72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 435
House Bill 2058
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary for the Oregon State Bar Administrative Law Section)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Repeals sunset on laws creating Hearing Officer Panel.
Authorizes hearing officer conducting hearing on behalf of
agency to order depositions.
Requires that agency must disclose to party in contested case
all investigative information in possession of, or available to,
agency that relates to party, and other information that could
assist party in obtaining full and fair hearing.
Describes responsibilities of hearing officer in conducting
hearings if hearing officer is assigned from Hearing Officer
Panel.
Requires that model rules prepared by Attorney General for
Hearing Officer Panel must facilitate, to greatest extent
possible, participation in contested case proceedings by persons
who are not attorneys.
Imposes disclosure requirements for agency decision makers who
receive ex parte communications. Expands application of laws
governing ex parte communications to all agencies conducting
contested case proceedings.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to administrative hearings; creating new provisions;
amending ORS 18.902, 25.020, 25.287, 25.378, 25.765, 171.778,
183.341, 183.415, 183.425, 244.260, 274.755, 279.045, 342.177,
416.427, 431.730, 448.255, 462.405, 464.500, 466.185, 466.305,
466.610, 468.035, 517.983, 527.687, 543.055, 561.615, 656.704,
657.270, 657.280, 657.485, 657.610, 657.630, 657.663, 657.683,
671.703, 677.275, 678.780, 687.086, 693.105, 701.147, 701.160,
737.209, 776.129, 776.375, 809.040, 809.440, 813.410, 813.440,
813.450, 822.080 and sections 8 and 20, chapter 849, Oregon
Laws 1999; repealing ORS 183.462 and 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, 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:
{ +
DISCOVERY IN CONTESTED CASES + }
SECTION 1. ORS 183.425 is amended to read:
183.425. (1) On petition of any party to a contested case, or
upon the agency's own motion, the agency { + or the hearing
officer conducting the hearing on behalf of the agency + } may
order that the testimony of any material witness may be taken by
deposition in the manner prescribed by law for depositions in
civil actions. { + An agency or hearing officer is not required
to order the taking of a deposition if the information sought to
be acquired by deposition can be acquired by other means. + }
Depositions may also be taken by the use of audio or audio-visual
recordings. The petition shall set forth the name and address of
the witness whose testimony is desired, a showing of the
materiality of the testimony of the witness, { + a statement as
to why the information sought by deposition cannot be acquired
informally or by other means of discovery, + } and a request for
an order that the testimony of such witness be taken before an
officer named in the petition for that purpose. If the witness
resides in this state and is unwilling to appear, the agency may
issue a subpoena as provided in ORS 183.440, requiring the
appearance of the witness before such officer.
{ + (2) If a party in a contested case proceeding so
requests, an agency must disclose to the party:
(a) All information in the possession of, or available to, the
agency that was obtained during any agency investigation related
to the proceeding; and
(b) Any other information that could assist the party in
obtaining a full and fair hearing. + }
{ - (2) - } { + (3) + } An agency may, by rule, prescribe
other methods of discovery { - which - } { + that + } may be
used in proceedings before the agency.
{ +
CONDUCT OF HEARING + }
SECTION 2. { + Section 3 of this 2003 Act is added to and made
a part of sections 2 to 21, chapter 849, Oregon Laws 1999. + }
SECTION 3. { + (1) In conducting hearings on behalf of an
agency, a hearing officer assigned from the Hearing Officer Panel
has responsibility for all aspects of the proceedings, including
making determinations on:
(a) Whether a person has a right to a hearing;
(b) Whether a person has made a timely request for a hearing;
(c) Whether a hearing request complies with requirements
imposed by law;
(d) Whether a person may file a late request for a hearing;
(e) Whether a person is required to respond to a notice of a
contested case proceeding, and the adequacy of any response that
is filed;
(f) The scope of discovery;
(g) Whether a person should be given party status in the
proceeding, and the scope of participation by a person with
limited party status;
(h) The scope of the hearing;
(i) Whether to postpone or continue the hearing; and
(j) Whether two or more proceedings should be consolidated, or
whether a single proceeding should be bifurcated.
(2) In any proceeding in which a hearing is conducted on behalf
of an agency by a hearing officer assigned from the Hearing
Officer Panel, issues relating to the interpretation of rules and
statutes must be decided as part of the hearing in the normal
course of developing the hearing record, based on proposed
interpretations presented by the parties and by the agency. This
subsection does not affect the ability of a hearing officer to
make summary determinations on the interpretation of rules and
statutes upon motion and opportunity for response. + }
SECTION 4. 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 - }
{ + proceedings + } conducted by hearing officers assigned from
the Hearing Officer Panel established under section 3 { + ,
chapter 849, Oregon Laws 1999, + } { - of this 1999 Act - }
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. { + Model rules prepared by the Attorney General
under this section, and other agency rules governing procedure in
contested case proceedings, must facilitate to the greatest
extent possible participation in contested case proceedings by
parties who do not have legal representation and participation by
other persons who are not attorneys but who are allowed by law to
represent parties in contested case proceedings. + }
{ - (2) The Attorney General, after consulting with the chief
hearing officer for the panel, 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 assigned from the panel, or as may be expressly
provided for by law, a hearing officer conducting a hearing for
an agency under sections 2 to 21 of this 1999 Act may not
authorize a party to take a deposition that is to be paid for by
the agency. - }
{ +
EX PARTE CONTACTS + }
SECTION 5. Section 20, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 20. + } { + (1) For purposes of this section,
'decision maker ' means any person who renders a final order in a
contested case proceeding, including any member of a board or
commission if the board or commission renders the final order.
+ } { - (1) - } { + (2) + } A hearing officer
{ - assigned from the Hearing Officer Panel who is presiding in
a contested case proceeding and - } { + or decision maker
+ }who receives an ex parte communication described in
subsections { - (3) - } { + (4) + } and { - (4) - } { +
(5) + } of this section shall place in the record of the pending
matter:
(a) The name of each person from whom the hearing officer { +
or decision maker + } received an ex parte communication;
(b) A copy of any ex parte written communication received by
the hearing officer { + or decision maker + };
(c) A copy of any written response to the communication made by
the hearing officer { + or decision maker + };
(d) A memorandum reflecting the substance of any ex parte oral
communication made to the hearing officer { + or decision
maker + }; and
(e) A memorandum reflecting the substance of any oral response
made by the hearing officer { + or decision maker + } to an ex
parte oral communication.
{ - (2) - } { + (3) + } Upon making a record of an ex parte
communication under subsection { - (1) - } { + (2) + } of
this section, a hearing officer { + or decision maker + } shall
advise the agency { + representatives + } and all parties in the
proceeding that an ex parte communication has been made a part of
the record. The hearing officer { + or decision maker + } shall
allow the agency { + representatives + } and parties an
opportunity to respond to the ex parte communication.
{ - (3) - } { + (4) + } 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 { +
or decision maker + }while the proceeding is pending; and
(c) Are made without notice and opportunity for the agency
{ + representatives + } and all parties { + in the
proceeding + } to participate in the communication.
{ - (4) - } { + (5) + } The provisions of this section
apply to any ex parte communication made directly or indirectly
to a hearing officer { + or decision maker + }, or to any agent
of a hearing officer { + or decision maker + }, by:
(a) A party;
(b) A party's representative or legal adviser;
(c) Any other person who has a direct or indirect interest in
the outcome of the proceeding;
(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 to conduct the hearing.
{ - (5) - } { + (6) + } The provisions of this section do
not apply to:
(a) Communications made to a hearing officer by other hearing
officers;
{ + (b) Communications made to a decision maker by other
decision makers for the agency; + }
{ - (b) - } { + (c) + } Communications made to a hearing
officer by any person employed by the panel to assist the hearing
officer; { - or - }
{ - (c) - } { + (d) + } Communications made to a hearing
officer { + or decision maker + } by an assistant attorney
general if the communications are made in response to a request
from the hearing officer { + or decision maker + } and the
assistant attorney general is not advising the agency that is
conducting the hearing { + ; or + }
{ + (e) Communications requesting information about the
status of the proceeding or scheduling and other matters not
related to any legal or factual issue in the proceeding + }.
SECTION 6. { + ORS 183.462 is repealed. + }
{ +
REPEAL OF SUNSET + }
SECTION 7. { + 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, 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 8. 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 Hearing Officer Panel 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 9. 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;
(c) After the assignment of support terminates for as long as
amounts assigned remain owing;
(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.
