OAR 845-003-0331: Employee Representation at Contested Case Hearings

(1) As authorized by the Attorney General pursuant to ORS 183.452, Commission employees may appear and participate on behalf of the Commission in the following types of contested case hearings: (a) The grant or denial of a new or renewed license, permit, certification, endorsement, approval or other authorization applied for or requested under ORS Chapters 459A, 471, 473, 475C and OAR Chapter 845; (b) A withdrawal, suspension, revocation, cancellation, civil penalty or other sanction pursuant to ORS Chapter 471, ORS Chapter 473, ORS Chapter 475C, ORS Chapter 459A, ORS 474.115, ORS 459.992, or OAR Chapter 845; (c) A violation or dispute based on a retail sales agent agreement; but not a matter where the Commission has proposed to terminate or suspend performance on the agreement; (d) Privilege Tax disputes under ORS 473.060(4); and (e) Orders for destruction, dispossession, seizure, transfer, or sale of marijuana items pursuant to ORS 475C.021. (2) The employee representative's responsibilities include, but are not limited to: (a) Presenting evidence; (b) Asking questions of all witnesses; (c) Presenting information about the facts, and advocating for the Commission’s position surrounding the facts; (d) Presenting information on how the facts apply to the statutes or rules directly related to the issues in the contested case; (e) Presenting information comparing Commission actions in similar situations; (f) Presenting information about the literal meaning of the statutes or rules that apply to the issues in the contested case; and (g) Presenting information about the admissibility of evidence or the correctness of procedures being followed. (3) The employee representative may not make legal arguments. “Legal arguments” include, but are not limited to, arguments on: (a) The jurisdiction of the Commission to hear the contested case; (b) The constitutionality of a statute or rule or the application of a constitutional requirement to the Commission; and (c) The application of court precedent to the facts of the particular contested case proceeding. (4) When the Commission determines it is necessary to consult with the Attorney General's office, an administrative law judge will provide a reasonable period of time for an agency representative to consult with the Attorney General's office and to obtain either written or oral legal argument.