011 Administrative Services Department

11—1.1(8A) Creation and mission. The department of administrative services (DAS) is established in Iowa Code chapter 8A. The department manages and coordinates the major resources of state government, including the human, financial, physical and informational resources. The department was created to implement a world–class, customer–focused organization that provides a complement of valued products and services to the internal customers of state government.

The mission of the department is to provide high–quality, affordable infrastructure products and services to its customers—Iowa state government and other government entities—in a manner that allows them to provide better service to the citizens of Iowa and to support the state of Iowa in achieving economic growth.

11—1.2(8A) Location. The department’s primary office is located in the Hoover State Office Building, Third Floor, 1305 East Walnut Street, Des Moines, Iowa 50319–0150; telephone (515)242–5120. Office hours are 8 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. The department’s Web site at www.das.iowa.gov provides information about all department organizational units and services.

1.2(1) General services enterprise location. The general services enterprise’s primary office is located in the Hoover State Office Building, Level A–South, 1305 East Walnut Street, Des Moines, Iowa 50319; telephone (515)242–5120. Office hours are 7:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.

1.2(2) Human resources enterprise location. The human resources enterprise’s primary office is located in the Hoover State Office Building, Level A, 1305 East Walnut Street, Des Moines, Iowa 50319–0150; telephone (515)281–3351. Office hours are 8 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.

1.2(3) Information technology enterprise location. The information technology enterprise is located in the Hoover State Office Building, Level B, Des Moines, Iowa 50319. The general office telephone number is (515)281–5503. Hours of operation are 8 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.

1.2(4) State accounting enterprise location. The state accounting enterprise’s primary office is located in the Hoover State Office Building, Third Floor, 1305 East Walnut Street, Des Moines, Iowa 50319; telephone (515)281–4877. Office hours are 8 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.

11—1.3(8A) Director. The chief executive officer of the department is the director, who is appointed by the governor with the approval of two–thirds of the members of the senate. The director serves at the pleasure of the governor.

The director has the statutory authority to designate an employee of the department to carry out the powers and duties of the director in the absence of the director, or due to the inability of the director to do so.

Specific powers and duties of the department, its director, boards, task forces, advisory panels, and employees are set forth in Iowa Code chapters 8A, 19B, 20, 70A, and 509A and these administrative rules.

11—1.4(8A) Administration of the department. In order to carry out the functions of the department, the following enterprises and bureaus have been established:

1.4(1) General services enterprise. The mission of the general services enterprise is to act as the state’s business agent to meet agencies’ needs for quality, timely, reliable and cost–effective support services and provide a work environment that is healthy, safe, and well maintained. The chief operating officer, appointed by the director, heads the general services enterprise. The following bureaus have been established within the general services enterprise:

a. Capitol complex maintenance. The capitol complex maintenance bureau is responsible for the maintenance, appearance, and facility sanitation of the capitol complex buildings and grounds, including environmental control (heating, ventilation and cooling) and all support features including, but not limited to, parking lot maintenance, main electrical distribution, water supply, wastewater removal, on–site safety consultation, and major maintenance projects associated with the capitol complex.

b. Design and construction. The design and construction bureau is responsible for vertical infrastructure management; building and monument restoration; management of leases and office space on and off the capitol complex; assignment of office space on the capitol complex; utilities management; and management of capital projects, including architectural, engineering, and construction management services for state agencies except for the board of regents, the department of transportation, the national guard, the natural resource commission and the Iowa public employees’ retirement system.

c. Fleet and mail. The fleet and mail bureau is responsible for the management of vehicular risk and travel requirements for state agencies not exempted by law and for the processing and delivering of mail for state agencies on the capitol complex and in the Des Moines metropolitan area.

d. Service delivery. The service delivery bureau is responsible for the following functions for the enterprise: parking and building access, collection of fines and other payments, coordination of special events, general information, and work requests for the capitol complex; statewide purchasing and electronic procurement, including managing procurement of commodities, equipment and services for all state agencies not exempted by law; and administration of surplus property.

1.4(2) Human resources enterprise. The human resources enterprise is responsible for human resource management in the executive branch of Iowa state government and provides limited services to the judicial and legislative branches. The mission of the human resources enterprise is to support state agencies in their delivery of services to the people of Iowa by providing programs that recruit, develop, and retain a diverse and qualified workforce, and to administer responsible employee benefits programs for the members and their beneficiaries. The director appoints the chief operating officer of the enterprise. The following bureaus have been established within the human resources enterprise:

a. Benefits. The benefits bureau administers and coordinates the provision of health, dental, life, and disability insurance programs; employee leave programs; workers’ compensation, return to work, and loss control and safety programs; 457 deferred compensation; 403(b) tax–sheltered annuity and 401(a) employer match programs; unemployment insurance; and flexible spending and premium conversion programs for state employees.

b. Employment. The employment bureau provides application, referral, recruitment, selection, EEO/AA and diversity services related to state employment; administration of the state classification and compensation programs; and audit of personnel and payroll transactions.

c. Program delivery services. The program delivery services bureau is responsible for employment relations between the state and the certified employee representative; provides consultative services to state departments, boards, and commissions on human resource program matters; provides organization and employee development services including workforce planning and performance evaluation; and represents the state in contested case matters regarding such programs.

1.4(3) Information technology enterprise. The mission of the information technology enterprise is to provide high–quality, customer–focused information technology services and business solutions to government and to citizens. The director appoints the chief information officer for the state, who also serves as the chief operating officer of the enterprise. The following bureaus have been established within the information technology enterprise:

a. Application and E–government services. The application and E–government services bureau is responsible for support of departmental information technology services; providing software applications development, support, and training; and providing advice and assistance in developing and supporting business applications throughout state government.

b. Infrastructure services. The infrastructure services bureau is responsible for providing server systems, including mainframe and other server operations, desktop support, printing and printing procurement services.

c. Integrated Information for Iowa (I/3) project. The I/3 project office provides the strategic direction, functional deployment, and technical support for the I/3 system, including the enterprise accounting, procurement, budget preparation, human resources and payroll functions for the state of Iowa. I/3’s vision is to provide greater responsiveness to customers, improved productivity, increased accountability and efficient delivery of services across state government, and consistent and accurate information that Iowans want.

d. Advisory groups.

(1) Technology governance board. The technology governance board operates pursuant to 2005 Iowa Acts, House File 839.

(2) IOWAccess advisory council. The IOWAccess advisory council is established within the department for the purpose of creating and providing to the citizens of this state a gateway for one–stop electronic access to government information and transactions, whether federal, state, or local.

1.4(4) State accounting enterprise. The state accounting enterprise was created to provide for the efficient management and administration of the financial resources of state government. The chief operating officer, appointed by the director, heads the enterprise. The following functional units have been established within the state accounting enterprise:

a. Accounting and daily processing. The accounting and daily processing bureau includes the functions of daily processing, income offset, and financial systems.

b. Other sections. The state accounting enterprise also includes the financial reporting section, the I/3 program team, and the centralized payroll section.

1.4(5) Central administration.

a. Director’s office. The director is the chief executive officer for the department. The director’s central administration area provides support to the director and to the governmental and business operations of the department and its enterprises. The following functions are included in this area: general counsel; legislative liaison; rules administrator; strategic, performance, and business continuity planning; program oversight and accountability; and departmental and enterprise policy and standards development.

b. Information security office. The information security office is responsible for developing, implementing and maintaining information security policies, standards, and practices that enhance the confidentiality, integrity and availability of computer systems and electronic data resources, and for ensuring enterprise–wide compliance with security requirements. This office includes the chief information security officer for state government.

c. Marketing, communications and council support. Marketing, communications and council support supplies the department’s media, public relations, and employee communications services; supports product and service marketing within each of the department’s enterprises; and coordinates customer council activities for the department.

1.4(6) Customer management, finance and internal operations. This division provides customer management, finance and internal operations oversight, administration, and support in a manner that provides accurate and timely information, safeguards assets, and facilitates fiscally responsible,employee–centered and customer–focused decision making for the department. The functional units of the customer management, finance and internal operations division are:

a. Activity–based costing;

b. Accounts payable, purchasing, human resources, and administrative support;

c. Financial reporting and budget; and

d. Accounts receivable, billing, collections, and customer resource management.

These rules are intended to implement Iowa Code chapter 8A and sections 7E.1 through 7E.5 and 17A.3, and 2005 Iowa Acts, House File 776 and House File 839.

11—1.5 and 1.6 Reserved.

11—1.7(68B) Selling of goods or services. Rescinded IAB 8/16/06, effective 9/20/06.

[Filed emergency 8/29/03—published 9/17/03, effective 9/2/03]

[Filed emergency 10/20/04—published 11/10/04, effective 10/20/04]

[Filed emergency 2/1/05—published 3/2/05, effective 2/1/05]

[Filed 4/7/05, Notice 3/2/05—published 4/27/05, effective 6/1/05]

[Filed emergency 6/15/05—published 7/6/05, effective 7/1/05]

[Filed 9/22/05, Notice 7/6/05—published 10/12/05, effective 11/16/05]

[Filed without Notice 7/28/06—published 8/16/06, effective 9/20/06]

CHAPTERS 2 and 3

Reserved

chapter 2
reserved

chapter 3
reserved

chapter 4
PUBLIC RECORDS AND FAIR INFORMATION PRACTICES

11—4.1(8A,22) Definitions. As used in this chapter:

“Confidential record” means a record that is not available as a matter of right for examination and copying by members of the public under applicable provisions of law. Confidential records include records or information contained in records that the department is prohibited by law from making available for examination by members of the public, and records or information contained in records that are specified as confidential by Iowa Code section 22.7, or other provision of law, but that may be disclosed upon order of a court, the lawful custodian of the record, or by another person duly authorized to release the record. Mere inclusion in a record of information declared confidential by an applicable provision of law does not necessarily make that entire record a confidential record.

“Custodian” means the department, director, or another person lawfully delegated authority by the department to act for the department in implementing Iowa Code chapter 22.

“Department” means the department of administrative services.

“Open record” means a record other than a confidential record.

“Personally identifiable information” or “individual identifiers” means information about or pertaining to an individual in a record which identifies the individual and which is contained in a record system.

“Record” means the whole or a part of a “public record” as defined in Iowa Code section 22.1 that is owned by or in the physical possession of the department.

“Record system” means any group of records under the control of the department from which a rec–ord may be retrieved by a personal identifier such as the name of an individual, number, symbol, or other unique retriever assigned to an individual.

11—4.2(8A,17A,22) Statement of policy, purpose and scope. The purpose of this chapter is to facilitate broad public access to open records by establishing rules, policies and procedures to implement the fair information practices Act, Iowa Code chapter 22. Chapter 4 seeks to facilitate sound department determinations with respect to the handling of confidential records. The department is committed to complying with Iowa Code chapter 22; department staff shall cooperate with members of the public in implementing the provisions of that chapter.

11—4.3(8A,22) Requests for access to records.

4.3(1) Location of record. A request for access to a record under the jurisdiction of the department shall be directed to the office where the record is kept. If the location of the record is not known by the requester, the request shall be directed to the Iowa Department of Administrative Services, Hoover State Office Building, Level A, Des Moines, Iowa 50319. The department will forward the request appropriately. If a request for access to a record is misdirected, department personnel will forward the request to the appropriate person within the department.

4.3(2) Office hours. Open records shall be made available during all customary office hours, which are from 8 a.m. to 4:30 p.m., Monday through Friday, except legal holidays.

4.3(3) Request for access. Requests for access to open records may be made in writing, by telephone or in person. Requests shall identify the particular records sought by name or other personal identifier and description in order to facilitate the location of the record. Requests shall include the name and address of the person requesting the information. A person shall not be required to give a reason for requesting an open record.

4.3(4) Response to requests. The custodian of records under the jurisdiction of the department is authorized to grant or deny access to a record according to the provisions of this chapter and directions from the department. The decision to grant or deny access may be delegated to one or more designated employees.

Access to an open record shall be granted upon request. Unless the size or nature of the request requires time for compliance, the custodian shall respond to the request as soon as feasible. However, access to an open record may be delayed for one of the purposes authorized by Iowa Code subsection 22.8(4) or 22.10(4). The custodian shall promptly inform the requester of the reason for the delay and an estimate of the length of that delay and, upon request, shall promptly provide that notice to the requester in writing.

