Contested Case Defined, Notice of Opportunity for Hearing, Service
(1) Pursuant to ORS 183.310(2) (a) - (d), a contested case exists whenever:
(a) A constitutional provision or statute requires a hearing upon the action; or
(b) An agency has discretion to suspend or revoke a right or privilege of a person; or
(c) There is a proceeding regarding a license to pursue a commercial activity, trade, or profession; or
(d) There is a proceeding in which the agency elects to grant a hearing, in accordance with contested case requirements.
(2) The University shall give notice to all parties in a contested case. The notice shall include:
(a) A statement of the party's right to hearing, or a statement of the time and place of the hearing;
(b) A statement of the authority and jurisdiction under which the hearing is to be held;
(c) A reference to the particular sections of the statutes and rules involved;
(d) A short and plain statement of the matters asserted or charged;
(e) A statement that the party may be represented by counsel at the hearing;
(f) A statement that if the party desires a hearing, the office of the University President must be notified within 20 days of the date of mailing of notice.
(3) The notice shall be served personally or by registered or certified mail.
(4) These rules shall not apply where:
(a) Procedures for the imposition of sanctions on an academic staff member are prescribed in the Administrative Rules of the Oregon State Board of Higher Education;
(b) Adversary procedures for labor dispute resolution are prescribed by:
(A) State law;
(B) Collective bargaining contract; or
(C) University of Oregon Administrative Memos; or
(c) The Student Conduct Code of the University of Oregon provides to the contrary.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.310(2), ORS 183.413 & ORS 183.415
Hist.: UOO 18(Temp), f. & ef. 2-5-76; UOO 19, f. & ef. 4-27-76; UOO 1-1978(Temp), f. & ef. 4-5-78; UOO 2-1978, f. 6-19-78, ef. 6-20-78
Orders When No Hearing Requested
When a party has been given an opportunity to request a hearing within a specified time and no hearing has been requested, the University shall enter an order at the expiration of the time, stating the matters before it supporting the suspension or revocation. The order shall contain the material on which the action is based.
Request for Party Status to Participate in Contested Case
(1) When the University gives notice that it intends to hold a contested case hearing, interested persons shall be given the opportunity to become parties who have an interest in the outcome of the University's proceeding or who represent a public interest in such result.
(2) Persons requesting status as a party shall file a petition, with sufficient copies for service on the parties, with the University at least 10 days prior to the date set for hearing. Petitions untimely filed shall not be considered unless the University determines that good cause has been shown for failure to file timely.
(3) The petition requesting status as a party shall set forth the following:
(a) Name and address of the petitioner, and of any organization which the petitioner represents;
(b) Name and address of the petitioner's attorney, if any;
(c) If the petitioner is seeking party status to protect an alleged personal interest in the outcome of the University's proceeding, a detailed statement of the petitioner's interest, economic or otherwise, and of how such interest may be affected by the results of the proceeding;
(d) If the petitioner purports to be representing a public interest in the results of the proceeding, a detailed statement of such public interest, the manner in which such public interest will be affected by the results of the proceeding, and of the petitioner's qualifications to represent such public interest;
(e) A statement of the reasons why existing parties to the proceeding cannot represent adequately the interest identified in subsection (c) or (d) of this section.
(4) The University shall serve petitions for party status on all parties personally or by mail. Parties shall have seven days from the date of personal service or University mailing to file an answer to the petition.
(5) If the University determines that good cause has been shown for failure to file a timely petition, the University at its discretion may:
(a) Shorten the time within which answers to the petition shall be filed;
(b) Postpone the hearing until disposition is made of the petition.
(6) If a person is granted status as a party, the University may postpone or continue the hearing to a later date when it appears that commencing or continuing the hearing would jeopardize or unduly burden one or more of the parties in the case.
(7) In ruling on petitions for party status, the University shall consider:
(a) Whether the petitioner has demonstrated a personal or public interest which reasonably could be affected by the outcome of the proceeding;
(b) Whether any such affected interest is within the scope of the University's jurisdiction;
(c) The qualifications the petitioner represents in cases where a public interest is alleged;
(d) The extent to which the petitioner's alleged interest will be represented by existing parties.
