Chapter 849 Oregon Laws 1999

Session Law

AN ACT

HB 2525

Relating to administrative proceedings; creating new provisions; amending ORS 25.311, 25.765, 171.778, 183.341, 183.415, 183.440, 183.445, 183.450, 244.260, 274.755, 279.045, 285A.389, 342.177, 416.120, 416.427, 431.730, 448.255, 462.405, 464.500, 466.185, 466.305, 466.610, 466.810, 468.035, 517.983, 527.662, 527.687, 527.700, 543.055, 543.230, 543.990, 561.615, 656.704, 657.270, 657.275, 657.280, 657.471, 657.485, 657.487, 657.610, 657.630, 657.663, 657.665, 657.681, 657.683, 657.684, 670.325, 677.275, 678.780, 679.150, 687.086, 693.105, 701.145, 737.209, 776.129, 776.375, 809.040, 809.350, 809.440, 813.410, 813.450 and 822.080 and section 6, chapter [Vetoed], Oregon Laws 1999 (Enrolled House Bill 2238); repealing section 4, chapter 876, Oregon Laws 1999 (Enrolled Senate Bill 654), and section 2, chapter [Vetoed], Oregon Laws 1999 (Enrolled House Bill 2238); appropriating money; limiting expenditures; and declaring an emergency.

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

HEARING OFFICER PANEL (PILOT PROJECT)

SECTION 1. Sections 2 to 21 of this 1999 Act are added to and made a part of ORS 183.310 to 183.550.

SECTION 2. Definitions. For the purposes of sections 2 to 21 of this 1999 Act:

(1) "Chief hearing officer" means the person employed under section 4 of this 1999 Act to organize and manage the Hearing Officer Panel.

(2) "Panel" means the Hearing Officer Panel established under section 3 of this 1999 Act.

SECTION 3. Hearing Officer Panel established. (1) The Hearing Officer Panel is established within the Employment Department. The panel shall be managed by the chief hearing officer employed under section 4 of this 1999 Act. The panel shall make hearing officers available to agencies under sections 2 to 21 of this 1999 Act. Hearing officers assigned from the panel under sections 2 to 21 of this 1999 Act may:

(a) Conduct contested case proceedings on behalf of agencies in the manner provided by sections 2 to 21 of this 1999 Act;

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

(c) Perform such other duties as may be authorized under sections 2 to 21 of this 1999 Act.

(2) All persons serving on the panel must meet the standards and training requirements of section 19 of this 1999 Act.

SECTION 4. Chief hearing officer; powers and duties. (1) The Director of the Employment Department shall employ a person to serve as chief hearing officer for the Hearing Officer Panel established under section 3 of this 1999 Act. The person employed to serve as chief hearing officer must be an active member of the Oregon State Bar. The chief hearing officer has all the powers necessary and convenient to organize and manage the panel. Subject to the State Personnel Relations Law, the chief hearing officer shall employ all persons necessary to the administration of the panel, prescribe the duties of those employees and fix their compensation.

(2) The chief hearing officer shall employ hearing officers to serve on the panel. The chief hearing officer shall ensure that hearing officers on the panel receive all training necessary to meet the standards required under the program created under section 19 of this 1999 Act.

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

SECTION 5. Hiring and review of hearing officers. (1) A hearing officer employed by or contracting with the chief hearing officer shall conduct hearings on behalf of agencies as assigned by the chief hearing officer. A hearing officer shall be impartial in the performance of the hearing officer's duties and shall remain fair in all hearings conducted by the hearing officer.

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

SECTION 6. Contract hearing officers. (1) The chief hearing officer for the Hearing Officer Panel may contract for the services of persons to act as hearing officers.

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

SECTION 7. Assignment of hearing officers to agencies. (1) In assigning a hearing officer to conduct hearings on behalf of an agency, the chief hearing officer shall, whenever practicable, assign a hearing officer that has expertise in the legal issues or general subject matter of the proceeding.

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

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

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

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

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

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

SECTION 9. Agencies required to seek hearing officer from panel. (1) Except as provided in this section, all agencies must use hearing officers assigned from the Hearing Officer Panel established under section 3 of this 1999 Act to conduct contested case hearings, without regard to whether those hearings are subject to the procedural requirements for contested case hearings.

(2) The following agencies need not use hearing officers assigned from the panel:

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

(b) Employment Appeals Board.

(c) Employment Relations Board.

(d) Public Utility Commission.

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

(f) Land Conservation and Development Commission.

(g) Land Use Board of Appeals.

(h) Department of Revenue.

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

(j) State Accident Insurance Fund Corporation.

(k) Psychiatric Security Review Board.

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

(m) Department of Corrections.

(n) Energy Facility Siting Council.

(o) Vocational Rehabilitation Division.

(p) Secretary of State.

(q) State Treasurer.

(r) Attorney General.

(s) Fair Dismissal Appeals Board.

(t) Department of State Police.

(u) Oregon Youth Authority.

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

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

(x) The Governor.

(y) State Land Board.

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

(a) ORS chapter 59;

(b) ORS 200.005 to 200.075;

(c) ORS chapter 455;

(d) ORS chapter 674;

(e) ORS chapters 706 to 716;

(f) ORS chapter 717;

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

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

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

(5) Notwithstanding any other provision of sections 2 to 21 of this 1999 Act, no agency shall be required to use a hearing officer assigned from the panel if:

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

(b) Use of a hearing officer from the panel could result in a loss of federal funds.

