Or. Admin. R. 123-200-2200 - Representation of the COBID by Officer or Employee in Contested Case Hearings
(1) An officer or
employee of the COBID may appear on behalf of the COBID in contested case
hearings, subject to the approval and authorization of the Attorney General.
(2) The COBID representative may
not make legal argument on behalf of the COBID.
(a) "Legal argument" includes arguments on:
(A) The jurisdiction of the COBID to hear the
contested case;
(B) The
constitutionality of a statute, rule, or the application of a constitutional
requirement to the COBID; and
(C)
The application of court precedent to the facts of the particular contested
case proceeding.
(b)
"Legal argument" does not include presentation of evidence, examination and
cross-examination of witnesses, presentation of factual arguments, or arguments
on:
(A) The application of the facts to the
statutes or rules directly applicable to the issues in the contested case;
(B) Comparison of prior actions of
the COBID in handling similar situations;
(C) The literal meaning of the statutes or
rules directly applicable to the issues in the contested case; and
(D) The admissibility of evidence of the
correctness of procedures followed.
(3) When an officer or employee of the COBID
represents the agency, the presiding officer shall advise the representative of
the manner in which to make objections and which matters to preserve for
appeal. Such advice is of a procedural nature and does not change applicable
law on waiver of the duty to make timely objection. Where such objections
involve legal argument, the presiding officer shall provide reasonable
opportunity for the agency officer or employee to consult legal counsel and
permit such legal counsel to file written legal argument within a reasonable
time after conclusion of the hearing.
Notes
Stat. Auth.: ORS 183.450(7) & 183.450(8)
Stats. Implemented: ORS 183.450(7)(b)
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