Current through Register Vol. 48, No. 3, March 22, 2024
A. Commission review may be conducted by a
three or six member review panel either of which excludes the original Hearing
Commissioner. An order of a three member review panel has the same force and
effect as a six member review panel and is the final decision of the
Commission.
B. The Commission's
Chair with approval of the majority of the other Commissioners shall assign
cases to a three member panel according to the following subsections:
(1) When a Form 30 is filed, the Hearing
Commissioner is notified. If the Hearing Commissioner determines the review
involves a novel issue of law or fact, the Hearing Commissioner may request the
Commission's Chair set the case for review by a six member review
panel.
(2) If the Hearing
Commissioner does not request a six member review, the Commission's Chair may
assign the review to a three member panel.
(3) The Commission's Chair may appoint by
random selection two review panels and exclude, on a rotating basis, one
Commissioner from the panels each month. The Commission's Chair may assign a
case for review as in B(2) above to a three member panel that excludes the
original Hearing Commissioner.
C. The Commissioners reviewing the case may
confer and shall vote within ten days of the date of review. The original
Hearing Commissioner's decision is neither a vote, nor shall it be considered
as a vote, of the Commission's final decision.
D. To reverse the Hearing Commissioner's
decision requires a majority decision of the Commissioners reviewing the case.
(1) A majority of a three member panel
consists of two votes to reverse.
(2) A majority of a six member panel consists
of four votes to reverse.
(3) If
one Commissioner is temporarily incapacitated or a vacancy exists on the
Commission, review may be conducted by the remaining Commissioners sitting as a
five or three member panel.
(a) The Hearing
Commissioner may request review of the case as in B(1) above, and a panel of
five may review the case. A majority consists of four votes to
reverse.
(b) If the Hearing
Commissioner does not request review as in B(2) above, the Commission's Chair
may assign the review to a three member panel. A majority consists of two votes
to reverse.
E. A Hearing Commissioner's finding of fact
or conclusion of law subject to review by the Commission may be modified by the
entry of the review panel's order making a new finding of fact, conclusion of
law, or modifying the Hearing Commissioner's finding of fact or conclusion of
law.
(1) On review, a vote to affirm and
modify is deemed a vote to affirm, or a vote to reverse and modify is deemed a
vote to reverse.
(2) The
Commissioners, together, shall agree on a modification if any and record their
findings of fact and conclusions of law on a vote sheet.
(3) If the case is reviewed by a three member
panel and the panel cannot agree on modifying the Hearing Commissioner's
decision, the Commissioners on the three member panel may request the remaining
Commissioners, excluding the Hearing Commissioner, review the case and the
issue in dispute as follows:
(a) The panel may
certify an issue for review to the remaining Commissioners, excluding the
Hearing Commissioner, by completing a vote sheet and phrasing the issue in
dispute in the form of a question.
(b) The Commission's Judicial Department will
notify the parties of the question presented to the remaining Commissioners and
the parties may file briefs according to R.67-705
on or before the date stated on the notice. Oral argument is not
permitted.
(c) The remaining
Commissioners shall consider the question presented, briefs if any, and
register their decision on the vote sheet within thirty days of the date of
notice to the parties.
(d) The
panel members shall issue an order thirty days from the date the remaining
Commissioners register their decision.
(4) The Commission sitting as a five or six
member review panel shall register a vote in accordance with section C above.
The Commission sitting as a five or six member panel may remand a case to the
Hearing Commissioner only for taking additional or newly discovered evidence or
for exceptional circumstances set forth in its order.
F. If a Commissioner fails to register a vote
within the periods referred to above, the Commissioner is deemed to have
registered a vote affirming the Hearing Commissioner and may not vote
otherwise.