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

SECTION 10. Assignment of hearing officers to exempt agencies and local governments. (1) Upon request of an agency, the chief hearing officer for the Hearing Officer Panel may assign hearing officers from the panel to conduct contested case proceedings on behalf of agencies that are exempted from mandatory use of panel hearing officers under section 9 of this 1999 Act.

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

SECTION 11. Request for change of hearing officer assigned from panel. (1) After assignment of a hearing officer from the Hearing Officer Panel to conduct a hearing on behalf of an agency, the chief hearing officer shall assign a different hearing officer for the hearing upon receiving a written request from any party in the contested case or from the agency. The chief hearing officer may by rule establish time limitations and procedures for requests under this section.

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

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

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

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

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

SECTION 13. Billings for services of hearing officers from panel. The chief hearing officer for the Hearing Officer Panel shall establish a schedule of fees for services rendered by hearing officers assigned from the panel. The fee charged shall be in an amount calculated to recover the cost of providing the hearing officer, the cost of conducting the hearing and all associated administrative costs. All fees collected by the chief hearing officer under this section shall be paid into the Hearing Officer Panel Operating Account created under section 14 of this 1999 Act.

SECTION 14. Operating account. (1) The Hearing Officer Panel Operating Account is created within the General Fund. The account shall consist of moneys paid into the account under section 13 of this 1999 Act. Moneys credited to the account are continuously appropriated to the chief hearing officer for the Hearing Officer Panel created under section 3 of this 1999 Act for the purpose of paying expenses incurred in the administration of the panel.

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

SECTION 15. Budgeting. The chief hearing officer for the Hearing Officer Panel shall estimate in advance the expenses that the panel will incur during each biennium and shall notify each agency required to use the panel's services of the agency's share of the anticipated expenses for periods within the biennium.

SECTION 16. Rulemaking authority. Subject to the provisions of the State Personnel Relations Law, the chief hearing officer for the Hearing Officer Panel may adopt rules to:

(1) Organize and manage the Hearing Officer Panel established under section 3 of this 1999 Act.

(2) Facilitate the performance of the duties of hearing officers assigned from the panel.

(3) Establish qualifications for persons serving as hearing officers on the panel.

(4) Establish standards and procedures for the evaluation and training of hearing officers on the panel, consistent with standards and training requirements established under section 19 of this 1999 Act.

SECTION 16a. Alternative dispute resolution. Sections 2 to 21 of this 1999 Act do not limit in any way the ability of any agency to use alternative dispute resolution, including mediation or arbitration, to resolve disputes without conducting a contested case hearing or without requesting assignment of a hearing officer from the Hearing Officer Panel.

SECTION 17. Transfer of employees. (1) On the operative date of sections 2 to 21 of this 1999 Act, the chief administrative officer or board of the agencies specified in subsection (2) of this section shall transfer to the chief hearing officer for the Hearing Officer Panel the permanent employees in the regular service of the agencies whose job duties involve the conducting of contested case proceedings or whose job duties relate to providing administrative services required for the conducting of contested case proceedings. The transfer of employees shall be made in a manner that is consistent with the provisions of the budget passed by the Legislative Assembly for the Employment Department in the 1999-2001 biennium.

(2) The agencies subject to the requirements of this section are:

(a) Employment Department.

(b) Water Resources Department.

(c) Department of Transportation.

(d) Oregon Liquor Control Commission.

(e) Construction Contractors Board.

(f) Adult and Family Services Division of the Department of Human Resources.

(g) Workers' Compensation Division and Insurance Division of the Department of Consumer and Business Services.

(3) The chief hearing officer shall employ all persons transferred under this section in the performance of the duties and functions of the Hearing Officer Panel.

(4) The salaries and benefits of persons transferred under this section may not be reduced because of the transfer, and persons who are represented by a labor organization, as defined in ORS 243.650, shall continue to be represented by that labor organization. Transferred persons are considered permanent employees and may be disciplined or terminated only under the same classification and procedures applicable to those employees before transfer.

SECTION 18. Transfer of pending cases. On the operative date of sections 2 to 21 of this 1999 Act, the chief hearing officer for the Hearing Officer Panel shall assign hearing officers as requested by agencies to continue the conduct of and conclude proceedings pending on the operative date of sections 2 to 21 of this 1999 Act.

HEARING OFFICER STANDARDS AND TRAINING

SECTION 19. Standards and training program. (1) The chief hearing officer for the Hearing Officer Panel, working in coordination with the Attorney General, shall design and implement a standards and training program for hearing officers on the panel and for persons seeking to serve as hearing officers on the panel. The program shall include:

(a) The establishment of an ethical code for persons serving as hearing officers on the panel.

(b) Training for hearing officers on the panel that is designed to assist in identifying cases that are appropriate for the use of alternative dispute resolution processes.

(2) The program established by the chief hearing officer under this section may include:

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

(b) The certification of courses offered by other persons for the purpose of any training required by the chief hearing officer for hearing officers on the panel.

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

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

EX PARTE CONTACTS

SECTION 20. Required disclosure of ex parte contacts. (1) A hearing officer assigned from the Hearing Officer Panel who is presiding in a contested case proceeding and who receives an ex parte communication described in subsections (3) and (4) of this section shall place in the record of the pending matter:

(a) The name of each person from whom the hearing officer received an ex parte communication;

(b) A copy of any ex parte written communication received by the hearing officer;

(c) A copy of any written response to the communication made by the hearing officer;

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

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

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

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

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

(b) Are made directly or indirectly to a hearing officer while the proceeding is pending; and

(c) Are made without notice and opportunity for the agency and all parties to participate in the communication.

