A. Litigation Worthy: Upon notification by the human rights coordinator that conciliation has been bypassed or unsuccessful, the city attorney shall form an opinion as to whether the case is litigation worthy and make a recommendation to two (2) members of the commission whether the case should be dismissed or proceed to public hearing. If both members of the commission wish to proceed contrary to the recommendation of the city attorney, they may authorize the human rights coordinator to do so. Otherwise, the human rights coordinator shall dismiss the case or proceed to public hearing in accordance with the recommendation of the city attorney.
B. Representative Of Commission: The commission's case in support of the complaint shall be presented by the city attorney or designee.
C. Statement Of Charges:
1. When a complaint proceeds to public hearing, the human rights coordinator shall prepare a written statement of charges in support of the complaint, which shall contain:
a. An allegation that the respondent is a proper respondent within the meaning of and subject to provisions of this title.
b. A factual allegation or allegations of an unfair or discriminatory practice or practices, substantially as uncovered in the investigation, stated in the complaint (including amendments thereto), or stated in the probable cause decision.
2. A statement of charges is sufficient if it:
a. Names the respondents and complainants;
b. States the section(s) of the code alleged to be violated; and
c. Incorporates by reference the complaint and any amendments to the complaint.
3. The statement of charges shall also specifically identify all allegations, if any, in the complaint, as amended, which:
a. Have been closed by other than a probable cause finding; or
b. The commission has elected not to prosecute despite a probable cause finding.
4. None of the allegations identified pursuant to subsection C3 of this section shall be considered as a claim of discrimination in the contested case proceeding, but evidence on such allegations may be considered when relevant to other allegations of discrimination or as background evidence.
D. Scheduling Conference: The administrative law judge may set the matter for a scheduling conference in order that the parties, including the commission, and the presiding officer may arrive at a mutually agreed date for the public hearing.
E. Notice Of Hearing: Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery shall be executed by any of the following means: certified mail, with return receipt requested, personal service as provided in the Iowa rules of civil procedure, first class mail, or publication as provided by the Iowa rules of civil procedure to all interested parties or their attorneys at least thirty (30) days before the date of the hearing. Certified mail return receipts, returns of service, or similar evidence of service shall be filed with the presiding officer. The notice shall include:
1. The time and place of hearing;
2. The nature of the hearing, the legal authority and jurisdiction under which the hearing is being held;
3. A short and plain statement of the matters asserted. This requirement may be satisfied by a statement of the issues as described by the statement of charges or an incorporation of the attached statement of charges;
4. The reference to the sections of this title involved;
5. Identification of all parties including the name, address and telephone number of the person who will act as advocate for the commission and of parties' counsel where known; and
6. Identification of the administrative law judge.
F. Answer To Notice Of Hearing: The respondent is encouraged to file an answer to the allegation contained within the notice of hearing within twenty (20) days of the service of the notice of hearing. Answers are encouraged as a means of sharpening the issues and preserving claimed error.
G. Default:
1. If a party fails to appear or participate in a contested case proceeding after proper service of notice, the administrative law judge may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.
2. Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within fifteen (15) days after the date of notification of mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated.
3. "Good cause" for purposes of this rule shall have the same meaning as "good cause" for setting aside a default judgment under Iowa rules of civil procedure 1.977.
H. Filing And Service Of Documents: After the notice of hearing, all pleadings, motions, documents or other papers shall be filed with the administrative law judge with a copy to parties of record, with separate copies to the city attorney. Except as provided by these rules, the Iowa rules of civil procedure pertaining to discovery, or other laws, all pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the administrative law judge.
I. Discovery:
1. Discovery procedures applicable in civil actions as set forth in the Iowa rules of civil procedure, are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the administrative law judge, time periods for compliance with discovery shall be as provided in the Iowa rules of civil procedure.
2. When discovery of information from the complainant is sought, discovery should be made upon the complainant with a copy thereof provided to the city attorney. When discovery of information from the commission is sought, discovery should be made upon the commission with a copy thereof provided to the complainant or the complainant's representative.
