OAR 419-050-0010: Lay Representation in Contested Case Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Department is authorized to appear on behalf of the Department in a contested case hearing conducted by the Office of Administrative Hearings under OAR 419-050-0000. (2) A Department officer or employee acting as the Department’s representative may not make legal argument on behalf of the Department. (a) "Legal argument" includes arguments on: (A) The jurisdiction of the Department to hear the contested case; (B) The constitutionality of a statute or rule or the application of a constitutional requirement to the Department; and (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 Department 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. (3) When an officer or employee appears on behalf of the Department, the administrative law judge shall advise the Department's representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. (4) If the administrative law judge determines that statements or objections made by the Department representative appearing under section (1) of this rule involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the Department 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) A Department representative appearing under section (1) of this rule 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 at http://www.doj.state.or.us . (6) When a Department officer or employee represents the Department in a contested case hearing under OAR 419-050-0000, requests for admission and written interrogatories are not permitted. The Department adopts this exception to the Attorney General’s model rules due to caseload volume and because these matters would unnecessarily complicate the hearing process.