Ex parte communications procedures

No — an administrative law judge may not privately consult with any interested person or party about facts in issue or the merits except to the extent needed to dispose of ex parte matters.

• The rule in 1955.14(a) prohibits consultation on fact or merits without notice and an opportunity for all parties to participate.
• If any communication is necessary for disposition of ex parte matters, it must be handled in a way that preserves notice and opportunity for all parties.

Written or oral communications from interested persons outside the Department of Labor that address substantive or procedural issues and are directed to specified officials are considered ex parte and are not part of the record unless properly filed.

• The listed officials include the administrative law judge, the Secretary of Labor, the Assistant Secretary, the Associate Assistant Secretary for Regional Programs, the Solicitor of Labor, and the Associate Solicitor for Occupational Safety and Health, or their staffs, per 1955.14(b)(1).
• Such communications will not be considered the basis for any official decision unless the communication is made by motion to the administrative law judge and served on all parties.

An outside interested person must make the communication as a motion to the administrative law judge and serve it on all parties for it to be considered part of the record.

• 1955.14(b)(1) specifies that only communications made by motion and served upon all parties may be considered.
• Serve all parties at the same time you submit the motion so the communication is not treated as ex parte.

The specified Department of Labor offices must keep a log of ex parte communications and make that log available to the public.

• 1955.14(b)(2) requires these offices to maintain a log to facilitate implementation of the ban on ex parte communications.
• The log must be made available to the public and may be entered into the proceeding record by motion.

Yes — the public log of ex parte communications may be entered into the record if a party moves to do so.

• 1955.14(b)(2) explicitly states the log may, by motion, be entered into the record.
• Entry into the record requires a motion, which should be served on all parties in accordance with 1955.14(b)(1).

No — an employee or agent who was engaged in the investigation or presentation of the withdrawal proceeding cannot participate in or advise on the initial or final decision, except as a witness or counsel.

• 1955.14(c) prohibits participation or advising by such employees or agents in decisionmaking.
• Those employees may still appear in the proceeding as witnesses or as counsel, but they must not take part in deciding the case.

The restriction covers communications directed to the administrative law judge, the Secretary of Labor, the Assistant Secretary, the Associate Assistant Secretary for Regional Programs, the Solicitor of Labor, the Associate Solicitor for Occupational Safety and Health, and their staffs.

• This list is specified in 1955.14(b)(1).
• Communications to any of these officials from interested persons outside the Department are treated as ex parte unless converted into a motion served on all parties.

Any consultation must occur with notice to all parties and an opportunity for all parties to participate.

• 1955.14(a) expressly requires notice and an opportunity for all parties when the judge consults about facts or merits.
• This ensures fairness by preventing private, unilateral contacts from influencing the decision.

No — the provision in 1955.14(b)(1) specifically treats communications from interested persons outside the Department of Labor as ex parte; it does not categorize internal staff communications the same way.

• The rule targets outside communications directed to listed officials or their staffs.
• Internal communications within the Department are not described as ex parte by this section, though other ethical or procedural rules may apply.

A party should submit the communication as a motion to the administrative law judge and serve it upon all parties so it will be considered part of the record.

• 1955.14(b)(1) requires communications to be made by motion and served on all parties to avoid being treated as ex parte.
• Ensure service is documented so there is a record that all parties received the motion.

The log of ex parte communications must be made available to the public, so any member of the public can access it.

• 1955.14(b)(2) mandates that the log be made available to the public to facilitate transparency.
• A party may move to enter entries from the log into the proceeding record if they believe that is necessary.

Yes — an investigator who was involved in the investigation or presentation may serve as a witness at the hearing but may not otherwise participate in or advise the decision.

• 1955.14(c) allows such employees or agents to appear as witnesses or counsel only.
• They must be careful to limit their role to testimony or legal representation and must not take part in adjudicative decisionmaking.

Not directly — ex parte communications from interested persons outside the Department are not to be considered the basis for any official decision unless they are converted into motions served on all parties.

• 1955.14(b)(1) bars consideration of such communications unless properly made a motion and served on all parties.
• This preserves impartiality by ensuring decisions are based on matters of record accessible to all parties.

The office should treat that communication as an ex parte communication and log it in the public log required by 1955.14(b)(2).

• 1955.14(b)(1) indicates such outside communications are ex parte and not part of the record unless made a motion and served on all parties.
• The office’s log will document the communication and make it publicly accessible, and a party may move to enter the logged item into the record.

Yes — the prohibition covers both substantive and procedural issues in a proceeding when raised by interested persons outside the Department.

• 1955.14(b)(1) explicitly includes communications involving any substantive or procedural issues as ex parte.
• Parties must use motions served on all parties to raise procedural or substantive matters officially.