OAR 582-020-0075: Program Representation during Impartial Hearings

(1) The Program may be represented by an Assistant Attorney General. (2) Subject to the approval of the Attorney General, an employee of the Program is authorized to appear as the lay representative in hearings governed by OAR chapter 582, division 020. (3) A Program representative may not make legal argument. (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 the 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 evidence, examination and cross ‐ examination of witnesses or presentation of factual arguments or arguments on: (A) The application of the facts to the statutes or rules directly applicable to the issues in the contested case; (B) Comparison of prior actions of the Program in handling similar situations; (C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case; and (D) The admissibility of evidence or the correctness of procedures being followed. (4) When a lay representative represents the Program, the IHO shall advise the 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. Where such objections involve legal argument, the IHO shall provide reasonable opportunity for the Program employee to consult legal counsel and permit legal counsel to file written legal argument within a reasonable time after conclusion of the hearing or to represent the Program if the hearing is continued.