Chapter 109 Oregon Laws 2005

AN ACT

HB 2029

Relating to semi-independent state agencies; creating new provisions; amending ORS 182.454, 182.472, 279A.025, 674.305, 674.330, 674.340, 674.850 and 674.990; repealing ORS 674.343, 674.346, 674.349, 674.352, 674.355, 674.358, 674.361, 674.364 and 674.367; appropriating money; and declaring an emergency.

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

SECTION 1. ORS 182.472 is amended to read:

182.472. Not later than [the first day of each regular session of the Legislative Assembly] January 1 of each even-numbered year, each board subject to ORS 182.456 to 182.472shall submit a report to the Governor [and the Legislative Assembly as provided in ORS 192.245], the President of the Senate, the Speaker of the House of Representatives and the Legislative Fiscal Officer. The Legislative Fiscal Officer shall review the reports and shall prepare and submit a statement of findings and conclusions to the Joint Legislative Audit Committee. [For each board, the report shall] The report must include the following:

(1) A copy of the most recent audit of the board. [required by ORS 182.464;]

[(2) A copy of any budget adopted by the board for the subsequent biennium in accordance with ORS 182.462;]

[(3) A description of the public hearing process for setting budgets;]

[(4) A description of fee changes and justifications for fee changes;]

[(5) A description of the number of licenses, permits, certificates and registrations applied for, issued and revoked;]

[(6) A description of the number of complaints reported and investigated and a list of the number and types of sanctions imposed;]

[(7) A description of all rules adopted or repealed, including temporary and permanent rules;]

[(8) A description of the number of public meetings or work sessions held by the board;]

[(9) A description of the board’s consumer publications and outreach programs;]

[(10) An explanation of any revenue increase causing revenue to exceed 1995-1997 budget levels, including what portion of the increase, if any, is due to an increase in the number of licenses issued;]

[(11) An explanation of how any revenue increase that caused revenue to exceed 1995-1997 budget levels was expended;]

[(12) An explanation of how the board has adequately and effectively discharged the lawful responsibilities of the board concerning:]

[(a) Licensing;]

[(b) Enforcement;]

[(c) Consumer and professional education and information;]

[(d) Responses to consumer complaints; and]

[(e) Responses to requests from the Governor’s office; and]

[(13) A statement of whether the personnel policies and contracting and purchasing procedures followed by the board:]

[(a) Comply with applicable state and federal law; and]

[(b) Have resulted in time or resource savings and the amount and use made of any such savings.]

(2) A copy of the actual budget for the prior biennium and a copy of the board’s adopted budget for the biennium in which the report is made. The budget documents must show:

(a) The beginning balance and ending balance for each of the two biennia;

(b) A description of material changes between the two biennia;

(c) A description of the public hearing process used to establish the budget adopted for the current biennium; and

(d) A description of current fees and proposed changes to fees, along with information supporting the amounts of the current fees and any proposed changes to the fees.

(3) A description of all temporary and permanent rules adopted by the board since the last report was submitted.

(4) A description of board actions promoting consumer protection that were taken since the last report was submitted.

(5) If the board issues licenses, a description of the board’s licensing activities performed since the last report that is adequate to allow evaluation of the board’s performance of its licensing responsibilities, including:

(a) The number of license applications;

(b) The number of licenses issued;

(c) The number of examinations conducted;

(d) The average time between application for and issuance of licenses;

(e) The number and types of complaints received about persons holding licenses;

(f) The number and types of investigations conducted;

(g) The number and types of resolutions of complaints;

(h) The number and type of sanctions imposed; and

(i) The number of days between beginning an investigation and reaching a resolution.

(6) A description of all other actions taken since the last report in the performance of the board’s statutory responsibilities that is adequate to allow evaluation of the board’s performance.

SECTION 2. ORS 182.454 is amended to read:

182.454. The following semi-independent state agencies are subject to ORS 182.456 to 182.472:

(1) The Appraiser Certification and Licensure Board.

[(1)] (2) The State Board of Architect Examiners.

[(2) The State Landscape Architect Board.]

(3) The State Board of Examiners for Engineering and Land Surveying.

(4) The State Board of Geologist Examiners.

(5) The State Landscape Architect Board.

[(5)] (6) The Oregon Board of Optometry.

[(6)] (7) The Oregon Patient Safety Commission.

[(7)] (8) The Oregon Wine Board.

