Section 251-2-007 - CONDUCTING A CONTESTED CASE HEARING007.01Show Cause.The appellant shall show cause why the deficiency determination is erroneous or excessive.
007.02Order of Hearing.At the discretion of the hearing officer, the hearing may be conducted in the following order:
007.02ACall to Order. The hearing shall be called to order by the hearing officer, who shall introduce him or herself, enter appearances, and state the scope and purpose of the hearing. Any preliminary motions, stipulations or agreed orders are entertained and may be disposed of by the hearing officer.007.02BOpening Statement. Each party may be required to make an opening statement at the discretion of the hearing officer. Opening statements shall be in the same order as the presentation of evidence.007.02CPresentation of Evidence. Documentary evidence may be marked, and where appropriate, may be offered by either party, prior to the taking of any testimony. 007.02C1Order. Evidence will be received in the following order: 007.02C1a Evidence is presented by the appellant;007.02C1b Evidence is presented by the Department;007.02C1c Rebuttal evidence is presented by the appellant; and007.02C1d Surrebuttal evidence is presented by the respondent.007.02C2Witnesses. With regard to each witness who testifies, the following examination may be conducted: 007.02C2a Direct examination conducted by the party who calls the witness;007.02C2b Cross examination by the opposing party;007.02C2c Any Redirect as necessary; and007.02C2d Any Recross as necessary.007.02DClosing Argument. After the evidence is presented, at the discretion of the hearing officer, each party may have the opportunity to make a closing argument. Closing argument shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties present briefs in lieu of closing arguments. The hearing officer shall specify the date such briefs shall be received by the Department.007.03Evidence.The hearing shall be conducted informally unless a party requests the rules of evidence pursuant to 007.02B.
007.03A In contested cases, the Department or hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.007.03BFormal Hearings. Any party to a formal hearing before the Department, from which a decision may be appealed to the courts of this state, may request that the Department be bound by the rules of evidence applicable in district court by delivering to the Department at least three (3) days prior to the holding of the hearing, a written request for the rules of evidence. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby, and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing.007.03C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.007.03D All evidence including records and documents in the possession of the Department of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.007.03E A hearing officer or designee may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.007.03F The Department shall recognize and give effect to the rules of privilege recognized by law.007.03G The Department may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by such agency. 007.03G1 Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.007.03G2 Parties shall be afforded an opportunity to contest facts so noticed.007.03G3 The record shall contain a written record of everything officially noticed.007.03H The Department may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.007.04Conducting the Hearing by Electronic Means.The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and if technically feasible, to see the entire proceeding while it is taking place. When a hearing is conducted electronically:
007.04ADepartment's Exhibits. The Department shall serve the appellant with a copy of the official exhibits in its casefile by facsimile transmission or by mailing them to the address of the appellant or his or her representative. Each exhibit shall be premarked for ease of identification; and007.04BAppellant's Exhibits. Any exhibits the appellant wishes to offer in addition to the Department's exhibits shall be submitted to and received by the Department no later than five (5) days prior to the date of the hearing. If such exhibits are not both filed and received by the Department within the time specified, such exhibits will not be admitted unless substantial injustice will result.007.05Official Record .007.05ATranscripts. The Department shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the agency upon request and tender of the cost of preparation.007.05BOfficial Record. The Department shall maintain an official record of each contested case under the Administrative Procedure Act for at least four (4) years following the date of the final order. 007.05B1 The Department shall tape record each informal hearing to be available for the preparation of a transcript upon the appellant's request pursuant to 007.04A.007.05B2 In the case of a formal hearing, the court reporter shall keep the record at hearing pursuant to 007.02B which shall be made available for preparation of a transcript pursuant to 007.04A.007.05CContents of Record. The agency record shall consist of the following: 007.05C1 Notices of all proceedings.007.05C2 Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department pertaining to the contested case;007.05C3 The record of the hearing before the Department, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the Department during the proceeding, and all proffers of proof and objections and rulings thereon; and007.05C4 The final order.007.05DEx Parte Communications. As provided in section 002.03 of these rules and regulations, the hearing officer or agency head, or employee who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.007.05E Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the agency record shall constitute the exclusive basis for agency action in contested cases under the act and for judicial review thereof.007.06Costs.All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.
251 Neb. Admin. Code, ch. 2, § 007