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DEPARTMENT OF CORRECTIONS

 

DIVISION 105

PROHIBITED INMATE CONDUCT AND PROCESSING DISCIPLINARY ACTIONS

291-105-0005

Authority, Purpose and Policy

(1) Authority: The authority for this rule is granted to the Director of the Department of Corrections in accordance with ORS 179.040, 421.068, 421.180, 423.020, 423.030, and 423.075.

(2) Purpose: The purpose of this rule is to define the rules of conduct governing inmates and outline the procedures to be followed in processing disciplinary action(s).

(3) Policy:

(a) It is the policy of the Department of Corrections to hold inmates accountable for misconduct while incarcerated, and to promote and reinforce pro-social behavior by inmates, through a system of disciplinary rules and procedures that embrace the Oregon Accountability Model.

(b) Inmates in Department of Corrections facilities shall be disciplined for violation of specified rules of prohibited inmate conduct in accordance with the procedures set forth in these rules. The primary objectives of these rules are:

(A) To provide for the safe, secure, efficient, and orderly management of Department of Corrections facilities, specifically including the safety and security of Department employees, inmates, and property of the Department of Corrections;

(B) To establish norms of acceptable inmate conduct, and consistent and fair procedures for the processing of inmate misconduct reports and the imposition of disciplinary sanctions, which are understood by both employees and inmates alike;

(C) To establish a comprehensive range of appropriate disciplinary sanctions for violation of the rules of prohibited inmate conduct; and

(D) To provide a consistent Departmental response to like types of misconduct committed by inmates with similar misconduct histories.

(c) To promote these objectives, the rules define appropriate disciplinary sanctions for each rule violation on a disciplinary sanction grid. Inmates found in violation of the rules of prohibited inmate conduct are disciplined in accordance with the sanction grid, subject to deviation upon order of the hearings officer, functional unit manager, or his/her designee for substantial reasons.

(d) The Department intends that the authorization in OAR 291-105-0100 to withdraw an order and direct the disciplinary hearing to be reopened applies retroactively to disciplinary orders issued on, before, or after the effective date of the rule.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 7-1979, f. & ef. 3-14-79; CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 11-2011(Temp), f. & cert. ef. 6-10-11 thru 12-7-11; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0010

Definitions

(1) Adjudicator: The assigned employee within the facility responsible for the disposition of all informal hearings and minor misconduct reports that are to be adjudicated without a formal hearing.

(2) Attempt: Conduct which constitutes a substantial step towards the commission of a rule violation.

(3) Calendar Day: All weekdays, weekends, and holidays.

(4) Conduct Order: An Oregon Department of Corrections form CD 708, that allows restriction of an inmate’s privileges for no more than 72 hours, without the need of a major or minor misconduct report disciplinary hearing, for cited rule violations, in accordance with OAR 291-105-0021(1).

(5) Conspiracy: An agreement between an inmate and one or more persons to engage in, cause, or conceal a rule violation.

(6) Contraband: Any article or thing which an inmate is prohibited by statute, rule or order from obtaining, possessing, or which the inmate is not specifically authorized to obtain or possess or which the inmate alters without authorization.

(7) Controlled Substance: A drug or its precursor as listed in ORS 475.005 through 475.999.

(8) Dangerous or Deadly Weapon: Any instrument, article or substance which is readily capable of causing death or a serious physical injury.

(9) Deadly Force: Physical force which, under the circumstances in which it is used, is readily capable of causing death or serious physical injury.

(10) Department of Corrections (DOC) Employee: Any person who is full time, part time, or under temporary employment by the Department of Corrections; any person under contractual arrangement to provide services to the Department; any person employed by private or public sector agencies who is serving under Department sanctioned special assignment to provide services or support to Department programs within any Department of Corrections facility. Any person, as described above, assigned to work for a residential or extended care Corrections Treatment Program.

(11) Department of Corrections Facility: Any institution, facility, or staff office, including the grounds, operated by the Department of Corrections.

(12) Distribution: The transfer of contraband from one person to another (Distribution includes smuggling.)

(13) Drugs: Any controlled substance.

(14) Electronic Device: An electronic communication device capable of making or receiving wireless transmissions, including but not limited to, cell phone, pagers, or Blue-tooth enabled devices; etc.

(15) Escape Device: Any item specifically designed for, physically altered for, or readily capable of being used to facilitate an escape from a Department of Corrections facility, or from custody.

(16) Explosive: A substance which, when subjected to a suitable initiating impulse, undergoes a chemical change characterized by the liberation of heat in the formation of products which are mainly gaseous.

(17) Fine: A monetary sanction imposed in accordance with the Department of Corrections rule on Prohibited Inmate Conduct and Processing Disciplinary Actions. Inmate fines shall be deposited in the Department of Corrections Inmate Welfare Fund as confiscated funds.

(18) Functional Unit: Any organizational component within the Department of Corrections responsible for the delivery of services or coordination of programs.

(19) Functional Unit Manager: Any person within the Department of Corrections who reports to either the Director, Deputy Director, an assistant director, or an administrator and has responsibility for the delivery of program services or coordination of program operations.

(20) Good Cause: Denoting of adequate or substantial grounds or reason to take a certain action, or fail to take an action prescribed by law. What constitutes a good cause is usually determined on a case-by-case basis and is thus relative.

(21) Harassment–Racial, Religious or Sexual: Directing offensive language or gestures toward or about another person or group or subjecting another to physical contact because of the other person’s or group’s race, sex, color, religion, national origin, age, marital status or disability.

(22) Hearings Officer: A DOC employee assigned to review and dispose of major, and certain minor, misconduct reports through a formal hearing.

(23) Hostage: A person held as security in order to obtain demands.

(24) Inmate: Any person under the supervision of the Department of Corrections, who is not on parole, post prison supervision, or probation status.

(25) Intoxicants: Any substance, including but not limited to, unauthorized medication and alcoholic beverages, which causes a disturbance of mental or physical capacity resulting from the introduction of the substance in the body. Intoxicants do not include controlled substances.

(26) Lesser Included Violation: Any violation which is a lesser degree of the charged violation (for example, Assault III is a lesser included violation of Assault I or Assault II. Contraband III is a lesser included violation of Contraband I or II, etc.)

(27) Local Jail: Any city or county lock up or local correctional facility.

(28) Officer-in-Charge: That person designated by the functional unit manager to supervise the facility and make operational decisions in accordance with policy, rule or procedure during periods when the functional unit manager or officer of the day are not readily available.

(29) Order: Any direction given to an inmate that directs or forbids the doing of some act over which the inmate has control. An order may be written, verbal or gestured communication (including all Department of Corrections functional unit rules and procedures; all federal, state and local laws; conditions of transitional leave; and court ordered terms and conditions).

(30) Oregon Corrections Enterprises (OCE): A semi-independent state agency that is a non-Department of Corrections agency or division, which is under the authority of the Director of the Department of Corrections. For purposes of this rule only, Oregon Corrections Enterprises shall not be considered an external organization.

(31) Oregon Corrections Enterprises (OCE) Employee: Any person employed full-time, part-time, or under temporary appointment by the Oregon Corrections Enterprises. For the purposes of this rule only, employee shall also include any person under contractual arrangement to provide services to the agency; any person employed by private or public sector agencies who is serving under agency-sanctioned special assignment to provide services or support to agency programs.

(32) Physical Force: The use of hands, other parts of the body, objects, instruments, chemical devices, electronic devices, firearms or other physical methods used to restrain, subdue, control, intimidate or to compel persons to act in a particular way or to stop acting a particular way.

(33) Physical Injury: Impairment of physical condition or substantial pain.

(34) Possession: To have physical possession of or otherwise exercise control over property.

(35) Reimbursement: A monetary amount ordered in accordance with the Department of Corrections rule on Prohibited Inmate Conduct and Processing Disciplinary Actions. Reimbursement funds will be credited to the institution or program suffering fiduciary loss or cost from the inmate misconduct, and shall be the actual cost incurred.

(36) Restitution: A monetary amount ordered in accordance with the Department of Corrections rule on Prohibited Inmate Conduct and Processing Disciplinary Actions. Restitution funds will be credited to the institution or program suffering fiduciary loss or cost from the inmate misconduct, and shall be the actual cost incurred.

(37) Security Device: Any fixture, device or tool, the purpose of which is to assist with safety or security.

(38) Security Threat Activity: Inmate behavior which poses a significant threat to the safe and secure operation of the facility, including but not limited to, threatening or inflicting bodily injury on another person, posing a high risk of escape, promoting or engaging in disruptive group behavior, distributing a controlled substance, or being involved in any other activity that could significantly threaten the safe and secure operation of the facility.

(39) Security Threat Group (STG): Any group of two or more individuals who:

(a) Have a common name, identifying symbol, or characteristic which serves to distinguish themselves from others.

(b) Have members, affiliates, or associates who individually or collectively engage, or have engaged, in a pattern of illicit activity or acts of misconduct that violates Oregon Department of Corrections rules.

(c) Have the potential to act in concert to present a threat, or potential threat, to staff, public, visitors, inmates, offenders or the secure and orderly operation of the institution.

(40) Serious Physical Injury: Injury that creates a substantial risk of death, causes serious and protracted disfigurement, impairment of health, loss or impairment of any bodily organ function, or death.

(41) Sexual Activity: Sexual contact including, but not limited to, sexual intercourse, deviate sexual intercourse, kissing, fondling, or manipulation of the genitalia, buttocks, and breasts of another person, or of oneself, in a manner that produces or is intended to produce sexual stimulation or gratification.

