OAR 123-200-2200: Representation of the COBID by Officer or Employee in Contested Case Hearings

(1) An officer or employee of the COBID may appear on behalf of the COBID in contested case hearings, subject to the approval and authorization of the Attorney General. (2) The COBID representative may not make legal argument on behalf of the COBID. (a) "Legal argument" includes arguments on: (A) The jurisdiction of the COBID to hear the contested case; (B) The constitutionality of a statute, rule, or the application of a constitutional requirement to the COBID; and (C) The application of court precedent to the facts of the particular contested case proceeding. (b) "Legal argument" does not include presentation of evidence, examination and cross-examination of witnesses, presentation of factual arguments, or arguments on: (A) The application of the facts to the statutes or rules directly applicable to the issues in the contested case; (B) Comparison of prior actions of the COBID in handling similar situations; (C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case; and (D) The admissibility of evidence of the correctness of procedures followed. (3) When an officer or employee of the COBID represents the agency, the presiding officer shall advise the representative of the manner in which to make objections and which matters to preserve for appeal. Such advice is of a procedural nature and does not change applicable law on waiver of the duty to make timely objection. Where such objections involve legal argument, the presiding officer shall provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after conclusion of the hearing.