Chapter 288
AN ACT
HB 2423
Relating to contested case proceedings; creating new provisions; and
amending ORS 35.520, 58.355, 161.346, 181.661, 183.310, 183.315, 183.413,
183.415, 183.480, 279B.425, 279C.450, 351.088, 352.360, 701.145, 776.129 and
813.410.
Be It Enacted by the People of
the State of
SECTION 1. ORS 183.413 is amended to read:
183.413. (1) The
Legislative Assembly finds that [the
citizens of this state] parties to a contested case hearing have a
right to be informed as to the procedures by which contested cases are heard by
state agencies, their rights in hearings before state agencies, the import and
effect of hearings before state agencies and their rights and remedies with
respect to actions taken by state agencies. Accordingly, it is the purpose of
subsections (2) [to (4)] and (3)
of this section to set forth certain requirements of state agencies so that [citizens] parties to contested case
hearings shall be fully informed as to these matters when exercising their
rights before state agencies.
(2) Prior to the
commencement of a contested case hearing before any agency including those
agencies identified in ORS 183.315, the agency shall [inform] serve personally or by mail a written notice to each
party to the hearing [of the following
matters] that includes the following:
(a) 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 statement that
generally identifies the issues to be considered at the hearing.
(d) A statement
indicating that the party may be represented by counsel and that
legal aid organizations may be able to assist a party with limited
financial resources.
(e) A statement that the
party has the right to respond to all issues properly before the presiding
officer and present evidence and witnesses on those issues.
(f) A statement
indicating whether discovery is permitted and, if so, how discovery may be
requested.
[(a)] (g) [If a party
is not represented by an attorney,] A general description of the hearing
procedure including the order of presentation of evidence, what kinds of
evidence are admissible, whether objections may be made to the introduction of
evidence and what kind of objections may be made and an explanation of the
burdens of proof or burdens of going forward with the evidence.
[(b)] (h) Whether a record will be
made of the proceedings and the manner of making the record and its
availability to the parties.
[(c)] (i) The function of the
record-making with respect to the perpetuation of the testimony and evidence
and with respect to any appeal from the determination or order of the agency.
[(d)] (j) Whether an attorney will
represent the agency in the matters to be heard and whether the parties ordinarily
and customarily are represented by an attorney.
[(e)] (k) The title and function of the person presiding at
the hearing with respect to the decision process, including, but not limited
to, the manner in which the testimony and evidence taken by the person
presiding at the hearing are reviewed, the effect of that person’s
determination, who makes the final determination on behalf of the agency,
whether the person presiding at the hearing is or is not an employee, officer
or other representative of the agency and whether that person has the authority
to make a final independent determination.
[(f)] (L) In the event a party is not represented by an
attorney, whether the party may during the course of proceedings request a
recess if at that point the party determines that representation by an attorney
is necessary to the protection of the party’s rights.
[(g)] (m) Whether there exists an opportunity for an
adjournment at the end of the hearing if the party then determines that
additional evidence should be brought to the attention of the agency and the
hearing reopened.
[(h)] (n) Whether there exists an opportunity after the
hearing and prior to the final determination or order of the agency to review
and object to any proposed findings of fact, conclusions of law, summary of
evidence or recommendations of the officer presiding at the hearing.
[(i)] (o) A description of the
appeal process from the determination or order of the agency.
[(3) The information required to be given to a party to a hearing under
subsection (2) of this section may be given in writing or orally before
commencement of the hearing.]
[(4)] (3) The failure of an agency to give notice of any item
specified in subsection (2) of this section[,
shall] does not invalidate any determination or order of the agency
unless upon an appeal from or review of the determination or order a court
finds that the failure affects the substantial rights of the complaining party.
In the event of such a finding, the court shall remand the matter to the agency
for a reopening of the hearing and shall direct the agency as to what steps it
shall take to remedy the prejudice to the rights of the complaining party.
SECTION 2. ORS 183.415 is amended to read:
183.415. (1) The
Legislative Assembly finds that persons affected by actions taken by state
agencies have a right to be informed of their rights and remedies with respect
to the actions.
[(1)] (2) 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)] (3) [The notice
shall] Notice under this section must include:
(a) A statement of the
party’s right to hearing, [or a statement
of the time and place of the hearing] with a description of the
procedure and time to request a 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[.]; and
(e) A statement
indicating whether and under what circumstances an order by default may be
entered.
[(3) Parties may elect to be represented by counsel and to respond and
present evidence and argument on all issues involved.]
[(4) Agencies may adopt rules of procedure governing participation in
contested cases by persons appearing as limited parties.]