SECTION 3. ORS 279A.025 is amended to read:

279A.025. (1) Except as provided in subsections (2) to (4) of this section, the Public Contracting Code applies to all public contracting.

(2) The Public Contracting Code does not apply to:

(a) Contracts between contracting agencies or between contracting agencies and the federal government;

(b) Insurance and service contracts as provided for under ORS 414.115, 414.125, 414.135 and 414.145 for purposes of source selection;

(d) Contracts for professional or expert witnesses or consultants to provide services or testimony relating to existing or potential litigation or legal matters in which a public body is or may become interested;

(e) Acquisitions or disposals of real property or interest in real property;

(f) Sole-source expenditures when rates are set by law or ordinance for purposes of source selection;

(g) Contracts for the procurement or distribution of textbooks;

(h) Procurements by a contracting agency from an Oregon Corrections Enterprises program;

(i) The procurement, transportation or distribution of distilled liquor, as defined in ORS 471.001, or the appointment of agents under ORS 471.750 by the Oregon Liquor Control Commission;

(j) Contracts entered into under ORS chapter 180 between the Attorney General and private counsel or special legal assistants;

(k) Contracts for the sale of forest products, as defined in ORS 321.005, from lands owned or managed by the State Board of Forestry and the State Forestry Department;

(L) Contracts for forest protection or forest related activities, as described in ORS 477.406, by the State Forester or the State Board of Forestry;

(m) Sponsorship agreements entered into by the Director of the Oregon State Fair and Exposition Center in accordance with ORS 565.080 (4);

(n) Contracts entered into by the Housing and Community Services Department in exercising the department’s duties prescribed in ORS chapters 456 and 458, except that the department’s public contracting for goods and services, as defined in ORS 279B.005, is subject to ORS chapter 279B;

(o) Contracts entered into by the State Treasurer in exercising the powers of that office prescribed in ORS chapters 178, 286, 287, 288, 289, 293, 294 and 295, including but not limited to investment contracts and agreements, banking services, clearing house services and collateralization agreements, bond documents, certificates of participation and other debt repayment agreements, and any associated contracts, agreements and documents, regardless of whether the obligations that the contracts, agreements or documents establish are general, special or limited, except that the State Treasurer’s public contracting for goods and services, as defined in ORS 279B.005, is subject to ORS chapter 279B;

(p) Energy savings performance contracts;

(q) Contracts, agreements or other documents entered into, issued or established in connection with:

(A) The incurring of debt by a public body, including but not limited to the issuance of bonds, certificates of participation and other debt repayment obligations, and any associated contracts, agreements or other documents, regardless of whether the obligations that the contracts, agreements or other documents establish are general, special or limited;

(B) The making of program loans and similar extensions or advances of funds, aid or assistance by a public body to a public or private body for the purpose of carrying out, promoting or sustaining activities or programs authorized by law; or

(C) The investment of funds by a public body as authorized by law, and other financial transactions of a public body that by their character cannot practically be established under the competitive contractor selection procedures of ORS 279B.050 to 279B.085;

(r) Contracts for employee benefit plans as provided in ORS 243.105 (1), 243.125 (4), 243.221, 243.275, 243.291, 243.303 and 243.565; or

(s) Any other public contracting of a public body specifically exempted from the code by another provision of law.

(3) The Public Contracting Code does not apply to the public contracting activities of:

(a) The Oregon State Lottery Commission;

(b) The Oregon University System and member institutions, except as provided in ORS 351.086;

(d) The judicial department;

(e) Semi-independent state agencies listed in ORS 182.451, 182.452 and 182.454, except as provided in ORS 279.835 to 279.855 and 279A.250 to 279A.290;

(f) Oregon Corrections Enterprises;

(g) The Oregon Film and Video Office, except as provided in ORS 279A.100 and 279A.250 to 279A.290;

(h) The Travel Information Council, except as provided in ORS 279A.250 to 279A.290; or

[(i) The Appraiser Certification and Licensure Board, except as provided in ORS 279.835 to 279.855 and 279A.250 to 279A.290; or]

[(j)] (i) Any other public body specifically exempted from the code by another provision of law.

(4) ORS 279A.200 to 279A.225 and 279B.050 to 279B.085 do not apply to contracts made with qualified nonprofit agencies providing employment opportunities for disabled individuals under ORS 279.835 to 279.855.

