454 Neb. Admin. Code, ch. 7, § 014

Current through September 17, 2024

Section 454-7-014 - CONDUCTING A CONTESTED CASE HEARING

014.01.ORDER OF HEARING. At the discretion of the Hearing Officer, the hearing may be conducted in the following order:

014.01(A). The hearing is called to order by the Hearing Officer. Each party shall thereafter enter his/her/its appearance. Any preliminary motions, stipulations, or agreed upon orders may then be raised and/or resolved.

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

014.01(C).PRESENTATION OF EVIDENCE.

014.01(C)(i). Evidence will be received in the following order:

014.01(C)(i)(1). First:

(A) For cases commenced under the provisions of 002.01A or 002.01C of this rule, evidence is presented by the Applicant;

(B) For cases commenced under the provisions of 002.01B, 002.01D, or 002. 01E of this rule, evidence is presented by the Petitioner;

(C) For cases commenced under the provisions of 002.01F of this rule, evidence is presented by the Complainant;

(D) For cases commenced under the provisions of 002.01G or 002.01H of this rule, evidence is presented by the Department.

014.01(C)(i)(2). Second:

(A) For cases filed under 002.01A and 002.01B of this rule, evidence is presented by the Objector;

(B) For cases filed under 002.01C of this rule, evidence is presented by any Objector and/or the Department;

(C) For cases filed under 002.01D of this rule, evidence is presented by the Department;

(D) For cases filed under 002.01E of this rule, evidence is presented by any Respondent and/or the Department;

(E) For cases filed under 002.01F of this rule, evidence is presented by the Respondent and/or the Department;

(F) For cases filed under 002.01G or 002.01H of this rule, evidence is presented by the Respondent.

014.01(C)(ii). With regard to each witness who testifies, the following examination may be conducted:

014.01(C)(ii)(1). Direct examination conducted by the party who calls the witness;

014.01(C)(ii)(2). Cross-examination by the opposing party;

014.01(C)(ii)(3). Redirect examination by the party who called the witness; and

014.01(C)(ii)(4). Recross-examination by the opposing party.

014.01(C)(ii)(5). The Hearing Officer may question a witness at any time, and shall give an opportunity for redirect and recross after any such questioning.

014.01(D). After the evidence is presented, each party may have the 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, and parties may request that they be allowed to submit briefs in lieu of closing arguments. The hearing officer shall determine, based upon the issues raised prior to and/or during the hearing, whether briefs are to be submitted simultaneously or their sequence and timing. Any issue not raised prior to or during the hearing is waived and shall not be considered subsequent to the hearing unless allowed by the Department.

014.02.EVIDENCE.

014.02(A). In contested cases the Director 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.

014.02(B). Any party to a contested case hearing before the Department, may request that the Department be bound by the rules of evidence applicable in district court by delivering to the Department at least three days prior to the holding of the hearing a written request. 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.

014.02(C). Documentary evidence may be received in the form of copies or excerpts.

014.02(D). All evidence including records and documents in the possession of the Department 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.

014.02(E). 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.

014.02(F). The Department will abide by the privileges recognized by law.

014.02(G). The Department 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 adopted and promulgated by it.

014.02(G)(i). Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

014.02(G)(ii). Parties shall be afforded an opportunity to contest facts so noticed.

014.02(G)(iii). The record shall contain a written record of everything officially noticed.

014.02(H). The Department may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

014.03.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.

014.04.OFFICIAL RECORD.

014.04(A). The Department shall prepare an official record and transcript (also known as the Bill of Exceptions), which shall include testimony and exhibits, in each contested case.

014.04(B). The Department 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.

014.04(C). The Department record shall consist only of the following:

014.04(C)(i). Notices of all proceedings;

014.04(C)(ii). Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department pertaining to the contested case;

014.04(C)(iii). The record of the hearing before the Department, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the Department during the proceeding, and all proffers of proof and objections and rulings thereon; and

014.04(C)(iv). The final order.

014.04(D). Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Department record shall constitute the exclusive basis for Department action in contested cases under the Act and for judicial review thereof.

014.05. COSTS. If a hearing is held at the request of one or more parties, each such requesting party and each person who requests to be made a party will pay their proportional share of the cost of such transcript.

454 Neb. Admin. Code, ch. 7, § 014

Amended effective 8/19/2023