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COMMISSION FOR THE BLIND

 

DIVISION 1

PROCEDURAL RULES

585-001-0000

Procedure for Notification of Proposed Action

(1) What this rule does. This establishes a procedure for notifying interested persons of the Commission for the Blind's proposed action to adopt, amend, or repeal any rule.

(2) Statutory Authority. This rule is authorized by ORS 346.150, 346.180, and Oregon Laws, Chapter 758, Section 6. Public notice of rule making was given by the Commission in Oregon Administrative Rules Bulletin of October 15, 1975, published October 29, 1975. The rule was adopted November 19, 1975, and filed December 17, 1975.

(3) Effective date. This rule is effective December 17, 1975.

(4) Procedure for notification. Prior to the adoption, amendment, or repeal of any rule, the Commission for the Blind shall give notice of proposed adoption, amendment, or repeal as follows:

(a) By publication in the Secretary of State's Bulletin referred to in ORS 183.360 at least 15 days prior to date of the proposed action;

(b) By mailing a copy of the notice of proposed action to persons on the Commission for the Blind's mailing list established pursuant to ORS 183.335(6);

(c) By mailing a copy of the notice of proposed action to the following organizations or publications:

(A) The American Council of the Blind of Oregon

(B) The National Federation of the Blind of Oregon;

(C) The Blind Business Managers Association of Oregon;

(D) United Press International;

(E) Associated Press.

Stat. Auth.: ORS 183
Stats. Implemented:
Hist: 2BC 25, f. & ef. 12-17-75; CFTB 1-2005, f. & cert. ef. 2-11-05

585-001-0005

Rules of Practice and Procedure

(1) The Model Rules of Procedure under the Administrative Procedure Act as amended as adopted by the Attorney General and filed with the Secretary of State, effective March 27, 2000 are adopted as the rules of practice and procedure of the Commission for the Blind, except that any fair hearing under the Model Rules shall be preceded by the following:

(2) An applicant or a person eligible for vocational rehabilitation services under ORS 346.180 may request review of a determination by the Commission that affects the provision of vocational rehabilitation services to the individual. The review shall consist of the right to mediation and/or the right to a due process hearing.

(3) Pursuant to 29 USC §722(c)(2), the Commission shall give written notice of an individual's rights to review when (a) the person applies for vocational services, (b) the person's vocational plan is developed , amended or (c) there is a reduction, suspension or cessation of the person's services.

(4) The Commission shall make mediation available at a minimum when a due process hearing has been requested. Mediation shall be voluntary and shall be conducted consistently with the provisions of 29 USC §722(c).

(5) The due process hearing shall be an evidentiary hearing that is conducted before an impartial hearing officer in conformance with the provisions of 29 USC §722(c).

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the office of the Attorney General or the Commission for the Blind.]

Stat. Auth.: ORS 346. 150 & ORS 183.341
Stats. Implemented:

Hist: 2BC, f. 2-8-72, ef. 2-15-72; 2BC 21, f. 1-28-74, ef. 2-25-74; 2BC 26, f. & ef. 3-1-76; Renumbered from 585-010-0035; 2BC 1-1978, f. & ef. 4-13-78; 2BC 1-1980, f. & ef. 3-28-80; 2BC 1-1982, f. & ef. 2-19-82; 2BC 1-1984, f. & ef. 2-13-84; 2BC 2-1986, f. & ef. 4-11-86; BLC 2-1987, f. & ef. 11-18-87; BLC 1-1988, f. & cert. ef. 11-14-88; CFTB 3-2001, f. & cert. ef. 8-10-01

585-001-0006

Payment of Legal Fees and Transportation Costs

(1) What this rule does. This rule provides information to all interested persons that the Commission for the Blind will not pay for legal services fees or transportation costs for an applicant or client in connection with an Administrative Review, Mediation, or Fair Hearing proceeding.

(2) Assistance of Applicants or Clients;

(a) The Commission for the Blind will not pay for legal service fees or transportation costs for an applicant for vocational rehabilitation services or for a client receiving vocational rehabilitation services, in connection with an administrative review, mediation, or fair hearing proceeding.

(b) Any Administrative Review, Mediation, or Fair Hearing Proceeding will be held at a time and place convenient and accessible to the requesting individual. Each applicant for or recipient of vocational rehabilitation services will be provided information as to their rights to and procedures concerning an Administrative Review, Mediation, or Fair hearing.

