In contested cases:
(1) An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. An agency shall give effect to the rules of privilege recognized by law. Any party to a formal hearing before an agency, from which a decision may be appealed to the courts of this state, may request that the agency be bound by the rules of evidence applicable in district court by delivering to the agency at least three days prior to the holding of the hearing a written request therefor. 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. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered;
(2) The hearing officer or a designee, at the request of any party or upon the hearing officer's own motion, may administer oaths and issue subpoenas, discovery orders, and protective orders 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;
(3) All evidence including records and documents in the possession of the agency 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. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference;
(4) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence;
(5) An agency 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. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of material so noticed. Parties shall be afforded an opportunity to contest facts so noticed. The record shall contain a written record of everything officially noticed. An agency may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it; and
(6)(a) No party in a contested case or other person outside the agency having an interest in the contested case shall make or knowingly cause to be made an ex parte communication to the hearing officer or to an agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
(b) No hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the agency having an interest in the contested case.
(c) No agency head or employee engaged in the investigation or enforcement of a contested case shall make or knowingly cause to be made an ex parte communication to a hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
(d) The hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication set forth in subdivisions (6)(a) through (c) of this section shall file in the record of the contested case (i) all such written communications, (ii) memoranda stating the substance of all such oral communications, and (iii) all written responses and memoranda stating the substance of all oral responses to all the ex parte communications. The filing shall be made within two working days of the receipt or making of the ex parte communication. Notice of the filing, with an opportunity to respond, shall be given to all parties of record.
(e) The prohibitions of subdivision (6) of this section shall apply beginning at the time notice for hearing is given. An agency may designate an earlier time, but such earlier time shall be required to be set forth in the agency's rules of procedure.
(f) The prohibitions contained in subdivisions (6)(a) and (b) of this section shall not apply to ex parte communications to or from an elected official. However, the disclosure requirements contained in subdivision (6)(d) of this section shall apply to ex parte communications to or from an elected official.
Notes of Decisions
City of Lincoln v. Cent. Platte Nat. Resources Dist., 638 N.W.2d 839 (Neb. 2002).
· cites it 5× “Saunders County claims the Department erred (1) in providing incorrect notification as to the issues to be resolved and incorrectly stated the burden of proof to be used in determining whether Saunders County could become a party; (2) in failing to make a complete record of the…”
Kimball v. Neb. Dept. of Motor Vehs., 586 N.W.2d 439 (Neb. 1998).
· cites it 11× “On December 17, *442 the Department received a request from Kimball that the hearing be conducted under the formal rules of evidence, pursuant to Neb.Rev.Stat. § 84-914 (Reissue 1994). The Department approved the request on the same day.”
McCray v. Nebraska State Patrol, 710 N.W.2d 300 (Neb. 2006).
· cites it 3× “Section 84-914(1) provides in part: “An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious…”
Marshall v. Wimes, 626 N.W.2d 229 (Neb. 2001).
· cites it 2× “See Neb. Rev. Stat. § 84-914 (2) (Reissue 1999).”
Urwiller v. Neth, 640 N.W.2d 417 (Neb. 2002).
· cites it 3× “See Neb. Rev. Stat. § 84-914 (2) (Reissue 1999).”
Hass v. Neth, 657 N.W.2d 11 (Neb. 2003).
· cites it 2× “Compare Neb. Rev. Stat. § 84-914 (5) (Reissue 1999).”
Saunders Cnty. v. Metro. Utils. Dist.-A, 645 N.W.2d 805 (Neb. Ct. App. 2002).
· cites it 2× “04(1) provides: “A person who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or assist or advise a hearing officer in the same proceeding .”
Dailey v. Nebraska Dep't of Corr. Servs., 578 N.W.2d 869 (Neb. Ct. App. 1998).
· cites it 3× “Presumably, they were relying on § 84-914(1), which provides that the rules of evidence are to be used in administrative cases where an individual requests 3 days before the hearing that the rules of evidence be applied and sets forth his or her willingness to bear the costs…”
Langvardt v. Horton, 581 N.W.2d 60 (Neb. 1998).
· cites it 5× “Langvardt contends that Neb. Rev. Stat. § 84-914 (5) (Reissue 1994) requires that he be notified of the Director’s intent to utilize his own opinions.”
McKibbin v. State, 560 N.W.2d 507 (Neb. Ct. App. 1997).
· cites it 6× “See Neb. Rev. Stat. § 84-914 (1) (Reissue 1994).”
Rocek v. Dep't of Pub. Institutions, 404 N.W.2d 414 (Neb. 1987).
· cites it 2× “Rocek’s fourth assignment of error alleges that the personnel board considered facts not in evidence in contravention of Neb. Rev. Stat. § 84-914 (3) (Reissue 1981), which requires that factual information considered in the determination of a case must be offered into evidence.”
— Neb. Rev. Stat. § 84-914(1) — 10 cases
McCray v. Nebraska State Patrol, 710 N.W.2d 300 (Neb. 2006).
“Section 84-914(1) provides in part: “An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious…”
Kimball v. Neb. Dept. of Motor Vehs., 586 N.W.2d 439 (Neb. 1998).
“On December 17, *442 the Department received a request from Kimball that the hearing be conducted under the formal rules of evidence, pursuant to Neb.Rev.Stat. § 84-914 (Reissue 1994). The Department approved the request on the same day.”
Dailey v. Nebraska Dep't of Corr. Servs., 578 N.W.2d 869 (Neb. Ct. App. 1998).
“Presumably, they were relying on § 84-914(1), which provides that the rules of evidence are to be used in administrative cases where an individual requests 3 days before the hearing that the rules of evidence be applied and sets forth his or her willingness to bear the costs…”
McKibbin v. State, 560 N.W.2d 507 (Neb. Ct. App. 1997).
“See Neb. Rev. Stat. § 84-914 (1) (Reissue 1994).”
— Neb. Rev. Stat. § 84-914(2) — 1 case
Urwiller v. Neth, 640 N.W.2d 417 (Neb. 2002).
“See Neb. Rev. Stat. § 84-914 (2) (Reissue 1999).”
— Neb. Rev. Stat. § 84-914(3) — 1 case
— Neb. Rev. Stat. § 84-914(5) — 3 cases
Langvardt v. Horton, 581 N.W.2d 60 (Neb. 1998).
“Langvardt contends that Neb. Rev. Stat. § 84-914 (5) (Reissue 1994) requires that he be notified of the Director’s intent to utilize his own opinions.”
— Neb. Rev. Stat. § 84-914(6)(b) — 1 case
— Neb. Rev. Stat. § 84-914(6)(c) — 1 case
City of Lincoln v. Cent. Platte Nat. Resources Dist., 638 N.W.2d 839 (Neb. 2002).
“Saunders County claims the Department erred (1) in providing incorrect notification as to the issues to be resolved and incorrectly stated the burden of proof to be used in determining whether Saunders County could become a party; (2) in failing to make a complete record of the…”
— Neb. Rev. Stat. § 84-914(6)(d) — 1 case
City of Lincoln v. Cent. Platte Nat. Resources Dist., 638 N.W.2d 839 (Neb. 2002).
“Saunders County claims the Department erred (1) in providing incorrect notification as to the issues to be resolved and incorrectly stated the burden of proof to be used in determining whether Saunders County could become a party; (2) in failing to make a complete record of the…”
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