The custodian of a record may deny access to the record by members of the public only on the grounds that a denial is warranted under Iowa Code subsection 22.8(4) or 22.10(4), or that it is a confidential record, or that its disclosure is prohibited by a court order. Access by members of the public to a confidential record is limited by law and, therefore, may generally be provided only in accordance with the provisions of rule 4.4(8A,17A,22) and other applicable provisions of law.

4.3(5) Security of record. No person may, without permission from the custodian, search or remove any record from department files. The custodian or a designee of the custodian shall supervise examination and copying of department records. Records shall be protected from damage and disorganization.

4.3(6) Copying. A reasonable number of copies of an open record may be made in the department’s office unless printed copies are available. If copying equipment is not available in the office where an open record is kept, the custodian shall permit its examination in that office and shall arrange to have copies promptly made elsewhere, subject to costs.

4.3(7) Fees.

a. When charged. The department is authorized to charge fees in connection with the examination or copying of records in accordance with Iowa Code section 22.3. To the extent permitted by applicable provisions of law, the payment of fees may be waived when the imposition of fees is inequitable or when a waiver is in the public interest.

b. Copying and postage costs. Price schedules for regularly published records and for copies of records supplied by the department shall be posted in the department. Copies of records may be made by or for members of the public on department photocopy machines or from electronic storage systems at cost, as determined by and posted in department offices by the custodian. A charge assessed to a current employee for copies of records in the employee’s own official personnel file shall not exceed $5 per request. When the mailing of copies of records is requested, the actual costs of mailing may be charged to the requester.

c. Supervisory fee. An hourly fee may be charged for actual department expenses in supervising the examination and copying of requested records when the supervision time required is in excess of one–half hour. The custodian shall prominently post in department offices the hourly fees to be charged for supervision of records during examination and copying. That hourly fee shall not be in excess of the hourly wage of a department clerical employee who ordinarily would be appropriate and suitable to perform this supervisory function.

d. Search fees. If the request requires research or if the record or records cannot reasonably be readily retrieved, the requester will be advised of this fact. Reasonable search fees may be charged when appropriate. In addition, all costs for retrieval and copying of information stored in electronic storage systems may be charged to the requester.

e. Advance deposits.

(1) When the estimated total fee chargeable under this subrule exceeds $25, the custodian may require a requester to make an advance payment to cover all or a part of the estimated fee. Upon completion, the actual fee will be calculated and the difference refunded or collected.

(2) When a requester has previously failed to pay a fee chargeable under this subrule, the custodian may require advance payment of the full amount of any estimated fee before the custodian processes a new or pending request for access to records from that requester.

11—4.4(8A,17A,22) Access to confidential records. Under Iowa Code section 22.7 or other applicable provisions of law, the lawful custodian may disclose certain confidential records to one or more members of the public. Other provisions of law authorize or require the custodian to release specified confidential records under certain circumstances or to particular persons. In requesting the custodian to permit the examination or copying of such a confidential record, the following procedures apply and are in addition to those specified for requests for access to records in rule 4.3(8A,22).

4.4(1) Proof of identity. A person requesting access to a confidential record may be required to provide proof of identity or authority satisfactory to the custodian to secure access to the record.

4.4(2) Requests. The custodian may require a request to examine and copy a confidential record to be in writing. A person requesting access to such a record may be required to sign a certified statement or affidavit enumerating the specific reasons alleged to justify access to the confidential record and to provide any proof necessary to establish relevant facts.

4.4(3) Notice to subject of record and opportunity to obtain injunction. After the custodian receives a request for access to a confidential record, and before the custodian releases that record, the custodian may make reasonable efforts to notify promptly any person who is a subject of that record, is identified in that record, and whose address or telephone number is contained in that record. To the extent such a delay is practicable and in the public interest, the custodian shall give the subject of that confidential record to whom notification is transmitted a reasonable opportunity to seek an injunction under Iowa Code section 22.8, and indicate to the subject of that record the specified period of time during which disclosure will be delayed for that purpose.

4.4(4) Request denied. When the custodian denies a request for access to a confidential record, in whole or in part, the custodian shall promptly notify the requester in writing. The denial shall be signed by the custodian of the record and shall include:

a. The name and title of the person responsible for the denial; and

b. A citation to the provision of law vesting authority in the custodian to deny disclosure of the record; or

c. A citation to the statute vesting discretion in the custodian to deny disclosure of the record and a brief statement of the reasons for the denial to the requester.

4.4(5) Request granted. When the custodian grants a request for access to a confidential record to a particular person, the custodian shall notify that person and shall indicate any lawful restrictions imposed by the custodian on that person’s examination and copying of the record.

11—4.5(8A,17A,22) Requests for treatment of a record as a confidential record and its withholding from examination. The custodian may treat a record as a confidential record and withhold it from examination only to the extent that the custodian is authorized by Iowa Code section 22.7, another applicable provision of law, or a court order, to refuse to disclose that record to members of the public.

4.5(1) Persons who may request. Any person who would be aggrieved or adversely affected by disclosure of a record under the jurisdiction of the department to members of the public and who asserts that Iowa Code section 22.7, another applicable provision of law, or a court order authorizes the custodian to treat the record as a confidential record may request the custodian to treat that record as a confidential record and to withhold it from public inspection. Failure of a person to request confidential record treatment for all or part of a record does not preclude the department from designating it and treating it as a confidential record.

4.5(2) Request. A request that a record be treated as a confidential record and be withheld from public inspection shall be in writing and shall be filed with the director. The request must set forth the legal and factual basis justifying such confidential record treatment for that record, and the name, address, and telephone number of the person authorized to respond to any inquiry or action of the custodian concerning the request. A person requesting treatment of a record as a confidential record may also be required to sign a certified statement or affidavit enumerating the specific reasons justifying the treatment of that record as a confidential record and to provide any proof necessary to establish relevant facts. Requests for treatment of a record as such a confidential record for a limited time period shall also specify the precise period of time for which that treatment is requested.

A person filing such a request shall, if possible, accompany the request with a copy of the record in question in which portions for which such confidential record treatment has been requested have been deleted. If the original record is being submitted to the department by the person requesting such confidential treatment at the time the request is filed, the person shall indicate conspicuously on the original record that all or portions of it are confidential.

4.5(3) Failure to request. Failure of a person to request confidential record treatment for a record does not preclude the custodian from treating it as a confidential record. However, if a person who has submitted information to the department does not request that it be withheld from public inspection under Iowa Code sections 22.7(3) and 22.7(6) for all or part of that information, the custodian of rec–ords containing that information may proceed as if that person has no objection to its disclosure to members of the public.

4.5(4) Timing of decision. A decision by the custodian with respect to the disclosure of all or part of a record under its jurisdiction to members of the public may be made when a request for its treatment as a confidential record that is not available for public inspection is filed, or when the custodian receives a request for access to the record by a member of the public.

4.5(5) Request granted or deferred. If a request for confidential record treatment is granted, or if action on such a request is deferred, a copy of the record in which the material in question has been deleted and a copy of the decision to grant the request or to defer action upon the request will be made available for public inspection in lieu of the original record. If the custodian subsequently receives a request for access to the original record, the custodian will make reasonable and timely efforts to notify any person who has filed a request for its treatment as a confidential record that is not available for public inspection of the pendency of that subsequent request.

4.5(6) Request denied and opportunity to seek injunction. If a request that a record be treated as a confidential record and be withheld from public inspection is denied, the custodian shall notify the requester in writing of that determination and the reasons therefor. On application by the requester, the custodian may, in good faith, reasonably delay examination of the record so that the requester may seek injunctive relief under the provisions of Iowa Code section 22.8, or other applicable provision of law. However, such a record shall not be withheld from public inspection for any period of time if the custodian determines that the requester had no reasonable grounds to justify the treatment of that record as a confidential record. The custodian shall notify the requester in writing of the time period allowed to seek injunctive relief or the reasons for the determination that no reasonable grounds exist to justify the treatment of that record as a confidential record. The custodian may extend the period of good faith, reasonable delay in allowing examination of the record so that the requester may seek injunctive relief only if no request for examination of that record has been received, or if a court directs the custodian to treat it as a confidential record, or to the extent permitted by another applicable provision of law, or with the consent of the person requesting access.

11—4.6(8A,22) Procedure by which a person who is the subject of a record may have additions, dissents, or objections entered into a record. Except as otherwise provided by law, a person may file a request with the custodian to review, and to have a written statement of additions, dissents, or objections entered into, a record containing personally identifiable information pertaining to that person. However, this does not authorize a person who is a subject of such a record to alter the original copy of that record or to expand the official record of any department proceeding. Requester shall send the request to review such a record or the written statement of additions, dissents, or objections to the custodian. The request to review such a record or the written statement of such a record of additions, dissents, or objections must be dated and signed by requester, and shall include the current address and telephone number of the requester or the requester’s representative.

11—4.7(8A,17A,22) Consent to disclosure by the subject of a confidential record. To the extent permitted by any applicable provision of law, a person who is the subject of a confidential record under the jurisdiction of the department may consent to have a copy of the portion of that record concerning the subject disclosed to a third party except as provided in subrule 4.12(1). The consent must be in writing and must identify the particular record that may be disclosed, the particular person or class of persons to whom the record may be disclosed, and, where applicable, the time period during which the record may be disclosed. The subject and, where applicable, the person to whom the record is to be disclosed, must provide proof of identity.

11—4.8(8A,17A,22) Notice to suppliers of information. When a person is requested to supply information about that person that will become part of a record under the jurisdiction of the department, the department shall notify that person of the use that will be made of the information, which persons outside the department might routinely be provided the information, which parts of the requested information are required and which are optional, and the consequences of not providing the information requested. This notice may be given in rules, on the written form used to collect the information, on a separate fact sheet or letter, in brochures, in formal agreements, in contracts, in handbooks, in manuals, verbally, or by other appropriate means.

11—4.9(8A,22) Disclosures without the consent of the subject.

4.9(1) Open records are routinely disclosed without the consent of the subject.

4.9(2) To the extent allowed by law, disclosure of confidential records may occur without the consent of the subject. Following are instances where disclosure, if lawful, will generally occur without notice to the subject:

a. For a routine use as defined in rule 4.10(8A,22) or in any notice for a particular record system.

b. To a recipient who has provided the department with advance written assurance that the record will be used solely as a statistical research or reporting record; provided that the record is transferred in a form that does not identify the subject.

c. To another government agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if an authorized representative of the government agency or instrumentality has submitted a written request to the agency specifying the record desired and the law enforcement activity for which the record is sought.

d. To an individual following a showing of compelling circumstances affecting the health or safety of any individual if a notice of the disclosure is transmitted to the last–known address of the subject.

e. To the legislative services agency.

f. Disclosures in the course of employee disciplinary proceedings.

g. In response to a court order or subpoena.

11—4.10(8A,22) Routine use.

4.10(1) Defined. “Routine use” means the disclosure of a record without the consent of the subject or subjects for a purpose which is compatible with the purpose for which the record was collected. “Routine use” includes disclosures required to be made by statute other than the public records law, Iowa Code chapter 22.

4.10(2) To the extent allowed by law, the following uses are considered routine uses of all records under the jurisdiction of the department:

a. Disclosure to those officers, employees, and agents of the agency who have a need for the rec–ord in the performance of their duties. The custodian of the record may upon request of any officer or employee, or on the custodian’s own initiative, determine what constitutes legitimate need to use confidential records.

b. Disclosure of information indicating an apparent violation of the law to appropriate law enforcement authorities for investigation and possible criminal prosecution, civil court action, or regulatory order.

c. Disclosure to the department of inspections and appeals for matters in which it is performing services or functions on behalf of the department.

d. Transfers of information within the department, to other state agencies, or to local units of government as appropriate to administer the program for which the information is collected.

e. Information released to staff of federal and state entities for audit purposes or for purposes of determining whether the department is operating a program lawfully.

f. Any disclosure specifically authorized by the statute under which the record was collected or maintained.

g. Distribution of lists of state employees to other than governmental entities.

h. Distribution of represented employees’ payroll records to unions.

11—4.11(8A,22) Consensual disclosure of confidential records.

4.11(1) Consent to disclosure by a subject individual. To the extent permitted by law, the subject may consent in writing to department disclosure of confidential records as provided in rule 4.7(8A,17A,22).

4.11(2) Complaints to public officials. A letter from a subject of a confidential record to a public official which seeks the official’s intervention on behalf of the subject in a matter that involves a record under the jurisdiction of the department may to the extent permitted by law be treated as an authorization to release sufficient information about the subject to the official to resolve the matter.

