74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2423
Sponsored by Representative RICHARDSON (at the request of Oregon
Law Center) (Presession filed.)
CHAPTER ................
AN ACT
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 Oregon:
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
Enrolled House Bill 2423 (HB 2423-A) Page 1
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. + }
Enrolled House Bill 2423 (HB 2423-A) Page 2
{ - (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
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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
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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
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{ - 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.
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(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.
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(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. - }
Enrolled House Bill 2423 (HB 2423-A) Page 8
{ + (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.
Enrolled House Bill 2423 (HB 2423-A) Page 9
(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.
Enrolled House Bill 2423 (HB 2423-A) Page 10
(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
Enrolled House Bill 2423 (HB 2423-A) Page 11
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.
Enrolled House Bill 2423 (HB 2423-A) Page 12
(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
Enrolled House Bill 2423 (HB 2423-A) Page 13
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.
Enrolled House Bill 2423 (HB 2423-A) Page 14
(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
Enrolled House Bill 2423 (HB 2423-A) Page 15
(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 Port of Portland.
(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
Enrolled House Bill 2423 (HB 2423-A) Page 16
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, 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 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.
Enrolled House Bill 2423 (HB 2423-A) Page 17
(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
Enrolled House Bill 2423 (HB 2423-A) Page 18
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 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. + }
----------
Passed by House April 10, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 17, 2007
...........................................................
President of Senate
Enrolled House Bill 2423 (HB 2423-A) Page 19
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2423 (HB 2423-A) Page 20