Stat. Auth.: ORS 346
Stats. Implemented: ORS 346.150
Hist: 2BC 1-1979, f. & ef. 10-24-79; CFTB 3-1999, f. & cert. ef. 7-8-99; Renumbered from 585-010-0300, CFTB 1-2005, f. & cert. ef. 2-11-05

585-001-0007

Definitions

The following definitions shall apply to all Oregon Administrative Rules contained in OAR chapter 585, Division 1, unless the context requires otherwise:

(1) "Custodian" refers to a public body mandated, directly or indirectly, to create, maintain, care for or control a public record. "Custodian" does not include a public body that has custody of a public record as an agent of another public body that is the custodian, unless the public record is not otherwise available.

(2) "Agency" refers to the Oregon Commission for the Blind.

(3) "Designee" refers to any officer or employee of the Agency, appointed by the Director to respond to requests for public records of the Oregon Commission for the Blind.

(4) "Executive Director" refers to the Executive Director of the Oregon Commission for the Blind.

(5) "Duplication or Duplicating" refers to the process of reproducing a public record or writing in any format.

(6) "Person" includes any natural person, corporation, partnership, firm or association.

(7) "Photocopy(ing)" includes a photograph, microphotograph and any other reproduction on paper or film in any scale, or the process of reproducing, in the form of a photocopy, a public record or writing.

(8) "Public body" includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.

(9) "Public record or writing" includes a document, book, paper, photograph, file, sound recording, machine readable electronic record or other material regardless of physical form or characteristics, made, received, filed or recorded in pursuance of law or in connection with the transaction of public business, whether or not confidential or restricted in use.

(10) "Requestor" refers to the person requesting inspection, copies, or other reproduction of a public record of the Agency. Requests to Inspect or Obtain Copies of Public Records.

(11) A request to inspect or obtain copies of a public record of the Agency shall be made in writing to the Executive Director, and shall include:

(a) The name, address and telephone number and e-mail address of the requestor;

(b) Identification of the records from which information is requested, if known.

(c) The time period the records were produced and officials involved in producing the records or other relevant information, if known;

(d) The format in which the information is needed (i.e. photocopies, audio or video cassette, machine readable, or electronic format, etc.);

(e) The number of copies needed, if copies are requested; and

(f) Instruction to the Agency to certify copies, if necessary.

(12) The Executive Director or designee may waive the requirement, under paragraph (1) of this rule, for a request to be in writing, if it is determined that effective administration is aided by the waiver.

(13) A review of the requested records will be conducted by the Agency as necessary to determine whether the records are exempt from disclosure, in accordance with ORS 192.410 to 192.505 and any other references establishing an exemption to disclosure of public records.

(14) The Executive Director or designee will advise the requestor, within a reasonable amount of time, whether the records may be disclosed, the date, time, and place they may be inspected or obtain copies of the records, and the estimated cost of inspection, duplication, and other related fees as described in OAR 585-001-0008.

(15) If the requested records contain information exempt from disclosure, the requestor will be furnished a copy of the record with the exempt material removed.

(16) The Executive Director or designee may require and designate an Agency employee to supervise the inspection of requested records. Applicability of Rules.

(17) The Administrative Rules set forth in chapter 585, division 1 shall apply to all public records for which the Agency is custodian. Access to Public Records The Executive Director or designee, in carrying out responsibilities of ORS 192.430, as custodian of public records:

(a) Shall allow access to and disclosure of the public records subject to ORS 192.410 to 192.505.

(b) Shall make restrictions and take precautions necessary to protect the integrity of the records and prevent interference with the regular discharge of the Agency’s duties; and

(c) Shall allow for inspection of the Agency’s public records during normal working days and hours at the location which the records reside, or any other reasonable location designated by the Executive Director or designee.

Stat. Auth.: ORS 346.150 & 183.341
Stats. Implemented: ORS 346.150
Hist.: CFTB 2-2012, f. & cert. ef. 12-17-12; CFTB 1-2013, f. & cert. ef. 10-10-13

585-001-0008

Fees for Public Records and Other Services

(1) The Agency will establish fees and miscellaneous charges, for providing access to or copies of public records in paper, electronic, or other format, based on the Agency's actual costs of preparing and providing the records. Costs associated with a request for public records may include per page copy and facsimile fees, postage when applicable, staff time to locate, review, remove information exempt from disclosure, and/or transfer the material to a requested electronic or other necessary format appropriate for releasing the public record(s).

(2) No additional fee will be charged for providing records in an alternative format when required by the Americans with Disabilities Act.

(3) The Executive Director or designee may reduce or waive fees when:

(a) Time spent making the records available for inspection or preparation for photocopying was negligible; or

(b) Supplying the requested records is within the normal scope of an Agency activity; or

(c) Making the record available primarily benefits the general public.

