Section 641.33.11. Disqualification.

       33.11(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:

        a.           Has a personal bias or prejudice concerning a party or a representative of a party;

        b.           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 (if the licensee elects to appear before the board in the investigative process pursuant to rule 641—34.7(17A), the licensee waives this provision);

        c.           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 related contested case or controversy involving the same parties;

        d.           Has acted as counsel to any person who is a private party to that proceeding within the past two years;

        e.           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;

        f.            Has a spouse or relative within the third degree of relationship who:

       (1)             Is a party to the case, or an officer, director or trustee of a party;

       (2)             Is a lawyer in the case;

       (3)             Is known to have an interest that could be substantially affected by the outcome of the case; or

       (4)             Is likely to be a material witness in the case; or

        g.           Has any other legally sufficient cause to withdraw from participation in the decision making in that case.

       33.11(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include:

        a.           General direction and supervision of assigned investigators;

        b.           Unsolicited receipt of information which is relayed to assigned investigators;

        c.           Review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding; or

        d.           Exposure to factual information while performing other board functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case.

       33.11(3) Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17(3) and subrule 33.27(9).

       33.11(4) By electing to participate in an appearance before the board pursuant to rule 641—34.7(17A), the licensee waives any objection to a board member’s participating as a decision maker in a contested case proceeding on the grounds that the board member “personally investigated” the matter under this provision.

       33.11(5) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information from the records by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.

[ARC 9057B, IAB 9/8/10, effective 10/13/10]