Ex parte communications rules

The rule prohibits any ex parte communication about the merits of a pending case between Commissioners, Judges, or employees or agents who are employed in the decisional process and any party, intervenor, representative, or other interested person, except as permitted by law or 2200.120. This means you may not privately discuss the substance of a case with a decisionmaker who is involved in deciding that case. See 2200.105(a).

People who participate directly in adjudicating or advising on the merits of a case—such as Commissioners, Judges, and agency employees or agents who take part in decisionmaking—are considered "employed in the decisional process" and are covered by the prohibition on ex parte contacts. For information about roles and exclusions, see 2200.104 and the related subsections 2200.104(b) and 2200.104(c).

Communications that do not concern the merits of a pending case and communications specifically permitted by statute or by 2200.120 are allowed. In practice, this means routine administrative or scheduling contacts and any exchanges the rules or law explicitly authorize are okay, but substantive discussions about case issues that could influence decisionmakers are not. See 2200.105(a) and 2200.120.

If an ex parte communication occurs, the Judge or the Commission may take whatever orders or actions fairness requires, including remedial steps to protect the integrity of the proceeding. Those actions can include excluding the person from the proceeding under 2200.104(b) and pursuing disciplinary measures such as suspension or disbarment under 2200.104(c). See 2200.105(b).

Any ex parte communications in violation of the rule must be placed on the public record of the proceeding. That means the substance and existence of the prohibited communication are entered into the official case file so all parties and the public have access. See 2200.105(c).

Settlement agreements are generally public information and, while the Agency may post selected major settlement agreements on its website, most settlement agreements are not posted online but remain subject to disclosure under the Freedom of Information Act (FOIA). OSHA has explained that settlement agreements are public information and that settlement agreements should be posted in the same manner employers post citations and notices of contest under the rules; see the OSHA letter of interpretation on website postings at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0 and note that any ex parte communication violating 2200.105(c) is placed on the public record.

You should promptly notify the Judge and all parties, request that the communication be placed on the public record, and cooperate with any remedial steps ordered to protect fairness. Acting quickly and transparently helps mitigate harm and allows the Judge or Commission to determine appropriate corrective action under 2200.105(b) and to ensure the communication is entered into the record as required by 2200.105(c).

Yes, parties may generally communicate with agency staff who are not part of the decisional process, because the ex parte prohibition specifically targets Commissioners, Judges, and employees or agents employed in the decisional process. To avoid problems, confirm the staff member's role before discussing case merits and copy the Judge and other parties on substantive communications. See 2200.105(a) and 2200.104 for role-related guidance.

Disciplinary consequences for improper ex parte communications can include remedies ordered in the proceeding (for fairness), exclusion from the proceeding under 2200.104(b), and Commission-imposed discipline such as suspension or disbarment under 2200.104(c). See 2200.105(b).

Yes — if those informal or social contacts touch on the merits of a pending case and the Judge or Commissioner is employed in the decisional process for that case, they are risky and could violate the ex parte rule. Avoid discussing substantive issues about pending cases in informal settings; if a topic relevant to a pending case arises, stop the discussion and follow proper procedures (notify the Judge, put the matter on the record, or use formal channels). See 2200.105(a).

Judges should take appropriate orders or actions to protect fairness, which may include warnings, excluding the offending person from the proceeding under 2200.104(b), and referring the matter for disciplinary action under 2200.104(c). All such ex parte communications must be placed on the public record under 2200.105(c). See 2200.105(b).