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

(a) A party;

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

(c) Any other person who has a direct or indirect interest in the outcome of the proceeding;

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

(e) Any officer, employee or agent of the agency that is using the hearing officer to conduct the hearing.

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

(a) Communications made to a hearing officer by other hearing officers;

(b) Communications made to a hearing officer by any person employed by the panel to assist the hearing officer; or

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

OVERSIGHT COMMITTEE

SECTION 21. Hearing Officer Panel Oversight Committee. (1) The Hearing Officer Panel Oversight Committee is created. The committee consists of nine members, as follows:

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

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

(c) The Attorney General shall appoint two members to the committee.

(d) The chief hearing officer for the Hearing Officer Panel employed under section 4 of this 1999 Act shall serve as an ex officio member of the committee. The chief hearing officer may cast a vote on a matter before the committee if the votes of the other members are equally divided on the matter.

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

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

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

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

(5) The committee shall:

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

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

(c) Make any recommendations for additional legislation governing the operations of the Hearing Officer Panel; and

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

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

NOTE: Sections 22 and 23 were deleted by amendment. Subsequent sections were not renumbered.

AMENDMENTS TO ADMINISTRATIVE

PROCEDURES ACT

SECTION 24. ORS 183.341 is amended to read:

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

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

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

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

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

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

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

SECTION 24a. The amendments to ORS 183.341 by section 24 of this 1999 Act become operative on January 1, 2000.

SECTION 25. ORS 183.341, as amended by section 24 of this 1999 Act, is amended to read:

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

(2) [Except as provided in section 8 of this 1999 Act,] All agencies shall adopt rules of procedure to be utilized in the adoption of rules and conduct of proceedings in contested cases or, if exempt from the contested case provisions of ORS 183.310 to 183.550, for the conduct of proceedings.

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

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

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

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

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

SECTION 26. The amendments to ORS 183.341 by section 25 of this 1999 Act become operative on January 1, 2004.

SECTION 27. ORS 183.415 is amended to read:

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

(2) The notice shall include:

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

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

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

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

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

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

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

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

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

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

(9) The officer presiding at the hearing shall place on the record a statement of the substance of any written or oral ex parte communications on a fact in issue made to the officer during the pendency of the proceeding and notify the parties of the communication and of their right to rebut such communications. If an ex parte communication is made to a hearing officer assigned from the Hearing Officer Panel established by section 3 of this 1999 Act, the hearing officer must comply with section 20 of this 1999 Act.

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

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

(a) All pleadings, motions and intermediate rulings.

(b) Evidence received or considered.

(d) A statement of matters officially noticed.

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

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

(g) Proposed findings and exceptions.

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

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

SECTION 27a. The amendments to ORS 183.415 by section 27 of this 1999 Act become operative on January 1, 2000.

SECTION 28. ORS 183.415, as amended by section 27 of this 1999 Act, is amended to read:

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

(2) The notice shall include:

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

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

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

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

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

(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 a hearing officer assigned from the Hearing Officer Panel established by section 3 of this 1999 Act, the hearing officer must comply with section 20 of this 1999 Act.]

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

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

(a) All pleadings, motions and intermediate rulings.

(b) Evidence received or considered.

(d) A statement of matters officially noticed.

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

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

(g) Proposed findings and exceptions.

(h) Any proposed, intermediate or final order prepared by the agency or a hearing officer.

SECTION 29. The amendments to ORS 183.415 by section 28 of this 1999 Act become operative on January 1, 2004.

SECTION 30. ORS 183.440 is amended to read:

183.440. (1) An agency may issue subpoenas on its own motion in a contested case. In addition, an agency or hearing officer in a contested case may issue subpoenas upon the request of a party to a contested case upon a showing of general relevance and reasonable scope of the evidence sought. A party [, other than the agency,] entitled to have witnesses on behalf of the party may have subpoenas issued by an attorney of record of the party, subscribed by the signature of the attorney. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the agency, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (2).

(2) If any person fails to comply with any subpoena so issued or any party or witness refuses to testify on any matters on which the party or witness may be lawfully interrogated, the judge of the circuit court of any county, on the application of the [agency or of a designated representative of the agency] hearing officer, the agency or [of] the party requesting the issuance of or issuing the subpoena, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.

SECTION 31. The amendments to ORS 183.440 by section 30 of this 1999 Act become operative on January 1, 2000.

SECTION 32. ORS 183.445 is amended to read:

183.445. (1) In any proceeding before an agency not subject to ORS 183.440 in which a party[, other than the agency,] is entitled to have subpoenas issued [by the agency] for the appearance of witnesses on behalf of the party, a subpoena may be issued by an attorney of record of the party, subscribed by the signature of the attorney. A subpoena issued by an attorney of record may be enforced in the same manner as a subpoena issued by the agency.

(2) In any proceeding before an agency not subject to ORS 183.440 in which a party [other than the agency] is entitled to have subpoenas issued by the agency to compel the appearance of witnesses on behalf of the party, the agency may issue subpoenas on its own motion.

SECTION 33. The amendments to ORS 183.445 by section 32 of this 1999 Act become operative on January 1, 2000.