[(5)(a) Unless precluded by law, informal
disposition may be made of any contested case by stipulation, agreed
settlement, consent order or default. Informal settlement may be made in
license revocation proceedings by written agreement of the parties and the
agency consenting to a suspension, fine or other form
of intermediate sanction.]
[(b) Any informal disposition of a contested case, other than an
informal disposition by default, must be in writing and signed by the party or
parties to the contested case. The agency shall incorporate that disposition
into a final order. An order under this paragraph is not subject to ORS
183.470. The agency shall deliver or mail a copy of the order to each party,
or, if applicable, to the party’s attorney of record. An order that
incorporates the informal disposition is a final order in a contested case, but
is not subject to judicial review. A party may petition the agency to set aside
a final order that incorporates the informal disposition on the ground that the
informal disposition was obtained by fraud or duress.]
[(6) An order adverse to a party may be issued upon default only upon
prima facie case made on the record of the agency. When an order is effective
only if a request for hearing is not made by the party, the record may be made
at the time of issuance of the order, and if the order is based only on
material included in the application or other submissions of the party, the
agency may so certify and so notify the party, and such material shall
constitute the evidentiary record of the proceeding if hearing is not
requested.]
[(7) At the commencement of the hearing, the officer presiding shall
explain the issues involved in the hearing and the matters that the parties
must either prove or disprove.]
[(8) Testimony shall be taken upon oath or affirmation of the witness
from whom received. The officer presiding at the
hearing shall administer oaths or affirmations to witnesses.]
[(9) The officer presiding at the hearing shall place on the record a
statement of the substance of any written or oral ex parte communications on a
fact in issue made to the officer during the pendency of the proceeding and
notify the parties of the communication and of their right to rebut such
communications. If an ex parte communication is made to an administrative law
judge assigned from the Office of Administrative Hearings established by ORS
183.605, the administrative law judge must comply with ORS 183.685.]
[(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
an administrative law judge.]
[(12) A verbatim oral, written or mechanical record shall be made of all
motions, rulings and testimony. The record need not be transcribed unless
requested for purposes of rehearing or court review. The agency may charge the
party requesting transcription the cost of a copy of transcription, unless the
party files an appropriate affidavit of indigency. However, upon petition, a court
having jurisdiction to review under ORS 183.480 may reduce or eliminate the
charge upon finding that it is equitable to do so, or that matters of general
interest would be determined by review of the order of the agency.]
SECTION 3. Section 4 of this 2007 Act is added to and
made a part of ORS 183.415 to 183.430.
SECTION 4. (1) In a contested case proceeding, the
parties may elect to be represented by counsel and to respond and present
evidence and argument on all issues properly before the presiding officer in
the proceeding.
(2) Agencies may adopt
rules of procedure governing participation in contested case proceedings by
persons appearing as limited parties.
(3)(a) Unless prohibited
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 and to the attorney of record if the
party is represented. 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.
(4) An order adverse to
a party may be issued upon default only if a prima facie case is made on the
record. The record on a default order includes all materials submitted by the
party. The record on a default order may be made at the time of issuance of the
order. If the record on the default order consists solely of an application and
other materials submitted by the party, the agency shall so note in the order.
(5) At the commencement
of a contested case hearing, the officer presiding at the hearing shall explain
the issues involved in the hearing and the matters that the parties must either
prove or disprove.
(6) Testimony at a
contested case hearing shall be taken upon oath or affirmation of the witness.
The officer presiding at the hearing shall administer oaths or affirmations to
witnesses.
(7) The officer
presiding at the hearing shall place on the record a statement of the substance
of any written or oral ex parte communication 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 the communication. If an ex parte
communication is made to an administrative law judge assigned from the Office
of Administrative Hearings established under ORS 183.605, the administrative
law judge must comply with ORS 183.685.
(8) 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 and the correct
application of the law to those facts.
(9) 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 communication that must be disclosed under subsection (7) of this
section and that was 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 an administrative law
judge.
(10) A verbatim oral,
written or mechanical record shall be made of all motions, rulings and
testimony in a contested case proceeding. 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. 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 5. ORS 35.520 is amended to read:
35.520. Any person who
applies for relocation benefits or assistance under ORS 35.510 shall receive
the public entity’s written decision on the application, which shall
include the statement of [the] any
amount awarded, [if any,] the
statutory basis for the award[,] and
the statement of any finding of fact that the public entity made in arriving at
its decision. A person aggrieved by [said
written] the decision shall be entitled to a hearing substantially
of the character required by ORS [183.415,
183.425, 183.450, 183.460 and] 183.413 to 183.470, unless federal,
state or local law provides otherwise. Notice required by ORS 183.415 must be
served within 180 days of the receipt of the written decision by the aggrieved
party. The decision of the public entity shall be reviewable pursuant to ORS
183.480.