SECTION 4. ORS 674.305 is amended to read:

674.305. (1) The Appraiser Certification and Licensure Board is established. The board shall operate as a semi-independent state agency subject to ORS [674.346 to 674.367] 182.456 to 182.472 for purposes of carrying out the provisions of this chapter. The board shall consist of seven members. The members shall be appointed by the Governor and must be residents of this state.

(2) The board shall be composed of:

(a) Five appraisers certified or licensed under ORS 674.310;

(b) One individual who is employed by a financial institution or a mortgage banker; and

(A) Is not engaged in professional real estate activity;

(B) Is not a state certified or state licensed appraiser;

(D) Does not have a direct financial interest in any person who is required, or whose employees or agents are required, to be state licensed or state certified appraisers.

(3) The term of office of each member is four years with two terms maximum, but a member serves at the pleasure of the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term. A member may not be appointed to serve more than two consecutive terms on the board.

[(4) A member of the board is entitled to compensation and expenses as provided in ORS 292.495.]

[(5)] (4) The board shall select one of its members as chairperson and another as vice chairperson, for such terms and with duties and powers necessary for the performance of the functions of such offices as the board determines.

[(6)] (5) A majority of the members of the board constitutes a quorum for the transaction of business.

[(7)] (6) The board shall meet at least once every three months at a place, day and hour determined by the board. The board also shall meet at other times and places specified by the call of the chairperson or of a majority of the members of the board.

[(8)] (7) In accordance with applicable provisions of ORS chapter 183, the board shall adopt rules necessary for the administration of this chapter.

[(9)] (8) The appointment of a member of the board is subject to confirmation by the Senate in the manner prescribed in ORS 171.562 and 171.565.

[(10) The chairperson shall appoint an administrator subject to the approval of the board who shall be in the unclassified service and fix the compensation of such officer.]

SECTION 5. ORS 674.330 is amended to read:

674.330. (1) The Appraiser Certification and Licensure Board shall collect from each state certified appraiser and each state licensed appraiser an annual registry fee as required by the federal Act and in an amount determined by the Appraisal Subcommittee. All annual registry fees collected by the board under this subsection shall be remitted to the Federal Financial Institutions Examination Council in accordance with the federal Act.

(2) Except as provided in subsection (1) of this section and in addition to any fees required by subsection (1) of this section, the board [shall] may establish by rule [the amounts for] fees to be charged and collected under this chapter. [The amounts for fees established by the board under this section shall not exceed the costs of administering the programs and the following maximum amounts for fees:] The fees established by the board may include, but need not be limited to, fees:

(a) For each certification or licensure examination administered under ORS 674.310[, the actual costs of the board to purchase the examination].

(b) For each certificate or license awarded or issued under ORS 674.310[, $350].

(d) For each duplicate certificate or license, where the original license is lost or destroyed and affidavit made thereof[, $10].

(e) For the renewal of an inactive certificate or license[, $50].

(f) For the reactivation of an inactive certificate or license[, $60].

(g) For late renewal, in addition to the renewal fee[, $50].

(h) For a temporary registration provided for under ORS 674.120[, $100].

(i) For each application[, $75].

(j) For inactive status[, $200].

(k) For each walk-in examination[, $15].

(L) For each appraiser assistant registration[, $75].

(m) For each appraiser assistant renewal[, $75].

SECTION 6. ORS 674.340 is amended to read:

674.340. (1) All moneys, fees and charges collected or received by the Appraiser Certification and Licensure Board pursuant to ORS 674.330 shall be paid into the account created by the board under ORS [674.364] 182.470. All moneys in the account are appropriated continuously to the board to carry out the duties that the board is charged with administering.

(2) The Federal Registry Fund is established in the account created by the board under ORS [674.364] 182.470. Proceeds received under ORS 674.330 (1) shall be deposited in the Federal Registry Fund. The moneys in the Federal Registry Fund shall be used solely as set forth in ORS 674.330 (1).

SECTION 7. ORS 674.850 is amended to read:

674.850. (1) The Appraiser Certification and Licensure Board may impose a civil penalty on any person who violates any provision of ORS 674.130 to 674.150, 674.310 and 674.330, or any rule or final order of the [Appraiser Certification and Licensure] board or any final judgment made by any court upon application of the board.[, may be required to forfeit and pay to the General Fund of the State Treasury a civil penalty in an amount determined by the board of not] The amount of the civil penalty may not be more than $500 for each offense. Each violation shall be deemed a separate offense.

