OAR 471-070-8050: Appeals: The Hearing

(1) The purpose of the hearing is to inquire fully into the matters at issue and to make a decision on the basis of the evidence shown at the hearing. (2) No administrative law judge shall conduct a hearing if the administrative law judge has any private interest in the outcome of the hearing or holds any bias or prejudice which would impair a fair and impartial hearing. All testimony at any hearing before an administrative law judge shall be under oath or affirmation. (3) The Office of Administrative Hearings shall make an audio, video or stenographic record of the hearing. (4) The administrative law judge shall conduct and control the hearing. The administrative law judge shall determine the order of the presentation of evidence, administer oaths, examine any witnesses, and may, either on the administrative law judge’s own motion or a party’s or the department’s request, exclude witnesses from the hearing room. Participants, or their authorized representatives, shall have the right to call and examine witnesses. For purposes of this rule, “participant” includes any party and the department. (5) Hearings are not open to the public and are closed to non-participants in the hearing. The administrative law judge may exclude witnesses from the hearing, except for a party, a party’s authorized representative, expert witnesses, the agency representative, one agency officer or employee, and any persons authorized below to attend. (a) An officer or employee of the department may represent the department in a hearing requested under OAR 471-070-8005, in accordance with ORS 657B.410 and OAR 471-070-8000. (b) In accordance with ORS 657B.410, a party may appear on their own behalf or may be represented by legal counsel or by any other representative that the person authorizes to represent the person, including a claimant designated representative as described under OAR 471-070-1250. The administrative law judge may require representatives other than legal counsel, when appearing without the person, to provide written authorization to appear for such person. When a person makes a general appearance at a hearing, defects in notice are waived. (c) A representative authorized to represent a participant in a contested case is expected to follow the following code of conduct: (A) The representative is expected to act professionally, with integrity, and in an ethical manner, in accordance with the statute and rules of the department. The representative is expected to treat all persons in a proceeding and administrative law judges and their staff courteously and fairly. The representative may not offer compensation or anything of value to the administrative law judge or agency decisionmaker in an attempt to influence the decision in a case. These standards of conduct apply at every stage of a contested case. (B) The representative may not suppress any evidence that the representative has a legal obligation to reveal or produce. The representative may present evidence; question witnesses, address legal issues to the extent permitted by law, and perform other functions that foster development of a full and fair record in the proceeding so that the agency can take the correct action. (C) The representative must observe the limits placed by statutes and rules on his or her authority and conduct. If the representative is not an attorney authorized to practice in Oregon, they may not give legal advice to a party or other person in the proceeding. The representative must communicate proposed offers of settlement to the person. (D) The representative should be competent to represent the person in the proceeding, and knowledgeable of the facts of the case and statutes and rules that apply to the case. The representative should know the agency rules of procedure applicable to the case. The representative should be adequately prepared for the hearing and attend to matters in a timely manner, including submission of evidence and providing discovery to other participants. (E) The representative may not communicate directly on the subject of the representation with a person that the representative knows to be represented by a lawyer on that subject unless the representative has the prior consent of the lawyer or is authorized by law to do so. A representative who is not an attorney must not give legal advice to a person who is not represented, other than the advice to secure representation. The representative may not discourage a person from seeking legal advice or representation, or from exercising the right to a hearing. The representative communicating with another participant or representative in the hearing must disclose who the representative is representing. (F) If a representative communicates in writing with an administrative law judge before whom a contested case proceeding is pending about the proceeding, the representative must immediately send a copy of the written communication to all participants in the proceeding or their representatives. A representative must give advance notice to all participants or their representatives of any oral communications with an administrative law judge regarding a contested case proceeding. The other participants in the proceeding must be given the opportunity to participate in the communication. This does not include requests for hearing postponements. (d) Notwithstanding any other law, legal counsel shall not charge or receive more than a reasonable fee for legal services they provide for a party in the proceeding as described in Oregon Professional Rules of Conduct 1.5. (e) Authorized representatives, who are not legal counsel shall not charge or receive an amount in excess of $150 per hour, not exceeding $1500 in total, for the services they provide for a party in the proceeding. (f) When a party is not represented at the hearing by an attorney, paralegal worker, legal assistant, union representative, or person otherwise qualified by experience or training, the administrative law judge shall explain the issues involved in the hearing and the matters that the unrepresented party must either prove or disprove. The administrative law judge shall ensure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues properly before the administrative law judge in the hearing. (6) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude the administrative law judge from entering a decision unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of serious affairs shall be admissible. If a question of privilege arises, the administrative law judge shall fully and clearly inform the party of any rights as to such privilege and deal with procedural problems created by the existence of such issue in a way which protects the party’s person’s right to a fair hearing. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. (7) All evidence shall be offered and made a part of the record in the case and, except for matters stipulated to and for notice taken, no other factual information or evidence shall be considered by the administrative law judge in making the decision. The experience, technical competence, and specialized knowledge of the administrative law judge may be utilized in the evaluation of the evidence presented. The administrative law judge may receive evidence deemed relevant and essential by the administrative law judge to a fair disposition of the issues. (8) The administrative law judge may take official notice of judicially cognizable facts. The administrative law judge may take notice of general, technical, or scientific facts within the administrative law judge’s specialized knowledge and may take notice of documents, records, and forms retained within the department’s files. The administrative law judge shall notify the participants of any official notice taken during the hearing or in the decision prior to such decision becoming final. Participants shall be afforded an opportunity to contest the material so noticed during the hearing or prior to the administrative law judge’s decision becoming final. (9) The administrative law judge shall render a decision on the issue and law involved as stated in the notice of hearing. The administrative law judge’s jurisdiction and authority is confined solely to the issue(s) arising under the Paid Leave Oregon laws in ORS chapter 657B.