Chapter 183

NOTES OF DECISIONS

A legislative delegation of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to establish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Administrative regulation providing that failure to perform responsibilities adequately was a ground for employee’s dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied

Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Children’s Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff’d 288 Or 533, 607 P2d 141 (1980)

“Trending factors” published by the Department of Revenue and used to appraise property for purposes of property taxation are not “rules” within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)

Appellate court may review proceeding meeting definition of contested case whether or not proceeding was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)

Circuit court could not entertain action for declaratory judgment directed at PERS, because PERS is subject to APA, which provides exclusive method for review of its actions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied

Board of Education approval of textbook for use in state public schools was not “rule,” but was “order in other than contested case,” and jurisdiction for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)

Preponderance of evidence standard applies where initial license application is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied

COMPLETED CITATIONS: Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)

ATTY. GEN. OPINIONS: State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student conduct proceedings as “contested cases,” (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is fundamentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155

LAW REVIEW CITATIONS: 51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)

183.310 to 183.550

See annotations under ORS chapter 183.

183.310

NOTES OF DECISIONS

The placing of specific names on a ballot by the Secretary of State is not the promulgation of a rule in that the placement does not implement, interpret or prescribe law or policy. Porter v. Myers, 9 Or App 151, 496 P2d 227 (1972), Sup Ct review denied

Administrative act regulating rents in a housing project was a “rule” and not an “order” formulated in a “contested case.” Amazon Coop. Tenants v. State Bd. of Higher Educ., 15 Or App 418, 516 P2d 89 (1973), Sup Ct review denied

A “cease and desist order” by the Board of Optometry requiring an optometrist to discontinue certain advertising, followed by a communication stating that failure to comply would result in proceedings to suspend or revoke his license, was an order subject to petition for review. Aplanalp v. State ex rel Ore. Bd. of Optometry, 21 Or App 501, 535 P2d 573 (1975)

Because the decision to discontinue child care payments was a rule requiring notice and hearing prior to adoption rather than an “internal management directive” which is exempt from the rule-making provisions of the Administrative Procedures Act, it was error to dismiss the suit. Burke v. Children’s Services Div., 26 Or App 145, 552 P2d 592 (1976)

The commission’s consent, pursuant to [former] ORS 483.542, to the City of Portland’s designation of a truck route is not a rule within this section. United Parcel Serv. Inc. v. Ore. Trans. Comm., 27 Or App 147, 555 P2d 778 (1976)

The provision concerning medical expenses in the Public Welfare Division Manual did not fall within the “internal management directive” exception to the rulemaking procedures. Clark v. Public Welfare Div., 27 Or App 473, 556 P2d 722 (1976)

Agency action was a “rule” rather than an “internal management directive” and required compliance with the rulemaking procedures of ORS chapter 183. Gray Panthers v. Pub. Welfare Div., 28 Or App 841, 561 P2d 674 (1977)

Food Stamp Manual provision, which treated tribal land payments to native Americans as “income,” was rule within meaning of this section, and was thus invalid where promulgated without public participation. Burke v. Public Welfare Division, 31 Or App 161, 570 P2d 87 (1977)

Grandparents of prospective adoptive children do not, because of status as grandparents or former custodians of these children, have constitutionally protected liberty interest entitling them to contested case hearing under this section before agency refuses consent to adoption. Graham v. Children’s Services Division, 39 Or App 27, 591 P2d 375 (1979), Sup Ct review denied

Internal management directives and similar actions under this section directed by governmental agency to other agencies or units of government cannot at the same time be orders under this section. Portland Inn v. OTC, 39 Or App 749, 593 P2d 1233 (1979)

Local government boundary commissions are state agencies within meaning of this section. Fosses v. Portland Area LGBC, 43 Or App 647, 603 P2d 1235 (1979)

Children’s Services Division’s original “directive” or “statement” adopting day care payment program constituted implementation of agency policy within meaning of this section, despite informality attending its promulgation. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Agency statement is rule of statutory interpretation and policy for implementation. Morgan v. Stimson Lumber Co., 288 Or 595, 607 P2d 150 (1980)

Actions by Health Division and Environmental Quality Commission under ORS 222.880 are not combined administrative proceedings, but rather separate agency actions each resulting in “final order.” West Side Sanitary Dist. v. Health Div., 289 Or 417, 614 P2d 1151 (1980)

Since provisions of ORS 197.251 do not require that rights of either local government whose comprehensive plan has been submitted for acknowledgment or persons who object to acknowledgment are to be “determined only after an agency hearing at which specific parties are entitled to be heard,” acknowledgment proceedings are not “contested cases” under this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

LCDC orders “acknowledging” local comprehensive plans are not rules within meaning of this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Where school district employees were determined to be in bargaining unit at time of its recognition by school district and no new negotiations were required as to them, Employment Relations Board clarification order was not “tentative or preliminary” declaration and was final order. Reynolds School Dist. v. OSEA, 58 Or App 609, 650 P2d 119 (1982)

Order denying extension of time for filing request for hearing pursuant to ORS 657.875 is “contested case” under this section. Sayers v. Employment Division, 59 Or App 270, 650 P2d 1024 (1982)

“Internal management directives” exempted from definition of rule have two main characteristics: (1) they affect individuals solely in their capacities as members of agency involved rather than as members of general public who may have occasion to deal with agency; and (2) they are not self-executing. Rogue Flyfishers v. Water Policy Review Bd., 62 Or App 412, 660 P2d 1089 (1983)

Order by Environmental Quality Commission denying application for solid waste pollution control facility tax credit certificate is not reviewable in Court of Appeals because EQC proceeding does not satisfy statutory requirements of contested case. Linnton Plywood Assoc. v. DEQ, 68 Or App 412, 681 P2d 1180 (1984), Sup Ct review denied

Attorney general’s letter is not “final order” within meaning of this section. Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 737 P2d 633 (1987)

Rejection of contract bid constituted order in other than contested case. Clarke Electric, Inc. v. State Highway Division, 93 Or App 693 763 P2d 1199 (1988)

State Health Planning and Development Agency decision that medical center proposal to convert acute care beds to skilled nursing facility beds was subject to certificate of need review was preliminary agency decision and not reviewable final order. Merle West Medical Center v. SHPDA, 94 Or App 148, 764 P2d 613 (1988)

Petitioner, who held one-year teaching contract with state college was employee of Higher Education and not college, such that decision not to renew contract was not “order” under this section. Gruszczynski v. Bd. of Higher Ed, 106 Or App 260, 806 P2d 1168 (1991)

Oregon State Apprenticeship Council’s dissolution of Oregon Operating Engineers Joint Apprenticeship and Training Committee cannot lead to contested case, because committee’s specific functions are not rights or privileges within meaning of ORS 183.310 (2)(a)(B). Oregon Operating Eng. v. Oregon State Apprent., 108 Or App 24, 813 P2d 76 (1991), Sup Ct review denied

Notice of rule change issued under ORS 183.355 is not “order” under this section, and judicial review is not available under ORS 183.484. Calif. Table Grape Comm’n v. Dept. of Human Res., 109 Or App 222, 818 P2d 983 (1991)

Directive announcing priorities for inmate access to law library was not “rule” under this section because failure to follow it could not result in disciplinary action. Smith v. Oregon State Penitentiary, 113 Or App 386, 832 P2d 1270 (1992)

Secretary of State qualifies as state agency entitled to conduct contested case hearings. Strombeck v. Secretary of State, 128 Or App 142, 874 P2d 1366 (1994), Sup Ct review denied

“Final order” includes written findings of fact, conclusions of law, reasoning and result constituting final written expression of agency action regardless of how material is labeled. Brian v. Oregon Government Ethics Commission, 319 Or 151, 874 P2d 1294 (1994)

Agency approval of private sector standard without subjecting standard itself to rulemaking process is insufficient to qualify standard as “rule.” Lemma Wine Co. v. National Council on Compensation Insurance, 194 Or App 371, 95 P3d 238 (2004)

Where person has established initial general qualification for, or entitlement to, benefit, proceeding to determine extent of benefit must be conducted as contested case. Corey v. Department of Land Conservation and Development, 210 Or App 542, 152 P3d 933 (2007), on reconsideration 212 Or App 536, 159 P3d 327 (2007), Sup Ct review dismissed

