OAR 581-001-0002: Authorization for Employee to Appear on Behalf of Agency in Certain Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Department of Education is authorized to appear on behalf of the agency in the following types of hearings conducted by this agency or the Office of Administrative Hearings: (a) Appeals under ORS 326.603 and OAR 581-021-0510 and 581-021-0511 relating to an applicant’s employment or eligibility to contract with a school district based on the results of a criminal background check; and. (b) Appeals under ORS 820.110 and OAR 581-053-0060 relating to school buses and actions taken by the Department against a certificate or permit holder. These may include suspensions, revocations or refusals of certificates or permits. (2) The Department representative may not make legal argument on behalf of the agency. (a) “Legal argument” includes 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 an agency; 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 agency 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.