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(1) Except as provided in (2) no party or representative of a party shall communicate, in connection with any issue of law or fact in a pending contested case, with any person serving as a hearing examiner or as a final decision-maker without notice and opportunity for all parties to participate in the communication. The prohibitions of this subsection shall apply beginning at the time at which a contested case is noticed for hearing and shall continue until a final order has been issued unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of that person's acquisition of such knowledge.

(2) A hearing examiner or a final decision-maker may respond to questions of any party or representative of a party if it relates solely to procedures to be followed during the pendency of the contested case. A communication made for this purpose is not an ex parte communication.

(3) A hearing examiner or final decision-maker who receives a communication prohibited by (1) shall decline to listen to such communication and shall explain that the matter is pending for determination, and that the hearing examiner may not listen to information or allegation when other parties are not present to respond. If unsuccessful in preventing such communication, the recipient shall advise the communicator that the hearing examiner will not consider the communication and that the other parties will be notified of it. The recipient shall then place on the record of the pending matter any written communications received (other than those allowed pursuant to (2) or a memorandum stating the substance of all oral communications received and all responses made and the identity of each person from whom the recipient received an ex parte communication. The recipient shall then notify all parties of the communication and its substance either orally on the record at the contested case hearing or, if no hearing is held, in a written memorandum. The recipient shall inform the parties that the substance of the communication is not part of the record in the pending matter, and will not be used as a basis for any part of the decision made therein.

(4) Upon receipt of a communication knowingly made in violation of (1) , a hearing examiner or final decision-maker may require, to the extent consistent with the interests of justice and the policy of underlying statutes, the communicator to show cause why the communicator's claim, objection or interest in the contested case should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

History: Sec. 2-4-201(2) and 85-2-113(2), MCA; IMP, Sec. 2-4-613, MCA; NEW, 1984 MAR p. 697, Eff. 4/27/84; AMD, 1994 MAR p. 307, Eff. 2/11/94.

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