OAR 259-008-0250: Notice of Civil Penalty

(1) Considerations. In determining the amount of a civil penalty the Department will consider: (a) Any prior violation of statute or rule by the agency; (b) The financial benefits, if any, realized by the agency as a result of the violation, such as costs avoided as a result of not having attended required training; (c) The gravity of the violation; and (d) The agency's history of correcting violations and preventing recurrence of violations. (2) Single Violation Civil Penalties. A violation of any requirement within any part of the following statutes is a violation that may result in a civil penalty after a single occurrence. The violations include, but are not limited to: (a) ORS 181A.560 (Certification requirements for a Telecommunicator); (b) ORS 181A.560 (Certification requirements for an Emergency Medical Dispatcher); (c) ORS 181A.520 (Certification requirements for a Corrections Officer); (d) ORS 181A.520 (Failing to attend Basic Corrections training within required timeframe); (e) ORS 181A.520 (U.S. citizenship requirements for a Corrections Officer); (f) ORS 181A.530 (Certification requirements for a Parole & Probation Officer); (g) ORS 181A.530 (U.S. citizenship requirements for a Parole & Probation Officer); (h) ORS 181A.530 (Part-time Parole & Probation continuing education requirement); (i) ORS 181A.490 (Certification requirements for a Police Officer); (j) ORS 181A.490 (Failing to attend Basic Police training within required timeframe); (k) ORS 181A.490 (U.S. citizenship requirements for a Police Officer). (3) Amount of Civil Penalty: (a) An agency found in violation of any requirement listed in section (2) of this rule is subject to a civil penalty of not more than $1,500 per violation per day, unless otherwise provided by this section; (b) The Department may reduce civil penalty amounts where mitigation is warranted, or resolved by stipulation as provided in section (9) of this rule. (4) Payment to be Considered Admission of Violation. Unless the Department agrees otherwise, any payment of a civil penalty is considered as admission of violation of the statutes or rules cited in the civil penalty notice for which the civil penalty was paid. (5) Notice. The Department's notice of its intent to impose a civil penalty will include a statement that if the agency fails to request a hearing within twenty (20) days of the date of service of the notice, the agency’s right to a hearing is waived. (6) Informal Conference. When the Department issues a notice of civil penalty, the agency will be entitled to an informal conference to respond to the notice. The conference must be held before a person authorized to issue an order or to make recommendations regarding issuance of an order. The Department must receive a request for an informal conference in writing within twenty (20) days of the date of service of the notice of civil penalty. If the agency fails to submit a timely request for a conference, the agency’s right to a conference is waived. (7) Hearing Request: (a) Right to Hearing. If the Department issues a notice of intent to impose a civil penalty, the agency is entitled to a contested case hearing in accordance with the provisions of ORS Chapter 183; (b) Request for Hearing. The Department must receive a request for a hearing in writing within twenty (20) days of the date the notice of intent to impose a civil penalty was served on the agency. The Department may extend the time allowed for submission of the admission/denial and affirmative defenses for up to 30 calendar days, if requested in writing. (8) Default Order. If a hearing is not timely requested, or if an agency withdraws a hearing request or fails to appear at a scheduled hearing, the Department may enter a final order by default imposing the civil penalty. In the event of a default, the Department's file or files on the subject of the civil penalty automatically becomes a part of a contested case record for purposes of proving the Department's prima facie case. (9) Department staff is authorized to seek resolution by stipulation, subject to Department acceptance and approval under the following conditions: (a) The matter is resolved prior to entry of a final order assessing a civil penalty; (b) The agency corrects or proceeds to correct all violations noted in a notice of intent to issue a civil penalty within a prescribed timeframe; (c) The civil penalty amount agreed to is tendered in a certified check, bank draft, cashier’s check or postal money order, made payable to the Department, along with the stipulation. (10) A stipulation will not be accepted for less than the amount provided for in the notice of civil penalty if the violation is not corrected as part of the resolution.