(42) Short-Term Transitional Leave: A leave for a period not to exceed 90 days preceding an established release date which allows an inmate opportunity to secure appropriate transitional support when necessary for successful reintegration into the community in accordance with ORS 421.148, 421.510 and the Department’s rule on Short-Term Transitional Leave, Emergency Leaves and Supervised Trips. The Department may grant a transitional leave of up to 30 days for inmates who are not participating in an alternative incarceration program.

(43) Temporary Segregation Status: Placement in a disciplinary segregation unit or local jail pending disciplinary hearing.

(44) Working Day: Monday through Friday, excluding weekends and holidays.

(45) Working File: Those documents maintained in a Department of Corrections facility or community corrections office for administrative and case management purposes.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: CD 7-1979, f. & ef. 3-14-79; CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

Procedures

291-105-0013

Inmate Access to the Rules of Prohibited Conduct

During the reception and orientation process inmates will be provided with the rules on Prohibited Conduct and a notice of inmate rights in a disciplinary hearing. Spanish speaking inmates will receive a copy in Spanish; other inmates with a language barrier will receive assistance from an individual who speaks their language. Inmates with a visual, speech or hearing disability shall be provided with assistance appropriate to the degree of their disability. In addition, copies of OAR 291-105-0005 through 291-105-0100 will be posted in the legal library, and general library of each facility, available for review by inmates, and copies can be obtained from either the Rules Coordinator upon request at the rate of $.50 per page pursuant to the Department of Corrections rule on Release of Public Records, or from the library coordinator upon request at the rate of $.10 per page, as pursuant to the Department of Corrections rule on Legal Affairs (Inmate).

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0015

Rules of Misconduct

(1) Violations Involving Property

(a) 1.01 Arson: An inmate commits arson if he/she starts an unauthorized fire or causes an explosion.

(b) 1.05 Property I: An inmate commits Property I when he/she, except as authorized by a DOC or OCE employee, destroys, abuses, alters, damages, defaces, misuses, tampers with, or wastes materials or property, or fails to properly protect or produce property issued to him/her in a timely manner and:

(A) 1.05.01 The property involved exceeds $75 in value; or

(B) 1.05.02 The misconduct involves the functioning of a security device; or

(C) 1.05.03 The misconduct involves a threat to the safety, security or orderly operation of the facility; or

(D) 1.05.04 The misconduct includes possession of an unauthorized or altered blade, such as a razor blade or pencil sharpener.

(c) 1.06 Property II (minor violation): An inmate commits Property II when he/she, except as authorized by a DOC or OCE employee, destroys, alters, abuses, damages, defaces, misuses, tampers with or wastes materials or property or fails to properly protect or produce property issued to him/her in a timely manner.

(d) 1.10 Contraband I: An inmate commits Contraband I if he/she:

(A) 1.10.01 Possesses any intoxicant; or

(B) 1.10.02 Possesses any drug paraphernalia; or

(C) 1.10.03 Has any controlled substance or intoxicant in his/her urine or blood, or other body parts that is found under any Department-authorized screening process such as urinalysis, breathalyzer, oral swabs, etc. ; or

(D) 1.10.04 Fails to provide, refuses to submit, or submits an unacceptable urine sample for testing; or

(E) 1.10.05 Alters, substitutes, contaminates or destroys a urine sample; or

(F) 1.10.06 Possesses money in the amount of $10 or more.

(e) 1.11 Contraband II: An inmate commits Contraband II if he/she possesses contraband other than that listed in Contraband I (OAR 291 105 0015(d)(A F) and Contraband III (OAR 291 105 0015(f) and it creates a threat to the safety, security or orderly operation of the facility, including but not limited to:

(A) 1.11.01 Tobacco or smoking paraphernalia, unauthorized medication, items of barter (such as jewelry or canteen items not purchased by the inmate), checks, money under $10, or unauthorized sexually explicit material; or

(B) 1.11.02 Items that were obtained by threats of or actual theft, forgery or coercion.   

(f) 1.12 Contraband III (minor violation): An inmate commits Contraband III if he/she possesses contraband other than that listed on Contraband I (OAR 291-105-0015(d)(A-F) and Contraband II (OAR 291-105-0015(e)(A-B), including un-cancelled stamps, expired self-medication, legal material belonging to another inmate, or property in excess of that authorized by staff .

(g) 1.15 Drug Possession: An inmate commits Drug Possession if he/she possesses a controlled substance.

(h) 1.20 Possession of Body Modification Paraphernalia: An inmate commits Possession of Body Modification Paraphernalia if he/she possesses items capable of being used in body modification, including but not limited to motors, needles, ink.

(i) 1.25 Unauthorized Use of Information Systems I: An inmate commits Unauthorized Use of Information Systems I if he/she operates or uses any DOC, OCE or unauthorized information system equipment including, but not limited to, terminals, personal computers, minicomputers, work stations, controllers, printers, copiers, fax machines or phones that exceeds the conditions of use or access granted by the Director, functional unit manager, or designee, as appropriate, in the following manner:

(A) 1.25.01 To send, receive, or read messages or e-mails; access the Internet, or access the AS400, DOC servers or network devices, programs, other unauthorized computer programs, etc;

(B) 1.25.02 To conduct illegitimate business activity; or

(C) 1.25.03 To do unauthorized legal work.

(j) 1.26 Unauthorized Use of Information Systems II: An inmate commits Unauthorized Use of Information Systems II if he/she operates or uses any DOC, OCE or unauthorized information system equipment including, but not limited to, terminals, personal computers, copiers, fax machines, or phones that exceeds the conditions of use or access granted by the Director, functional unit manager, or designee, as appropriate, in the following manner:

(A) 1.26.01 To prepare a letter or other unauthorized document;

(B) 1.26.02 To make copies for personal use (e.g., photos, greeting cards, pictures, newspaper articles); or

(C) 1.26.03 To use the phone in excess of or outside the parameters permitted under the Department’s rules.

(2) Violations Against Persons

(a) 2.01 Staff Assault I: An inmate commits Staff Assault I if he/she:

(A) 2.01.01 Causes physical injury to a DOC or OCE employee, visitor or volunteer; or

(B) 2.01.02 Causes bodily fluids (human or animal) to come in contact with a DOC or OCE employee, visitor or volunteer, including (human or animal) feces, urine, spit, semen and blood, etc.; or

(C) 2.01.03 Causes physical injury to a DOC or OCE employee, visitor or volunteer and uses a dangerous or deadly weapon; or

(D) 2.01.05 Harms or endangers the well being of an animal used to conduct DOC affairs.

(b) 2.02 Staff Assault II: An inmate commits Staff Assault II if he/she refuses to stop his/her assaultive behavior after being ordered to do so which necessitates a DOC or OCE staff member to use physical force to stop the assaultive behavior and the actions result in staff injury.

(c) 2.05 Inmate Assault I: An inmate commits Inmate Assault I if he/she:

(A) 2.05.01 Causes serious physical injury to another inmate or causes injury to an inmate that requires staff transporting the inmate to an outside agency for medical care; or

(B) 2.05.02 Causes physical injury to another inmate and uses a dangerous or deadly weapon; or

(C) 2.05.03 Commits a unilateral attack in a location or under circumstances which creates a threat to the safety, security, or orderly operation of the facility, such as the dining hall or the recreation area ; or

(D) 2.05.04 Refuses to stop his/her assaultive behavior after being ordered to do so which necessitates a DOC or OCE staff member to use physical force to stop the assaultive behavior and which results in no staff or inmate injury.

(d) 2.06 Inmate Assault II: An inmate commits Inmate Assault II if he/she:

(A) 2.06.1 Causes bodily fluids (human or animal) to come in contact with another inmate, including (human or animal) feces, urine, spit, semen and blood, etc.; or

(B) 2.06.02 Commits a unilateral attack or is involved in a mutual fight that causes physical injury to another inmate; or

(C) 2.06.03 Is involved in a mutual fight in a location or under circumstances which creates a threat to the safety, security, or orderly operation of the facility, such as a dining hall or recreation area.

(e) 2.07 Inmate Assault III: An inmate commits Inmate Assault III if he/she commits a unilateral attack or is involved in a mutual fight.

(f) 2.10 Disrespect I: An inmate commits Disrespect I if he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person that involves racial, religious or sexual harassment or a physical threat to the other person.

(g) 2.11 Disrespect II: An inmate commits Disrespect II if he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person the expression of which or under circumstances that create a threat to the safety, security or orderly operation of the facility (including, but not limited to, when one or more other persons are present, or in a location such as a dining hall or recreation yard).

(h) 2.12 Disrespect III (minor violation): An inmate commits Disrespect III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person.

(i) 2.15 Extortion I: An inmate commits Extortion I if he/she compels or induces a DOC or OCE employee or any other person who is not an inmate to act or refrain from acting by threats, force or intimidation. (Extortion includes the use of threats, force or intimidation to collect gambling and other types of debt.)

(j) 2.16 Extortion II: An inmate commits Extortion II if he/she:

(A) 2.16.01 Compels or induces an inmate to act or refrain from acting by threats, force or intimidation (Extortion includes the use of threats, force or intimidation to collect gambling and other types of debt.); or

(B) 2.16.02 Compels or induces a DOC or OCE employee to act or refrain from performing a job duty through use of demands, including but not limited to, changes to housing or work assignments; etc.