Agency decision rests solely on result of “test” if best way to verify passage or failure is to have person repeat testing process. Rooklidge v. DMV, 217 Or App 172, 174 P3d 1120 (2007), Sup Ct review denied

ATTY. GEN. OPINIONS: Construing the term “agency,” (1976) Vol 37, p 1487; construing the term “rule,” (1976) Vol 37, p 1487; “Guidelines for Implementation of Enrolled House Bill 2145” not subject to rule-making requirements, (1976) Vol 38, p 34;

Establishment and application of standards by Commission for Child Care in awarding grants to contractors of newly established child care information and referral services, (1989) Vol 46, p 133

LAW REVIEW CITATIONS: 53 OLR 478 (1974); 54 OLR 387-389 (1975); 15 EL 223 (1985)

183.315

NOTES OF DECISIONS

Although Department of Corrections may grant inmates greater procedural rights than required by statute, department could not grant right to judicial review not authorized by statute by specifying in rule that certain decisions be treated as order in contested case. Smith v. Dept. of Corrections, 105 Or App 61, 804 P2d 482 (1990)

ORS 163.105 requirement that parole proceeding for person convicted of aggravated murder be conducted in manner prescribed for contested case creates limited exception to parole board’s exemption from Administrative Procedures Act. Larsen v. Board of Parole and Post-Prison Supervision, 206 Or App 353, 138 P3d 16 (2006)

LAW REVIEW CITATIONS: 53 OLR 67 (1973)

183.330 to 183.400

NOTES OF DECISIONS

Where there were validly promulgated rules regarding situations analogous to requirement that petitioner, as condition of receiving further medical assistance, make monthly repayment of overpayments of public assistance funds, adjudication was desirable to establish rule to resolve instant case and subsequent similar situations. Larsen v. Adult and Family Services Division, 34 Or App 615, 579 P2d 866 (1978)

LAW REVIEW CITATIONS: 4 EL 215, 217 (1974)

183.330

NOTES OF DECISIONS

It was not necessary for the Drug Advisory Council to give notice under this section when the State Board of Pharmacy did so in designating a drug as dangerous. State v. Alexander, 6 Or App 526, 487 P2d 1151 (1971)

183.335

NOTES OF DECISIONS

The adopted rules need not be identical to the proposed rules to satisfy the notice requirements of this section. Bassett v. State Fish and Wildlife Comm., 27 Or App 639, 556 P2d 1382 (1976)

Where Children’s Services Division adopted two temporary rules terminating child care payment program but never adopted permanent rule to that effect, plaintiffs-former recipients were entitled to declaratory judgment that CSD’s termination of program was ineffective because of failure to properly adopt rule. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Under this section, temporary emergency rules may be adopted only if agency finds failure to act promptly will result in serious prejudice to public interest or interest of parties; without such showing, temporary rules are invalid. Metro. Hospitals v. State Health Planning, 52 Or App 621, 628 P2d 783 (1981)

Where petitioner challenges Water Resources Commission’s temporary rule amending OAR 690-80-060 (5)(c), commission’s findings and statement of need do not provide adequate support for promulgation of temporary rule and rule was therefore, adopted without compliance with applicable rulemaking procedures and violates Scenic Waterways Act. Waterwatch of Oregon v. Oregon Water Res. Comm., 97 Or App 1, 774 P2d 1118 (1989)

Rule adopted by Department of Insurance and Finance is invalid where notice of proposed rulemaking did not contain adequate fiscal impact statement containing estimate of economic impact caused if rule adopted. Dika v. Department of Insurance and Finance, 312 Or 106, 817 P2d 287 (1991)

Purpose of this section, to provide protection against arbitrary and inadequately informed governmental conduct, has been met where notice informs license holders of potential financial impact, extent of which is unknown. Troutlodge, Inc. v. Dept. of Fish and Wildlife, 113 Or App 123, 830 P2d 622 (1992), Sup Ct review denied

Error on statement of need does not render rulemaking invalid if statement serves purpose of giving notice to potentially affected parties. Assn. of Oregon Loggers v. Dept. of Insurance and Finance, 130 Or App 594, 883 P2d 859 (1994), Sup Ct review denied

Agency consideration of summary prepared by hearing officer who reviewed all submitted material complies with requirement of full consideration by agency of submitted material. Don’t Waste Oregon Committee v. Energy Facility Siting Council, 320 Or 132, 881 P2d 119 (1994)

To challenge rule on procedural grounds, petitioners need not show that they were prejudiced by board’s alleged failure to include adequate statement of financial impact in notice of rulemaking. Oregon Funeral Directors v. Mortuary and Cemetery Bd., 132 Or App 318, 888 P2d 104 (1995)

Fiscal impact statement is sufficient if statement informs public and businesses of economic impact of proposed rule with sufficient detail to allow public and businesses to determine likely fiscal impact on them. Oregon Funeral Directors v. Mortuary and Cemetery Bd., 132 Or App 318, 888 P2d 104 (1995)

Statement of need is intended to identify need perceived by agency, whether or not perception is factually correct. Fremont Lumber Co. v. Energy Facility Siting Council, 325 Or 256, 936 P2d 968 (1997)

Adequacy of fiscal impact statement must be assessed in terms of actual impact, not impact perceived by agency. Fremont Lumber Co. v. Energy Facility Siting Council, 325 Or 256, 936 P2d 968 (1997)

Fiscal impact statement stating that economic impact is unknown, without explanation why impact is unknown, is inadequate. The Building Department, LLC v. Department of Consumer and Business Services, 180 Or App 486, 43 P3d 1167 (2002)

Statement of fiscal impact must identify entities affected by adoption of rule and must give affected entities enough information to evaluate position and participate in adoption process or explain why information is unavailable. Independent Contractors Research Institute v. Department of Administrative Services, 207 Or App 78, 139 P3d 995 (2006), Sup Ct review denied

ATTY. GEN. OPINIONS: Application of filing requirements and statement requirements to rule-making proceedings substantially completed before effective date, (1978) Vol 38, p 1939

183.336

NOTES OF DECISIONS

Small impact business statement must include approximate calculation of total number of small businesses subject to proposed rule. Oregon Cable Telecommunications v. Dept. of Revenue, 237 Or App 628, 240 P3d 1122 (2010)

If agency is unable, based on available information, to provide data required by provision, agency must explain reason for such inability in its notice of proposed rulemaking. Oregon Cable Telecommunications v. Dept. of Revenue, 237 Or App 628, 240 P3d 1122 (2010)

183.355

NOTES OF DECISIONS

It was not abuse of discretion for Employment Relations Board to adopt and apply, in course of contested case, rule that it is “per se” violation of duty to bargain in good faith for employer to make unilateral change regarding mandatory bargaining subject while employer has duty to bargain. Wasco County v. AFSCME, 46 Or App 859, 613 P2d 1067 (1980)

ATTY. GEN. OPINIONS: Application of filing requirements and statement requirements to rule-making proceedings substantially completed prior to effective date, (1978) Vol 38, p 1939

183.360

LAW REVIEW CITATIONS: 4 EL 199 (1974)

183.400

NOTES OF DECISIONS

Appeal procedures established by Administrative Procedures Act were sufficient to sustain delegation of legislative authority made by [former] ORS 487.475, notwithstanding that rule promulgated pursuant to that section did not provide appeal safeguards. Bercot v. Oregon Transportation Commission, 31 Or App 449, 570 P2d 1195 (1977)

Rules can be declared invalid under this section only because of failure to comply with requirements specified herein and not because of failure to state reasoning or factual basis behind rule. International Council of Shopping Centers v. Environmental Quality Comm’n, 41 Or App 161, 597 P2d 847 (1979), Sup Ct review denied

Monetary relief is not available in proceeding to determine validity of rule. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Proceedings for acknowledgment of local comprehensive plans are not a form of rulemaking subject to judicial review under this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Since legislature designated the procedure outlined in this section as appropriate method to challenge local contract review board rules adopted pursuant to [former] ORS 279.015 and [former] ORS 279.017, Court of Appeals had jurisdiction to review rules adopted by local contract review board. Morse Bros. v. City of Lake Oswego, 55 Or App 886, 640 P2d 645 (1982), Sup Ct review denied

“Authority” in phrase “exceeds the statutory authority of the agency” cannot be taken to mean only overall area of agency’s authority or jurisdiction. Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or 562, 687 P2d 785 (1984)

