Chapter 75 Oregon Laws 2003

AN ACT

HB 2526

Relating to administrative hearings; creating new provisions; amending ORS 18.902, 25.020, 25.125, 25.245, 25.255, 25.275, 25.287, 25.378, 25.765, 25.768, 45.275, 45.285, 45.288, 101.030, 107.106, 107.108, 110.304, 171.778, 179.640, 183.310, 183.341, 183.415, 240.309, 244.260, 274.755, 279.045, 342.177, 358.495, 416.425, 416.427, 416.440, 416.455, 431.730, 442.015, 442.760, 448.255, 462.405, 464.500, 466.185, 466.305, 466.610, 468.035, 517.983, 527.662, 527.687, 527.700, 527.765, 537.170, 537.622, 543.055, 543.230, 543.990, 543A.130, 561.615, 656.704, 657.270, 657.275, 657.280, 657.471, 657.485, 657.487, 657.610, 657.630, 657.663, 657.665, 657.681, 657.683, 657.684, 670.315, 670.325, 671.703, 677.275, 678.780, 687.086, 693.105, 701.147, 701.160, 737.209, 776.115, 776.129, 776.375, 809.040, 809.440, 813.410, 813.440, 813.450, 822.080 and 825.412 and sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16a, 19, 20 and 21, chapter 849, Oregon Laws 1999; repealing sections 26, 29, 40, 45, 50, 53, 59, 62, 71, 80, 83, 86, 89, 92, 95, 98, 101, 104, 104d, 109, 114, 121, 121f, 129, 134, 139, 142, 145, 152, 159, 162, 168, 171, 174, 177, 180, 183, 186, 192, 195, 198, 201 and 214, chapter 849, Oregon Laws 1999, section 6, chapter 1067, Oregon Laws 1999, section 15b, chapter 1084, Oregon Laws 1999, sections 2 and 3, chapter 163, Oregon Laws 2001, section 5, chapter 198, Oregon Laws 2001, section 82b, chapter 249, Oregon Laws 2001, section 11, chapter 294, Oregon Laws 2001, section 7c, chapter 414, Oregon Laws 2001, and sections 4 and 9, chapter 455, Oregon Laws 2001; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

OFFICE OF ADMINISTRATIVE HEARINGS

SECTION 1. Section 2, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 2. For the purposes of sections 2 to 21, chapter 849, Oregon Laws 1999 [of this 1999 Act]:

(1) “Chief [hearing officer] administrative law judge” means the person employed under section 4, chapter 849, Oregon Laws 1999, [of this 1999 Act] to organize and manage the [Hearing Officer Panel] Office of Administrative Hearings.

(2) [“Panel” means the Hearing Officer Panel established under section 3 of this 1999 Act.] “Office” means the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999.

SECTION 2. Section 3, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 3. (1) The [Hearing Officer Panel] Office of Administrative Hearings is established within the Employment Department. The [panel] office shall be managed by the chief [hearing officer] administrative law judge employed under section 4, chapter 849, Oregon Laws 1999 [of this 1999 Act]. The [panel] office shall make [hearing officers] administrative law judges available to agencies under sections 2 to 21, chapter 849, Oregon Laws 1999 [of this 1999 Act]. [Hearing officers] Administrative law judges assigned from the [panel] office under sections 2 to 21, chapter 849, Oregon Laws 1999, [of this 1999 Act] may:

(a) Conduct contested case proceedings on behalf of agencies in the manner provided by sections 2 to 21, chapter 849, Oregon Laws 1999 [of this 1999 Act];

(b) Perform such other services, as may be requested by an agency, that are appropriate for the resolution of disputes arising out of the conduct of agency business; and

(c) Perform such other duties as may be authorized under sections 2 to 21, chapter 849, Oregon Laws 1999 [of this 1999 Act].

(2) All persons serving [on the panel] as administrative law judges in the office must meet the standards and training requirements of section 19, chapter 849, Oregon Laws 1999 [of this 1999 Act].

SECTION 3. Section 4, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 4. (1) The Director of the Employment Department shall employ a person to serve as chief [hearing officer] administrative law judge for the [Hearing Officer Panel established under section 3 of this 1999 Act.] Office of Administrative Hearings. The director shall consider recommendations by the Office of Administrative Hearings Oversight Committee in hiring a chief administrative law judge. The person employed to serve as chief [hearing officer] administrative law judge must be an active member of the Oregon State Bar. The chief [hearing officer].; administrative law judge has all the powers necessary and convenient to organize and manage the [panel] office. Subject to the State Personnel Relations Law, the chief [hearing officer] administrative law judge shall employ all persons necessary [to] for the administration of the [panel] office, prescribe the duties of those employees and fix their compensation. The chief administrative law judge shall serve for a term of four years. Notwithstanding ORS 236.140, the chief administrative law judge may be removed during a term only for inefficiency, incompetence, neglect of duty, malfeasance in office, unfitness to render effective service or failure to continue to meet the criteria for appointment.

(2) The chief [hearing officer] administrative law judge shall employ [hearing officers to serve on the panel] administrative law judges. The chief [hearing officer] administrative law judge shall ensure that [hearing officers on the panel] administrative law judges employed for the office receive all training necessary to meet the standards required under the program created under section 19, chapter 849, Oregon Laws 1999 [of this 1999 Act].

(3) The chief [hearing officer] administrative law judge shall take all actions necessary to protect and ensure the independence of each [hearing officer] administrative law judge assigned from the [panel] office.

SECTION 4. Section 5, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 5. (1) [A hearing officer] An administrative law judge employed by or contracting with the chief [hearing officer] administrative law judge shall conduct hearings on behalf of agencies as assigned by the chief [hearing officer] administrative law judge. [A hearing officer] An administrative law judge shall be impartial in the performance of the [hearing officer’s] administrative law judge’s duties and shall remain fair in all hearings conducted by the [hearing officer] administrative law judge.

(2) Only persons who have a knowledge of administrative law and procedure may be employed by the chief [hearing officer] administrative law judge as [hearing officers] administrative law judges. The chief [hearing officer] administrative law judge by rule may establish additional qualifications for [hearing officers serving on the Hearing Officer Panel] administrative law judges employed for the office.

SECTION 5. Section 6, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 6. (1) The chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings may contract for the services of persons to act as [hearing officers] administrative law judges.

(2) Contract [hearing officers] administrative law judges shall meet the same qualifications as [hearing officers] administrative law judges regularly employed by the chief [hearing officer] administrative law judge and shall be paid at an hourly rate comparable to the per hour cost of salary and benefits for [hearing officers] administrative law judges regularly employed by the chief [hearing officer] administrative law judge and conducting similar hearings.

SECTION 6. Section 7, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 7. (1) In assigning [a hearing officer] an administrative law judge to conduct hearings on behalf of an agency, the chief [hearing officer] administrative law judge shall, whenever practicable, assign [a hearing officer] an administrative law judge that has expertise in the legal issues or general subject matter of the proceeding.

(2) Notwithstanding any other provision of state law, any agency that is required to use [hearing officers] administrative law judges assigned from the [Hearing Officer Panel] Office of Administrative Hearings to conduct hearings must delegate responsibility for the conduct of the hearing to [a hearing officer] an administrative law judge assigned from the [Hearing Officer Panel] Office of Administrative Hearings, and the hearing may not be conducted by the administrator, director, board, commission or other person or body charged with administering the agency.

(3) Any agency may authorize [a hearing officer] an administrative law judge assigned to conduct a hearing on behalf of the agency under this section to enter a final order for the agency.

(4) An agency that is not required to use [hearing officers] administrative law judges assigned from the [panel] office may contract with the chief [hearing officer] administrative law judge for the assignment of [a hearing officer] an administrative law judge from the [panel] office for the purpose of conducting one or more contested cases on behalf of the agency.

SECTION 7. Section 8, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 8. (1) Except as provided in subsection (2) of this section, all contested case hearings conducted by [hearing officers] administrative law judges assigned from the [Hearing Officer Panel established under section 3 of this 1999 Act] Office of Administrative Hearings must be conducted pursuant to the model rules of procedure prepared by the Attorney General under ORS 183.341 if the hearing is subject to the procedural requirements for contested case proceedings.

(2) The Attorney General, after consulting with the chief [hearing officer for the panel] administrative law judge, may exempt an agency or a category of cases from the requirements of subsection (1) of this section. The exemption may be from all or part of the model rules adopted by the Attorney General. Any exemption granted under this subsection must be made in writing.

(3) Except as may be expressly granted by the agency to [a hearing officer] an administrative law judge assigned from the [panel] office, or as may be expressly provided for by law, [a hearing officer] an administrative law judge conducting a hearing for an agency under sections 2 to 21, chapter 849, Oregon Laws 1999, [of this 1999 Act] may not authorize a party to take a deposition that is to be paid for by the agency.

SECTION 8. Section 9, chapter 849, Oregon Laws 1999, as amended by section 46, chapter 900, Oregon Laws 2001, is amended to read:

Sec. 9. (1) Except as provided in this section, all agencies must use [hearing officers] administrative law judges assigned from the [Hearing Officer Panel] Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999, to conduct contested case hearings, without regard to whether those hearings are subject to the procedural requirements for contested case hearings.

(2) The following agencies need not use [hearing officers] administrative law judges assigned from the [panel] office:

(a) The Department of Education, the State Board of Education and the Superintendent of Public Instruction.

(b) Employment Appeals Board.

(d) Public Utility Commission.

(e) Bureau of Labor and Industries and the Commissioner of the Bureau of Labor and Industries.

(f) Land Conservation and Development Commission.

(g) Land Use Board of Appeals.

(h) Department of Revenue.

(i) Local government boundary commissions created pursuant to ORS 199.425 or 199.430.

(j) State Accident Insurance Fund Corporation.

(k) Psychiatric Security Review Board.

(L) State Board of Parole and Post-Prison Supervision.

(m) Department of Corrections.

(n) Energy Facility Siting Council.

(o) Department of Human Services for vocational rehabilitation services cases under 29 U.S.C. 722(c) and disability determination cases under 42 U.S.C. 405.

(p) Secretary of State.

(q) State Treasurer.

(r) Attorney General.

(s) Fair Dismissal Appeals Board.

(t) Department of State Police.

