OAR 808-009-0340
Agency Representation by Officer or Employee
(1)
Subject to the approval of the Attorney General as provided in ORS 183.452 (Representation of agencies at contested case hearings), 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 (Placement on probation);(e)
Hearings involving suspensions without prior hearing as stated in ORS 671.610 (Grounds for sanctions against licensee)(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.
Source:
Rule 808-009-0340 — Agency Representation by Officer or Employee, https://secure.sos.state.or.us/oard/view.action?ruleNumber=808-009-0340.