Only when party places rule’s validity at issue in separate civil action may circuit courts determine rule’s validity. Hay v. Dept. of Transportation, 301 Or 129, 719 P2d 860 (1986)

Proper setting for testing application of administrative rule that is valid on its face is in contested case. Oregon Bankers Assn. v. Bureau of Labor and Ind., 102 Or App 539, 796 P2d 587 (1990)

There is justiciable controversy where agency believes there is no conflict and petitioner believes there is conflict, even if agency takes no position on effect of measure on statutes and rules, because agency is deemed to accept measure as constitutional. Merrick v. Board of Higher Education, 103 Or App 328, 797 P2d 388 (1990)

Prohibition in this section against independent challenge of rule by person while that person is engaged in pending contested case or order involving same rule only applies while rule still may be challenged in course of challenging order or result in contested case. Minor v. AFSD, 105 Or App 178, 804 P2d 1170 (1991)

Although Public Utilities Commission denominated action as “order,” action was rule under ORS 183.310 and circuit court did not have jurisdiction to determine rule’s validity. Pacific Northwest Bell Telephone Co. v. Eachus, 107 Or App 539, 813 P2d 46 (1991)

Inspection of prison inmates’ mail tends to promote prison security and fears about possibility of abuse were not cognizable in review under this section. Clark v. Schumacher, 109 Or App 354, 820 P2d 3 (1991)

Review under this statute does not include examination of factual basis for rule or, in case of fee assessment, inquiry into whether assessment is supported by evidence. Unified Sewerage Agency v. Dept. of Environ. Quality, 117 Or App 29, 843 P2d 502 (1992)

Where present permanent rule cross-references former temporary rule, any invalidity or indeterminacy of cross-reference is problem with present rule and challenge to former temporary rule is moot. Edmunson v. Dept. of Ins. and Finance, 314 Or 291, 838 P2d 589 (1992)

Ability of appellate court to declare rule invalid based upon violation of constitutional provisions is limited to instances of facial unconstitutionality. AFSCME Local 2623 v. Department of Corrections, 315 Or 74, 843 P2d 409 (1992)

Action seeking injunction against rule not yet in effect was not action involving enforcement within jurisdiction of circuit court. Alto v. State Fire Marshal, 319 Or 382, 876 P2d 774 (1994)

Court review of rule is limited to determination as to whether rule facially complies with statutory and constitutional requirements. Oregon Newspaper Publishers Association v. Department of Corrections, 329 Or 115, 988 P2d 359 (1999)

Petitioner challenging validity of administrative rule in “manner provided” for review of orders in contested cases is not subject to contested case standing requirement. Lovelace v. Board of Parole and Post-Prison Supervision, 183 Or App 283, 51 P3d 1269 (2002)

Where agency rule is incorporated into terms of contract, court lacks authority to assess validity of rule in action to enforce contract. Coats v. ODOT, 334 Or 587, 54 P3d 610 (2002); Oregon Restaurant Services, Inc. v. Oregon State Lottery, 199 Or App 545, 112 P3d 398 (2005), Sp Ct review denied

Where validity of rule is challenged, duty of court is to determine whether rule, on its face, departs from legal standard expressed in pertinent statutes. WaterWatch v. Water Resources Commission, 199 Or App 598, 112 P3d 443 (2005)

Rule purporting to implement statewide land use planning goal is invalid if rule departs from standard expressed in statute or in planning goal. City of West Linn v. Land Conservation and Development Commission, 200 Or App 269, 113 P3d 935 (2005), Sup Ct review denied

Grant of standing allowing any person to challenge rule does not violate limitations imposed by Oregon Constitution. Kellas v. Department of Corrections, 341 Or 471, 145 P3d 139 (2006)

Record on review of rule may consist only of information whether statutory rulemaking procedure was followed, wording of rule itself read in context and statutory provisions authorizing rule. Wolf v. Oregon Lottery Commission, 344 Or 345, 182 P3d 180 (2008)

LAW REVIEW CITATIONS: 2 EL 336 (1972); 15 EL 238 (1985)

183.410

NOTES OF DECISIONS

An unambiguous regulation, like an unambiguous statute, should not be interpreted but should be enforced according to the clear language. Schoen v. Univ. of Ore., 21 Or App 494, 535 P2d 1378 (1975)

This section does not authorize the Court of Appeals to make a declaration ruling on a question that is not first passed upon by an administrative agency. Ore. State Employes Assn. v. State of Oregon, 21 Or App 567, 535 P2d 1385 (1975); Hopkins v. Dept. of Corrections, 127 Or App 210, 872 P2d 433 (1994)

This section gives Court of Appeals jurisdiction to review only binding declaratory rulings of agencies and therefore court may not review respondent’s denial of petitioner’s request for declaratory ruling. Fadeley v. Ore. Govt. Ethics Comm., 25 Or App 867, 551 P2d 496 (1976); United Brokers, Inc. v. Department of Agriculture, 68 Or App 44, 680 P2d 702 (1984)

A letter from the Employment Relations Board to the Court of Appeals provided insufficient basis for an exception to the general rule that parties may not confer jurisdiction upon the court by stipulation. Lane Council of Govts. v. Lane Council of Govts. Employes Assn., 278 Or 335, 563 P2d 729 (1977)

Where petition requesting Energy Facility Siting Council to take actions regarding disposal of allegedly radioactive waste did not involve owner of landfill or party responsible for waste, raised complex factual issues, was not in form required by Attorney General rules, was not treated by parties as request for declaratory ruling and Council could not grant enforcement relief sought by petitioner, matter was not declaratory ruling proceeding under this section. Forelaws on Board v. Energy Fac. Siting Council, 311 Or 350, 811 P2d 636 (1991)

183.413 to 183.470

LAW REVIEW CITATIONS: 70 OLR 176 (1991)

183.413

NOTES OF DECISIONS

Petitioner received adequate notice of his rights and procedures at hearing when he received notice right before hearing began. Cobine v. MVD, 102 Or App 17, 792 P2d 469 (1990)

183.415 to 183.470

LAW REVIEW CITATIONS: 54 OLR 387 (1975)

183.415

NOTES OF DECISIONS

This section requires record to include proposed findings of fact only when they are in fact made, but does not provide when they are required. Stanfill v. Real Estate Division, 35 Or App 549, 581 P2d 980 (1978), Sup Ct review denied

Show cause order which did not notify doctor of statute, rule or other provision upon which proposed license revocation was based did not meet notice requirements of this section. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978)

Quasi-judicial boundary commission proceeding denying petition to annex 88 acres to city was subject to contested case procedures under this section. Fosses v. Portland Area LGBC, 43 Or App 647, 603 P2d 1235 (1979)

Where Court of Appeals reversed and remanded Real Estate Commissioner’s order suspending petitioner’s real estate sales license, under this section petitioner was entitled, on reconsideration, to notice and opportunity to present argument on all issues involved. Hodges v. Real Estate Div., 45 Or App 753, 609 P2d 421 (1980)

Mailing of notice of hearing before Builders Board to petitioner’s last known address did not constitute “reasonable notice” under this section where his certificate of registration with Builders Board had expired and he no longer had duty under [former] ORS 701.080 to notify Builders Board of address change. Marsh v. Builders Board, 54 Or App 242, 634 P2d 803 (1981)

Failure of hearings officer to assist petitioner in presenting evidence constitutes abuse of hearings officer’s broad discretion in controlling hearing under this section and ORS 183.450. Berwick v. AFSD, 74 Or App 460, 703 P2d 994 (1985), Sup Ct review denied

Proposed order was not required before final order was entered because deputy administrator reviewed entire record on reconsideration. Bob Wilkes Falling v. National Council on Comp. Ins., 108 Or App 453, 816 P2d 1172 (1991), Sup Ct review denied

Once notice of right to appeal is given to all parties, personal service on all parties is not required at subsequent steps in proceeding. Lolley v. SAIF, 141 Or App 281, 917 P2d 1067 (1996)

Where agency has been notified that person is represented by counsel, in addition to required service on person, agency has duty to provide counsel with copies of all important communications with person. ETU, Inc. v. Environmental Quality Commission, 343 Or 57, 162 P3d 248 (2007)

ATTY. GEN. OPINIONS: Intra-agency communications or communications with agency counsel as ex parte communications, (1980) Vol 40, p 321