(u) Oregon Youth Authority.

(v) Boards of stewards appointed by the Oregon Racing Commission.

(w) The Department of Higher Education and the institutions of higher education listed in ORS 352.002.

(x) The Governor.

(y) State Land Board.

(z) Wage and Hour Commission.

(aa) State Apprenticeship and Training Council.

(3) The Workers’ Compensation Board is exempt from using [hearing officers] administrative law judges assigned from the [panel] office for any hearing conducted by the board under ORS chapters 147, 654 and 656. The Director of the Department of Consumer and Business Services must use [hearing officers] administrative law judges assigned from the [panel] office for all contested case hearings regarding matters other than those concerning a claim under ORS chapter 656, as provided in ORS 656.704 (2). Except as specifically provided in this subsection, the Department of Consumer and Business Services must use [hearing officers] administrative law judges assigned from the [panel] office only for contested cases arising out of the department’s powers and duties under:

(a) ORS chapter 59;

(b) ORS 200.005 to 200.075;

(d) ORS chapter 674;

(e) ORS chapters 706 to 716;

(f) ORS chapter 717;

(g) ORS chapters 722, 723, 725 and 726; and

(h) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 744, 746, 748 and 750.

(4) Notwithstanding any other provision of law, in any proceeding in which an agency is required to use [a hearing officer] an administrative law judge assigned from the [panel] office, an officer or employee of the agency may not conduct the hearing on behalf of the agency.

(5) Notwithstanding any other provision of sections 2 to 21, chapter 849, Oregon Laws 1999, [no] an agency [shall be] is not required to use [a hearing officer] an administrative law judge assigned from the [panel] office if:

(a) Federal law requires that a different administrative law judge or hearing officer be used; or

(b) Use of [a hearing officer] an administrative law judge from the [panel] office could result in a loss of federal funds.

(6) Notwithstanding any other provision of this section, the Department of Environmental Quality must use [hearing officers] administrative law judges assigned from the [panel] office only for contested case hearings conducted under the provisions of ORS 183.413 to 183.470.

SECTION 9. Section 10, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 10. (1) Upon request of an agency, the chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings may assign [hearing officers] administrative law judges from the [panel] office to conduct contested case proceedings on behalf of agencies that are exempted from mandatory use of [panel hearing officers] administrative law judges assigned from the office under section 9, chapter 849, Oregon Laws 1999 [of this 1999 Act].

(2) The chief [hearing officer] administrative law judge may contract with any political subdivision of this state to provide [hearing officer] the services of administrative law judges to the political subdivision for the purpose of conducting quasi-judicial hearings on behalf of the political subdivision.

SECTION 10. Section 11, chapter 849, Oregon Laws 1999, as amended by section 8, chapter 294, Oregon Laws 2001, is amended to read:

Sec. 11. (1) After assignment of [a hearing officer] an administrative law judge from the [Hearing Officer Panel] Office of Administrative Hearings to conduct a hearing on behalf of an agency, the chief [hearing officer] administrative law judge shall assign a different [hearing officer] administrative law judge for the hearing upon receiving a written request from any party in the contested case or from the agency. The chief [hearing officer] administrative law judge may by rule establish time limitations and procedures for requests under this section.

(2) Only one request for a change of assignment of [hearing officer] administrative law judge under subsection (1) of this section may be granted by the chief [hearing officer] administrative law judge without a showing of good cause. If a party or agency fails to make a request under subsection (1) of this section within the time allowed, or if a party or agency objects to [a hearing officer] an administrative law judge assigned after a request for a different [hearing officer] administrative law judge has been granted under subsection (1) of this section, the chief [hearing officer] administrative law judge shall assign a different [hearing officer] administrative law judge only upon a showing of good cause.

(3) Notwithstanding subsection (1) of this section, a different [hearing officer] administrative law judge may not be assigned for a hearing provided under ORS 813.410 or 813.440 on suspension of driving privileges, except upon a showing of good cause.

SECTION 11. Section 12, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 12. (1) In any contested case hearing conducted by [a hearing officer] an administrative law judge assigned from the [Hearing Officer Panel] Office of Administrative Hearings, the [hearing officer] administrative law judge shall prepare and serve on the agency and all parties to the hearing a form of order, including recommended findings of fact and conclusions of law. The [hearing officer] administrative law judge shall also prepare and serve a proposed order in the manner provided by ORS 183.464 unless the agency or hearing is exempt from the requirements of ORS 183.464.

(2) If the [hearing officer] administrative law judge assigned from the [panel] office will not enter the final order in a contested case proceeding, and the agency modifies the form of order issued by the [hearing officer] administrative law judge in any substantial manner, the agency must identify the modifications and provide an explanation to the parties to the hearing as to why the agency made the modifications.

(3) An agency conducting a contested case hearing may modify a finding of historical fact made by the [hearing officer] administrative law judge assigned from the [Hearing Officer Panel] Office of Administrative Hearings only if the agency determines that the finding of historical fact made by the [hearing officer] administrative law judge is not supported by a preponderance of the evidence in the record. For the purposes of this section, [a hearing officer] an administrative law judge makes a finding of historical fact if the [hearing officer] administrative law judge determines that an event did or did not occur in the past or that a circumstance or status did or did not exist either before the hearing or at the time of the hearing.

(4) If a party seeks judicial review of an agency’s modification of a finding of historical fact under subsection (3) of this section, the court shall make an independent finding of the fact in dispute by conducting a review de novo of the record viewed as a whole. If the court decides that the agency erred in modifying the finding of historical fact made by the [hearing officer] administrative law judge, the court shall remand the matter to the agency for entry of an order consistent with the court’s judgment.

SECTION 12. Section 13, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 13. The chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings shall establish a schedule of fees for services rendered by [hearing officers] administrative law judges assigned from the [panel] office. The fee charged shall be in an amount calculated to recover the cost of providing the [hearing officer] administrative law judge, the cost of conducting the hearing and all associated administrative costs. All fees collected by the chief [hearing officer] administrative law judge under this section shall be paid into the [Hearing Officer Panel] Office of Administrative Hearings Operating Account created under section 14, chapter 849, Oregon Laws 1999 [of this 1999 Act].

SECTION 13. Section 14, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 14. (1) The [Hearing Officer Panel] Office of Administrative Hearings Operating Account is created within the General Fund. The account shall consist of moneys paid into the account under section 13, chapter 849, Oregon Laws 1999 [of this 1999 Act]. Moneys credited to the account are continuously appropriated to the chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings created under section 3, chapter 849, Oregon Laws 1999,[of this 1999 Act] for the purpose of paying expenses incurred in the administration of the [panel] office.

(2) At the discretion of the chief [hearing officer] administrative law judge, petty cash funds may be established and maintained for the purpose of administering the duties of the [panel] office.

SECTION 14. Section 15, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 15. The chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings shall estimate in advance the expenses that the [panel] office will incur during each biennium and shall notify each agency required to use the [panel’s] office’s services of the agency’s share of the anticipated expenses for periods within the biennium.

SECTION 15. Section 16, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 16. Subject to the provisions of the State Personnel Relations Law, the chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings may adopt rules to:

(1) Organize and manage the [Hearing Officer Panel] Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999 [of this 1999 Act].

(2) Facilitate the performance of the duties of [hearing officers] administrative law judges assigned from the [panel] office.

(3) Establish qualifications for persons [serving as hearing officers on the panel] employed as administrative law judges by the office.

(4) Establish standards and procedures for the evaluation and training of [hearing officers on the panel] administrative law judges employed by the office, consistent with standards and training requirements established under section 19, chapter 849, Oregon Laws 1999 [of this 1999 Act].

SECTION 16. Section 16a, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 16a. Sections 2 to 21, chapter 849, Oregon Laws 1999,[of this 1999 Act] do not limit in any way the ability of any agency to use alternative dispute resolution, including mediation or arbitration, to resolve disputes without conducting a contested case hearing or without requesting assignment of [a hearing officer from the Hearing Officer Panel] an administrative law judge from the Office of Administrative Hearings.

SECTION 17. Section 19, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 19. (1) The chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings, working in coordination with the Attorney General, shall design and implement a standards and training program for [hearing officers on the panel] administrative law judges employed by the office and for persons seeking to [serve as hearing officers on the panel] be employed as administrative law judges by the office. The program shall include:

(a) The establishment of an ethical code for persons [serving as hearing officers on the panel] employed as administrative law judges by the office.

(b) Training for [hearing officers on the panel] administrative law judges employed by the office that is designed to assist in identifying cases that are appropriate for the use of alternative dispute resolution processes.

(2) The program established by the chief [hearing officer] administrative law judge under this section may include:

(a) The conducting of courses on administrative law, evidence, hearing procedures and other issues that arise in presiding over administrative hearings, including courses designed to provide any training required by the chief [hearing officer] administrative law judge for [hearing officers on the panel] administrative law judges employed by the office.

(b) The certification of courses offered by other persons for the purpose of any training required by the chief [hearing officer] administrative law judge for [hearing officers on the panel] administrative law judges employed by the office.

(c) The provision of specialized training for [hearing officers] administrative law judges in subject matter areas affecting particular agencies required to use [hearing officers] administrative law judges assigned from the [panel] office.

(3) The chief [hearing officer] administrative law judge is bound by the ethical code established under this section and must satisfactorily complete training required of [hearing officers on the panel] administrative law judges employed by the office other than specialized training in subject matter areas affecting particular agencies.

SECTION 18. Section 20, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 20. (1) [A hearing officer] An administrative law judge assigned from the [Hearing Officer Panel] Office of Administrative Hearings who is presiding in a contested case proceeding and who receives an ex parte communication described in subsections (3) and (4) of this section shall place in the record of the pending matter:

(a) The name of each person from whom the [hearing officer] administrative law judge received an ex parte communication;

(b) A copy of any ex parte written communication received by the [hearing officer] administrative law judge;

(d) A memorandum reflecting the substance of any ex parte oral communication made to the [hearing officer] administrative law judge; and

(e) A memorandum reflecting the substance of any oral response made by the [hearing officer] administrative law judge to an ex parte oral communication.