SECTION 6. ORS 58.355 is amended to read:
58.355. (1) The regulatory board may suspend, revoke or refuse to issue
or renew any certificate of registration for any of the following reasons:
(a) The revocation or
suspension of the license of any officer, director, shareholder or employee not
promptly suspended or discharged by the corporation;
(b) The death of the
last remaining shareholder; or
(c) Upon finding that
the holder of or applicant for a certificate has failed to comply with the
provisions of this chapter or the regulations prescribed by the regulatory
board pursuant to this chapter.
(2) Before any
certificate of registration is denied, suspended or revoked by the regulatory
board, notice and hearing shall be provided in accordance with ORS [183.415] 183.413 to 183.470.
(3) Except as provided
in ORS 58.365, any corporation may appeal from the final order of the
regulatory board as provided in ORS 183.480.
SECTION 7. ORS 161.346 is amended to read:
161.346. (1) The
Psychiatric Security Review Board shall conduct hearings upon any application
for discharge, conditional release, commitment or modification filed pursuant
to ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS 161.336 to
161.351 and shall make findings on the issues before it which may include:
(a) If the board finds
that the person is no longer affected by mental disease or defect, or, if so
affected, no longer presents a substantial danger to others, the board shall
order the person discharged from commitment or from conditional release.
(b) If the board finds
that the person is still affected by a mental disease or defect and is a
substantial danger to others, but can be controlled adequately if conditionally
released with treatment as a condition of release, the board shall order the
person conditionally released as provided in ORS 161.336.
(c) If the board finds
that the person has not recovered from the mental disease or defect and is a
substantial danger to others and cannot adequately be controlled if
conditionally released on supervision, the board shall order the person
committed to, or retained in, a state hospital designated by the Department of
Human Services if the person is at least 18 years of age, or a secure intensive
community inpatient facility designated by the Department of Human Services if
the person is under 18 years of age, for care, custody and treatment.
(2) At any time, the
board may appoint a psychiatrist or licensed psychologist to examine the person
and to submit a report to the board. Reports filed with the board pursuant to
the examination shall include, but need not be limited to, an opinion as to the
mental condition of the person and whether the person presents a substantial
danger to others, and whether the person could be adequately controlled with
treatment as a condition of release. To facilitate the examination of the
person, the board may order the person placed in the temporary custody of any
state hospital or other suitable facility.
(3) The board may make
the determination regarding discharge or conditional release based upon the
written reports submitted pursuant to this section. If any member of the board
desires further information from the examining psychiatrist or licensed
psychologist who submitted the report, these persons shall be summoned by the
board to give testimony. The board shall consider all evidence available to it
which is material, relevant and reliable regarding the issues before the board.
Such evidence may include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by any other
interested party, including the person, and information concerning the person’s
mental condition and the entire psychiatric and criminal history of the person.
All evidence of a type commonly relied upon by reasonably prudent persons in
the conduct of their serious affairs shall be admissible at hearings. 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.
(4) The board shall
furnish to the person about whom the hearing is being conducted, the attorney
representing the person, the Attorney General, the district attorney and the
court or department of the county from which the person was committed written
notice of any hearing pending under this section within a reasonable time prior
to the hearing. The notice shall include:
(a) The time, place and
location of the hearing.
(b) The nature of the
hearing and the specific action for which a hearing has been requested, the
issues to be considered at the hearing and a reference to the particular
sections of the statutes and rules involved.
(c) A statement of the
authority and jurisdiction under which the hearing is to be held.
(d) A statement of all
rights under subsection (6) of this section.
(5) Prior to the
commencement of a hearing, the board or presiding officer shall [inform] serve personally or by mail a
written notice to each party as provided in ORS 183.413 (2).
(6) At the hearing, the
person about whom the hearing is being held shall have the right:
(a) To appear at all
proceedings held pursuant to this section, except board deliberations.
(b) To cross-examine all
witnesses appearing to testify at the hearing.
(c) To subpoena
witnesses and documents as provided in ORS 161.395.
(d) To be represented by
suitable legal counsel possessing skills and experience commensurate with the
nature and complexity of the case, to consult with counsel prior to the hearing
and, if financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all
information, documents and reports which the board considers. If then available
to the board, the information, documents and reports shall be disclosed to the
person so as to allow examination prior to the hearing.
(7) A record shall be
kept of all hearings before the board, except board deliberations.
