BEFORE THE IOWA CIVIL RIGHTS COMMISSION
CP # 03-88-17384
SANDRA J. WHALEY,
Complainant,
and
IOWA CIVIL RIGHTS COMMISSION,
vs.
CITY OF DES MOINES,
Respondent.
NUMC PRO TUNC ORDER
FINDINGS OF FACT:
1. After reviewing the proposed decision, the undersigned realized that, through inadvertence, an omission and a mistake were made. First, the undersigned forgot to include an intended provision for the award of hearing costs which is required by Commission rule in cases where the complainant or the Commission prevail.
2. Second, due to a typographical error, paragraph G of the Decision and Order section refers to the year "1984" instead of "1994" which is the appropriate year for the award of further back pay and back deferred compensation as is evident from a review of Findings of Fact numbers 121 and 122.
CONCLUSIONS OF LAW:
1. Administrative rules are interpreted and construed under the same rules as statutes. Motor Club of Iowa v. Dept. of Transportation, 251 N.W.2d 510, 118 (Iowa 1977). Thus, the word "shall" in the Commission's administrative rule stating "the respondent shall pay the 'contested case costs' incurred by the commission" in those cases where "the complainant or the commission prevails in the hearing," 161 IAC 4.7(1), means that the award of these costs is a duty imposed on the Commission. Iowa Code S 4.1 (30)(a). It is self-evident that the purpose of this rule is to enable the Commission to recover costs incurred in the hearing process so that its ability to enforce the act in meritorious cases shall not be impaired by the expense of such costs. See id. Thus, the costs provision is not merely a directory provision related to order and promptness in the proceeding, but is mandatory. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982). By finding that the Commission and the Complainant prevailed in the hearing, the Administrative Law Judge impliedly found that costs should be awarded to the Commission as required by the rule. See 161 IAC 4.7(1). Thus, the error of failing to mention this mandatory award in the proposed decision may be corrected by this nunc pro tunc order. See 20 Am. Jur.2d Costs S 88 (1965 & Supp. 1994).
2. The nunc pro tunc order may be used to retroactively correct errors in an original decision, including "evident mistakes," in order to "show now what was actually done then." Feddersen v. Feddersen, 271 N.W.2d 717, 718, 719 (Iowa 1978). Thus, correction of the evident mistake with respect to the year set forth in paragraph G of the Decision and Order is appropriate.
DECISION AND ORDER:
1. The following new section is added to the Conclusions of Law:
X(A). Hearing Costs:
52A. The Commission has requested the assessment of hearing costs to Respondents. (Commission's Brief at 34). An administrative rule of the Iowa Civil Rights Commission provides, in relevant part, that: "If the complainant or the commission prevails in the hearing, the respondent shall pay the 'contested case costs' incurred by the commission." 161 IAC 4.7(1). "Contested case costs" include only:
a. The daily charge of the court reporter for attending and transcribing the hearing.
b. All mileage charges of the court reporter for traveling to and from the hearing.
c. All travel time charges of the court reporter for traveling to and from the hearing.
d. The cost of the original of the transcripts of the hearing.
e. Postage incurred by the administrative law judge in sending by mail (regular or certified) any papers which are made part of the record.
161 IAC 4.7(3).
52B. Since the Commission and the complainant have prevailed in this case, an order awarding contested case costs is appropriate. The record should be held open so a bill of costs may be submitted after this decision becomes final. See Connie Zesch-Luense, CP # 05-88-17707, slip op. (Iowa Civil Rights Commission November 4, 1994)(Final Order adopting proposed decision which included assessment of hearing costs).
2. The following new paragraph is added to the Decision and Order section of the Proposed Decision:
N. Respondents are assessed all hearing costs allowed by Commission Rule 4.7(3) and which were actually incurred in the processing of this public hearing. The precise calculation of costs shall be as shown on the bill of costs which is to be issued under the executive director's signature after this decision becomes final. The record shall be held open for this purpose.
3. Paragraph G of the Decision and Order section is amended by striking "1984" and replacing it with "1994."
IT IS SO ORDERED on this the 3rd day of January 1995.
______________________________
Donald W. Bohlken
Administrative Law Judge
Iowa Civil Rights Commission
211 E. Maple Street
Des Moines, Iowa 50309
515-281-4480
FAX 515-242-5840