Section R2-17-126. Rehearing or Review of Decision

A.      Except as provided in subsection (H), any party to an appeal before the Board may file a motion for rehearing or review within 30 days after service of the final administrative deci- sion. The party shall attach a supporting memorandum, speci- fying the grounds for the motion. The party is not required to file a motion for rehearing or review of the decision in order to exhaust the party’s administrative remedies.

B.       Any other party may file a response within 5 days after service of a motion for rehearing or review. The party shall support the response with a memorandum, discussing legal and factual issues.

C.      The moving party, the responding party, or the Board may request oral argument.

D.      The Board may grant a rehearing or review for any of the fol- lowing causes materially affecting a party’s rights:

1.        Irregularity in the proceedings of the Board, or any order or abuse of discretion, that deprived the moving party of a fair hearing;

2.        Misconduct of the Board, its staff, an administrative law judge, or the prevailing party;

3.        Accident or surprise that could not have been prevented by ordinary prudence;

4.        Newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the hearing;

5.        Error in the admission or rejection of evidence or other errors of law occurring at the hearing or during the progress of the proceeding; or

6.        That the findings of fact or decision is not justified by the evidence or is contrary to law.

E.       The Board may affirm or modify the decision or grant a rehearing to all or any of the parties on all or part of the issues for any of the reasons in subsection (D). An order modifying a decision or granting a rehearing shall specify with particularity the grounds for the order.

F.       When a motion for rehearing or review is based upon affida- vits, they shall be served with the motion. An opposing party may, within 5 days after service, serve opposing affidavits.

G.      Not later than 15 days after the date of the decision, the Board may grant a rehearing or review on its own initiative for any reason for which it might have granted relief on motion of a party. The Board may grant a motion for rehearing or review, timely served, for a reason not stated in the motion.

H.      If the Board makes specific findings that the immediate effec- tiveness of a decision is necessary for the preservation of the public health and safety and that a rehearing or review of the decision is impracticable, unnecessary, or contrary to the pub- lic interest, the Board may issue a final administrative decision without an opportunity for rehearing or review. A party may seek judicial review of the decision under A.R.S. §§ 41- 1092.10 and 41-1092.11.

I.        The Board shall rule on the motion for rehearing or review within 15 days after it has been received. If a rehearing is granted, the Board shall hold the rehearing within 90 days after the issue date on the order granting the rehearing.

J.        If a motion for rehearing or review is denied, the Clerk shall serve a notice of denial on all parties within 15 days after the denial.

K.      If the motion for rehearing or review is granted, the Clerk shall serve the Board’s final administrative decision on all parties within 15 days after the Board renders the decision.

Historical Note

Adopted effective January 8, 1998 (Supp. 98-1).