OAR 414-075-0300: Union Representation in Contested Case Hearings

(1) A labor union representative who is not an attorney holding an active license issued by the Oregon State Bar may represent the following providers in a contested case hearing conducted by the CCLD or the Department: (a) The licensee under a registered or certified family child care home license; or (b) An individual who provides subsidized care in the home of the individual or the home of the child that is not required to be licensed. (2) When representing a provider, a labor union representative may present evidence, examine and cross-examine witnesses and make arguments relating to the: (a) Application of statutes and rules to the facts in the contested case; (b) Actions taken by CCLD in the past in similar situations; (c) Literal meaning of the statutes or rules at issue in the contested case; (d) Admissibility of evidence; and (e) Proper procedures to be used in the contested case hearing. (3) A labor union representative may not make legal argument on behalf of the provider. (a) “Legal argument” does not include arguments listed in section (2)(a) through (e) of this rule. (b) “Legal argument” includes arguments on: (A) The jurisdiction of CCLD to hear the contested case; (B) The constitutionality of a statute or rule or the application of a constitutional requirement to the CCLD; and (C) The application of court precedent to the facts of the particular contested case proceeding. (4) Union representatives must read and be familiar with the Code of Conduct for Non-Attorney Representatives at Administrative Hearings, which is maintained by the Oregon Department of Justice and available on its website at: https://www.doj.state.or.us/wp-content/uploads/2017/06/code_of_conduct_oah_contested.pdf (Amended October 1, 2011) (5) If the administrative law judge determines that statements or objections made by the labor union representative appearing under section (1) of this rule involve legal argument as defined in this rule, the administrative law judge shall provide a reasonable opportunity for counsel for the provider to appear and present argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing. (6) A labor union representative must obtain and provide to CCLD and to the Office of Administrative Hearings (OAH) the written authorization of the provider to being represented by the labor union representative prior to beginning representation or communicating with CCLD or the OAH on behalf of the provider regarding the contested case. (7) An authorized labor union’s representation of a provider in a hearing may include the activities described in section (3) of this rule and: (a) Communicating with CCLD without the presence of the provider regarding procedural matters including but not limited to scheduling; (b) Assisting the provider in preparing and filing proposed exhibits and witness list; (c) Making stipulations of fact; (d) Agreeing or objecting to the admissibility of evidence based on relevance; or (e) Being with the provider during any settlement negotiations including by telephone or video-conference. (8) An authorized labor union’s representation of a provider in a hearing may not include: (a) Entering into binding settlement agreements on behalf of the provider; (b) Issuing subpoenas for witness attendance at the hearing. (A) If a provider determines that a necessary witness is unwilling to testify, the provider or an authorized labor union representative may request that CCLD subpoena the witness by submitting a written request including the name, phone number, physical address, and description of anticipated testimony to CCLD no less than 30 calendar days before the date scheduled for hearing. (B) CCLD is not required to subpoena witnesses on behalf of the provider unless CCLD agrees that the testimony of the witness is necessary for a full and fair hearing. (C) CCLD is not required to subpoena witnesses on behalf of the provider for a hearing on an emergency order suspending a license or Central Background Registry enrollment or imposing a condition on a license. (D) CCLD will notify the provider or authorized labor union representative of whether it will issue a subpoena pursuant to the request within 10 business days of receipt of the request. (E) If CCLD does not agree to subpoena the witness as requested pursuant to this subparagraph, the provider may retain counsel to represent them in the hearing and issue the subpoena. (9) A provider who is or becomes represented by an attorney in a contested case hearing may not be simultaneously represented by an authorized labor union representative, and the notification of representation by an attorney shall operate to rescind any prior authorization for a labor union representative to represent the provider. (10) Sections (3) through (8) of this rule do not apply to an attorney who appears as counsel for the provider in a contested case before CCLD or the Department.