J. Subpoenas:
1. A commission subpoena shall be issued to a party upon request. Such a request should be in writing, but oral requests may be honored by the administrative law judge. The request shall include the name, address, and telephone number of the requesting party.
2. Parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.
K. Motions:
1. No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought. Any motion for summary judgment shall comply with the Iowa rules of civil procedure. Motions made during the hearing may be stated orally upon the record.
2. Any party may file a written response to a motion within fourteen (14) days after the motion is served, unless the time period is extended or shortened by the administrative law judge.
3. Motions for summary judgment shall comply with the requirements of the Iowa rules of civil procedure 1.981.
L. Prehearing Conferences: Upon the administrative law judge's own motion or the motion of the parties, the administrative law judge may direct the parties or their counsel to meet with the administrative law judge for a conference to consider:
1. Simplification of issues;
2. Necessity or desirability of amendments to pleadings for purposes of clarification, simplification, or limitation;
3. Stipulations, admissions of fact and of contents and authenticity of documents;
4. Limitation of number of witnesses;
5. Scheduling dates for the exchange of witness lists and proposed exhibits;
6. Identifying matters which the parties intend to request be officially noticed; and
7. Such other matters, including discovery matters, as may tend to expedite the disposition of the proceedings.
M. Continuances: Unless otherwise provided, applications for continuances shall be made to the administrative law judge.
N. Disqualification: A person shall not be appointed as an administrative law judge and an administrative law judge shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:
1. Has a personal bias or prejudice concerning a party or a representative of a party;
2. Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;
3. Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually contested case or controversy involving the same parties;
4. Has acted as counsel to any person who is a private party to that proceeding within the past two (2) years, unless all parties agree to the administrative law judge;
5. Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;
6. Has a spouse or relative within the third degree of relationship that: a) is a party to the case, or an officer, director or trustee of a party; b) is a lawyer in the case; c) is known to have an interest that could be substantially affected by the outcome of the case; or d) is likely to be a material witness in the case; or
7. Has any other legally sufficient cause to withdraw from participation in the decision making in that case.
O. Ex Parte Communication: Unless required for the disposition of ex parte matters specifically authorized by this title or the Iowa rules of civil procedure, following issuance of the notice of hearing, there shall be no communication, directly or indirectly, between the administrative law judge and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate.
P. Powers Of Administrative Law Judge: The administrative law judge who presides at the hearing shall have all powers necessary to the conduct of a fair and impartial hearing including, but not limited to, the power to:
1. Conduct formal hearing in accordance with the provisions of this title;
2. Administer oaths and examine witnesses;
3. Compel production of documents and appearance of witnesses in control of the parties;
4. Issue subpoenas;
5. Issue decisions and orders;
6. Rule on motions, and other procedural items or matters;
7. Require the submission of briefs;
8. Issue such orders and rulings as will ensure the orderly conduct of the proceedings;
9. Receive, rule on, exclude or limit evidence and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious;
10. Maintain the decorum of the hearing including the power to refuse to admit or to expel anyone whose conduct is disorderly;
11. Take any action authorized by these rules; and
12. Impose appropriate sanctions against any party or person failing to obey an order.
Q. Hearing Procedures:
1. Objections: All objections shall be timely made and stated in the record. Any objection not duly made before the administrative law judge shall be deemed waived.
2. Representation Of Parties: Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case.
3. Rights Of Parties: Subject to terms and conditions prescribed by the administrative law judge, parties have the right to introduce evidence on issues of material fact, cross examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.
4. Sequestration Of Witnesses: At the request of a party or sua sponte, the administrative law judge may order witnesses sequestered so they cannot hear the testimony of other witnesses.
