PROCEDURAL RULES AND AGENCY DEFINITIONS
Notice of Proposed Rule
(1) Except when adopting temporary rules pursuant to ORS 183.335(5), the Oregon Commission on Children and Families, prior to the adoption, amendment or repeal of any administrative rule under ORS Chapter 183, will give notice of the proposed action so interested citizens have a reasonable opportunity to be informed and to comment.
(2) The Oregon Commission on Children and Families will routinely send notices of proposed rule actions at least 28 days before the effective date of the rule to:
(a) All Local Commissions on children and families;
(b) All Boards of County Commissioners;
(c) Persons on the Agency's mailing list established pursuant to ORS 183.335(7);
(d) Anyone who requests such notices;
(e) The Secretary of State, for publication in the Secretary's Bulletin;
(f) The Associated Press, and the Capitol Press Room; and
(g) Other persons, agencies, or organizations that the Oregon Commission on Children and Families believes to have an interest in a particular rule or rule action.
(3) The Oregon Commission on Children and Families will send copies of the proposed rule to the legislators specified in ORS 183.335(14) at least 49 days before the effective date of the rule.
(4) The Oregon Commission on Children and Families will send copies of the proposed rule to interested persons as requested.
(5) When copies of rules or proposed rules are mailed, the Agency may charge fees to defray costs of one or more of the following:
(a) Maintenance of mailing lists;
(b) Materials; and
(c) Printing, handling and mailing of materials.
Stat. Auth.: ORS 183, 417.705 - 417.797
Hist.: JSC 2-1980, f. & ef. 4-10-80; JSC 1-1982, f. & ef. 5-19-82; JSC 1-1984, f. 12-28-84, ef. 1-1-85; CCYS 3-1990, f. & cert. ef. 12-24-90 (and corrected 3-5-91); CCF 2-1994(Temp), f. & cert. ef. 3-10-94; CCF 3-1994, f. & cert. ef. 5-18-94; CCF 1-1995, f. & cert. ef. 8-11-95; OCCF 1-2002, f. & cert. ef. 1-14-02; OCCF 1-2004, f. & cert. ef. 9-15-04
Model Rules of Procedure
The Model Rules of Procedure under the Administrative Procedure Act promulgated by the Attorney General effective March 27, 2000 are hereby adopted as the rules of procedure of the Oregon Commission on Children and Families.
Stat. Auth.: ORS 183, 417.705 - 417.797
Hist.: JSC 1-1980, f. & ef. 1-7-80; JSC 2-1982, f. & ef. 5-19-82; JSC 1-1984, f. 12-28-84, ef. 1-1-85; JSC 1-1986, f. & ef. 12-29-86; CCYS 3-1990, f. & cert. ef. 12-24-90 (and corrected 3-5-91); CCF 2-1994(Temp), f. & cert. ef. 3-10-94; CCF 3-1994, f. & cert. ef. 5-18-94; OCCF 1-2002, f. & cert. ef. 1-14-02
As used in OAR chapter 423:
(1) "Agency" means the State Commission acting through the staff of the Oregon Commission on Children and Families as defined in ORS 417.735(6).
(2) "Basic capacity" means an allocation to Local Commissions that provides for the basic functions of a Local Commission office which include the following functions:
(a) Managing resources (includes general office support, fiscal and budget management, program evaluation, and staff development);
(b) Facilitation and coordination of meetings and forums;
(c) Coordinated, comprehensive planning in accordance with ORS 417.775; and
(d) The provision of technical assistance to their communities.
(3) "Best practice" or "proven practice of effectiveness" means research-based or evidence-based programs, core components, and principles that have been shown to reliably produce measurable and sustainable improvements in productivity, efficiency, or effectiveness.
(4) "BOCC" or "Board of County Commissioners" means the governing body of a county as defined in ORS 203.030 and includes a county court as defined in ORS 203.111.
(5) "Budget allocation" means an allocation of funds from the State Commission to the Board of County Commissioners pursuant to an Intergovernmental Agreement per ORS 417.705 through 417.797 and 419A.170.
(6) "Budget distribution" means a budget created by Local Commission staff in a format prescribed by the Agency. The budget distribution demonstrates, by grant stream, the projected budget for all activities proposed by the Local Commission and approved by the Board of County Commissioners.
(7) "Collaborative funding process" means allowing all interested parties to have an opportunity to participate in a funding process intended to use resources in the most effective and efficient manner based on the local coordinated, comprehensive plan.
(8) "Community mobilization" means government and private efforts to increase community awareness and to facilitate the active participation of citizens and organizations in projects and issues that will have positive impact on the well-being of children, families and communities.
(9) "County" means a county or two or more counties, which have combined to provide services to children, youth and families under ORS 417.705 to 417.797 and 419A.170.
(10) "Direct costs" means those costs that can be identified specifically and directly with a particular program or project, such as a particular federal grant or a direct activity or program of the organization.
(11) "Direct Services" means those services provided directly to a child or family or group of children or families to maintain or enhance their well-being. Direct services do not include services that are contracted out to other parties pursuant to ORS 417.775–417.787 or being the fiscal agent of pass through funds.