(2) Civil penalties under this section shall be imposed as provided in ORS 183.745.

(3) The provisions of this section are in addition to and not in lieu of any other enforcement provision contained in ORS 674.130 to 674.150, 674.310 and 674.330.

(4) The remedies provided in subsections (1) to (3) of this section are in addition to and not exclusive of any other remedies provided by law.

SECTION 8. ORS 674.990 is amended to read:

674.990. (1) Violation of ORS 674.100 (1) is a Class A misdemeanor.

(2) Any officer, director or shareholder or agent of a corporation, or member or agent of a partnership or association, who personally participates in or is an accessory to any violation of ORS 674.100 (1) by the partnership, association or corporation, is subject to the penalties prescribed in subsection (1) of this section.

(3) [Any person who violates ORS 674.100 (1) may be required by the Appraiser Certification and Licensure Board to forfeit and pay to the General Fund of the State Treasury a civil penalty in an amount determined by the board of:] The Appraiser Certification and Licensure Board may impose a civil penalty on a person who violates ORS 674.100 (1). The amount of the civil penalty must be:

(a) Not less than $100 nor more than $500 for the first offense of uncertified or unlicensed real estate appraisal activity; and

(b) Not less than $500 nor more than $1,000 for the second and subsequent offenses of uncertified or unlicensed real estate appraisal activity.

(4) In addition to the civil penalties set forth in subsection (3) of this section, any person who violates ORS 674.100 (1) may be required by the board to [forfeit and pay to the General Fund of the State Treasury] pay a civil penalty in an amount determined by the board, [but] not to exceed the amount by which [such] the person profited in any transaction that violates ORS 674.100 (1).

(5) When an order assessing a civil penalty under this section becomes final by operation of law or on appeal, and the amount of penalty is not paid within 10 days after the order becomes final, the order may be recorded with the county clerk in any county of this state. The clerk shall thereupon record the name of the person incurring the penalty and the amount of the penalty in the County Clerk Lien Record.

(6) Civil penalties under this section shall be imposed as provided in ORS 183.745.

(7) The civil penalty provisions of subsections (3) and (4) of this section are in addition to and not in lieu of the criminal penalties for unlicensed real estate appraisal activity in subsections (1) and (2) of this section.

SECTION 9. ORS 674.343, 674.346, 674.349, 674.352, 674.355, 674.358, 674.361, 674.364 and 674.367 are repealed.

SECTION 10. (1) Rules validly adopted by the Appraiser Certification and Licensure Board and in effect immediately prior to the effective date of this 2005 Act, including but not limited to rules adopting fees and rules establishing a board budget, shall continue in effect until amended, repealed or superseded by board action.

(2) ORS 182.460 and 182.468, the amendments to ORS 182.454 by section 2 of this 2005 Act and the repeal of ORS 674.349 and 674.361 by section 9 of this 2005 Act do not affect the status of any person employed by the board, any collective bargaining unit as the appropriate bargaining unit for board employees or any collective bargaining agreement.

(3) The account established by the board under ORS 674.364, as set forth in the 2003 Edition of Oregon Revised Statutes, shall be treated for all purposes as an account established under ORS 182.470.

(4) The amendments to ORS 674.850 and 674.990 by sections 7 and 8 of this 2005 Act apply to civil penalties imposed on or after the effective date of this 2005 Act. Notwithstanding ORS 182.470, any moneys collected by the board after the effective date of this 2005 Act for civil penalties imposed before the effective date of this 2005 Act shall be forwarded by the board for deposit to the General Fund.

(5) The amendments to ORS 182.454, 182.472, 279A.025, 674.305, 674.330, 674.340, 674.850 and 674.990 by sections 1 to 8 of this 2005 Act and the repeal of ORS 674.343, 674.346, 674.349, 674.352, 674.355, 674.358, 674.361, 674.364 and 674.367 by section 9 of this 2005 Act do not affect the status of any:

(a) Suit;

(b) Interest in real or personal property;

(c) Suspension, revocation, probation, disqualification or other limitation or condition on holding a certificate or license; or

(d) Liability, duty or obligation incurred prior to the effective date of this 2005 Act.

SECTION 11. This 2005 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2005 Act takes effect on its passage.

Approved by the Governor June 6, 2005

Filed in the office of Secretary of State June 7, 2005

Effective date June 6, 2005

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