(2) Upon making a record of an ex parte communication under subsection (1) of this section, [a hearing officer] an administrative law judge shall advise the agency and all parties in the proceeding that an ex parte communication has been made a part of the record. The [hearing officer] administrative law judge shall allow the agency and parties an opportunity to respond to the ex parte communication.

(3) Except as otherwise provided in this section, the provisions of this section apply to communications that:

(a) Relate to a legal or factual issue in a contested case proceeding;

(b) Are made directly or indirectly to [a hearing officer] an administrative law judge while the proceeding is pending; and

(4) The provisions of this section apply to any ex parte communication made directly or indirectly to [a hearing officer] an administrative law judge, or to any agent of [a hearing officer] an administrative law judge, by:

(a) A party;

(b) A party’s representative or legal adviser;

(d) Any other person with personal knowledge of the facts relevant to the proceeding; or

(e) Any officer, employee or agent of the agency that is using the [hearing officer] administrative law judge to conduct the hearing.

(5) The provisions of this section do not apply to:

(a) Communications made to [a hearing officer] an administrative law judge by other [hearing officers] administrative law judges;

(b) Communications made to [a hearing officer] an administrative law judge by any person employed by the [panel] office to assist the [hearing officer] administrative law judge; or

(c) Communications made to [a hearing officer] an administrative law judge by an assistant attorney general if the communications are made in response to a request from the [hearing officer] administrative law judge and the assistant attorney general is not advising the agency that is conducting the hearing.

SECTION 19. Section 21, chapter 849, Oregon Laws 1999, is amended to read:

Sec. 21. (1) The [Hearing Officer Panel] Office of Administrative Hearings Oversight Committee is created. The committee consists of nine members, as follows:

(a) The President of the Senate and the Speaker of the House of Representatives shall appoint four legislators to the committee. Two shall be Senators appointed by the President. Two shall be Representatives appointed by the Speaker.

(b) The Governor shall appoint two members to the committee. At least one of the members appointed by the Governor shall be an active member of the Oregon State Bar with experience in representing parties who are not agencies in contested case hearings.

(d) The chief [hearing officer] administrative law judge for the [Hearing Officer Panel] Office of Administrative Hearings employed under section 4, chapter 849, Oregon Laws 1999, [of this 1999 Act] shall serve as an ex officio member of the committee. The chief [hearing officer] administrative law judge may cast a vote on a matter before the committee if the votes of the other members are equally divided on the matter.

(2) The term of a legislative member of the committee shall be two years. If a person appointed by the President of the Senate or by the Speaker of the House ceases to be a Senator or Representative during the person’s term on the committee, the person may continue to serve as a member of the committee for the balance of the member’s term on the committee. The term of all other appointed members shall be four years. Appointed members of the committee may be reappointed. If a vacancy occurs in one of the appointed positions for any reason during the term of membership, the official who appointed the member to the vacated position shall appoint a new member to serve the remainder of the term. An appointed member of the committee may be removed from the committee at any time by the official who appointed the member.

(3)(a) The members of the committee shall select from among themselves a chairperson and a vice chairperson.

(b) The committee shall meet at such times and places as determined by the chairperson.

(4) Legislative members shall be entitled to payment of per diem and expense reimbursement under ORS 171.072, payable from funds appropriated to the Legislative Assembly.

(5) The committee shall:

(a) Study [the implementation and] operation of the [Hearing Officer Panel established under section 3 of this 1999 Act] Office of Administrative Hearings;

(b) Make any recommendations to the Governor and the Legislative Assembly that the committee deems necessary to increase the effectiveness, fairness and efficiency of the operations of the [Hearing Officer Panel] Office of Administrative Hearings;

(c) Make any recommendations for additional legislation governing the operations of the [Hearing Officer Panel] Office of Administrative Hearings; and

(d) Conduct such other studies as necessary to accomplish the purposes of this subsection.

(6) The Employment Department shall provide the committee with staff, subject to availability of funding for that purpose.

EMPLOYMENT OF LAW CLERKS

SECTION 20. ORS 240.309 is amended to read:

240.309. (1) Temporary employment shall be used for the purpose of meeting emergency, nonrecurring or short-term workload needs of the state.

(2) A temporary employee may be given a nonstatus appointment without open competition and consideration only for the purposes enumerated in this section. Temporary appointments shall not be used to defeat the open competition and consideration system.

(3) A temporary employee may not be employed in a permanent, seasonal, intermittent or limited duration position except to replace an employee during an approved leave period.

(4) Employment of a temporary employee for the same workload need, other than for leave, may not exceed six calendar months. The decision to extend the period of employment may be delegated by the Personnel Division of the Oregon Department of Administrative Services to other state agencies. Approval to extend shall be allowed only upon an appointing authority’s finding that the original emergency continues to exist and that there is no other reasonable means to meet the emergency. Agency actions under this subsection are subject to post-audit review by the Oregon Department of Administrative Services as provided in ORS 240.311.

(5) Employment of a temporary employee for different workload needs shall not exceed the equivalent of six calendar months in a 12-month period.

(6) A temporary employee shall not be denied permanent work because of the temporary status. Temporary service shall not be used as any portion of a required trial service period.

(7) The Personnel Division of the Oregon Department of Administrative Services shall report the use of temporary employees, by agency, once every six months, including the duration and reason for use or extensions, if any, of temporary appointments. The reports shall be made available upon request to interested parties, including employee organizations. If any interested party alleges misuse of temporary employees, the division shall investigate, report its findings and take appropriate action.

(8) The Department of Justice may use temporary status appointments for student law clerks for a period not to exceed 24 months.

(9) The chief administrative law judge of the Office of Administrative Hearings may use temporary status appointments for student law clerks for a period not to exceed 24 months. Student law clerks appointed under this subsection may not act as administrative law judges or conduct hearings for the Office of Administrative Hearings.

[(9)] (10) A state agency may use temporary status appointments for a period not to exceed 48 months for student interns who are enrolled in high school or who are under 19 years of age and are training to receive a General Educational Development (GED) certificate. Student interns are not eligible for benefits under ORS 243.105 to 243.285.

REMOVAL OF SUNSET

SECTION 21. Sections 26, 29, 40, 45, 50, 53, 59, 62, 71, 80, 83, 86, 89, 92, 95, 98, 101, 104, 104d, 109, 114, 121, 121f, 129, 134, 139, 142, 145, 152, 159, 162, 168, 171, 174, 177, 180, 183, 186, 192, 195, 198, 201 and 214, chapter 849, Oregon Laws 1999, section 6, chapter 1067, Oregon Laws 1999, section 15b, chapter 1084, Oregon Laws 1999, sections 2 and 3, chapter 163, Oregon Laws 2001, section 5, chapter 198, Oregon Laws 2001, section 82b, chapter 249, Oregon Laws 2001, section 11, chapter 294, Oregon Laws 2001, section 7c, chapter 414, Oregon Laws 2001, and sections 4 and 9, chapter 455, Oregon Laws 2001, are repealed.

SECTION 22. ORS 18.902, as amended by section 82a, chapter 249, Oregon Laws 2001, is amended to read:

18.902. (1) Notwithstanding ORS 18.607, a notice of garnishment issued by a state agency need not contain the name of a court whose authority is invoked.

(2) State agencies shall make such modifications as are necessary in the wage exemption calculation form provided by ORS 18.840 if a notice of garnishment is issued for a debt due for a state tax that is subject to the provisions of ORS 23.186 (6).

(3) Notwithstanding ORS 18.625, a notice of garnishment issued by a state agency acts to garnish all wages earned by the debtor by reason of services to the garnishee until the full amount of the debt is paid or until the notice of garnishment is released by the state agency or by court order. A notice of garnishment issued by a state agency must contain language reasonably designed to notify the garnishee of the provisions of this subsection.

(4) Notwithstanding ORS 18.690, a garnishee who receives a notice of garnishment issued by a state agency need not deliver a copy of the garnishee response to the clerk of the court, but must deliver the original of the response to the state agency.

(5) Notwithstanding ORS 18.700, a challenge to a notice of garnishment issued by a state agency must be delivered in person or by first class mail to the state agency within the time specified by ORS 18.700 (2). Within 14 days after receiving the challenge, the state agency must either concede the challenge or give the person making the challenge opportunity for hearing. If the person making the challenge requests a hearing, the agency shall [conduct a hearing] immediately refer the challenge to the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. The hearing shall be conducted as soon as possible. Notwithstanding ORS 183.315, the hearing shall be conducted as a contested case hearing. An issue that was decided in a previous hearing, or for which the debtor was previously afforded an opportunity for hearing, may not be reconsidered.

(6) If a state agency is issuing a notice of garnishment for collection of a state tax, and the state agency has reason to believe that the debtor intends to leave the state or do any other act that would jeopardize collection of the tax, the state agency may issue a special notice of garnishment. Any earnings, as defined in ORS 23.175, garnished under a special notice of garnishment are not subject to a claim of exemption under ORS 23.186. A special notice of garnishment issued under this subsection garnishes only that property of the debtor that is in the garnishee’s possession, control or custody at the time the special notice is delivered, including debts not yet due, and all wages owed by the garnishee to the debtor at the time the special notice is delivered. A special notice of garnishment does not act to garnish wages earned by the debtor by reason of services rendered to the garnishee after the delivery of the special notice of garnishment.

(7) A special notice of garnishment issued under subsection (6) of this section shall contain a statement indicating that it is a special notice of garnishment under subsection (6) of this section and a statement reflecting the provisions of subsection (6) of this section. Notwithstanding ORS 18.900 (1), a wage exemption calculation form shall not be delivered to the garnishee with a special notice of garnishment.

SECTION 23. ORS 25.020, as amended by section 3, chapter 455, Oregon Laws 2001, is amended to read:

25.020. (1) Support payments for or on behalf of any person, ordered, registered or filed pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C, unless otherwise authorized by ORS 25.030, shall be made to the Department of Justice, as the state disbursement unit:

(a) During periods for which support is assigned pursuant to ORS 418.032, 418.042, 419B.406 or 419C.597;

(b) As provided by rules adopted pursuant to ORS 409.021 or under ORS 180.340, when public assistance as defined by ORS 411.010 is provided to a person who receives or has a right to receive support payments on the person’s own behalf or on behalf of another person;

(d) For any period during which support enforcement services are provided pursuant to the child support enforcement program created by Title IV-D of the Social Security Act or pursuant to ORS 25.080;

(e) When ordered by the court pursuant to ORS 419B.400;

(f) When a support order that is entered or modified on or after January 1, 1994, includes a provision requiring the obligor to pay support by income withholding; or

(g) When ordered by the court under any other applicable provision of law.

