OAR 350-016-0009
Notice, Hearing and Record in Contested Cases; Informal Dispositions; Hearings Officer
(1)
In a contested case hearing, all parties shall be afforded an opportunity for hearing after notice of not less than 20 days, served personally or by registered or certified mail.(2)
The notice shall include:(a)
A statement of the party’s right to hearing, with a description of the procedure and time to request a hearing, or a statement of the time and place of the hearing;(b)
A statement of the authority and jurisdiction under which the hearing is to be held;(c)
A reference to the particular sections of the statutes and rules involved;(d)
A short and plain statement of the matters asserted or charged, and identifying the issues to be considered at the hearing;(e)
A statement indicating whether and under what circumstances an order by default may be entered;(f)
A statement that a party may be represented by counsel and that legal aid organizations may be able to assist a party with limited financial resources;(g)
A statement that the party has the right to respond to all issues properly before the presiding officer and present evidence and witnesses on those issues as allowed by the applicable rules under which the hearing is held.(h)
A statement indicating whether discovery is permitted and, if so, how discovery may be requested.(i)
A general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections may be made and an explanation of the burdens of proof or burdens of going forward with the evidence.(j)
Whether a record will be made of the proceedings and the manner of making the record and its availability to the parties.(k)
The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the agency.(l)
Whether an attorney will represent the agency in the matters to be heard and whether the parties ordinarily and customarily are represented by an attorney.(m)
The title and function of the person presiding at the hearing with respect to the decision process, including, but not limited to, the manner in which the testimony and evidence taken by the person presiding at the hearing are reviewed, the effect of that person’s determination, who makes the final determination on behalf of the agency, whether the person presiding at the hearing is or is not an employee, officer or other representative of the agency and whether that person has the authority to make a final independent determination.(n)
In the event a party is not represented by an attorney, whether the party may during the course of proceedings request a recess if at that point the party determines that representation by an attorney is necessary to the protection of the party’s rights.(o)
Whether there exists an opportunity for an adjournment at the end of the hearing if the party then determines that additional evidence should be brought to the attention of the agency and the hearing reopened.(p)
Whether there exists an opportunity after the hearing and prior to the final determination or order of the agency to review and object to any proposed findings of fact, conclusions of law, summary of evidence or recommendations of the officer presiding at the hearing.(q)
A description of the appeal process from the determination or order of the agency.(r)
Unless otherwise ordered by the presiding officer, the names and mailing addresses of all parties to whom notice is being given and, if known, the names and addresses of their representatives;(s)
The official file or other reference number and the name of the proceeding;(t)
The name, official title, mailing address, and telephone number of the presiding officer, if known; and(u)
Any other matters considered desirable by the agency.(3)
Parties may elect to be represented by counsel and to respond and present evidence and argument on all issues involved.(4)
The commission may adopt rules of procedure governing participation in contested cases by person appearing as limited parties.(5)
Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.(6)
An order adverse to a party may be issued upon default only upon prima facie case made on the record of the commission. When an order is effective only if a request for hearing is not made by the party, the record may be made at the time of issuance of the order, and if the order is based only on material included in the application or other submissions of the party, the commission may so certify and so notify the party, and such material shall constitute the evidentiary record of the proceeding if hearing is not requested. The commission shall serve a default order upon the defaulted party or the party’s attorney, if any.(7)
Within seven days after service of a default order under subsection (6) of this section, the party against whom it was entered may file a written motion requesting that the order be vacated, and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the presiding officer may adjourn the proceedings or conduct them without the participation of that party, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. At the commencement of the hearing, the officer presiding shall explain the issues involved in the hearing and the matters that the parties must either prove or disprove.(8)
Testimony shall be taken upon oath or affirmation of the witness form when received. The officer presiding at the hearing shall administer oaths or affirmatives to witnesses.(9)
The officer presiding at the hearing shall insure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues property before the presiding officer in the case and the correct application of law to those facts.(10)
The record in a contested case shall include:(a)
All pleadings, motions and intermediate rulings.(b)
Evidence received or considered.(c)
Stipulations.(d)
A statement of matters officially noticed.(e)
Questions and offers of proof, objections and rulings thereon.(f)
A statement of any ex parte communications on a fact in issue made to the officer presiding at the hearing.(g)
Proposed findings and exceptions.(h)
Any proposed, intermediate or final order prepared by the commission or a hearings officer.(11)
A verbatim oral, written or mechanical record shall be made of all motions, rulings and testimony. The record need not be transcribed unless requested for purposes of rehearing or court review. The commission may charge the party requesting transcription, unless the party files an appropriate affidavit of indigency.
Source:
Rule 350-016-0009 — Notice, Hearing and Record in Contested Cases; Informal Dispositions; Hearings Officer, https://secure.sos.state.or.us/oard/view.action?ruleNumber=350-016-0009.