(8) The University's ruling on a petition for party status shall be by written order and served promptly on the petitioner and all parties.
(1) The presiding officer for the hearing shall issue subpoenas in hearing on contested cases on a showing of need, general relevancy, and a relationship within the reasonable scope of the proceedings.
(2) An interested party may petition the University for an order that the testimony of a material witness be taken by deposition. Fees and mileage shall be paid as determined by applicable statutes.
(3) The University shall issue subpoenas to any party to a contested case upon a showing of general relevance and reasonable scope of the evidence sought.
(4) Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the University, shall be tendered fees and mileage as prescribed by law for witnesses in civil actions. The party requesting the subpoena shall be responsible for service of the subpoena and tendering the witness and mileage fees to the witness.
(5) On petition of any party to a contested case, the University may order the testimony of any material witness be taken by deposition in the manner prescribed by law for depositions in civil actions (ORS Chapter 45). Depositions may also be taken by the use of audio or audiovisual recordings. The petition shall set forth:
(a) The name and address of the witness whose testimony is desired;
(b) A showing of materiality of the testimony;
(c) A request for an order that the testimony of the witness be taken before an officer named in the petition for that purpose.
(6) If the University issues an order for the taking of a deposition and the witness resides in this state and is unwilling to appear, the University may issue a subpoena as provided in section (3) of this rule requiring the witness to appear before the officer taking the deposition.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.425, ORS 183.440 & ORS 183.445
Hist.: UOO 18(Temp), f. & ef. 2-5-76; UOO 19, f. & ef. 4-27-76; UOO 1-1978(Temp), f. & ef. 4-5-78; UOO 2-1978, f. 6-19-78, ef. 6-20-78; UOO 1-1980(Temp), f. & ef. 1-22-80; UOO 2-1980, f. & ef. 3-10-80
(1) The hearing shall be conducted by, and shall be under the control of, the presiding officer. The presiding officer shall be the Executive Dean or the Dean's designee.
(2) At the discretion of the presiding officer, the hearing shall be conducted in the following manner:
(a) Statement and evidence of University officials or employes in support of the University's action;
(b) Statement and evidence of the affected person disputing University action;
(c) Rebuttal testimony.
(3) The presiding officer and the affected parties and the University or its attorneys shall have the right to question or examine or cross examine any witnesses.
(4) The hearing may be continued with recesses as determined by the presiding officer.
(5) The presiding officer may set reasonable time limits for oral presentation and may exclude or limit cumulative, repetitious, or immaterial matter.
(6) Exhibits shall be marked and the markings shall identify the person offering the exhibits. The exhibits shall be preserved by the University as part of the record of the proceedings.
(7) A verbatim oral, written, or mechanical record shall be made of all motions, rulings, and testimony. The record need not be transcribed unless requested for purposes of rehearing or court review. The University may charge the party requesting transcription the cost of a copy of transcription, unless the party files an appropriate affidavit of indigency. However, upon petition, a court having jurisdiction to review under ORS 183.480 may reduce or eliminate the charge upon finding that it is equitable to do so, or that matters of general interest would be determined by review of the order of the University.
Representation at Contested Case Hearings
(1) University officials and employees, with the Attorney Generals written consent, ORS 183.450 (7)(a), are authorized to appear and participate (but not make legal argument) on behalf of the University in the following types of hearings:
(a) For-cause disciplinary actions involving a more severe sanction than a written reprimand (OAR 580-021-0320 through 580-021-0360);
(b) Medical-condition terminations or FTE reductions for faculty;
(c) Mandatory medical leave proceedings involving students (OAR 571-023-0015 through 571-023-0040);
(d) Termination proceedings, non-renewal proceedings, or gradation-of-athletic-grants-in-aid proceedings before the Drug Testing Appeals Board;
(e) Prosecutions for violations of the Student Conduct Code to be disposed of through the hearings process before a hearing officer or appeals therefrom to the University Appeals Board.
