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OREGON UNIVERSITY SYSTEM, EASTERN OREGON UNIVERSITY

 

DIVISION 12

CONTESTED CASE PROCEDURES

 

579-012-0000

Definitions

(1) "Affected Party" means any person who seeks a hearing under OAR 579-015-0005(5), or any other person entitled to a contested case hearing but does not mean a person whose complaint is subject to being processed by a grievance procedure.

(2) "Hearing Officer" means an individual or committee designated to conduct a contested case proceeding. When a committee is to serve as hearing officer, a presiding officer will be designated who will have the power to conduct and rule on preliminary matters, to administer oaths and affirmations, to issue subpoenas and to rule on evidentiary matters. In order for a committee to hear a contested case, a majority of the identified members must be present. When both faculty and students are members, at least one of each must be present. The term Hearing Officer, whenever used in these rules, shall include both the individual hearing officer and the committee.

Stat. Auth.: ORS 183.341 & 351
Stats. Implemented: ORS 183.341 & 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93; EOU 2-2005, f. & cert. ef. 7-7-05

579-012-0010

Entitlement to Contested Case Hearing

(1) An affected party shall be entitled to a contested case hearing in which the affected party's individual legal rights, duties, or privileges are required by statute or constitution to be determined only after an institution hearing, and in all cases in which an affected party is seeking return of money retained by or on deposit with institution and in all cases in which the institution is requiring the payment of claimed past indebtedness as a prerequisite to registration or other future benefit, except as provided in section (2) of this rule.

(2) An affected party is not entitled to a contested case hearing when:

(a) A contested case hearing is waived by the affected party, either expressly or by timely failure to request a contested case hearing;

(b) In any case involving collection of fees or fines for parking, improper parking, traffic fines or penalties.

Stat. Auth.: ORS 183.341 & 351
Stats. Implemented: ORS 183.341 & 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93; EOU 2-2005, f. & cert. ef. 7-7-05

579-012-0020

Contested Case Defined; Notice of Hearing

(1) A contested case exists whenever:

(a) A constitutional provision or state or federal statute requires that individual legal rights, duties, or privileges be determined by the institution hearing upon the matter; and

(b) The affected party makes a written request therefore.

(2) Within five days after receipt of request for a hearing, the institution shall give notice to all parties in a contested case. The notice shall include:

(a) A statement of the time and place of the hearing, name of the hearing officer, and name and title of the person who is authorized by the institution to issue a final order after 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, at the party's own expense and initiative, the party may be represented by counsel at the hearing;

(f) A statement that the contested case hearing is being held at the request of the affected party.

(3) The notice described in section (2) of this rule shall be served personally or by registered or certified mail sent to the address of the affected party as shown on the records of this institution.

(4) Preferably with the notice described in section (2) of this rule, but no later than one day prior to the hearing, the affected party must be given the following information:

(a) A general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections may be made and an explanation of the burdens of proof or burdens of going forward with the evidence;

(b) Whether a record will be made of the proceedings and the manner of making the record and its availability to the parties;

(c) The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the institution;

(d) Whether an attorney will represent the institution in the matters to be heard and whether the parties ordinarily and customarily are represented by an attorney;

(e) The title and function of the person presiding at the hearing, whether the person presiding at the hearing is or is not an employee, officer or other representative of the institution, the manner in which the testimony and evidence taken by the person presiding will be reviewed, the effect of that person's determination, who makes the final determination on behalf of the institution, and whether that person has the authority to make a final determination;

(f) In the event an affected party is not represented by an attorney, whether the party may, during the course of proceedings, request a recess if, at that point, the affected party determines that representation by an attorney is necessary to the protection of the party's rights;

(g) Whether there exists an opportunity for an adjournment at the end of the hearing if the party then determines that additional evidence should be brought to the attention of the institution and hearing reopened;

(h) Whether there exists an opportunity after the hearing and prior to the final determination or order of the institution to review and object to any proposed findings of fact, conclusions of law, summary of evidence or recommendations of the officer presiding at the hearing;

(i) A description of the appeal process from the determination or order of the institution.

(5) In addition to the notice required in section (4) of this rule, the information required in section (4) of this rule may be given in writing or orally immediately before the commencement of the hearing, or the hearing officer may confirm that the affected party has received the notice.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0030

Order When Affected Party Fails to Appear

(1) If the affected party fails to appear at the specified time and place, or at the time to which the hearing may have been continued by mutual consent or by order of the hearing officer, this institution shall issue an order based on the information available to it either by proceeding as if the affected party had appeared or by referencing institution material as the record and foregoing any further proceedings.

