Sec. 14.35.10.13. Final Order Following Proposed Decision

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. Issuance. After consideration of the entity's proposed findings of fact, proposed conclusions of law, or proposed order, and any exceptions filed by the parties, the Board shall issue a final order or a remand order.

C. Effect of Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. In reviewing the entity's proposed findings of fact, proposed conclusions of law, or proposed order, the Board is:

(1) Bound by the findings of fact that are supported by competent, material, and substantial evidence; and

(2) Not bound by any legal analysis, proposed conclusions of law, or proposed order.

D. Types of Action by the Board. The Board may affirm, reverse, or modify the proposed findings of fact, proposed conclusions of law, or proposed order, or remand the case to the Office for further proceedings by setting forth, with particularity, the basis for the Board's reversal, modification, or remand.

E. Procedure When Case Remanded. If the Board remands the case for further proceedings, the Board may:

(1) Refer the case back to the Office; or

(2) Retain the case to be heard by the Board.

F. Rehearing. The Board may, on the Board's own motion, hold a rehearing.

G. Service of Order. The Board shall serve a copy of the final order or remand order on the parties, the parties' attorneys of record, and the entity by first-class mail.

H. Effect of Summary Affirmance.

(1) If the Board issues a final order that summarily affirms the proposed order of an entity without discussing the facts and legal issues and without expressly adopting the entity's legal analysis and proposed conclusions of law, neither the final order nor the proposed order is precedent within the rule of stare decisis.

(2) Notwithstanding §H(1) of this regulation, a final order of the Board that summarily affirms the proposed order of an entity without discussing the facts and legal issues and without expressly adopting the entity's legal analysis and proposed conclusions of law may be cited and relied on in a proceeding before the Board, the entity, or a court:

(a) When relevant under the doctrine of the law of the case, res judicata, or collateral estoppel; or

(b) In any subsequent disciplinary proceeding involving a party to the final order.

(3) If a party appeals from a final order of the Board that summarily affirms the proposed order of an entity, in addition to filing the final order of the Board with the court in which the appeal is pending, the Board also shall file a copy of the proposed order of the entity.