(2) The Department of Justice shall disburse payments, after lawful deduction of fees and in accordance with applicable statutes and rules, to those persons and entities that are lawfully entitled to receive such payments.

(3)(a) When the administrator is providing support enforcement services under ORS 25.080, the obligee may enter into an agreement with a collection agency, as defined in ORS 697.005, for assistance in collecting child support payments.

(b) The department:

(A) Except as otherwise provided in this paragraph, shall disburse support payments, to which the obligee is legally entitled, to the collection agency according to the terms of the agreement between the obligee and the collection agency;

(B) May not disburse moneys to the collection agency before the obligee submits the form referred to in paragraph (c)(A) of this subsection to the department and the department adjusts its support payment records;

(C) May not disburse moneys to the collection agency after 180 days following the date the department adjusts its support payment records as described in subparagraph (B) of this paragraph;

(D) May not disburse moneys to the collection agency if the collection agency violates any provision of this subsection;

(E) Shall credit the obligor’s account for the full amount of each support payment received by the department and disbursed to the collection agency;

(F) Shall develop the form referred to in paragraph (c)(A) of this subsection, which shall include a notice to the obligee printed in type size equal to at least 12-point type that the obligee may be eligible for support enforcement services from the department or the district attorney without paying the interest or fee that is typically charged by a collection agency; and

(G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

(A) Provide to the department, on a form approved by the department, information about the agreement with the collection agency; and

(B) Promptly notify the department when the agreement is terminated.

(d) The collection agency:

(A) May provide investigative and location services to the obligee and disclose relevant information from those services to the department for purposes of providing support enforcement services under ORS 25.080;

(B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

(C) May not initiate, without written authorization from the department, any enforcement action relating to support payments on which support enforcement services are provided by the department under ORS 25.080.

(4) The Department of Justice may immediately transmit payments received from any obligor who has not previously tendered any payment by a check or instrument which was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received.

(5) The Department of Justice shall notify each obligor and obligee by mail when support payments shall be made to the Department of Justice and when the obligation to make payments in this manner shall cease.

(6)(a) The administrator shall provide information about a child support account directly to a party to the support order regardless of whether the party is represented by an attorney. As used in this subsection, “information about a child support account” means the:

(A) Date of issuance of the support order.

(B) Amount of the support order.

(D) Dates and amounts of disbursements.

(E) Payee of any disbursements.

(F) Amount of any arrearage.

(G) Source of any collection.

(b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

(7) Any pleading for the entry or modification of a support order must contain a statement that payment of support under a new or modified order will be by income withholding unless an exception to payment by income withholding is granted under ORS 25.396.

(8)(a) Except as provided in paragraph (d) of this subsection, a decree or order establishing paternity or including a provision concerning support shall contain the residence, mailing or contact address, Social Security number, telephone number and driver license number of each party and the name, address and telephone number of all employers of each party.

(b) The decree or order shall also include notice that the obligor and obligee:

(A) Must inform the court and the administrator in writing of any change in the information required by this subsection within 10 days after such change; and

(B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

(c) The administrator may require of the parties any additional information that is necessary for the provision of support enforcement services under ORS 25.080.

(d)(A) Upon a finding, that may be made ex parte, that the health, safety or liberty of a party or child would unreasonably be put at risk by the disclosure of information specified in this subsection or by the disclosure of other information concerning a child or party to a paternity or support proceeding or if an existing order so requires, a court or administrator or [hearing officer] administrative law judge, when the proceeding is administrative, shall order that the information not be contained in any document provided to another party or otherwise disclosed to a party other than the state.

(B) The Department of Human Services shall adopt rules providing for similar confidentiality for information described in subparagraph (A) of this paragraph that is maintained by an entity providing support enforcement services under ORS 25.080.

(9)(a) Except as otherwise provided in paragraph (b) of this subsection, in any subsequent child support enforcement action, the court or administrator, upon a showing of diligent effort made to locate the obligor or obligee, may deem due process requirements to be met by mailing notice to the last-known residential, mailing or employer address or contact address as provided in ORS 25.085.

(b) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

(10) Subject to ORS 25.030, this section, to the extent it imposes any duty or function upon the Department of Justice, shall be deemed to supersede any provisions of ORS chapters 107, 108, 109, 110, 416, 419A, 419B and 419C that would otherwise impose the same duties or functions upon the county clerk or the Department of Human Services.

(11) Except as provided for in subsections (12), (13) and (14) of this section, credit shall not be given for payments not made to the Department of Justice as required pursuant to subsection (1) of this section.

(12) The Department of Justice shall give credit for payments not made to the Department of Justice when:

(a) Payments are not assigned to this or another state and the obligee and obligor agree in writing that specific payments were made and should be credited;

(b) Payments are assigned to the State of Oregon, the obligor and obligee make sworn written statements that specific payments were made, canceled checks or other substantial evidence is presented to corroborate their statements and the obligee has been given prior written notice of any potential criminal or civil liability that may attach to an admission of the receipt of assigned support;

(c) Payments are assigned to another state and that state verifies that payments not paid to the Department of Justice were received by the other state; or

(d) As provided by rule adopted pursuant to ORS 409.021 or under ORS 180.340.

(13) An obligor may apply to the Department of Justice for credit for payments made other than to the Department of Justice. If the obligee or other state does not provide the agreement, sworn statement or verification required by subsection (12) of this section, credit may be given pursuant to order of [a hearing officer of the Department of Human Services] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999, after notice and opportunity to object and be heard are given to both obligor and obligee. Notice shall be served upon the obligee as provided by ORS 25.085. Notice to the obligor may be by regular mail at the address provided in the application for credit. A hearing conducted under this subsection is a contested case hearing and ORS 183.413 to 183.470 apply. Any party may seek a hearing de novo in the circuit court.

(14) Nothing in this section precludes the Department of Justice from giving credit for payments not made to the Department of Justice when there has been a judicially determined credit or satisfaction or when there has been a satisfaction of support executed by the person to whom support is owed.

(15) The Department of Human Services shall adopt rules that:

(a) Direct how support payments that are made through the Department of Justice are to be applied and distributed; and

(b) Are consistent with federal regulations.

SECTION 24. ORS 25.287, as amended by section 8, chapter 455, Oregon Laws 2001, is amended to read:

25.287. (1)(a) The entity providing support enforcement services under ORS 25.080 may initiate proceedings to modify a support obligation to ensure that the support obligation is in accordance with the formula established under ORS 25.270 to 25.287.

(b) Proceedings under this subsection may occur only after two years have elapsed from the later of the following:

(A) The date the original support obligation took effect;

(B) The date any previous modification of the support obligation took effect; or

(C) The date of any previous review and determination under this subsection that resulted in no modification of the support obligation.

(c) For purposes of paragraph (b) of this subsection, a support obligation or modification takes effect on the first date on which the obligor is to pay the established or modified support amount.

(d) The only issues at proceedings under this subsection are whether two years have elapsed, as described in paragraph (b) of this subsection, and whether the support obligation is in substantial compliance with the formula established under ORS 25.270 to 25.287.

(e) Upon review, if the administrator determines that a support obligation does not qualify for modification under this section, a party may appeal the determination. A hearing on the appeal shall be conducted by [a hearing officer appointed by the Employment Department] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. Appeal of the order of the [hearing officer] administrative law judge may be taken to the circuit court of the county in which the support obligation has been entered, docketed or registered for a hearing de novo. The appeal to the court shall be by petition for review filed within 60 days after the order of the [hearing officer] administrative law judge has been docketed.

(f) If the court, the administrator or the [hearing officer] administrative law judge finds that more than two years have elapsed, as described in paragraph (b) of this subsection, the court, the administrator or the [hearing officer] administrative law judge shall modify the support order to bring the support obligation into substantial compliance with the formula established under ORS 25.270 to 25.287, regardless of whether there has been a substantial change in circumstances since the support obligation was last established, modified or reviewed. Proceedings by the administrator or [hearing officer] administrative law judge under this subsection shall be conducted according to the provisions of ORS 416.425 and 416.427.

(g) The provisions of this subsection apply to any support obligation established by a support order under ORS chapter 24, 107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590.

(2) The administrator, court or [hearing officer] administrative law judge may use the provisions of subsection (1) of this section when a support order was entered in another state and registered in Oregon, the provisions of ORS chapter 110 apply and more than two years have elapsed as provided in subsection (1)(b) of this section.

(3) Notwithstanding the provisions of this section, proceedings may be initiated at any time to modify a support obligation based upon a substantial change of circumstances under any other provision of law.

(4) The obligee is a party to any action to modify a support obligation under this section.

SECTION 25. ORS 25.378, as amended by section 39, chapter 849, Oregon Laws 1999, and section 7, chapter 104, Oregon Laws 2001, is amended to read:

25.378. (1) Except as otherwise provided in ORS 25.396, when a support order is entered or modified by the Division of Child Support, a district attorney, an [Employment Department hearing officer] administrative law judge or a circuit court, including a juvenile court, the order shall include a provision requiring the obligor to pay support by income withholding regardless of whether support enforcement services are being provided under ORS 25.080. In addition to the income withholding provided for in this subsection, income withholding may be initiated in accordance with subsections (2) to (6) of this section.

(2) When an obligor is subject to a support order issued or registered in this state and fails to make payments at least equal to the amount of support payable for one month, a court, the Division of Child Support, a district attorney or the Department of Human Services, whichever is appropriate, shall initiate income withholding without the need for a judicial or administrative hearing and without the need for advance notice to the obligor of the withholding.

(3) When an arrearage exists and notice of the delinquent amount has been given to the obligor, a court, upon application, shall issue a withholding order upon the ex parte request of a person holding support rights, the Division of Child Support or the district attorney.

(4) If an obligor is not otherwise subject to income withholding:

(a) A court may issue an order to withhold upon the ex parte motion of the obligor; or

(b) The Division of Child Support, Department of Human Services or district attorney may issue an order to withhold upon the ex parte motion of the obligor.