(c) The obligee shall:
(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.
(C) Dates and amounts of payments.
(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, 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 - }
{ + assigned from the Hearing Officer Panel 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 10. 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 - } { + assigned from the Hearing Officer
Panel established under section 3, chapter 849, Oregon Laws
1999 + }. Appeal of the order of the hearing officer 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 has
been docketed.
(f) If the court, the administrator or the hearing officer
finds that more than two years have elapsed, as described in
paragraph (b) of this subsection, the court, the administrator or
the hearing officer 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 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 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 11. 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 - }
{ + a + } hearing officer 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 12. 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 - } { + assigned from the Hearing Officer
Panel 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. Any suspension is stayed pending the decision of the
hearing officer. Any order of the hearing officer 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 13. 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.
(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 person who is the subject thereof and to any employer of
the person.
(5) Hearings relating to any charge of alleged violation of ORS
171.725 to 171.785 may be held before the commission or before a
hearing officer { - appointed by the commission - } { +
assigned from the Hearing Officer Panel 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:
(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
investigation.
(c) At the end of the Investigatory Phase, the commission shall
take action by order, which action may include:
(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;
(C) Moving to a contested case proceeding;
(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 14. 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
(c) The notice procedures required by ORS 183.335 (1).
(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 15. 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;
(c) A reference to the particular sections of the statutes and
rules involved; and
(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. - } { + The hearing officer must comply with the
requirements of section 20, chapter 849, Oregon Laws 1999, if the
hearing officer receives ex parte communications. + }
(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.
(c) Stipulations.
(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.
(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 16. 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
(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.
(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 be held before the commission or before a
hearing officer { - appointed by the commission - } { +
assigned from the Hearing Officer Panel 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.
(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 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:
(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
investigation.
(c) At the end of the Investigatory Phase, the commission shall
take action by order, which action may include:
(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;
(C) Moving to a contested case proceeding;
(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.
(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 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 17. 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;
(c) Director of the Department of Environmental Quality;
(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 a hearing officer
assigned from the Hearing Officer Panel 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 18. 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 19. 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 - } { + a hearing
officer assigned from the Hearing Officer Panel 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.
(c) Suspend the license of the teacher or administrator for a
period not to exceed one year.
(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 20. 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 - } { + hearing officer assigned from the
Hearing Officer Panel established under section 3, chapter 849,
Oregon Laws 1999 + }.
(3) The hearing officer has the power to issue subpoenas for
witnesses necessary to develop a full record. The attorney of
record for the office 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 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 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 21. 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 - } { + a hearing officer
assigned from the Hearing Officer Panel 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 22. 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
(c) A statement of the party's right to request a hearing.
(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 a
hearing officer assigned from the Hearing Officer Panel
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 23. 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 a hearing officer assigned from the
Hearing Officer Panel 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 a hearing officer assigned from the
Hearing Officer Panel 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 24. 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 a hearing officer assigned
from the Hearing Officer Panel established under section 3,
chapter 849, Oregon Laws 1999 + }. The hearing officer 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 25. 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 - } { + A hearing officer
assigned from the Hearing Officer Panel 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 26. 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.
(3) { - The Environmental Quality Commission or a hearing
officer appointed by the commission - } { + A hearing officer
assigned from the Hearing Officer Panel 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 27. 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 28. 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 29. 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:
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,
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 30. ORS 517.983, as amended by section 104c, chapter
849, Oregon Laws 1999, is amended to read:
517.983. (1) The applicant or any person who appeared before a
permitting agency at the consolidated public hearing under ORS
517.981, either orally or in writing, regarding a permit granted
or denied by the permitting agency may file with the State
Geologist a written request for a consolidated contested case
hearing. The request shall be filed within 30 days after the date
the permit was granted or denied.
(2) Upon receipt of a request under subsection (1) of this
section, the State Department of Geology and Mineral Industries
shall schedule a consolidated contested case hearing which shall
be held not less than 60 days or more than 75 days after the
notice of permit issuance under ORS 517.982. The hearing shall be
conducted in accordance with the provisions applicable to
contested case proceedings under ORS 183.310 to 183.550. Any
permit granted by a permitting agency shall be suspended until
completion of the administrative hearings process.
{ - (3) Each permitting agency for which a permit decision is
appealed may appoint a hearing officer to participate in the
formal hearing or, with the consent of all other permitting
agencies, the State Department of Geology and Mineral Industries
may appoint a single hearing officer. - }
{ + (3) Hearings under this section shall be conducted by a
hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999. + }
(4) The hearing officer shall prepare a proposed order for each
contested permit. A party may file written exceptions to the
proposed order with the permitting agency. If the permitting
agency determines that additional information may be included in
the record, the agency shall remand the order to the appropriate
hearing officer for further consideration. After receiving
exceptions and hearing argument on the exceptions, the governing
body or person within the permitting agency responsible for
making a final decision on a permit may adopt the proposed order
or issue a new order.
(5) Jurisdiction for judicial review of a permitting agency's
issuance or denial of a permit is conferred upon the Supreme
Court. Proceedings for review shall be instituted by filing a
petition in the Supreme Court. The petition shall be filed within
60 days following the date the permit is issued or denied. If the
permit with prescribed conditions is approved, the filing of the
petition for review shall stay the permit during the pendency of
judicial review for a period of up to six months from the date
the petition for review is filed. The Supreme Court may extend
the stay beyond the six-month period upon written request and a
showing by the petitioner that the activities under the permit
could result in irreparable harm to the site. Except as otherwise
provided in this subsection, the review by the Supreme Court
shall be as provided in ORS 183.482. The Supreme Court shall give
priority on its docket to such a petition for review.
(6) When only the applicant files a petition for judicial
review, the six-month stay imposed under subsection (5) of this
section may be removed by the permitting agency upon written
request within 60 days after the filing of the petition and a
showing by the applicant to support a finding by the permitting
agency that proceeding with any or all activities under the
permit will not result in irreparable harm to the site. In making
such findings the permitting agency may require an additional
bond or alternative security to be filed with the State
Department of Geology and Mineral Industries as provided in ORS
517.987. The bond shall be in an amount the permitting agency
determines necessary to assure complete restoration of the site
if the petitioner elects not to complete the project following
judicial review. Agency denial of the request to remove the stay
is subject to review by the Supreme Court under such rules as the
Supreme Court may establish.
SECTION 31. ORS 527.687, as amended by section 108, chapter
849, Oregon Laws 1999, is amended to read:
527.687. (1) Subject to the notice provisions of ORS 527.683,
any civil penalty under ORS 527.992 shall be imposed in the
manner provided in ORS 183.090.
(2) In no case shall a hearing requested under ORS 183.090 be
held less than 45 days from the date of service of the notice of
penalty to allow the party to prepare testimony. The hearing
shall be held not more than 180 days following issuance of the
notice unless all parties agree on an extension.
{ - (3) Hearings under this section may be conducted by a
hearing officer designated by the State Forester. - }
{ + (3) Hearings under this section shall be conducted by a
hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999. + }
(4) All civil penalties recovered under ORS 527.610 to 527.770,
527.990 and 527.992 shall be paid to the General Fund.
SECTION 32. ORS 543.055, as amended by section 113, chapter
849, Oregon Laws 1999, is amended to read:
543.055. (1) The Water Resources Commission may hold hearings
and take testimony orally, by deposition or in such other form as
the commission considers satisfactory, either within or without
this state. The Water Resources Commission may require, by
subpoena, the attendance of witnesses and the production of
documentary evidence.
(2) { - The commission may appoint any person as a hearing
officer to conduct and preside over any - } { + A hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999, shall conduct any
contested case + } hearing that the commission is required or
permitted by law to hold. The hearing officer has the same powers
with respect to the conduct of the hearing as are granted by law
to the commission, including the taking of testimony, the signing
and issuance of subpoenas and the administering of oaths and
affirmations to witnesses. The hearing officer shall keep a
record of the proceedings on the hearing and shall transmit such
record to the commission.
(3) The commission may designate any person to take the
testimony, affidavit or deposition of a witness. The person so
designated may administer an oath or affirmation to any such
witness and take the testimony thereof in accordance with such
rules as the commission may prescribe.
(4) Witnesses appearing before the commission or any person
designated by the commission to take testimony shall be paid the
fees and mileage provided for witnesses in ORS 44.415 (2).
