services of a convenor as set out in Section 005 above. In making the final determination as to creation of a negotiated rulemaking committee, the Board and its agency director will apply the criteria set out in 004 above.

008.01 If, after such a determination, the Board decides that a negotiated rulemaking procedure is feasible, it shall establish a negotiated rulemaking committee as provided in these regulations. The committee will negotiate issues and develop proposed rules for use by the Board in formal rulemaking.

008.02 If, after such a determination, the Board decides not to establish a negotiated rulemaking committee, the Agency shall:

008.02A Notify the persons who commented on, applied for membership on or nominated persons for membership on the particular negotiated rulemaking committee of the reasons for the decision not to establish such a committee.

008.02B Publish notice of the decision not to establish the particular negotiated rulemaking committee in a newspaper having general circulation in the state, and, as appropriate, in other newspapers and publications.

009 Negotiated Rulemaking Committee; membership . All members of a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members.

009.01 Members of a negotiated rulemaking committee may include:

009.01A A Board member, employee of the Agency, or person designated by the Board to represent the Agency. This person shall be authorized to fully represent the Agency in the discussions and negotiations of the committee.

009.01B Persons selected by the Board as willing and qualified to represent the interests that will be significantly affected by the proposed rule.

009.01C Persons contacted and recruited by the negotiated rulemaking committee itself by consensus as essential to the success of the negotiated rulemaking process.

009.01D Persons selected by the negotiated rulemaking committee by consensus upon committee review of a petition for membership or nomination as set out in subsection 009.02 below.

009.02 Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person on a negotiated rulemaking committee may petition for or nominate another person for membership on the negotiated rulemaking committee.

009.02A Each petition or nomination for committee membership shall be in writing and be submitted to the negotiated rulemaking committee by delivering or mailing the same to the Agency. All such petitions or nominations shall include:

009.02A1 Identification of the applicable negotiated rulemaking proceeding.

009.02A2 The name of the petitioner or nominee, and a description of the interests the person represents.

009.02A3 Evidence that the petitioner or nominee is authorized to represent parties related to the interests the person proposes to represent.

009.02A4 A written commitment that the petitioner or nominee will actively participate in good faith in the development of the rule under consideration.

009.02A5 An explanation of reasons that the persons already on the negotiated rulemaking committee do not adequately represent the interests of the person submitting the petition or nomination.

009.02B Persons wishing to file such a petition for membership or nomination to a negotiated rulemaking committee may use the form attached hereto as Attachment 3. Attachment 3 is made a part of these regulations by reference. Persons wishing to file such a petition for membership or nomination to a negotiated rulemaking committee may also do so by letter, provided that the letter contains the information set forth above.

009.02C Upon receiving a petition for membership on or nomination to a particular negotiated rulemaking committee, the committee in question shall decide, by consensus at its next meeting, whether or not to expand its membership.

010 Negotiated rulemaking committee; operation . A negotiated rulemaking committee established under these rules shall consider the matter proposed by the Board for consideration and shall attempt to reach consensus concerning a proposed rule and any other matter the committee determines is relevant to the proposed rule.

010.01 A negotiated rulemaking committee may adopt procedures or ground rules for the operation of the committee consistent with these rules and the pertinent Nebraska statutes.

010.02 The Agency shall provide appropriate administrative support to a negotiated rulemaking committee including technical assistance and support.

010.03 The person representing the Agency on a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members of the committee and shall be authorized to fully represent the Agency in the discussions and negotiations of the committee.

010.04 If a negotiated rule making committee achieves consensus on a proposed rule at the conclusion of the negotiations, the committee shall transmit to the Board a report containing the proposed rule.

010.05 If a negotiated rulemaking committee does not reach a consensus on the proposed rule, the committee shall transmit to the Board a report specifying areas in which the committee reached consensus and the issues that remain unresolved. The committee may include in the report any other information, recommendations, or materials that the committee considers appropriate. Any member of the committee may include as an addendum to the report additional information, recommendations or materials.

011 Facilitators; selection; duties . A facilitator shall be selected to assist a negotiated rulemaking committee with its duties.

011.01 The Agency may nominate a person to serve as a facilitator for the negotiations of a negotiated rulemaking committee, subject to the approval of the committee by consensus. If the committee does not approve the Agency's nomination for facilitator, the Agency shall submit a substitute nomination. If the committee does not approve the substitute nomination of the Agency for facilitator, the committee shall select, by consensus, a person to serve as facilitator.