(5)(a) Upon the request of the holder of support rights, a court, the Division of Child Support or a district attorney, as appropriate, may issue a withholding order at any time if:

(A) The obligor is not otherwise subject to withholding; and

(B) After notice and an opportunity to object has been given to the obligor, a finding is made that it would be in the best interests of the child to issue a withholding order.

(b) If the obligor has been granted an exception to withholding under ORS 25.396 by a court, the holder of support rights must apply for withholding under this subsection by motion to the court.

(6) A court or agency shall issue an order to withhold when a support order or an arrearage from another jurisdiction is entered in Oregon in accordance with interstate income withholding under ORS chapter 110.

SECTION 26. ORS 25.765, as amended by section 44, chapter 849, Oregon Laws 1999, and section 5, chapter 323, Oregon Laws 2001, is amended to read:

25.765. (1) If the obligor makes the contact within 30 days of the date of the notice as provided for in ORS 25.759, the administrator shall provide the obligor with the opportunity to contest the suspension on the bases set forth in ORS 25.759 (5). The administrator shall determine whether suspension should occur. If the administrator determines that suspension should occur, the administrator shall make a written determination of such finding.

(2) The obligor may appeal the determination described in subsection (1) of this section. Any hearing on such appeal shall be conducted by [a hearing officer appointed by the Employment Department] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. ORS 183.310 to 183.550 shall apply and such appeal of the administrator’s determination shall be de novo to the [hearing officer] administrative law judge. Any suspension is stayed pending the decision of the [hearing officer] administrative law judge. Any order of the [hearing officer] administrative law judge that supports a suspension shall result in the notification to the issuing entity by the administrator to suspend the license forthwith.

(3) After receipt of notice to suspend from the administrator, no further administrative review or contested case proceeding within or by the issuing entity is required.

SECTION 27. ORS 171.778, as amended by section 49, chapter 849, Oregon Laws 1999, is amended to read:

171.778. (1) Upon its own instigation or signed complaint of any person, the Oregon Government Standards and Practices Commission may undertake action in the Preliminary Review Phase with respect to any alleged violation of ORS 171.725 to 171.785. The person who is the subject of a complaint or of the commission’s own action shall be notified immediately upon receipt of the complaint or upon adoption of a motion by the commission to undertake any action concerning the person. The notice shall be given by telephone if the person can be reached and a notice shall also be mailed to the person. The notice shall include the nature of the complaint or motion and a copy of all materials submitted along with the complaint or materials which give rise to the commission’s instigation of action on its own motion. However, the person must also be notified in advance if an issue that may give rise to a motion to undertake action on the commission’s own instigation is to be discussed at a commission meeting. Before investigating any complaint or undertaking an investigation on its own instigation, the commission shall make a finding that there is cause to undertake an investigation, notify the person who is the subject of the investigation, identify the issues to be examined and shall confine its investigation to those issues. If the commission finds reason to expand its investigation, it shall move to do so and shall record in its minutes the issues to be examined before expanding the scope of its investigation and formally notify the complainant and the person who is the subject of the complaint of the expansion and the scope thereof. If the commission does not make a finding of cause, it shall dismiss the complaint or rescind its motion and shall formally enter the dismissal or rescission on its records. The commission shall notify the person of the dismissal or rescission. After dismissal or rescission, the commission shall take no further action involving the person unless a new and different complaint is filed or action at its own instigation is undertaken based on different conduct.

(2) The commission may:

(a) During the Preliminary Review Phase, seek, solicit or otherwise obtain any books, papers, records, memoranda or other additional information, administer oaths, and take depositions necessary to determine whether there is cause; and

(b) During the Investigatory Phase, require any additional information, administer oaths, take depositions and issue subpoenas to compel attendance of witnesses and the production of books, papers, records, memoranda or other information necessary to complete the investigation. If any person fails to comply with any subpoena issued under this section or refuses to testify on any matters on which the person may be lawfully interrogated, the procedure provided in ORS 183.440 shall be followed to compel compliance.

(3) The person conducting any inquiry or investigation shall do so in an impartial, objective manner. All favorable and unfavorable information collected by the investigator shall be turned over to the commission.

(5) Hearings relating to any charge of alleged violation of ORS 171.725 to 171.785 [may] must be held before [the commission or before a hearing officer appointed by the commission] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. The procedure shall be that for a contested case under ORS 183.310 to 183.550.

(6)(a) The period of time from the filing of a complaint or from acting on the commission’s own instigation to the finding of cause or dismissal of the complaint or rescission of the motion shall be termed the Preliminary Review Phase and shall not exceed 90 days unless a delay is stipulated to by both the subject person and the Oregon Government Standards and Practices Commission, with the commission reserving a portion of the delay period to complete its actions.

(b) The Preliminary Review Phase shall be confidential. Commission members and staff may acknowledge receipt of a complaint but shall make no public comment or publicly disclose any materials relating to a case during the Preliminary Review Phase. A person who intentionally violates this paragraph is subject to a civil penalty in an amount not to exceed $1,000. Any person aggrieved as a result of a violation of this paragraph by a member of the commission or its staff may file a petition in a court of competent jurisdiction in the county in which the petitioner resides in order to enforce the civil penalty provided in this paragraph.

(c) The commission’s deliberations of a case at the conclusion of the Preliminary Review Phase shall be conducted in executive session. All case related materials and proceedings shall be open to the public after the commission makes a finding of cause, dismisses a complaint or rescinds a motion. Prior to the end of the Preliminary Review Phase, the executive director of the commission shall prepare a statement of the facts determined during the phase, including appropriate legal citations and relevant authorities. Before presentation to the commission, the executive director’s statement shall be reviewed by legal counsel to the commission.

(d) The time limit imposed in this subsection and the commission’s inquiry are suspended if:

(A) There is a pending criminal investigation that relates to the issues arising out of the underlying facts or conduct at issue in the matter before the commission, unless the parties stipulate otherwise; or

(B) A court has enjoined the commission from continuing its inquiry.

(7)(a) The period of time from the finding of cause to the beginning of any contested case proceedings shall be termed the Investigatory Phase and shall not exceed 120 days unless a delay is stipulated to by both the subject person and the Oregon Government Standards and Practices Commission, with the commission reserving a portion of the delay period to complete its actions.

(b) The time limit imposed in this subsection and the commission’s investigation are suspended if:

(B) A court has enjoined the commission from continuing its investigation.

(A) Dismissal, with or without comment;

(B) Continuation of the investigation to determine further facts, but no more than one continuation, not to exceed 30 days’ duration, shall be taken;

(D) Seeking a negotiated settlement; or

(E) Taking other appropriate action if justified by the findings.

(8) If, at the end of the Investigatory Phase, the commission takes action by order to move to a contested case proceeding, a person may notify the commission that the person elects to have the commission file a lawsuit against the person in the Marion County Circuit Court in lieu of the contested case proceeding. The court may impose the penalty described in ORS 171.992. The person shall notify the commission of the election in writing no later than 21 days after receiving notification of the commission’s action by order to move to the contested case proceeding. The commission shall file suit within 30 days after receiving notice that the person has elected the lawsuit procedure.

(9) The commission shall not inquire into or investigate any complaint or act at its own instigation on alleged conduct that occurred more than four years before the complaint is filed or action is undertaken.

(10) Nothing in this section is intended to prevent the commission and the person alleged to have violated ORS 171.725 to 171.785 from stipulating to a finding of fact concerning the violation and consenting to an appropriate penalty. The commission shall enter an order accordingly.

(11) As used in this section, “cause” and “pending” have the meanings given those terms in ORS 244.260.

SECTION 28. ORS 183.341, as amended by section 25, chapter 849, Oregon Laws 1999, is amended to read:

183.341. (1) The Attorney General shall prepare model rules of procedure appropriate for use by as many agencies as possible. Except as provided in section 8, chapter 849, Oregon Laws 1999,any agency may adopt all or part of the model rules by reference without complying with the rulemaking procedures under ORS 183.335. Notice of such adoption shall be filed with the Secretary of State in the manner provided by ORS 183.355 for the filing of rules. The model rules may be amended from time to time by an adopting agency or the Attorney General after notice and opportunity for hearing as required by rulemaking procedures under ORS 183.310 to 183.550.

(2) Except as provided in section 8, chapter 849, Oregon Laws 1999, all agencies shall adopt rules of procedure to be utilized in the adoption of rules and conduct of proceedings in contested cases or, if exempt from the contested case provisions of ORS 183.310 to 183.550, for the conduct of proceedings.

(3) The Secretary of State shall publish in the Oregon Administrative Rules:

(a) The Attorney General’s model rules adopted under subsection (1) of this section;

(b) The procedural rules of all agencies that have not adopted the Attorney General’s model rules; and

(4) Agencies shall adopt rules of procedure which will provide a reasonable opportunity for interested persons to be notified of the agency’s intention to adopt, amend or repeal a rule.

(5) No rule adopted after September 13, 1975, is valid unless adopted in substantial compliance with the rules adopted pursuant to subsection (4) of this section.

SECTION 29. ORS 183.415, as amended by section 28, chapter 849, Oregon Laws 1999, is amended to read:

183.415. (1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice, served personally or by registered or certified mail.

(2) The notice shall include:

(a) A statement of the party’s right to hearing, or a statement of the time and place of the hearing;

(b) A statement of the authority and jurisdiction under which the hearing is to be held;

(d) A short and plain statement of the matters asserted or charged.

(3) Parties may elect to be represented by counsel and to respond and present evidence and argument on all issues involved.

(4) Agencies may adopt rules of procedure governing participation in contested cases by persons appearing as limited parties.

(5)(a) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default. Informal settlement may be made in license revocation proceedings by written agreement of the parties and the agency consenting to a suspension, fine or other form of intermediate sanction.

(b) Any informal disposition of a contested case, other than an informal disposition by default, must be in writing and signed by the party or parties to the contested case. The agency shall incorporate that disposition into a final order. An order under this paragraph is not subject to ORS 183.470. The agency shall deliver or mail a copy of the order to each party, or, if applicable, to the party’s attorney of record. An order that incorporates the informal disposition is a final order in a contested case, but is not subject to judicial review. A party may petition the agency to set aside a final order that incorporates the informal disposition on the ground that the informal disposition was obtained by fraud or duress.