SECTION 33. ORS 561.615, as amended by section 120, chapter
849, Oregon Laws 1999, is amended to read:
561.615. (1) The hearing shall be conducted by { - the
Director of Agriculture or by a hearing officer designated by the
director - } { + a hearing officer assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999 + }. The hearing shall be conducted as provided for
contested cases under ORS 183.310 to 183.550.
(2) If it appears that the products are not being stored, sold,
kept, offered or exposed for sale in violation of law, the
products shall be released to the owner or person in possession.
If it appears that all or part of such products may be
reconditioned or relabeled or segregated in such a way as to
comply with state laws, the owner or person in possession may
cause them to be reconditioned, relabeled or segregated at the
owner's or person's own expense, after which the department shall
release them. If it appears that all or a part of the products
may not be reconditioned, relabeled or segregated in such a way
as to comply with state laws, that portion of the products which
may not be so treated shall be destroyed, unless the owner or
person in possession executes and delivers to the department a
good and sufficient bond to the effect that the products shall
not be sold, disposed of or used contrary to the laws of Oregon
and the rules, regulations or orders thereunder promulgated. If
any food products are found to be unfit for human consumption but
suitable for animal feeding, such food products may be used for
animal feeding as permitted by the department.
SECTION 34. ORS 656.704, as amended by sections 121c and 121e,
chapter 849, Oregon Laws 1999, is amended to read:
656.704. (1) Actions and orders of the Director of the
Department of Consumer and Business Services, and administrative
and judicial review thereof, regarding matters concerning a claim
under this chapter are subject to the procedural provisions of
this chapter and such procedural rules as the Workers'
Compensation Board may prescribe.
(2) Notwithstanding ORS 183.315 (1), actions and orders of the
director and the conduct of hearings and other proceedings
pursuant to this chapter, and judicial review thereof, regarding
all matters other than those concerning a claim under this
chapter, are subject to ORS 183.310 to 183.550 { - and such
procedural rules as the director may prescribe. The director may
make arrangements with the board chairperson pursuant to ORS
656.726 to obtain the services of Administrative Law Judges to
conduct such proceedings or may make other arrangements to obtain
personnel to conduct such proceedings - } . { + Except as
provided in subsections (4) and (5) of this section, contested
case hearings under this subsection shall be conducted by a
hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999. + }
The director by rule shall prescribe the classes of orders issued
by { - Administrative Law Judges - } { + hearing officers + }
and other personnel that are final, appealable orders and those
orders that are preliminary orders subject to revision by the
director.
(3)(a) For the purpose of determining the respective authority
of the director and the board to conduct hearings, investigations
and other proceedings under this chapter, and for determining the
procedure for the conduct and review thereof, matters concerning
a claim under this chapter are those matters in which a worker's
right to receive compensation, or the amount thereof, are
directly in issue. However, subject to paragraph (b) of this
subsection, such matters do not include any disputes arising
under ORS 656.245, 656.248, 656.260, 656.327, any other
provisions directly relating to the provision of medical services
to workers or any disputes arising under ORS 656.340 except as
those provisions may otherwise provide.
(b) The respective authority of the board and the director to
resolve medical service disputes, other than disputes arising
under ORS 656.260, shall be determined according to the following
principles:
(A) Any dispute that requires a determination of the
compensability of the medical condition for which medical
services are proposed is a matter concerning a claim.
(B) Any dispute that requires a determination of whether
medical services are excessive, inappropriate, ineffectual or in
violation of the rules regarding the performance of medical
services, or a determination of whether medical services for an
accepted condition qualify as compensable medical services among
those listed in ORS 656.245 (1)(c), is not a matter concerning a
claim.
(C) Any dispute that requires a determination of whether a
sufficient causal relationship exists between medical services
and an accepted claim to establish compensability is a matter
concerning a claim.
(D) The board and the director shall adopt rules to facilitate
the fair and orderly determination of disputes that involve
matters concerning a claim and additional issues. Such rules
shall first require the determination of those issues that are
matters concerning a claim.
{ + (4) If a hearing involves actions and orders of the
director that are subject to hearing under this section and also
involves issues subject to hearing by an Administrative Law Judge
from the board's Hearings Division, the director may direct that
the hearing be conducted by an Administrative Law Judge in lieu
of a hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999.
(5) Hearings under ORS 656.740 shall be conducted by an
Administrative Law Judge of the board's Hearings Division. + }
SECTION 35. ORS 657.270, as amended by section 5, chapter 1067,
Oregon Laws 1999, is amended to read:
657.270. (1) When a request for hearing upon the claim has been
filed, as provided in ORS 657.266 to 657.269, a hearing officer
{ - designated by the Director of the Employment Department - }
{ + from the Hearing Officer Panel established under section 3,
chapter 849, Oregon Laws 1999, + } shall be assigned to conduct
such hearing. The Director { + of the Employment Department + }
shall also notify the parties, in plain language, of their right,
upon their request, to receive by mail copies of all documents
and records in the possession of the Employment Department
relevant to the decision of the authorized representative,
including any statements of the claimant, employer or employer's
agents.
(2) When the hearing is conducted by telephone, the director
shall mail all parties copies of all documents and records in the
possession of the director that will be introduced at the hearing
as exhibits, including any statements of the claimant, employer
or employer's agents, and all jurisdictional documents, at least
seven days prior to the hearing. A party may request that the
hearing be continued in order to receive copies of and respond to
documentary evidence introduced at the hearing and not mailed to
the party prior to the hearing.
(3) After the hearing officer has given all parties reasonable
opportunity for a fair hearing, the hearing officer shall
promptly affirm, modify or set aside the decision of the
authorized representative with respect to the claim and promptly
shall notify all parties entitled to notice of the decision of
the authorized representative, as set forth in ORS 657.266 to
657.269, of the hearing officer's decision and reasons therefor.
The hearing officer may address issues raised by evidence in the
record, including but not limited to the nature of the
separation, notwithstanding the scope of the issues raised by the
parties or the arguments in a party's request for hearing.
(4) Unless the director or any other party to the hearing,
within 20 days after the delivery of such notification, or if
mailed, within 20 days after the same was mailed to the party's
last-known address, files with the Employment Appeals Board an
application for review, such decision shall be final.
(5) When the claimant or the employer is unrepresented at the
hearing, the hearing officer shall explain the issues involved in
the hearing and the matters that the unrepresented claimant or
the employer must either prove or disprove. The hearing officer
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 hearing officer in the case. As
used in this section, a claimant or employer is 'unrepresented'
if not represented by an attorney, paralegal worker, legal
assistant, union representative or person otherwise qualified by
experience or training.
SECTION 36. ORS 657.280, as amended by section 128, chapter
849, Oregon Laws 1999, is amended to read:
657.280. (1) The manner in which disputed claims shall be
presented { - , - } { + and + } the reports thereon required
from the claimant and from the employers { - and the conduct of
hearings - } shall be in accordance with the regulations
prescribed by the Director of the Employment Department { - for
determining the rights of the parties, whether or not such
regulations conform to common law or statutory rules of evidence
and other technical rules of procedure - } .
(2) A full and complete record shall be kept of all proceedings
in connection with the disputed claim. All testimony at any
hearing upon a disputed claim shall be recorded but need not be
transcribed unless the disputed claim is appealed further.
SECTION 37. ORS 657.485, as amended by section 133, chapter
849, Oregon Laws 1999, is amended to read:
657.485. (1) An employer, when notified that the employer has
been determined an employer subject to this chapter, shall also
be notified of the tax rate for the employer as determined
pursuant to this chapter. Such tax rate shall become conclusive
and binding upon the employer unless within 20 days after the
mailing of the notice to the last-known address of the employer
as shown on the records of the Director of the Employment
Department, or in the absence of mailing, within 20 days after
the delivery of such notice, the employer files a request for
hearing with the director, setting forth the reason therefor.
(2) An employer whose rate has been determined in accordance
with the provisions of ORS 657.462, shall be notified of the tax
rate for the employer not later than November 15 of the year
preceding the calendar year for which the rate is applicable. An
employer whose account is open according to the Employment
Department records as of November 15 but whose tax rate was not
determined under ORS 657.462 shall be notified of the tax rate
for the following calendar year by November 15 or as soon as
possible thereafter. Such tax rate shall become conclusive and
binding upon the employer unless, within 20 days after the
mailing of the notice to the last-known address of the employer
as shown by the records of the director or, in the absence of
mailing, within 20 days after the delivery of such notice, the
employer files a written application for review and
redetermination with the director, setting forth the reasons
therefor.