(2) The order supporting the action of this institution shall set forth the material and/or testimony on which the action is based or the material shall be attached to and made a part of the order.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0040

Subpoena, Deposition

(1) The institution's hearing officer shall issue subpoenas in hearings on contested cases on a showing of need, relevancy to the issues stated in the notice of the hearing, and a showing that the evidence to be elicited from the witness or witnesses will be reasonably within the scope of the proceedings.

(2) An interested party to the proceedings may petition the institution for an order that the testimony of a material witness be taken by deposition. The petition shall set forth the name and address of the witness whose testimony is desired, a showing of the materiality of his testimony, and a request for an order that the testimony of such witness be taken before an officer named in the petition for that purpose. If the witness resides in this state and is unwilling to appear, the hearing officer may issue a subpoena requiring the appearance of the witness before such officer.

(3) Fees and mileage are to be paid to the witnesses by the applicant for the subpoena in the amounts determined by statutes applicable to witnesses in civil actions, except that fees and mileage are not required to be paid to officers and employees of the institution. Service of subpoena shall be the responsibility of the applicant.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0050

Hearing

(1) The hearing shall be conducted by and shall be under the control of the hearing officer. The hearing officer may expel any person, including affected party, if that party engages in conduct that disrupts the proceedings or, in the judgment of the hearing officer is designed to threaten, coerce or harass any participant in the proceeding.

(2) Subject to the discretion of the hearing officer, the hearing shall be conducted in the following manner:

(a) At the commencement of the hearing, the person presiding shall explain the issues involved in the hearing and the matters that the parties must either prove or disprove;

(b) Statement and evidence of the institution in support of its action;

(c) Statement and evidence of affected party's disputing the institution's action;

(d) Rebuttal testimony.

(3) The hearing officer, and the affected party and the institution, or attorneys representing either shall have the right to question or examine or cross-examine any witness.

(4) The hearing may be continued with recesses as determined by the hearing officer.

(5) The hearing officer may set reasonable time limits for oral presentation.

(6) Exhibits shall be marked and the markings shall identify the person offering the exhibits. The exhibits shall be preserved by this institution as part of the record of the proceedings.

(7) A verbatim record of the proceedings shall be maintained.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0060

Evidentiary Rules

(1) Evidence of a type commonly relies upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible

(2) All offered evidence, not objected to, will be received by the hearing officer subject to the hearing officer's power to exclude irrelevant, immaterial, or unduly repetitious matter.

(3) Evidence objected to may be received by the hearing officer who will make rulings on its admissibility to be made when offered, at a later time during the hearing or at the time a final order is issued.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0070

Proposed Orders on Contested Cases; Filing of Exceptions and Arguments

(1) If the official who is to render the final order was not present at the hearing or has not reviewed and considered the record, and the order is adverse to a party (excluding this institution), a proposed order including findings of fact and conclusions of law shall be served upon the parties.

(2) When the contested case is heard by a committee, the proposed orders shall be determined by majority vote of the committee who heard the contested case.

(3) After the proposed order is issued, the parties shall be given the opportunity to file exceptions and present argument to the official who renders the final order prior to its issuance.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0080

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 if the ruling was deferred to that time;

(b) Findings of fact- those matters which are either agreed as fact or that, when disputed, are determined by the fact finder, on substantial evidence, to be facts even though there are contentions to the contrary. A finding must be made on each fact necessary to reach conclusions of law on which the order is based;

(c) Conclusions of law- applications of the controlling law and rules to the facts found and the legal results arising therefrom;

(d) Order- the action taken by this institution as the result of findings of fact and conclusions of law;

(e) A citation of the statutes under which the order may be appealed.

(2) Parties to contested cases and their attorneys of record shall be served, by mail or delivery, a copy of the final order. Parties shall be notified of their right to judicial review of the order. The date of service of the order to the parties shall be specified in writing on the order or, on an attachment thereto, on file with the institution, unless service is not required by statute.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

579-012-0090

Ex Parte Communications to the Institution

(1) An ex parte communication is an oral or written communication to the institution decision maker or the hearing officer not made in the presence of all parties to the hearing, concerning a fact or issue in the proceeding, but does not include communication from the institution staff or counsel about fact in the record.

(2) The institution shall give notice to all parties, of ex parte communications during the pendency of the proceeding. The notice shall include:

(a) The substance of the communication, if oral or if in writing, a copy of the communication;

(b) An opportunity for any party who did not present the ex parte communication to rebut the substance of the ex parte communication on record.

Stat. Auth.: ORS 183.341 & ORS 351
Stats. Implemented: ORS 183.341 & ORS 351.070
Hist.: EOSC 2-1993(Temp), f. & cert. ef. 6-7-93; EOSC 3-1993, f. & cert. ef. 8-2-93

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