Notice of Proposed Rule
Prior to the adoption, amendment, or repeal of any rule, except for a temporary rule, Oregon State University shall give notice of the proposed adoption, amendment, or repeal:
(1) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days prior to the effective date.
(2) By mailing a copy of the notice 28 days prior to the effective date to the following persons, organizations, or publications:
(a) Associated Press;
(b) The Oregonian;
(c) The Statesman Journal;
(d) Eugene Register-Guard;
(e) Corvallis Gazette-Times;
(f) The Daily Barometer;
(g) OSU This Week;
(h) ASOSU Vice President;
(i) OSU Faculty Senate President;
(j) OPEU Headquarters; and
(k) Oregon State Attorney General.
(3) By mailing copies of the notice at least 28 days before the effective date to persons on the mailing list established pursuant to ORS 183.335(7).
Contents of Notice When a Public Hearing is Contemplated
When a public hearing will be held or is contemplated, the notice shall include the following:
(1) A description of the University's proposed action (adoption, amendment, or repeal of rule) and where practicable and appropriate setting forth verbatim any rule proposed to be adopted, amended, or repealed.
(2) The subject matter and purpose of the proposed action in sufficient detail to inform a person that his or her interest may be affected.
(3) The time and place of the public hearing and the manner in which interested persons may present their views.
(4) A designation of the officer or governing body of the University or other person who will preside at and conduct the hearing.
(5) If the proposed rule, amendment, or repeal thereof is not set forth verbatim in the notice, the notice shall state the time, place, and manner in which the rule or amendment may be obtained.
Contents of Notice When a Public Hearing is Not Contemplated
When the University does not plan to hold a public hearing, the notice referred to above shall include the following:
(1) A description of the University's proposed action (adoption, amendment, or repeal of rule) and where practicable and appropriate, setting forth verbatim any rule proposed to be adopted, amended, or repealed.
(2) The subject matter and purpose of the proposed action in sufficient detail to inform a person that his or her interest may be affected.
(3) The time and place at which data or views may be submitted in writing to the University.
(4) A statement that any interested person desiring to express or submit his or her data or views at a public hearing must request the opportunity to do so.
(5) A designation of the person to whom a request for public hearing must be submitted and the time and place therefor.
(6) A statement that a public hearing will be held if the University receives a request for public hearing before the earliest date that the rule could become effective after University notice from 10 or more persons or an association having not less than 10 members.
(7) If the proposed rule, amendment, or repeal thereof is not set forth verbatim in the notice, the notice shall state the time, place, and manner in which the rule or amendment may be obtained.
(8) If 10 persons or an association having more than 10 members request a public hearing, the University shall give notice of the hearing at least 21 days before the hearing to the person who has requested the hearing and to persons who have requested notice pursuant to ORS 183.335(7), and shall publish notice of the hearing in the bulletin referred to in ORS 183.360 at least 14 days before the hearing.
General Rulemaking Requirements
The University rulemaking notice must:
(1) Include a statement of the legal authority for the rule.
(2) Include a citation of the statute or other law the rule is intended to implement.
(3) Include a statement of the need for the rule and how the rule meets the need.
(4) Include a list of documents, studies or reports prepared for or relied upon in formulating the rule, and a statement of the location at which those documents are available for public inspection.
(5) Provide a statement of fiscal impact identifying state agencies, units of local government and the public which may be economically affected by the adoption, amendment or repeal of the rule and an estimate of that economic impact on state agencies, units of local government and the public. In considering the economic effect of the proposed action on the public, the University shall utilize available information to project any significant economic effect of that action on businesses which shall include a cost of compliance effect on small businesses affected.
(6) If an advisory committee is not appointed under the provisions of ORS 183.025(2), provide an explanation as to why no advisory committee was used to assist the University in drafting the rule.
Postponing Intended Action
(1) The University shall postpone its intended action upon request of an interested person received before the earliest date that the rule could become effective after University notice to allow the requesting person an opportunity to submit data, views, or arguments concerning the proposed action.
(2) Postponement of the date of intended action shall be for no less than 21 days nor more than 90 days. In determining the length of postponement, the President shall consider the time necessary to give reasonable notice of the postponement and the complexity of the subject and issues of the intended action.
(3) This rule shall not apply to the procedure for adopting a temporary rule pursuant to ORS 183.335(5) and rule 576-001-0050.
Conduct of the Hearing
(1) The President's designee shall be the presiding officer.
(2) At the commencement of the hearing, any person wishing to be heard shall advise the presiding officer of his or her name, address, and affiliation. Additional persons may be heard at the discretion of the presiding officer. The presiding officer may provide an appropriate form for listing witnesses which shall indicate the name of the witness, whether the witness favors or opposes the proposed action, and such other information as the presiding officer may deem appropriate.
(3) At the opening of the hearing, the presiding officer shall summarize the notice provided for in rule 576-001-0005 or 576-001-0010, as the case may be.
(4) Subject to the discretion of the presiding officer, the order of the presentation shall be:
(a) Statement of proponents;
(b) Statement of opponents; and then
(c) Statements of any other witnesses present and wishing to be heard.
(5) The presiding officer shall have the right to question any witness making a statement at the hearing. At the discretion of the presiding officer, other persons may be permitted to question witnesses.