(3) If a valid application is filed within the time provided in
subsection (2) of this section, an authorized representative of
the director shall review the determination and notify the
employer in writing thereof. If the review results in a change in
either the employer's tax rate or information included on the
original tax rate notice, an amended notice shall be provided the
employer.
(4) The decision of the authorized representative reflecting
the result of the review provided for in subsection (3) of this
section shall become final and conclusive and binding upon the
employer unless the employer, within 20 days after delivery of
the notice, or if mailed, within 20 days after the same was
mailed to the last-known address of the employer, files a request
for hearing with the director. The request shall be in writing
and shall state that the decision of the authorized
representative is incorrect and the reasons therefor.
(5) When a valid request for hearing has been filed, as
provided in subsections (1) and (4) of this section, a hearing
shall be conducted by a hearing officer { - designated by the
director - } { + assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999, + }
unless a hearing has previously been afforded the employer on the
same grounds as set forth in the request. The hearing officer
shall give notice of the time and place of hearing to the
director or authorized representative of the director and shall
also give notice to the employer by mail directed to the
last-known address of record with the director. Hearings under
this subsection shall be conducted in accordance with this
chapter { - and the rules of the director - } . The filing of a
request for hearing with respect to a disputed tax rate shall not
affect the right of the director or authorized representative of
the director to perfect any liens provided by this chapter.
(6) After hearing, the hearing officer shall enter findings of
fact and decision either affirming or modifying the tax rate
notice. The employer and the director shall be promptly notified
of the decision of the hearing officer. All testimony at any
hearing held before a hearing officer under this section shall be
recorded but need not be transcribed unless a petition for
judicial review from the decision of the hearing officer is filed
in the manner and within the time prescribed in ORS 657.487.
(7) A decision of the hearing officer shall become final on the
date of notification or the mailing thereof to the director and
to the employer at the last-known address of record with the
director, and shall become conclusive and binding upon the
employer and the director unless a petition for judicial review
is filed in the manner and within the time prescribed in ORS
657.487.
(8) No employer shall have any standing, in any proceeding
involving tax rate or tax liability, to contest the chargeability
to the account of the employer of any benefits paid in accordance
with a determination, redetermination or decision pursuant to ORS
657.265, 657.266 to 657.269 and 657.270 to 657.290, except upon
the ground that the services on the basis of which such benefits
were found to be chargeable did not constitute services performed
in employment for the employer or for a predecessor employer and
only in the event that the employer or the predecessor was not a
party to such determination, redetermination or decision or to
any other proceeding under this chapter in which the character of
such service was determined. At any hearing under this section
the tax rate determined by the director or authorized
representative of the director shall be prima facie correct and
the burden shall be upon the protesting employer to prove it is
incorrect.
SECTION 38. ORS 657.610, as amended by section 138, chapter
849, Oregon Laws 1999, and section 33, chapter 684, Oregon Laws
2001, is amended to read:
657.610. The Director of the Employment Department may:
(1) For purposes of administration and control, and with the
approval of the Governor, organize and reorganize the department
in whatever manner the director considers appropriate to carry
out the duties, functions and powers of the department.
(2) Appoint all subordinate officers and employees of the
department, whether classified or unclassified, and prescribe
their duties and compensation, subject to applicable provisions
of the State Personnel Relations Law.
(3) Delegate to departmental officers and employees such
responsibility and authority as the director determines
necessary.
(4) Determine all questions of general policy and promulgate
rules and regulations and be responsible for the administration
of this chapter.
(5) Sue and be sued in the name of the director, and shall have
a seal bearing the name of the Employment Department.
(6) Adopt proper rules to { - govern proceedings and to - }
regulate the mode and manner of all investigations { - and
hearings before hearing officers appointed by the director - } .
(7) Prescribe the time, place and manner of making claims for
benefits under this chapter, the kind and character of notices
required thereunder and the procedure for investigating and
deciding claims.
(8) Enter into contracts relating to the federal Workforce
Investment Act deemed necessary by the director to fulfill the
mission of the department. The director may enter into contracts
with other states or governments, public bodies or persons to
provide or receive services. Contracts entered into by the
director shall be executed in the name of the state, by and
through the Employment Department.
SECTION 39. ORS 657.630, as amended by section 141, chapter
849, Oregon Laws 1999, is amended to read:
657.630. The Director of the Employment Department may act in
the director's own behalf or by any of the duly authorized agents
or assistants of the director in the following:
(1) To hold sessions at any place within the state.
(2) To administer oaths.
(3) To issue and serve by the director's representative, or by
any sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony. The director may require the attendance and testimony
of employers, their officers and representatives before any
hearing of the director and the production by employers of books,
records, papers and documents without payment or tender of
witness fees on account of that attendance. { - The director or
the authorized agent of the director shall issue subpoenas to any
party upon request upon a showing of general relevance,
reasonable scope of the evidence sought and that the testimony
would not be unduly repetitious. No showing of general relevance
or reasonable scope of the evidence sought shall be required upon
the request for a subpoena of a claimant's personnel records. - }
(4) Generally to provide for the taking of testimony and for
the recording of proceedings held in accordance with this
chapter.
SECTION 40. ORS 657.663, as amended by section 144, chapter
849, Oregon Laws 1999, is amended to read:
657.663. (1) If an employer fails to file a required quarterly
tax report or quarterly detail of employees' wages and hours of
work by the 10th day of the second month following the end of the
calendar quarter, the Director of the Employment Department, for
the first such failure, shall send to the employer at the
employer's last-known address a written notice warning the
employer that a subsequent failure to file a required report
could result in the imposition of a late filing penalty. If an
employer, without good cause, fails to file a required report
within the three-year period immediately following a written
warning, the employer may be assessed a late filing penalty in
addition to other amounts due. The penalty shall be 0.0002 of the
taxable wage base in effect for the year against which the
penalty is being assessed for each employee listed each quarter
on the late filed reports. However, the minimum penalty for any
calendar quarter shall not be less than 0.0025 nor the maximum
penalty more than 0.05 of the taxable wage base in effect for the
year.
(2) The penalty per employee shall be rounded to the nearest
dollar. The minimum penalty shall be rounded to the nearest
five-dollar interval and the maximum penalty shall be rounded to
the nearest $100 interval.
(3) Notwithstanding the provisions of subsection (1) of this
section, an employer who has no payroll during a calendar quarter
shall not be assessed a penalty for the first quarter in which
that employer's report is filed late. Thereafter, the director
may assess a $5 penalty when such employer's reports continue to
be filed late.
(4) The penalty assessed under this section shall be final
unless, within 20 days from the date of mailing of the assessment
to the last-known address of the employer, the employer requests
the penalty be deleted. The request must be in writing and state
the reason why the report was filed late. If the director
determines the employer had good cause for filing the report
late, the penalty shall be deleted. If it is determined there was
not good cause for filing the report late, the request for
deletion shall be denied.
(5) A decision denying the request shall become final, unless
within 20 days from the date of mailing the decision to the
last-known address of the employer, the employer files a request
for hearing. The request for a hearing must be in writing and
state the reasons therefor. { - Hearings shall be conducted in
accordance with rules adopted by the director. - } Judicial
review shall be as provided for review of orders in contested
cases in ORS 183.310 to 183.550, except that the petition shall
be filed within 20 days after the issuance of the order of the
director or a designated representative.
SECTION 41. ORS 657.683, as amended by section 151, chapter
849, Oregon Laws 1999, is amended to read:
657.683. (1) An application for hearing under ORS 657.679 and
657.681 shall be in writing and shall state that such
determination or assessment of the Director of the Employment
Department or authorized representative is unjust or incorrect
and that the employing unit requests a hearing thereon. The
application shall set forth the objections of the employing unit
to the determination or assessment and the amount of
contributions, if any, which the applicant admits to be due to
the Employment Department. An application for a hearing to review
an assessment made under ORS 657.681 (4) which was accompanied by
a demand for a bond or deposit shall not be valid unless such
bond or deposit is filed with the application in a form
acceptable to the director or authorized representative.