183.418

NOTE: Repealed as of July 1, 2001

NOTES OF DECISIONS

Where referee treated petitioner as person who did not readily communicate the English language, Employment Appeals Board findings that petitioner was not handicapped person was not supported by substantial evidence. Meyer v. Employment Division, 51 Or App 563, 626 P2d 400 (1981)

Where petitioner’s wife was initially appointed as interpreter but requested to be excused and no new interpreter was appointed, fairness of hearing was impaired since this section provides that interpreter shall be appointed when handicapped person is party to contested case proceeding. Meyer v. Employment Division, 51 Or App 563, 626 P2d 400 (1981)

183.425

NOTES OF DECISIONS

This section by necessary implication, permits the hearing officer to issue commissions for the taking of out-of-state deposition. Campbell v. Bd. of Medical Examiners, 16 Or App 381, 518 P2d 1042 (1974), Sup Ct review denied

183.430

NOTES OF DECISIONS

Under this section, Division’s attempted revocation of day care certificate on ground of unsanitary conditions was ineffective, for only suspension was permissible absent hearing. Reynolds v. Children’s Services Division, 280 Or 431, 571 P2d 505 (1977)

Where plaintiff has not exhausted administrative remedies, Dental Examiners Board has jurisdiction to grant motion for interlocutory relief, but lacks jurisdiction to grant permanent injunction that precludes board from conducting hearing. Van Gordon v. Oregon State Board of Dental Examiners, 34 Or App 607, 579 P2d 306 (1978), Sup Ct review denied

Reasons for prehearing suspension of liquor license under this section must be at least as substantial as those which would justify suspension under general suspension statute, ORS 471.315. Marcoules v. OLCC, 91 Or App 573, 756 P2d 661 (1988)

Hearing is available regarding immediate suspension of license, notwithstanding subsequent expiration of license. Red Willow Adolescent Chemical Dependency Treatment, Inc. v. Children’s Services Division, 152 Or App 710, 954 P2d 1274 (1998)

ATTY. GEN. OPINIONS: Health professional regulatory board duty to disclose investigatory information to licensees or applicants, (2006) Vol 50, No. 8282

LAW REVIEW CITATIONS: 33 EL 665 (2003)

183.450

NOTES OF DECISIONS

A state agency need not be represented at administrative hearings by an attorney unless it chooses to be. Hanchett v. Juras, 12 Or App 33, 504 P2d 1060 (1973)

Reports are not excludable as hearsay where petitioner has option of calling or cross-examining preparer of report. Matthew v. Juras, 16 Or App 524, 519 P2d 402 (1974), Sup Ct review denied; Felling v. Motor Vehicles Division, 30 Or App 479, 567 P2d 581 (1977)

Under provision of this section which provides that agencies may utilize their experience, technical competence and specialized knowledge in evaluation of evidence, finding of Racing Commission that public may lose wagers where licensees enter horse older than conditions set forth for race was permissible though no evidence was offered on point as point was subject with which Commission could be assumed to be familiar. Gregg v. Racing Comm’n., 38 Or App 19, 588 P2d 1290 (1979), Sup Ct review denied

Where Builders Board hearing was reopened and parties stipulated that second hearing was continuation of first, order based on evidence from second hearing plus exhibits from first hearing was invalid because testimony from first hearing was not considered. Schmidt v. Builders Board, 46 Or App 509, 612 P2d 312 (1980)

Where facts which formed basis for decision of Psychiatric Security Review Board did not appear in hearing record but were supplied only from personal knowledge, they could not form the basis for agency decision without notification and opportunity to rebut. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 633 P2d 846 (1981), Sup Ct review denied

Evidence that employer of petitioner, a pharmacist, had been suspended because of same series of events which gave rise to charges against petitioner was immaterial and should have been excluded, but since there was no showing that evidence influenced board’s decision it was harmless. Nichols v. Board of Pharmacy, 61 Or App 274, 657 P2d 216 (1983), Sup Ct review denied

Order dismissing petitioner as student from Oregon Health Sciences University School of Dentistry was reversed and remanded where Hearing Committee considered factual information outside hearing record in contravention of school’s guidelines and this section. Morrison v. U. of O. Health Sciences Center, 68 Or App 870, 685 P2d 439 (1984)

Hearings officer’s “general awareness” that persons with serious disabilities are gainfully employed is not proper subject of administrative notice. Benson v. AFSD, 69 Or App 185, 684 P2d 624 (1984)

Failure of hearings officer to assist petitioner in presenting evidence constitutes abuse of hearings officer’s broad discretion in controlling hearing under this section and ORS 183.415. Berwick v. AFSD, 74 Or App 460, 703 P2d 994 (1985), Sup Ct review denied

Polygraph evidence is admissible over objection of party in prison disciplinary proceeding to test credibility of unnamed informant. Wiggett v. OSP, 85 Or App 635, 738 P2d 580 (1987), Sup Ct review denied

Party may prove case by hearsay evidence even if other party presents direct evidence. Tri-Met v. Employment Div., 88 Or App 122, 744 P2d 296 (1987)

Where facts can be found in record or were permissible inferences from facts in record, referee did not err in taking “judicial notice.” Automotive Technology v. Employment Division, 97 Or App 320, 775 P2d 916 (1989), Sup Ct review denied

Absent clear expression of contrary intent by legislature, requirement that agency decision be supported by “substantial evidence” mandates use of preponderance standard. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied; Gallant v. Board of Medical Examiners, 159 Or App 175, 974 P2d 814 (1999); Staats v. Newman, 164 Or App 18, 988 P2d 439 (1999)

Hearsay evidence is admissible under this section so long as it meets statutory test of reliability. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

Limitations placed on agency representatives regarding giving legal advice or making legal arguments do not apply to assistant attorneys general representing agency at contested case hearings. Llewellyn v. Board of Chiropractic Examiners, 318 Or 120, 863 P2d 469 (1993)

“Judicially cognizable facts” is equivalent to “judicially noticed fact” as used in ORS 40.065 (Oregon Evidence Code Rule 201(b)). Arlington Education Association v. Arlington School District No. 3, 177 Or App 658, 34 P3d 1197 (2001), Sup Ct review denied

In general, where party does not request that agency subpoena person who made report, agency is not obligated to produce person at hearing in order to introduce report. Cole/Dinsmore v. DMV, 336 Or 565, 87 P3d 1120 (2004)

183.460

NOTES OF DECISIONS

Under this section, Real Estate Commissioner who was in attendance for proceedings and “heard case or considered record” was entitled to issue suspension order without benefit of proposed findings and exceptions. Stanfill v. Real Estate Division, 35 Or App 549, 581 P2d 980 (1978), Sup Ct review denied

Where all issues raised by petitioner on appeal were before hearings officer, exhaustion of remedies doctrine did not require that petitioner file exceptions to hearings officer’s proposed order before seeking review of final order. Reforestation General v. National Council on Comp. Ins., 127 Or App 153, 872 P2d 423 (1994), on reconsideration 130 Or App 615, 883 P2d 865 (1994), Sup Ct review denied

183.462

NOTES OF DECISIONS

This section is intended to prevent possibility of agency being persuaded by ex parte communication in formulating ultimate conclusion in contested case. Turnquist v. Employment Division, 72 Or App 101, 694 P2d 1021 (1985)

ATTY. GEN. OPINIONS: Intra-agency communications or communications with agency counsel as ex parte communications, (1980) Vol 40, p 321

183.464

NOTES OF DECISIONS

183.470

NOTES OF DECISIONS

Findings of fact by the agency were mere summaries of the evidence and, therefore, deficient. Graham v. Ore. Liquor Control Comm., 20 Or App 97, 530 P2d 858 (1975)

Agency’s order was insufficient for judicial review. Crumpton v. Dept. of Water Resources, 28 Or App 423, 559 P2d 927 (1977)

Board’s order was insufficient for review for failure to state: facts found to be true, principles of law controlling decision, and rational relationship between facts and conclusions. Reynolds School District v. Martin, 30 Or App 39, 566 P2d 196 (1977)

Fact that Commission’s final order lacked explanation of why petitioner’s license was revoked did not render order invalid, for choice by Commission of whether to revoke, suspend, etc., was neither “finding of fact” nor “conclusion of law” within meaning of this section. Mary’s Fine Food, Inc. v. OLCC, 30 Or App 435, 567 P2d 146 (1977), Sup Ct review denied

