 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
Ex Parte Communication The term "ex parte" means "on one side only." In administrative actions, ex parte communication means an off-the-record communication from one side of a proceeding to a decisionmaker in that matter. Usually, the person communicating with the decisionmaker in this manner does not want other persons to know about the contact or to know what was said. Ex parte communications are deemed to be improper in contested proceedings in our judicial system. If a judge is to render an impartial decision based on evidence presented in a courtroom, the judge should not have private meetings with one side of a case and listen to arguments that the other side has no opportunity to rebut. Therefore, ex parte communications are prohibited in judicial situations, including administrative adjudication. Traditionally, however, the rationale for prohibiting ex parte communications did not apply to the legislative process. Legislators, whether they are members of Congress or the city council, are free to talk to constituents, lobbyists, or anyone else on issues before them, so, since agency rulemaking is considered a quasi-legislative process, the APA's bar on ex parte communications does not apply to agency rulemaking unless it is "formal" rulemaking. Agencies, however, are free to establish stronger rules limiting ex parte communication in rulemaking and many have, based on ACUS Recommendation 77-3. Most such rules limit ex parte contacts after the NPRM and provide that if such contacts do occur, they have to be documented and placed in the rulemaking record.
|