(6) An order adverse to a party may be issued upon default only upon prima facie case made on the record of the agency. When an order is effective only if a request for hearing is not made by the party, the record may be made at the time of issuance of the order, and if the order is based only on material included in the application or other submissions of the party, the agency may so certify and so notify the party, and such material shall constitute the evidentiary record of the proceeding if hearing is not requested.

(7) At the commencement of the hearing, the officer presiding shall explain the issues involved in the hearing and the matters that the parties must either prove or disprove.

(8) Testimony shall be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths or affirmations to witnesses.

(9) The officer presiding at the hearing shall place on the record a statement of the substance of any written or oral ex parte communications on a fact in issue made to the officer during the pendency of the proceeding and notify the parties of the communication and of their right to rebut such communications. If an ex parte communication is made to an administrative law judge assigned from the Office of Administrative Hearings established by section 3, chapter 849, Oregon Laws 1999, the administrative law judge must comply with section 20, chapter 849, Oregon Laws 1999.

(10) The officer presiding at the hearing shall ensure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues properly before the presiding officer in the case.

(11) The record in a contested case shall include:

(a) All pleadings, motions and intermediate rulings.

(b) Evidence received or considered.

(d) A statement of matters officially noticed.

(e) Questions and offers of proof, objections and rulings thereon.

(f) A statement of any ex parte communications on a fact in issue made to the officer presiding at the hearing.

(g) Proposed findings and exceptions.

(h) Any proposed, intermediate or final order prepared by the agency or [a hearing officer] an administrative law judge.

(12) A verbatim oral, written or mechanical record shall be made of all motions, rulings and testimony. The record need not be transcribed unless requested for purposes of rehearing or court review. The agency may charge the party requesting transcription the cost of a copy of transcription, unless the party files an appropriate affidavit of indigency. However, upon petition, a court having jurisdiction to review under ORS 183.480 may reduce or eliminate the charge upon finding that it is equitable to do so, or that matters of general interest would be determined by review of the order of the agency.

SECTION 30. ORS 244.260, as amended by section 52, chapter 849, Oregon Laws 1999, is amended to read:

244.260. (1)(a) Upon its own instigation or signed complaint of any person, the Oregon Government Standards and Practices Commission may undertake action in the Preliminary Review Phase with respect to the contents of any statements filed under this chapter or resolution adopted pursuant thereto or any alleged violation of any provision of this chapter.

(b) The public official who is the subject of a complaint or of the commission’s own action shall be notified immediately upon receipt of the complaint or upon adoption of a motion by the commission to undertake any action concerning the public official. The notice shall be given by telephone if the official can be reached and shall also be in writing mailed to the official. The notice shall include the nature of the complaint or motion and a copy of all materials submitted along with the complaint or materials which give rise to the commission’s instigation of action on its own motion. However, the official must also be notified in advance if an issue that may give rise to a motion to undertake action on the commission’s own instigation is to be discussed at a commission meeting.

(c) Before investigating any complaint or undertaking any investigation at the commission’s own instigation, if the public official who is the subject of the complaint or of the commission’s own action is a member of the Legislative Assembly, the commission shall determine whether the alleged violation of any provision of this chapter involves conduct protected by section 9, Article IV of the Oregon Constitution. If the commission determines that the conduct is protected by section 9, Article IV of the Oregon Constitution, the commission shall dismiss the complaint or rescind its motion as provided in paragraph (e) of this subsection.

(d) If the complaint has not been dismissed or the motion of the commission has not been rescinded as described in paragraph (c) of this subsection, before investigating any complaint or undertaking an investigation on the commission’s own instigation, the commission shall make a finding that there is cause to undertake an investigation, notify the public official who is the subject of the investigation, identify the issues to be examined and shall confine its investigation to those issues. If the commission finds reason to expand its investigation, it shall move to do so and shall record in its minutes the issues to be examined before expanding the scope of its investigation and formally notify the complainant and the public official who is the subject of the complaint of the expansion and the scope thereof.

(e) If the commission does not make a finding of cause, or if the commission determines that the alleged violation of this chapter involves conduct protected by section 9, Article IV of the Oregon Constitution, the commission shall dismiss the complaint or rescind its motion and shall formally enter the dismissal or rescission on its records. The commission shall notify the public official of the dismissal or rescission. After dismissal or rescission, the commission shall take no further action involving the public official unless a new and different complaint is filed or action at its own instigation is undertaken based on different conduct.

(2) The commission may:

(a) During the Preliminary Review Phase, seek, solicit or otherwise obtain any books, papers, records, memoranda or other additional information, administer oaths and take depositions necessary to determine whether there is cause or if the alleged violation is protected by section 9, Article IV of the Oregon Constitution; and

(4) The findings of the commission in any inquiry or investigation shall be reported impartially, including both favorable and unfavorable findings, and shall be made available to the public official who is the subject thereof, to the appointing authority, if any, and to the Attorney General for state public officials and to the appropriate district attorney for local public officials. The findings shall be made available to the Commission on Judicial Fitness and Disability in any investigation involving a judge.

(5) Hearings relating to any charge of alleged violation of this chapter [may] must be held before [the commission or before a hearing officer appointed by the commission] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. The procedure shall be that for a contested case under ORS 183.310 to 183.550.

(6)(a) The period of time from the filing of a complaint or from acting on the commission’s own instigation to the finding of cause or dismissal of the complaint or rescission of the motion shall be termed the Preliminary Review Phase and shall not exceed 90 days unless a delay is stipulated to by both the public official and the Oregon Government Standards and Practices Commission with the commission reserving a portion of the delay period to complete its actions.

(d) The time limit imposed in this subsection and the commission’s inquiry are suspended if:

(A) There is a pending criminal investigation that relates to the issues arising out of the underlying facts or conduct at issue in the matter before the commission unless the parties stipulate otherwise; or

(B) A court has enjoined the commission from continuing its inquiry.

(7)(a) The period of time from the finding of cause to the beginning of any contested case proceedings shall be termed the Investigatory Phase and shall not exceed 120 days unless a delay is stipulated to by both the public official and the Oregon Government Standards and Practices Commission with the commission reserving a portion of the delay period to complete its actions.

(b) The time limit imposed in this subsection and the commission’s investigation are suspended if:

(B) A court has enjoined the commission from continuing its investigation.

(A) Dismissal, with or without comment;

(B) Continuation of the investigation to determine further facts, but no more than one continuation, not to exceed 30 days’ duration, shall be taken;

(D) Seeking a negotiated settlement; or

(E) Taking other appropriate action if justified by the findings.

(8) If, at the end of the Investigatory Phase, the commission takes action by order to move to a contested case proceeding, a public official may notify the commission that the official elects to have the commission file a lawsuit against the official in the Marion County Circuit Court in lieu of the contested case proceeding. The public official shall notify the commission of the election in writing no later than 21 days after receiving notification of the commission’s action by order to move to the contested case proceeding. The commission shall file suit within 30 days after receiving notice that the public official has elected the lawsuit procedure.

(10) Nothing in this section is intended to prevent the commission and the public official or other person alleged to have violated this chapter from stipulating to a finding of fact concerning the violation and consenting to an appropriate penalty. The commission shall enter an order accordingly.

(11) As used in this section:

(a) “Cause” means that there is a substantial, objective basis for believing that an offense or violation may have been committed and the person who is the subject of an inquiry may have committed the offense or violation.

(b) “Pending” means that a prosecuting attorney is either actively investigating the factual basis of the alleged criminal conduct, is preparing to seek or is seeking an accusatory instrument, has obtained an accusatory instrument and is proceeding to trial or is in trial or in the process of negotiating a plea.

SECTION 31. ORS 274.755, as amended by section 58, chapter 849, Oregon Laws 1999, and section 84, chapter 104, Oregon Laws 2001, is amended to read:

274.755. (1) Before granting any easement under ORS 274.705 to 274.860, and before offering lands for leasing under ORS 274.705 to 274.860, or whenever any person files a written application with the Division of State Lands requesting that an easement be granted for such lands or that such lands be offered for leasing under ORS 274.705 to 274.860, accompanying the same with the required fee, the division shall hold a public hearing as provided in this section.

(2) Before granting an easement or inviting bids on any lands subject to ORS 274.705 to 274.860, the division shall cause written notice describing the area under consideration and other pertinent information to be transmitted to:

(a) State Geologist;

(b) Director of Transportation;

(d) State Fish and Wildlife Director;

(e) The applicant, if any, requesting the lease;

(f) Prospective applicants or bidders, by publication thereof in two or more publications of general circulation in the oil and gas industry; and

(g) The public, by publication thereof once each week for not less than four weeks in a newspaper of general circulation throughout the State of Oregon, and in addition in a newspaper of general circulation in the county in which the lands lie or the county or counties contiguous to the area under consideration for bidding.

(3) The notice shall set forth the place of hearing and shall set its time at not earlier than the 20th day after date of the last newspaper publication.

(4) [The division may appoint one of its officers or employees or, by mutual agreement with another state agency, board or commission, one of the agency, board or commission employees to conduct hearings authorized under this section.] Notwithstanding section 9, chapter 849, Oregon Laws 1999, hearings under this section may be conducted by an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999, or may be conducted by a hearing officer designated by the State Land Board. An officer or employee of each interested state agency, board or commission named in subsection (2) of this section may question any witnesses appearing in the hearing, and any interested person may offer evidence and otherwise be heard.

SECTION 32. ORS 279.045, as amended by section 61, chapter 849, Oregon Laws 1999, and section 88, chapter 104, Oregon Laws 2001, is amended to read:

279.045. (1) The procedure for appeal from a disqualification or denial, revocation or revision of a prequalification by a public contracting agency shall be in accordance with this section and is not subject to ORS 183.310 to 183.550 except where specifically provided by this section.

(2) Promptly upon receipt of notice of appeal from a public contracting agency as provided for by ORS 279.043, the Director of the Oregon Department of Administrative Services or the local contract review board shall notify the person appealing and the public contracting agency of the time and place of the hearing. The director or board shall conduct the hearing and decide the appeal within 30 days after receiving the notification from the public contracting agency. The director or board shall set forth in writing the reasons for the decision.