(8) Upon request of any
party before the board, or on its own motion, the board may continue a hearing
for a reasonable period not to exceed 60 days to obtain additional information
or testimony or for other good cause shown.
(9) Within 15 days
following the conclusion of the hearing, the board shall provide to the person,
the attorney representing the person, the Attorney General or other attorney
representing the state, if any, written notice of the board’s decision.
(10) The burden of proof
on all issues at hearings of the board shall be by a preponderance of the
evidence.
(11) If the board
determines that the person about whom the hearing is being held is financially
eligible, the board shall appoint suitable counsel to represent the person.
Counsel so appointed shall be an attorney who satisfies the professional
qualifications established by the Public Defense Services Commission under ORS
151.216. The public defense services executive director shall determine and
allow fair compensation for counsel appointed under this subsection and the
reasonable expenses of the person in respect to the hearing. Compensation
payable to appointed counsel shall not be less than the applicable compensation
level established under ORS 151.216. The compensation and expenses so allowed shall
be paid by the public defense services executive director from funds available
for the purpose.
(12) The Attorney
General may represent the state at contested hearings before the board unless
the district attorney of the county from which the person was committed elects
to represent the state. The district attorney of the county from which the
person was committed shall cooperate with the Attorney General in securing the
material necessary for presenting a contested hearing before the board. If the district
attorney elects to represent the state, the district attorney shall give timely
written notice of such election to the Attorney General, the board and the
attorney representing the person.
SECTION 8. ORS 181.661 is amended to read:
181.661. When the
Department of Public Safety Standards and Training denies application or
certification or the department or Board on Public Safety Standards and
Training believes there is a reasonable basis for suspending or revoking the
certification of an instructor or a public safety officer, except a youth
correction officer or fire service professional, notice and opportunity for a
hearing shall be provided in accordance with rules approved by the board and in
accordance with ORS 183.415 and section 4 of this 2007 Act prior to
suspension or revocation.
SECTION 9. ORS 183.310 is amended to read:
183.310. As used in this
chapter:
(1) “Agency” means any
state board, commission, department, or division thereof, or officer authorized
by law to make rules or to issue orders, except those in the legislative and
judicial branches.
(2)(a) “Contested case”
means a proceeding before an agency:
(A) In which the
individual legal rights, duties or privileges of specific parties are required
by statute or Constitution to be determined only after an agency hearing at
which such specific parties are entitled to appear and be heard;
(B) Where the agency has
discretion to suspend or revoke a right or privilege of a person;
(C) For the suspension,
revocation or refusal to renew or issue a license where the licensee or
applicant for a license demands such hearing; or
[(D) Where the agency by rule or order provides for hearings
substantially of the character required by ORS 183.415, 183.425, 183.450,
183.460 and 183.470.]
(D) Where the agency
by rule or order provides for hearings substantially of the character required
by ORS 183.415, 183.425, 183.450, 183.460 and 183.470 and section 4 of this
2007 Act.
(b) “Contested case”
does not include proceedings in which an agency decision rests solely on the
result of a test.
(3) “Economic effect”
means the economic impact on affected businesses by and the costs of
compliance, if any, with a rule for businesses, including but not limited to
the costs of equipment, supplies, labor and administration.
(4) “Hearing officer”
includes an administrative law judge.
(5) “License” includes
the whole or part of any agency permit, certificate, approval, registration or
similar form of permission required by law to pursue any commercial activity, trade,
occupation or profession.
(6)(a) “Order” means any
agency action expressed orally or in writing directed to a named person or
named persons, other than employees, officers or members of an agency. “Order”
includes any agency determination or decision issued in connection with a
contested case proceeding. “Order” includes:
(A) Agency action under
ORS chapter 657 making determination for purposes of unemployment compensation
of employees of the state;
(B) Agency action under
ORS chapter 240 which grants, denies, modifies, suspends or revokes any right
or privilege of an employee of the state; and
(C) Agency action under
ORS 468B.050 to issue a permit.
(b) “Final order” means
final agency action expressed in writing. “Final order” does not include any
tentative or preliminary agency declaration or statement that:
(A) Precedes final
agency action; or
(B) Does not preclude
further agency consideration of the subject matter of the statement or
declaration.
(7) “Party” means:
(a) Each person or
agency entitled as of right to a hearing before the agency;
(b) Each person or
agency named by the agency to be a party; or
(c) Any person
requesting to participate before the agency as a party or in a limited party
status which the agency determines either has an interest in the outcome of the
agency’s proceeding or represents a public interest in such result. The agency’s
determination is subject to judicial review in the manner provided by ORS
183.482 after the agency has issued its final order in the proceedings.