11—4.12(8A,22) Release to subject.

4.12(1) The subject of a confidential record may file a written request to review confidential rec–ords about that person as provided in rule 4.6(8A,22). However, the department need not release the following records to the subject:

a. The identity of a person providing information to the department when the information is authorized to be held confidential pursuant to Iowa Code section 22.7(18) or other provision of law.

b. Records that are the work product of an attorney or are otherwise privileged.

c. Peace officers’ investigative reports except as required by the Iowa Code. (See Iowa Code section 22.7(5).)

d. As otherwise authorized by law.

4.12(2) Where a record has multiple subjects with interest in the confidentiality of the record, the department may take reasonable steps to protect confidential information relating to other subjects in the record.

11—4.13(8A,22) Availability of records.

4.13(1) Open records. Department records are open for public inspection and copying unless otherwise provided by rule or law.

4.13(2) Confidential records. The following records under the jurisdiction of the department may be withheld from public inspection. Records are listed by category, according to the legal basis for withholding them from public inspection.

a. The department is a depository for the records of other public bodies. Records are maintained on paper, audiotape, microform, and electronic information storage and media systems. Although these records are in the physical possession of the department, the responsibility for compliance with Iowa Code chapter 22 remains with the “lawful custodian.” The public body requesting creation or storage of the record by the department is the lawful custodian (see Iowa Code section 22.1, definition of “lawful custodian”). All such records are confidentially maintained while in the possession of the department. Requests for access to any such records must be directed to the lawful custodian. Any records maintained by the department concerning the content, location, or disposition of such records are confidential in order to maintain security for access to confidential records pursuant to Iowa Code section 22.7.

b. Sealed bids received prior to the time set for public opening of bids. (Iowa Code section 72.3)

c. Procurement proposals prior to completion of the evaluation process and the issuance of a notice of intent to award a contract by the appropriate procurement authority. (11—subrule 105.19(3), Iowa Administrative Code)

d. Tax records made available to the department. (Iowa Code sections 422.20 and 422.72)

e. Records which are exempt from disclosure under Iowa Code section 22.7.

f. Minutes of closed meetings of a government body. (Iowa Code section 21.5(4))

g. Identifying details in final orders, decisions, and opinions to the extent required to prevent a clearly unwarranted invasion of personal privacy or trade secrets under Iowa Code section 17A.3(1)“e.”

h. Those portions of department staff manuals, instructions, or other statements issued which set forth criteria or guidelines to be used by department staff in auditing, in making inspections, in settling commercial disputes or negotiating commercial arrangements, or in the selection or handling of cases, such as operational tactics or allowable tolerances of criteria for the defense, prosecution, or settlement of cases, when disclosure of these statements would:

(1) Enable law violators to avoid detection;

(2) Facilitate disregard of requirements imposed by law; or

(3) Give a clearly improper advantage to persons who are in an adverse position to the department. (See Iowa Code sections 17A.2 and 17A.3.)

i. Records which constitute attorney work product, attorney–client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 602.10112, 622.10 and 622.11, Iowa R. Civ. P. 1.503(3), Fed. R. Civ. P. 26(b)(3), and case law.

j. Reports to government agencies which, if released, would give advantage to competitors and serve no public purpose. (Iowa Code section 22.7)

k. Vehicle accident reports submitted to the department by drivers and peace officers. (Iowa Code section 321.271)

(1) However, access shall be granted to those persons authorized by Iowa Code section 321.271.

(2) Pursuant to Iowa Code section 22.7, the lawful custodian may release the following information from peace officers’ accident reports even though the reports are confidential: date, time, and location of accident; names of parties to the accident; owners and descriptions of the motor vehicles involved; name of investigating officer; names of injured; locations where motor vehicles and injured were transported; and the identification and owners of damaged property other than motor vehicles.

l. Confidential assignments of state vehicles by the state vehicle dispatcher. These records include letters/memos detailing driver assignments and plate numbers for selected vehicles pursuant to 2003 Iowa Code Supplement section 8A.362, and Iowa Code section 321.19(1).

m. Computer resource security files containing names, identifiers, and passwords of users of computer resources. This file must be kept confidential to maintain security for access to confidential records pursuant to Iowa Code section 22.7.

n. Personal information in confidential personnel records of public bodies including but not limited to cities, boards of supervisors, and school districts.

o. Communications not required by law, rule, or procedure that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making communications to that government body if the communications were available for general public examination. (See Iowa Code section 22.7.)

p. Information contained in records of the centralized employee registry created in Iowa Code chapter 252G, except to the extent that disclosure is authorized pursuant to Iowa Code chapter 252G. (See Iowa Code section 22.7.)

q. Data processing software, as defined in Iowa Code section 22.3A, which is developed by a government body.

r. Log–on identification passwords, Internet protocol addresses, private keys, or other records containing information which might lead to the disclosure of private keys used in a digital signature or other similar technologies as provided in Iowa Code chapter 554D.

s. Records which if disclosed might jeopardize the security of an electronic transaction pursuant to Iowa Code chapter 554D.

t. Any other records made confidential by law.

4.13(3) Authority to release confidential records. The department may have discretion to disclose some confidential records which are exempt from disclosure under Iowa Code section 22.7 or other law. Any person may request permission to inspect these records withheld from inspection under a statute which authorizes limited or discretionary disclosure as provided in rule 4.4(8A,17A,22). If the department initially determines that it will release such records, the department may, where appropriate, notify interested persons and withhold the records from inspection as provided in subrule 4.4(3).

11—4.14(8A,22) Personally identifiable information. This rule describes the nature and extent of personally identifiable information which is collected, maintained, and retrieved by the department by personal identifier in record systems as defined in rule 4.1(8A,22). Unless otherwise stated, the authority to maintain the record is provided by 2003 Iowa Code Supplement chapter 8A.

4.14(1) Retrieval. Personal identifiers may be used to retrieve information from any of the systems of records that the department maintains that contain personally identifiable information.

4.14(2) Means of storage. Paper, microfilm, microfiche, and various electronic means of storage are used to store records containing personally identifiable information.

4.14(3) Comparison. Electronic or manual data processing may be used to match, to collate, or to compare personally identifiable information in one system with personally identifiable information in another system of records or with personally identifiable information within the same system.

4.14(4) Comparison with data from outside the department. Personally identifiable information in systems of records maintained by the department is retrievable through the use of personal identifiers and may be compared with information from outside the department when specified by law. This comparison is allowed in situations including:

a. Determination of any offset of a debtor’s income tax refund or rebate for child support recovery or foster care recovery (2003 Iowa Code Supplement section 8A.504);

b. Calculation of any offset against an income tax refund or rebate for default on a guaranteed student loan (2003 Iowa Code Supplement section 8A.504);

c. Offset from any tax refund or rebate for any liability owed a state agency (2003 Iowa Code Supplement section 8A.504);

d. Offset for any debt which is in the form of a liquidated sum due, owing, and payable to the clerk of district court as a criminal fine, civil penalty surcharge, or court costs (2003 Iowa Code Supplement section 8A.504).

4.14(5) Nature and extent. All of the record systems listed in subrule 4.14(6) contain personally identifiable information concerning matters such as income and social security numbers.

4.14(6) Record systems with personally identifiable retrieval. The department maintains the systems or records that contain personally identifiable and confidential information as described in the following paragraphs. The legal authority for the collection of the information is listed with the description or the system.

a. Personnel files. Personnel files are maintained by the department and the employee’s appointing authority. An employee may have several files depending on the purpose of the file and the records maintained within the file. Personnel files consist of records that concern individual state employees and their families, as well as applicants for state employment.

(1) Personnel files contain personal, private, and otherwise confidential records related to:

1. Applicants.

• Preemployment information, including information gathered during background screenings;

• Test scores.

2. Benefits.

• Employee assistance program participation;

• Wellness program participation;

• Pre–tax programs;

• Health, dental, life, and long–term disability insurance;

• Benefit elections and miscellaneous benefit documents;

• Medical information on the employee or a member of the employee’s immediate family;

• Medical information to support the employee’s sick leave usage and fitness for duty determinations;

• Deferred compensation;

• Workers’ compensation.

3. Employee performance and discipline.

• Investigations incident to the employee’s employment;

• Information related to disciplinary actions;

• Complaints, grievances, and appeals;

• Performance planning and evaluation;

• Training; and

• Other information incident to the employment of individuals.

(2) These records are collected in accordance with 2003 Iowa Code Supplement chapter 8A, and Iowa Code chapters 19B, 20, 70A, 85, 85A, 85B, 91A, and 509A, and are confidential records under Iowa Code section 22.7(11) and other law because the information in the record is private and personal, the disclosure of which would likely result in an unwarranted invasion of the privacy of the subject of the record or the subject’s family. It is unlikely that the personal and private information in these rec–ords can be separated from otherwise releasable information without identifying the subject or the subject’s family.

b. Employee payroll records. The payroll records system consists of records that concern individual state employees and their families.

(1) This system contains the following information:

1. Workers’ compensation;

2. Health, dental, life, and long–term disability insurance;

3. Qualified domestic relations orders;

4. Charitable contributions;

5. Garnishments;

6. Pay and benefits;

7. Equal employment opportunity;

8. Training;

9. Deferred compensation; and

10. Other information incident to the employment of individuals.

(2) Records under the jurisdiction of the department are collected in accordance with 2003 Iowa Code Supplement chapter 8A, and Iowa Code chapters 19B, 20, 70A, 85, 85A, 85B, 91A, and 509A, and are confidential records in part under Iowa Code section 22.7 and other law.

(3) These records contain names, social security numbers, and other identifying numbers, and are collected in the form of paper, microfilm, tape, and computer records. Computer records permit the comparison of personally identifiable information in one record system with that in another system.

c. Vehicle dispatcher files. Vehicle assignments and credit card records may be accessed by personal identifier or by vehicle identification number. Other records which may contain personally identifiable information, but are not retrievable by it, are: mileage reports, auction information, automobile insurance premiums, pool car billings, departmental billing, motor fuel tax refund, and motor oil claims. Records are stored on paper, computer, and microfilm.

d. Capitol complex parking files. The general services enterprise maintains records concerning parking assignments, decals, gate cards, after–hours building passes, parking tickets, departmental parking coordinators, and hearings and appeals. All records except those related to hearings and appeals may be retrieved by personal identifier data. Records related to hearings and appeals are filed by date of hearing only. Records are stored on paper and computer. Records relating to hearings and appeals are also stored on audio tapes.

e. Annual bid bonds. The printing division maintains a file of annual bid bonds for vendors eligible to bid on printing contracts. The file is alphabetical by vendor name and contains only those papers necessary for execution of the bond. This record is stored on paper only.

f. Telephone directory of state employees. The information technology enterprise maintains a telephone directory of state employees. The directory contains names, department names, business addresses and telephone numbers. The publication also includes private industry information and advertising containing business names, addresses and telephone numbers. This record is stored on both paper and computer.

g. Contracts. These are records pertaining to training, consultants, and other services. These records are collected in accordance with 2003 Iowa Code Supplement chapter 8A and Iowa Code chapter 19B and are confidential records in part under Iowa Code section 22.7. These records contain names, social security numbers, and other identifying numbers, and are collected in the form of paper, microfilm, tape, and computer records. Computer records permit the comparison of personally identifiable information in one record system with that in another system.

h. Vendor files. The department maintains files of vendors eligible to do business with the state of Iowa. Files may contain applications, vendor information booklets, vendor codes, commodity codes, minority–owned vendor identification information, and mailing lists. Records are stored on paper and computer.

4.14(7) Releasable information on state employees. The following information that is maintained in the state payroll system or a personnel file shall be released to the public without the consent of the employee because the information is not considered to be confidential information:

a. The name and compensation paid to the state employee.

b. The date on which the state employee was employed by state government.

c. The position or positions that the state employee holds or has held with state government.

d. The state employee’s qualifications for the position or positions that the state employee holds or has held including, but not limited to, educational background and work experience.

11—4.15(8A,22) Other groups of records. This rule describes groups of records maintained by the department other than record systems retrieved by individual identifiers as defined in rule 4.1(8A,22). The records listed may contain information about individuals. These records are routinely available to the public subject to costs. Unless otherwise designated, the authority for the department to maintain the record is provided by 2003 Iowa Code Supplement chapter 8A. All records may be stored on paper, microfilm, tape or in automated data processing systems unless otherwise noted.