(k) 2.20 Sexual Assault: An inmate commits Sexual Assault if he/she engages in non-consensual sexual activity with another person, or when force is used or when the person is unable to consent because of age or incapacitation (mental defect, mental incapacitation or physical helplessness).

(l) 2.25 Sexual Coercion: An inmate commits Sexual Coercion if he/she compels or induces another person to engage in sexual activity by deceit, threats, force or intimidation or for personal favors.

(m) 2.30 Non-assaultive Sexual Activity: An inmate commits Non assaultive Sexual Activity if he/she engages in sexual activity and the sexual activity is conducted without violence, threat of violence, coercion, or use of a weapon.

(n) 2.35 Sexual Solicitation: An inmate commits Sexual Solicitation if he/she solicits another person to engage in sexual activity.

(o) 2.40 Hostage Taking: An inmate commits Hostage Taking if he/she interferes with another person's personal liberty by taking him/her hostage.

(p) 2.45 Body Modification: An inmate commits body modification if he/she alters or allows to be altered his/her body or the body of another by tattooing, piercing, puncturing, scarring, etc., that includes modifying or perpetuating a previous piercing or tattoo.

(3) Violations Involving Fraud or Deception

(a) 3.01 False Information to Employees I: An inmate commits False Information to Employees I if he/she presents or causes the presentation of false or misleading information to a DOC or OCE employee that creates a threat to the safety, security or orderly operation of the facility. False or misleading information shall include gestures, verbal or written communication.

(b) 3.02 False Information to Employees II (minor violation): An inmate commits False Information to Employees II when he/she presents or causes the presentation of false and misleading information to DOC or OCE employees. False or misleading information includes gestures, verbal or written communication.

(c) 3.05 Forgery: An inmate commits Forgery if he/she falsely makes, completes, alters or presents a written instrument.

(d) 3.10 Gambling: An inmate commits Gambling when he/she wagers anything of value in games of chance, or an inmate possesses paraphernalia associated with gambling or possesses the proceeds of gambling activity, money or otherwise.

(e) 3.15 Fraud: An inmate commits fraud if he/she deceives another person or business in order to obtain money, property or something of value.

(4) Violations Against the Orderly Operation of the Department or Facility:

(a) 4.01 Disobedience of an Order I: An inmate commits Disobedience of an Order I if he/she overtly refuses to promptly , or in a timely manner, comply with a valid order, which creates a threat to the safety, security, or orderly operation of the facility (such as when one or more other persons are present).

(b) 4.02 Disobedience of an Order II: An inmate commits Disobedience of an Order II if he/she fails to comply with a valid order, which creates a threat to the safety, security or orderly operation of the facility (such as when one or more other persons are present).

(c) 4.03 Disobedience of an Order III (minor violation): An inmate commits Disobedience of an Order III if he/she fails to comply with a valid order.

(d) 4.04 Transitional Leave Violation: An inmate commits Transitional Leave Violation if he/she refuses to follow a valid order or conditions of transitional leave.

(e) 4.05 Disturbance: An inmate commits a Disturbance if he/she advocates, incites, creates, engages in, maintains or promotes a situation characterized by unruly, noisy, or violent conduct or unauthorized group activity, which disrupts the orderly administration of or poses a direct threat to the security of a facility, facility programs or the safety of DOC or OCE employees or other persons.

(f) 4.10 Distribution I: An inmate commits Distribution I if he/she:

(A) 4.10.01 Distributes or has distributed to him/her any controlled substance, intoxicant, drug paraphernalia or money in the amount of $10 or more; or

(B) 4.10.02 Possesses such items as listed in (A) above which have been packaged for distribution.

(g) 4.11 Distribution II: An inmate commits Distribution II if he/she:

(A) 4.11.01 Distributes or has distributed to him/her or manufactures contraband that creates a threat to the safety, security and orderly operation of the facility; or

(B) 4.11.02 Possesses such items as listed in (A) above which have been packaged for distribution.

(h) 4.15 Compromising an Employee: An inmate commits Compromising an Employee when he/she knowingly engages a DOC or OCE employee or DOC contractor or volunteer in a personal or business transaction including, but not limited to, through the use of bribery, contraband distribution or sexual solicitation, either directly or through another person(s).

(i) 4.20 Escape I: An inmate commits Escape I if he/she departs without authorization from:

(A) 4.20.01 Within the security perimeter of a facility; or

(B) 4.20.02 The immediate control of DOC or OCE staff while in secure physical custody and outside the facility security perimeter.

(j) 4.21 Escape II: An inmate commits Escape II if he/she departs without authorization from:

(A) 4.21.01 The grounds of a minimum security facility without a security perimeter; or

(B) 4.21.02 The direct supervision of personnel authorized to supervise inmates while outside the facility security perimeter; or

(C) 4.21.03 Transitional leave and an escape warrant has been issued.

(k) 4.25 Possession of an Escape Device: An inmate commits Possession of an Escape Device if he/she possesses any item specifically designed for, physically altered for, or readily capable of being used to facilitate an escape from a DOC facility or from custody.

(l) 4.30 Possession of a Weapon: An inmate commits Possession of a Weapon if he/she possesses an instrument, article or substance that is specifically designed for, physically altered for, or readily capable of causing death or serious physical injury to a person or animal used to conduct DOC affairs.

(m) 4.33 Possession of an Electronic Device: An inmate commits Possession of an Electronic Device if he/she possesses an unauthorized electronic communication device.

(n) 4.35 Racketeering: An inmate commits Racketeering if he/she engages in illicit activity that is carried out for the purpose of personal or financial gain through acts of crime, extortion of money or advantage by threats of force.

(o) 4.40 Unauthorized Area I: An inmate commits Unauthorized Area I when he/she fails to be present or is in any location not designated by assignment, programmed activity, call out or staff directive that creates a threat to the safety, security or orderly operation of the facility.

(p) 4.41 Unauthorized Area II (minor violation): An inmate commits Unauthorized Area II when he/she fails to be present or is in any location not designated by assignment, programmed activity, call out or staff directive.

(q) 4.45 Unauthorized Organization I: An inmate commits Unauthorized Organization I if he/she involves himself/herself with a group of two or more persons, whether formal or informal, and who collectively or in concert creates or actively promotes, recruits, participates in or involves himself/herself in security threat activity.

(r) 4.46 Unauthorized Organization II: An inmate commits Unauthorized Organization II if, except as specified by Department of Corrections rule on Group Activities (Inmate) (OAR 291 145):

(A) 4.46.01 Supports, displays, or endorses through verbal, visual or written acts or communication (e.g., STG tattoos, STG graffiti, STG hand signs) any club, association or organization which is a security threat group; or

(B) 4.46.02 Engages in a petition drive without specific authorization from the functional unit manager.

[ED. NOTE: Exhibits referenced are not included in rule text. Click here for PDF copy of exhibit(s).]

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: CD 8(Temp)/CD 11(Temp)/CD 12(Temp), f. & ef. 10-20-72 thru 2-16-73; CD 33, f. 6-16-76, ef. 7-1-76; CD 34(Temp), f. & ef. 7-19-76; CD 36, f. 11-5-76, ef. 11-15-76; CD 7-1979, f. & ef. 3-14-79; CD 19-1979(Temp), f. & ef. 10-19-79, Renumbered from 291-040-0050; CD 13-1980, f. & ef. 4-15-80, Renumbered from 291-040-0050; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-14-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 9-2009, f. 6-24-09, cert. ef. 7-1-09; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

Procedures for Disciplinary Action

291-105-0021

Procedures for Handling Misconduct by Inmates

(1) Corrective Action: DOC or OCE employees shall be expected to use less than formalized procedures if the act(s) of misconduct do not constitute a threat to life, health, facility security or good order, employee authority or property and in a manner that promotes and embraces the Oregon Accountability Model. Corrective action may include: reprimand, warning and counseling, and as authorized by the functional unit manager or officer-in-charge, loss of leisure activities conduct order (CD 708) for no more than 72 hours.

(a) Staff issuing a conduct order shall promptly notify the inmate of the action.

(b) Staff issuing a conduct order shall promptly complete the conduct order and forward it to the officer-in-charge or designee for review.

(c) The officer-in-charge or designee shall review and approve, cancel or modify the conduct order within four hours or as soon as practicable of it being issued by staff. If the officer-in-charge or designee determines that the incident warrants a misconduct report rather than a conduct order, the officer-in-charge or designee will ensure the conduct order is cancelled.

(d) A copy of the conduct order shall be delivered to the inmate within four hours or as soon as practicable.

(2) Misconduct Reports:

(a) When the misconduct justifies submission of a misconduct report, the DOC or OCE employee shall file a misconduct report with an immediate supervisor or the officer in charge no later than 24 hours AFTER sufficient evidence is gathered, discovered, or observed to support a charge of violation of rules. Determination of the sufficiency of evidence shall be a matter of judgment for the employee submitting the report and the immediate supervisor reviewing the report.

(b) The reviewing supervisor will ensure the report is accurate, appropriate and supported by sufficient information. The supervisor will then sign the report. The reviewing supervisor or designee shall be responsible for providing the inmate with a copy of the misconduct report, rules of prohibited conduct, and the notice of hearing and inmate rights within 24 hours of the filing of the report unless the inmate is unavailable to be served.

(c) The hearing may be held within 24 hours with the inmate's consent.

(d) The misconduct report shall be submitted on a Department of Corrections form, and shall be as specific and comprehensive as possible.