5. Contents Of Record: The record in a contested case before the administrative law judge shall include:
a. All pleadings, motions, and rulings.
b. All evidence received or considered and all other submissions.
c. A statement of matters officially noticed.
d. All questions and offers of proof, objections, and rulings thereon.
e. All proposed findings and exceptions.
f. Any decision, opinion, or report by the administrative law judge at the hearing. Deliberations of the commission when deciding whether to adopt a proposed decision are not part of the record unless expressly made part of the record by order of the commission or the administrative law judge.
R. Evidence:
1. The administrative law judge shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.
2. Stipulation of facts is encouraged.
3. Evidence in the proceeding shall be confined to the issues as to which the parties receive notice prior to the hearing unless the parties waive their right to such notice by express or implied waiver, or the administrative law judge determines that good cause justifies their expansion. (Ord. 03-4105, 12-16-2003; amd. Ord. 15-4650, 12-15-2015)
4. With the exception of hearings regarding housing, the rules of evidence do not apply in a contested case hearing. Findings shall be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, and may be based upon such evidence even if it would be inadmissible in a jury trial. In a hearing concerning housing, the federal rules of evidence shall apply. The administrative law judge shall give effect to the rules of privilege recognized by law. (Ord. 15-4650, 12-15-2015)
5. No evidence shall be received at any hearing concerning offers or counter offers of adjustment during efforts to conciliate or settle an alleged unfair or discriminatory practice.
6. The burden of proof shall be by a preponderance of evidence.
S. Evidence Of Past Sexual Practices:
1. Discovery: In a contested case alleging conduct which constitutes sexual harassment, a party seeking discovery of information concerning the complainant's sexual conduct with persons other than the person who committed the alleged act of sexual harassment must establish specific facts showing good cause for discovery, and that the information sought is relevant to the subject matter of the action, and reasonably calculated to lead to the discovery of admissible evidence.
2. Evidence: In a contested case against a respondent who is accused of sexual harassment, or whose agent or employee is accused of sexual harassment, evidence concerning the past sexual behavior of the alleged victim is not admissible.
T. Cost Of Copies Of Record: Upon request by a party the commission shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record shall be paid by the requesting party.
U. Posthearing Briefs:
1. Submission Of Posthearing Briefs: The administrative law judge may fix times for submission of posthearing briefs. Unless otherwise ordered, such briefs shall be filed simultaneously by all parties and there shall be no page limit nor any other formal requirements.
2. Reply Briefs: If simultaneous briefs are filed, then any party may file a reply brief within ten (10) days after service of the brief to which the reply is made.
V. Requests To Present Additional Evidence:
1. In General: A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence.
2. Filing Request: If a request to present additional evidence is made after the issuance of the proposed decision, then the request must be filed with the appeal or, by a nonappealing party, within fourteen (14) days after the service of the appeal. If the commission grants the motion to present additional evidence, the commission shall remand the case to the administrative law judge for the taking of the additional evidence and any appropriate modification of the proposed order.
W. Proposed Decision: After a review of the transcript, the evidence, and the briefs, the administrative law judge shall set forth, in writing, findings of fact, conclusions of law, and a proposed decision and order. The proposed decision becomes the final decision of the commission without further proceedings unless there is an appeal to, or review on motion of, the commission within thirty (30) days.
X. Review Of Proposed Decision On Appeal To Commission:
1. Appeal By Party: Any adversely affected party may appeal a proposed decision to the commission within thirty (30) days after issuance of the proposed decision.
2. Review: The commission may initiate review of a proposed decision on its own motion at any time within thirty (30) days following the issuance of such a decision.
3. Notice Of Appeal: An appeal of a proposed decision is initiated by filing a timely notice of appeal with the commission. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify:
a. The parties initiating the appeal;
b. The proposed decision or order appealed from;
c. The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;
d. The relief sought; and
e. The grounds for relief.
4. Oral Argument: All parties or their attorneys shall be allowed ten (10) minutes to present oral argument to the commission whenever the commission reviews a proposed decision pursuant to this rule. The commission may, in its discretion, allow oral argument to continue longer.
5. Briefs And Arguments: Unless otherwise ordered, within twenty (20) days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within ten (10) days thereafter, any party may file a responsive brief. The commission may shorten or extend the briefing period as appropriate.