(12) "Early Childhood System Planning" means planning developed to describe the system, process and services that families can voluntarily access and that is part of and consistent with the Local Plan. The planning includes goals and strategies to achieve the early childhood benchmarks and intermediate outcomes.
(13) "Expended" means the payment of goods delivered or services rendered or liquidation of an obligation.
(14) "Indirect Costs" means those costs that have been incurred for common or joint purposes and cannot be readily identified with or directly allocated to a particular program or project of the organization. Examples of indirect costs include building and equipment depreciation, rent and facilities maintenance costs, general and administrative expenses, and personnel administration and accounting where those costs are distributed to projects or programs through a formula or cost allocation method.
(15) "Initiatives" means those time-limited activities that a Local Commission undertakes to promote community mobilization.
(16) "Innovative program or practice" means a program or practice that demonstrates success when outcomes are evaluated over time and draws on research-based principles and ideas from best programs and practices.
(17) "Layperson" means a person whose primary income is not derived from offering direct service to children and youth or from administering a program for children or youth.
(18) "Local Commission" means a local commission on children and families appointed pursuant to ORS 417.760.
(19) "Local Plan" means the local coordinated, comprehensive plan for children and families that is developed pursuant to ORS 417.775 and includes identification of connections in state and local planning processes and provisions for a local continuum of social supports. The Local Plan includes planning for the early childhood system, alcohol and drug prevention and treatment, and high-risk juvenile crime prevention, and references mental health and public health service plans.
(20) "Locally invested funds" includes Children, Youth and Families, Great Start and Youth Investment grant streams.
(21) "Oregon Commission on Children and Families (OCCF)" means the totality of the service system described in ORS 417.705 to 417.797, and 419A.170, including the State Commission on Children and Families (417.730), the State Commission-appointed director and staff (417.735), the local commissions on children and families (417.760) and specific program areas.
(22) "Partners for Children and Families" means the formal collaboration among state agencies and affected local agencies that works to combine planning and data requirements and coordinate policies and the provision of services to children and families.
(23) "Perinatal" means the period on or around the time of childbirth.
(24) "Primary health care" for purposes of Healthy Start means linkage and referral to health care resources and assisting families to establish a medical home for primary health care.
(25) "Prenatal" means the period of time from conception to the onset of labor.
(26) "Provider" means a program or service described in ORS 417.705 through 417.797 and 419A.17 that has been approved for funding by the Local Commission and the Board of County Commissioners.
(27) "Provider allocation" means those funds awarded by a county to a public or private agency or person to achieve an outcome within the county's Local Plan.
(28) "State Commission" means the Oregon Commission on Children and Families' appointed members established pursuant to 417.730.
(29) "Services for children and families" does not include services provided by the Department of Education or school districts that are related to curriculum or instructional programs as defined in ORS 417.705.
Stat. Auth.: ORS 417.705 - 417.797
Stats. Implemented: ORS 417.705 - 417.797
Hist.: OCCF 1-2002, f. & cert. ef. 1-14-02; OCCF 1-2004, f. & cert. ef. 9-15-04; OCCF 1-2004, f. & cert. ef. 9-15-04; OCCF 3-2007(Temp), f. 5-8-07, cert. ef. 5-11-07 thru 9-7-07; Administrative correction 9-16-07; OCCF 4-2008(Temp), f. & cert. ef. 12-12-08 thru 6-11-09; Administrative correction 6-22-09; OCCF 1-2009, f. & cert. ef. 6-24-09
Confidentiality and Inadmissibility of Mediation Communications
(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.
(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.
(4) To the extent mediation communications would otherwise compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408)), notwithstanding any provisions to the contrary in section (9) of this rule.
(5) Mediations Excluded. Sections (6)-(10) of this rule do not apply to:
(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or
(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;
(c) Mediation in which the only parties are public bodies;
(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential; or
(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.
(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)-(d), (j)-(l), or (o)-(p) of section (9) of this rule.
(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)-(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.
(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or non-discoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate." [Form not included. See ED. NOTE.]
(9) Exceptions to confidentiality and inadmissibility.
(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.
(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.
(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.
(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.
(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties in the mediation.
(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.
(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.
(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.
(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:
(A) A request for mediation; or
(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation; or
(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712; or
(D) A strike notice submitted to the Employment Relations Board.
(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.
(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:
(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege, or
(B) Attorney work product prepared in anticipation of litigation or for trial, or
(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency, or
(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation, or
(E) Settlement concepts or proposals, shared with the mediator or other parties.
(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the Director or Deputy Director or other appropriate persons determine that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.
(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under ORS 30.402 or state or federal law requires the terms to be confidential.
(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use of disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
[ED. NOTE: The Form referenced in this rule is available from the Agency.]
Stat. Auth.: ORS 36.224
Stats.Implemented: ORS 36.224, 36.228, 36.230, 36.232
Hist.: OCCF 1-2002, f. & cert. ef. 1-14-02