(A) The misconduct report shall include a description of any unusual relevant inmate behavior and information regarding how the employee became aware of the behavior. The misconduct report must contain sufficient and complete facts to support the alleged rule violation(s), including a description of what the restitution is for and the amount of restitution to be ordered, if it is possible to determine.

(B) Attempt and Conspiracy: If an inmate attempts or conspires to commit an act of prohibited conduct, it shall be considered the same as if the inmate had completed the act.

(e) The misconduct report must specifically allege all the major or minor rule violations the inmate is alleged to have violated, and demonstrate conduct constituting an attempt or conspiracy. Neither the hearings officer nor the adjudicator may add or change any violations. The hearings officer may find the inmate in violation of lesser included violations.

(f) Reports from DOC or OCE employee witnesses shall also be submitted.

(g) When the alleged misconduct occurs while the inmate is in the temporary physical custody of a jurisdiction other than the Department of Corrections, employees from that jurisdiction may provide a written description of the misconduct to Department employees.

(A) On review of such written information, the officer-in-charge at the facility receiving the inmate back into the physical custody of the Department may determine that the described action violates a rule(s) of prohibited inmate conduct and direct that a misconduct report be submitted.

(B) The written description provided by the temporary custody jurisdiction shall accompany the misconduct report. A misconduct report shall not be submitted absent a written description of the allegation from the temporary physical custody jurisdiction.

(C) If it is determined that the other jurisdiction maintained the inmate in a similarly restrictive status, the inmate shall be credited with the number of days he/she was held in segregation type status by the other jurisdiction.

(3) Temporary Placement in Disciplinary Segregation Status: An inmate charged with committing a rule violation may be placed in temporary disciplinary segregation status pending resolution of the charge. This action will be taken when the functional unit manager or the officer in-charge determines that the alleged rule violation charged is of such seriousness that the good order and security of the facility requires immediate removal of the inmate from the general population, or it is determined the inmate is a threat to the community or is likely to escape or abscond.

(a) If temporary disciplinary segregation status is ordered, the officer in charge must complete the portion of the Department of Corrections misconduct report specifying the reason(s) why immediate temporary disciplinary segregation of the inmate was deemed necessary.

(b) A completed copy of the Department of Corrections misconduct report will be forwarded to the functional unit manager or designee who will review the inmate's pre hearing detention status within 72 hours of the inmate's placement in temporary disciplinary segregation status. If approved, the functional unit manager or designee will initial the report. If the inmate is temporarily confined in a local jail while on short term transitional leave or emergency leave, the functional unit manager or designee will be notified for review of the inmate's status, within 72 hours of the inmate's confinement.

(4) Scheduling a Hearing:

(a) An inmate charged with a rule violation shall be scheduled for a hearing as soon as practicable.

(5) Initiating a Hearing:

(a) A hearing shall be initiated within ten calendar days (including Saturdays, Sundays, and legal holidays) if the inmate is placed in temporary segregation status.

(b) All other hearings shall be initiated as soon as practicable. For significant delays, reasons for longer timeframes shall be made part of the hearing record.

(c) When an inmate charged with a level I or level II rule violation is released from custody prior to a hearing being held, a hearing will be initiated as soon as practicable upon his/her return to DOC custody.

(d) The hearing may be postponed or continued for a reasonable period for good cause as provided in OAR 291-105-0064. The reason(s) for the postponement or continuance shall be made part of the record.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0026

Hearings Officers Responsibilities

(1) Unless waived by the inmate, a formal hearing shall be conducted by the hearings officer on all misconduct reports classified by the adjudicator as charging a major rule violation(s), and included minor violation(s), and on all misconduct reports charging a minor rule violation(s) for which an inmate requests a formal hearing.

(2) Prior to the formal hearing, the hearings officer shall review the misconduct report alleging major rule violation and, if there is no prima facie case for a major rule violation, dismiss the major violations and refer the minor violations back to the adjudicator for an informal hearing. The hearings officer may substitute minor violations as lesser included violations.

(3) The hearings officer shall not have been a witness to the event, have personal knowledge of any material, disputed fact relating to the case or have participated in the case as a charging or investigating officer.

(4) The hearings officer will conduct the hearing and shall decide, based upon the evidence, whether the inmate has violated the rule(s) as charged in the misconduct report. The hearings officer may not add or change the violation(s) in the misconduct report. The hearings officer may find a violation of a lesser included violation (see Definitions).

(5) The hearings officer may dismiss the alleged rule violation(s) at any stage of the proceedings, with or without prejudice, stating in writing the reason for the dismissal. An alleged rule violation(s) dismissed without prejudice may be resubmitted in another misconduct report utilizing the same process as provided in OAR 291-105-0021(2).

(6) The hearings officer or other employees as requested by the hearings officer shall report disciplinary actions which involve security threat activity to the facility's security threat manager.

(7) Behavioral Health Services staff will be notified when inmates with mental health, developmental disability issues, or inmates that have engaged in self-harm activities or suicide attempts are placed in disciplinary segregation or are scheduled for a disciplinary hearing.

(a) Behavioral Health Services staff will then determine whether an evaluation shall be submitted to the hearings staff in the institution housing the inmate.

(b) If an evaluation is to be provided, Behavioral Health Services staff will contact hearings staff within two working days of receiving notification and advise them that an evaluation will be submitted for consideration at the hearing. Behavioral Health Services staff will include the timeline for submission of the evaluation.

(c) The hearings officer will postpone the hearing if necessary, to ensure that such an evaluation is considered in the case at issue.

(8) The mental health evaluation shall address the following:

(a) Is the inmate able to understand the charges and the hearing process at this time;

(b) From a mental health standpoint, should sanctions be modified or are sanctions for the alleged misconduct contraindicated; and

(c) Did the inmate’s mental health status contribute to the alleged violation.

(9) If a mental health evaluation is not provided by Behavioral Health Services staff prior to the inmate’s hearing, the hearings officer may request a mental health evaluation be completed on the inmate prior to disposition of the hearing.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1987, f. & ef. 8-20-86; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0028

Conduct of Formal Hearings on Major and Minor Violations

(1) Unless waived by the inmate, a formal hearing shall be conducted by the hearings officer on all misconduct reports charging a major rule violation(s), and included minor violations, on all misconduct reports charging a minor rule violation(s) for which an inmate requests a formal hearing, and on all misconduct reports referred by the adjudicator for a formal hearing in accordance with OAR 291-105-0041(6).

(2) The findings must be on the merits. Technical and clerical errors in the writing or processing of the misconduct report should not be grounds for dismissal, unless there is substantial prejudice to the inmate.

(3) Standard of Proof: Rules violation(s) shall be found upon proof by a preponderance of the evidence. The term preponderance of the evidence means the greater weight of evidence (e.g., 51% vs. 49%). It is such evidence that, when weighed with that opposed to it, has more convincing force and is more probably true and accurate.

(4) The hearings officer shall consider such evidence as would be considered by reasonable persons in the conduct of their serious affairs.

(5) Once the formal hearing has begun, if the hearings officer determines that the major violations are not supported by the facts as written in the misconduct report, the hearings officer may substitute appropriate minor violations as lesser included violations and proceed with the hearing.

(6) At the hearing, the inmate will be allowed to speak in his/her own behalf, exercise his/her rights, and submit evidence as allowed in OAR 291-105-0056.

(7) The hearings officer may pose questions during the hearing.

(8) An investigation shall be conducted in a formal hearing upon the inmate's request if the information sought, taken in the light most favorable to the inmate, together with reasonable inferences to be drawn from the information, would constitute a defense to the charge or substantially mitigate the violation. The information sought must be within the ability of the facility to procure. If a request for investigation is denied, the reason(s) for denial shall be made a part of the record.

(9) Testimony of Witnesses:

(a) The hearings officer shall direct the scheduling and taking of testimony of witnesses at the hearing. Witnesses may include inmates, employees, or other persons. Testimony may be taken in person, by telephone, or by written report or statement.

(b) The inmate may request that the hearings officer schedule witnesses to present testimony at the hearing. The request should be submitted to the hearings officer in writing in advance of the hearing, and include a list of the person(s) the inmate requests be called to testify and the questions sought to be posed to each person. Requests for witnesses must minimally be made to the hearings officers at the time of the hearing. The hearings officer shall arrange for the taking of testimony from such witnesses as properly requested by the inmate, subject to the exclusions and restrictions provided in these rules. Requests for witnesses made or received after a hearing is decided will not be considered.

(c) The inmate shall not directly pose questions to any witness.

(d) The hearings officer may limit testimony when it is cumulative or irrelevant.

(e) The hearings officer may exclude a specific inmate or employee witness upon finding that the witness' testimony, if taken in the light most favorable to the inmate, together with the reasonable inferences to be drawn from that testimony, would not constitute a defense to the charge or substantially mitigate the violation, or that the witness' appearance at the hearing would present an immediate undue risk to the safe, secure, or orderly operation of the facility, specifically including the safety and security of DOC or OCE employees and inmates. If a witness is excluded, the reason(s) shall be made a part of the record.

(f) The hearings officer may exclude other persons as witnesses upon finding that the witness' testimony would not assist the hearings officer in the resolution of the disciplinary action, or that the witness' appearance at the hearing would present an undue risk to the safe, secure, or orderly operation of the facility, specifically including the safety and security of DOC or OCE employees and inmates. The reason(s) for exclusion shall be made a part of the record.

(g) The hearings officer may, on his/her own motion, call witnesses to testify.

(h) Witnesses requested by the inmate may refuse to testify.

