A consent order is governed by federal and state laws, which vary by jurisdiction. It is generally a voluntary agreement worked out between two or more parties to a dispute. It generally has the same effect as a court order and can be enforced by the court if anyone does not comply with the orders.
Consent orders may also be issued by administrative agencies. For example, a licensing commission may issue a consent order to a licensee in which the licensee agrees to the imposition of certain disciplinary sanctions, such as reprimand or the suspension or revocation of his or her license. The use of a consent order allows the licensing agency and the parties involved to resolve a disciplinary proceeding initiated by the agency without the time and expense required by a formal administrative hearing.
The following is an example of a federal law governing consent orders dealing with penalties under ERISA:
For 502(c)(5) civil penalty proceedings, the following shall apply in lieu of Sec. 18.9 of this title.
(a) In general. At any time after the commencement of a proceeding, but at least five (5) days prior to the date set for hearing, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be in the discretion of the administrative law judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties and the probability of reaching an agreement which will result in a just disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide:
- That the order shall have the same force and effect as an order made after full hearing;
- That the entire record on which any order may be based shall consist solely of the notice and the agreement;
- A waiver of any further procedural steps before the administrative law judge;
- A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and
- That the order and decision of the administrative law judge shall be final agency action.
(c) Submission. On or before the expiration of the time granted for negotiations, but, in any case, at least five (5) days prior to the date set for hearing, the parties or their authorized representative or their counsel may:
- Submit the proposed agreement containing consent findings and an order to the administrative law judge; or
- Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or
- Inform the administrative law judge that agreement cannot be reached.
(d) Disposition. In the event that a settlement agreement containing consent findings and an order is submitted within the time allowed therefore, the administrative law judge shall issue a decision incorporating such findings and agreement within thirty (30) days of receipt of such document. The decision of the administrative law judge shall incorporate all of the findings, terms, and conditions of the settlement agreement and consent order of the parties. Such decision shall become a final agency action within the meaning of 5 U.S.C. 704.
(e) Settlement without consent of all parties. In cases in which some, but not all, of the parties to a proceeding submit a consent agreement to the administrative law judge, the following procedure shall apply:
- If all of the parties have not consented to the proposed settlement submitted to the administrative law judge, then such non- consenting parties must receive notice, and a copy, of the proposed settlement at the time it is submitted to the administrative law judge;
- Any non-consenting party shall have fifteen (15) days to file any objections to the proposed settlement with the administrative law judge and all other parties;
- If any party submits an objection to the proposed settlement, the administrative law judge shall decide within thirty (30) days after receipt of such objections whether to sign or reject the proposed settlement. Where the record lacks substantial evidence upon which to base a decision or there is a genuine issue of material fact, then the administrative law judge may establish procedures for the purpose of receiving additional evidence upon which a decision on the contested issues may reasonably be based;
- If there are no objections to the proposed settlement, or if the administrative law judge decides to sign the proposed settlement after reviewing any such objections, the administrative law judge shall incorporate the consent agreement into a decision meeting the requirements of paragraph (d) of this section.