(2) If a valid application for hearing is filed within the time
provided by ORS 657.679 and 657.681, a hearing officer
{ - designated by the director - } shall review the
determination or assessment and if requested by the employing
unit shall grant a hearing unless a hearing has previously been
afforded the employing unit on the same grounds as set forth in
the application. The hearing officer shall give notice of the
time and place of the hearing to the director or authorized
representative and shall also give notice to the employing unit
by mail directed to the last-known address of the employing unit
of record with the director.
(3) Hearings under ORS 657.679 and 657.681 shall be conducted
in accordance with this chapter { - and the rules and
regulations of the director - } . The filing of an application
for hearing with respect to a disputed assessment shall not
affect the right of the director or authorized representative to
perfect any liens provided by this chapter.
(4) All testimony at any hearing held under ORS 657.679 and
657.681 shall be recorded but need not be transcribed unless a
petition for judicial review from the decision of the hearing
officer is filed in the manner and within the time prescribed. At
any hearing held as provided in ORS 657.679 and 657.681 the
determination or assessment of the director or authorized
representative shall be prima facie correct and the burden shall
be upon the protesting employing unit to prove that it is
incorrect. Thereafter the hearing officer shall enter the
findings of fact and decision, either affirming, modifying, or
setting aside the determination or assessment of the director or
authorized representative and in the case of an assessment, the
hearing officer may increase or decrease the amount of the
assessment. The employing unit and the director shall be promptly
notified of the decision of the hearing officer.
(5) A decision of the hearing officer shall become final on the
date of notification or the mailing thereof to the director and
to the employing unit at the last-known address of record with
the director unless within the time specified in ORS 183.480 (2)
the hearing officer on the hearing officer's own motion reviews
the same and issues an amended decision in which case the amended
decision becomes the final decision.
SECTION 42. ORS 671.703, as amended by section 4, chapter 198,
Oregon Laws 2001, is amended to read:
671.703. (1) If a person has a claim against a licensed
landscaping business for negligent or improper work performed by
the landscaping business, or for alleged breach of contract by
the landscaping business, the person may file the claim with the
State Landscape Contractors Board.
(2) Upon receipt of a claim that qualifies under subsection (1)
of this section, the board shall initiate an investigation. Upon
completion of the investigation, if the board determines that
facts exist supporting an order for payment, the board may order
the landscaping business to pay the claim. A party to the claim
may request a hearing on the order issued by the board.
(3) Subject to subsection (6) of this section, if the
resolution of a claim under this section requires a hearing, the
board may require that the hearing be conducted as a binding
arbitration under rules adopted by the board under subsection (5)
of this section.
(4) The board may use arbitration to resolve a landscaping
dispute between any parties who agree to follow the rules of the
board, including parties to a dispute not described under
subsection (1) of this section.
(5) Rules adopted by the board to regulate arbitration under
subsections (3) and (4) of this section must substantially
conform with the provisions of ORS 36.300 to 36.365. The rules
may include, but are not limited to, requirements that:
(a) The arbitrator send copies of an arbitration award to the
parties and the board and allow the parties an opportunity to
request reconsideration of the award;
(b) The arbitrator address in writing any issue raised in a
request for reconsideration of the award;
(c) The arbitrator delay submitting to the clerk of the circuit
court an arbitration award that is or may become subject to a
request for reconsideration; and
(d) The request for reconsideration and the arbitrator's
response to the request, including any matter the arbitrator is
required to address, be included with the award of the arbitrator
and the written agreement to submit that is sent to the clerk of
the circuit court under ORS 36.350.
(6) A party to a claim that is subject to a board order of
binding arbitration under subsection (3) of this section may
avoid the arbitration if the party requests to have the claim
resolved through a contested case hearing or files a complaint in
a court. A party making a request or filing a complaint under
this subsection is subject to the following provisions:
(a) If the party requests to have a claim resolved through a
contested case hearing, the party must, within the time specified
in paragraph (c) of this subsection, deliver the request in
writing to the board and to all parties entitled by board rule to
receive a copy of the request.
(b) If the party files a complaint in a court, the party must,
within the time specified in paragraph (c) of this subsection,
deliver a copy of the complaint to the board and to all parties
entitled by the board rule to receive a copy of the complaint. If
the party filing the complaint is the claimant, the claimant must
allege all elements of the claim in the complaint. If the
complaint is filed by the licensed landscaping business against
whom a claim is alleged, the complaint may be a complaint for
damages, a complaint for declaratory judgment or other complaint
that allows the claimant to file a response alleging the elements
of the claim. The claimant has the burden of proving the elements
of the claim in any { - action - } { + complaint + }
described in this paragraph.
(c) A party that is subject to paragraph (a) or (b) of this
subsection must deliver a request or complaint to the board as
described in paragraphs (a) and (b) of this subsection no later
than the 30th day after the board sends notice that an
arbitration hearing has been scheduled. Failure to timely deliver
a request or complaint under this paragraph constitutes consent
to the binding arbitration.
(d) If a party makes a timely request under paragraph (a) of
this subsection for a contested case hearing and another party
timely files a complaint in compliance with paragraph (b) of this
subsection, the filing of the complaint supersedes the request
for a contested case hearing.
(e) A party may not withdraw a request made in compliance with
paragraph (a) of this subsection unless all parties agree to the
withdrawal.
(f) The provisions of paragraph (b) of this subsection are in
addition to any other requirements imposed by law regarding the
filing of a complaint.
(7) An arbitration conducted under subsection (3) or (4) of
this section must be held before a hearing officer
{ - designated by the board to act - } { + acting + } as
arbitrator. { + The hearing officer assigned to act as
arbitrator of the case on behalf of the board must be from the
Hearing Officer Panel established under section 3, chapter 849,
Oregon Laws 1999. The assignment of a hearing officer to act as
arbitrator is subject to a request for a different arbitrator
under section 11, chapter 849, Oregon Laws 1999, or a rule
adopted pursuant to section 11, chapter 849, Oregon Laws
1999. + }
(8) If a party to a claim under subsection (1) of this section
requests a contested case hearing, the board shall schedule the
hearing. If a party requests that the claim be resolved by a
court, the board shall suspend further processing of the claim
until the claim is resolved by an appropriate court.
(9) If the claim is submitted for determination by a court, the
board may require that the claimant provide status reports on the
pending action. The board may dismiss or close a claim filed
under subsection (1) of this section as established by rule of
the board if the claimant fails to submit status reports on a
pending action.
(10) The board shall issue a final order or arbitration award
in a form that indicates the maximum amount payable from the
deposit, bond or letter of credit. If the landscaping business
does not pay the claim on or before the 30th day after receiving
the board order or award, the board shall order the claim paid
out of the deposit, bond or letter of credit filed under ORS
671.690.
(11) The board may dismiss or close a claim as established by
rule of the board if:
(a) The claimant does not permit the person against whom the
claim is filed to be present at any inspection made by the board;
or
(b) The board determines that the person against whom the claim
is filed is capable of complying with recommendations made by the
board relative to the claim, but the claimant does not permit the
person to comply with the recommendations. The board may dismiss
or close a claim under this paragraph only if the person was
licensed at the time the work was first performed and is licensed
at the time the board makes its recommendations.
(12) The board may suspend processing a claim if the board
determines that the nature or complexity of the claim is such
that a court is the appropriate forum for the adjudication of the
claim.
SECTION 43. ORS 677.275, as amended by section 158, chapter
849, Oregon Laws 1999, is amended to read:
677.275. { + (1) + } The Board of Medical Examiners for the
State of Oregon may appoint { - : - }
{ - (1) - } an executive director, who need not be a member
of the board, and fix the compensation. The executive director
shall be under the supervision and control of the board, and may
discharge all duties as provided in the rules of the board or as
directed by the board.
(2) { - One or more hearing officers, who need not be members
of the board, and fix their compensation. - } Each hearing
officer conducting hearings on behalf of the board is vested with
the full authority of the board to schedule and conduct hearings
on behalf and in the name of the board on all matters referred by
the board, including issuance of licenses, proceedings for
placing licensees on probation and for suspension and revocation
of licenses, and shall cause to be prepared and furnished to the
board, for decision thereon by the board, the complete written
transcript of the record of the hearing. This transcript shall
contain all evidence introduced at the hearing and all pleas,
motions and objections, and all rulings of the hearing officer.
Each hearing officer may administer oaths and issue summonses,
notices and subpoenas, but may not place any licensee on
probation or issue, refuse, suspend or revoke a license.
