Current through Register Vol. 63, No. 9, September 1, 2024
(1) Unless waived
by the AIC, a formal hearing shall be conducted by the Hearings Officer on all
misconduct reports charging any major rule violation and any included minor
violation, on all misconduct reports charging a minor rule violation(s) for
which an AIC requests a formal hearing, and on all misconduct reports referred
by the adjudicator for a formal hearing in accordance with OAR
291-105-0041(6).
(2) The findings must be on the merits.
Technical and clerical errors in the writing or processing of the misconduct
report should not be grounds for dismissal, unless there is substantial
prejudice to the AIC.
(3) Standard
of Proof: Rule violation(s) shall be found upon proof by a preponderance of the
evidence. The term "preponderance of the evidence" means the greater weight of
evidence, not necessarily established by the amount of evidence or number of
witnesses, but by that evidence that has the most convincing force.
(4) The Hearings Officer shall consider such
evidence as would be considered by a reasonable person in the conduct of their
serious affairs.
(5) Once the
formal hearing has begun, if the Hearings Officer determines that the
violations are not supported by the facts as written in the misconduct report,
the Hearings Officer may substitute a lesser included violation or refer back
to the author for less formalized discipline.
(6) At the hearing, the AIC will be allowed
to exercise rights as allowed in OAR
291-105-0056.
(7) The Hearings Officer may pose questions
during the hearing.
(8) An
investigation shall be conducted in a formal hearing upon the AIC's request if
the information sought, when viewed in a light most favorable to the AIC, and
with all reasonable inferences drawn in the favor of the AIC, would constitute
a defense to the charge or substantially mitigate the violation. The
information sought must be within the ability of the facility to procure. If a
request for investigation is denied, the reason(s) for denial shall be made a
part of the record.
(9) Testimony
of Witnesses:
(a) The Hearings Officer shall
direct the scheduling and taking of testimony of witnesses at the hearing.
Witnesses may include AICs, employees, or other persons. Testimony may be taken
in person, by telephone, or by written report or statement.
(b) The AIC may request that the Hearings
Officer schedule witnesses to present testimony at the hearing. The request
should be submitted to the Hearings Officer in writing in advance of the
hearing and include a list of all persons the AIC requests be called to
testify, and the questions sought to be posed to each person. Requests for
witnesses must minimally be made to the Hearings Officer at the time of the
hearing. The AIC must provide sufficient evidence for the Hearings Officer to
conclude that the results of the testimony provided by witnesses will either
constitute a defense to the alleged violation(s) or substantially lessen the
severity of the violation(s). The Hearings Officer shall arrange for the taking
of testimony from such witnesses as properly requested by the AIC, subject to
the exclusions and restrictions provided in these rules. Requests for witnesses
made or received after a hearing is decided will not be considered.
(c) The AIC shall not directly pose questions
to any witness.
(d) The Hearings
Officer may limit testimony when it is cumulative or irrelevant.
(e) The Hearings Officer may exclude a
specific witness upon finding that the witness' testimony, together with all
reasonable inferences to be drawn from that testimony, would not constitute a
defense to the charge, would not substantially mitigate the violation, or would
not assist the Hearings Officer in the resolution of the disciplinary action.
The Hearings Officer may exclude a specific witness upon finding that the
appearance of the witness at the hearing would present an immediate undue risk
to the safe, secure, or orderly operation of the facility, specifically
including the safety and security of employees and AICs. If a witness is
excluded, the reason(s) shall be made a part of the record.
(f) The Hearings Officer may call witnesses
to testify as deemed necessary.
(g)
Persons requested as witnesses, other than employees, may refuse to
testify.
(h) All questions that may
assist in eliciting evidence that would constitute a defense to the alleged
rule violation(s) or substantially mitigate the violation(s) shall be posed.
The reason for not posing a question will be made part of the record.
(i) Confidential Informants:
(A) When confidential informant testimony is
submitted to the Hearings Officer, the identity of the informant and the
verbatim statement of the informant shall be submitted to the Hearings Officer
in writing using an approved Department of Corrections form but shall remain
confidential in accordance with OAR
291-105-0036(3).
(B) Information must be submitted supporting
the informant is a person who can be believed or that the information provided
is believable in order for the Hearings Officer to rely on the testimony of the
confidential informant.
(10) Documents and Physical Evidence:
(a) An AIC participating in a formal
disciplinary hearing may present documents and physical evidence during the
hearing, subject to the exclusions and restrictions provided in these rules.
Any evidence submitted by the AIC will be added to the record and will not be
returned or photocopied for the AIC by the Hearings Officer. In instances where
the AIC does not have the ability to procure the evidence (for example,
obtaining surveillance video footage), the Hearings Officer may
assist.
(b) Any person who is
knowledgeable of any rule violation charged in the misconduct report(s) may
submit documents and physical evidence in advance of or during the
hearing.
