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The Oregon Administrative Rules contain OARs filed through November 15, 2014
 
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BOARD OF PAROLE AND POST-PRISON SUPERVISION

 

DIVISION 80

ADMINISTRATIVE APPEAL

255-080-0001

Exhaustion of Remedies

(1) A Board order is final and effective the date it is signed, however it is not final for purposes of the time period within which to appeal to the Court of Appeals until the inmate/offender exhausts his or her administrative review remedies.

(2) An inmate/offender has exhausted his or her administrative remedies after complying with OAR 255-080-0005, and after the Board denies review, or grants review and either denies or grants relief. The Board shall notify the inmate/offender that exhaustion has occurred and the time for judicial appeal of appealable orders shall run from the mailing date of the notice.

Stat. Auth.: ORS 144.335
Stats. Implemented: ORS 144.335
Hist.: PAR 2-1991, f. & cert. ef. 2-20-91; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 13-2010, f. & cert. ef. 12-1-10

255-080-0005

Procedure for Administrative Review

(1) An offender may obtain administrative review of a final Board action by sending a request for review to the Board within forty-five (45) days after the mailing date on the Board's final action on the issue to be reviewed.

(2) The Board will reject an untimely request for administrative review. Timeliness will be determined as follows for all Board actions except Orders of Supervision:

(a) The request is physically received by the Board on or before the 45th day after the mailing date on the Board's final action on the reviewed issue; or

(b) The request is delivered to the Board:

(A) by mail in an envelope bearing a United States Postal Service (USPS) cancellation stamp, a USPS postage meter electronic imprint, sticker, or stamp, a postage meter sticker or stamp from a "postage evidencing system" that is regulated and approved for use by the United States Postal Service pursuant to 39 CFRs. 501, et seq., that is dated on or before the 45th day after the mailing date on the Board's final action: a postage evidencing system refers to postage by any method other than postage stamps and includes (but is not limited to) postage meters; or

(B) by a parcel delivery service such as, or comparable to, United Parcel Service, Federal Express, or Airborne Express, that indicates the date on which the parcel delivery service received material for delivery to the Board, which date is on or before the 45th day after the mailing date on the Board's final action.

(C) If the Board finds that the administrative review request was not: (a) placed in the mail on the date indicated on the postage meter sticker or stamp or (b) delivered to the parcel delivery service on the date indicated on the parcel delivery service receipt, the delivery rules in OAR 255-080-005(2)(b)(i) and (ii) shall not apply.

(c) In the case of an inmate, if there is no legible USPS cancellation stamp or other postal mailing verification as defined in paragraph (2)(b) above, the request will be treated as timely if the inmate signed and dated the request and placed it in the institutional mailing system, following all applicable Department of Corrections rules, on or before the 45th day after the mailing date on the Board's final action.

(3)(a) For Orders of Supervision (including Orders to Continue/Amend Supervision), an offender must request administrative review within forty-five (45) days after the date he or she received the order. The Board will reject a request for administrative review of an Order of Supervision as untimely unless:

(A) The request is physically received by the Board on or before the 45th day after the date the offender received the order as determined by offender's signature on the order or other proof as stated in paragraph (3)(b); or

(B) The request is delivered to the Board by mail in an envelope bearing a United States Postal Service (USPS) cancellation stamp or other postal mailing verification as defined in paragraph (2)(b) above, dated on or before the 45th day after the date the offender received the order as determined by offender’s signature on the order or other proof as stated in paragraph (3)(b).

(b) The offender’s date of receipt may be established by:

(A) The date the order was signed by the offender, or

(B) If the offender did not sign the order, the Board will accept an electronic chronological entry or a note made by an employee of the Department of Corrections or of the supervisory authority as evidence of the date the offender received the Order of Supervision.

(4) If the Board or its designee finds that the request is timely, and that it is consistent with the criteria as defined in rules 255-080-0010 and 255-080-0011, and meets the deadline requirements, the Board will respond to the request using the procedures outlined in OAR 255-080-0012.

(5) When the Board or its designee grants review, the Board shall send the offender a written response.

(a) If relief is denied, the response will explain the reasons for the decision. When relief is denied, the prior decision stands.