(6) There shall be no rebuttal or additional statements given by any witness unless requested by the presiding officer. However, when such additional statement is given, the presiding officer shall allow an equal opportunity for reply.
(7) The hearing may be continued with recesses as determined by the presiding officer until all listed witnesses present and desiring to make a statement have had an opportunity to do so.
(8) The presiding officer shall, where practicable, receive all physical and documentary evidence presented by witnesses. Exhibits shall be marked and shall identify the witness offering the exhibit. The exhibits shall be preserved by the University for one year or, in the discretion of the University, returned to the witness offering the exhibit.
(9) The presiding officer may set reasonable time limits for oral presentation and may exclude or limit cumulative, repetitious, or immaterial matter.
(10) A verbatim oral, written, or mechanical record may be made of all the proceedings, or, in the alternative, a record in the form of minutes.
Filing and Taking Effect of Rule
(1) The University shall file in the Office of the Secretary of State a certified copy of each rule adopted by it.
(2) A rule shall be effective upon filing unless a later effective date is required by statute or specified in the rule.
Submission to Legislative Counsel
A copy of the rule shall be submitted to the Legislative Counsel within 10 days after the rule has been filed with the Secretary of State.
(1) The University may proceed without prior notice of hearing, or upon any abbreviated notice and hearing that is practicable, to adopt a rule without the notice otherwise required by ORS Chapter 183 and division 1 of these rules. In such case the University shall:
(a) File with the Secretary of State the rule and the University's findings that failure to act promptly will result in serious prejudice to the public interest or to the interest of the parties concerned and the reasons for that finding, a citation of the statutory or other legal authority relied upon and bearing upon the promulgation of the rule, a statement of the need for the rule and a statement of how the rule is intended to meet the need, and a list of the principal documents, reports or studies, if any, prepared by or relied upon by the University in considering the need for and in preparing the rule, and a statement of the location at which those documents are available for public inspection;
(b) Take appropriate measures to make the temporary rule known to the persons who may be affected; and
(c) Furnish copies of the temporary rule pursuant to section 576-001-0000(2).
(2) A temporary rule adopted in compliance with this rule becomes effective upon filing with the Secretary of State or at a later date designated in the rule.
(3) A temporary rule may be effective for no longer than 180 days. The University may, however, adopt an identical rule upon notice in accordance with division 1 of these rules, and may give such notice contemporaneously with adoption of the temporary rule.
(4) File a copy of the adopted rule with the Legislative Counsel within 10 days after filing with the Secretary of State.
(5) A rule temporarily suspended shall regain effectiveness upon expiration of the temporary period of suspension unless the rule is repealed prior to the expiration of the temporary period.
Petition to Promulgate, Amend, or Repeal Rule: Contents of Petition, Filing of Petition
(1) An interested person may petition the University to adopt, amend, or repeal a rule. The petition shall state the name and address of the petitioner and any other person known to the petitioner to be interested in the rule. The petition shall be legible, signed by or on behalf of the petitioner, and shall contain a detailed statement of:
(a) The rule petitioner requests the University to adopt, amend, or repeal. When a new rule is proposed, the petition shall set forth the proposed language in full. When an amendment of an existing rule is proposed, the rule shall be set forth in the petition in full with matter proposed to be deleted enclosed in brackets and proposed additions shown by boldface;
(b) Facts or arguments in sufficient detail to show the reasons for and effects of adoption, amendment, or repeal of the rule;
(c) All propositions of law to be asserted by petitioner.
(2) The University:
(a) May provide a copy of the petition, together with a copy of the applicable rules of practice, to all persons named in the petition;
(b) May schedule oral presentations;
(c) Shall, in writing, within 30 days after receipt of the petition, either deny the petition or initiate rulemaking proceedings.
Stat. Auth. ORS 183.341
Stats. Implemented: ORS 183.341 & 183.390
Hist.: OSU 2, f. & ef. 2-3-77; OSU 2-1980, f. & ef. 10-31-80; OSU 1-1996, f. & cert. ef. 6-21-96
Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications
(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between the University’s employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a tort claim notice or a lawsuit has been filed.
(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(3) Nothing in this rule affects any confidentiality created by other law.
(4) To the extent mediation communications would otherwise be 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) 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) or (h)–(j) of section (7) of this rule.
(6) Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes 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 into evidence by the parties or the mediator in any subsequent proceeding so long as:
(a) The parties to the mediation and the University have agreed in writing to the confidentiality of the mediation, and;
(b) The person agreeing to the confidentiality of the mediation on behalf of the University:
(A) Is neither a party to the dispute nor the mediator, and
(B) Is designated by the University to authorize confidentiality for the mediation, and
(C) Is at the same or higher level in the University than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the University, unless the University head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor's designee.
(7) 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) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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
(i) 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.
(j) The mediator may report the disposition of a mediation to the University at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The University or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the University so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the University, may not be made confidential.
(9) When a mediation is subject to section (6) of this rule, the University will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.230(4)
Hist.: OSU 7-2011(Temp), f. & cert. ef. 9-22-11 thru 3-20-12; OSU 9-2011, f. & cert. ef. 12-27-11