(c) The Hearings Officer
may exclude documents and physical evidence upon finding that such evidence
would not assist the Hearings Officer in the resolution of the disciplinary
action or that such evidence would present an undue risk to the safe, secure,
or orderly operation of a facility, specifically including the safety and
security of employees and AICs. The reason(s) for exclusion shall be made a
part of the record.
(d) The
Hearings Officer shall classify documents and physical evidence as confidential
upon finding that disclosure would present an undue risk to the safe, secure,
or orderly operation of any facility, specifically including the safety and
security of employees and AICs, or that disclosure would interfere with an
ongoing official investigation. The reason(s) for classifying documents and
physical evidence as confidential shall be made a part of the record. Documents
and physical evidence classified as confidential by the Hearings Officer shall
not be shown or otherwise provided to the AIC.
(e) The Hearings Officer may show to the AIC
or read into the record any evidence submitted. However, the Hearings Officer
will not provide copies of the evidence to the AIC. AICs may request and obtain
copies of nonexempt records in accordance with the department's rule on Release
of Public Records (OAR 291-037).
(11) The Hearings Officer shall determine
whether any rule violations occurred.
(a) The
Hearings Officer may postpone the rendering of a decision for a reasonable
period of time, not to exceed seven working days, for the purpose of reviewing
the evidence to determine if there is a violation(s). The decision will be
based solely upon information obtained in the hearings process, including
employee reports, the statements of the AIC charged, and evidence derived from
witnesses and documents.
(b)
Attempt or Conspiracy: An AIC who attempts or conspires to commit a rule
violation shall be found in violation of the rule and shall be subject to
appropriate sanctions on the same basis as if the AIC had committed the rule
violation.
(12) At the
formal hearing the Hearings Officer shall decide:
(a) No Violation: The Hearings Officer may
find that the AIC did not commit the violation(s) charged, in which case the
AIC may be restored to similar status and privileges as before being charged,
as allowed by other rules, policies, etc.
(b) Violation: The Hearings Officer may find
that the AIC committed the violation(s) charged, in which case, the Hearings
Officer will so inform the AIC.
(c)
Dismissal: The Hearings Officer may dismiss the alleged rule violation(s) if:
(A) There is insufficient evidence to support
the alleged violation(s); or
(B)
Corrective action using less formalized procedures would be more appropriate.
The Hearings Officer may refer back to the author for less formalized
discipline; or
(C) The AIC is
released from custody.
(d) Violation Not Responsible: An AIC is
deemed not to be responsible for their actions.
(e) Violation of Leave: When conduct
constitutes a violation of the AIC's condition(s) of Short-Term Transitional
Leave or Non-Prison Leave, the Hearings Officer may also recommend retraction
of earned time, statutory good time, or extra good time credits in accordance
with the department's rule on Prison Term Modification (OAR 291-097).
(13) If no violation is found or
all of the alleged rule violation(s) are dismissed on the misconduct report(s),
the report(s) shall not be placed in the AIC's institution file but may be
retained for statistical or litigation purposes in the Hearings
records.
(14) Upon the finding of
violation(s) by the Hearings Officer, the Hearings Officer:
(a) Shall determine the location of the
violation(s) on the major or minor grids (Exhibits 1 and 2).
(b) Shall determine the AIC's prior
misconduct history as recorded on the Disciplinary Misconduct System. Evidence
of the AIC's prior misconduct history shall be placed in the record either
orally or in writing.
(c) Shall
impose appropriate sanctions in accordance with the major or minor grids
(Exhibits 1 and 2).
(d) Determine
if a deviation of disciplinary segregation sanction (upward or downward) is
appropriate. The Hearings Officer shall document in writing the substantial
reasons for the deviation of disciplinary segregation sanction in accordance
with OAR 291-105-0072.
(e) Determine if consecutive sanctions are
appropriate for separate rule violations arising from a single misconduct
report. The Hearings Officer must document in writing the substantial reasons
for consecutive sanctions, in accordance with OAR
291-105-0066(4)(b).
(15) The Hearings Officer may also
consider imposing the additional sanctions that are available per OAR
291-105-0069.
(16) The Hearings Officer may suspend
imposition of any or all of the imposed disciplinary sanctions, informing the
AIC of expected conduct to avoid imposition and the length of time for which
the sanction will be suspended.
(17) The Hearings Officer may impose any or
all sanctions previously suspended after finding that the AIC has failed to
comply with the conditions of the suspension.
(18) At the conclusion of the hearing, the
AIC shall be informed of the rule violations the Hearings Officer found the AIC
committed and any sanctions imposed.
(19) A verbatim record of the hearing shall
be made. A written record will be made of the decision and the supporting
reasons.
To view attachments referenced in rule text,
click here to view
rule.
Statutory/Other Authority: ORS
179.040,
421.068,
421.180,
423.020,
423.030 &
423.075
Statutes/Other Implemented: ORS
179.040,
421.068,
421.180,
423.020,
423.030 &
423.075