(i) Persons requested as witnesses, other than inmates or employees, may refuse to appear or testify.

(j) All questions that may assist in eliciting evidence that, if taken in the light most favorable to the inmate, together with the reasonable inferences to be drawn from that evidence, would constitute a defense to the charge or substantially mitigate the violation shall be posed. The reason for not posing a question will be made part of the record.

(k) Confidential Informants:

(A) When confidential informant testimony is submitted to the hearings officer, the identity of the informant and the verbatim statement of the informant shall be submitted to the hearings officer in writing using form CD 1276, but shall remain confidential in accordance with OAR 291-105-0036(3).

(B) In order for the hearings officer to rely on the testimony of a confidential informant, information must be submitted to the hearings officer from which the hearings officer can find that the informant is a person who can be believed or that the information provided in the disciplinary action at issue is truthful.

(10) Documents and Physical Evidence:

(a) An inmate participating in a formal disciplinary hearing may present documents and physical evidence during the hearing, subject to the exclusions and restrictions provided in these rules.

(b) The reporting employee(s) or agent(s) of the Department of Corrections or Oregon Corrections Enterprises who are knowledgeable of the rule violation(s) charged in the misconduct report(s) may submit documents and physical evidence in advance of or during the hearing.

(c) The hearings officer may exclude documents and physical evidence upon finding that such evidence would not assist the hearings officer in the resolution of the disciplinary action, or that such evidence would present an undue risk to the safe, secure, or orderly operation of the facility, specifically including the safety and security of DOC or OCE employees and inmates. The reason(s) for exclusion shall be made a part of the record.

(d) The hearings officer may classify documents and physical evidence as confidential upon finding that disclosure would present an undue risk to the safe, secure, or orderly operation of any Department of Corrections facility, specifically including the safety and security of DOC or OCE employees and inmates, or that disclosure would interfere with an ongoing official investigation. The reason(s) for classifying documents and physical evidence as confidential shall be made a part of the record. Documents and physical evidence classified as confidential by the hearings officer shall not be shown or otherwise provided to the inmate.

(e) The hearings officer may show to the inmate or read into the record documents received in evidence. However, the hearings officer will not provide copies of the documents to the inmate. Inmates may request and obtain copies of nonexempt records in accordance with the Department’s rule on Release of Public Records (OAR 291-037).

(11) The hearings officer shall determine whether a violation has occurred and, if so, impose the appropriate sanction on the grid.

(a) The hearings officer may postpone the rendering of a decision for a reasonable period of time, not to exceed three working days, for the purpose of reviewing the evidence and imposing the appropriate sanction. The decision will be based solely upon information obtained in the hearing process, including DOC or OCE employee reports, the statements of the inmate charged, and evidence derived from witnesses and documents.

(b) Attempt and Conspiracy: An inmate who attempts or conspires to commit a rule violation shall be found in violation of the rule and shall be subject to appropriate sanctions on the same basis as if the inmate had committed the rule violation.

(12) At the formal hearing the hearings officer shall decide:

(a) No Violation: The hearings officer may find that the inmate did not commit the violation(s) charged, in which case the inmate may be restored to similar status and privileges as before he/she was charged, as allowed by other rules, policies, etc.

(b) Violation: The hearings officer may find that the inmate committed the violation(s) charged, in which case, the hearings officer will so inform the inmate.

(c) Dismissal: The hearings officer may dismiss the alleged rule violation(s) without entering a finding if:

(A) There is insufficient evidence to support the alleged violation(s);

(B) Corrective action using less formalized procedures would be more appropriate; or

(C) The inmate is released from custody.

(d) Violation Not Responsible: When an inmate deemed serious mentally ill engages in misconduct and is determined not to be responsible for their actions.

(e) Violation of Transitional Leave: When conduct constitutes a violation of the inmate’s condition(s) of transitional leave, the hearings officer shall also recommend revocation of his/her transitional leave.

(13) At the conclusion of the hearing, the inmate shall be informed of the finding and any sanctions imposed.

(14) If no violation is found or all of the alleged charges are dismissed on the misconduct report(s), the report(s) shall not be placed in the inmate's file, but may be retained for statistical or litigation purposes in the Hearings Section records.

(15) Upon the finding of violation(s) by the hearings officer, the hearings officer shall:

(a) Determine the location of the violation(s) on the major or minor grids (Exhibits 1 and 2).

(b) Determine the inmate's prior misconduct history as recorded on the Disciplinary Misconduct System. (Evidence of the inmate's prior misconduct history shall be placed in the record either orally or in writing.)

(c) Determine which box on the grid is appropriate for the inmate's misconduct and his/her prior misconduct history.

(d) Impose sanctions within the range of sanctions in the appropriate box.

(e) Determine if a deviation (upward or downward) is appropriate. The hearings officer must document in writing the substantial reasons for the deviation in accordance with OAR 291-105-0072.

(f) Determine if consecutive sanctions are appropriate for separate rule violations arising from a single misconduct report. The hearings officer must document in writing the substantial reasons for consecutive sanctions, in accordance with OAR 291-105-0066(4)(b).

(16) The hearings officer may also consider imposing the additional sanctions that are available in the major range of sanctions (OAR 291-105-0069).

(17) The hearings officer may suspend imposition of any or all of the imposed disciplinary sanctions, informing the inmate of expected conduct to avoid imposition and the length of time for which the sanction will be suspended.

(18) The hearings officer may impose any or all sanctions previously suspended, after finding that the rule violation in question was also a violation of the conditions of the suspension.

(19) A verbatim record of the hearing shall be made. A written record will be made of the decision and the supporting reasons.

[ED. NOTE: Exhibits & Forms referenced are not included in rule text. Click here for PDF copy of exhibit(s) & form(s).]

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: Formerly Exhibit 2 to OAR 291-105-026; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 19-2001(Temp), f. & cert. ef. 12-3-01 thru 6-1-02; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0031

Processing of the Formal Record on Major and Minor Violations

(1) Within ten working days following the conclusion of the hearing, the hearings officer shall prepare and issue a preliminary order containing the hearings officer's findings of fact and conclusions of law. Once issued, the preliminary order shall be delivered to the functional unit manager or designee for his/her review.

(2) The hearings officer may issue an amended order for restitution purposes. In all such instances, the hearings officer shall convene or reconvene a hearing with the inmate regarding the restitution issue(s), in accordance with the provision of OAR 291-105-0028 and 291-105-0056. In such cases the inmate shall be provided a Notice of Hearing in accordance with OAR 291-105-0056(3), a written description of what the restitution is for and the amount of restitution to be ordered.

(3) Upon receipt of the preliminary order, the functional unit manager or designee shall note the date received on the order. Within five working days after receipt of the preliminary order, the functional unit manager or designee shall do one of the following:

(a) Approve and sign the preliminary order without amendment, upon which the preliminary order becomes the Final Order;

(b) Issue an amended order dismissing the misconduct report(s) or changing the disciplinary sanction(s) (or their imposition) in the preliminary order, for one or more of the reasons specified in OAR 291-105-0031(5), upon which the amended order becomes the Final Order; or

(c) Order the hearings officer to reopen the hearing to receive and consider additional evidence not submitted in the original hearing, and to issue an amended preliminary order after consideration of the additional evidence.

(4) If the functional unit manager or designee fails to act on the preliminary order within seven working days following its receipt, the preliminary order shall become the Final Order.

(5) Grounds for Issuance of Amended Orders: The functional unit manager or designee may issue an amended order for one or more of the following reasons:

(a) The evidence in the record is insufficient to support the violation(s) found, in which case the functional unit manager or designee may find a violation of a lesser included violation (see definitions) or order the dismissal of the misconduct report(s);

(b) The sanction(s) imposed by the hearings officer was not within the range of sanctions in the correct box on the grid, in which case the functional unit manager or designee may impose appropriate sanctions from the correct grid box;

(c) The deviation ordered by the hearings officer was not supported by written substantial reasons, in which case the functional unit manager or designee may impose the appropriate sanctions without the deviation, or order the deviation upon written substantial reasons found by the functional unit manager or designee;

(d) The deviation ordered by the hearings officer included a segregation sanction in excess of 50%, in which case the functional unit manager or designee shall impose a sanction that does not exceed 50%;

(e) The consecutive segregation sanctions imposed by the hearings officer for multiple rule violations arising out of the same misconduct report were not supported by written reasons, in which case the functional unit manager or designee may impose the segregation sanctions served concurrently, or order the segregation sanctions served consecutively upon written reasons;

(f) To order a deviation not ordered by the hearings officer, upon written substantial reasons found by the functional unit manager or designee;

(g) To impose mandatory consecutive sanctions not imposed by the hearings officer, for multiple rule violations arising out of two or more misconduct reports;

(h) To impose consecutive sanctions not imposed by the hearings officer, for multiple rule violations arising out of the same misconduct report, upon written reasons;

(i) To suspend imposition of any or all sanctions imposed by the hearings officer, informing the inmate of expected conduct to avoid imposition of the sanction(s); and

(j) To impose any or all sanctions ordered suspended by the hearings officer. The reasons for imposing the previously suspended sanctions shall be explained in writing in the order.

(k) To amend sanctions imposed or to impose sanctions not imposed by the hearings officer, within the range of sanctions listed in the appropriate grid box and OAR 291-105-0066(2), 291-105-0069 or 291-105-0071.

(6) Within seven working days after the Final Order is signed by the functional unit manager or his/her designee, or after a preliminary order becomes the Final Order under OAR 291-105-0031(3) and (4), a copy of the Final Order shall be provided to the inmate.