SECTION 34. ORS 183.450 is amended to read:

183.450. In contested cases:

(1) Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. Agencies and hearing officers shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form.

(2) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in subsection (4) of this section no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.

(3) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence. Persons appearing in a limited party status shall participate in the manner and to the extent prescribed by rule of the agency.

(4) [Agencies] The hearing officer and agency may take notice of judicially cognizable facts, and [they] may take official notice of general, technical or scientific facts within [their] the specialized knowledge of the hearing officer or agency. Parties shall be notified at any time during the proceeding but in any event prior to the final decision of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed. [Agencies] The hearing officer and agency may utilize [their] the hearing officer's or agency's experience, technical competence and specialized knowledge in the evaluation of the evidence presented [to them].

(5) No sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative and substantial evidence.

(6) Agencies may, at their discretion, be represented at hearings by the Attorney General.

(7) Notwithstanding ORS 9.160, 9.320 and ORS chapter 180, and unless otherwise authorized by another law, an agency may be represented at contested case hearings by an officer or employee of the agency if:

(a) The Attorney General has consented to the representation of the agency by an officer or employee in the particular hearing or in the class of hearings that includes the particular hearing; and

(b) The agency, by rule, has authorized an officer or employee to appear on its behalf in the particular type of hearing being conducted.

(8) The agency representative shall not present legal argument in contested case hearings or give legal advice to an agency.

(9) Upon judicial review, no limitation imposed pursuant to subsection (7) of this section on the participation of an officer or employee representing an agency shall be the basis for reversal or remand of agency action unless the limitation resulted in substantial prejudice to a person entitled to judicial review of the agency action.

(10) Notwithstanding any other provision of law, in any contested case hearing before a state agency involving child support or public assistance as defined in ORS 411.010 a party may be represented by any of the following persons:

(a) An authorized representative who is an employee of a nonprofit legal services program that receives funding pursuant to ORS 9.572. The representative must be supervised by an attorney also employed by a legal services program.

(b) An authorized representative who is an employee of the system designated to protect and advocate the rights of individuals with developmental disabilities under part C of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041 et seq.) and the rights of individuals with mental illness under the Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. 10801 et seq.). The representative must be supervised by an attorney also employed by the system.

(11) In any contested case hearing before a state agency involving child support, a party may be represented by a law student who is:

(a) Handling the child support matter as part of a law school clinical program in which the student is enrolled; and

(b) Supervised by an attorney employed by the program.

(12) A person authorized to represent a party under subsections (10) or (11) of this section may present evidence in the proceeding, cross-examine witnesses and present factual and legal argument in the proceeding.

SECTION 35. The amendments to ORS 183.450 by section 34 of this 1999 Act become operative on January 1, 2000.

NOTE: Sections 36 and 37 were deleted by amendment. Subsequent sections were not renumbered.

SUPPORT ENFORCEMENT

SECTION 38. ORS 25.311 is amended to read:

25.311. (1) After November 4, 1993, and except as otherwise provided in ORS 25.317, when a support order is entered or modified by the Support Enforcement Division, a district attorney, [an Employment Department hearings] a hearing officer or a circuit court, including a juvenile court, the order shall include a provision requiring the obligor to pay support by income withholding. A pleading for the entry or modification of the support order must contain a statement that payment of support under a new or modified order shall be by income withholding and that an exception to payment by income withholding may be granted under the provisions of ORS 25.317.

(2) When an obligor is subject to a support order issued or registered in this state and fails to make payments at least equal to the amount of support payable for one month, a court, the Support Enforcement Division, a district attorney or the Department of Human Resources, whichever is appropriate, shall initiate income withholding. Except as provided by subsection (3) of this section, the court or agency must give advance notice of the withholding as provided by ORS 25.315.

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

(4) The obligor may initiate a withholding order, ex parte, at any time by motion to the court or request to the Support Enforcement Division, Department of Human Resources or district attorney. No advance notice under ORS 25.315 is required for withholding initiated under this subsection.

(5)(a) If an obligor is not otherwise subject to withholding, at any time upon the request of the holder of support rights, a court, the Support Enforcement Division or a district attorney, as appropriate, may issue a withholding order if after notice and an opportunity to object has been given to the obligor, a finding is made that it would be in the best interests of the child to do so.

(b) If the obligor has been granted an exception to withholding under ORS 25.317 by a court, the holder of support rights must apply for withholding under this subsection by motion to the court.

(6) A court or agency shall issue an order to withhold when a support order or an arrearage from another jurisdiction is entered in Oregon in accordance with interstate income withholding under ORS 110.300 to 110.441.

SECTION 38a. The amendments to ORS 25.311 by section 38 of this 1999 Act become operative on January 1, 2000.

SECTION 39. ORS 25.311, as amended by section 38 of this 1999 Act, is amended to read:

25.311. (1) After November 4, 1993, and except as otherwise provided in ORS 25.317, when a support order is entered or modified by the Support Enforcement Division, a district attorney, [a hearing] an Employment Department hearing officer or a circuit court, including a juvenile court, the order shall include a provision requiring the obligor to pay support by income withholding. A pleading for the entry or modification of the support order must contain a statement that payment of support under a new or modified order shall be by income withholding and that an exception to payment by income withholding may be granted under the provisions of ORS 25.317.

(b) If the obligor has been granted an exception to withholding under ORS 25.317 by a court, the holder of support rights must apply for withholding under this subsection by motion to the court.