(2) "Legal argument" as used in ORS 183.450 (8) and in this rule includes arguments on:
(a) The jurisdiction of the University to hear the contested case;
(b) Constitutionality of a statute or rule or the application of a constitutional requirement to an agency;
(c) Application of court precedent to the facts of the particular contested case proceeding.
(3) "Legal argument" does not include presentation of evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:
(a) The application of the facts to the statutes or rules directly applicable to the issues in a contested case;
(b) Comparison of prior actions of the University in handling similar situations;
(c) The literal meaning of the statutes or rules directly applicable to the issues of a contested case;
(d) Admissibility of evidence or correctness of the procedures being followed.
(4) When University officials or employees are representing the agency in a hearing, the presiding officer shall advise such representatives of the manner in which objections may be made and matters preserved for appeal which advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objections. When such objections may involve legal argument, the presiding officer shall provide reasonable opportunity for the agency official or employee to consult legal counsel and shall permit legal counsel to file written legal argument within a reasonable time after conclusion of a hearing but before final disposition.
(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude University action on the record unless shown to have substantially prejudiced the rights of a party.
(2) All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible.
(3) Evidence objected to may be received by the presiding officer, with rulings on its admissibility or exclusion to be made at the time it is offered or when the final order is issued.
(4) The officer or officers deciding, or recommending a decision may take notice of judicially cognizable facts, or facts within their specialized knowledge, but adverse parties shall be afforded an opportunity to contest the facts so noticed.
The Record; Consideration of the Record
(1) The record shall contain:
(a) All pleadings, motions, and intermediate rulings;
(b) Evidence received or considered;
(d) A statement of matters officially noticed;
(e) Questions and offers of proof, objections, and rulings thereon;
(f) Proposed findings and exceptions;
(g) Any proposed, intermediate, or final order.
(2) No sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative, and substantial evidence.
Proposed Orders on Contested Cases, Filing of Exceptions and Argument
(1) If a majority of the officials who are to render the final order were not present at the hearing or have not reviewed and considered the record, and the order is adverse to a party (excluding the University), a proposed order including findings of fact and conclusions of law shall be served upon the parties.
(2) The parties shall be given the opportunity to file exceptions and present argument to the officials who will render a final order.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.464 & ORS 183.470
Hist.: UOO 18(Temp), f. & ef. 2-5-76;UOO 19, f. & ef. 4-27-76; UOO 1-1978(Temp), f. & ef. 4-5-78; UOO 2-1978, f. 6-19-78, ef. 6-20-78
Final Orders on Contested Cases, Notification
(1) Final orders on contested cases shall be in writing and include the following:
(a) Rulings on admissibility of offered evidence;
(b) Findings of fact -- Those matters which are either agreed as fact or which, when disputed, are determined by the fact finder, on substantial evidence, to be a fact over contentions to the contrary;
(c) Conclusion(s) of law -- Applications of the controlling law to the facts found and the legal results arising therefrom;
(d) Order – the action taken by the University as a result of the findings of fact and conclusions of law.
(2) Parties to contested cases and their attorneys of record shall be served a copy of the final order. Parties shall be notified of their right to judicial review of the order.
(3) The President of the University shall issue all final orders unless he has subdelegated such authority in writing in a particular instance.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.464 & ORS 183.470
Hist.: UOO 18(Temp), f. & ef. 2-4-76; UOO 19, f. & ef. 4-27-76; UOO 1-1978(Temp), f. & ef. 4-5-78; UOO 2-1978, f. 6-19-78, ef. 6-20-78
(1) A party may file a petition for reconsideration or rehearing on a final order with the University President within 30 days after the order is served.
(2) The petition shall set forth the specific ground or grounds for requesting the reconsideration or rehearing. The petition may be supported by a written argument.
(3) The President may grant a reconsideration petition if sufficient reason therefor is made to appear. If the petition is granted an amended order shall be entered.
(4) The President may grant a rehearing if sufficient reason therefor is made to appear. The rehearing may be limited by the President to specific matters.
(5) If the President does not act on the petition within the 30th day following the date the petition was filed, the petition shall be deemed denied.