OAR 137-003-0545: Representation of Agency by Attorney General or Agency Representative

(1) An agency may be represented at a contested case hearing by the Attorney General. (2) An agency may be represented at a contested case hearing by an officer or employee of the agency if the Attorney General has consented to that representation in a particular hearing or class of hearings and the agency, by rule, has authorized an agency representative to appear on its behalf in the particular type of contested case hearing involved. (3) The administrative law judge shall not allow an agency representative appearing under section (2) of this rule to present legal argument as defined in this rule. (a) "Legal Argument" includes arguments 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; (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 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 being followed in the contested case hearing. (4) If the administrative law judge determines that statements or objections made by an agency representative appearing under section (2) involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the agency representative to consult the Attorney General and permit the Attorney General to present argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing. (5) An agency representative appearing under section (2) must read and be familiar with the Code of Conduct for Non-Attorney Representatives at Administrative Hearings dated June 1, 2011, as amended October 1, 2011, which is maintained by the Oregon Department of Justice and available on its website at http://www.doj.state.or.us.