OAR 918-001-0025: Division Representation by Authorized Officer or Employee at Contested Case Hearings

(1) Subject to the approval of the Attorney General, an employee of the Building Codes Division authorized by the Administrator may appear on behalf of the division, pursuant to ORS 183.452, at the following types of contested case hearings: (a) Civil penalty hearings; (b) Hearings held on appeals made to the division under ORS 479.853 by persons aggrieved by a decision made upon inspection authority under ORS 455.148 to 455.150 or 479.510 to 479.945 of an electrical product or electrical installation; (c) License and certification denial hearings under ORS 455.117 and the rules adopted thereunder, and ORS 455.125 and 455.129; (d) License discipline hearings for cases involving conditioning of a license or certification, license disqualifications, or suspensions of up to one year under ORS 455.125, 455.127, or 455.129; and (e) License disqualification hearings under ORS 455.127. (2) The administrative law judge shall not allow a division representative appearing under section (1) or (2) of this rule to present legal argument as defined in this rule. (a) “Legal Argument” includes arguments on: (A) The jurisdiction of the division to hear the contested case; (B) The constitutionality of a statute or rule or the application of a constitutional requirement to a division; (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 division 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; and (E) The correctness of procedures being followed in the contested case hearing. (3) If the administrative law judge determines that statements or objections made by the division representative appearing under section (1) or (2) involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the division representative to consult the Attorney General and permit the Attorney General to present argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing.