92 Neb. Admin. Code, ch. 61, § 007

Current through September 17, 2024

Section 92-61-007 - 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 the Board 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 the Board, from which a decision may be appealed to the courts of this state, may request that the Board be bound by the rules of evidence applicable in district court by delivering to the Board 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 Board 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. he Board shall give effect to the rules of privilege recognized by law

007.02G. The Board 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 the Board.

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. The Board 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

00704A The Board 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 tender of transcript and record shall be furnished by the Board upon request and the cost of preparation

00704B The Board 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

00704C The Board record shall consist only of the following:

00704C1 Notices of all proceedings;

00704C2 Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Board pertaining to the contested case;

00704C3 The record of the hearing before the Board, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the Board during the proceeding, and all proffers of proof and objections and rulings thereon; and

00704C4 The final order

00704D As provided in 92 NAC 61 Section 00203 the hearing officer, Board members, Commissioner, 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 as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case

00704E Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Board record shall constitute the exclusive basis for Board 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

92 Neb. Admin. Code, ch. 61, § 007