(7) Minor typographical or calculation errors on the written Findings of Fact, Conclusions and Order may be rectified by correcting that document to accurately reflect the results of the hearing, without actually reconvening the hearing. The inmate shall be notified in writing of such corrections.

(8) The record of the hearing and supporting documents shall be maintained in the hearings officer's records for a minimum of three years. A copy of the misconduct report(s) and the Final Order (Findings of Fact, Conclusions and Order) shall be permanently retained in the inmate's working file, except in those instances where all major charges have been reduced to minor violations or dismissed by the hearings officer.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0036

Preparation of the Formal Record on Major and Minor Violations

(1) The record of the formal hearing shall include:

(a) The misconduct report(s);

(b) The Notice of hearing and rights;

(c) Supporting material;

(d) The Final Order (Findings of Fact, Conclusions and Order) issued by the hearings officer, functional unit manager or his/her designee.

(2) A transcript or recording of the hearing shall not be a part of the record, however, it shall be prepared and provided to the Inspector General, Attorney General or their designees or to the court, upon request. A copy of the transcript or recording of the hearing shall not be provided directly to the inmate by the hearings office.

(3) Information received that is determined to be confidential shall be clearly labeled “confidential” and shall not be shared with or provided to inmates.

(a) Confidential information may be summarized for the inmate at the time of his/her hearing, without releasing the confidential information verbatim or the name of a confidential informant.

(b) Confidential information may be shared with the functional unit manager. Confidential information may also be shared with Department employees, the Attorney General or the courts with approval of the Inspector General or the Hearings Administrator. Employee requests for confidential information shall be approved by the functional unit manager prior to being forwarded to the Inspector General or the Hearings Administrator.

(c) Such confidential information shall be archived in a secure area outside the secure perimeter of any facility.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 421.185, 421.190, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79, CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 32-1987(Temp), f. & ef. 8-5-87; CD 38-1987, f. & ef. 10-2-87; CD 11-1988, f. & cert. ef. 8-19-88; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0041

Adjudicator Responsibilities

(1) An adjudicator and designated alternate(s) shall be appointed by the functional unit manager in each Department of Corrections facility.

(2) Duties and Powers of the Adjudicator: The adjudicator will receive all misconduct reports, once they have been reviewed and approved by a reviewing supervisor and a copy has been provided to the inmate. The adjudicator shall:

(a) Promptly forward the misconduct reports to the hearings section for entry into the inmate disciplinary system and assignment of a case number. The hearings section will promptly return misconduct reports charging only minor rule violations to the adjudicator once they have been entered into the inmate disciplinary system and assigned a case number.

(b) Refer all major reports and all minor reports for which the inmate requests a formal hearing to the hearings officer who shall proceed in accordance with OAR 291-105-0028. If a case contains both major and minor violations, the entire incident, even if it involves more than one inmate, shall be handled by the hearings officer in a formal hearing.

(c) Conduct an informal hearing on minor reports in accordance with OAR 291-105-0046.

(3) The adjudicator shall not have been a witness to the event, have personal knowledge of any material, disputed fact relating to the case or have participated in the case as a charging or investigating officer.

(4) The adjudicator shall conduct the informal hearing and decide whether the inmate has violated the rule(s) as charged in the misconduct report. The adjudicator may not add or change the violations in the misconduct report.

(5) The adjudicator may dismiss the misconduct report(s) at any stage of the proceedings, with or without prejudice, stating in writing the reason for the dismissal. A new misconduct report dismissed without prejudiced may be resubmitted utilizing the same process as provided in OAR 291-105-0021(2).

(6) The adjudicator may decline to conduct an informal hearing and refer the case to the hearings officer for a formal hearing when the inmate’s mental competency is an issue.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85 CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0046

Conduct of the Informal Hearings on Minor Violations

(1) An informal hearing shall be conducted by the adjudicator or designee on all misconduct report(s) which do not charge a major violation(s), unless the inmate requests a formal hearing, in writing, on the Notice of Inmate Rights form, prior to the informal hearing.

(2) Findings by the adjudicator or designee must be on the merits. Technical and clerical errors in the writing or processing of the misconduct report shall not be grounds for dismissal.

(3) The adjudicator or designee shall consider such evidence as would be considered by reasonable persons in the conduct of their serious affairs.

(4) Standard of Proof: Rule violation(s) shall be found upon proof by a preponderance of the evidence. The term preponderance of the evidence means the greater weight of evidence (e.g., 51% vs. 49%). It is such evidence that, when weighed with that opposed to it, has more convincing force and is more probably true and accurate.

(5) The inmate shall be given the opportunity to speak in his/her own behalf, exercise his/her rights, and submit evidence as set forth in OAR 291-105-0056. Inmates shall not be permitted to call witnesses in an informal hearing.

(6) The adjudicator may pose questions during the hearing.

(7) Documents and Physical Evidence:

(a) An inmate participating in an informal disciplinary hearing may present documents and physical evidence during the hearing, subject to the exclusions and restrictions provided in these rules.

(b) The reporting employee(s) or agent(s) of the Department of Corrections or Oregon Corrections Enterprises who are knowledgeable of the rule violation(s) charged in the misconduct report(s) may submit documents and physical evidence in advance of or during the hearing.

(c) The adjudicator designee may exclude documents and physical evidence upon finding that such evidence would not assist the adjudicator in the resolution of the disciplinary action, or that such evidence would present an undue risk to the safe, secure or orderly operation of the facility, specifically including the safety and security of DOC or OCE employees and inmates. The reason(s) for exclusion shall be made a part of the record.

(d) The adjudicator or designee may classify documents and physical evidence as confidential (and not disclose such evidence to the inmate) upon finding that disclosure would present an undue risk to the safe, secure or orderly operation of the facility, specifically including the safety and security of DOC or OCE employees and inmates, or that disclosure would interfere with an ongoing official investigation or criminal prosecution. The reason(s) for classifying documents and physical evidence as confidential shall be made a part of the record.

(8) At the informal hearing the adjudicator or designee shall decide:

(a) No Violation: The adjudicator or designee may find that the inmate did not commit the violation charged, in which case the inmate will be restored to the same status and privileges as before he/she was charged.

(b) Violation: The adjudicator or designee may find that the inmate did commit the violation charged, in which case, the adjudicator will so inform the inmate.

(c) Dismissal: The adjudicator or designee may dismiss the alleged rule violation(s) without entering a finding if:

(A) There is insufficient evidence to support the alleged violation(s); or

(B) Corrective action using less formalized procedures would be more appropriate; or

(C) The inmate is released from custody.

(9) At the conclusion of the hearing the inmate shall be informed of the finding and any sanctions imposed.

(10) If the inmate is found in violation, the record of the decision shall be retained in the Hearings Unit records for a minimum of three years.

(11) Upon finding that a violation occurred as charged, the adjudicator or designee shall:

(a) Determine the location of the violation(s) on the minor disciplinary grid (Exhibit 2).

(b) Impose sanctions within the range of sanctions in the appropriate box.

(12) The adjudicator or designee may also consider imposing the additional sanctions that are available in the minor range of sanctions (OAR 291-105-0071).

(13) The adjudicator or designee may suspend imposition of any or all of the ordered disciplinary sanctions, informing the inmate of expected future conduct to avoid imposition and the length of time for which the sanction will be suspended.

(14) The adjudicator may impose any or all sanctions previously suspended, after finding that the rule violation in question was also a violation of the conditions of the suspension.

(15) The adjudicator or designee may give a verbal warning and reprimand in lieu of sanctions on the minor grid, informing the inmate of expected future conduct.

(16) No verbatim recording of the hearing shall be made.

(17) If the inmate is transferred to another facility before the informal hearing is complete, the misconduct report shall be forwarded to the other facility for processing.

[ED. NOTE: Exhibits referenced are not included in rule text. Click here for PDF copy of exhibit(s).]

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 421.185, 421.190, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 30-1985, f. & ef. 8-16-85; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0056

Inmate Rights in Formal and Informal Hearings on Major and Minor Violations

(1) Hearing:

(a) An inmate shall be entitled to a hearing whenever a misconduct report has been filed against him/her.

(b) An inmate receiving a minor misconduct report shall not receive a formal hearing, unless he/she specifically requests a formal hearing.

(2) Waiver of Hearing:

(a) In all cases, the inmate may waive the right to a hearing. Waiver of right must be in writing, verbally, or through behavior and must be documented on the record. An inmate's refusal to attend the hearing will constitute a waiver.

(b) An inmate waiving his/her right to a hearing shall have his/her case reviewed on its merits by the hearings officer or adjudicator in accordance with the procedures outlined in these rules.

(3) Notice of Hearing:

(a) The inmate shall be given written notice of the hearing not less than 24 hours prior to the hearing, unless the inmate consents to holding the hearing within 24 hours after the misconduct report has been served on the inmate.

(b) The notice shall include a statement of the inmate's rights with respect to the hearing.

(4) Representation:

(a) In all cases, the inmate shall be entitled to:

(A) Speak in his/her own behalf.

(B) Be present at all evidentiary stages of the hearing process, except when the hearings officer or adjudicator finds that to have the charged inmate present would constitute an immediate threat to facility security or the inmate's behavior during the hearing warrants exclusion. The reason(s) for the finding shall be part of the record.

(C) Inmates shall be excluded during the testimony of any witness whose testimony must be given in confidence. The reasons for the inmate's absence or exclusion shall be made part of the record.