(b) If relief is granted, the response will either implement the relief, or specify the Board action to be taken implementing relief.

(6) When the Board or its designee denies review, the Board shall send the offender written notice of the specific reasons for denial.

(a) When review is denied, the prior decision stands.

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 144.335
Stats. Implemented: ORS 144.335
Hist.: 2PB 1979, f. & ef. 2-1-79; 2PB 11-1981(Temp), f. & ef. 11-25-81; 2PB 1-1982, f. & ef. 5-19-82; 2PB 17-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 8-1988, f. & ef. 7-1-88; PAR 18-1988, f. & ef. 12-6-88; PAR 4-1989, f. & ef. 11-1-89; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 2-1991, f. & cert. ef. 2-20-91; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 7-2000, f. & cert. ef. 6-9-00; PAR 8-2004, f. & cert. ef. 6-14-04; PAR 9-2004(Temp), f. & cert. ef. 9-3-04 thru 3-1-05; PAR 12-2004, f. & cert. ef. 11-2-04; PAR 13-2010, f. & cert. ef. 12-1-10

255-080-0008

Specifications for Administrative Review Request

(1) The request for administrative review shall be substantially in the form specified by the Board in Exhibit O, Administrative Review Request Form, and shall contain:

(a) The name and SID # of the person requesting review.

(b) The heading “Request for Administrative Review”

(c) Identification of the Board action or order for which review is requested, by name of action (i.e., BAF #3, Order of Supervision, etc.) and date of action.

(d) A plain and concise statement of the points for which the offender wants review, specifically identifying how the challenged Board action is alleged to be in violation of statutes or Board rules, or how it is alleged that the decision was not supported by evidence in the record, or in what other way the offender believes the Board’s action to be in error. A request for administrative review must concisely explain how the case fits the criteria for review listed in OAR 255-080-0010.

(e) The request must state, where applicable, what statute, administrative rule, or constitutional provision is alleged to have been violated, including the effective date of the law or rule.

(2) The administrative review request shall be created by any process that makes a clear, legible, black or dark blue image; the Board will not accept text written in pencil, carbon copies, copies on slick paper, or copies darkened by the duplicating process.

(a) All writing shall be legible and capable of being read without difficulty.

(b) The request must be written on standard 8.5" x 11” white or light blue paper.

(c) Each page shall have margins of at least 1” on all sides.

(d) Any attachments to the review request shall be duplicated on standard 8.5" x 11” white paper and must be clear and legible.

(e) Pages shall be consecutively numbered on the right side at either the top or bottom of the page.

(3)(a) The request shall not exceed 8 pages. That limitation does not include additional documentation necessary to support the request. (Under most circumstances, no additional documentation will be necessary.)

(b) Additional documentation in support of the request shall not exceed 10 pages.

(c) Legal arguments relating to the challenged order must be incorporated into the 8-page administrative review request; any claims or allegations included solely in the “additional documentation” will not be considered by the Board in its response.

(4)(a) An offender may request an exception to the limits in these rules, stating a specific reason for exceeding the prescribed limit(s). The request must reach the Board no fewer than fourteen days before the administrative review request is due. The Board, at its discretion, may permit the filing of a review request, and/or additional documentation that exceeds the page limits prescribed in subsection (2) of this rule. The Board may deny an untimely motion under this paragraph on the ground that the offender failed to make a reasonable effort to file the motion on time.

(b) If the Board grants permission for a longer review request, or additional documentation in support of the request, the documents shall conform to the rules set forth above in section (1).

(c) This rule does not create an exception to the timeliness requirements of OAR 255-080-0005. The offender is responsible for requesting an exception and filing his review request within 45 days as required by OAR 255-080-0005

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 144.335
Stats. Implemented: ORS 144.335
Hist.: PAR 13-2010, f. & cert. ef. 12-1-10; PAR 14-2010, f. & cert. ef. 12-1-10; PAR 4-2014(Temp), f. & cert. ef. 3-27-14 thru 9-22-14; PAR 7-2014, f. & cert.ef. 8-8-14

255-080-0010

Criteria for Granting a Review

The criteria for granting a review are:

(1) The Board action is not supported by evidence in the record; or

(2) Pertinent information was available at the time of the hearing which, through no fault of the offender, was not considered; or

(3) Pertinent information was not available at the time of the hearing, e.g., information concern?ing convictions from other jurisdictions; or

(4) The action of the Board is inconsistent with its rules or policies and the inconsistency is not explained; or

(5) The action of the Board is in violation of constitutional or statutory provisions or is a misinterpretation of those provisions.

