1. A. Filing the transcript: If post-hearing submittals are allowed, the hearing clerk shall, promptly following receipt of the transcript, transmit a copy to the hearing officer, and notify all parties of its availability. Any person, other than the commission, desiring a copy of a transcript may order a copy from the court reporter.
2. B. Proposed findings and conclusions: Unless otherwise ordered by the commission, within 30 days after conclusion of the hearing, or within such time as may be fixed by the hearing officer, any party may submit proposed findings of fact and conclusions of law and closing argument. All such submissions shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and authorities relied on. No new evidence shall be presented unless specifically allowed by the hearing officer.

3. C. Recommended decision:

   (1) Filing and contents: Unless otherwise ordered by the commission, the hearing officer shall issue a recommended decision within 30 days after the deadline for filing of proposed findings and conclusions under Subsection B of 20.1.3.21 NMAC. The recommended decision shall contain the hearing officer's:

   (a) findings of fact;

   (b) conclusions regarding all material issues of law or discretion, as well as reasons therefor;

   (c) a proposed final order; and

   (d) for compliance order hearings, if the hearing officer determines that a violation has occurred, the hearing officer shall review the proposed civil penalty to determine if the department acted within its discretion in setting the penalty amount; if the hearing officer decides to recommend a penalty different in amount or nature from the department's proposed penalty, the hearing officer shall set forth the reasons for the change.

   (2) Comment on recommended decision: At the commission's discretion, any party may file, within 15 days after service of the recommended decision, comments regarding the recommended decision, including arguments to adopt, reject or modify the recommended decision.

   (3) Argument before the commission: The commission may, upon request of a party or its own initiative, allow oral argument on the recommended decision. If oral argument is allowed, the commission shall specify the time and place for such oral argument after giving due consideration to the convenience of the parties and the need for expeditious resolution of the proceeding.

4. D. Final order by commission: The commission shall reach a final decision at a public meeting, but may deliberate on the decision in closed session in accordance with the Open Meetings Act. The commission may circulate a draft order during closed session so long as no final decision is reached during closed session. After reaching a decision, the commission shall direct a member, its counsel or a party to prepare a final order. The commission may approve the order at a meeting or direct the commission chair to sign the order.

   (1) Decision: The commission may adopt, modify, or set aside the hearing officer's recommended decision, and shall set forth in the final order the reasons for its actions.

   (2) Penalty: For a compliance order hearing, the commission may change the amount and nature of the civil penalty, if any, recommended by the hearing officer and shall set forth the reasons for the change.

   (3) The hearing clerk shall send copies of the final order to each party, and to all other persons who have made written requests for notification of the action taken.

5. E. Payment of civil penalty: The respondent shall pay the full amount of the civil penalty, if any, assessed in the final order within 60 days after receipt of the final order, unless otherwise ordered by the commission. Payment shall be made by forwarding to the hearing clerk a cashier's check or certified check in the amount of the penalty assessed, payable to the fund specified in the act.
6. F. Judicial review: Judicial review of the final order shall be as provided by law. The filing of an appeal does not stay any action or payment of penalty required by the final order, unless otherwise ordered by the commission or a court.
7. G. Preparation of record proper: The hearing clerk shall prepare the record proper for any appeal, which shall include a transcript of the hearing before the commission. The appellant shall make satisfactory arrangements for payment of preparation of the record proper with the hearing clerk, including copying costs and transcription costs.

[20.1.3.21 NMAC - Rp, 20 NMAC 1.3.VI.600-606, 10/15/2010]