011.02 The Agency may employ or contract for an organization or an individual to serve as a facilitator for a negotiated rulemaking committee, or the Agency may use the services of a state employee to act as a facilitator. A person designated by the Agency to represent it on a negotiated rulemaking committee with respect to substantive issues may not serve as the facilitator. A facilitator shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The Agency shall determine whether a person under consideration for facilitator has such an interest. A person disqualified under this criterion shall be dropped from further consideration.

011.03 A facilitator approved or selected by a committee shall:

011.03A Preside at the meetings of the committee in an impartial manner.

011.03B Impartially assist members in conducting discussions and negotiations and achieving consensus.

011.03C Manage the keeping of minutes and records.

012 Negotiated rulemaking committee; expenses . Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation. However, the Agency may pay for a committee member's actual and necessary expenses incurred in serving on the committee as provided in Neb. Rev. Stat. §§ 81-1174 through 81-1177 and a reasonable per diem rate of compensation if:

012.01 The committee member certifies a lack of adequate financial resources to participate on the committee using the form at Attachment 4 which is attached to these regulations and made a part of them by reference; and,

012.02 The Agency determines that the committee member's participation is necessary to assure an adequate representation of the interests of the members.

013 Grants or gifts . The Agency may accept grants or gifts from any source to fund a negotiated rulemaking process if:

013.01 Information on the name of the person giving the grant or gift and the amount of the grant or gift is available to the public.

013.02 The grant or gift is given to and accepted by the Agency without placing any condition on the membership of a committee or the outcome of the negotiated rulemaking process.

013.03 There is a consensus among the members of the negotiated rulemaking committee that the acceptance of the grant or gift will not diminish the integrity of the negotiated rulemaking process.

014 Negotiated rulemaking committee; termination . A negotiated rulemaking committee shall terminate upon the adoption of the final rule under consideration by the Board pursuant to the APA, unless the Board, after consulting the committee, or the committee itself specifies an earlier termination date.

015 Negotiated rulemaking procedure; judicial review . Any action of the Board relating to establishing, assisting or terminating a negotiated rulemaking committee under the Negotiated Rulemaking Act shall not be subject to judicial review, except that nothing in this section shall bar judicial review if such judicial review is otherwise provided by law.

History

• Effective 2012-05-20

Chapter 2 Petitioning for Rule Making

Neb. Admin. Code tit. 297, ch. 2 Petitioning for Rule Making {#sec-297-nac-2 omnilex-key=us-ne-regs-official--title-297--297 NAC 2}

TITLE 297 NEBRASKA REAL PROPERTY APPRAISER BOARD

CHAPTER 2 PETITIONING FOR RULE MAKING

001 General information .

001.01 Application of Rules. These rules are promulgated pursuant to Neb. Laws 1994, LB 446, and 53 Nebraska Administrative Code, Chapter 2.

002 Rule Making Petition .

002.01 Petition. Any person may petition the Nebraska Real Property Appraiser Board requesting the promulgation, amendment, or repeal of a rule or regulation.

002.02 Form. The petition shall:

002.02A. Be clearly designated as a petition for a rules change;

002.02B. In the case of a proposed new rule or amendment of an existing rule, shall set forth the desired rule in its entirety;

002.02C. In the case of a petition for the repeal of an existing rule, such shall be stated and the rule proposed to be repealed shall either be set forth in full or shall be referred to by Nebraska Real Property Appraiser Board rule number;

002.02D. Describe the reason for the rules change

002.02E. Include an address and telephone where the petitioner can be reached during regular work hours; and

002.02F. Be signed by:

002.02F(1). The petitioner or his or her attorney in which case the attorney shall also state his or her address and telephone number;

002.02F(2). A duly authorized officer of the petitioner, if petitioner is a corporation or other legal entity.

003 Petition Consideration and Disposition .

003.01. Within sixty (60) days after submission of a petition, the Nebraska Real Property Appraiser Board shall:

003.01A. Deny the petition in writing, stating its reasons therefor;

003.01B. Initiate rulemaking or regulation-making proceedings in accordance with the Administrative Procedure Act;

003.01C. If otherwise lawful, adopt a rule or regulation.

History

• Effective 2012-05-20

Chapter 3 Regulations and Procedures Governing Agency Declaratory Orders

Neb. Admin. Code tit. 297, ch. 3 Regulations and Procedures Governing Agency Declaratory Orders {#sec-297-nac-3 omnilex-key=us-ne-regs-official--title-297--297 NAC 3}

001 General Information

001.01 Application of these Model Rules. These rules are promulgated pursuant to Neb. Laws 1994, LB 446, and 53 Nebraska Administrative Code Chapter 3. They shall apply to all contested cases within the jurisdiction of the Appraiser Board.