SECTION 40. The amendments to ORS 25.311 by section 39 of this 1999 Act become operative on January 1, 2004.

NOTE: Sections 41 and 42 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 43. ORS 25.765 is amended to read:

25.765. (1) If the obligor makes the contact within 30 days of the date of the notice as provided for in ORS 25.759, the Support Enforcement Division or the district attorney shall provide the obligor with the opportunity to show that the arrears do not exceed $2,500, or that there is a mistake in the identity of the obligor, or that the obligor is in compliance with an agreement entered into pursuant to rules of the Department of Human Resources. The Support Enforcement Division or the district attorney shall determine whether suspension should occur. If the Support Enforcement Division or the district attorney determines that suspension should occur, the Support Enforcement Division or the district attorney shall make a written determination of such finding.

(2) The obligor may appeal the determination described in subsection (1) of this section. Any hearing on such appeal shall be conducted by a [hearings] hearing officer [appointed by the Employment Department] assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. ORS 183.310 to 183.550 shall apply and such appeal of the Support Enforcement Division's or district attorney's determination shall be de novo to the [hearings] hearing officer. Any suspension is stayed pending the decision of the [hearings] hearing officer. Any order of the [hearings] hearing officer that supports a suspension shall result in the notification to the issuing entity by the Support Enforcement Division or the district attorney to suspend the license forthwith.

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

SECTION 43a. The amendments to ORS 25.765 by section 43 of this 1999 Act become operative on January 1, 2000.

SECTION 44. ORS 25.765, as amended by section 43 of this 1999 Act, is amended to read:

(2) The obligor may appeal the determination described in subsection (1) of this section. Any hearing on such appeal shall be conducted by a hearing officer [assigned from the Hearing Officer Panel established under section 3 of this 1999 Act] appointed by the Employment Department. ORS 183.310 to 183.550 shall apply and such appeal of the Support Enforcement Division's or district attorney's determination shall be de novo to the hearing officer. Any suspension is stayed pending the decision of the hearing officer. Any order of the hearing officer that supports a suspension shall result in the notification to the issuing entity by the Support Enforcement Division or the district attorney to suspend the license forthwith.

SECTION 45. The amendments to ORS 25.765 by section 44 of this 1999 Act become operative on January 1, 2004.

NOTE: Sections 46, 47 and 47a were deleted by amendment. Subsequent sections were not renumbered.

GOVERNMENT STANDARDS AND

PRACTICES

SECTION 48. ORS 171.778 is amended to read:

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

(2) The commission may:

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

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

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

(5) Hearings relating to any charge of alleged violation of ORS 171.725 to 171.785 may be held before the commission or before a [hearings] hearing officer [appointed by the commission] assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. The procedure shall be that for a contested case under ORS 183.310 to 183.550.

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

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

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

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

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

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

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

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

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

(A) Dismissal, with or without comment;

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

(D) Seeking a negotiated settlement; or

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

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

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

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

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

SECTION 48a. The amendments to ORS 171.778 by section 48 of this 1999 Act become operative on January 1, 2000.

SECTION 49. ORS 171.778, as amended by section 48 of this 1999 Act, is amended to read:

(2) The commission may:

(5) Hearings relating to any charge of alleged violation of ORS 171.725 to 171.785 may be held before the commission or before a hearing officer [assigned from the Hearing Officer Panel established under section 3 of this 1999 Act] appointed by the commission. The procedure shall be that for a contested case under ORS 183.310 to 183.550.

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

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

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

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

(A) Dismissal, with or without comment;

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

(D) Seeking a negotiated settlement; or

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

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

SECTION 50. The amendments to ORS 171.778 by section 49 of this 1999 Act become operative on January 1, 2004.

SECTION 51. ORS 244.260 is amended to read:

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

(2) The commission may:

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

(5) Hearings relating to any charge of alleged violation of this chapter may be held before the commission or before a [hearings] hearing officer [appointed by the commission] assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. The procedure shall be that for a contested case under ORS 183.310 to 183.550.

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

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

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

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

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

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

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

(A) Dismissal, with or without comment;

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

(D) Seeking a negotiated settlement; or

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

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

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

(11) As used in this section:

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

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

SECTION 51a. The amendments to ORS 244.260 by section 51 of this 1999 Act become operative on January 1, 2000.

SECTION 52. ORS 244.260, as amended by section 51 of this 1999 Act, is amended to read:

(2) The commission may:

(5) Hearings relating to any charge of alleged violation of this chapter may be held before the commission or before a hearing officer [assigned from the Hearing Officer Panel established under section 3 of this 1999 Act] appointed by the commission. The procedure shall be that for a contested case under ORS 183.310 to 183.550.

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

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

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

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

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

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

(A) Dismissal, with or without comment;

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

(D) Seeking a negotiated settlement; or

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

(11) As used in this section:

SECTION 53. The amendments to ORS 244.260 by section 52 of this 1999 Act become operative on January 1, 2004.

DIVISION OF STATE LANDS

NOTE: Sections 54 through 56 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 57. ORS 274.755 is amended to read:

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

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

(a) State Geologist;

(b) Director of Transportation;

(d) Director, State Fish and Wildlife Commission;

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

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

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

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

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

SECTION 57a. The amendments to ORS 274.755 by section 57 of this 1999 Act become operative on January 1, 2000.