4.15(1) Rule–making records. Official documents executed during the promulgation of department rules and public comments. This information is collected pursuant to Iowa Code chapter 17A.

4.15(2) Board and commission records. Agendas, minutes, and materials presented to boards and commissions within the department are available from the department except those records concerning closed sessions which are exempt from disclosure under Iowa Code section 21.5(4) or which are otherwise confidential by law. These records may identify individuals who participate in meetings. This information is collected pursuant to Iowa Code section 21.3. These records may also be stored on audiotapes.

4.15(3) Publications. Publications include but are not limited to news releases, annual reports, project reports, and newsletters which describe various department programs.

4.15(4) Information about individuals. Department news releases, final project reports, and newsletters may contain information about individuals, including staff or members of boards or commissions.

4.15(5) Statistical reports. Periodic reports of activity for various department programs are available from the department.

4.15(6) Appeal decisions and advisory opinions. All final orders, decisions and opinions are open to the public except for information that is confidential according to rule 4.5(8A,17A,22) or subrule 4.13(2). These records, collected under the authority of 2003 Iowa Code Supplement chapter 8A, and Iowa Code chapters 19B, 20, 70A, 85, 85A, 85B, 91A, 97A, 97B, 97C, and 509A may contain confidential information about individuals.

4.15(7) Published materials. The department uses many legal and technical publications in its work. The public may inspect these publications upon request. Some of these materials may be protected by copyright laws.

4.15(8) Published manuals. The department uses many legal and technical publications in its work. The public may inspect these publications upon request. Some of these materials may be protected by copyright law.

4.15(9) Mailing lists and contact lists. The department maintains lists including names, mailing addresses, and telephone numbers of state employees, commission members, officials in government of other states, and members of the general public. These lists may be used for distribution of informational material, such as newsletters, policy directives, or educational bulletins. These lists are also used to provide contacts for coordination of services or as reference information sources.

4.15(10) Authorized user lists. The information technology enterprise maintains a list of persons authorized to use their on–line services.

4.15(11) Publication sales files. The general services enterprise maintains records of persons purchasing legal publications. Records are used to produce mailing lists for renewal notification and publication mailings. Records are maintained by ZIP code. These are paper records except for mailing list production.

4.15(12) Bid/purchasing process. The department maintains records of specifications, proposals, bid documents, awards, contracts, agreements, leases, performance bonds, requisitions, purchase orders, printing orders, supply orders, and correspondence.

4.15(13) Project files. The department maintains plans, specifications, contracts, studies, drawings, photos, blueprints, requests for services, abstracts, lease/rental files, 28E agreements, space administration, and facilities records.

4.15(14) Property/equipment files. The department maintains records of inventory, assignments, distribution, maintenance, requests, operations, shipping/receiving reports, and adjustments.

4.15(15) Education program records. Educational records include a library of training courses and reference materials, a library of course documentation, TSO data sets, Iowa interagency training system, class registrations of state employees, and files of course evaluations.

4.15(16) Data processing files. Data processing files include operations logs, database user requests, job number maintenance/update, data entry format book, integrated data dictionary, computer output forms designations, system software, hardware/software configurations, problem determination/resolution records, and incident reports.

4.15(17) Federal surplus property records. Donee files include applications for eligibility and rec–ords of distribution, transfer orders of property from other federal agencies, and auction files. Auction records are filed by auction date only, but award forms may contain names of individuals purchasing property.

4.15(18) Administrative records. Administrative records include the following:

a. Reports: weekly, monthly, annual, biennial, statistical, analysis, activity.

b. Correspondence: public, interdepartmental, internal.

c. Policies and procedures.

d. Organizational charts or table of authorized positions.

e. Memberships: professional/technical organizations.

f. Budget and financial records.

g. Accounting records: accounts receivable, accounts payable, receipts, invoices, claims, vouchers, departmental billings.

h. Requisition of equipment and supplies.

4.15(19) Legislative files. Legislative files include pending bills, enrolled bills, legislative proposals, and copies of amendments.

4.15(20) Printing files. Printing files include print requisition, plates, negatives, samples, typesetting, artwork, and production logs.

4.15(21) All other records. Records are open if not exempted from disclosure by law.

11—4.16(8A,22) Data processing systems. Some of the data processing systems used by this department may permit the comparison of personally identifiable information in one record system with personally identifiable information in another record system.

11—4.17(8A,22) Applicability. This chapter does not:

1. Require the department to index or retrieve records which contain information about a person by that person’s name or other personal identifier.

2. Make available to the general public records which would otherwise not be available under the public records law, Iowa Code chapter 22.

3. Govern the maintenance or disclosure of, notification of or access to, records in the possession of the department that are governed by the regulations of another agency.

4. Apply to grantees, including local governments or subdivisions thereof, administering state–funded programs unless otherwise provided by law or agreement.

5. Make available records compiled in reasonable anticipation of court litigation or formal administrative proceedings. Applicable legal and constitutional principles, statutes, rules of discovery, evidentiary privileges, the Code of Professional Responsibility, and applicable regulations shall govern the availability of such records to the general public or to any subject individual or party to such litigation or proceedings.

11—4.18(8A) Agency records.

4.18(1) Each agency shall maintain a file of personnel records on each employee and each applicant for employment as specified by the department in rule or policy. All employee and applicant rec–ords are under the jurisdiction of the department.

4.18(2) The appointing authority shall give each employee copies of all materials placed in the employee’s file unless determined otherwise by the department. The appointing authority shall provide copies of records to the department as requested.

4.18(3) When an employee is transferred, promoted or demoted from one agency to another agency, the employee’s personnel records shall be sent to the receiving appointing authority by the former appointing authority.

4.18(4) The director shall prescribe the forms to be used for collecting and recording information on employees and applicants for employment, as well as the procedures for the completion, processing, retention, and release of those forms and records, as well as the information contained on them.

These rules are intended to implement 2003 Iowa Code Supplement chapter 8A and Iowa Code chapter 22.

[Filed 12/17/03, Notice 11/12/03—published 1/7/04, effective 2/11/04]

[Filed 10/22/04, Notice 9/15/04—published 11/10/04, effective 12/15/04]

chapter 5
PETITIONS FOR RULE MAKING

11—5.1(17A) Petition for rule making.

5.1(1) Filing. Any person or agency may file a petition for adoption of rules or request for review of rules with the Administrative Services Department, Office of the Director, Hoover State Office Building, Third Floor, Des Moines, Iowa 50319. A petition is deemed filed when it is received by the department. The department shall provide the petitioner with a file–stamped copy of the petition if the petitioner provides the department an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

ADMINISTRATIVE SERVICES DEPARTMENT

Petition by (Name of Petitioner)

for the (adoption, amendment, or repeal)

of rules relating to (state the subject matter).

}

PETITION FOR
RULE MAKING

The petition must provide the following information:

a. A statement of the specific rule–making action sought by the petitioner including the text or a summary of the contents of the proposed rule or amendment to a rule and, if it is a petition to amend or repeal a rule, a citation and the relevant language to the particular portion or portions of the rule proposed to be amended or repealed.

b. A citation to any law deemed relevant to the department’s authority to take the action urged or to the desirability of that action.

c. A brief summary of petitioner’s arguments in support of the action urged in the petition.

d. A brief summary of any data supporting the action urged in the petition.

e. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by or interested in, the proposed action which is the subject of the petition.

f. Any request by petitioner for a meeting provided for by rule 5.4(17A).

5.1(2) Content. The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative, and a statement indicating the person to whom communications concerning the petition should be directed.

5.1(3) Denial. The director may deny a petition because it does not substantially conform to the required form.

11—5.2(17A) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The director may request a brief from the petitioner or from any other person concerning the substance of the petition.

11—5.3(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to the director at the offices of the department.

11—5.4(17A) Department consideration.

5.4(1) Within 14 days after the filing of a petition, the department must submit a copy of the petition and any accompanying brief to the administrative rules coordinator and to the administrative rules review committee. Upon request by petitioner in the petition, the department must schedule a brief and informal meeting between the petitioner and the department to discuss the petition. The department may request the petitioner to submit additional information or argument concerning the petition. The department may also solicit comments from any person on the substance of the petition. Also, comments on the substance of the petition may be submitted to the department by any person.

5.4(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the department must, in writing, deny the petition, and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule–making proceedings on the subject of the petition. The petitioner shall be deemed notified of the denial or grant of the petition on the date when the department mails or delivers the required notification to the petitioner.

5.4(3) Denial of a petition because it does not substantially conform to the required form does not preclude the filing of a new petition on the same subject that seeks to eliminate the grounds for the department’s rejection of the petition.

These rules are intended to implement Iowa Code chapter 17A and 2003 Iowa Code Supplement chapter 8A.

[Filed 11/6/03, Notice 10/1/03—published 11/26/03, effective 2/11/04]

[Filed 10/22/04, Notice 9/15/04—published 11/10/04, effective 12/15/04]

chapter 6
agency procedure for rule making

11—6.1(17A) Applicability. Except to the extent otherwise expressly provided by statute, all rules adopted by the department are subject to the provisions of Iowa Code chapter 17A, the Iowa administrative procedure Act, and the provisions of this chapter.

11—6.2(17A) Advice on possible rules before notice of proposed rule adoption. In addition to seeking information by other methods, the department may, before publication of a Notice of Intended Action under Iowa Code section 17A.4(1)“a,” solicit comments from the public on a subject matter of possible rule making by the department by causing notice to be published in the Iowa Administrative Bulletin of the subject matter and indicating where, when, and how persons may comment. Notwithstanding the foregoing, except as otherwise provided by law, the department may use its own experience, specialized knowledge, and judgment in the adoption of a rule.

11—6.3(17A) Public rule–making docket.

6.3(1) Docket maintained. The department shall maintain a current public rule–making docket.

6.3(2) Anticipated rule making. The rule–making docket shall list each anticipated rule–making proceeding. A rule–making proceeding is deemed “anticipated” from the time a draft of proposed rules is distributed for internal discussion within the department. For each anticipated rule–making proceeding, the docket shall contain a listing of the precise subject matter which may be submitted for consideration by the department for subsequent proposal under the provisions of Iowa Code section 17A.4(1)“a,” the name and address of department personnel with whom persons may communicate with respect to the matter, and an indication of the present status within the agency of that possible rule. The department may also include in the docket other subjects upon which public comment is desired.

6.3(3) Pending rule–making proceedings. The rule–making docket shall list each pending rule–making proceeding. A rule–making proceeding is pending from the time it is commenced, by publication in the Iowa Administrative Bulletin of a Notice of Intended Action pursuant to Iowa Code section 17A.4(1)“a,” to the time it is terminated, by publication of a Notice of Termination in the Iowa Administrative Bulletin or the rule’s becoming effective. For each rule–making proceeding, the docket shall indicate:

a. The subject matter of the proposed rule;

b. A citation to all published notices relating to the proceeding;

c. Where written submissions on the proposed rule may be inspected;

d. The time during which written submissions may be made;

e. The names of persons who have made written requests for an opportunity to make oral presentations on the proposed rule, where those requests may be inspected, and where and when oral presentations may be made;

f. Whether a written request for the issuance of a regulatory analysis, or a concise statement of reasons, has been filed; whether such an analysis or statement or a fiscal impact statement has been issued; and where any such written request, analysis, or statement may be inspected;

g. The current status of the proposed rule and any department determination with respect thereto;

h. Any known timetable for department decisions or other action in the proceeding;

i. The date of the rule’s adoption;

j. The date of the rule’s filing, indexing, and publication;

k. The date on which the rule will become effective; and

l. Where the rule–making record may be inspected.

11—6.4(17A) Notice of proposed rule making.

6.4(1) Contents. At least 35 days before the adoption of a rule, the department shall cause a Notice of Intended Action to be published in the Iowa Administrative Bulletin. The Notice of Intended Action shall include:

a. A brief explanation of the purpose of the proposed rule;

b. The specific legal authority for the proposed rule;

c. Except to the extent impracticable, the text of the proposed rule;

d. Where, when, and how persons may present their views on the proposed rule; and

e. Where, when, and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.

Where inclusion of the complete text of a proposed rule in the Notice of Intended Action is impracticable, the department shall include in the notice a statement fully describing the specific subject matter of the omitted portion of the text of the proposed rule, the specific issues to be addressed by that omitted text of the proposed rule, and the range of possible choices being considered by the department for the resolution of each of those issues.

