Section 40IAC2-3-4. Public hearings

   (a) The following are discovery and prehearing rights:

(1) The respondent may:

(A) be represented by counsel;

(B) exercise all discovery provisions of rules 26 through 37 of the Indiana Rules of Trial Procedure; and

(C) file with the commission a motion for any order or action not inconsistent with law or this article, for example, motion to dismiss, motion for more definite statement, motion to enlarge time, or motion for summary judgment.

(2) Motions may be made in writing at any time after the commencement of the adjudicatory proceeding, or they may be made during a prehearing conference.

(3) The original of a written motion shall be filed at the commission's office and a copy served on all persons designated in section 5(a) of this rule or their attorneys.

(4) The person who is to preside at the hearing, which may be the chairman of the commission, his designee, or the administrative law judge for the hearing, shall generally rule on motions. However, any action which would terminate the adjudicatory proceeding may be taken only by the commission.

(5) On motion of a party or the commission's own motion, a prehearing conference may be held in conformance with IC 4-21.5-3-18 and IC 4-21.5-3-19.

(6) Unless otherwise ordered by the presiding officer as a result of a prehearing conference, the commission and respondent or counsel for respondent shall exchange the names and addresses of witnesses at least ten (10) days prior to the public hearing.

(7) Upon motion of a party or the commission's own motion, the commission may consolidate for hearing two (2) or more allegations or cases against different persons if the commission determines that there is substantial identity of facts arising out of a common transaction or event or if the respondent is the same person although the violations alleged arose from different complaints, transactions, or events. Consolidation shall not be ordered if consolidation will substantially prejudice the right of any party.

(8) Ex parte communications are governed by IC 4-21.5-3-11.

  (b) Procedures at the hearing shall be as follows:

(1) Public hearings and prehearing matters may be conducted by any of the following:

(A) The full commission.

(B) One (1) or more commission members acting as administrative law judges.

(C) Another individual, not necessarily an employee of the commission, appointed by the commission, acting as an administrative law judge under IC 4-21.5-3-9.

(2) Hearings shall be as informal as may be reasonable and appropriate under the circumstances.

(3) The person presiding, which may be the commission chairman, his designee, or the administrative law judge, shall conduct the hearing making all decisions regarding admission or exclusion of evidence or any other procedural matters. The order of proceeding is at the discretion of the presiding officer.

(4) The respondent shall be afforded appropriate due process protection consistent with IC 4-21.5-3, including the following:

(A) The right to be represented by counsel.

(B) The right to call and examine witnesses.

(C) The right to introduce exhibits.

(D) The right to cross-examine witnesses.

(5) Commission members shall be disqualified in accordance with IC 4-21.5-3-9 through IC 4-21.5-3-13.

  (c) After the hearing, the procedure shall be as follows:

(1) Deliberation and discussion of a report at the conclusion of the public hearing may be conducted in executive session. Vote on the report shall be conducted in a public meeting.

(2) A report by less than the full commission serving as administrative law judges or by another individual who has been appointed to be an administrative law judge shall be a recommended report and shall be transmitted to the full commission and served upon the respondent.

(3) In regard to a recommended report, the parties may present briefs or request oral argument under IC 4-21.5-3-28.

(4) The final report shall be adopted by the commission at a public meeting. The commission is the ultimate authority under IC 4-21.5.

(5) Findings shall be made on a preponderance of the evidence and it shall require the concurrence of at least three (3) members of the commission to find a violation or impose a penalty.

(6) The report shall be signed by the commission members present and voting at the public meeting, transmitted by certified mail to the respondent, return receipt requested, and shall be made available to the public, to those persons required to receive the report under IC 4-2-6-4(b)(2)(G) and may be forwarded to any of the persons listed in IC 4-2-6-4(b)(2)(H).

(State Ethics Commission; 40 IAC 2-3-4; filed Oct 22, 1991, 11:10 a.m.: 15 IR 208; readopted filed Aug 2, 2001, 3:15 p.m.: 24 IR 4227; readopted filed Nov 29, 2007, 11:14 a.m.: 20071226-IR-040070658RFA; readopted filed Sep 30, 2013, 1:33 p.m.: 20131030-IR-040130243RFA)