Order of Medical Examiners Board did not meet requirements of this section where it failed to state basic facts found to be true, did not set forth any recognizable ultimate facts or specify which of probation conditions was found to have been violated, and lacked explanation of principles and reasoning employed in reaching conclusion. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978)

Failure by a referee to make findings of fact under this section rendered order incomplete and therefore insufficient. Cascade Forest Products v. Accident Prevention Division, 60 Or App 255, 653 P2d 574 (1982)

Citation of statutes under which order may be appealed must include citation of statutes both for appeals to LUBA and for appeals to Court of Appeals. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

Agency order which failed to demonstrate rational nexus between findings of fact and conclusions of law was reversed and remanded. Carr v. AFSD, 66 Or App 830, 676 P2d 359 (1984)

Employment Appeals Board’s failure to make findings of fact concerning petitioner’s contention that there were valid medical reasons for his tardiness rendered insufficient and incomplete its order affirming denial of unemployment compensation. Propst v. Employment Division, 72 Or App 275, 696 P2d 4 (1985)

Order denying hearing request is final order requiring findings of fact and conclusions of law. Hartwick v. AFSD, 73 Or App 104, 698 P2d 59 (1985)

Employment Appeals Board’s failure to make findings of fact concerning petitioner’s contention that he quit work because cumulative effect on him of harassment and work-related grievances made continued employment intolerable, rendered its findings incomplete and insufficient to support its order denying petitioner unemployment benefits. Hannah v. Employment Division, 83 Or App 104, 730 P2d 600 (1986)

Where property tax refund was intercepted by respondent to recover costs previously awarded in unemployment compensation proceeding and petitioner filed petition for review more than 60 days after original order but less than 60 days after amended order, amended order superseded and replaced original order so petition was timely. Callahan v. Employment Division, 97 Or App 234, 776 P2d 21 (1989)

Where Employment Appeals Board failed to make findings of fact as to which act of misconduct was reason for claimant’s termination, conclusion that claimant was discharged for isolated instance of poor judgment is not rationally connected to factual findings. Jackson County v. Employment Div., 99 Or App 719, 784 P2d 119 (1989)

Administrative proceeding can have issue preclusive effect in later proceeding if: issue is identical, was actually litigated and was essential to final administrative decision on merits; party sought to be precluded had full and fair opportunity to be heard and is same party or in privity with party to administrative proceeding; and proceeding was type to which court will give preclusive effect. Nelson v. Emerald People’s Utility District, 318 Or 99, 862 P2d 1293 (1993); Hickey v. Settlemier, 318 Or 196, 864 P2d 372 (1993)

COMPLETED CITATIONS: Butler v. Ins. Dept., 6 Or App 241, 487 P2d 103 (1971), Sup Ct review denied

ATTY. GEN. OPINIONS: Oregon’s Commission for Child Care not required to make “formal” findings concerning available child care information and referral services in communities when awarding grants, (1989) Vol 46, p 133

183.480

NOTES OF DECISIONS

The penalty imposed was set aside because the commissioner’s findings and conclusions were incomplete and thus unlawful in substance. Vincent v. Real Estate Div., 24 Or App 913, 548 P2d 180 (1976)

Until an order is preceded by a contested case hearing, it is reviewed in circuit court, not the Court of Appeals. Solomon v. State Land Board, 25 Or App 311, 548 P2d 1335 (1976)

An intervenor in an action under the energy facility siting statutes, ORS 469.300 to 469.570 and 469.992, has standing to seek judicial review of the agency action on any issue presented, subject to the requirements of this section as long as he can show he was adversely affected or aggrieved. Marbet v. Portland General Electric, 277 Or 447, 561 P2d 154 (1977)

In a proceeding before the Employment Relations Board to certify a bargaining unit under ORS 243.650, an order by the board denying a motion to dismiss the proceeding on the ground that the employer is not a “public employer” under this section and holding that it is such an employer, is not a “final order” appealable under the terms of this section. Lane Council of Govts. v. Lane Council of Govts. Employes Assn., 277 Or 631, 561 P2d 1012 (1977), as modified by, 278 Or 335, 563 P2d 729 (1977)

Employment Relations Board order dismissing objections to conduct of substitute teachers’ representation election that preceded certification order was not final order subject to review under this section. Eugene School District v. Substitute Teacher Organization, 31 Or App 1255, 572 P2d 650 (1977)

Board order, which defined appropriate bargaining unit and directed representation election for city police pursuant to ORS 243.650 et seq., was not “final order” subject to judicial review. City of Hermiston v. Employment Relations Board, 280 Or 291, 570 P2d 663 (1977)

Where Employment Relations Board determined that proposed bargaining unit was inappropriate, this was a final order and appealable. OSEA v. Deschutes County, 40 Or App 371, 595 P2d 501 (1979)

Agency order which left nothing more for applicant or agency to do was final order under this section and was not rendered less final by recognition in order that petitioners might reapply or ask for reconsideration based on submission of additional data. Land Reclamation v. DEQ, 292 Or 104, 636 P2d 933 (1981)

County and its tax assessor have standing, under this section, to seek review of state historic preservation officer’s decision freezing assessed value of property designated as historic under ORS 358.475 to 358.565. Multnomah County v. Talbot, 56 Or App 235, 641 P2d 617 (1982), aff’d 294 Or 478, 657 P2d 684 (1983)

Where school district employees were determined to be in bargaining unit at time of its recognition by school district and no new negotiations were required as to them, Employment Relations Board clarification order was not “tentative or preliminary” declaration and was final order and appealable. Reynolds School Dist. v. OSEA, 58 Or App 609, 650 P2d 119 (1982)

Aggrieved party may appeal state agency’s action to Court of Appeals pursuant to this section and ORS 183.482, even though agency action is land use decision but aspects of decision in which “agency is required to apply the goals” are within exclusive jurisdiction of LUBA and will not be reviewed in first instance by Court of Appeals. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

ERB order designating Division of State Lands Employes’ Association as appropriate bargaining unit was not “final order,” because that determination must be followed by election. DSLEA v. Division of State Lands, 72 Or App 559, 696 P2d 578 (1985)

Appeal of contested case concerning state institution reimbursement and pursuant to this section was subject to more specific statute, [former] ORS 179.650, which grants judicial review of order to circuit court rather than Court of Appeals. Pioneer Trust Bank v. Mental Health Division, 87 Or App 132, 742 P2d 51 (1987)

Petitioner, nonprofit animal protection organization, is not “aggrieved” and lacked standing because petitioner did not show one or more of three factors necessary for person to be “aggrieved.” People for the Ethical Treatment of Animals v. Institutional Animal Care and Use Committee of the University of Oregon, 312 Or 95, 817 P2d 1299 (1991)

Court application of criminal law definition of “probable cause” rather than statutory definition set forth in ORS 244.260 was error. Brian v. Oregon Government Ethics Commission, 126 Or App 358, 868 P2d 1359 (1994), aff’d 320 Or 676, 891 P2d 649 (1995)

Whether Children’s Services Division followed proper procedure in making child placement decision was distinct issue from merits of placement decision and therefore was reviewable by circuit court. Adams v. CSD, 131 Or App 396, 886 P2d 19 (1994), Sup Ct review denied

Aggrieved persons having standing to petition for court review of administrative aspects of adoption denial were not required to also have standing under ORS 109.119. State ex rel Juv. Dept. v. Rivers, 131 Or App 512, 886 P2d 1024 (1994)

Enforcement of order is action taken with “probable cause” even if that order being enforced is erroneous. Hermiston Irrigation Dist. v. Water Resources Dept. 131 Or App 596, 886 P2d 1092 (1994)

Non-agency party has standing to seek judicial review regardless of whether party seeks different ultimate outcome. Brian v. Oregon Government Ethics Commission, 319 Or 151, 874 P2d 1294 (1994)

Legal expenses, personal and emotional distress and damage to reputation are not “substantial and irreparable harm” justifying interlocutory relief. Anderson v. Public Employes Retirement Board, 134 Or App 422, 895 P2d 1377 (1995), Sup Ct review denied

For contested and noncontested cases, claim that agency is proceeding without cause or that irreparable harm will result from nonfinal order must be resolved through injunctive process or other power of circuit court. Oregon Health Care Association v. Health Division, 329 Or 480, 992 P2d 434 (1999)

