Ex parte communications and the exclusive record provision of the 2010 MSAPA

One of the most fundamental and important concepts in administrative adjudication is that decisions in contested cases are to be based solely on the hearing record, after opportunity for parties to respond to evidence affecting their interests. This concept is closely related to the ex parte prohibitions found not only in the various administrative procedure acts but also in codes of judicial conduct and disciplinary rules for lawyers. The ex parte prohibitions serve the goal of ensuring that decisions are actually based exclusively on the hearing record. The public faith in the legal system may be said to rest in large part on the public's view of the integrity of the administrative adjudication process. This, in turn, may be said to rest on such fundamentals as whether decisions are indeed based exclusively on the record -- or instead on the sort of ex parte communications prohibited by Section 408(e)(2).