001.02 Scope of this Chapter. This chapter pertains solely to the procedures to be used by any person or entity seeking issuance of a declaratory order by the Appraiser Board.

001.03 Related Regulations. In addition to this Chapter, related regulations pertaining to administrative procedures before agencies are: 53 NAC Chapter 1, Model Procedures for Negotiated Rulemaking, 53 NAC Chapter 2, Petitioning for Rulemaking, and 53 NAC Chapter 4, Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency.

002 Definitions . As used in this chapter:

002.01 Agency shall mean the Appraiser Board, and its employees, including the Director and staff.

002.02 Agency director shall mean the person appointed as Director of the Real Property Appraiser Board pursuant to §76-2224, Revised Statutes of Nebraska 1991, as amended.

002.03 Argument shall mean the oral statement of the petitioner or any other party which explains his or her view of the facts and issue to be decided, the law applicable to the question presented, and the reasoning that connects the facts and law.

002.04 Board shall mean the Real Property Appraiser Board of Nebraska.

002.05 Contested case shall mean a proceeding before the Board in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after hearing before the Board.

002.06 Declaratory order proceeding shall mean a proceeding initiated by a petitioner seeking issuance of a binding order by the Board as to the applicability of specified circumstances to a statute, rule, regulation, or order within the primary jurisdiction of the Board.

002.07 Hearing officer shall mean the person or persons conducting a declaratory order proceeding pursuant to the Administrative Procedure Act, whether designated as the presiding officer, administrative law judge, or some other title.

002.08 Intervenor(s) shall mean persons, political subdivisions, corporations, organizations, or other entities who have or claim to have any interest, legal right, duty, privilege, or immunity, which would be directly affected by the Board's issuance of a binding declaratory order.

002.09 Necessary Party shall mean a person who or an entity which has a specific interest in the applicability of the statute, rule, regulation, or order, as distinguished from a general interest such as may be the concern of the public at large. A necessary party is one which is or would be adversely affected in a legally cognizable way by the uncertainty sought to be resolved.

002.10 Parties shall mean persons, political subdivisions, corporations, organizations, or other entities subject to the jurisdiction of the Board who are involved in a declaratory order proceeding according to the procedures set forth in this chapter.

002.11 Petition shall mean the document filed in accordance with section 003 of this chapter to initiate a declaratory order proceeding.

002.12 Petitioner(s) shall mean a party or parties who have filed a petition with the Board seeking issuance of a declaratory order.

002.13 Pleading shall mean any written petition, answer, or motion used in any declaratory order proceeding before the Board as set forth in this chapter.

003 Petition for Declaratory Order .

003.01 Generally. A request for a declaratory order must be made by a petition that meets the requirements of section 003.

003.02 Who May File. Any person may petition the agency for issuance of a declaratory order as to the applicability to specified circumstances of a statute, rule, regulation, or order which is within the primary jurisdiction of the Board.

003.03 When Orders Appropriate. A declaratory order may be requested on the applicability of a statute, rule, regulation, or order enforced by the Board. “Applicability” refers to the appropriate-ness of the relation of the law to the person, property, or state of facts, or its relevance under the circumstances given. It may include such questions as whether the law applies at all, to whom it applies, when it applies, how it applies, or which law applies. Considerations as to whether issuance of a declaratory order is appropriate include:

003.03A A declaratory order may be requested only on the applicability of existing statutes and rules and regulations.

003.03B A declaratory order may be requested to obtain a determination of proposed conduct, not to obtain a determination of the effect of conduct that has already occurred.

003.03C A declaratory order is not a mechanism for review or appeal of a decision made by the Board in a contested case.

003.03D A declaratory order may not be requested to obtain a declaration by the Board that a statute or regulation is unconstitutional or that a regulation of the agency is invalid.

003.03E A declaratory order may not be issued by the Board that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.

003.04 Form of Petition. A petition for declaratory order shall be in the form of either a pleading or letter which shall contain each of the following:

003.04A A caption, which shall include:

003.04A1 The venue: BEFORE THE REAL PROPERTY APPRAISER BOARD, STATE OF NEBRASKA;

003.04A2 A heading specifying the subject matter and the name of the petitioner; and

003.04A3 The name of the pleading: PETITION FOR DECLARATORY ORDER.