6.4(2) Incorporation by reference. A proposed rule may incorporate other materials by reference only if it complies with all of the requirements applicable to the incorporation by reference of other materials in an adopted rule that are contained in subrule 6.12(2) of this chapter.

6.4(3) Copies of notices. Persons desiring to receive copies of future Notices of Intended Action by subscription must file with the department a written request indicating the name and address to which such notices should be sent. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the agency shall mail or electronically transmit a copy of that notice to subscribers who have filed a written request for either mailing or electronic transmittal with the agency for Notices of Intended Action. The written request shall be accompanied by payment of the subscription price which may cover the full cost of the subscription service, including its administrative overhead and the cost of copying and mailing the Notices of Intended Action for a period of one year. Inquiries regarding the subscription price should be directed to the Administrative Services Department, Office of the Director, Hoover State Office Building, Level A–South, Des Moines, Iowa 50319.

11—6.5(17A) Public participation.

6.5(1) Written comments. For at least 20 days after publication of the Notice of Intended Action, persons may submit argument, data, and views, in writing, on the proposed rule. Such written submissions should identify the proposed rule to which they relate and should be submitted to the person designated in the Notice of Intended Action at the address designated in the Notice of Intended Action.

6.5(2) Oral proceedings. The department may, at any time, schedule an oral proceeding on a proposed rule. The department shall schedule an oral proceeding on a proposed rule if, within 20 days after the published Notice of Intended Action, a written request for an opportunity to make oral presentations is submitted to the department by the administrative rules review committee, a governmental subdivision, an agency, an association having not less than 25 members, or at least 25 persons. That request must also contain the following additional information:

a. A request by one or more individual persons must be signed by each of them and include the address and telephone number of each of them.

b. A request by an association must be signed by an officer or designee of the association and must contain a statement that the association has at least 25 members and the address and telephone number of the person signing that request.

c. A request by an agency or governmental subdivision must be signed by an official having authority to act on behalf of the entity and must contain the address and telephone number of the person signing that request.

6.5(3) Conduct of oral proceedings.

a. Applicability. This subrule applies only to those oral rule–making proceedings in which an opportunity to make oral presentations is authorized or required by Iowa Code section 17A.4(1)“b” or this chapter.

b. Scheduling and notice. An oral proceeding on a proposed rule may be held in one or more locations and shall not be held earlier than 20 days after notice of its location and time is published in the Iowa Administrative Bulletin. That notice shall also identify the proposed rule by ARC number and citation to the Iowa Administrative Bulletin.

c. Presiding officer. The director or another person designated by the director who will be familiar with the substance of the proposed rule, shall preside at the oral proceeding on a proposed rule. If the director does not preside, the presiding officer shall prepare a memorandum for consideration by the director summarizing the contents of the presentations made at the oral proceeding unless the director determines that such a memorandum is unnecessary because the director will personally listen to or read the entire transcript of the oral proceeding.

d. Conduct of proceeding. At an oral proceeding on a proposed rule, persons may make oral statements and make documentary and physical submissions, which may include data, views, comments or arguments concerning the proposed rule. Persons wishing to make oral presentations at such a proceeding are encouraged to notify the director at least one business day prior to the proceeding and indicate the general subject of their presentations. At the proceeding, those who participate shall indicate their names and addresses, identify any persons or organizations they may represent, and provide any other information relating to their participation deemed appropriate by the presiding officer. Oral proceedings shall be open to the public and shall be recorded by stenographic or electronic means.

(1) At the beginning of the oral proceeding, the presiding officer shall give a brief synopsis of the proposed rule, a statement of the statutory authority for the proposed rule, and the reasons for the agency decision to propose the rule. The presiding officer may place time limitations on individual oral presentations when necessary to ensure the orderly and expeditious conduct of the oral proceeding. To encourage joint oral presentations and to avoid repetition, additional time may be provided for persons whose presentations represent the views of other individuals as well as their own views.

(2) Persons making oral presentations are encouraged to avoid restating matters which have already been submitted in writing.

(3) To facilitate the exchange of information, the presiding officer may, where time permits, open the floor to questions or general discussion.

(4) The presiding officer shall have the authority to take any reasonable action necessary for the orderly conduct of the meeting.

(5) Physical and documentary submissions presented by participants in the oral proceeding shall be submitted to the presiding officer. Such submissions become the property of the department.

(6) The presiding officer may continue the oral proceeding at a later time without notice other than by announcement at the hearing.

(7) Participants in an oral proceeding shall not be required to take an oath or submit to cross–examination. However, the presiding officer in an oral proceeding may question participants and permit the questioning of participants by other participants about any matter relating to that rule–making proceeding, including any prior written submissions made by those participants in that proceeding; but no participant shall be required to answer any question.

(8) The presiding officer in an oral proceeding may permit rebuttal statements and request the filing of written statements subsequent to the adjournment of the oral presentations.

6.5(4) Additional information. In addition to receiving written comments and oral presentations on a proposed rule according to the provisions of this rule, the department may obtain information concerning a proposed rule through any other lawful means deemed appropriate under the circumstances.

6.5(5) Accessibility. The department shall schedule oral proceedings in rooms accessible to and functional for persons with physical disabilities. Persons who have special requirements should contact the person designated in the Notice of Intended Action at the telephone number or address provided in the Notice of Intended Action in advance to arrange access or other needed services.

11—6.6(17A) Regulatory analysis.

6.6(1) Definition of small business. A “small business” is defined in Iowa Code section 17A.4A(7).

6.6(2) Mailing list. Small businesses or organizations of small businesses may be registered on the department’s small business impact list by making a written application addressed to the rules administrator. The application for registration shall state:

a. The name of the small business or organization of small businesses;

b. Its address;

c. The name of a person authorized to transact business for the applicant;

d. A description of the applicant’s business or organization. An organization representing 25 or more persons who qualify as a small business shall indicate that fact;

e. Whether the registrant desires copies of Notices of Intended Action at cost, or desires advance notice of the subject of all or some specific category of proposed rule making affecting small business.

The department may at any time request additional information from the applicant to determine whether the applicant is qualified as a small business or as an organization of 25 or more small businesses. The department may periodically send a letter to each registered small business or organization of small businesses asking whether that business or organization wishes to remain on the registration list. The name of a small business or organization of small businesses will be removed from the list if a negative response is received, or if no response is received within 30 days after the letter is sent.

6.6(3) Time of mailing. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the department shall mail to all registered small businesses or organizations of small businesses, in accordance with their request, either a copy of the Notice of Intended Action or notice of the subject of that proposed rule making. In the case of a rule that may have an impact on small business adopted in reliance upon Iowa Code section 17A.4(2), the department shall mail notice of the adopted rule to registered businesses or organizations prior to the time the adopted rule is published in the Iowa Administrative Bulletin.

6.6(4) Qualified requesters for regulatory analysis—economic impact. The department shall issue a regulatory analysis of a proposed rule that conforms to the requirements of Iowa Code section 17A.4A(2)“a” after a proper request from:

a. The administrative rules coordinator;

b. The administrative rules review committee.

6.6(5) Qualified requesters for regulatory analysis—business impact. The agency shall issue a regulatory analysis of a proposed rule that conforms to the requirements of Iowa Code section 17A.4A(2)“b” after a proper request from:

a. The administrative rules coordinator;

b. The administrative rules review committee;

c. At least 25 or more persons who sign the request provided that each represents a different small business;

d. An organization representing at least 25 small businesses. That organization shall list the name, address and telephone number of not less than 25 small businesses it represents.

6.6(6) Time period for analysis. Upon receipt of a timely request for a regulatory analysis the department shall adhere to the time lines described in Iowa Code section 17A.4A(4).

6.6(7) Contents of request. A request for a regulatory analysis is made when it is mailed or delivered to the agency. The request shall be in writing and satisfy the requirements of Iowa Code section 17A.4A(1).

6.6(8) Contents of concise summary. The contents of the concise summary shall conform to the requirements of Iowa Code sections 17A.4A(4) and (5).

6.6(9) Publication of a concise summary. The department shall make available, to the maximum extent feasible, copies of the published summary in conformance with Iowa Code section 17A.4A(5).

6.6(10) Regulatory analysis contents—rules review committee or rules coordinator. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, or the administrative rules coordinator, the regulatory analysis shall conform to the requirements of Iowa Code section 17A.4A(2)“a,” unless a written request expressly waives one or more of the items listed in the section.

6.6(11) Regulatory analysis contents—substantial impact on small business. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, the administrative rules coordinator, at least 25 persons signing that request who each qualify as a small business or by an organization representing at least 25 small businesses, the regulatory analysis shall conform to the requirements of Iowa Code section 17A.4A(2)“b.”

11—6.7(17A,25B) Fiscal impact statement.

6.7(1) A proposed rule that mandates additional combined expenditures exceeding $100,000 by all affected political subdivisions, or agencies and entities which contract with political subdivisions to provide services shall be accompanied by a fiscal impact statement outlining the costs associated with the rule. A fiscal impact statement shall satisfy the requirements of Iowa Code section 25B.6.

6.7(2) If the department determines at the time it adopts a rule that the fiscal impact statement upon which the rule is based contains errors, the department shall, at the same time, issue a corrected fiscal impact statement and publish the corrected fiscal impact statement in the Iowa Administrative Bulletin.

11—6.8(17A) Time and manner of rule adoption.

6.8(1) Time of adoption. The department shall not adopt a rule until the period for making written submissions and oral presentations has expired. Within 180 days after the later of the publication of the Notice of Intended Action, or the end of oral proceedings thereon, the department shall adopt a rule pursuant to the rule–making proceeding or terminate the proceeding by publication of a notice to that effect in the Iowa Administrative Bulletin.

6.8(2) Consideration of public comment. Before the adoption of a rule, the department shall consider fully all of the written submissions and oral submissions received in that rule–making proceeding or any memorandum summarizing such oral submissions, and any regulatory analysis or fiscal impact statement issued in that rule–making proceeding.

6.8(3) Reliance on agency expertise. Except as otherwise provided by law, the department may use its own experience, technical competence, specialized knowledge, and judgment in the adoption of a rule.

11—6.9(17A) Variance between adopted rule and published notice of proposed rule adoption.

6.9(1) The department shall not adopt a rule that differs from the rule proposed in the Notice of Intended Action on which the rule is based unless:

a. The differences are within the scope of the subject matter announced in the Notice of Intended Action and are in character with the issues raised in that notice; and

b. The differences are a logical outgrowth of the contents of that Notice of Intended Action and the comments submitted in response thereto; and

c. The Notice of Intended Action provided fair warning that the outcome of that rule–making proceeding could be the rule in question.

6.9(2) In determining whether the Notice of Intended Action provided fair warning that the outcome of that rule–making proceeding could be the rule in question, the department shall consider the following factors:

a. The extent to which persons who will be affected by the rule should have understood that the rule–making proceeding on which it is based could affect their interests;

b. The extent to which the subject matter of the rule or the issues determined by the rule are different from the subject matter or issues contained in the Notice of Intended Action.

6.9(3) The department shall commence a rule–making proceeding within 60 days of its receipt of a petition for rule making seeking the amendment or repeal of a rule that differs from the proposed rule contained in the Notice of Intended Action upon which the rule is based, unless the department finds that the differences between the adopted rule and the proposed rule are so insubstantial as to make such a rule–making proceeding wholly unnecessary. A copy of any such finding and the petition to which it responds shall be sent to the petitioner, the administrative rules coordinator, and the administrative rules review committee, within three days of its issuance.

6.9(4) Concurrent rule–making proceedings. Nothing in this rule disturbs the discretion of the department to initiate, concurrently, several different rule–making proceedings on the same subject with several different published Notices of Intended Action.

11—6.10(17A) Exemptions from public rule–making procedures.

6.10(1) Omission of notice and comment. To the extent the department for good cause finds that public notice and participation are unnecessary, impracticable, or contrary to the public interest in the process of adopting a particular rule, the department may adopt that rule without publishing advance Notice of Intended Action in the Iowa Administrative Bulletin and without providing for written or oral public submissions prior to its adoption. The department shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.

6.10(2) Categories exempt. The following narrowly tailored categories of rules are exempted from the usual public notice and participation requirements because those requirements are unnecessary, impracticable, or contrary to the public interest with respect to each and every member of the defined class: rules mandated by either state or federal law.