(8) “Person” means any
individual, partnership, corporation, association, governmental subdivision or
public or private organization of any character other than an agency.
(9) “Rule” means any
agency directive, standard, regulation or statement of general applicability
that implements, interprets or prescribes law or policy, or describes the
procedure or practice requirements of any agency. The term includes the
amendment or repeal of a prior rule, but does not include:
(a) Unless a hearing is
required by statute, internal management directives, regulations or statements
which do not substantially affect the interests of the public:
(A) Between agencies, or
their officers or their employees; or
(B) Within an agency,
between its officers or between employees.
(b) Action by agencies
directed to other agencies or other units of government which do not
substantially affect the interests of the public.
(c) Declaratory rulings
issued pursuant to ORS 183.410 or 305.105.
(d) Intra-agency
memoranda.
(e) Executive orders of
the Governor.
(f) Rules of conduct for
persons committed to the physical and legal custody of the Department of
Corrections, the violation of which will not result in:
(A) Placement in
segregation or isolation status in excess of seven days.
(B) Institutional
transfer or other transfer to secure confinement status for disciplinary
reasons.
(C) Disciplinary
procedures adopted pursuant to ORS 421.180.
(10) “Small business”
means a corporation, partnership, sole proprietorship or other legal entity
formed for the purpose of making a profit, which is independently owned and
operated from all other businesses and which has 50 or fewer employees.
SECTION 10. ORS 183.315 is amended to read:
183.315. (1) The
provisions of section 4 of this 2007 Act and ORS 183.410, 183.415,
183.425, 183.440, 183.450, 183.452, 183.458, 183.460, 183.470 and 183.480 do
not apply to local government boundary commissions created pursuant to ORS
199.425 or 199.430, the Department of Revenue, State Accident Insurance Fund
Corporation, Department of Consumer and Business Services with respect to its
functions under ORS chapters 654 and 656, Psychiatric Security Review Board or
State Board of Parole and Post-Prison Supervision.
(2) This chapter does
not apply with respect to actions of the Governor authorized under ORS chapter
240 and ORS 396.125 or actions of the Adjutant General authorized under ORS
396.160 (14).
(3) The provisions of section
4 of this 2007 Act and ORS 183.410, 183.415, 183.425, 183.440, 183.450,
183.452, 183.458 and 183.460 do not apply to the Employment Appeals Board or
the Employment Department.
(4) The Employment
Department shall be exempt from the provisions of this chapter to the extent
that a formal finding of the United States Secretary of Labor is made that such
provision conflicts with the terms of the federal law, acceptance of which by
the state is a condition precedent to continued certification by the United
States Secretary of Labor of the state’s law.
(5) The provisions of section
4 of this 2007 Act and ORS 183.415 to 183.430, 183.440 to 183.460, 183.470
to 183.485 and 183.490 to 183.500 do not apply to orders issued to persons who:
(a) Have been committed
pursuant to ORS 137.124 to the custody of the Department of Corrections or are
otherwise confined in a Department of Corrections facility; or
(b) Seek to visit an
inmate confined in a Department of Corrections facility.
(6) Section 4 of this
2007 Act and ORS 183.410, 183.415, 183.425, 183.440, 183.450, 183.460,
183.470 and 183.482 (3) do not apply to the Public Utility Commission.
Notwithstanding ORS 183.480 and except as provided in ORS 757.495 and 759.390,
only a party to a hearing before the Public Utility Commission is entitled to
seek judicial review of an order of the commission.
(7) The provisions of
this chapter do not apply to the suspension, cancellation or termination of an
apprenticeship or training agreement under ORS 660.060.
(8) The provisions of
ORS 183.413 to 183.497 do not apply to administrative proceedings conducted
under rules adopted by the Secretary of State under ORS 246.190.
SECTION 11. ORS 183.480 is amended to read:
183.480. (1) Except as
provided in [ORS 183.415 (5)(b)] section
4 (3)(b) of this 2007 Act, any person adversely affected or aggrieved by an
order or any party to an agency proceeding is entitled to judicial review of a
final order, whether such order is affirmative or negative in form. A petition
for rehearing or reconsideration need not be filed as a condition of judicial
review unless specifically otherwise provided by statute or agency rule.
(2) Judicial review of
final orders of agencies shall be solely as provided by ORS 183.482, 183.484,
183.490 and 183.500.
(3) No action or suit
shall be maintained as to the validity of any agency order except a final order
as provided in this section and ORS 183.482, 183.484, 183.490 and 183.500 or
except upon showing that the agency is proceeding without probable cause, or
that the party will suffer substantial and irreparable harm if interlocutory
relief is not granted.