(3) In the hearing the director or board shall consider de novo the notice of disqualification or denial, revocation or revision of a prequalification, the reasons listed in ORS 279.037 (2) on which the public contracting agency based the disqualification or the standards of responsibility listed in ORS 279.029 (6)(a)(B) on which the public contracting agency based the denial, revocation or revision of the prequalification and any evidence provided by the parties. In all other respects, hearings before the director shall be conducted in the same manner as a contested case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440, 183.450 and 183.452. [Hearings before a board shall be conducted under rules of procedure adopted by the board.]

(4) The director may allocate the director’s cost for the hearing between the person appealing and the public contracting agency whose disqualification or prequalification decision is being appealed. The allocation shall be based upon facts found by the director and stated in the final order which, in the director’s opinion, warrant such allocation of the costs. If the final order does not allocate the director’s costs for the hearing, such costs shall be paid as follows:

(a) If the decision to disqualify or deny, revoke or revise a prequalification of a person as a bidder is upheld, the director’s costs shall be paid by the person appealing the disqualification or prequalification decision.

(b) If the decision to disqualify or deny, revoke or revise a prequalification of a person as a bidder is reversed by the director, the director’s costs shall be paid by the public contracting agency whose disqualification or prequalification decision is the subject of the appeal.

(5) The decision of the director or board may be reviewed only upon a petition, filed within 15 days after the date of the decision, in the circuit court of the county in which the director or board has its principal office. The circuit court shall reverse or modify the decision only if it finds:

(a) The decision was procured by corruption, fraud or undue means.

(b) There was evident partiality or corruption on the part of the director or board or any of its members.

(c) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the decision.

(6) The procedure provided in this section is the exclusive means of judicial review of the decision of the director or board. The judicial review provisions of ORS 183.480 and writs of review and mandamus as provided in ORS chapter 34, and other legal, declaratory and injunctive remedies are not available.

(7) The circuit court may, in its discretion, stay the letting of the contract which is the subject of the petition in the same manner as a suit in equity. In the event the court determines that there has been an improper disqualification or denial, revocation or revision of a prequalification and the contract has been let, the court may proceed to take evidence to determine the damages, if any, suffered by the petitioner and award such damages as the court may find as a judgment against the director or board. The court may award costs and attorney fees to the prevailing party.

SECTION 33. ORS 342.177, as amended by section 70, chapter 849, Oregon Laws 1999, is amended to read:

342.177. (1) Hearings under ORS 342.176 shall be conducted by [the Teacher Standards and Practices Commission, by three members of the commission designated by the commission or by a hearing officer designated by the commission] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. The hearing shall be private unless the person against whom the charge is made requests a public hearing. Students attending school in the district which employs the person shall not be permitted to attend any hearing except as witnesses duly subpoenaed to testify with respect to the charges made. The person against whom the charge is made shall have the right to be represented by counsel and to present evidence and argument. The evidence must be confined to the charges.

(2) The Teacher Standards and Practices Commission or the person charged may have subpoenas issued to compel attendance at the hearing. The person charged may have subpoenas issued by an attorney of record subscribed by the signature of the attorney or by the executive director. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the commission, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (2). The commission or the person charged shall have the right to compel the attendance and obedience of witnesses in the same manner as provided under ORS 183.440 (2).

(3) The commission shall render its decision at its next regular meeting following the hearing. If the decision of the commission is that the charge described in ORS 342.175 (1) has been proven, the commission may take any or all of the following disciplinary action against the person charged:

(a) Issue a public reprimand.

(b) Place the person on probation for a period not to exceed four years and subject to such conditions as the commission considers necessary.

(d) Revoke the license of the teacher or administrator.

(e) Revoke the privilege to apply for a license.

(4) If the decision of the commission is that the charge is not proven, the commission shall order the charges dismissed.

(5) The commission shall notify in writing the person charged, the school district by which the person is employed and the Superintendent of Public Instruction of the decision.

SECTION 34. ORS 416.427, as amended by section 79, chapter 849, Oregon Laws 1999, is amended to read:

416.427. (1) When a party requests a hearing pursuant to ORS 416.415, 416.425 (1) or 416.429, the contested case provisions of ORS 183.310 to 183.550 apply except when the issue of paternity is to be resolved pursuant to ORS 416.430.

(2) Except as provided in ORS 416.430, hearings shall be conducted by [a qualified hearing officer appointed by the Employment Department] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999.

(3) The [hearing officer] administrative law judge has the power to issue subpoenas for witnesses necessary to develop a full record. The attorney of record for the office of the Division of Child Support or the office of the district attorney may issue subpoenas. Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the administrator, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (2). Obedience to the subpoena may be compelled in the same manner as set out in ORS 183.440 (2).

(4) Upon issuance of an order, action by the administrator to enforce and collect upon the order, including arrearages, may be taken. Such action shall not be stayed or partially stayed pending appeal or by any court unless there is substantial evidence showing that the obligor would be irreparably harmed and that the obligee would not be irreparably harmed.

(5) An order issued by the [hearing officer] administrative law judge or the administrator is final. The order shall be in full force and effect while any appeal is pending unless the order is stayed by a court. No stay shall be granted unless there is substantial evidence showing the obligor would be irreparably harmed and that the obligee would not be irreparably harmed.

(6) Appeal of the order of the [hearing officer] administrative law judge or any default or consent order entered by the administrator pursuant to ORS 416.400 to 416.470 may be taken to the circuit court of the county in which the order has been docketed pursuant to ORS 416.440 for a hearing de novo. The appeal shall be by petition for review filed within 60 days after the order has been docketed pursuant to ORS 416.440. Unless otherwise specifically provided by law, the appeal shall be conducted pursuant to the Oregon Rules of Civil Procedure.

(7) The obligor, the obligee and the state are parties to any proceedings, including appeals, under this section.

SECTION 35. ORS 431.730, as amended by section 82, chapter 849, Oregon Laws 1999, is amended to read:

431.730. (1) At the hearing on the resolution, any interested person shall be given a reasonable opportunity to be heard or to present written statements. The hearing shall be for the sole purpose of determining whether a danger to public health exists due to conditions in the affected territory and whether such conditions could be removed or alleviated by the provision of service facilities. Hearings under this section shall be conducted by [the Director of Human Services or by a hearing officer designated by the director] an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. It shall be conducted in accordance with the provisions of ORS 183.310 to 183.550. The Department of Human Services shall publish a notice of the issuance of said findings and recommendations in the newspaper utilized for the notice of hearing under ORS 431.725 (2) advising of the opportunity for presentation of a petition under subsection (2) of this section.

(2) Within 15 days after the publication of notice of issuance of findings in accordance with subsection (1) of this section, any person who may be affected by the findings, or the affected district, may petition the director according to rules of the department to present written or oral arguments relative to the proposal. If a petition is received, the director may set a time and place for receipt of argument.

SECTION 36. ORS 448.255, as amended by section 85, chapter 849, Oregon Laws 1999, is amended to read:

448.255. (1) Whenever the Director of Human Services has reasonable grounds to believe that a water system or part thereof is being operated or maintained in violation of any rule adopted pursuant to ORS 448.115 to 448.285, 454.235 and 454.255, the director shall give written notice to the water supplier responsible for the system.

(2) The notice required under subsection (1) of this section shall include the following:

(a) Citation of the rule allegedly violated;

(b) The manner and extent of the alleged violation; and

(3) The notice shall be served personally or by registered or certified mail and shall be accompanied by an order of the director requiring remedial action which, if taken within the time specified in the order, will effect compliance with the rule allegedly violated. The order shall become final unless request for hearing is made by the party receiving the notice within 10 days from the date of personal service or the date of mailing of the notice.

(4) The form of petition for hearing and the procedures employed in the hearing shall be consistent with the requirements of ORS 183.310 to 183.550 and shall be in accordance with rules adopted by the Department of Human Services.

[(5) The director may designate a hearing officer to act on behalf of the director in holding and conducting hearings.]

(5) Hearings under this section shall be conducted by an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999.

(6) The order shall be affirmed or reversed by the director after hearing. A copy of the director’s decision setting forth findings of fact and conclusions shall be sent by registered or certified mail to the petitioner or served personally upon the petitioner. An appeal from such decision may be made as provided in ORS 183.480 relating to a contested case.

SECTION 37. ORS 462.405, as amended by section 88, chapter 849, Oregon Laws 1999, is amended to read:

462.405. (1) The board of stewards appointed by the Oregon Racing Commission for a race meet may, after an inquiry and hearing, impose appropriate sanctions for failure to comply with the laws and rules of racing and with the authorized commission or board directives applicable to said race meet, subject to the following limitations:

(a) No fine shall exceed $500 per offense.

(b) No license suspension shall be for a period longer than 365 calendar days from the date of issuance of the order of the board of stewards.

(2) Any sanction imposed by the board of stewards shall take effect on the date so indicated in the board’s ruling unless the effective date is stayed for good cause shown by specific order of the executive director of the commission, or a member of the commission, pending commission review.

(3) In lieu of the board of stewards conducting any inquiry and hearing provided for by subsection (1) of this section, the board of stewards may request the commission to appoint and designate a person to conduct such inquiry and hearing who shall be known as a hearings master. The hearings master shall have the same authority and power as the board of stewards in conducting the inquiry and hearing. Any person adversely affected by any hearings master ruling has the right to appeal to the commission as provided for in subsection (4) of this section. The hearings master need not be an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999.

(4) The board of stewards may refer any matter before it to the commission for appropriate review or action either before or after a board hearing or ruling. A person adversely affected by any board ruling has the right to appeal to the commission for a review and hearing as provided in ORS 183.310 to 183.550. Such review shall be perfected by filing a written notice of appeal with the executive director within 10 days after the board ruling is issued. Hearings conducted by the commission under this subsection shall be heard by an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. The commission is not limited in its actions or in the sanctions it may impose by any ruling of the board or by any limitation imposed upon the board by commission rule or regulation or by subsection (2) of this section.

SECTION 38. ORS 464.500, as amended by section 91, chapter 849, Oregon Laws 1999, is amended to read:

464.500. (1) In order to determine compliance with state law and rules of the department relating to the operation of bingo, lotto, raffles or Monte Carlo events, the Department of Justice or its designee may:

(a) Investigate whether a person has violated state law or rules of the department relating to the operation of bingo, lotto or raffle games or Monte Carlo events.

