Sec. 14.35.10.12. Exceptions

A. Scope. This regulation applies to a contested case where the entity has been delegated authority under Regulation .04 of this chapter to issue proposed findings of fact, proposed conclusions of law, or a proposed order.

B. On receipt of a decision that contains proposed findings of fact, proposed conclusions of law, or a proposed order, the parties affected have:

(1) 20 calendar days after receipt to file exceptions to the proposed findings of fact, proposed conclusions of law, or proposed order with the Board; or

(2) 10 calendar days to:

(a) File a written request for a transcript, at the party’s own expense, with the Board in order to file exceptions; or

(b) File with the Board a copy of that party's written request to its stenographer, at the party’s own expense, for the party's preparation of a transcript based on its own record of the testimony in order to file exceptions.

C. Receipt under §B of this regulation is presumed to occur 3 calendar days after the mailing of the proposed findings of fact, proposed conclusions of law, or proposed order.

D. Filing Exceptions After Receipt of Transcript.

(1) If a party requests a transcript under §B(2) of this regulation, the party shall have 30 calendar days after the filing of the transcript to file exceptions with the Board.

(2) Unless extended by order of the Board, the party requesting the transcript shall file the transcript with the Board within 60 calendar days after the date on which the transcript was requested.

E. Exceptions shall be in writing unless specified otherwise by the final decision maker.

F. If a party elects not to file exceptions, another party may not raise the defense of failure to exhaust this administrative remedy on appeal to circuit court.

G. The record before the Board for the exceptions shall consist of:

(1) The entity's findings and conclusions, including the findings of fact, conclusions of law, and proposed order;

(2) Any exceptions filed by a party;

(3) Any response to exceptions filed by a party;

(4) Any evidence submitted by a party;

(5) Notice to the parties of the hearing;

(6) Any documentary evidence admitted into evidence by the entity; and

(7) The transcript of the hearing before the entity, if requested and filed by one of the parties or the Board.

H. Transcripts.

(1) A party who desires to have the transcript made part of the record shall, at the party's own expense, file three copies of the transcript, or its relevant portions, with the Board on receipt of the transcript.

(2) If a transcript has already been prepared, the Board shall make the transcript part of the record in the contested case.

(3) If a transcript is prepared based on the entity's record of the testimony and a transcript is prepared based on a party's own record of the testimony, the transcript based on the entity's record of the testimony is:

(a) The official transcript; and

(b) Controlling in the event of any conflict between the two transcripts.

(4) If the transcript is not filed or otherwise made part of the record in the contested case, parties may not refer in their exceptions to any testimony before the entity not incorporated into the entity's findings and conclusions.

(5) If all parties agree that the questions presented for review to the final decision maker can be determined without an examination of the entire transcript, the parties may file a statement showing how the questions arose and setting forth the facts or allegations that are essential to a determination of those issues.