(4) Judicial review of
orders issued pursuant to ORS 813.410 shall be as provided by ORS 813.410.
SECTION 12. ORS 279B.425 is amended to read:
279B.425. (1) The
procedure for appeal from the denial, revocation or revision of a
prequalification under ORS 279B.125, or from a debarment under ORS 279B.130,
shall be in accordance with this section and is not subject to ORS chapter 183
except when specifically provided by this section.
(2) Upon receipt of a
notice from a contracting agency of a prequalification decision under ORS
279B.125 or of a decision to debar under ORS 279B.130, a prospective bidder or
proposer that wishes to appeal the decision shall, within three business days
after receipt of the notice, notify the contracting agency that the prospective
bidder or proposer appeals the decision as provided in this section.
(3) Immediately upon
receipt of the prospective bidder’s or proposer’s notice of appeal, the
contracting agency shall:
(a) If the contracting
agency is a state contracting agency, notify the Director of the Oregon
Department of Administrative Services.
(b) If the contracting
agency is a local contracting agency, notify the appropriate local contract
review board.
(4) Upon the receipt of
notice from the contracting agency under subsection (3) of this section, the
director or board shall promptly notify the person appealing and the
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 notice from the contracting agency. The director or board shall set forth
in writing the reasons for the hearing decision.
(5) At the hearing the
director or board shall consider de novo the notice of denial, revocation or
revision of a prequalification or the notice of debarment, the standards of
responsibility listed in ORS 279B.110 (2) on which the contracting agency based
the denial, revocation or revision of the prequalification or the reasons
listed in ORS 279B.130 (2) on which the contracting agency based the debarment,
and any evidence provided by the parties. In all other respects, a hearing
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 and section 4 (1) to (4) and (7) of
this 2007 Act. Hearings before a board shall be conducted under rules of
procedure adopted by the board.
(6) The director or
board may allocate the director’s or board’s costs for the hearing between the
person appealing and the contracting agency whose
prequalification or debarment decision is being appealed. The allocation shall
be based upon facts found by the director or board and stated in the final
order that, in the director’s or board’s opinion, warrant such allocation of
costs. If the final order does not allocate the costs for the hearing, the
costs shall be paid as follows:
(a) If the decision to
deny, revoke or revise a prequalification of a person as a bidder or the
decision to debar a person is upheld, the costs shall be paid by the person
appealing the decision.
(b) If the decision to
deny, revoke or revise a prequalification of a person as a bidder or the
decision to debar a person is reversed, the costs shall be paid by the
contracting agency whose prequalification or debarment
decision is the subject of the appeal.
(7) A 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
obtained through corruption, fraud or undue means;
(b) There was evident
partiality or corruption that operated to the substantial prejudice of the
petitioner on the part of the director or board or any of the board’s members;
or
(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, and
the miscalculation or mistake operated to the substantial prejudice of the
petitioner.
(8) 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.
(9) The circuit court
may stay the letting of the contract that is the subject of the petition in the
same manner as a suit in equity. When the court determines that there has been
an improper debarment 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 may 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 13. ORS 279C.450 is amended to read:
279C.450. (1) The
procedure for appeal from a disqualification or denial, revocation or revision
of a prequalification by a contracting agency shall be in accordance with this
section and is not subject to ORS chapter 183 except when specifically provided
by this section.
(2) Promptly upon
receipt of notice of appeal from a contracting agency as provided for by ORS
279C.445, the Director of the Oregon Department of Administrative Services or
the local contract review board shall notify the person appealing and the
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 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
279C.440 (2) on which the contracting agency based the disqualification or the
standards of responsibility listed in ORS 279C.375 (3)(b)
on which the contracting agency based the denial, revocation or revision of the
prequalification and any evidence provided by the parties. In all other
respects, a hearing 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 and section 4
(1) to (4) and (7) of this 2007 Act.
(4) The director may
allocate the director’s cost for the hearing between the person appealing and
the 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 that, 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, the costs shall be paid as follows:
(a) If the decision to
disqualify or deny, revoke or revise a prequalification of a person 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
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
obtained through 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 that is the subject of
the petition in the same manner as a suit in equity. When 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 14. ORS 351.088 is amended to read:
351.088. Notwithstanding
ORS chapter 183, the State Board of Higher Education or any state institution
of higher education under the jurisdiction of the board may, by rule, establish
adjudicative procedures that are consistent with federal and state
constitutional requirements and other provisions of law. The adjudicative
procedures shall be consistent with ORS 183.413 to 183.497 and 183.502 whenever
the type of hearing or procedure required is substantially of the character
that would necessitate the procedures required by ORS [183.415, 183.425, 183.450, 183.460 or] 183.413 to 183.470.