(6) The action of the Board is outside its statutory grant of discretion.

Stat. Auth.: ORS 144.335 & 183.482(8)
Stats. Implemented: ORS 144.225 & 183.482(8)
Hist.: 2PB 1-1979, f. & ef. 2-1-79; PAR 6-1988, f. & ef. 5-19-88; PAR 18-1988, f. & ef. 12-6-88; PAR 2-1991, f. & cert. ef. 2-20-91; PAR 8-1992, f. & cert. ef. 10-9-92

255-080-0011

Limitations on Requests for Administrative Review

All administrative review requests will be screened by a Board member or a Board designee who shall deny further review of the following:

(1) Administrative review requests determined to be untimely pursuant to rule 255-080-0005;

(2) Requests in which the subject matter relates to a hearing or review and/or Board order other than the Board order being appealed;

(3) Board orders that are not final;

(4) Requests that fail to comply with the requirements of OAR 255-080-0008.

Stat. Auth.: ORS 144.335
Stats. Implemented: ORS 144.335
Hist.: PAR 2-1991, f. & cert. ef. 2-20-91; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 7-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 7-2000, f. & cert. ef. 6-9-00; PAR 9-2004(Temp), f. & cert. ef. 9-3-04 thru 3-1-05; PAR 12-2004, f. & cert. ef. 11-2-04; PAR 13-2010, f. & cert. ef. 12-1-10; PAR 4-2014(Temp), f. & cert. ef. 3-27-14 thru 9-22-14; PAR 7-2014, f. & cert.ef. 8-8-14

255-080-0012

Administrative Review Procedure

(1) If the Board or its designee determines that the request for review is consistent with the criteria in OAR 255-080-0010 and the limits of 255-080-0011, the Board may open the case for review.

(2) The Board may open a case for reconsideration of a finding without receiving a request, without regard to time limits, and without opening all findings for review and appeal.

(3) The Board may conduct the review using the following methods:

(a) Administrative file pass, with the number of concurring votes required by OAR 255-030-0015; or

(b) Other administrative action by the Board or its designee, e.g., to correct errors in the history risk score, crime category, credit for time served, inoperative time or adjusted commitment dates; or

(c) Administrative hearing, in cases where review would cause an adverse result for the prisoner.

(4) When the Board schedules an inmate/offender for an administrative review hearing and the inmate/offender has not received the Hearing Packet, the Board may proceed with the hearing, if the inmate/offender waives the right to adequate notice of the hearing and receipt of the Board Review Packet.

(5) The Board shall send the inmate/offender written notice of the Board decision and findings.

Stat. Auth.: ORS 144.335
Stats. Implemented: ORS 144.335
Hist.: PAR 18-1988, f. & ef. 12-6-88; PAR 2-1991, f. & cert. ef. 2-20-91; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7-2000, f. & cert. ef. 6-9-00

255-080-0015

Administrative Review Hearing Packet

The Administrative Review Hearing Packet shall contain:

(1) Institution face sheet;

(2) Board Action Form granting administrative review;

(3) All information attached to the Board Action Form granting review;

(4) Administrative review request;

(5) All Board Action Forms since the prison term hearing;

(6) Psychological evaluations (last six months);

(7) Correspondence;

(8) Field parole analysis report or comparable report;

(9) Court orders; and

(10) Inmates’ Rights and Board of Parole and Post-Prison Supervision Procedures.

Stat. Auth.: ORS 144
Stats. Implemented: ORS 144
Hist.: PAR 6-1988, f. & ef. 5-19-88; PAR 8-1988, f. & ef. 7-1-88; PAR 18-1988, f. & ef. 12-6-88; PAR 4-1989, f. & ef. 11-1-89

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