SECTION 44. ORS 678.780, as amended by section 161, chapter
849, Oregon Laws 1999, is amended to read:
678.780. (1) The sanctions authorized by subsection (2) of this
section may be imposed upon the following grounds:
(a) The employment of fraud or deception in applying for or
obtaining a nursing home administrator's license.
(b) Engaging in conduct in the course of acting as a nursing
home administrator involving fraud, dishonesty, malfeasance,
cheating or other conduct as the Board of Examiners of Nursing
Home Administrators of the State of Oregon may prohibit by rule.
(c) Conviction of a crime involving circumstances that relate
to the licensee's fitness to continue practicing as a nursing
home administrator.
(d) Mistake or inadvertence in the issuance of the license by
the board.
(e) Physical or mental incapacity that presents an unreasonable
risk of harm to the licensee or to the person or property of
others in the course of performing the duties of a nursing home
administrator.
(f) Use of any controlled substance or intoxicating liquor in a
manner that impairs the licensee's ability to conduct safely the
practice for which the licensee is licensed.
(g) The licensee has engaged in conduct that would justify
denying a license to an applicant.
(h) Violation of or noncompliance with any applicable
provisions of ORS 678.710 to 678.780, 678.800 to 678.840 and
678.990 (2) or of any lawful rule or order of the board or
continuous or substantial violations of the rules adopted under
ORS 441.055.
(i) Discipline imposed by any other licensing body in this or
any other state based on conduct that would be grounds for
discipline under this section or rules adopted by the board.
(j) Incompetence in performing the duties of a nursing home
administrator as demonstrated by evidence that the licensee
either lacks or did not use the knowledge or skill necessary to
perform the administrator's duties in a minimally adequate
manner.
(k) Employing or otherwise assisting another person to act as a
nursing home administrator with knowledge that the person does
not hold a valid license to practice as a nursing home
administrator.
(L) Failure to pay a civil penalty imposed against the licensee
in a timely manner.
(m) Unprofessional conduct as defined in rules adopted by the
board.
(2) Subject to ORS 183.310 to 183.550, the board may impose any
or all of the following sanctions:
(a) Suspend, revoke or refuse to renew any license required by
ORS 678.720.
(b) A civil penalty not to exceed $1,000.
(c) Probation, with authority to limit or restrict a license.
(d) Participation in a treatment program for intoxicating
liquor or controlled substances.
(3) Hearings under this section must be conducted by a hearing
officer { - designated by the board - } { + assigned from the
Hearing Officer Panel established by section 3, chapter 849,
Oregon Laws 1999 + }.
(4) Information that the board obtains as part of an
investigation into licensee or applicant conduct or as part of a
contested case proceeding, consent order or stipulated agreement
involving licensee or applicant conduct is confidential as
provided under ORS 676.175.
SECTION 45. ORS 687.086, as amended by section 167, chapter
849, Oregon Laws 1999, and section 15a, chapter 1084, Oregon Laws
1999, is amended to read:
687.086. (1) If the State Board of Massage Therapists proposes
to impose any of the sanctions authorized in ORS 687.081 or take
other disciplinary action, opportunity for hearing shall be
accorded as provided in ORS 183.310 to 183.550. Hearings under
this section must be conducted by a hearing officer
{ - designated by the board - } { + assigned from the Hearing
Officer Panel established by section 3, chapter 849, Oregon Laws
1999 + }.
(2) Promulgation of rules, conduct of hearings, issuance of
orders and judicial review of rules and orders shall be as
provided in ORS 183.310 to 183.550.
SECTION 46. ORS 693.105, as amended by section 170, chapter
849, Oregon Laws 1999, is amended to read:
693.105. (1) Where the State Plumbing Board proposes to refuse
to issue or renew any certificate under this chapter, or proposes
to revoke or suspend any such certificate, opportunity for
hearing shall be accorded as provided in ORS 183.310 to 183.550.
(2) Promulgation of rules, conduct of hearings, issuance of
orders and judicial review of rules and orders shall be in
accordance with ORS 183.310 to 183.550.
(3) Hearings under this section must be conducted by a hearing
officer { - designated by the board - } { + assigned from the
Hearing Officer Panel established by section 3, chapter 849,
Oregon Laws 1999 + }.
SECTION 47. ORS 701.147, as amended by section 7b, chapter 414,
Oregon Laws 2001, is amended to read:
701.147. (1) If a party to a claim under ORS 701.145 requests a
contested case hearing, the Construction Contractors Board shall
schedule the hearing. If a claim is filed in a court, the board
shall suspend further processing of the claim until the claim is
resolved by an appropriate court.
(2) If the claim is submitted for determination by a court, the
board may require that the claimant provide status reports on the
pending action. The board may dismiss or close a claim filed
under ORS 701.145 if the claimant fails to submit status reports
on a pending action.
(3) An arbitration conducted under ORS 701.148 (1) or (2) must
be held before a hearing officer { - designated by the board to
act as arbitrator - } { + acting as arbitrator. The hearing
officer assigned to act as arbitrator of the case on behalf of
the board must be from the Hearing Officer Panel established
under section 3, chapter 849, Oregon Laws 1999. The assignment of
a hearing officer to act as arbitrator is subject to a request
for a different arbitrator under section 11, chapter 849, Oregon
Laws 1999, or a rule adopted pursuant to section 11, chapter 849,
Oregon Laws 1999 + }.
(4) Contested case hearings before the board must be conducted
by { - the board or a hearing officer designated by the
board - } { + a hearing officer assigned from the Hearing
Officer Panel established by section 3, chapter 849, Oregon Laws
1999 + }. Notwithstanding ORS 670.325, the board may delegate
authority to the hearing officer to issue a final order in any
matter.
{ + (5) Sections 2 to 21, chapter 849, Oregon Laws 1999, do
not limit in any way the ability of the board to make full use of
alternative dispute resolution, including mediation or
arbitration, to resolve claims against contractors filed under
ORS 701.143.
(6) In assigning hearing officers for arbitration and contested
case hearings conducted under the provisions of this section, the
chief hearing officer of the Hearing Officer Panel established
under section 3, chapter 849, Oregon Laws 1999, shall defer to
board requests. + }
{ - (5) - } { + (7) + } The board, by rule, may require a
deposit not to exceed $100 for the filing of a claim, a request
for hearing or exceptions. The prevailing party may recover a
deposit required by this subsection.
SECTION 48. ORS 737.209, as amended by section 176, chapter
849, Oregon Laws 1999, is amended to read:
737.209. (1) The Director of the Department of Consumer and
Business Services may hold a hearing on a filing made pursuant to
ORS 737.207 if the director determines that such a hearing would
aid the director in determining whether to approve or disapprove
the filing. A hearing under this section may be held at a place
designated by the director and upon not less than 10 days'
written notice to the insurer or rating organization that made
the filing and to any other person the director decides should be
notified. A filing that is the subject of a hearing under this
section becomes effective, if approved, as provided in subsection
(4) of this section.
(2) A hearing held pursuant to subsection (1) of this section
{ - may - } { + must + } be conducted by a hearing officer
{ - designated by the director - } { + assigned from the
Hearing Officer Panel established under section 3, chapter 849,
Oregon Laws 1999 + }. The hearing officer shall report findings,
conclusions and recommendations to the director within 30 days of
the close of the hearing. The insurer or rating organization
proposing the rate filing shall have the burden of proving that
the rate proposal is justified and shall pay to the director the
fair and reasonable costs of the hearing, including actual
necessary expenses.
(3) Within 10 days of receiving a report from the hearing
officer, the director shall issue an order approving or
disapproving the filing.
(4) An order issued under subsection (3) of this section may be
reviewed as provided in ORS 183.480 to 183.550 for review of
contested cases. A filing approved by the director under this
section shall be effective 10 days after the order issued under
subsection (3) of this section and shall remain effective during
any review of the order.
SECTION 49. ORS 776.129, as amended by section 179, chapter
849, Oregon Laws 1999, is amended to read:
776.129. When the Oregon Board of Maritime Pilots establishes
rates described in ORS 776.115 (5), the { - board shall
contract with the Public Utility Commission of Oregon for the use
of hearing officers employed by the commission to conduct the
rate proceeding - } { + hearing shall be conducted by a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999 + }. The hearing officer
shall have the same authority as prescribed in ORS 776.115 (6)
for the conduct of the proceeding. A proposed order issued by the
hearing officer shall be submitted to the board for its adoption,
remand or rejection. The hearing officer and the board may
receive and consider recommendations made by the Economic and
Community Development Department and the Port of Portland.