SECTION 15. ORS 352.360 is amended to read:
352.360. (1) The State
Board of Higher Education may enact such regulations as it shall deem
convenient or necessary to provide for the policing, control and regulation of
traffic and parking of vehicles on the property of any institution under the
jurisdiction of the board. Such regulations may provide for the registration of
vehicles, the designation of parking areas, and the assessment and collection
of reasonable fees and charges for parking, and shall be filed in accordance
with the provisions of ORS chapter 183. The board may require that before a
quarterly or yearly parking privilege for any vehicle is granted to any
full-time or part-time student to use board property, the student must show
that the vehicle is operated by a student holding a valid driver’s license,
that the vehicle is currently registered and that the student driving the
vehicle is insured under a motor vehicle liability insurance policy that meets
the requirements described under ORS 806.080 or that the student or owner of
the vehicle has provided the Department of Transportation with other
satisfactory proof of compliance with the financial responsibility requirements
of this state.
(2) The regulations
enacted pursuant to subsection (1) of this section shall be enforced
administratively under procedures adopted by the board for each institution
under its jurisdiction. Administrative and disciplinary sanctions may be
imposed upon students, faculty and staff for violation of the regulations,
including but not limited to, a reasonable monetary penalty which may be
deducted from student deposits, and faculty or staff salaries or other funds in
the possession of the institution. The board shall provide opportunity for
hearing for the determination of controversies in connection with imposition of
fines or penalties. The board may prescribe procedures for such hearings
despite the provisions of ORS [183.415,
183.450, 183.452, 183.460 and] 183.413 to 183.470. Persons other
than students, faculty or staff may voluntarily submit to the hearing
procedures prescribed by the board, and shall be bound by the results thereof.
The powers granted to the board by this section are supplemental to the
existing powers of the board with respect to the government of activities of
students, faculty and staff and the control and management of property under
its jurisdiction.
(3) The regulations
enacted pursuant to subsection (1) of this section may also be enforced by the
impoundment of vehicles, and a reasonable fee may be enacted for the cost of
impoundment and storage, if any, prior to the release of the vehicles to their
owners.
(4) All fees and charges
for parking privileges and violations are hereby continuously appropriated to
the State Board of Higher Education to be used to defray the costs of
constructing bicycle racks and bicycle lanes and of traffic control,
enforcement of traffic and parking regulations, and maintenance and operation
of parking facilities and for the purpose of acquiring and constructing
additional parking facilities for vehicles at the various institutions,
departments or activities under the control of the board, and may also be
credited to the Higher Education Bond Sinking Fund provided for in ORS 351.460.
Parking fees shall be established at levels no greater than those required to
finance the construction, operation and maintenance of parking facilities on
the same campus of the state institution of higher education on which the
parking is provided. Notwithstanding ORS 351.072, parking fees or changes in
fees shall be adopted by rule of the state board subject to the procedure for
rules adopted in ORS chapter 183.
(5) Every peace officer
may enforce the regulations made by the board under subsection (1) of this
section. The board, for the purpose of enforcing its rules and regulations
governing traffic control, may appoint peace officers who shall have the same
authority as other peace officers as defined in ORS 133.005.
(6) The State Board of
Higher Education and any municipal corporation or any department, agency or
political subdivision of this state may enter into agreements or contracts with
each other for the purpose of providing a uniform system of enforcement of the
rules and regulations of the board enacted pursuant to subsection (1) of this
section.
(7) In proceedings
brought to enforce regulations enacted pursuant to subsection (1) of this
section, it shall be sufficient to charge the defendant by an unsworn written
notice in accordance with the provisions of ORS 221.333. In any case in which
the defendant is not subject to and does not voluntarily submit to the hearing
procedures prescribed under subsection (2) of this section, proceedings to
enforce regulations enacted pursuant to subsection (1) of this section shall be
brought in the name of the board in a circuit court, a justice court or a city
court for offenses committed within the territorial jurisdiction of such court.
Such courts shall have concurrent jurisdiction over offenses committed within
their respective jurisdictions. All fines, penalties and court costs recovered
shall be paid to the clerk of the court involved and shall be disposed of as
provided in ORS 153.630.
