§ 4.27 Ex parte communication and disqualification.

(a) Definition of ex parte communication.

(1) An ex parte communication is any oral or written communication related to the merits of a pending proceeding or appeal before OHA that was not on the record, not furnished to all other parties, or not made in the presence of all parties, and that takes place between:

(i) Any party to the proceeding or appeal or any person or entity interested in the proceeding or appeal; and

(ii) Any OHA personnel who is involved in, or who may reasonably be expected to become involved in, the decision-making process in that proceeding or appeal.

(2) The following types of communications are not ex parte communications:

(i) Communications concerning case status, case scheduling, or the availability of Alternative Dispute Resolution;

(ii) Communications concerning compliance with procedural requirements, unless that compliance is an area of controversy in the proceeding or appeal;

(iii) Communications between Bureau of Indian Affairs (BIA) employees and Ph.D. employees about a probate case held pursuant to 43 CFR part 30, unless BIA has filed a petition for rehearing, reopening, or reconsideration in that case;

(iv) Communications between Interior Business Center (IBC) employees and OHA employees about an employee debt waiver request or appeal held pursuant to § 4.704 of this part; and,

(v) Communications between employees of the WELSA Project Office or the Bureau of Indian Affairs (BIA) and OHA employees about a probate case held pursuant to 43 CFR part 4, subpart H, unless the WELSA Project Office or BIA has filed a request for hearing, petition for reopening, or petition for reconsideration in that case.

(b) Prohibition. Any ex parte communication is prohibited.

(c) Procedure for addressing ex parte communication.

(1) OHA personnel receiving an ex parte communication must place in the record for the pending proceeding or appeal the written communication or, if oral, a memorandum stating the substance of the oral communication.

(2) The affected OHA unit must provide, or order the person or entity that made the ex parte communication to provide, the communication to all parties and provide them with an opportunity to respond in writing, and any response must be placed in the record for the pending proceeding or appeal.

(d) Sanctions for ex parte communication.

(1) After considering the relevant circumstances and the nature of the violation, the Director, Appeals Board, or presiding officer may impose appropriate sanctions on a party who knowingly made or knowingly caused to be made a prohibited ex parte communication. Appropriate sanctions for an ex parte communication may include:

(i) Ruling adversely on the issue that was the subject of the ex parte communication; or

(ii) Requiring the party to show cause why its claim, motion, or interest should not be dismissed, denied, or otherwise adversely affected.

(2) Before imposing sanctions, the Director, Appeals Board, or presiding officer will provide notice and an opportunity to respond.

(3) The appropriate supervisor is responsible for notifying the Director and, in accordance with Department regulations and policy, disciplining OHA personnel who knowingly made or caused to be made a prohibited ex parte communication.