OAR 740-010-0010: Agency Representation at Contested Case Hearings

(1) The Attorney General has given written consent as required by ORS 183.452 for an officer or employee of the Department of Transportation to appear on behalf of the agency in the following types of contested case hearings conducted by ODOT: (a) Assessment of civil monetary penalties for violation(s) of ORS Chapter 818, 823, 825 and 826 or related rules; (b) Suspension or cancellation of motor carrier operating authority; (c) Cancellation of registration or vehicle enrollment in the weight-mile tax program; (d) Surety bond increase; (e) Tariff docket; and (f) Reassessment cases involving weight-mile tax, commercial or prorate registration fees, road use assessment fees, or fuel taxes pursuant to ORS Chapter 818, 825 and 826 or related rules. (2) The agency representative may present evidence, ask questions of witnesses and present factual arguments. (3) The agency 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 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 agency 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 an agency officer or employee represents the agency, the presiding officer shall advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of procedural nature and does not change applicable law on waiver or the duty to make timely objection. Where such objections involve legal argument, the presiding officer shall provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after conclusion of the hearing.