SECTION 16. ORS 701.145 is amended to read:
701.145. For a claim
described in ORS 701.139 (1) involving work on a residential structure or an
appurtenance thereto, a claim described in ORS 701.139 (2) involving work on a
small commercial structure or an appurtenance thereto that is not resolved
under ORS 701.146 or an owner’s claim described in ORS 701.139 (4) involving
work on a large commercial structure or an appurtenance thereto that is not
resolved under ORS 701.146:
(1) The person having
the claim must file with the Construction Contractors Board a statement of the
claim in a form prescribed by the board.
(2) The board may
suspend processing of the claim if:
(a) The same facts and
issues involved in the claim have been submitted to a court of competent
jurisdiction for determination or have been submitted to any other entity
authorized by law or the parties to effect a resolution or settlement; or
(b) 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.
(3) The board may
dismiss or close the claim as established by rule of the board if any of the
following conditions apply:
(a) The claimant does
not permit the contractor against whom the claim is filed to be present at an
on-site investigation made by the board.
(b) The board determines
that the contractor 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 contractor to comply with the recommendations. The board
may refuse to accept or further process a claim under this paragraph only if
the contractor was licensed at the time the work was first performed and is
licensed at the time the board makes its recommendations.
(c) The amount in
controversy is less than an amount adopted by the board and not more than $250.
(4) Upon acceptance of
the statement of claim, the board shall give notice to the contractor against
whom the claim is made and shall initiate proceedings to determine the validity
of the claim. If, after investigation, the board determines that a violation of
this chapter or of any rule adopted thereunder has occurred, or damage has been
caused by the contractor, the board may recommend to the contractor such action
as the board considers appropriate to compensate the claimant. If the
contractor performs accordingly, the board shall give that fact due
consideration in any subsequent disciplinary proceeding brought by the board.
If a claim is for less than $1,000, the board may process the claim without
conducting an on-site investigation.
(5) Subject to ORS
701.148, if the board is unable to resolve the claim under subsection (4) of
this section, the board may issue a contested case notice under ORS 183.415
and:
(a) Issue a proposed
default order under [ORS 183.415] section
4 of this 2007 Act to become effective only if a party does not request a
contested case hearing; or
(b) Refer the matter for
hearing.
(6) The board shall send
a copy of the notice and any proposed order described in subsection (5) of this
section to the surety on the contractor bond required by ORS 701.085.
SECTION 17. ORS 776.129 is amended to read:
776.129. (1) When the
Oregon Board of Maritime Pilots establishes rates described in ORS 776.115 (5),
the board shall contract with and compensate the Public Utility Commission of
Oregon for the use of administrative law judges assigned by the commission to
conduct the rate proceeding. Notwithstanding ORS [183.410, 183.415, 183.425, 183.440, 183.450, 183.460, 183.470 and
183.480] 183.413 to 183.470, an administrative law judge shall
conduct the proceeding in compliance with procedures adopted by the board by
rule. The administrative law judge and the board may receive and consider
recommendations made by the Economic and Community Development Department and
the
(2) The board may defray
the costs and expenses of the hearing by assessing, in its final order, all or
a portion of the costs and expenses of the hearing to a party to the hearing.
SECTION 18. ORS 813.410 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 holds a commercial driver license and that the person was
driving a motor vehicle or commercial motor vehicle and refused to submit to a
test under ORS 813.100 or that the person was driving a commercial motor vehicle
and submitted to a breath or blood test and the person’s blood, as shown by the
test, had 0.04 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 chapter
183. The applicable appeal provisions are as provided under ORS 813.450
and section 24, chapter 672,
(4) A hearing required
by this section is subject to all of the following:
(a) The hearing shall be
before an administrative law judge assigned from the Office of Administrative
Hearings established under ORS 183.605.
(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 administrative law judge 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) 0.08 percent or more
by weight if the person was not driving a commercial motor vehicle;
(B) 0.04 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
(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 19. Section 4 of this 2007 Act and the
amendments to ORS 35.520, 58.355, 161.346, 181.661, 183.310, 183.315, 183.413,
183.415, 183.480, 279B.425, 279C.450, 351.088, 352.360, 701.145, 776.129 and
813.410 by sections 1, 2 and 5 to 18 of this 2007 Act apply only to contested
case proceedings commenced by the giving of notice as described in ORS 183.415
on or after the effective date of this 2007 Act. Any contested case proceeding
commenced by the giving of notice as described in ORS 183.415 before the
effective date of this 2007 Act shall continue to be governed by ORS 35.520,
58.355, 161.346, 181.661, 183.310, 183.315, 183.413, 183.415, 183.480,
279B.425, 279C.450, 351.088, 352.360, 701.145, 776.129 and 813.410, as in
effect immediately before the effective date of this 2007 Act.
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date January 1, 2008
__________