003.04B The statements required in subsection 003.05 of this chapter.

003.04C The signature of the petitioner, or when represented by an attorney, the signature of the attorney.

003.04D The name and address of the petitioner, and when represented by an attorney, the name, address, telephone number, and bar number of the attorney.

003.04E Size and Paper. The petition shall be made on white, letter-sized (8-1/2" x 11") paper.

003.04F Print. The petition shall be legibly typewritten, photostatically reproduced, printed, or handwritten. If handwritten, the petition must be written in ink. Only one side of a page shall contain any writing.

003.04G Attachments. Any documents attached to a petition shall be securely fastened to the pleading and shall meet the requirements of 003.04E and 003.04F and, when possible, be reproduced on 8-1/2" x 11" paper or placed in an 8-1/2" x 11" envelope and clearly marked as an attachment to the petition.

003.05 Contents of Petition. To be considered, the petition shall include the following:

003.05A The name and address of the petitioner;

003.05B The name and address of all persons or entities, known to the petitioner, who may have a specific interest in the applicability of the statute, rule, regulation, or order or who may be adversely affected by the issue sought to be resolved by the petitioner.

003.05C The statute, rule, regulation, or order upon which the petitioner seeks issuance of a declaratory order;

003.05D A detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for issuance of a declaratory order;

003.05E All propositions of law or contentions asserted by the petitioner;

003.05F A demand for the relief to which the petitioner alleges entitlement. The petition shall state the petitioner's position as to how the Board should rule and why the Board should rule in the manner requested; and

003.05G Any documents pertinent to the petition that the petitioner wishes to be considered by the Board.

003.06 The petition shall be subscribed and verified by the petitioner. If the petitioner is a corporation, political subdivision, or other entity, then the petition shall be subscribed and verified by a duly authorized agent of the petitioning entity.

003.07 Sample Petition. The petitioner may use the sample form of a petition which is attached as "Appendix A" and incorporated within this chapter. The petitioner may also prepare a reasonable facsimile of "Appendix A" so long as the requirements of subsections 003.04, 003.05, and 003.06 of this chapter are satisfied.

003.08 Written Consents. The petitioner shall also attach to the petition any written consents obtained from any necessary party that the petition may be determined by use of a declaratory order proceeding.

004 Submission and Service of Declaratory Order Petition .

004.01 The original petition for declaratory order shall be filed with the agency director by mail or in person during the agency's normal business hours.

004.02 The petition shall be deemed as filed when it is actually received by the agency. The agency shall date stamp all petitions upon receipt.

004.03 At the same time the petition is filed with the agency, the petitioner shall serve a copy of the petition, by certified mail, return receipt requested, on all necessary parties, including all persons, political subdivisions, corporations, organizations, or other entities who are known to have or claim any interest, legal right, duty, privilege, or immunity which would be directly affected by issuance of a declaratory order in this matter by the Board.

005 Disposition of the Petition .

005.01 Generally. Upon the filing of a petition, the agency director, acting on behalf of the Board, may consider the petition, refer the petition to the agency attorney, and recommend a decision to the Board. In reviewing the petition, the Board may, in its discretion, do one or more of the following:

005.01A Require that additional information be submitted before the petition will be further considered;

005.01B Require a petitioner to provide notice to persons or entities who may be necessary parties and other persons that a request for a declaratory order has been filed with the agency;

005.01C On behalf of the Board schedule a date, time, and location at which the petitioner and any other parties to the proceeding may make an oral presentation on the petition as set forth in subsection 005.01 of this Chapter;

005.01D Consider the petition and any attachments without oral presentation.

Within thirty (30) days after the petition is filed, the Board shall, in writing:

005.02A Issue an order declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or

005.02B Agree to issue an order by a specified time declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or

005.02C Set the matter for specified proceedings as set forth in subsection 005.01 of this Chapter; or

005.02D Decline to issue a declaratory ruling, stating the reasons for the Board's decision.

005.03 Notwithstanding section 005.02 of this rule, the Board may determine at any time that it will not issue a declaratory order if issuance of an order under the circumstances would be contrary to any provisions of section 009 of this Chapter. The Board shall notify the petitioner and, if applicable, any intervenor or necessary party in writing when the Board determines not to issue a declaratory order.

006 Intervention in Declaratory Order Proceeding .

006.01 Intervention by any person or entity in a declaratory order proceeding shall be allowed when the following requirements are met:

006.01A. A petition for intervention must be submitted in writing to the agency. Copies must be mailed by the petitioner for intervention to all parties to the proceeding.