(b) Inspect the records of any person who lends money to, or in any other manner finances, any licensee or applicant for any license or who receives any income or profits from the use of the license.

(2) The department or its designee may conduct investigations into the operation of any bingo, lotto or raffle game or Monte Carlo event in this state. For that purpose, the department or its designee may subpoena witnesses, compel attendance, take depositions and testimony and require the production of material relevant to the investigation.

(3) The department or its designee may hold contested case hearings which shall be subject to ORS 183.413 to 183.470, subject to review as provided under ORS 183.480 to 183.490.

(4) Upon failure to obey a subpoena or to answer questions asked by the department’s designee and upon reasonable notice to all persons affected, the department may apply to the circuit court for an order compelling compliance.

(5) [The department may appoint a hearing officer to conduct] Hearings regarding suspension, revocation or denial of bingo, lotto, raffle or Monte Carlo event licenses or permits shall be conducted by an administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999. The [hearing officer] administrative law judge may administer oaths and conduct the hearings as provided in ORS 183.413 to 183.470. [Salaries and expenses of the hearing officer shall be as the department shall determine and shall be paid by the department.]

SECTION 39. ORS 466.185, as amended by section 94, chapter 849, Oregon Laws 1999, is amended to read:

466.185. (1) The Department of Environmental Quality shall investigate any complaint made to it by any person that the operation of any generator, air or water transporter or hazardous waste disposal, storage or treatment site is unsafe or that the operation is in violation of the provisions of ORS 466.005 to 466.385 and 466.992 or the rules adopted under ORS 466.005 to 466.385 and 466.992.

(2) If, after making an investigation under subsection (1) of this section, the department is satisfied that sufficient grounds exist to justify a hearing upon the complaint, it shall give 10 days’ written notice of the time and place of the hearing and the matters to be considered at the hearing. A copy of the complaint shall be furnished by the department to the respondent. Both the complainant and the respondent are entitled to be heard, produce evidence and offer exhibits and to require the attendance of witnesses at the hearing.

(3) [The Environmental Quality Commission or a hearing officer appointed by the commission] An administrative law judge assigned from the Office of Administrative Hearings established under section 3, chapter 849, Oregon Laws 1999, shall hear the matter. Within 30 days after the date of the hearing and after considering all evidence and testimony submitted, the Environmental Quality Commission shall make a specific order as it considers necessary. Any order issued by the commission under this subsection shall be subject to judicial review in the manner provided by ORS 183.480 for judicial review of orders in contested cases. The costs of reporting and of transcribing the hearing for the purpose of judicial review shall be paid by the party seeking judicial review.

SECTION 40. ORS 466.305, as amended by section 97, chapter 849, Oregon Laws 1999, is amended to read:

466.305. (1) The Department of Environmental Quality shall investigate any complaint made to it by any person that the operation of any PCB disposal facility is unsafe or that the operation is in violation of a condition of the operator’s permit or any provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.340 or the rules adopted under ORS 466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to 466.350. Upon receiving a complaint, the department shall furnish a copy of the complaint to the person holding the permit to operate the PCB disposal facility.

(2) If, after making an investigation under subsection (1) of this section, the department is satisfied that sufficient grounds exist to justify a hearing upon the complaint, it shall give 10 days’ written notice of the time and place of the hearing and the matters to be considered at the hearing. Both the complainant and the respondent are entitled to be heard, produce evidence and offer exhibits and to require the attendance of witnesses at the hearing.

SECTION 41. ORS 466.610, as amended by section 100, chapter 849, Oregon Laws 1999, is amended to read:

466.610. Subject to policy direction by the Environmental Quality Commission, the Department of Environmental Quality may:

(1) Conduct and prepare independently or in cooperation with others, studies, investigations, research and programs pertaining to the containment, collection, removal or cleanup of oil and hazardous material.

(2) Advise, consult, participate and cooperate with other agencies of the state, political subdivisions, other states or the federal government, in respect to any proceedings and all matters pertaining to responses, remedial actions or cleanup of oil and hazardous material and financing of cleanup costs, including radioactive waste, materials and substances otherwise subject to ORS chapters 453 and 469.

(3) Employ personnel, including specialists[,] and consultants [and hearing officers], purchase materials and supplies and enter into contracts with public and private parties necessary to carry out the provisions of ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2).

(4) Conduct and supervise educational programs about oil and hazardous material, including the preparation and distribution of information regarding the containment, collection, removal or cleanup of oil and hazardous material.

(5) Provide advisory technical consultation and services to units of local government and to state agencies.

(6) Develop and conduct demonstration programs in cooperation with units of local government.

(7) Perform all other acts necessary to carry out the duties, powers and responsibilities of the department under ORS 466.605 to 466.680, 466.990 (3) and (4) and 466.995 (2).

SECTION 42. ORS 468.035, as amended by section 103, chapter 849, Oregon Laws 1999, is amended to read:

468.035. (1) Subject to policy direction by the Environmental Quality Commission, the Department of Environmental Quality:

(a) Shall encourage voluntary cooperation by the people, municipalities, counties, industries, agriculture, and other pursuits, in restoring and preserving the quality and purity of the air and the waters of the state in accordance with rules and standards established by the commission.

(b) May conduct and prepare, independently or in cooperation with others, studies, investigations, research and programs pertaining to the quality and purity of the air or the waters of the state and to the treatment and disposal of wastes.

(c) Shall advise, consult, and cooperate with other agencies of the state, political subdivisions, other states or the federal government, in respect to any proceedings and all matters pertaining to control of air or water pollution or for the formation and submission to the legislature of interstate pollution control compacts or agreements.

(d) May employ personnel, including specialists[,] and consultants [and hearing officers], purchase materials and supplies, and enter into contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(e) Shall conduct and supervise programs of air and water pollution control education, including the preparation and distribution of information regarding air and water pollution sources and control.

(f) Shall provide advisory technical consultation and services to units of local government and to state agencies.

(g) Shall develop and conduct demonstration programs in cooperation with units of local government.

(h) Shall serve as the agency of the state for receipt of moneys from the federal government or other public or private agencies for the purposes of air and water pollution control, studies or research and to expend moneys after appropriation thereof for the purposes given.

(i) Shall make such determination of priority of air or water pollution control projects as may be necessary under terms of statutes enacted by the Congress of the United States.

(j) Shall seek enforcement of the air and water pollution laws of the state.

(k) Shall institute or cause to be instituted in a court of competent jurisdiction, proceedings to compel compliance with any rule or standard adopted or any order or permit, or condition thereof, issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(L) Shall encourage the formulation and execution of plans in conjunction with air and water pollution control agencies or with associations of counties, cities, industries and other persons who severally or jointly are or may be the source of air or water pollution, for the prevention and abatement of pollution.

(m) May determine, by means of field studies and sampling, the degree of air or water pollution in various regions of the state.

(n) May perform such other and further acts as may be necessary, proper or desirable to carry out effectively the duties, powers and responsibilities of the department as set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(o) Shall coordinate any activities of the department related to a watershed enhancement project approved by the Oregon Watershed Enhancement Board under ORS 541.375 with activities of other cooperating state and federal agencies participating in the project.

(2) Nothing in this section shall affect the authority of the Department of Human Services to make and enforce rules:

(a) Regarding the quality of water for human or animal consumption pursuant to ORS 448.115 to 448.325, 624.010 to 624.120 and 624.310 to 624.430; and

(b) Regarding the quality of water for public swimming places pursuant to ORS 431.110.

(3) Nothing in this section shall prevent the State Department of Agriculture or the State Forestry Department from independently receiving moneys from a public or private agency for the purposes of preventing or controlling air or water pollution resulting from agricultural or silvicultural activities or soil erosion, or for research related to such purposes.

(4)(a) In awarding a public contract under ORS chapter 279 for a removal or remedial action pursuant to ORS 465.200 to 465.510, 465.517 to 465.548 and 465.992, a corrective action or cleanup action pursuant to ORS 466.005 to 466.385, 466.605 to 466.680 or 466.706 to 466.882 or a removal pursuant to ORS 468B.005 to 468B.030, 468B.035, 468B.048 to 468B.085, 468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500, the department, and the Oregon Department of Administrative Services, when administering the establishment of such a contract on behalf of the Department of Environmental Quality under ORS 279.712, shall subtract from the amount of any bid or proposal the hazardous waste management fees and solid waste fees that would be required by law to be paid to the department for waste that would be disposed of at a solid waste disposal site or a hazardous waste or PCB disposal facility, based on the bid or proposal. The amount to be subtracted shall be established on the basis of reasonable preprocurement estimates of the amount of waste that would be disposed of under the contract and that would be subject to those fees.

(b) The subtraction for fees under paragraph (a) of this subsection shall apply only to a contract reasonably anticipated to involve the disposal of no less than 50 tons of hazardous waste or no less than 500 tons of solid waste. The Legislative Assembly finds that making accurate advance estimates of amounts of waste that would be disposed of in projects of this character is technically challenging and requires the application of professional discretion. Therefore, no award of a contract under this subsection shall be subject to challenge, under ORS 279.067 or otherwise, on the ground of the inaccuracy or claimed inaccuracy of any such estimate.

(c) The subtraction for fees under paragraph (a) of this subsection shall not apply to the establishment, by or on behalf of the department, of master contracts by which the department engages the services of a contractor over a period of time for the purpose of issuing work orders for the performance of environmental activities on a project or projects for which the amounts of waste to be disposed of were not reasonably identified at the inception of the master contracts. However, the department shall require any contractor under a master contract to apply the subtraction for fees under paragraph (a) of this subsection in the selection of any subcontractor to perform the removal of waste in amounts equaling or exceeding the amounts set forth in paragraph (b) of this subsection. Nothing in this subsection shall be construed to prohibit the department or the Oregon Department of Administrative Services from establishing contracts pursuant to this section through contracting procedures authorized by ORS chapter 279 that do not require the solicitation of bids or proposals.

SECTION 43. ORS 468.035, as amended by section 103, chapter 849, Oregon Laws 1999, and section 18, chapter 495, Oregon Laws 2001, is amended to read: