Current through Register Vol. 63, No. 9, September 1, 2024
(1) Subject to the approval of the Attorney
General as provided in ORS
183.452, agency officers and
employees may appear, but not make legal argument, on behalf of the agency in
the following types of hearings conducted by the agency:
(a) Hearings involving the possible
imposition of civil penalties for violations of statutes or
regulations;
(b) Hearings involving
refusal to issue, refusal to renew or suspension, where the license would be
issued or renewed or the suspension lifted upon correction of the deficiency or
payment of the penalty;
(c)
Hearings involving a refusal to issue, refusal to renew or suspension of a
license for failure to pay a civil penalty, failure to pay a claim or for
violations of employer status regulations, including ORS Chapters 656, 657 and
316, where the license would be issued or renewed or the suspension lifted upon
correction of the deficiency or payment of the penalty;
(d) Hearings involving the placement of a
licensee on probation and for hearings involving suspension, revoking or
refusal to renew for failing to fulfill the terms of the probation per ORS
671.614;
(e) Hearings involving suspensions without
prior hearing as stated in ORS
671.610(2),
where the suspension would be lifted upon correction of the deficiency or
payment of the penalty; and
(f) In
other compliance hearings as approved in writing by the Attorney General on an
individual case basis.
(2) The agency representative may not make
legal argument on behalf of the agency.
(a)
"Legal argument" includes argument 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 argument 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 statute or rules directly applicable to the issues
in the contested case;
(D) The
admissibility of evidence;
(E) The
correctness of procedures being followed in the contested case
hearing.
(3)
When an agency officer or employee represents the agency in a hearing, the
presiding officer shall advise the representative of the manner in which
objections may be made and matters preserved for appeal. This advice is of a
procedural nature and does not change applicable law on waiver on the duty to
make timely objection. Where an objection may involve legal argument, the
presiding officer shall provide reasonable opportunity for the agency officer
or employee to consult legal counsel and permit the legal counsel to file
written legal argument within a reasonable time after conclusion of the
hearing.
Stat. Auth.: ORS 183,
670.310 &
671.670
Stats. Implemented: ORS
183.452