006.01B. The contents of the petition must be as specified in 006.02.

006.01C. The Board must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.

006.01D. The petition in intervention must be filed with the Agency and copies mailed to all parties named in any notice of hearing at least five days before the hearing.

006.02 Contents of Petition. The petition for intervention shall be submitted to the agency, in writing, on 8 ½” x 11” white paper, and shall include each of the following:

006.02A The statute, regulation, rule, or order that may apply to or effect the person, property, entity, or facts at issue in the matter;

006.02B A statement of facts sufficient to show the intervenor’s interest;

006.02C A statement of facts which demonstrates that the intervenor’s legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the intervenor may intervene pursuant to a provision of law;

006.02D All propositions of law or contentions asserted by the intervenor; and

006.02E A statement of the specific relief requested by the intervenor.

006.03 The agency may, at its discretion, invite any person or entity to file a petition for intervention.

006.04 The Board shall grant a petition for intervention if the requirements of § 006.01 and § 006.02 are satisfied.

006.05 The Board shall deny a petition for intervention upon determining that the interests of justice or the orderly and prompt conduct of the proceedings would be impaired by allowing the intervention.

006.06 The Board's decision to grant or deny a petition for intervention shall be in writing and served upon all parties.

007 Declaratory Order Proceedings .

007.01 Oral Argument, When. Oral argument shall be had only on specific order of the Board, the Director, or the designated hearing officer. A petitioner, intervenor, necessary party, or the Board may submit a motion for oral argument to the agency director. If opportunity for oral argument is granted, then argument shall be scheduled to be conducted not more than forty-five (45) days after filing of the petition. Petitioner and all other parties or, when represented, their attorneys, shall be served by the agency with a notice of the date, time, and location for oral argument. The agency shall provide each of the parties with notice of the proceeding not less than seven (7) days in advance of the scheduled date. Service shall be made by certified mail, return receipt requested.

007.02 Oral Argument, Procedure. Oral argument will be made before a hearing officer or the Board or any representative of the agency who is authorized to render or to recommend a decision to the Board. The hearing officer, the Board, or agency representative shall be in control of the proceeding and shall:

007.02A Identify the proceeding and introduce himself or herself and identify each party for the record;

007.02B Hear the oral argument of the petitioner, intervenor, or necessary parties;

007.02C Close the proceedings.

007.03 At the declaratory order proceeding, agency staff, including legal counsel, shall have the right to present oral argument.

007.04 The hearing officer or representative may impose reasonable time limits on the amount of time allocated to each party for oral argument.

007.05 The parties and agency staff, including legal counsel, may file briefs in support of their respective positions. The hearing officer or Board may fix the time and order of filing briefs and may direct that briefs be submitted prior to the date of oral argument.

007.06 The oral argument may be conducted either in person or by telephone conference call.

008 Issuance of Declaratory Order .

008.01 The Board shall issue its declaratory order within sixty (60) days of the date on which the petition was filed.

008.02 The declaratory order shall be in writing and shall include the following:

008.02A The names of all parties to the proceeding upon which the order is based;

008.02B The facts upon which the order is based;

008.02C The statute, regulation, rule, or order at issue in the matter;

008.02D The Board's conclusion as to the applicability of the statute, regulation, rule, or order to the facts;

008.02E The Board's conclusion as to the legal effect or result of applying the statute, regulation, rule, or order to the facts; and

008.02F The reasons relied upon by the Board to support its conclusions.

008.03 A copy of the declaratory order shall be served upon each party by certified mail, return receipt requested.

008.04 Effect of Declaratory Order. A declaratory order shall have the same status and binding effect as any other order issued in a contested case.

008.05 No Response within 60 Days. If the Board has not issued a declaratory order within sixty (60) days after the petition has been filed, then the petition shall be deemed to have been denied by the agency.

009 Circumstances Under Which Board will not Issue Declaratory Orders .

009.01 Grounds upon which the Board shall refuse to issue a declaratory order include, but are not limited to, the following:

009.01A The petition requests a declaratory order on a matter that is outside the scope of authority of the Board;

009.01B The petition requests review or appeal of a decision made by the Board in a contested case;

009.01C The petition requests a declaratory order on the effect of past conduct;

009.01D An investigation for purposes of a formal adjudication, a contested case, or a petition to issue, amend, or repeal regulations is pending before the Board involving the petitioner on substantially the same or similar facts or issues raised in the petition;

009.01E The petition seeks a declaration that a statute or rule or regulation is unconstitutional or invalid;

009.01F The issue raised in the petition has been settled by a change in circumstances or other means so as to render moot the need for a declaratory order;

009.01G An order would substantially prejudice the rights of a person or entity who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding;

009.01H An order would not resolve the controversy or uncertainty; or

009.01I The question posed or facts presented are insufficiently specific, overly broad, or are otherwise inappropriate as a basis upon which to decide the matter.