If agency proceeding is based on interpretation of agency rule, court evaluation of whether agency is proceeding without probable cause is subject to deference ordinarily given to plausible interpretation of rule by agency. Oregon Restaurant Services, Inc. v. Oregon State Lottery, 199 Or App 545, 112 P3d 398 (2005), Sup Ct review denied

LAW REVIEW CITATIONS: 54 OLR 416-427 (1975)

183.482

See also annotations under ORS 183.480 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 183.470)

In cases where evidence not included in the findings of fact is uncontroverted remand to the referee to make findings of fact is unnecessary and the reviewing court has the power to consider such evidence in its opinion. Michelet v. Morgan, 11 Or App 79, 501 P2d 984 (1972)

Right to judicial review of an administrative hearing was an adequate remedy at law, so mandamus would not be to quash service in that hearing. Phillips v. Layman, 15 Or App 107, 514 P2d 1352 (1973)

Court was unable to review contested case arising under ORS chapter 471 in the absence of appropriate administrative rules and standards. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Whether an administrative hearing should or should not have been a contested case is a question properly reviewed by the circuit court. Northwest Environmental Defense Center v. Mid-Willamette Air Pollution Authority, 16 Or App 638, 519 P2d 1271 (1974), Sup Ct review denied

Failure to cite in the order revoking petitioner’s liquor license the administrative regulation upon which it was based was more than an error in procedure and required that the proceeding be remanded. Haviland Hotels v. Ore. Liquor Control Comm., 20 Or App 110, 530 P2d 1259 (1975)

Designation by the Public Employe Relations Board of an appropriate bargaining unit is not a “final order” so as to be subject to appeal. Klamath County v. Laborers Intl. Union of No. Am., 21 Or App 281, 534 P2d 1169 (1975)

Petitioner’s objections to the limited scope of the hearing did not and could not enlarge the scope of the hearing and revitalize contentions that were already waived by previous failure to make a request for a hearing thereon. Whitmire v. Ore. State Bd. of Chiropractic Examiners, 21 Or App 139, 533 P2d 1375 (1975), Sup Ct review denied

In general

Notice to physician, stating that hearing was to consider revocation of his license on grounds that he had “consistently prescribed dangerous drugs” where they were not medically indicated, was sufficient to properly inform him of nature of proceeding against him, notwithstanding that notice failed to make reference to particular sections of statutes as required by ORS 183.415. Bennett v. Board of Medical Examiners, 31 Or App 467, 570 P2d 986 (1977), Sup Ct review denied

Upon appeal, court does not weigh evidence to assess its degree of persuasiveness, but only examines record for existence of substantial evidence. Burton v. Board of Dental Examiners, 31 Or App 1045, 571 P2d 1295 (1977), Sup Ct review denied

An intervenor in an action under the energy facility siting act, ORS 469.300 to 469.570 and 469.992, has standing to seek judicial review of the agency action on any issue presented, subject to the requirements of this section as long as he can show he was adversely affected or aggrieved. Marbet v. Portland General Electric, 277 Or 447, 561 P2d 154 (1977)

Court of Appeals reviews only for errors of law and substantial evidence and does not perform administrative agency’s role of weighing evidence. Dach v. Employment Division, 32 Or App 433, 574 P2d 684 (1978)

In contested case appeal arising under [former] ORS 197.310, sole remedy is direct appeal to Court of Appeals, and thus circuit court did not have jurisdiction to review, in declaratory judgment proceedings, LCDC orders issued with respect to review proceeding conducted pursuant to [former] ORS 197.300. Marion Cty. v. State ex rel LCDC v. 1000 Friends, 35 Or App 443, 582 P2d 17 (1978), Sup Ct review denied

Record did not establish that employer’s substantial rights were prejudiced by referee’s refusal to allow employer to call claimant as witness or cross-examine her beyond scope of direct examination where employer failed to object or show what evidence it would elicit if unlimited examination were allowed. Pac. N.W. Bell v. Emp. Div., 37 Or App 843, 588 P2d 654 (1978)

Meaningful review of Board of Medical Examiner’s order revoking physician’s license was not possible where order lacked explanation of principles and reasoning employed in reaching conclusion that probation condition had been violated. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978)

Employment Relations Board’s determination that dismissal of employee for insubordination was in good faith and for cause was not supported by findings of fact on issue of good faith of officials responsible for transfer order. Ashman v. Children’s Services Division, 37 Or App 865, 588 P2d 665 (1978)

Where there was some testimony that petitioner was retarded and aggressive, there was substantial evidence to support finding that he was suffering from mental disease or defect and was dangerous to himself and others. Valleur v. Psychiatric Review Board, 43 Or App 843, 604 P2d 439 (1979)

Under ORS 657.176, it was Employment Division’s responsibility to develop criteria for “good cause” to leave employment, subject to review under this section whether its assessment of kinds of reasons that are “good cause” is “unlawful in substance.” McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979)

Where dismissed teacher filed appeal more than 60 days after service of Fair Dismissal Appeals Board’s order affirming school district’s dismissal, but within 60 days after denial of petition for reconsideration or rehearing by board, appeal was timely filed under this section. Vorm v. School Dist. No. 40, 45 Or App 225, 608 P2d 193 (1980)

Where Board of Dental Examiners “erroneously interpreted a provision of law” in revoking dentist’s license, error could not be cured on remand and this section required that board’s order be reversed. Megdal v. Board of Dental Examiners, 288 Or 293, 605 P2d 273 (1980)

This section does not contemplate that court on judicial review of one agency’s final order consider whether another agency acted improperly or erroneously interpreted the law. West Side Sanitary Dist. v. Health Div., 289 Or 417, 614 P2d 1151 (1980)

Where petitioner’s wife was initially appointed as interpreter but requested to be excused and no new interpreter was appointed, fairness of hearing was impaired, since [former] ORS 183.418 provides that interpreter shall be appointed when handicapped person is party to contested case proceeding. Meyer v. Employment Division, 51 Or App 563, 626 P2d 400 (1981)

Where agency withdraws order for reconsideration but fails to issue new order, appellate court may reinstate original order for purpose of conducting review. Van Gordon v. Oregon State Board of Dental Examiners, 52 Or App 749, 629 P2d 848 (1981)

Proceedings for acknowledgment of local comprehensive plans are not contested cases subject to review under this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Where agency must draw inferences, appellate review examines whether agency has stated facts and rational basis for drawing inference. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

Aggrieved party may appeal state agency’s action to Court of Appeals pursuant to this section and ORS 183.480, even though agency action is land use decision but aspects of decision in which “agency is required to apply the goals” are within exclusive jurisdiction of LUBA and will not be reviewed in first instance by Court of Appeals. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

Order of Employment Appeals Board that claimants were not entitled to receive unemployment benefits because unemployment was “due to labor dispute” was not supported by substantial evidence. Cropley v. Employment Division, 72 Or App 93, 694 P2d 1025 (1985), Sup Ct review denied

In case before Employment Appeals Board, it was question of law whether petitioner’s work was “subject employment.” White v. Employment Division, 72 Or App 163, 694 P2d 1009 (1985), as modified by 77 Or App 35, 711 P2d 196 (1985)

Requirement for remand where exercise of discretion is inconsistent with rule, officially stated agency policy or prior practice does not require agencies to support consistency of rulings with substantial evidence in record, but requires only that appellate court remand order upon clear showing of unexplained inconsistency. Assoc. of Engineering Employes v. Dept. of Trans., 72 Or App 371, 695 P2d 961 (1985)

Where, after petition for judicial review was filed, and agency issued order granting reconsideration but not expressly withdrawing prior order, petitioner was not required to file amended petition for review and Court of Appeals had jurisdiction of case. Fischer v. SAIF, 76 Or App 656, 711 P2d 162 (1985)

Agency’s failure to follow contested case procedures requires remand where its order did not make clear what were findings of fact based on evidence and what were conclusions of law. C&C Construction v. Senior Services Division, 82 Or App 682, 728 P2d 962 (1986)

Energy Facility Siting Council order determining that council lacks authority to require site certificate in particular case is, in effect, “rejection” of application for certificate, and Supreme Court has jurisdiction, under statute, for direct review. Forelaws on Board v. Energy Fac. Siting Council, 303 Or 541, 738 P2d 973 (1987)

