Consent findings and order

Yes — under 1921.8(a), a respondent may move to defer the receipt of any evidence at any time after the complaint is issued and before the hearing examiner begins receiving evidence.

• The motion must be filed after issuance of the complaint but before the reception of evidence in the proceeding.
• The hearing examiner has discretion to allow the deferment and decide how long it will last based on the nature of the proceeding and other factors listed in the rule.

The hearing examiner will decide based on the nature of the proceeding, the public interest, the parties' representations, and the likelihood an agreement will produce a just result, as listed in 1921.8(a).

• These factors include: the type of issues involved, how the public interest is affected, what the parties say about the delay, and the probability that negotiations will succeed in fairly resolving the case.

An order entered by consent has the same force and effect as an order made after a full hearing under 1921.8(b)(1).

• That means the consent order is legally binding and enforceable just like a decision issued after a complete evidentiary hearing.

If the parties enter a consent agreement, the entire record on which the order is based will consist only of the complaint and the agreement, as required by 1921.8(b)(2).

• No additional evidence or testimonial record is required for the decision; the complaint together with the signed agreement form the record.

No — submitting an agreement containing consent findings must include a waiver of any further procedural steps before the hearing examiner or the Director under 1921.8(b)(3).

• By agreeing, parties give up rights to continue procedural challenges before those decisionmakers.

No — the agreement must include a waiver of any right to challenge or contest the validity of the consent findings and order under 1921.8(b)(4).

• That waiver means parties generally cannot reopen or attack the agreement's findings or the order once the hearing examiner accepts them.

Either the parties or their counsel may submit the proposed agreement on or before the expiration of the negotiation period granted by the hearing examiner, as stated in 1921.8(c).

• If negotiations fail, the parties must inform the hearing examiner that agreement cannot be reached within the time allowed under 1921.8(c)(2).

The hearing examiner has 30 days after the agreement is submitted to accept it by issuing a decision based on the agreed findings, as required by 1921.8(d).

• If accepted within 30 days, the examiner will issue a decision that reflects the agreement's findings and order.

Yes — the hearing examiner may deny a deferment even if parties seek negotiation because allowance of deferment is within the examiner's discretion under 1921.8(a).

• The examiner will weigh public interest and the probability that negotiations will result in a just disposition before deciding.

The agreement must state that the entire record on which any order may be based will be solely the complaint and the agreement itself, per 1921.8(b)(2).

• This ensures the decision does not rely on additional evidence beyond the complaint and the parties' agreed terms.

If negotiations cannot reach agreement within the time allowed, the parties or their counsel must inform the hearing examiner that agreement cannot be reached under 1921.8(c)(2).

• This notification lets the hearing proceed without further delay or proceed to receive evidence as scheduled.

Yes — the consent agreement must include a waiver of any further procedural steps before the hearing examiner or the Director and a waiver of any right to challenge the findings and order, as specified in 1921.8(b)(3) and 1921.8(b)(4).

• Parties give up these post-agreement procedural avenues so the consent order can be treated as final and enforceable.

The rule requires the hearing examiner to accept the agreement by issuing a decision within 30 days, so failure to act would mean the examiner has not completed the required acceptance process under 1921.8(d).

• Practically, parties should follow up with the examiner or their counsel if no decision issues within the 30-day period to determine status and next steps.

No — the regulation requires that any agreement containing consent findings and an order must provide the specific items listed in 1921.8(b)(1) through 1921.8(b)(4).

• Those mandatory elements include equal force to a full-hearing order, the record limited to complaint and agreement, waivers of further procedural steps, and waivers of rights to challenge the findings.

The hearing examiner determines the duration of the deferment in their discretion after considering the listed factors in 1921.8(a).

• Parties can propose a time, but the examiner decides what is reasonable given the proceeding and public interest.

No — submission to the hearing examiner under 1921.8(c)(1) allows the examiner to consider the agreement, but the examiner still has discretion to accept it by issuing a decision within 30 days per 1921.8(d).

• The examiner will review the agreement and either accept it (issuing the decision) or, if not acceptable, decline and proceed as appropriate.

No — 1921.8(b)(2) specifies that when an agreement is used, the entire record consists solely of the complaint and the agreement; it does not address proceedings where no agreement is reached.

• If no agreement is reached, the hearing proceeds normally and the record will include evidence received at hearing in addition to the complaint.

The respondent may move to defer the reception of evidence to permit negotiation of a consent agreement, as stated in 1921.8(a).

• Typically the respondent (the party against whom the complaint was issued) files the motion, though the examiner may consider representations from all parties.

An agreement may dispose of the whole or any part of the proceeding, as allowed by 1921.8(a).

• Parties can negotiate to settle all issues or just specific claims, and the examiner will consider whether the proposed consent findings fairly resolve the matters covered.

Practically, the consent order is final and enforceable exactly like a decision after a full hearing, so parties must comply and may face enforcement if they do not, consistent with 1921.8(b)(1).

• This also means administrative or judicial review options are limited by the waivers included in the agreement under 1921.8(b)(3) and 1921.8(b)(4).