OAR 812-009-0340: Agency Representation by Officer or Employee

(1) Subject to the approval of the Attorney General as provided in ORS 183.452, agency officers and employees may appear, but not make legal argument, on behalf of the agency in the following types of hearings conducted by the agency: (a) Hearings involving the possible imposition of civil penalties for violations of statutes or regulations; (b) Hearings involving refusals to issue, reissue or renew, conditioning, or suspensions, which will be lifted upon correction of a deficiency, payment of a penalty or payment of a construction debt, based upon: (A) ORS 701.098(4)(a)(A) (no bond); (B) ORS 701.098(4)(a)(B) (no insurance); (C) ORS 701.098(4)(a)(F) (unpaid construction debt); (D) ORS 701.102 (unpaid construction debt); (E) ORS 701.106, where the violation is based on a final order issued by: (i) Department of Consumer and Business Services, Building Codes Division; (ii) Department of Consumer and Business Services, Workers’ Compensation Division; (iii) Department of Consumer and Business Services, Oregon-OSHA, (iv) Employment Department; (v) Department of Revenue; or (vi) Landscape Contractors Board. (F) Failure to pay an outstanding obligation, as required by OAR 812-005-0280(2); (G) Failure to obtain or maintain an increased bond, as required by ORS 701.068(5) or (6); (H) Failure to provide information as required under ORS 701.046 and OAR 812-003-0260; (I) Failure to comply with the terms of a settlement agreement entered into under ORS 701.145. (2) The agency representative may not make legal argument on behalf of the agency. (a) “Legal argument” includes argument 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 argument 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 statute or rules directly applicable to the issues in the contested case; (D) The admissibility of evidence; (E) The correctness of procedures being followed in the contested case hearing.