OAR 123-001-0750: Representations by Agency Representative

For purposes of any contested case hearing before an administrative law judge: (1) Subject to the approval of the office of Attorney General of the State of Oregon under ORS chapter 180, the Director may authorize an officer or employee of the Department to appear on behalf of the Department. (2) Such a Department representative may not present legal argument on behalf of state government. (3) The Department retains its full prerogative, with or without intervention by the administrative law judge, to consult with or otherwise involve the office of Attorney General. Such prerogative includes but not necessarily limited to the sole purpose of having the office of Attorney General present legal argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing. (4)(a) “Legal argument” includes arguments on: (A) The jurisdiction to hear the contested case; (B) The constitutionality of a statute or rule or the application of a constitutional requirement to the Department; 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 the 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 followed in the contested case hearing.