Current through Register Vol. 63, No. 3, March 1, 2024
(1) In any hearing, the director may request
to:
(a) Receive notice of all
matters;
(b) Receive copies of all
documents; and
(c) Present
evidence, testimony, and argument.
(2) The director may appear in a matter by filing an entry of
appearance. The director may be represented by an agency representative,
assistant attorney general, or special assistant attorney general as authorized
by the Department of Justice. If the director enters an appearance, all notices
and documents in the hearing must be provided to the director's representative.
(a) An agency representative may represent
the director in hearings held before the administrative law judges of the board
to determine the correctness of:
(A) An order
under ORS
656.052
declaring a person to be a noncomplying employer ("NCE Orders");
(B) A nonsubjectivity determination under ORS
656.052
declaring either that a person is not a subject employer or is not a subject
worker ("NSD Orders");
(C) An order
assessing a civil penalty under ORS
656.735,
656.740,
656.745(2),
or
656.750;
(D) An order under ORS
656.745(1)
assessing a civil penalty against an employer or insurer with prior written
consent of the Attorney-in-Charge of the Business Activities Section of the
Department of Justice; and
(E) An
order under ORS
656.254(2)
imposing sanctions to enforce medical reporting requirements.
(b) In cases assigned to lay
representatives in accordance with subsection (a), above:
(A) Lay representatives are authorized to
handle all settlement negotiations related to proposed NCE Orders, NSD Orders,
and civil penalty or forfeiture orders. All settlement documents will be
reviewed for legal sufficiency by the Department of Justice unless they conform
to a form settlement document approved by the Attorney-in-Charge of the
Business Activities Section. All settlement documents submitted to the
Department of Justice will be accompanied by the original proposed order and
any subsequent orders issued by the division.
(B) If the division issues a worker
nonsubjectivity denial instead of referring the claim to the assigned claims
agent, the division's lay representative(s) may handle settlement negotiations
resulting from that worker nonsubjectivity denial. Once a request for hearing
has been filed contesting that worker nonsubjectivity denial, the lay
representative(s) have seven calendar days within which to finalize any pending
settlement negotiations and must coordinate settlement discussions with the
assigned assistant attorney general or special assistant attorney general, who
will assume representation on the case. The assistant attorney general or
special assistant attorney general assigned to the case may extend the
seven-day time period by authorizing the lay representative(s) to continue
settlement negotiations. All settlement documents will be reviewed for legal
sufficiency by the attorney assigned to the case before submission to an
administrative law judge.
(c) Notwithstanding subsections (a) or (b) above, and under ORS
656.704,
the Department of Justice will represent the division in all matters pertaining
to a claim.
(3) The
administrative law judge must not allow an agency representative appearing
under section (2) of this rule to present legal argument as defined by this
rule.
(a) "Legal argument" includes arguments
on:
(A) The jurisdiction of the agency to
hear the contested case;
(B) The
constitutionality of a statute or rule or the application of a constitutional
requirement to an agency; and
(C)
The application of court precedent to the facts of the particular contested
case proceeding.
(b)
"Legal argument" does not include presentation of motions, evidence,
examination and cross-examination of witnesses, or presentation of factual
arguments or arguments on:
(A) The
application of the statutes or rules to the facts in the contested
case;
(B) Comparison of prior
actions of the agency in handling similar situations;
(C) The literal meaning of the statutes or
rules directly applicable to the issues in the contested case;
(D) The admissibility of evidence;
and
(E) The correctness of
procedures being followed in the contested case hearing.
(4) If the
administrative law judge determines that statements or objections made by an
agency representative appearing under section (2) involve legal argument as
defined in this rule, the administrative law judge must provide reasonable
opportunity for the agency representative to consult the Attorney General and
permit the Attorney General to present argument at the hearing or to file
written legal argument within a reasonable time after conclusion of the
hearing.
(5) An agency
representative appearing under section (2) must read and be familiar with the
Code of Conduct for Non-Attorney Representatives at Administrative Hearings
dated June 1, 2011, as amended Oct. 1, 2011, which is maintained by the Oregon
Department of Justice and available on its website at
https://www.doj.state.or.us/wp-content/uploads/2017/06/code_of_conduct_oah_contested.pdf.
Statutory/Other Authority: ORS
183.452,
656.704
& 656.726(4)
Statutes/Other Implemented: ORS
180.220(2),
180.235,
183.452
& 656.704