SECTION 58. ORS 274.755, as amended by section 57 of this 1999 Act, is amended to read:

(a) State Geologist;

(b) Director of Transportation;

(d) Director, State Fish and Wildlife Commission;

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

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

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

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

SECTION 59. The amendments to ORS 274.755 by section 58 of this 1999 Act become operative on January 1, 2004.

OREGON DEPARTMENT OF

ADMINISTRATIVE SERVICES

(PUBLIC BIDDING)

SECTION 60. ORS 279.045 is amended to read:

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

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

(3) In the hearing the director or board shall consider de novo the notice of disqualification, the record of the investigation made by the public contracting agency and any evidence provided by the parties. In all other respects, hearings before the director shall be conducted in the same manner as a contested case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440 and 183.450. [Hearings before a board shall be conducted under rules of procedure adopted by the board.]

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

(a) If the decision to disqualify a person as a bidder is upheld, the director's costs shall be paid by the person appealing the disqualification.

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

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

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

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

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

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

(7) The circuit court may, in its discretion, stay the letting of the contract which is the subject of the petition in the same manner as a suit in equity. In the event the court determines that there has been an improper disqualification 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 60a. The amendments to ORS 279.045 by section 60 of this 1999 Act become operative on January 1, 2000.

SECTION 61. ORS 279.045, as amended by section 60 of this 1999 Act, is amended to read:

(3) In the hearing the director or board shall consider de novo the notice of disqualification, the record of the investigation made by the public contracting agency and any evidence provided by the parties. In all other respects, hearings before the director shall be conducted in the same manner as a contested case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440 and 183.450. Hearings before a board shall be conducted under rules of procedure adopted by the board.

(a) If the decision to disqualify a person as a bidder is upheld, the director's costs shall be paid by the person appealing the disqualification.

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

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

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

SECTION 62. The amendments to ORS 279.045 by section 61 of this 1999 Act become operative on January 1, 2004.

ECONOMIC DEVELOPMENT DEPARTMENT

SECTION 63. ORS 285A.389 is amended to read:

285A.389. (1) The Economic Development Department shall provide such staff as it determines necessary to accomplish the purposes of ORS 285A.383 to 285A.392. In addition to salary, subject to the limitations otherwise provided by law, any employee of the department shall be reimbursed for all expenses actually and necessarily incurred in the performance of official duties.

(2) Subject to the applicable provisions of the State Personnel Relations Law, the Director of the Economic Development Department shall appoint all subordinate officers[, including hearings officers,] and prescribe their duties and fix their compensation.

(3) The director shall adopt rules necessary for the administration of ORS 285A.383 to 285A.392 pursuant to ORS 183.310 to 183.550.

SECTION 63a. The amendments to ORS 285A.389 by section 63 of this 1999 Act become operative on January 1, 2000.

SECTION 64. ORS 285A.389, as amended by section 63 of this 1999 Act, is amended to read:

(2) Subject to the applicable provisions of the State Personnel Relations Law, the Director of the Economic Development Department shall appoint all subordinate officers, including hearing officers, and prescribe their duties and fix their compensation.

(3) The director shall adopt rules necessary for the administration of ORS 285A.383 to 285A.392 pursuant to ORS 183.310 to 183.550.

SECTION 65. The amendments to ORS 285A.389 by section 64 of this 1999 Act become operative on January 1, 2004.

SECTION 65a. If Senate Bill 1128 becomes law, sections 63 (amending ORS 285A.389), 63a, 64 (amending ORS 285A.389) and 65 of this 1999 Act are repealed.

TEACHER STANDARDS AND PRACTICES COMMISSION

NOTE: Sections 66 through 68 were deleted by amendment. Subsequent sections were not renumbered.

SECTION 69. ORS 342.177 is amended to read:

342.177. (1) [The hearing may be before the Teacher Standards and Practices Commission or may be before three or more members thereof, designated by the commission. A member or a hearing officer, either of whom is appointed by the commission, shall preside at hearings.] Hearings under ORS 342.176 shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. The hearing shall be private unless the person against whom the charge is made requests a public hearing. Students attending school in the district which employs the person shall not be permitted to attend any hearing except as witnesses duly subpoenaed to testify with respect to the charges made. The person against whom the charge is made shall have the right to be represented by counsel and to present evidence and argument. The evidence must be confined to the charges.

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

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

(a) Issue a public reprimand.

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

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

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

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

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

SECTION 69a. The amendments to ORS 342.177 by section 69 of this 1999 Act become operative on January 1, 2000.

SECTION 70. ORS 342.177, as amended by section 69 of this 1999 Act, is amended to read:

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

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

(a) Issue a public reprimand.

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

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

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

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

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

SECTION 71. The amendments to ORS 342.177 by section 70 of this 1999 Act become operative on January 1, 2004.

NOTE: Sections 72 through 74 were deleted by amendment. Subsequent sections were not renumbered.

ADULT AND FAMILY SERVICES DIVISION

SECTION 75. ORS 416.120 is amended to read:

416.120. (1) After having made a determination of liability of a relative pursuant to ORS 416.010 to 416.030, 416.040, 416.050 and 416.061 to 416.100, the Adult and Family Services Division may, in lieu of bringing an action at law on a theory of subrogation under ORS 416.100, give notice to the responsible relative by certified mail at the last-known address of the responsible relative that a contribution pursuant to the scale provided in ORS 416.061 is due and payable to the division for aid given to the needy person and that the relative may request in writing within 30 days of mailing of the notice a hearing on objections to financial responsibility at a time and place, in the county where the relative resides, as specified by the division.