009.02 Grounds upon which the Board may determine to refuse to issue a declaratory order include, but are not limited to, the following:

009.02A Refusal is necessary to assure adequate allocation of Board resources are available for issuing rulings on petitions raising questions of greater urgency or significance;

009.02B The question presented is of such complexity that the Board has had insufficient opportunity or resources to develop a fully matured ruling;

009.02C The petitioner fails to submit any additional information requested by the Board, hearing officer, or agency director or submits such information after the date established in the request;

010 Appeal . A declaratory order is subject to review in the manner provided for review of contested cases by the Administrative Procedure Act, Neb. Rev. Stat. § 84-901 - § 84-920. Specific procedures for appeal are set forth in Neb. Rev. Stat. § 84-917.

History

• Effective 2012-05-20

Chapter 4 Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency

Neb. Admin. Code tit. 297, ch. 4 Rules of Practice and Procedure for Hearings in Contested Cases Before an Agency {#sec-297-nac-4 omnilex-key=us-ne-regs-official--title-297--297 NAC 4}

Application of Model Rules . Pursuant to Neb. Laws 1994, LB446, the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. These regulations are adopted from model rules of the Attorney General promulgated pursuant to Neb. Rev. Stat. §§84-913 and 84-909.01, as practicable under the circumstances, and apply to all contested cases before the Nebraska Real Property Appraiser Board except to the extent that statutes or regulations require a different procedure or standard in a particular case. These regulations shall not create a right of appeal or right to contest a Board action which is not specifically authorized by statute or these regulations.

001. Definitions . The following definitions shall apply as used throughout this Chapter:

001.01. Agency shall mean the Nebraska Real Property Appraiser Board.

001.02. Contested case shall mean a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.

001.03. Ex parte communication shall mean an oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. Ex parte communication shall not include:

001.03A. Communications which do not pertain to the merits of a contested case;

001.03B. Communications required for the disposition of ex parte matters as authorized by law;

001.02C. Communications in a ratemaking or rulemaking proceeding; and

001.02D. Communications to which all parties have given consent.

001.04. Hearing officer shall mean the person or persons conducting a hearing, contested case, or other proceeding pursuant to the Administrative Procedure Act, whether designated as the presiding officer, administrative law judge, or some other title designation.

001.05. Party means the person by or against whom a contested case is brought or a person allowed to intervene in a contested case.

001.06. Petition means the initial document filed by or with an agency that sets forth a claim and request for agency action.

002. Prohibitions against ex parte communications .

002.01. Prohibitions; when applicable. The prohibitions found in this section shall apply beginning at the time notice for hearing is given.

002.02. Prohibitions; to whom applicable.

002.02A. Parties and public. 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 decision making process of the contested case.

002.02B. Persons in decision making roles. No hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decision making 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.

002.02C. Investigators. 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 decision making process of the contested case.

002.03. Disclosure of contacts. The hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication set forth in subsections 002.02A through 002.02C shall file in the record of the contested case:

002.03A. All such written communications;

002.03B. Memoranda stating the substance of all such oral communications; and

002.03C. All written responses and memoranda stating the substance of all oral responses to all the ex parte communications.

002.03D. 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.

002.03E. Filing and notice of filing provided under subsection 002.03D shall not be considered on the record and reasonable notice for purposes of the definition of ex parte communication.

003. Intervention in a contested case .

003.01. Intervention in a contested case shall be allowed when the following requirements are met:

003.01A. A petition for intervention must be submitted in writing to the hearing officer or designee at least five days before the hearing. Copies must be mailed by the petitioner for intervention to all parties named in the hearing officer’s notice of the hearing;

003.01B. The petition must state facts demonstrating that the petitioner’s legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and

003.01C. The hearing officer or designee must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.

003.02. The hearing officer or designee may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.

003.03. If a petitioner qualifies for intervention, the hearing officer or designee may impose conditions upon the intervenor’s participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Those conditions may include:

003.03A. Limiting the intervenor’s participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;

003.03B. Limiting the intervenor’ss use of discovery, cross examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and

003.03C. Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings.