Y. Scope Of Review By Commission:
1. Whenever the commission reviews a proposed decision, it has all the power it would have in initially making the final decision. The commission may adopt, modify, or reject the administrative law judge's proposed decision or it may remand the case to the administrative law judge for the taking of additional evidence and the making of any further proposed findings of fact, conclusions of law, or decision that it deems necessary.
2. Whenever the commission reviews a proposed decision, it shall consider only those issues actually presented to the administrative law judge unless the issue was one which either:
a. Was raised prior to the proposed decision by a party, but not ruled upon; or
b. Was discussed in the proposed decision, but not argued on brief by the parties.
Z. Intervention:
1. Motion: A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within fourteen (14) days of service of the motion to intervene unless the time period is extended or shortened by the administrative law judge.
2. Grounds For Intervention: The movant shall demonstrate that: a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and c) the interests of the movant are not adequately represented by existing parties.
3. Effect Of Intervention: A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor's participation in the proceeding.
AA. Awards Of Attorney Fees:
1. In any final decision in which it is determined that the complainant is entitled to an award of attorney fees, but the actual amount has not yet been determined, there is, by operation of this provision, an express retention of jurisdiction of the case by the commission in order to determine the actual amount of attorney fees to which the party is entitled and to enter a subsequent order awarding those fees, regardless of whether or not such retention of jurisdiction is expressed in the final decision. In such case, the decision is final in all other respects except the determination of the amount of the attorney fees.
2. If the amount of attorney fees is not stipulated to by the parties, the administrative law judge shall schedule a hearing on the issue of the amount of the attorney fees. The administrative law judge's decision is a proposed decision, and either party may appeal as provided in subsections V through X of this section.
BB. Waiver, Modification Of Rules:
1. Upon notice to all parties, the administrative law judge may, with respect to matters pending, modify or waive any rule herein upon a determination that no party will be prejudiced and that the ends of justice will be served.
2. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the administrative law judge, in the discretion of the presiding officer, may refuse to give effect to such a waiver when the administrative law judge deems the waiver to be inconsistent with the public interest.
CC. Application For Rehearing:
1. By Whom Filed: Any party to a contested case proceeding may file an application for rehearing from a final order.
2. Content Of Application: The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the decision on the existing record and whether the applicant requests an opportunity to submit additional evidence.
3. Time Of Filing: The application shall be filed with the commission within twenty (20) days after the issuance of the final decision.
4. Notice To Other Parties: A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein.
5. Disposition: Any application for a rehearing shall be deemed denied unless the commission grants the application within twenty (20) days after its filing. The commission shall notify the parties in writing that the application was denied.
DD. Assessment Of Costs Of Hearing:
1. General Rule: If the commission prevails in the hearing, the respondent shall pay the "contested case costs" incurred by the commission. If the respondent prevails in the hearing, the commission shall itself bear the "contested case costs" incurred by the commission.
2. Mixed Results: Where the commission is successful as to part of the remedies sought at the hearing and unsuccessful as to part of the remedies, the administrative law judge may recommend an equitable apportionment of "contested case costs" between the commission and the respondent.
3. Costs Allowable: The following "contested case costs" and no others will be assessed or apportioned:
a. The daily charge of the court reporter for attending and transcribing the hearing.
b. All mileage charges of the court reporter for traveling to and from the hearing.
c. All travel time charges of the court reporter for traveling to and from the hearing.
d. The cost of the original of the transcripts of the hearing.
e. Postage incurred by the administrative law judge in sending by mail (regular or certified) any papers which are made part of the record.
f. Expenses and fees of the administrative law judge, including, but not limited to, lodging and transportation.
EE. Appeals To District Court: Appeals to the district courts from the decision of the commission shall be perfected pursuant to the provisions of Iowa Code chapter 17A. (Ord. 03-4105, 12-16-2003; amd. Ord. 15-4650, 12-15-2015)