6.10(3) Public proceedings on rules adopted without them. The department may, at any time, commence a standard rule–making proceeding for the adoption of a rule that is identical or similar to a rule it adopts in reliance upon subrule 6.10(1). Upon written petition by a governmental subdivision, the administrative rules review committee, an agency, the administrative rules coordinator, an association having not less than 25 members, or at least 25 persons, the department shall commence a standard rule–making proceeding for any rule specified in the petition that was adopted in reliance upon subrule 6.10(1). Such a petition must be filed within one year of the publication of the specified rule in the Iowa Administrative Bulletin as an adopted rule. The rule–making proceeding on that rule must be commenced within 60 days of the receipt of such a petition. After a standard rule–making proceeding commenced pursuant to this subrule, the department may either readopt the rule it adopted without benefit of all usual procedures on the basis of subrule 6.10(1), or may take any other lawful action, including the amendment or repeal of the rule in question, with whatever further proceedings are appropriate.

11—6.11(17A) Concise statement of reasons.

6.11(1) General. When requested by a person, either prior to the adoption of a rule or within 30 days after its publication in the Iowa Administrative Bulletin as an adopted rule, the department shall issue a concise statement of reasons for the rule. Requests for such a statement must be in writing and be delivered to the Rules Administrator, Administrative Services Department, Hoover State Office Building, Level A–South, Des Moines, Iowa 50319. The request should indicate whether the statement is sought for all or only a specified part of the rule. Requests will be considered made on the date received.

6.11(2) Contents. The concise statement of reasons shall contain:

a. The reasons for adopting the rule;

b. An indication of any change between the text of the proposed rule contained in the published Notice of Intended Action and the text of the rule as finally adopted, with the reasons for any such change;

c. The principal reasons urged in the rule–making proceeding for and against the rule, and the department’s reasons for overruling the arguments made against the rule.

6.11(3) Time of issuance. After a proper request, the department shall issue a concise statement of reasons by the later of the time the rule is adopted or 35 days after receipt of the request.

11—6.12(17A) Contents, style, and form of rule.

6.12(1) Contents. Each rule adopted by the department shall contain the text of the rule and, in addition:

a. The date the department adopted the rule;

b. A brief explanation of the principal reasons for the rule–making action if such reasons are required by Iowa Code section 17A.4(1)“b,” or the department in its discretion decides to include such reasons;

c. A reference to all rules repealed, amended, or suspended by the rule;

d. A reference to the specific statutory or other authority authorizing adoption of the rule;

e. Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule;

f. A brief explanation of the principal reasons for the failure to provide for waivers to the rule if no waiver provision is included and a brief explanation of any waiver or special exceptions provided in the rule if such reasons are required by Iowa Code section 17A.4(1)“b,” or the department in its discretion decides to include such reasons; and

g. The effective date of the rule.

6.12(2) Incorporation by reference. The department may incorporate by reference in a proposed or adopted rule, and without causing publication of the incorporated matter in full, all or any part of a code, standard, rule, or other matter if the department finds that the incorporation of its text in the department proposed or adopted rule would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in the department proposed or adopted rule shall fully and precisely identify the incorporated matter by location, title, citation, date, and edition, if any; shall briefly indicate the precise subject and the general contents of the incorporated matter; and shall state that the proposed or adopted rule does not include any later amendments or editions of the incorporated matter. The department may incorporate such matter by reference in a proposed or adopted rule only if the department makes copies of it readily available to the public. The rule shall state how and where copies of the incorporated matter may be obtained at cost from the administrative services department, and how and where copies may be obtained from the agency of the United States, this state, another state, or the organization, association, or persons, originally issuing that matter. The department shall retain permanently a copy of any materials incorporated by reference in a rule of the administrative services department.

If the department adopts standards by reference to another publication, it shall provide a copy of the publication containing the standards to the administrative rules coordinator for deposit in the state law library and may make the standards available electronically.

6.12(3) References to materials not published in full. When the administrative code editor decides to omit the full text of a proposed or adopted rule because publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient, the department shall prepare and submit to the administrative code editor for inclusion in the Iowa Administrative Bulletin and Iowa Administrative Code a summary statement describing the specific subject matter of the omitted material. This summary statement shall include the title and a brief description sufficient to inform the public of the specific nature and subject matter of the proposed or adopted rules, and of significant issues involved in these rules. The summary statement shall also describe how a copy of the full text of the proposed or adopted rule, including any unpublished matter and any matter incorporated by reference, may be obtained from the department. The department will provide a copy of that full text (at actual cost) upon request and shall make copies of the full text available for review at the state law library and may make the standards available electronically.

At the request of the administrative code editor, the department shall provide a proposed statement explaining why publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient.

6.12(4) Style and form. In preparing its rules, the department shall follow the uniform numbering system, form, and style prescribed by the administrative rules coordinator.

11—6.13(17A) Department rule–making record.

6.13(1) Requirement. The department shall maintain an official rule–making record for each rule it proposes or adopts by publication in the Iowa Administrative Bulletin of a Notice of Intended Action. The rule–making record and materials incorporated by reference must be available for public inspection.

6.13(2) Contents. The agency rule–making record shall contain:

a. Copies of all publications in the Iowa Administrative Bulletin with respect to the rule or the proceeding upon which the rule is based and any file–stamped copies of submissions to the administrative rules coordinator concerning that rule or the proceeding upon which it is based;

b. Copies of any portions of the department’s public rule–making docket containing entries relating to the rule or the proceeding upon which the rule is based;

c. All written petitions, requests, and submissions received by the department, and all other written materials of a factual nature and distinguished from opinion that are relevant to the merits of the rule and that were created or compiled by the department and considered by the chief information officer, in connection with the formulation, proposal, or adoption of the rule or the proceeding upon which the rule is based, except to the extent the department is authorized by law to keep them confidential; provided, however, that when any such materials are deleted because they are authorized by law to be kept confidential, the department shall identify in the record the particular materials deleted and state the reasons for that deletion;

d. Any official transcript of oral presentations made in the proceeding upon which the rule is based or, if not transcribed, the stenographic record or electronic recording of those presentations, and any memorandum prepared by a presiding officer summarizing the contents of those presentations;

e. A copy of any regulatory analysis or fiscal impact statement prepared for the proceeding upon which the rule is based;

f. A copy of the rule and any concise statement of reasons prepared for that rule;

g. All petitions for amendment or repeal or suspension of the rule;

h. A copy of any objection to the issuance of that rule without public notice and participation that was filed pursuant to Iowa Code section 17A.4(2) by the administrative rules review committee, the governor, or the attorney general;

i. A copy of any objection to the rule filed by the administrative rules review committee, the governor, or the attorney general pursuant to Iowa Code section 17A.4(4), and any department response to that objection;

j. A copy of any significant written criticism of the rule, including a summary of any petitions for waiver of the rule; and

k. A copy of any executive order concerning the rule.

6.13(3) Effect of record. Except as otherwise required by a provision of law, the department rule–making record required by this rule need not constitute the exclusive basis for department action on that rule.

6.13(4) Maintenance of record. The department shall maintain the rule–making record for a period of not less than five years from the later of the date the rule to which it pertains became effective, the date of the Notice of Intended Action, or the date of any written criticism as described in 6.13(2)“g,” “h,” “i,” or “j.”

11—6.14(17A) Filing of rules. The department shall file each rule it adopts in the office of the administrative rules coordinator. The filing must be executed as soon after adoption of the rule as is practicable. At the time of filing, each rule must have attached to it any fiscal impact statement and any concise statement of reasons that was issued with respect to that rule. If a fiscal impact statement or statement of reasons for that rule was not issued until a time subsequent to the filing of that rule, the note or statement must be attached to the filed rule within five working days after the note or statement is issued. In filing a rule, the department shall use the standard form prescribed by the administrative rules coordinator.

11—6.15(17A) Effectiveness of rules prior to publication.

6.15(1) Grounds. The department may make a rule effective after its filing at any stated time prior to 35 days after its indexing and publication in the Iowa Administrative Bulletin if it finds that a statute so provides, the rule confers a benefit or removes a restriction on some segment of the public, or that the effective date of the rule is necessary to avoid imminent peril to the public health, safety, or welfare. The department shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.

6.15(2) Special notice. When the department makes a rule effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3), the department shall employ all reasonable efforts to make its contents known to the persons who may be affected by that rule prior to the rule’s indexing and publication. The term “all reasonable efforts” requires the department to employ the most effective and prompt means of notice rationally calculated to inform potentially affected parties of the effectiveness of the rule that is justified and practical under the circumstances considering the various alternatives available for this purpose, the comparative costs to the department of utilizing each of those alternatives, and the harm suffered by affected persons from any lack of notice concerning the contents of the rule prior to its indexing and publication. The means that may be used for providing notice of such rules prior to their indexing and publication include, but are not limited to, any one or more of the following means: radio, newspaper, television, signs, mail, telephone, personal notices or electronic means.

A rule made effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3) shall include in that rule a statement describing the reasonable efforts that will be used to comply with the requirements of subrule 6.15(2).

11—6.16(17A) General statements of policy.

6.16(1) Compilation, indexing, public inspection. The department shall maintain an official, current, and dated compilation that is indexed by subject, containing all of its general statements of policy within the scope of Iowa Code section 17A.2(11)“a,” “c,” “f,” “g,” “h,” “k.” Each addition to, change in, or deletion from the official compilation must also be dated, indexed, and a record thereof kept. Except for those portions containing rules governed by Iowa Code section 17A.2(11)“f,” or otherwise authorized by law to be kept confidential, the compilation must be made available for public inspection and copying.

6.16(2) Enforcement of requirements. A general statement of policy subject to the requirements of this subsection shall not be relied on by the department to the detriment of any person who does not have actual, timely knowledge of the contents of the statement until the requirements of subrule 6.16(1) are satisfied. This provision is inapplicable to the extent necessary to avoid imminent peril to the public health, safety, or welfare.

11—6.17(17A) Review by department of rules.

6.17(1) Any interested person, association, agency, or political subdivision may submit a written request to the administrative rules coordinator requesting the department to conduct a formal review of a specified rule. Upon approval of that request by the administrative rules coordinator, the department shall conduct a formal review of a specified rule to determine whether a new rule should be adopted instead or whether the rule should be amended or repealed. The department may refuse to conduct a review if it has conducted such a review of the specified rule within five years prior to the filing of the written request.

6.17(2) In conducting the formal review, the department shall prepare within a reasonable time a written report summarizing its findings, its supporting reasons, and any proposed course of action. The report must include a concise statement of the department’s findings regarding the rule’s effectiveness in achieving its objectives, including a summary of any available supporting data. The report shall also concisely describe significant written criticisms of the rule received during the previous five years, including a summary of any petitions for waiver of the rule received by the department or granted by the department. The report shall describe alternative solutions to resolve the criticisms of the rule, the reasons any were rejected, and any changes made in the rule in response to the criticisms as well as the reasons for the changes. A copy of the department’s report shall be sent to the administrative rules review committee and the administrative rules coordinator. The report must also be available for public inspection.

These rules are intended to implement Iowa Code chapter 17A and 2003 Iowa Code Supplement chapter 8A.

[Filed 11/6/03, Notice 10/1/03—published 11/26/03, effective 2/11/04]

[Filed 10/22/04, Notice 9/15/04—published 11/10/04, effective 12/15/04]

chapter 7
contested cases

11—7.1(8A,17A) Scope and applicability. This chapter applies to contested case proceedings conducted by the administrative services department, or by the division of administrative hearings in the department of inspections and appeals on behalf of the department. Excepted from this chapter are matters covered by rule 11—60.2(8A), disciplinary actions; rule 11—61.1(8A), grievances; 11—subrule 61.2(6), appeal of disciplinary actions; rule 11—68.6(19B), discrimination complaints, including disability–related and sexual harassment complaints; matters covered by the grievance procedure in any collective bargaining agreement with state employees; matters within the exclusive jurisdiction of the industrial commissioner; and matters related to any of the department’s vendors that administer group benefits if the vendor has an established complaint or appeal procedure. Further, the provisions of 11—Chapter 52, job classification, are exempt from subrules 7.5(4) to 7.5(7) and rules 7.6(8A,17A) and 7.8(8A,17A).

11—7.2(8A,17A) Definitions. Except where otherwise specifically defined by law:

“Administrative law judge (ALJ)” means an employee of the administrative hearings division of the department of inspections and appeals who presides over contested cases and other proceedings.