(2) The hearing shall be held before [an examiner or referee, appointed by the division, whose decision is subject to review by the division] a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. The hearing shall be subject to ORS 183.310 to 183.550. The relative sought to be held responsible shall be given notice of the hearing by certified mail or personal service at least 20 days prior to the hearing.

SECTION 75a. The amendments to ORS 416.120 by section 75 of this 1999 Act become operative on January 1, 2000.

SECTION 76. ORS 416.120, as amended by section 75 of this 1999 Act, is amended to read:

(2) The hearing shall be held before [a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act.] an examiner or referee, appointed by the division, whose decision is subject to review by the division. The hearing shall be subject to ORS 183.310 to 183.550. The relative sought to be held responsible shall be given notice of the hearing by certified mail or personal service at least 20 days prior to the hearing.

SECTION 77. The amendments to ORS 416.120 by section 76 of this 1999 Act become operative on January 1, 2004.

SECTION 78. ORS 416.427 is amended to read:

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

(2) Except as provided in ORS 416.430, hearings shall be conducted by a [qualified hearings officer appointed by the Employment Department] hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act.

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

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

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

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

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

SECTION 78a. The amendments to ORS 416.427 by section 78 of this 1999 Act become operative on January 1, 2000.

SECTION 79. ORS 416.427, as amended by section 78 of this 1999 Act, is amended to read:

(2) Except as provided in ORS 416.430, hearings shall be conducted by a [hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act] qualified hearing officer appointed by the Employment Department.

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

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

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

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

SECTION 80. The amendments to ORS 416.427 by section 79 of this 1999 Act become operative on January 1, 2004.

HEALTH DIVISION

SECTION 81. ORS 431.730 is amended to read:

431.730. (1) At the hearing on the resolution, any interested person shall be given a reasonable opportunity to be heard or to present written statements. The hearing shall be for the sole purpose of determining whether a danger to public health exists due to conditions in the affected territory and whether such conditions could be removed or alleviated by the provision of service facilities. [It may be conducted by the Assistant Director for Health or by a hearings officer designated by the assistant director.] Hearings under this section shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. It shall be conducted in accordance with the provisions of ORS 183.310 to 183.550. The Health Division shall publish a notice of the issuance of said findings and recommendations in the newspaper utilized for the notice of hearing under ORS 431.725 (2) advising of the opportunity for presentation of a petition under subsection (2) of this section.

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

SECTION 81a. The amendments to ORS 431.730 by section 81 of this 1999 Act become operative on January 1, 2000.

SECTION 82. ORS 431.730, as amended by section 81 of this 1999 Act, is amended to read:

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

SECTION 83. The amendments to ORS 431.730 by section 82 of this 1999 Act become operative on January 1, 2004.

SECTION 84. ORS 448.255 is amended to read:

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

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

(a) Citation of the rule allegedly violated;

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

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

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

(5) [The assistant director may designate a hearings officer to act on behalf of the assistant director in holding and conducting hearings.] Hearings under this section shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act.

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

SECTION 84a. The amendments to ORS 448.255 by section 84 of this 1999 Act become operative on January 1, 2000.

SECTION 85. ORS 448.255, as amended by section 84 of this 1999 Act, is amended to read:

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

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

(a) Citation of the rule allegedly violated;

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

(5) [Hearings under this section shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act.] The assistant director may designate a hearing officer to act on behalf of the assistant director in holding and conducting hearings.

SECTION 86. The amendments to ORS 448.255 by section 85 of this 1999 Act become operative on January 1, 2004.

OREGON RACING COMMISSION

SECTION 87. ORS 462.405 is amended to read:

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

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

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

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

(3) In lieu of the board of stewards conducting any inquiry and hearing provided for by subsection (1) of this section, the board of stewards may request the commission to appoint and designate a person to conduct such inquiry and hearing who shall be known as a hearings master. The hearings master shall have the same authority and power as the board of stewards in conducting the inquiry and hearing. Any person adversely affected by any hearings master ruling has the right to appeal to the commission as provided for in subsection (4) of this section. The hearings master need not be a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act.

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

SECTION 87a. The amendments to ORS 462.405 by section 87 of this 1999 Act become operative on January 1, 2000.

SECTION 88. ORS 462.405, as amended by section 87 of this 1999 Act, is amended to read:

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

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

(3) In lieu of the board of stewards conducting any inquiry and hearing provided for by subsection (1) of this section, the board of stewards may request the commission to appoint and designate a person to conduct such inquiry and hearing who shall be known as a hearings master. The hearings master shall have the same authority and power as the board of stewards in conducting the inquiry and hearing. Any person adversely affected by any hearings master ruling has the right to appeal to the commission as provided for in subsection (4) of this section. [The hearings master need not be a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act.]

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

SECTION 89. The amendments to ORS 462.405 by section 88 of this 1999 Act become operative on January 1, 2004.

DEPARTMENT OF JUSTICE

(GAMBLING REGULATION)

SECTION 90. ORS 464.500 is amended to read:

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

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

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

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

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

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

(5) [The department may appoint a hearings officer to conduct] Hearings regarding suspension, revocation or denial of bingo, lotto, raffle or Monte Carlo event licenses or permits shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act. The [hearings] hearing officer may administer oaths and conduct the hearings as provided in ORS 183.413 to 183.470. Salaries and expenses of the [hearings] hearing officer shall be as the department shall determine and shall be paid by the department.