SECTION 50. ORS 776.375, as amended by section 182, chapter
849, Oregon Laws 1999, is amended to read:
776.375. (1) Where the Oregon Board of Maritime Pilots proposes
to refuse to issue or renew a license to pilot, or proposes to
revoke or suspend a license or proposes to issue a written
reprimand, opportunity for hearing shall be accorded as provided
in ORS 183.310 to 183.550.
(2) Adoption of rules, conduct of hearings, issuance of orders
and judicial review of rules and orders shall be as provided in
ORS 183.310 to 183.550. Contested case hearings { - may - }
{ + shall + } be conducted by a { - member of the board or by
a hearing officer designated by the board - } { + hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999 + }.
SECTION 51. ORS 809.040, as amended by section 185, chapter
849, Oregon Laws 1999, is amended to read:
809.040. (1) When a hearing is required under ORS 809.020 or
809.050, the Department of Transportation shall afford a person
an opportunity of a hearing before the department suspends or
revokes vehicle registration. A hearing described by this
subsection is subject to all of the following:
(a) Before the hearing, the department shall provide the person
with notice meeting the requirements under ORS 809.430.
(b) The hearing, if requested, shall be { - conducted by a
hearing officer designated by the department - } in the county
wherein the person resides unless the person and the department
agree to hold it elsewhere.
(c) The hearing shall be conducted as a contested case in
accordance with ORS 183.310 to 183.550.
{ + (d) The hearing shall be conducted by a hearing officer
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999. + }
(2) The hearing requirements under this section do not apply in
any case where the department finds a serious danger to the
public safety and sets forth specific reasons for such finding.
(3) Judicial review of orders suspending or revoking
registration under this section shall be as provided in ORS
183.310 to 183.550.
SECTION 52. ORS 809.440, as amended by section 191, chapter
849, Oregon Laws 1999, is amended to read:
809.440. This section establishes hearing and administrative
review procedures to be followed when the Department of
Transportation is required to provide a hearing or an
administrative review of an action.
(1) When other procedures described under this section are not
applicable to a suspension or revocation under ORS 809.410, the
procedures described in this subsection shall be applicable. All
of the following apply to this subsection:
(a) The hearing shall be given before the department imposes
the suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation.
(b) Before the hearing, the department shall notify the person
in the manner described in ORS 809.430.
(c) The hearing shall be { - conducted by a hearing officer
designated by the department - } in the county where the person
resides unless the person and the department agree otherwise.
(d) Upon such hearing, the department, good cause appearing
therefor, may impose, continue, modify or extend the suspension
or revocation of the driving privileges.
{ + (e) The hearing shall be conducted by a hearing officer
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999. + }
(2) The following apply when administrative review is provided
under any statute or rule of the department:
(a) An administrative review shall consist of an informal
administrative process to assure prompt and careful review by the
department of the documents upon which an action is based.
(b) It shall be a defense to the department's action if a
petitioner can establish that:
(A) A conviction on which the department's action is based was
for an offense that did not involve a motor vehicle and the
department's action is permitted only if the offense involves a
motor vehicle.
(B) An out-of-state conviction on which the department's action
is based was for an offense that is not comparable to an offense
under Oregon law.
(C) The records relied on by the department identify the wrong
person.
(c) A person requesting administrative review has the burden of
showing by a preponderance of the evidence that the person is not
subject to the action.
(d) Actions subject to administrative review shall be exempt
from the provisions of ORS 183.310 to 183.550 applicable to
contested cases, and from the provisions of subsection (4) of
this section applicable to post-imposition hearings. A
suspension, revocation or cancellation shall not be stayed during
the administrative review process or by the filing of a petition
for judicial review. A court having jurisdiction may order the
suspension, revocation or cancellation stayed pending judicial
review.
(e) Judicial review of a department order affirming a
suspension or revocation after an administrative review shall be
available as for review of orders other than contested cases, and
the department may not be subject to default for failure to
appear in such proceedings. The department shall certify its
record to the court within 20 days after service upon the
department of the petition for judicial review.
(f) If the suspension or revocation is upheld on review by a
court, the suspension or revocation shall be imposed for the
length of time appropriate under the appropriate statute except
that the time shall be reduced by any time prior to the
determination by the court that the suspension or revocation was
in effect and was not stayed.
(g) The department shall adopt any rules governing
administrative review that are considered necessary or convenient
by the department.
(3) When permitted under this section or under any other
statute, a hearing may be expedited under procedures adopted by
the department by rule. The procedures may include a limited time
in which the person may request a hearing, requirements for
telephone hearings, expedited procedures for issuing orders and
expedited notice procedures.
(4) When permitted under ORS 809.410, a hearing may be a
post-imposition hearing under this subsection. A post-imposition
hearing is a hearing that occurs after the department imposes the
suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation. All of the
following apply to this subsection:
(a) The department must provide notice in the manner described
in ORS 809.430 before the suspension or revocation may take
effect.
(b) Except as provided in this subsection, the hearing shall be
conducted as a contested case in accordance with ORS 183.310 to
183.550.
(c) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the person resides or at
any place within 100 miles, as established by the department by
rule.
(5) The department has complied with a requirement for a
hearing or administrative review if the department has provided
an opportunity for hearing or review and the person with the
right to the hearing or review has not requested it. Any request
for hearing or review must be made in writing.
(6) For any hearing described under this section, and for
administrative review described under this section, no further
notice need be given by the department if the suspension or
revocation is based upon a conviction and the court gives notice,
in a form established by the department, of the rights to a
hearing or review and of the suspension or revocation.
SECTION 53. ORS 813.410, as amended by section 194, chapter
849, Oregon Laws 1999, is amended to read:
813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A suspension of driving privileges imposed under this
subsection shall be for a period of time established under ORS
813.420.
(2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person was
driving a commercial motor vehicle and refused to submit to a
test under ORS 813.100 or submitted to a breath or blood test and
the person's blood, as shown by the test, had .04 percent or more
by weight of alcohol, the department shall suspend the person's
commercial driver license on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A commercial driver license suspension imposed under
this subsection shall be for a period of time established under
ORS 813.404.
(3) If within 10 days from the date of arrest, or, if the
person fails a blood test, within 10 days from the date the
department sends notice of suspension, the department receives a
written request for a hearing from a person whose driving
privileges or commercial driver license the department proposes
to suspend under this section, the department shall provide a
hearing in accordance with this section. Except as otherwise
provided under this section, a hearing held by the department
under this section shall be subject to the provisions for
contested cases, other than appeal provisions, under ORS 183.310
to 183.550. The applicable appeal provisions are as provided
under ORS 813.450 and section 24, chapter 672, Oregon Laws 1985.
Notwithstanding ORS 809.430, the department is not required to
give any notice of intent to suspend or suspension in addition to
that provided under ORS 813.100.
(4) A hearing required by this section is subject to all of the
following:
(a) The hearing shall be before a hearing officer
{ - designated by the department - } { + assigned from the
Hearing Officer Panel established under section 3, chapter 849,
Oregon Laws 1999 + }.
(b) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the alleged offense
occurred or at any place within 100 miles of the place where the
offense is alleged to have occurred, as established by the
department by rule.
(c) The department may authorize the hearing officer to issue a
final order in any case.
(d) A person who requests a hearing under this section and who
fails, without just cause, to appear in person or through an
attorney waives the right to a hearing notwithstanding the
provisions of ORS 183.415. If a person waives a right to a
hearing under this paragraph, the department is not required to
make any showing at hearing.
(e) Except as provided in ORS 813.440 or upon remand under ORS
813.450, the department shall hold the hearing and issue a final
order within 30 days of the date of the arrest or, if the person
fails a blood test, within 60 days from the date the department
received the report of the failure.
(f) In connection with the hearing, the department or its
authorized representative may administer oaths and shall issue
subpoenas for the attendance of witnesses at the hearing
requested by the person or the department and the production of
relevant documents.
(g) The hearing shall be recorded by whatever means may be
determined by the department and shall include testimony and
exhibits, if any. The record of the proceedings shall not be
transcribed unless requested by a party to the proceeding.
(5) This subsection shall be narrowly construed so as to effect
the legislative purpose of limiting the scope of hearings under
this section. The scope of a hearing under this section shall be
limited to whether the suspension is valid as described in this
subsection. A suspension under this section is valid if all of
the following requirements have been met:
(a) The person, at the time the person was requested to submit
to a test under ORS 813.100, was under arrest for driving while
under the influence of intoxicants in violation of ORS 813.010 or
a municipal ordinance.