(b) Assistance by a DOC or OCE employee, inmate, or other person approved by the adjudicator or hearings officer will be ordered in cases where it is found that assistance is necessary based upon language barriers or competence and capacity of the inmate to prepare a defense, to understand the charge or surrounding facts, and rights available to him/her.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 14-2008, f. & cert. ef. 6-2-08

291-105-0058

Investigations in Formal and Informal Hearings on Major and Minor Violations

(1) The adjudicator or hearings officer may order an investigation on his/her own motion.

(2) The investigator shall not have been a witness to the event, have personal knowledge of any material, disputed fact relating to the case or have participated in the case as a charging officer.

(3) The adjudicator or hearings officer shall allow the inmate access to the results of the investigation unless disclosure of the investigative results would constitute a threat to the safety, security, or orderly operation of a Department of Corrections facility. The reason(s) for nondisclosure shall be made a part of the record. Access minimally refers to the verbal disclosure by the hearings officer of the results of an investigation. The adjudicator or hearings officer shall not be required by this rule to provide the inmate with copies of supplemental documents that comprise the case against him or her.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Stats. Implemented: ORS 179.040, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp) f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05

291-105-0064

Postponements and Continuances of Formal and Informal Hearings on Major and Minor Violations

(l) A hearing may be postponed or continued by the hearings officer or the adjudicator for a reasonable period of time for good cause.

(2) "Good cause" includes, but is not limited to:

(a) Preparation of defense;

(b) Illness or unavailability of the inmate charged;

(c) Gathering of additional evidence (e.g., calling of witnesses, gathering of witnesses' statements, investigation, acquisition of physical evidence); or

(d) Avoiding interference with an ongoing police investigation or pending prosecution.

(3) The reason for the postponement in a formal hearing shall be stated on the record.

(4) If an inmate has been lodged in temporary disciplinary segregation pending a hearing and a continuance or postponement is ordered on the motion of the hearings officer, the hearings officer shall consider retention of the inmate in disciplinary segregation and:

(a) Determine that the inmate no longer presents a threat to security and recommend to the functional unit manager of the facility where the inmate is in disciplinary segregation, that the inmate be released from disciplinary segregation pending conclusion of the hearing; or

(b) Determine that the rule violation(s) alleged is serious that, if proven, the inmate would present an immediate and continuing threat to the safety, security or orderly operation of the facility and order, subject to the approval of the functional unit manager of the facility where the inmate is in disciplinary segregation, that the inmate be retained in disciplinary segregation. The written approval of the functional unit manager of the facility where the inmate is in disciplinary segregation shall be made a part of the record. In no case shall the inmate be retained in disciplinary segregation for a period longer than that permitted by the sanction in the appropriate box on the disciplinary grid.

(5) If an inmate has been lodged in temporary disciplinary segregation pending a hearing and a continuance or postponement is requested by him/her, the hearings officer shall not consider retention of the inmate in disciplinary segregation, and the inmate will be retained in disciplinary segregation. In no case shall the inmate be retained in disciplinary segregation for a period longer than that permitted by the sanction in the appropriate box on the disciplinary grid.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85 CD 29-1986, f. & ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 14-2008, f. & cert. ef. 6-2-08

291-105-0066

Principles of Application of Disciplinary Sanctions

(1) A single act of misconduct may violate more than one misconduct rule.

(2) Loss of Privilege: If the inmate's misconduct involves the abuse or misuse of a specific privilege (i.e., recreation yard, canteen, etc.), the hearings officer or adjudicator may order a loss of that specific privilege, and may increase the loss of that specific privilege sanction up to twice the amount listed in the appropriate grid block.

(3) For rule violations arising out of separate misconduct reports, segregation sanctions shall be served consecutively, up to 180 days.

(4) For rule violations arising out of the same misconduct report:

(a) Concurrent segregation sanctions may be imposed by the hearings officer or functional unit manager, up to 180 days. The inmate shall be ordered to only serve the sanction for the most serious violation in the misconduct report.

(b) Consecutive sanctions may be imposed by the hearings officer or functional unit manager. The reasons for consecutive sanctions shall be supported by written substantial reasons outlining the factor(s) supporting the consecutive sanctions. No aspect of the misconduct that serves as a necessary element of misconduct may be used as an aggravating factor if that factor is also used to impose discipline.

(5) The Department's rule on Prohibited Inmate Conduct and Processing Disciplinary Actions contains two inmate disciplinary grids. One grid governs inmate disciplinary action for major violations (Exhibit 1). One grid governs inmate disciplinary action for minor violations (Exhibit 2).

(6) Each of the inmate disciplinary grids shall outline the available sanctions within each box, which includes fines, segregation time and the loss of privileges.

(7) There are additional sanctions that will be available to the hearings officers and adjudicators at all levels of discipline for major violations and minor violations (OAR 291-105-0069 and 0071). These sanctions shall be applied consistently and in proportion to the violation and the inmate's prior misconduct.

(8) Merger and Consecutive Sanctions: In the case of multiple rule violations, a hearings officer or adjudicator shall impose a sanction or sanctions for only the single most severe or most applicable rule violation found as charged in a single misconduct report, except as specifically allowed by OAR 291-105-0066(4)(b). The applicable sanctions for the remaining rule violations shall be deemed to have merged with the sanction(s) imposed for the single rule violation, unless consecutive sanctions are imposed as authorized in OAR 291-105-0066(4)(b).

(9) The hearings officer shall consider input from a multidisciplinary team where the inmate is housed and Behavioral Health Services Unit employees. The hearings officer may recommend sanctions be modified or are contraindicated, irrespective of the sanctions contained on the disciplinary grids and OAR 291-105-0069 and 0071.

(10) Limitations on the Length of Confinement in Disciplinary Segregation for Rule Violations:

(a) No inmate shall be confined in disciplinary segregation for more than 180 consecutive days. On the 180th consecutive day of confinement in disciplinary segregation, an inmate shall be reassigned and ordered to other housing. Once reassigned and ordered to other housing, the inmate shall be subject to additional confinement in disciplinary segregation (up to a maximum of another 180 days) as a sanction for a new rule violation, notwithstanding that the inmate remains in the segregation unit.

(b) Once an inmate has received the maximum sanction of 180 consecutive days, the hearings officer or adjudicator is not required to impose any additional segregation sanction. The hearings officer or adjudicator is also not required to order additional loss of privileges sanctions to an inmate who has already received the maximum 180 days segregation sanction, if he/she determines that the sanction would not be meaningful to the inmate. Such action shall be made a part of the written record of the hearing.

(c) New Violations Committed While Assigned to Disciplinary Segregation: If an inmate is ordered to serve an additional disciplinary segregation sanction for committing a new rule violation while assigned to disciplinary segregation, the additional disciplinary segregation sanction may be served consecutively to any prior segregation sanctions then being served, up to a maximum of 180 days.

(d) New Violations Committed While Assigned to Intensive Management Unit or IMU Status: An inmate who commits a new rule violation while assigned to the Intensive Management Unit (IMU), or while assigned to IMU status, shall not be ordered to serve a disciplinary segregation sanction for the violation. The inmate shall be subject to the range of additional sanctions described in OAR 291-105-0069 & 291-105-0071, including but not limited to fines and loss of privileges.

(11) When an inmate has been assigned to segregation as part of a disciplinary sanction that is Level I or Level II on the major violation grid and the inmate is temporarily transferred to the custody of a jurisdiction other than the Department, or is released from prison, he/she shall not be given credit for time served in segregation while he/she is out of Department custody.

(a) Once the inmate is returned to the Department’s custody, the number of days he/she actually served in segregation will be subtracted from the total original sanction and he/she will serve the remainder of the segregation sanction in a Department segregation unit.

(b) If it is determined that the other jurisdiction maintained the inmate in a similarly restrictive status, the inmate shall be credited with the number of days he was held in segregation type status by the other jurisdiction.

(12) In those instances where there exists a need to create available bed space in a segregation unit, the functional unit manager or designee, in his/her sole discretion, may release an inmate(s) from segregation.

(a) At that point, the segregation sanction will be deemed to have been completed and the remaining segregation sanction will not be served as loss of privileges, while the inmate resides in the general inmate population.

(b) Any loss of privileges sanction ordered to be served upon the inmate’s release from segregation, shall begin at the time the inmate is actually released from segregation.

(13) Inmates who commit a rule violation may be subject to classification review in accordance with the Department of Corrections rule on Classification (Inmate) (OAR 291-104).

[ED. NOTE: Exhibits referenced are not included in rule text. Click here for PDF copy of exhibit(s).]

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 421.185, 421.190, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 29-1986, f. & ef. 8-20-86; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0069

Additional Sanctions for Major Violations

(1) The additional sanctions available to the hearings officer for major violations are:

(a) Restitution or Reimbursement: Inmates shall be responsible for making full restitution for any damage or loss of property. In addition, inmates shall be financially responsible for all costs associated with or resulting from the violation. These shall include the costs of any drug urinalysis testing. There is no limit on the amount of restitution or reimbursement which can be imposed for a major sanction. There must always be a factual basis in the record to support the restitution or reimbursement amount and that amount must be reasonable.

(b) Confiscation of property or contraband.

