Section 161.4.28. Awards of attorney’s fees.

       4.28(1) Retention of jurisdiction. In any final decision in which it is determined that the complainant is entitled to an award of attorney’s fees, but the actual amount has not yet been determined, there is, by operation of this rule, an express retention of jurisdiction of the case by the commission in order to determine the actual amount of attorney’s fees to which the party is entitled and to enter a subsequent order awarding those fees. The commission shall take this action regardless of whether or not such retention of jurisdiction is expressed in the final decision. In such case, the decision is final in all other respects except the determination of the amount of the attorney’s fees.

       4.28(2) Stipulation. A final decision, in which it is determined that the complainant is entitled to an award of attorney’s fees, may provide for an opportunity for the parties to file a written stipulation concerning the amount of the fees to be awarded. Any such stipulation entered into by the complainant(s) and respondent(s) is binding on the commission in the absence of evidence of fraud, wrongdoing, misrepresentation, or evidence that the stipulation is not in accord with the intent of the parties.

       4.28(3) Hearing. If the amount of attorney’s fees is not stipulated to by the parties, the presiding officer shall schedule a hearing on the issue of the amount of the attorney’s fees. The hearing shall be governed by the same procedures as a hearing on the merits of a complaint except where otherwise ordered by the presiding officer. The parties may elect, by written stipulation, to utilize some method, such as stipulation of facts or submission of a documentary record, other than or complementary to a hearing, in order to make a record on attorney’s fees which may then be reviewed by the presiding officer. By operation of this rule, the commission expresses its consent to such stipulations if agreed to by the parties seeking and contesting attorney’s fees. The record of the original hearing is part of the record on the attorney’s fee issue. Regardless of the method by which the record is made, the complainant has the burden of persuasion in proving attorney’s fees.

[ARC 8737B, IAB 5/5/10, effective 6/9/10]