Administrative Procedures Act

ORS 183.413
Notice to parties before hearing of rights and procedure

  • failure to provide notice


(1)

The Legislative Assembly finds that parties to a contested case hearing have a right to be informed as to the procedures by which contested cases are heard by state agencies, their rights in hearings before state agencies, the import and effect of hearings before state agencies and their rights and remedies with respect to actions taken by state agencies. Accordingly, it is the purpose of subsections (2) and (3) of this section to set forth certain requirements of state agencies so that parties to contested case hearings shall be fully informed as to these matters when exercising their rights before state agencies.

(2)

Prior to the commencement of a contested case hearing before any agency including those agencies identified in ORS 183.315 (Application of provisions of chapter to certain agencies), the agency shall serve personally or by mail a written notice to each party to the hearing that includes the following:

(a)

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 statement that generally identifies the issues to be considered at the hearing.

(d)

A statement indicating that the party may be represented by counsel and that legal aid organizations may be able to assist a party with limited financial resources.

(e)

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.

(f)

A statement indicating whether discovery is permitted and, if so, how discovery may be requested.

(g)

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.

(h)

Whether a record will be made of the proceedings and the manner of making the record and its availability to the parties.

(i)

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.

(j)

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.

(k)

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.

(L)

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.

(m)

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.

(n)

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.

(o)

A description of the appeal process from the determination or order of the agency.

(p)

A statement that active duty servicemembers have a right to stay proceedings under the federal Servicemembers Civil Relief Act and may contact the Oregon State Bar or the Oregon Military Department for more information. The statement must include the toll-free telephone numbers for the Oregon State Bar and the Oregon Military Department and the Internet address for the United States Armed Forces Legal Assistance Legal Services Locator website.

(3)

The failure of an agency to give notice of any item specified in subsection (2) of this section does not invalidate any determination or order of the agency unless upon an appeal from or review of the determination or order a court finds that the failure affects the substantial rights of the complaining party. In the event of such a finding, the court shall remand the matter to the agency for a reopening of the hearing and shall direct the agency as to what steps it shall take to remedy the prejudice to the rights of the complaining party. [1979 c.593 §§37,38,39; 1995 c.79 §63; 2007 c.288 §1; 2013 c.295 §1]

Notes of Decisions

Petitioner received adequate notice of his rights and procedures at hearing when he received notice right before hearing began. Cobine v. MVD, 102 Or App 17, 792 P2d 469 (1990)

This section pertains to contents of notice of contested case hearing and does not confer on petitioner substantive procedural rights during contested case hearing and is not source of authority for petitioner to issue subpoenas for appearance of witnesses. Smith v. Board of Parole and Post-Prison Supervision, 268 Or App 457, 343 P3d 245 (2015), Sup Ct review denied

§§ 183.413 to 183.470

Law Review Citations

70 OLR 176 (1991)

§§ 183.310 to 183.550

See annotations under ORS chapter 183.

Chapter 183

Notes of Decisions

A legislative delegation of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to establish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Administrative regulation providing that failure to perform responsibilities adequately was a ground for employee's dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied

Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Children's Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff'd 288 Or 533, 607 P2d 141 (1980)

"Trending factors" published by the Department of Revenue and used to appraise property for purposes of property taxation are not "rules" within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)

Appellate court may review proceeding meeting definition of contested case whether or not proceeding was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)

Circuit court could not entertain action for declaratory judgment directed at PERS, because PERS is subject to APA, which provides exclusive method for review of its actions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied

Board of Education approval of textbook for use in state public schools was not "rule," but was "order in other than contested case," and jurisdiction for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)

Preponderance of evidence standard applies where initial license application is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied

Completed Citations

Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)

Atty. Gen. Opinions

State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student conduct proceedings as "contested cases," (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is fundamentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155

Law Review Citations

51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)


Source

Last accessed
Jun. 26, 2021