003.04. The hearing officer or designee, at least 24 hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order.

003.04A. The hearing officer or designee may modify the order at any time, stating the reasons for the modification.

003.04B. The hearing officer or designee shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.

004. Commencement of a contested case .

004.01. The contested case begins with the filing of a petition and request for hearing, if applicable, with the agency. The petition is the initial document filed by or with an agency that sets forth a claim and request for agency action.

004.02. The parties to a contested case shall be the petitioner or person by whom a contested case is brought and the respondent or person against whom a contested case is brought.

004.03. A party may appear on his or her own behalf in a contested case proceeding or may be represented by an attorney or other representative as permitted by law.

004.04. The pleadings in a contested case may include a petition, answer, reply, notice, motion, stipulation, objection or order or other formal written document filed in a proceeding before an agency. Any pleading filed in a contested case shall meet the following requirements:

004.04A. The pleading shall contain a heading specifying the name of the agency and the title or nature of the pleading, shall state material factual allegations and state concisely the action the agency is being requested to take, shall contain the name and address of the petitioner, and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of that attorney.

004.04A1. Attorneys shall also include their address, telephone number and bar number.

004.04A2. The initial petition shall also contain the name and address of the respondent.

004.04B. All pleadings shall be made on white, lettersized (8½ x 11) paper and shall be legibly typewritten, photostatically reproduced, printed or handwritten. If handwritten, a pleading must be written in ink.

004.05. All pleadings shall be filed with the agency at its official office. Filing may be accomplished by personal delivery or mail and will be received during regular office hours of the agency.

004.06. The agency shall serve a copy of the petition on each respondent listed in the petition personally or by first class or certified mail. Written proof of such service shall be filed with the agency. Each respondent who chooses to file a responsive pleading must do so within 20 days from the date of personal service or the date of agency mailing of the petition.

004.07. All pleadings subsequent to the initial petition shall be served by the party filing such pleading upon all attorneys of record or other representatives of record and upon all unrepresented parties. Service shall be made personally or by first-class or certified mail. Written proof of such service shall be filed with the agency.

004.08. Unless state law provides that a hearing is not required, a hearing date shall be set by the agency in accordance with statutory requirements. A written notice of the time and place of hearing and the name of the hearing officer, if known, shall be served by the agency upon all attorneys of record or other representatives of record and upon all unrepresented parties. The notice must include a proof of such service and will be filed with the agency.

004.09. In computing time prescribed or allowed by this chapter of these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or state holiday, the period shall include the next working day.

005. Hearing officer; criteria .

005.01. The agency is authorized by law to delegate to a hearing officer other than the agency head or governing board the functions of conducting a prehearing conference and/or a hearing and submitting a recommended decision to the agency.

005.02. A person who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or assist or advise a hearing officer in the same proceeding except as provided in subsection 005.04.

005.03. A person who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or advise a hearing officer in the same proceeding except as provided in subsection 005.04.

005.04. If all parties consent, a person who has served as, or who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may assist a hearing officer in the preparation of orders.

005.05. A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as hearing officer or assist or advise a hearing officer in the same proceeding.

005.06. A person may serve as hearing officer at successive stages of the same contested case.

006. Prehearing Procedures .

006.01. Prehearing conferences and orders. A hearing officer designated to conduct a hearing may determine, whether a prehearing conference will be conducted. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.

006.01A. If a prehearing conference is conducted:

006.01A1. The hearing officer shall promptly notify the agency of the determination that a prehearing conference will be conducted. The agency may assign another hearing officer for the prehearing conference; and

006.01A2. The hearing officer for the prehearing conference shall set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The agency shall give notice to other persons entitled to notice.

006.01A3. The notice referred to in subsection 006.01A2 shall include the following:

006.01A3(a). The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;

006.01A3(b). The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the agency;

006.01A3(c). The official file or other reference number, the name of the proceeding, and a general description of the subject matter;

006.01A3(d). A statement of the time, place, and nature of the prehearing conference;

006.01A3(e). A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

006.01A3(f). The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;

006.01A3(g). A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act; and

006.01A3(h). Any other matters that the hearing officer considers desirable to expedite the proceedings.

006.01B. The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matter as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.

006.01C. The hearing officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.

006.02. Discovery in contested cases.

006.02A. The hearing officer or a designee, at the request of any party or upon the hearing officer’s own motion, may 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.

