OAR 165-001-0036: Employee Representation at Contested Case Hearings

(1) The Agency’s goal in contested case hearings is to have a full and accurate record upon which the Agency can make the best decision. To help ensure a full record, the Agency allows employees to represent the Agency in certain contested case hearings. The employee representative's role is to represent the Agency in a way that supports objective fact finding and encourages an open, fair, and efficient process. (2) An Agency employee may represent the Agency in contested case hearings involving violations of ORS 260.035, 260.039, 260.041, 260.042, 260.044, 260.054, 260.055, 260.057, 260.076, 260.078, 260.083, 260.112, 260.118, 260.275, 260.281 and 260.285. (3) The representative's responsibilities include, but are not limited to: (a) Presenting evidence; (b) Asking questions of all witnesses; (c) Presenting information about the facts, and advocating for staff's position surrounding the facts; (d) Presenting information on how the facts apply to the statutes or rules directly related to the issues in the contested case; (e) Presenting information comparing Agency actions in similar situations; (f) Presenting information about the literal meaning of the statutes or rules that apply to the issues in the contested case; and (g) Presenting information about the admissibility of evidence or the correctness of procedures being followed. (4) The employee representative may not make legal arguments. "Legal arguments" include 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 the Agency; and (c) The application of court precedent to the facts of the particular contested case proceeding. (5) When an employee represents the Agency in a contested case hearing, the presiding officer will advise the employee representative of the way in which objections may be made. This advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objections. If the objections involve legal argument, the presiding officer will provide reasonable opportunity for the employee representative to consult legal counsel and permit legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.