(c) Reduction to Basic Visiting Status (non contact): For any major violation, basic visiting status may be imposed up to a maximum of 180 days for any one violation. Any inmate found in violation of Distribution I involving drugs, Drug Possession, or Contraband I involving drugs, drug paraphernalia, or drug testing including attempt or conspiracy, within the past two years shall be restricted to basic visits for each violation as follows:

(A) First violation: 1 year (365 days)

(B) Second violation: 2 years (730 days)

(C) Third or more violation(s): 4 years (1,460 days)

(i) Basic visiting sanctions shall be served consecutively to the conclusion of any assignment to disciplinary segregation or Intensive Management Unit.

(ii) Reduction to basic visiting status sanctions shall be served consecutively up to 7 years (2,555 days). No inmate shall serve more than 7 years (2,555 days) of consecutive reduction to basic visiting status sanctions at any one time.

(d) Extra Work Detail: For a major violation, the limit on extra work detail is a maximum of 80 hours, to be completed within 30 days after the Final Order has been signed.

(e) Revocation of short-term transitional leave and return the inmate to a Department of Corrections facility.

(f) Recommendation for no Favorable Future Consideration of Parole Release Date.

(g) Recommendation for an extension of parole release date in accordance with the rule on Prison Term Modification (OAR 291-097).

(h) Recommendation for reduction in earned time, statutory good time or extra good time credits in accordance with the rule on Prison Term Modification (OAR 291-097).

(2) Recommendations for reduction of earned time, statutory good time or extra good time and recommendations for an extension of parole release date shall be mandatory sanctions for all violations at level one of the major misconduct grid.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 421.185, 421.190, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 29-1986, f. & ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0071

Additional Sanctions for Minor Violations

Listed below in subsections are all the additional sanctions which are available to the hearings officers or adjudicator for a minor violation. They shall be applied consistently and in proportion to the violation and the inmate's prior misconduct history.

(1) Restitution: Inmates shall be responsible for making full restitution for any damage or loss of property. In addition, inmates shall be financially responsible for all costs with or resulting from the misconduct. There is no limit on the amount of restitution which can be ordered for a minor sanction. There must always be a factual basis in the record to support the restitution amount.

(2) Confiscation of property or contraband.

(3) Reduction to basic visiting status (non contact): For a minor violation, basic visiting status may be imposed up to a maximum of 28 days for any one violation.

(4) Extra work detail: For a minor violation, the limit on extra work detail is a maximum of 40 hours, to be completed within 30 days after the hearing.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 14-2008, f. & cert. ef. 6-2-08

291-105-0072

Deviation Sanctions for Major Violations

(1) Once the level of discipline has been determined, according to the disciplinary grid, the hearings officer or functional unit manager or his/her designee may deviate, either upward or downward on major violations in formal hearings. This deviation, under no circumstances, may exceed 50% of the segregation sanction in the inmate's appropriate box on the grid. All deviations shall be supported by written "substantial reasons" outlining the mitigating or aggravating factors which support the deviation. All deviations shall be subject to review by the functional unit manager or his/her designee.

(2) There may be only one deviation ordered for each sanction imposed. The hearings officer and functional unit manager may NOT both order a separate deviation for one sanction.

(3) Deviations may only be ordered for major violations. Deviations may not be ordered for minor violations.

(4) Substantial reasons will be separated into mitigating and aggravating factors.

(5) The following list of mitigating and aggravating factors may be considered when determining substantial reasons for a deviation. Other factors not listed may also constitute substantial reasons for mitigation or aggravation.

(a) Mitigating factors:

(A) The inmate acted under duress or compulsion (not sufficient as a complete defense).

(B) The inmate's mental capacity was diminished (excluding diminished capacity due to voluntary drug or alcohol abuse).

(C) The misconduct was principally accomplished by another and the inmate exhibited extreme caution or concern for the victim.

(D) The victim (if any) was an aggressor or participant in the behavior associated with the misconduct.

(E) The inmate played a minor or passive role in the misconduct.

(F) The inmate cooperated with the department with respect to the current misconduct or any other misconduct by the inmate or other inmates.

(G) The degree of harm or loss attributed to the current misconduct was significantly less than typical for such misconduct.

(b) Aggravating factors:

(A) Threat of or actual violence toward a witness or victim.

(B) Persistent involvement in similar misconduct or repetitive assaults.

(C) Use of a weapon in the commission of the misconduct.

(D) Deliberate cruelty to victim.

(E) The inmate knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the misconduct.

(F) The misconduct involved multiple victims or incidents.

(G) The misconduct was part of an organized operation.

(H) The misconduct resulted in a permanent injury to the victim.

(I) The degree of harm or loss attributed to the current violation was significantly greater than typical for such misconduct.

(J) The misconduct was motivated entirely or in part by the race, sex, color, religion, ethnicity or national origin of the victim.

(K) The timing and location of the misconduct directly threatened the safety, security, or orderly operation of the facility significantly more than typical for such misconduct.

(c) No aspect of the misconduct that serves as a necessary element of misconduct may be used as an aggravating factor if that aspect is also used to impose discipline.

Stat. Auth.: ORS 179.040, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.180, 423.020, 423.030 & 423.075
Hist.: CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05

291-105-0073 [Renumbered to 291-105-0085]

291-105-0081

Adjustments to Final Order

(1) Based upon an inmate’s significant positive behavior change and after consideration of each individual inmate’s particular circumstances, the functional unit manager or designee may make adjustments to final orders either at his/her discretion, or upon employee recommendation.

(2) Adjustments to segregation time and fine sanctions from final orders may not exceed the limits established in Exhibit 3.

(3) Adjustments of up to 50% of the total sanction accrued to that point in time may be made to basic visiting on a one-time basis only.

(4) Up to 50% of the cumulative total (at the time of restoration consideration) of previously retracted earned time, statutory good time or extra good time credits resulting from disciplinary sanctions may be restored. Earned time credits will be restored toward the most recent retraction and continue thereafter in reverse order. At no time will a restoration of earned time, statutory good time or extra good time credits cause an inmate’s release date to move within 60 days of the date of the adjustment. Earned time, statutory good time and extra good time restored under this section can only be later retracted if the subsequent findings of fact is signed by the functional unit manager or designee after the date of the restoration.

(5) Adjustments to final orders shall be initiated and documented using the Adjustment to Final Order form (CD 1460). Copies of Adjustment to Final Order will be provided to appropriate sections for necessary action, including the hearings section where the amendment will be entered into the inmate disciplinary system.

[ED. NOTE: Exhibits referenced are not included in rule text. Click here for PDF copy of exhibit(s).]

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

291-105-0085

Administrative Review

(1) Any order for rule violations on Level I or Level II of the major violation grid or, which recommends an extension of the inmate's parole release date or retraction of earned time, statutory good time or extra good time credits; or which recommends a deviation from the segregation sanction listed on the grid is subject to review by the Inspector General.

(2) Petitions for administrative review must be filed by the inmate with the Inspector General within 60 calendar days after the Final Order is signed by the functional unit manager or his/her designee or after a preliminary order becomes the Final Order under OAR 291-105-0031. Filing a petition for administrative review shall not stay the imposition of a sanction.

(3) An inmate may file a petition for administrative review by completing the Department’s Petition for Administrative Review form (CD 1442) and submitting it to the Inspector General. Petitions for administrative review shall minimally state the following:

(a) The date the hearing was completed and the hearing case number (i.e., 0104-A001-A03).

(b) The rule violation(s) which the inmate was found in violation or sanction which meets the review criteria listed in (1) above.

(c) Sufficient information to show why there was not substantial compliance with the rule, that the finding was not based upon a preponderance of the evidence or that the sanction imposed was not in accordance with provisions set forth in the rule (OAR 291-105).

(d) An inmate who attempts to file a petition for administrative review by use of an inmate communication form or any written communication other than the petition for administrative review form (CD 1442) shall have his/her communication returned with instructions that the inmate resubmit the petition on the proper form.

(4) Upon receipt of the petition for administrative review, the Inspector General or designee shall review the case to determine:

(a) Was there substantial compliance with the rule (OAR 291-105);

(b) Was the finding based upon a preponderance of evidence; and

(c) Was the sanction imposed in accordance with the provisions set forth in the rule (OAR 291-105).

(5) If the Inspector General or designee determines there was substantial compliance with the rule (OAR 291-105), the finding was based on a preponderance of evidence and the sanctions imposed were in accordance with the provisions set forth in the rule (OAR 291-105), he/she shall so inform the inmate.

(6) If the Inspector General or designee determines there was not substantial compliance with the rule (OAR 291-105), the finding was not based on a preponderance of the evidence or the sanctions imposed were not in accordance with provision set forth in the rule (OAR 291-105), he/she shall direct the hearing to be reopened or vacate all or part of the final order in the case.

(7) The Inspector General or designee shall provide the inmate with a written response to the petition for administrative review within 60 days from the date it is received by him/her. Documentation submitted to the Inspector General shall not be returned to the inmate.

(8) Petitions that are outside the criteria listed in OAR 291-105-0085(1) shall be returned without comment.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030, 423.075
Hist.: CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. & ef. 8-20-86; CD 32-1987(Temp), f. & ef. 8-5-87; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; Renumbered from 291-105-0073, DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08

291-105-0100

Vacating or Withdrawing the Final Order in the Interest of Justice

The Inspector General, Assistant Director for Operations or the Institutions Administrator may, in the interest of justice, vacate all or part of a final disciplinary order or withdraw the order and direct that a disciplinary hearing be reopened for consideration of new evidence.

Stat. Auth.: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Stats. Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Hist.: DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 11-2011(Temp), f. & cert. ef. 6-10-11 thru 12-7-11; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11

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