An ex parte contact occurs when a judge communicates with one party to a lawsuit to the exclusion of the other party or parties, and when a judge initiates discussions about a case with third parties. The administrative law judge is prohibited from consulting any person, or party on any fact in issue unless upon notice and opportunity to all parties in the proceeding.[i]
Communication between an officer and the representative of a party is prohibited under the 1961 Model State Administrative Procedure Act. The presiding officer is also prohibited from communicating with a person having direct or indirect interest in the outcome of the proceeding. Communication with the previous presiding officer is also prohibited.[ii]. These prohibitions will not affect communications between the members of agency and presiding officers. Presiding officers can also make communication with the agency staff. However, the staff assistants are not allowed to participate in any prohibited exparte communications. Moreover, staff assistants are prohibited from altering evidence in administrative records.[iii]
The Federal Administrative Procedure Act prohibits communication between any member of an agency and interested parties outside the agency. Members of agency in this context include all persons expected to be involved in the decision-making process like, the administrative law judge, an agency member, or an agency employee. Interested persons include the persons having direct or indirect interest in the outcome of the proceeding. Also includes, the presiding officer in the previous proceeding.[iv]
The ex parte communications prohibited by the Administrative Procedure Act is confined to adjudicatory proceedings.. The Act does not prohibit communications which are purely administrative matters and not adjudicatory. Moreover, an agency decision maker may receive advice from no adversarial agency personnel. A communication that is otherwise prohibited will be permitted if it is for the purpose of assistance and advice to the presiding officer from a person who has not served as investigator, prosecutor, or advocate in the proceeding or in any of the pre-adjudicative stages.[v]
[i] 5 USCS § 554, Federal Administrative Procedure Act.
[ii] The 1981 Model State Administrative Procedure Act.
[iii] The 1981 Model State Administrative Procedure Act, Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 40 Cal. 4th 1 (Cal. 2006).
[iv] The 1981 Model State Administrative Procedure Act.
[v] Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 40 Cal. 4th 1 (Cal. 2006).