“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under Iowa Code section 17A.10A.

“Department” means the department of administrative services (DAS).

“Director” means the director of the department of administrative services or the director’s designee.

“Division” means the division of administrative hearings of the department of inspections and appeals (DIA).

“Ex parte” means a communication, oral or written, to the presiding officer or other decision maker in a contested case without notice and an opportunity for all parties to participate.

“Filing” is defined in subrule 7.12(4) except where otherwise specifically defined by law.

“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means, unless another date is specified in the order.

“Party” means a party as defined in Iowa Code subsection 17A.2(8).

“Presiding officer” means the administrative law judge (ALJ) assigned to the contested case or, in the case of an appeal pursuant to rule 11—52.5(8A), the classification appeal committee appointed by the director.

“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, and decision and order in contested cases where the department did not preside.

11—7.3(8A,17A) Time requirements.

7.3(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).

7.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as provided otherwise by rule or law. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.

11—7.4(8A,17A) Requests for a contested case hearing. Any person claiming an entitlement to a contested case proceeding shall file a written request for such a proceeding within the time specified by the particular rules or statutes governing the subject matter or, in the absence of such law, the time spec–ified in the department action in question.

The request for a contested case proceeding should state the name and address of the requester, identify the specific department action which is disputed, and where the requester is represented by a lawyer identify the provisions of law or precedent requiring or authorizing the holding of a contested case proceeding in the particular circumstances involved, and include a short and plain statement of the issues of material fact in dispute.

11—7.5(8A,17A) Notice of hearing.

7.5(1) Delivery. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Notices shall be served by first–class mail, unless otherwise required by statute or rule.

7.5(2) Content. Notices of hearing shall contain the information required by Iowa Code subsection 17A.12(2), the following information and any additional information required by statute or rule.

a. Identification of all parties including the name, address and telephone number of the person who will act as advocate for the department or the state and of parties’ counsel, where known;

b. Reference to the procedural rules governing conduct of the contested case proceeding;

c. Reference to the procedural rules governing informal settlement; and

d. Identification of the presiding officer, if known. If not known, a description of who will serve as presiding officer (e.g., an administrative law judge from the department of inspections and appeals, or the classification appeal committee).

7.5(3) Transmission of contested cases. In every proceeding filed by the department with the division, the department shall complete a transmittal form. The following information is required:

a. The name of the transmitting department;

b. The name, address and telephone number of the contact person in the transmitting department;

c. The name or title of the proceeding, which may include a file number;

d. Any department docket or reference number;

e. A citation to the jurisdictional authority of the department regarding the matter in controversy;

f. Any anticipated special features or requirements that may affect the hearing;

g. Whether the hearing should be held in person or by telephone or video conference call;

h. Any special legal or technical expertise needed to resolve the issues in the case;

i. The names and addresses of all parties and their attorneys or other representatives;

j. The date the request for a contested case hearing was received by the department;

k. A statement of the issues involved and a reference to statutes and rules involved;

l. Any mandatory time limits that apply to the processing of the case;

m. The earliest appropriate hearing date; and

n. Whether a petition or answer is required.

7.5(4) Issuance of the hearing notice. When a case is transmitted by the department to the division for hearing, the division shall issue the notice of hearing.

7.5(5) Attachments. The following documents shall be attached to the completed transmittal form when it is sent to the division:

a. A copy of the document showing the department action in controversy; and

b. A copy of any document requesting a contested case hearing.

7.5(6) Receipt. When a properly transmitted case is received, it is marked with the date of receipt by the division. An identifying number shall be assigned to each contested case upon receipt.

7.5(7) Scheduling. The division shall promptly schedule hearings for the department. The availability of an administrative law judge and any special circumstances shall be considered.

11—7.6(8A,17A) Presiding officer.

7.6(1) An administrative law judge shall have the following technical expertise unless waived by the department.

a. A license to practice law in the state of Iowa;

b. Three years’ experience as an administrative law judge; and

c. For a hearing related to procurement, knowledge of contract law.

7.6(2) Except as otherwise provided by law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the department. A party must seek any available intra–agency appeal in order to exhaust adequate administrative remedies.

7.6(3) Unless otherwise provided by law, the director, or the director’s designee, when reviewing a proposed decision upon intra–agency appeal, shall have the powers of and shall comply with the provisions of this chapter which apply to presiding officers.

11—7.7(17A) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter pursuant to Iowa Code section 17A.10. However, the department in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.

11—7.8(8A,17A) Telephone/video proceedings. A prehearing conference or a hearing may be held by telephone or video conference call pursuant to a notice of hearing or an order of the presiding officer. The presiding officer shall determine the location of the parties and witnesses in telephone or video hearings. The convenience of the witnesses or parties, as well as the nature of the case, shall be considered when the location is chosen.

11—7.9(8A,17A) Disqualification.

7.9(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;

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 that: (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.

7.9(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 general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other department functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case. 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 subsection 17A.17(3) and subrules 7.9(3) and 7.23(3).

7.9(3) 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 for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.

7.9(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 7.9(1), the party shall file a motion supported by an affidavit pursuant to Iowa Code subsection 17A.17(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party.

If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must establish the grounds by the introduction of evidence into the record.

If the presiding officer determines that disqualification is appropriate, the presiding officer or other person shall withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer shall enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal under rule 7.25(8A,17A) and seek a stay under rule 7.29(8A,17A).

11—7.10(8A,17A) Consolidation—severance.

7.10(1) Consolidation. The presiding officer may, upon motion by any party or the presiding officer’s own motion, consolidate any or all matters at issue in two or more contested case proceedings where:

a. The matters at issue involve common parties or common questions of fact or law;

b. Consolidation would expedite and simplify consideration of the issues; and

c. Consolidation would not adversely affect the rights of parties to those proceedings.

At any time prior to the hearing, any party may on motion request that the matters not be consolidated, and the motion shall be granted for good cause shown.

7.10(2) Severance. The presiding officer may, upon motion by any party or upon the presiding officer’s own motion, for good cause shown, order any proceeding or portion thereof severed.

11—7.11(8A,17A) Pleadings.

7.11(1) Pleadings may be required by rule, by the notice of hearing or by order of the presiding officer.

7.11(2) Petition. When an action of the department is appealed and pleadings are required under subrule 7.11(1), the aggrieved party shall file the petition.

a. Any required petition shall be filed within 20 days of delivery of the notice of hearing, unless otherwise ordered.

b. The petition shall state in separately numbered paragraphs the following:

(1) On whose behalf the petition is filed;

(2) The particular provisions of the statutes and rules involved;

(3) The relief demanded and the facts and law relied upon for relief; and

(4) The name, address and telephone number of the petitioner and the petitioner’s attorney, if any.

7.11(3) Answer. If pleadings are required, the answer shall be filed within 20 days of service of the petition or notice of hearing, unless otherwise ordered.

a. Any party may move to dismiss or apply for a more definite, detailed statement when appropriate.

b. The answer shall show on whose behalf it is filed and specifically admit, deny or otherwise answer all material allegations of the pleading to which it responds. It shall state any facts deemed to show an affirmative defense and may contain as many defenses as the pleader may claim.

c. The answer shall state the name, address and telephone number of the person filing the answer and of the attorney representing that person, if any.

d. Any allegation in the petition not denied in the answer is considered admitted. The presiding officer may refuse to consider any defense not raised in the answer which could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.

7.11(4) Amendment. Any notice of hearing, petition or other charging document may be amended before a responsive pleading has been filed. Amendments to pleadings after a responsive pleading has been filed and to an answer may be allowed with the consent of the other parties or in the discretion of the presiding officer who may impose terms or grant a continuance.

11—7.12(8A,17A) Service and filing of pleadings and other papers.

7.12(1) When service is required. Except where otherwise specifically authorized by law, every pleading, motion, document or other paper filed in the contested case proceeding and every paper relating to discovery in the proceeding shall be served upon each of the parties to the proceeding, including the originating agency. Except for the notice of the hearing and an application for rehearing as provided in Iowa Code subsection 17A.16(2), the party filing a document is responsible for service on all parties.

7.12(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last–known address. Service by first–class mail is rebuttably presumed to be complete upon mailing, except where otherwise specifically provided by statute, rule or order.

7.12(3) Filing—when required.

a. After a matter has been assigned to the division, and until a proposed decision is issued, documents shall be filed with the division, rather than the originating agency. All papers filed after the notice is issued that are required to be served upon a party shall be filed simultaneously with the division.

b. After the notice of hearing, when a matter has not been assigned to the department of inspections and appeals for hearing, all pleadings, motions, documents or other papers in a contested case proceeding shall be filed with the Administrative Services Department, Hoover State Office Building, Level A, Des Moines, Iowa 50319. All pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the department.

7.12(4) Filing—when made.

a. Except where otherwise provided by law, a document is deemed filed at the time it is:

(1) Delivered to the division of administrative hearings pursuant to subrule 7.12(3), paragraph “a,” or to the department of administrative services pursuant to subrule 7.12(3), paragraph “b,” and date–stamped received;

(2) Delivered to an established courier service for immediate delivery;

(3) Mailed by first–class mail or by state interoffice mail so long as there is adequate proof of mailing; or

(4) Sent by facsimile transmission (fax) as provided in subrule 7.12(4), paragraph “b.”

b. All documents filed with the division or the department pursuant to these rules, except a person’s request or demand for a contested case proceeding (see Iowa Code subsection 17A.12(9)), may be filed by facsimile transmission (fax). A copy shall be filed for each case involved. A document filed by fax is presumed to be an accurate reproduction of the original. If a document filed by fax is illegible, a legible copy may be substituted and the date of filing shall be the date the illegible copy was received. The date of filing by fax shall be the date the document is received by the division or the department. The receiving office will not provide a mailed file–stamped copy of documents filed by fax.

7.12(5) Proof of mailing. Adequate proof of mailing includes the following:

a. A legible United States Postal Service postmark on the envelope;

b. A certificate of service;

c. A notarized affidavit; or

d. A certification in substantially the following form:

I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Department of Administrative Services, Hoover State Office Building, Level A, Des Moines, Iowa 50319, and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed) or (state interoffice mail).

___________

(SIGNATURE) (DATE)

11—7.13(8A,17A) Discovery.

7.13(1) Pursuant to Iowa Code section 17A.13, discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by rules of the department or by a ruling by the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.

7.13(2) Any motion relating to discovery shall allege that the moving party has made a good faith attempt to resolve the issues raised by the motion with the opposing party. Motions in regard to discovery shall be ruled on by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 7.13(1). The presiding officer may rule on the basis of the written motion and any response or may order argument on the motion.

7.13(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.

11—7.14(8A,17A) Subpoenas.

7.14(1) Issuance.

a. Pursuant to Iowa Code subsection 17A.13(1), a department subpoena shall be issued to a party on request unless subrule 7.14(1), paragraph “d,” applies. A request may be either oral or in writing. In the absence of good cause for permitting later action, a written request for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address and telephone number of the requesting party.

b. Parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.

c. When authorized by law, a presiding officer may issue a subpoena on the presiding officer’s own motion.

d. When there is reasonable ground to believe a subpoena is requested for the purpose of harassment, or that the subpoena is irrelevant, the presiding officer may refuse to issue the subpoena, or may require the requesting party to provide a statement of testimony expected to be elicited from the subpoenaed witness and a showing of relevancy. If the presiding officer refuses to issue a subpoena, the presiding officer shall provide, upon request, a written statement of the ground for refusal. A party to whom a refusal is issued may obtain a prompt hearing regarding the refusal by filing a written request to the presiding officer.

7.14(2) Motion to quash or modify.

a. A subpoena may be quashed or modified upon motion for any lawful ground in accordance with Iowa Rule of Civil Procedure 1.1701.

b. A motion to quash or modify a subpoena shall be served on all parties of record.

c. The motion shall be set for argument promptly.

11—7.15(8A,17A) Motions.

7.15(1) No technical form is required for motions. Prehearing motions, however, must be written, state the grounds for relief and state the relief sought. Any motion for summary judgment shall be filed in compliance with the requirements of Iowa Rule of Civil Procedure 1.981.

7.15(2) Any party may file a written resistance or response to a motion within 15 days after the motion is served, unless the time period is extended or shortened by rules of the department or by the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.

7.15(3) The presiding officer may schedule oral argument on any motion on the request of any party or on the presiding officer’s own motion.