Substantial evidence supported Employment Appeals Board finding that work period missed by employee on Saturday was informal arrangement and not mandatory overtime and EAB could properly find that absences were “isolated instances of poor judgment” or “good faith errors.” Mail-Well Envelope Co. v. Emp. Div., 98 Or App 271, 779 P2d 178 (1989)

Where hearings officer relied solely on one statement of petitioner while ignoring several other statements that petitioner made to contrary, decision that petitioner was employable was unreasonable and not supported by substantial evidence. Matney v. Adult and Family Services Division, 99 Or App 513, 783 P2d 528 (1989)

Where referee ruled that employer had not shown “good cause” to justify untimely filing of medical report, referee acted within delegated range of discretion. Parkview Nursing Home v. Griggs, 100 Or App 659, 788 P2d 472 (1990)

Finding that employer would not allow claimant to continue to work is not supported by substantial evidence because fact that claimant agreed to termination date undermines evidence. J.R. Simplot Co. v. Employment Div., 102 Or App 523, 795 P2d 579 (1990)

In cases where evidence is rejected or disregarded by referee and such action purports to be based on facts, it is appropriate for reviewing court to examine whether referee’s decision to disregard or discount evidence in record is supported by substantial evidence not whether substantial evidence supports claimant’s claim. Garcia v. Boise Cascade Corp., 309 Or 292, 787 P2d 884 (1990)

Where Board of Parole overrode one of two minimum sentences but refused to consider evidence in mitigation on basis that it “was not directly related to the circumstances surrounding the crime,” board erred and refusal was inconsistent with board rules. Calderon-Pacheco v. Board of Parole, 309 Or 454, 788 P2d 1001 (1990)

To recover costs when agency withdraws order, party must show some modification or reversal of order in party’s favor, not just that order was withdrawn. Kilham Stationery v. National Council on Comp. Ins., 109 Or App 545, 820 P2d 842 (1991)

Employment Relations Board correctly interpreted provisions of collective bargaining agreement and substantial evidence supported board’s conclusions that: 1) employee’s dismissal was based on course of conduct; 2) employee was given progressive discipline; and 3) disciplinary notices sent to employee complied with provisions of collective bargaining agreement. OSEA v. Rainier School Dist. No. 13, 311 Or 188, 808 P2d 83 (1991)

Hearsay evidence alone, even if inadmissible in civil or criminal trial, is not incapable of being “substantial evidence” under this section. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

In assessing whether hearsay evidence constitutes substantial evidence, case-specific inquiry is necessary to determine circumstances that include: 1) alternatives to relying on hearsay; 2) importance of hearsay to outcome; 3) existence of supporting or opposing evidence; 4) impact of inability to cross-examine; and 5) consequences of decision. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

If petition for judicial review is filed and agency withdraws order and issues order on reconsideration, petitioner need not file amended petition for judicial review if changes to original order were minor. Nida v. Bureau of Labor and Industries, 112 Or App 1, 826 P2d 1045 (1992)

Court of Appeals does not have authority to remand case without also reversing decision of Workers’ Compensation Board where corrected interpretation of law does not compel a particular action. SAIF Corporation v. Basham, 112 Or App 6, 827 P2d 204 (1992)

When basic facts established nurse suffered from personality and sexual disorders and nurse no longer sought treatment for disorder, Board of Nursing could reasonably deduce ultimate fact that nurse would likely invade privacy and offend dignity of patients. Miller v. Board of Nursing, 115 Or App 84, 836 P2d 749 (1992), Sup Ct review denied

Where Office of Health Policy (OHP) found that hospital MRI project did not exceed statutorily imposed financial threshold requiring certificate of need, OHP made no decision subject to provisions for judicial review of contested case. Mercy Medical Center v. Office of Health Policy, 121 Or App 587, 855 P2d 1156 (1993)

Costs recoverable by petitioner include prevailing party fee under ORS 20.190. Voelz Oil v. Oregon State Fire Marshal, 138 Or App 100, 907 P2d 251 (1995)

In determining whether it has jurisdiction, Court of Appeals must consider any attachments to notice or petition and give party filing notice or petition benefit of all favorable inferences that may be drawn from notice or petition or from attachments. Ososke v. DMV, 320 Or 657, 891 P2d 633 (1995)

Agency expertise does not merit granting of deference in reviewing decision for substantial evidence. Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996)

Agency that is not required to make findings of fact must still include some explanation connecting evidence in record with result reached by agency. Martin v. Board of Parole, 327 Or 147, 957 P2d 1210 (1998)

Review conducted under authority of this section is premised on existence of final agency order; therefore process for challenging nonfinal order is through circuit court action. Oregon Health Care Association v. Health Division, 329 Or 480, 992 P2d 434 (1999)

Requirement that petitioner recite basis for standing has no application to petitions challenging validity of administrative rule. Lovelace v. Board of Parole and Post-Prison Supervision, 183 Or App 283, 51 P3d 1269 (2002)

“Showing” of irreparable injury means demonstration that irreparable injury is at least probable if stay is denied. Arlington School District No. 3 v. Arlington Education Association, 184 Or App 97, 55 P3d 546 (2002)

“Irreparable injury” means injury that cannot reasonably be remedied in court of law. Arlington School District No. 3 v. Arlington Education Association, 184 Or App 97, 55 P3d 546 (2002)

“Colorable claim of error” means claim of error that is substantial and nonfrivolous or seemingly valid, genuine or plausible. Bergerson v. Salem-Keizer School District, 185 Or App 649, 60 P3d 1126 (2003)

COMPLETED CITATIONS: Butler v. Ins. Dept., 6 Or App 241, 487 P2d 103 (1971), Sup Ct review denied

LAW REVIEW CITATIONS

Under former similar statute (ORS 183.480)

10 WLJ 373 (1974); 67 OLR 864 (1988)

183.484

NOTES OF DECISIONS

The circuit court has jurisdiction to hear a claim that the proceeding was a proper case for a contested case hearing but was not so conducted. Buena Dairy Associates v. State Dept. of Agriculture, 25 Or App 381, 549 P2d 689 (1976)

The circuit court has no jurisdiction to review agency orders that trigger the availability of a contested case hearing, and that are subject to modification in such an agency proceeding. Bay River v. Environmental Quality Comm., 26 Or App 717, 554 P2d 620 (1976), Sup Ct review denied

Procedures for judicial review provided by this section are exclusive means for review of LCDC orders under ORS 197.251 acknowledging local comprehensive plans. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Acknowledgment order was remanded where LUBA opinion construing Goal 5 became “officially stated agency position” when it was adopted by LCDC; County failed to cure deficiencies in plan as identified by LUBA and adopted by LCDC; and LCDC did not explain inconsistency between interpretation of Goal 5 in adopted LUBA opinion and its decision to acknowledge. Coats v. LCDC, 67 Or App 504, 679 P2d 898 (1984)

Environmental Quality Commission proceeding denying application for solid waste pollution control facility tax credit certificate is not contested case proceeding and therefore, jurisdiction for review is conferred on circuit court. Linnton Plywood Assoc. v. DEQ, 68 Or App 412, 681 P2d 1180 (1984), Sup Ct review denied

Challenge to decision of Secretary of State regarding compliance with “one-subject rule” of Oregon Constitution must be filed within reasonable time period that commences upon approval of petition for ballot title. Ellis v. Roberts, 302 Or 6, 725 P2d 886 (1986)

Substantial evidence supported order by Department of General Services that bidder on contract failed to meet Minority Business Enterprise and Women Business Enterprise subcontracting goals, and circuit court erred in applying de novo review standard. Keeton-King Construction v. State of Oregon, 105 Or App 41, 802 P2d 711 (1990), as modified by 106 Or App 663, 809 P2d 708 (1991)

Notice of rule change issued under ORS 183.355 is not “order” under ORS 183.310, and judicial review is not available under this section. Calif. Table Grape Comm’n v. Dept. of Human Res., 109 Or App 222, 818 P2d 983 (1991)

Reasonable time for filing preelection challenge may be less than 60 days in some circumstances. State ex rel Keisling v. Norblad, 317 Or 615, 860 P2d 241 (1993)

Reasonable time period for filing challenge based on single subject rule begins with certification of ballot title in case of initiative petition, or effective date of legislation ordering placement on ballot in case of referred measures. State ex rel Keisling v. Norblad, 317 Or 615, 860 P2d 241 (1993)

Legislature may specify reasonable period for filing constitutional challenges to time-sensitive legislation. State ex rel Keisling v. Norblad, 317 Or 615, 860 P2d 241 (1993)

