OAR 851-001-0008: Agency Representation at Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Board is authorized to appear on behalf of the Board in Civil Penalty hearings under the following conditions: (a) The Notice of Proposed Civil Penalty is $2,900.00 or less; (b) The issue for the contested case hearing is whether or not the licensee continued to practice nursing after the expiration of his/her license; and (c) The licensee is not represented by legal counsel at the hearing. (2) The agency representative may not make legal argument on behalf of the Board. (a) “Legal argument” includes arguments on: (A) The jurisdiction of the Board 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 Board 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; (E) The correctness of procedures being followed in the contested case hearing.