7.15(4) Except for good cause, all motions pertaining to the hearing must be filed and served at least 10 days prior to the hearing date unless the time period is shortened or lengthened by rules of the department or by the presiding officer.

11—7.16(8A,17A) Prehearing conference.

7.16(1) Any party may request a prehearing conference. A request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion shall be filed in writing and served on all parties of record not less than ten days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date.

The presiding officer shall give notice of the prehearing conference to all parties. For good cause, the presiding officer may permit variances from this rule.

7.16(2) Each party shall bring to the prehearing conference:

a. A final list of witnesses who the party reasonably anticipates will testify at the hearing. Witnesses not listed may be excluded from testifying.

b. A final list of exhibits that the party reasonably anticipates will be introduced at the hearing. Exhibits not listed, except rebuttal exhibits, may be excluded from admission into evidence.

7.16(3) In addition to the requirements of subrule 7.16(2), the parties at a prehearing conference may:

a. Enter into stipulations of law;

b. Enter into stipulations of fact;

c. Enter into stipulations on the admissibility of exhibits;

d. Identify matters that the parties intend to request be officially noticed;

e. Unless precluded by statute, enter into stipulations for waiver of the provisions of Iowa Code chapter 17A allowed by Iowa Code section 17A.10(2) or waiver of department rules; and

f. Consider any additional matters that will expedite the hearing.

7.16(4) A prehearing conference shall be conducted by telephone or video conference call unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists prior to a telephone or video prehearing conference call.

11—7.17(17A) Continuances. Unless otherwise provided, application for continuance shall be made to the presiding officer.

7.17(1) A written application for continuance shall:

a. Be made before the hearing;

b. State the specific reasons for the request; and

c. Be signed by the requesting party or the requesting party’s representative.

7.17(2) If the presiding officer waives the requirement for a written motion, an oral application for continuance may be made. A written application shall be submitted no later than five days after the oral request. The presiding officer may waive the requirement for a written application. No application for continuance will be made or granted ex parte without notice except in an emergency where notice is not feasible. The department may waive notice of requests for a case or a class of cases.

7.17(3) Except where otherwise provided, a continuance may be granted at the discretion of the presiding officer. The presiding officer may consider, in addition to the grounds stated in the motion:

a. Any prior continuances;

b. The interests of all parties;

c. The likelihood of informal settlement;

d. Existence of emergency;

e. Objection to the continuance;

f. Any applicable time requirements;

g. The existence of a conflict in the schedules of counsel or parties or witnesses;

h. The timeliness of the request;

i. Any applicable state or federal statutes or regulations; and

j. Other relevant factors.

The presiding officer may require documentation of any ground for continuance.

11—7.18(8A,17A) Withdrawals. The party that requested an evidentiary hearing regarding department action may withdraw prior to the hearing only in accordance with department rules. Requests for withdrawal may be oral or written. If the request is oral, the presiding officer may require the party to submit a written request after the oral request. Unless otherwise provided, a withdrawal shall be with prejudice.

11—7.19(8A,17A) Intervention.

7.19(1) Motion. A motion for leave to intervene shall be served on all parties and 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 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.

7.19(2) When filed. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the disposition of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if one is held, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. The intervenor shall be bound by any agreement, arrangement or other matter previously raised in the case. Requests by untimely intervenors for continuances that would delay the hearing will be denied.

7.19(3) 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 will be aggrieved or adversely affected by a final order; and

c. The interests of the movant are not being adequately represented by existing parties; or that the movant is otherwise entitled to intervene.

7.19(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues to be raised or otherwise condition the intervenor’s participation in the proceeding.

11—7.20(8A,17A) Hearing procedures.

7.20(1) The appointed presiding officer in a contested case proceeding shall preside at the hearing and may:

a. Rule on motions;

b. Require the parties to submit briefs;

c. Issue a proposed decision; and

d. Issue orders and rulings to ensure the orderly conduct of the proceedings.

7.20(2) All objections to procedures, admission of evidence or any other matter shall be timely made and stated on the record.

7.20(3) Parties in a contested case have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations or associations may be represented by any member, officer, director or duly authorized agent.

Any party may be represented by an attorney or another person authorized by law. The cost of representation is the responsibility of the party.

7.20(4) Parties in a contested case have the right to introduce evidence on points at issue, to cross–examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, to pre–sent evidence in rebuttal, and to submit briefs and engage in oral argument.

7.20(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly or disruptive.

7.20(6) Witnesses may be sequestered during the hearing.

7.20(7) The presiding officer shall conduct the hearing in the following manner:

a. The presiding officer shall give an opening statement briefly describing the nature of the proceeding;

b. The parties shall be given an opportunity to present opening statements;

c. Parties shall present their cases in the sequence determined by the presiding officer;

d. Each witness shall be sworn or affirmed by the presiding officer or the court reporter, and be subject to examination and cross–examination. The presiding officer may limit questioning consistent with Iowa Code section 17A.14;

e. The presiding officer has the authority to fully and fairly develop the record and may inquire into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material; and

f. When all parties and witnesses have been heard, parties shall be given the opportunity to pre–sent final arguments.

11—7.21(8A,17A) Evidence.

7.21(1) The presiding officer shall rule on admissibility of evidence in accordance with Iowa Code section 17A.14 and may take official notice of facts pursuant to Iowa Code subsection 17A.14(4).

7.21(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.

7.21(3) Evidence shall be confined to the issues on which there has been fair notice prior to the hearing. The presiding officer may take testimony on a new issue if the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If there is objection, the presiding officer may refuse to hear the new issue and may make a decision on the original issue in the notice, or may grant a continuance to allow the parties adequate time to amend pleadings and prepare their cases on the additional issue.

7.21(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should be provided to opposing parties.

All exhibits admitted into evidence shall be appropriately marked and be made part of the record.

7.21(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross–examination. The objecting party shall briefly state the grounds for the objection. The objection, the ruling on the objection and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.

7.21(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony. If the evidence excluded consists of a document or exhibits, it shall be marked as part of an offer of proof and inserted in the record.

11—7.22(8A,17A) Default.

7.22(1) If a party fails to appear in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and make a decision in the absence of the party.

7.22(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested the contested case proceeding and has failed to file a required pleading or has failed to appear after proper service.

7.22(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final department action unless, within 15 days (unless another period of time is specifically required by statute or rule) after the date of notification or 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 within the time provided by rule 7.27(8A,17A). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit must be attached to the motion.

7.22(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.

7.22(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.

7.22(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 1.977.

7.22(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 7.25(8A,17A).

7.22(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer shall issue another notice of hearing and the contested case shall proceed accordingly.

7.22(9) A default decision may award any relief consistent with the request for relief made in the petition and embraced in its issues (but, unless the defaulting party has appeared, it cannot exceed the relief demanded).

7.22(10) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 7.29(8A,17A).

11—7.23(8A,17A) Ex parte communication.

7.23(1) Ex parte communication is prohibited as provided in Iowa Code section 17A.17. Parties or their representatives and the presiding officer shall not communicate directly or indirectly in connection with any issue of fact or law in a contested case except upon notice and an opportunity for all parties to participate. The presiding officer may communicate with persons who are not parties as provided in subrule 7.23(2).

7.23(2) However, the presiding officer may communicate with members of the department and may have the aid and advice of persons other than those with a personal interest in, or those prosecuting or advocating in the case under consideration or a factually related case involving the same parties. Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.

7.23(3) Any party or presiding officer who receives prohibited communication shall submit the written communication or a summary of the oral communication for inclusion in the record. Copies shall be sent to all parties. There shall be opportunity to respond.

7.23(4) Prohibited communications may result in sanctions as provided in department rule. In addition, the department, through the presiding officer, may censure the person or may prohibit further appearance before the department.

11—7.24(8A,17A) Recording costs. The department shall provide a copy of the tape–recorded hearing or a printed transcript of the hearing when a record of the hearing is requested. The cost of preparing the tape or transcript shall be paid by the requesting party.

Parties who request that a hearing be recorded by certified shorthand reporters shall bear the cost, unless otherwise provided by law.

11—7.25(8A,17A) Interlocutory appeals. Upon written request of a party or on its own motion, the director or the director’s designee may review an interlocutory order of the presiding officer. In determining whether to do so, the director shall weigh the extent to which the granting of the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by the department at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of hearing, whichever is first.

11—7.26(8A,17A) Decisions.

7.26(1) Final decision of department. When the department presides over the reception of evidence at the hearing, its decision is a final decision.

7.26(2) Proposed decision. When the department does not preside at the reception of evidence, the presiding officer shall make a proposed decision.

A ruling dismissing all of a party’s claims or a voluntary dismissal is a proposed decision under Iowa Code section 17A.15.

7.26(3) Contents of decision. The proposed or final decision or order shall:

a. Be in writing or stated in the record.

b. Include findings of fact. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of underlying facts supporting the findings.

c. Include conclusions of law stated separately from findings of fact and supported by cited authority or a reasoned opinion.

d. Be based on the record of the contested case. The record of the contested case shall include all materials specified in Iowa Code subsection 17A.12(6). This record shall include any request for a contested case hearing and other relevant procedural documents regardless of their form.

7.26(4) Proposed decision becomes final. The proposed decision of the presiding officer becomes the final decision of the department without further proceedings unless there is an appeal to, or review on motion of, the department within the time provided in rule 7.27(8A,17A).

7.26(5) Reports. The department shall send to the division a copy of any request for review of a proposed decision issued by a presiding officer from the department of inspections and appeals. The department shall notify the division of the results of the review, the final decision and any judicial decision issued.

11—7.27(8A,17A) Appeals and review.

7.27(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the director within 14 days after issuance of the proposed decision.

7.27(2) Review. The director may initiate review of a proposed decision on the director’s own motion at any time within 21 days following the issuance of such a decision.

7.27(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the department. 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.

7.27(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to pre–sent the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal or, by a nonappealing party, within 14 days of service of the notice of appeal. The director may remand a case to the presiding officer for further hearing. The director or director’s designee may preside at the taking of additional evidence.

7.27(5) Scheduling. The department shall issue a schedule for consideration of the appeal.

7.27(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 14 days thereafter, any party may file a responsive brief. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall be filed with the briefs. The director or director’s designee may resolve the appeal on the briefs or provide an opportunity for oral argument. The director or director’s designee may shorten or extend the briefing period as appropriate.

11—7.28(8A,17A) Applications for rehearing.

7.28(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.

7.28(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 department decision on the existing record and whether, on the basis of the grounds enumerated in subrule 7.27(4), the applicant requests an opportunity to submit additional evidence.

7.28(3) Time of filing. The application shall be filed with the department within 20 days after issuance of the final decision.

7.28(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. If the application does not contain a certificate of service, the department shall serve copies on all parties.

7.28(5) Disposition. Any application for a rehearing shall be deemed denied unless the department grants the application within 20 days after its filing.

11—7.29(8A,17A) Stays of department actions.

7.29(1) When available.

a. Any party to a contested case proceeding may petition the department for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the department. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The director or director’s designee may rule on the stay or authorize the presiding officer to do so.

b. Any party to a contested case proceeding may petition the department for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy.

7.29(2) When granted. In determining whether to grant a stay, the director, director’s designee, or presiding officer shall consider factors listed in Iowa Code section 17A.19(5)“c.”

7.29(3) Vacation. A stay may be vacated by the issuing authority upon application of the department’s representative or any other party.

11—7.30(8A,17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.

11—7.31(8A,17A) Emergency adjudicative proceedings.

7.31(1) Necessary emergency action. To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare and, consistent with the Constitution and other provisions of law, the department may issue a written order in compliance with Iowa Code section 17A.18 to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the department by emergency adjudicative order. Before issuing an emergency adjudicative order, the department shall consider factors including, but not limited to, the following:

a. Whether there has been a sufficient factual investigation to ensure that the department is proceeding on the basis of reliable information;

b. Whether the specific circumstances which pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing;

c. Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare;

d. Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and

e. Whether the specific action contemplated by the department is necessary to avoid the immediate danger.

7.31(2) Issuance of order.

a. An emergency adjudicative order shall contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger in the department’s decision to take immediate action.

b. The written emergency adjudicative order shall be immediately delivered to persons who are required to comply with the order by utilizing one or more of the following procedures:

(1) Personal delivery;

(2) Certified mail, return receipt requested, to the last address on file with the department;