Organization bringing action must itself be adversely affected or aggrieved by decision and may not assert standing based solely on its representation of other persons who have standing. Local No. 290 v. Dept. of Environmental Quality, 323 Or 559, 919 P2d 1168 (1996)

Circuit court acts as record-making court and is not confined to consideration of evidence relied upon by agency. Norden v. Water Resources Dept., 158 Or App 127, 973 P2d 910 (1999), aff’d329 Or 641, 996 P2d 958 (2000)

Maximum time limit for preelection challenge to action or inaction of Secretary of State with respect to election laws is 60 days. Sizemore v. Keisling, 164 Or App 80, 990 P2d 351 (1999), Sup Ct review denied

Review conducted under authority of this section is premised on existence of final agency order; therefore process for challenging nonfinal order is by other means, such as seeking injunction. Oregon Health Care Association v. Health Division, 329 Or 480, 992 P2d 434 (1999)

183.486

NOTES OF DECISIONS

Tort damages are not available as “ancillary relief” to redress effect of official action. Burns v. Board of Psychologist Examiners, 116 Or App 422, 841 P2d 680 (1992)

183.490

NOTES OF DECISIONS

The circuit court has jurisdiction in cases involving unreasonable agency delay, but the circuit court’s order in such a case must be limited to ordering the agency to proceed with greater alacrity. Bay River v. Environmental Quality Comm., 26 Or App 717, 554 P2d 620 (1976), Sup Ct review denied

Where students at college administered by Oregon State Board of Higher Education sought review of course grades through college grievance procedures, judicial review was properly under this section and not under declaratory judgment provisions of Chapter 28. McBeth v. Elliott, 42 Or App 783, 601 P2d 871 (1979)

Petitioners were precluded from obtaining mandamus because they had remedy under APA even if they did not prevail in their attempt to obtain it. Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 737 P2d 633 (1987); Scovell v. Goldschmidt, 106 Or App 111, 806 P2d 181 (1991), Sup Ct review denied

Availability of court order to compel agency action does not extend to provide remedy in situations where petitioner seeks order compelling agency to change action agency has taken. Mendieta v. Division of State Lands, 148 Or App 586, 941 P2d 582 (1997)

183.495

See annotations under ORS 183.497.

183.497

NOTES OF DECISIONS

Under former similar statute (ORS 183.495)

Where agency acts as disinterested adjudicatory tribunal, reversal of agency decision does not entitle prevailing party to attorney fees. Wasco County v. AFSCME, 31 Or App 765, 571 P2d 549 (1977), Sup Ct review denied

Attorney fees will generally be awarded if agency order is not supported by substantial evidence or if agency has erroneously interpreted unambiguous statute, interpreted ambiguous statute in unreasonable manner, or exceeded the scope of agency discretion due to unreasonable interpretation of statute or ignorance of limits on agency discretion. Van Gordon v. Board of Dental Examiners, 63 Or App 561, 666 P2d 276 (1983)

Attorney fees will generally not be awarded if agency interpretation of statute or rule was incorrect but reasonable, or where agency made procedural mistake that was not willful or of constitutional magnitude. Van Gordon v. Board of Dental Examiners, 63 Or App 561, 666 P2d 276 (1983)

No authorization is provided for award of fees for court proceedings ancillary to administrative action under review, or fees generated by administrative actions themselves, but only fees incurred in appealing the decision. Van Gordon v. Board of Dental Examiners, 63 Or App 561, 666 P2d 276 (1983)

Where agency action on remand is discretionary, attorney fees will not be awarded. Oregon Education Association v. Eugene School District 4J, 63 Or App 575, 666 P2d 272 (1983)

Where agency reconsiders and reverses order while judicial review is pending and petition is dismissed, petitioner is not entitled to recover costs. Nichols v. AFSD, 71 Or App 201, 691 P2d 518 (1984)

In general

Where pivotal issue on the merits was whether petitioner, who had gone through marriage ceremony that was subsequently determined to be invalid, was nonetheless “ceremonially married” for purposed of AFS rule, it was obvious that reasonable minds could differ as to the answer and thus the division’s adoption of that view was reasonable although legally incorrect and petitioner was not entitled to attorney fees under this statute. Baptist v. Adult and Family Services Div., 64 Or App 265, 668 P2d 428 (1983)

For petitioner to qualify for award of attorney fees and expenses, agency must have actively opposed petitioner and relief granted must substantially alter or invalidate significant portion of agency order in manner that is expected to benefit petitioner. Johnson v. Employment Div., 64 Or App 276, 668 P2d 416 (1983), Sup Ct review denied; Kusyk v. Water Resources Dept., 164 Or App 738, 994 P2d 798 (2000)

In contested case context if final order is deficient in either fact or law attorney fees may be awarded under this section. Douglass v. AFSD, 64 Or App 439, 668 P2d 1232 (1983)

Petition for attorney fees was denied where legal issues presented by underlying case were relatively novel, precedent was not dispositive and there were salutary purposes to be served by act Commissioner was enforcing so that Commissioner’s actions were reasonable although wrong. Civil Service Bd of Portland v. Bureau of Labor, 67 Or App 729, 680 P2d 16 (1984)

When agency’s function in case has been solely that of disinterested adjudicator, no award of attorney fees is appropriate. Pierce v. Douglas School Dist. No. 4, 68 Or App 1, 680 P2d 654 (1984)

Where agency reconsiders and reverses order while judicial review is pending and petition is dismissed, petitioner is not entitled to recover costs. Nichols v. AFSD, 71 Or App 201, 691 P2d 518 (1984)

Judicial review proceeding is “against a state agency” if agency was “real protagonist” either before or on review. Hoard v. Employment Division, 82 Or App 718, 729 P2d 593 (1986)

Where agency did not participate in making, and did not attempt to defend, decision leading to review, petitioner is not entitled to attorney fees under this section because agency not “real protagonist.” Hoard v. Employment Division, 82 Or App 718, 729 P2d 593 (1986)

Costs in workers’ compensation cases are not controlled by this section because judicial review of those cases is as provided in workers’ compensation statutes, not administrative procedures act. Compton v. Weyerhaeuser Co., 302 Or 366, 730 P2d 540 (1986)

Subject matter jurisdiction over award of costs blocked collateral attack or prior erroneous judgment. Callahan v. Employment Division, 97 Or App 234, 776 P2d 21 (1989)

Where reasonable minds could differ as to scope of law, Employment Division’s action did not lack reasonable basis in law or fact and petitioner was not entitled to attorney fees. North Pacific Supply Co., Inc. v. Emp. Div., 100 Or App 553, 787 P2d 495 (1990), Sup Ct review denied

Court decision rendered on procedural grounds without addressing ultimate merits of claim may be decision “in favor of” petitioner. Kaib’s Roving R.Ph. Agency, Inc. v. Employment Department, 338 Or 433, 111 P3d 739 (2005)

Court finds in favor of petitioner if significant portion of order petitioner challenges is altered or invalidated to benefit or apparent benefit of petitioner, regardless of whether petitioner is prevailing party. G.A.S.P. v. Environmental Quality Commission, 222 Or App 527, 195 P3d 66 (2008)

Objective reasonableness of agency action does not preclude discretionary award of attorney fees where totality of criteria under ORS 20.075 supports award. G.A.S.P. v. Environmental Quality Commission, 222 Or App 527, 195 P3d 66 (2008)

183.650

NOTES OF DECISIONS

Petitioner asking appellate court to engage in de novo review must: 1) separately identify each challenged finding of historical fact in final agency order; 2) identify finding of historical fact by administrative law judge in proposed order that was modified by agency finding; and 3) explain why finding as modified by agency is contrary to preponderance of evidence. Corcoran v. Board of Nursing, 197 Or App 517, 107 P3d 627 (2005)

Independent findings of fact on judicial review are not limited to choosing between conflicting findings of fact contained in proposed and final order. Corcoran v. Board of Nursing, 197 Or App 517, 107 P3d 627 (2005)

183.710 to 183.725

LAW REVIEW CITATIONS: 14 WLJ 14 (1977)

183.715

NOTES OF DECISIONS

“A draft” refers to a preliminary formulation of rules as opposed to a final draft. Bassett v. State Fish and Wildlife Comm., 27 Or App 639, 556 P2d 1382 (1976)