(b) The police had reasonable grounds to believe, at the time
the request was made, that the person arrested had been driving
under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance.
(c) The person refused a test under ORS 813.100, or took a
breath or blood test and the test disclosed that the level of
alcohol in the person's blood at the time of the test was:
(A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
(B) .04 percent or more by weight if the person was driving a
commercial motor vehicle; or
(C) Any amount if the person was under 21 years of age.
(d) If the report under ORS 813.120 indicates that the person
was driving a commercial motor vehicle, the vehicle was in fact a
commercial motor vehicle as defined in ORS 801.208.
(e) The person had been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.
(f) The person was given written notice required under ORS
813.100.
(g) If the person arrested submitted to a test under ORS
813.100, the person administering the test was qualified to
administer the test under ORS 813.160.
(h) If the person arrested submitted to a test under ORS
813.100, the methods, procedures and equipment used in the test
complied with requirements under ORS 813.160.
(6) A suspension imposed under this section shall remain in
effect pending any appeal or remand of a final order issued under
this section and there shall be no stay of the suspension pending
appeal or remand.
(7) Unless a person fails, without just cause, to appear in
person or through an attorney at a hearing requested under this
section, a person shall have the right to appeal any final order
by the department after a hearing under this section by filing a
petition. The following apply to this subsection:
(a) The person shall file the petition in the circuit court for
the county where the person resides or, if the person does not
reside in Oregon, in the circuit court of the county in which the
arrest took place within 30 days after issuance of the final
order of the department.
(b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
petitioner unless hearing is waived by both the department and
the petitioner.
SECTION 54. ORS 813.440, as amended by section 10, chapter 294,
Oregon Laws 2001, is amended to read:
813.440. (1) Notwithstanding ORS 813.410, the Department of
Transportation may provide a hearing to determine the validity of
a suspension under ORS 813.410 only if the time requirements
under ORS 813.410 could not be met because of any of the
following:
(a) The person's physical incapacity, verified by a physician
to the satisfaction of the department to be of a nature that
would prevent the person from making the appropriate request or
attending the hearing.
(b) A death in the immediate family of the person, verified to
the satisfaction of the department.
(c) An error of the department.
(d) The inability of a subpoenaed police officer to appear due
to the officer's illness, vacation or official duty conflicts.
The department shall set forth by rule the conditions that
constitute 'official duty conflicts.' A hearing may not be
rescheduled more than once for reasons described in this
paragraph.
{ + (e) A request for a change of hearing officer under
section 11, chapter 849, Oregon Laws 1999. + }
{ - (e) - } { + (f) + } Other just cause as defined by the
department by administrative rule.
(2) A hearing held under this section is subject to the same
provisions as a hearing held under ORS 813.410, except that the
department is not required to hold the hearing and make the
determination within the time required by ORS 813.410.
(3) The granting of a hearing under this section shall not
delay the imposition of a suspension under ORS 813.410 within the
time required under ORS 813.410. However, if a person establishes
that the person was deprived by either department error or a
subpoenaed police officer's illness, vacation or official duty
conflicts of an opportunity to appear at a hearing, the
department shall rescind the suspension and shall promptly
schedule a subsequent hearing to determine the validity of the
suspension under ORS 813.410. In other cases under this section,
when the department is unable to hold the hearing within the time
required by ORS 813.410, the department shall rescind any
suspension imposed under ORS 813.410 only if the department
determines, at a hearing held under this section, that the
suspension was not valid as described under ORS 813.410.
(4) The following apply to this section:
(a) The department shall issue a final order within 10 days
after the hearing described in this section.
(b) If the department has rescinded a suspension under
subsection (3) of this section and if the department, at the
hearing described in this section, determines that the suspension
is valid as described under ORS 813.410, the department shall
reinstate the suspension effective five days after the final
order is issued.
(c) Notwithstanding ORS 809.430, no additional notice or order
of suspension need be given.
SECTION 55. ORS 813.450, as amended by section 197, chapter
849, Oregon Laws 1999, is amended to read:
813.450. (1) The petition to the circuit court appealing an
order of the Department of Transportation after a hearing under
ORS 813.410 shall state the nature of the petitioner's interest
and the ground or grounds upon which the petitioner contends the
order should be reversed or remanded.
(2) The court shall conduct the review without a jury. Review
shall be limited to the record of the department's hearing.
(3) Any party to the proceedings before the circuit court may
appeal from the judgment of the court to the Court of Appeals.
(4) Upon review in the circuit court and Court of Appeals, the
court may affirm, reverse or remand the order as follows:
(a) If the court finds that the department has erroneously
interpreted a provision of law and that a correct interpretation
compels a particular action, it shall:
(A) Set aside or modify the order; or
(B) Remand the case to the department for further action under
a correct interpretation of the provision of law.
(b) The court shall remand the order to the department if it
finds the department's exercise of discretion to be any of the
following:
(A) Outside the range of discretion delegated to the agency by
law.
(B) Inconsistent with a department rule, an officially stated
department position, or a prior department practice, if the
inconsistency is not explained by the department.
(C) Otherwise in violation of a constitutional or statutory
provision.
(c) The court shall set aside or remand the order if it finds
that the order is not supported by substantial evidence in the
record.
(5) Upon review, the court shall affirm the department's order
unless the court finds a ground for setting aside, modifying or
remanding to the department under a specified provision of this
section.
{ + (6) In any review under this section, the court shall
also review de novo determinations made by an agency that are
subject to section 12 (4), chapter 849, Oregon Laws 1999. + }
SECTION 56. ORS 822.080, as amended by section 200, chapter
849, Oregon Laws 1999, and section 8, chapter 820, Oregon Laws
2001, is amended to read:
822.080. (1) Civil penalties under ORS 822.009 or 822.075 shall
be imposed in the manner provided in ORS 183.090.
(2) An application for a hearing on a civil penalty imposed
under ORS 822.009 or 822.075:
(a) Must be in writing;
(b) Must be postmarked or received by the Department of
Transportation within 20 days from the date of service of the
notice provided for in ORS 183.090;
(c) Must state the name and address of the person requesting a
hearing; and
(d) Must state the action being contested.
(3) Hearings on civil penalties imposed under ORS 822.009 or
822.075 shall be conducted by a hearing officer { - designated
by the department - } { + assigned from the Hearing Officer
Panel established under section 3, chapter 849, Oregon Laws
1999 + }.
(4) The department may, at its option, assign any unpaid civil
penalty to the Department of Revenue for collection. The
Department of Revenue shall deduct reasonable expenses from any
amounts collected.
(5) All civil penalties received under ORS 822.009 or 822.075
shall be paid into the State Treasury each month and credited to
the Department of Transportation Operating Fund established by
ORS 184.642 (1) and (2).
SECTION 57. ORS 701.160 is amended to read:
701.160. Notwithstanding ORS 9.320:
(1) A party may appear or be represented by an individual who
is not a member of the Oregon State Bar in a proceeding
{ - before - } { + conducted by + } the Construction
Contractors Board { - or a representative of the board, - }
if:
(a) The party is a corporation and the individual is an officer
of the corporation;
(b) The party is a partnership, or a limited liability
partnership or foreign limited liability partnership as those
terms are defined in ORS 67.005, and the individual is a partner
in the partnership, limited liability partnership or foreign
limited liability partnership;
(c) The party is a limited partnership as defined in ORS 70.005
and the individual is a general partner in the partnership;
(d) The party is a manager-managed limited liability company as
defined in ORS 63.001 and the individual is a manager of the
company; or
(e) The party is a member-managed limited liability company as
defined in ORS 63.001 and the individual is a member of the
company.
(2) In addition to parties described in subsection (1) of this
section, the board, by rule, may recognize particular business
forms as parties that may appear or be represented by an
individual who is not a member of the Oregon State Bar in a
proceeding { - before - } { + conducted by + } the board
{ - or a representative of the board - } . A board rule adopted
under this subsection must identify the business form of the
party and specify the required relationship between the party and
the individual. The board may allow appearance or representation
of a party only by an individual who is a director, officer,
partner, trustee, manager or authorized regular employee of the
party.
SECTION 58. { + The unit captions used in this 2003 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2003 Act. + }
SECTION 59. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect on
its passage. + }
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