006.02B. Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall:

006.02B1. Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition;

006.02B2. State the reasons supporting the motion;

006.02B3. Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and

006.02B4. Be filed with the agency. The moving party must serve copies of all such motions to all parties to the contested case.

006.02C. Other than is provided in subsection 006.02B4 above, discovery materials need not be filed with the agency.

006.03. Continuances. The hearing officer may, in his or her discretion, grant extensions of time or continuances of hearings upon the hearing officer’s own motion or at the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties.

006.03A. Good cause. Good cause for an extension of time or continuance may include, but is not limited to, the following:

006.03A1. Illness of the party, legal counsel or witness;

006.03A2. A change in legal representation; or

006.03A3. Settlement negotiations are underway.

006.04. Amendments.

006.04A. A petition may be amended at any time before an answer is filed or is due if notice is given to the respondent or his or her attorney. In all other cases, a petitioner must request permission to amend from the hearing officer.

006.04B. A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense.

006.05. Informal Disposition. Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

007. Conducting a contested case hearing .

007.01. Order. At the discretion of the hearing officer, the hearing may be conducted in the following order:

007.01A. The hearing is called to order by the hearing officer. Any preliminary motions, stipulations or agreed orders are entertained.

007.01B. Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

007.01C. Presentation of evidence.

007.01C1. Evidence will be received in the following order:

007.01C1(a). Evidence is presented by the petitioner;

007.01C1(b). Evidence is presented by the respondent;

007.01C1(c). Rebuttal evidence is presented by the petitioner; and

007.01C1(d). Surrebuttal evidence is presented by the respondent.

007.01C2. With regard to each witness who testifies, the following examination may be conducted:

007.01C2(a). Direct examination conducted by the party who calls the witness;

007.01C2(b). Cross-examination by the opposing party;

007.01C2(c). Redirect examination by the party who called the witness; and

007.01C2(d). Recross-examination by the opposing party.

007.01D. After the evidence is presented, each party may have opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing arguments.

007.02. Evidence.

007.02A. In contested cases an agency or hearing officer 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 may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.

007.02B. 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 therefore. 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.

007.02C. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

007.02D. 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.

007.02E. A hearing officer or designee may administer oaths and issue subpoenas 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.

007.02F. An agency shall give effect to the rules of privilege recognized by law.

007.02G. 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.

007.02G1. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

007.02G2. Parties shall be afforded an opportunity to contest facts so noticed.

007.02G3. The record shall contain a written record of everything officially noticed.

007.02H. An agency may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

007.03. Conducting the hearing by electronic means. The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.

007.04. Official record.

007.04A. The agency shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the agency upon request and tender of the cost of preparation.

007.04B. An agency shall maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order.

007.04C. The agency record shall consist only of the following:

007.04C1. Notices of all proceedings;

007.04C2. Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;

007.04C3. The record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and

007.04C4. The final order.

007.04D. As provided in 297 NAC 4 Section 002.03 the hearing officer or agency head, or employee who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.

007.04E. Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the agency record shall constitute the exclusive basis for agency action in contested cases under the act and for judicial review thereof.

007.05. Costs. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.

008 . Decision and order in a contested case.

008.01. Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law.

008.02. The decision and order should include:

008.02A. The name of the agency and name of the proceeding;

008.02B. The time and place of the hearing;

008.02C. The names of all parties or their attorneys who entered an appearance at the hearing;

008.02D. The findings of fact consisting of a concise statement of the conclusions upon each contested issue of fact;

008.02E. The conclusions of law consisting of the applications of the controlling law to the facts found and the legal results arising therefrom; and

008.02F. The order consisting of the action taken by the agency as a result of the facts found and the legal conclusions arising therefrom.

008.03. Parties to the proceeding shall be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed upon request to each party or his or her attorney of record.

009. Appeals .

009.01. Any person aggrieved by a final decision in a contested case is entitled to judicial review under the Administrative Procedure Act or to resort to such other means of review as may be provided by law.

009.02. Parties desiring to appeal an agency decision must file a petition for review in the district court of the county where the agency action is taken within thirty days after the service of the final decision by the agency. The thirty day period for appeal commences to run from the date of mailing of the notice of order and decision to the parties or their attorneys of record. Service of the petition and summons must be made in accordance with Nebraska law.

009.03. Unless otherwise provided by statute, the procedures of Neb. Rev. Stat. § 84-917 govern the procedure for taking an appeal.

History

• Effective 2012-05-20