Which scenario illustrates a potential due process issue related to ex parte communications?

Which scenario illustrates a potential due process issue related to ex parte communications?

• A. A decision-maker receives information outside the public record that could influence a decision.
• B. Ex parte communications are never problematic.
• C. Ex parte communications are irrelevant if written.
• D. Ex parte communications are allowed if they are from a whistleblower.

Answer: (A)

In admin decision-making, fair process means the decision-maker bases results on a complete record that both sides had a chance to participate in and challenge. When information is shared outside the public record with the decision-maker, it bypasses that balanced, contestable process. The scenario where the decision-maker receives information outside the public record that could influence the decision directly creates a due process risk: one side could be influenced by new facts or arguments that the other side never had a chance to see, respond to, or have tested through cross-examination, and those inputs aren’t part of the disclosed record. That’s why this option best captures the due process concern. The other statements aren’t accurate reflections of how ex parte communications interact with fairness: it’s not true that such communications are never problematic, since they can undermine impartiality; it isn’t correct to say they’re irrelevant if written, because form doesn’t erase the risk to a fair process; and allowing ex parte communications just because the source is a whistleblower doesn’t automatically fix the fairness issue, since the process still requires notice, opportunity to respond, and a complete, scrutinizable record.

In admin decision-making, fair process means the decision-maker bases results on a complete record that both sides had a chance to participate in and challenge. When information is shared outside the public record with the decision-maker, it bypasses that balanced, contestable process. The scenario where the decision-maker receives information outside the public record that could influence the decision directly creates a due process risk: one side could be influenced by new facts or arguments that the other side never had a chance to see, respond to, or have tested through cross-examination, and those inputs aren’t part of the disclosed record.

That’s why this option best captures the due process concern. The other statements aren’t accurate reflections of how ex parte communications interact with fairness: it’s not true that such communications are never problematic, since they can undermine impartiality; it isn’t correct to say they’re irrelevant if written, because form doesn’t erase the risk to a fair process; and allowing ex parte communications just because the source is a whistleblower doesn’t automatically fix the fairness issue, since the process still requires notice, opportunity to respond, and a complete, scrutinizable record.