SECTION 90a. The amendments to ORS 464.500 by section 90 of this 1999 Act become operative on January 1, 2000.

SECTION 91. ORS 464.500, as amended by section 90 of this 1999 Act, is amended to read:

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

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

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

(5) The department may appoint a hearing officer to conduct hearings regarding suspension, revocation or denial of bingo, lotto, raffle or Monte Carlo event licenses or permits [shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3 of this 1999 Act]. The hearing officer may administer oaths and conduct the hearings as provided in ORS 183.413 to 183.470. Salaries and expenses of the hearing officer shall be as the department shall determine and shall be paid by the department.

SECTION 92. The amendments to ORS 464.500 by section 91 of this 1999 Act become operative on January 1, 2004.

ENVIRONMENTAL QUALITY (EQC AND DEQ)

SECTION 93. ORS 466.185 is amended to read:

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

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

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

SECTION 93a. The amendments to ORS 466.185 by section 93 of this 1999 Act become operative on January 1, 2000.

SECTION 94. ORS 466.185, as amended by section 93 of this 1999 Act, is amended to read:

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

SECTION 95. The amendments to ORS 466.185 by section 94 of this 1999 Act become operative on January 1, 2004.

SECTION 96. ORS 466.305 is amended to read:

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

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

SECTION 96a. The amendments to ORS 466.305 by section 96 of this 1999 Act become operative on January 1, 2000.

SECTION 97. ORS 466.305, as amended by section 96 of this 1999 Act, is amended to read:

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

SECTION 98. The amendments to ORS 466.305 by section 97 of this 1999 Act become operative on January 1, 2004.

SECTION 99. ORS 466.610 is amended to read:

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

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

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

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

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

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

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

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

SECTION 99a. The amendments to ORS 466.610 by section 99 of this 1999 Act become operative on January 1, 2000.

SECTION 100. ORS 466.610, as amended by section 99 of this 1999 Act, is amended to read:

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

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

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

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

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

SECTION 101. The amendments to ORS 466.610 by section 100 of this 1999 Act become operative on January 1, 2004.

SECTION 101a. ORS 466.810 is amended to read:

466.810. (1) Whenever the Department of Environmental Quality has reasonable cause to believe that an underground storage tank or the operation of an underground storage tank violates ORS 466.706 to 466.845 and 466.994 or fails to comply with a rule, order or permit issued under ORS 466.706 to 466.845 and 466.994, the department may investigate the underground storage tank.

(2) After the department investigates an underground storage tank under subsection (1) of this section, the department may, without notice or hearing, make such findings and issue such orders as it considers necessary to protect the public health, safety, welfare or the environment.

(3) The findings and orders made by the department under subsection (2) of this section may:

(a) Require changes in the operation, practices or operating procedures found to be in violation of ORS 466.706 to 466.845 and 466.994 or the rules adopted under ORS 466.706 to 466.845 and 466.994;

(b) Require the owner or operator to comply with the provisions of a permit;

(d) Require any other actions considered necessary by the department.

(4) After the department issues an order under subsection (2) of this section, the department may decommission the underground storage tank or contract with another person to decommission the underground storage tank.

(5) The department shall serve a certified copy of any order issued by it under subsection (2) of this section to the permittee or the permittee's duly authorized representative at the address furnished to the department in the permit application or other address as the department knows to be used by the permittee. The order shall take effect 20 days after the date of its issuance, unless the permittee requests a hearing on the order before the Environmental Quality Commission. The request for a hearing shall be submitted in writing within 20 days after the department issues the order.

(6) All hearings [before the commission or its hearing officer] under this section shall be conducted according to applicable provisions of ORS 183.310 to 183.550 for contested cases.

(7) Whenever it appears to the department that any person is engaged or about to engage in any act or practice that constitutes a violation of ORS 466.706 to 466.845 and 466.994 or the rules and orders adopted under ORS 466.706 to 466.845 and 466.994 or of the terms of any permit issued under ORS 466.706 to 466.845 and 466.994, the department, without prior administrative hearing, may institute actions or proceedings for legal or equitable remedies to enforce compliance therewith or to restrain further violations thereof.

SECTION 101b. The amendments to ORS 466.810 by section 101a of this 1999 Act become operative on January 1, 2000.

SECTION 102. ORS 468.035 is amended to read:

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

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

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

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

(d) May employ personnel, including specialists[,] and consultants [and hearing officers], purchase materials and supplies, and enter into contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.

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

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

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

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

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

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

(k) Shall institute or cause to be instituted in a court of competent jurisdiction, proceedings to compel compliance with any rule or standard adopted or any order or permit, or condition thereof, issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.

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

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

(n) May perform such other and further acts as may be necessary, proper or desirable to carry out effectively the duties, powers and responsibilities of the department as set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.

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

(2) Nothing in this section shall affect the authority of the Health Division to make and enforce rules:

(a) Regarding the quality of water for human or animal consumption pursuant to ORS 448.115 to 448.325, 624.010 to 624.120 and 624.310 to 624.440; and

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

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

SECTION 102a. The amendments to ORS 468.035 by section 102 of this 1999 Act become operative on January 1, 2000.

SECTION 103. ORS 468.035, as amended by section 102 of this 1999 Act, is amended to read:

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

(d) May employ personnel, including specialists, [and] consultants and hearing officers, purchase materials and supplies, and enter into contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.