(4) All fees and charges must be paid in advance of releasing the requested public records for inspection or before photocopies are provided. Payments must be made by check or money order and made payable to the Oregon Commission for the Blind.

(5) Consistent with ORS 279.550, to conserve and protect the State's resources, photocopies will be produced on recycled paper in double-sided print format whenever feasible to reduce costs and paper waste.

(6) Due to the threat of computer virus, the Agency will not permit requestors to provide diskettes for electronic reproduction of computer records. Requests for other electronic reproduction will be evaluated at the time of the request and a determination made as to the feasibility and accessibility of the requested electronic format. The Agency may require the requestor to provide the electronic media to which the record(s) will be copied.

(7) The Agency limits the transmission of facsimile copies for public record requests to 30 pages.

(8) Fees:

(a) Photocopies (single or double-sided): 25 cents per page;

(b) Facsimile: $5 1st page, $1 per page thereafter;

(c) CD — $2 each;

(d) Audio Cassette — 90 min.: $2 each;

(e) Video Cassette — 2 hrs.: $6 each;

(f) Postage/Freight: First Class or Bulk rate based on weight;

(g) Staff Time: Calculated based on employee(s) hourly rate of pay;

(h) Indirect Costs/Third Party Charges: Based on actual/invoiced fees;

(i) Publications: Fees for specific publications will be based on actual costs of development, printing and distribution, and determined by the Division distributing or releasing the publication;

(j) Certification of Public Record: $5

Stat. Auth.: ORS 346.150
Stats. Implemented: ORS 346.150
Hist.: CFTB 1-1999, f. & cert. ef. 4-15-99; CFTB 1-2013, f. & cert. ef. 10-10-13

585-001-0010

Violence-Free Workplace Policy

(1) It is the policy of the state of Oregon Commission for the Blind to provide and maintain a workplace and facilities to the public that are free from violence and the threat of violence.

(a) Employees and the public are advised that the Commission for the blind has a violence-free work place policy. Violence in any form will not be tolerated.

(b) Instances of violence or the threat of violence by employees shall be subject to disciplinary action, up to and including dismissal. Instances of violence or the threat of violence by active clients could result in immediate case closure. Instances of violence or the threat of violence by members of the general public could result in criminal charges.

(c) Weapons are not permitted on Commission for the Blind property (including vehicles). Employees, clients, and members of the general public, including those with concealed weapons permits, are prohibited from bringing weapons onto any agency premises, including vehicles. Law enforcement officers are excepted from this policy.

(d) Any employee, client, or other citizen who brings a weapon onto agency premises will be asked to leave immediately. Persons who fail to leave under these circumstances may be charged with the crime of trespass. Any employee who possesses a weapon in the workplace may be subject to discipline, including dismissal.

(e) To prevent incidents of violence, staff and managers are responsible for notifying their supervisor and/or the agency administrator when they have any knowledge of implied or direct threats (including possession of weapons on agency premises) against agency staff. This notification includes threats from other employees, clients, and members of the general public.

(f) If a staff member is threatened by another employee, a client, or a member of the general public, they should terminate the interaction immediately and notify their supervisor or the agency administrator.

(g) Once a report has been made, the incident will be investigated by the agency administrator, personnel director or such additional persons as the agency administrator may designate.

(h) Following incidents of violence or threats of violence, the agency may utilize the Employee Assistance program for group and/or individual debriefing.

(2) Definitions:

(a) Violence includes any action or threat of action directed towards persons or property with the intent of causing injury or damage.

(b) Weapons includes any firearm as defined under ORS 166.210(2) or other weapon, device, animal, instrument, material or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury, or serious damage to property.

Stat. Auth.: ORS 346.150
Stats. Implemented: ORS 346.150
Hist.: CFTB 2-1999, f. & cert. ef. 4-15-99

585-001-0015

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 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) 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;

(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."

Agreement to Participate in a Confidential Mediation

The agency and the parties to the mediation agree to participate in a mediation in which the mediation communications are confidential and/or non-discoverable and inadmissible to the extent authorized by OAR 585-001-0015(7) and this agreement. This agreement relates to the following mediation:

a) _____________________________________________________

(Identify the mediation to which this agreement applies)

b) To the extent authorized by OAR 585-001-0015(7), mediation communications in this mediation are: (check one or more)

___ Confidential and may not be disclosed to any other person;

___ Not admissible in any subsequent administrative proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent administrative proceeding, or introduced as evidence by the parties or the mediator in any subsequent administrative proceeding;

___ 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 administrative, judicial or arbitration proceeding, or introduced as evidence by the parties or the mediator in any subsequent administrative, judicial or arbitration proceeding.

c) ______________________________________________________

Name of Agency

__________________________________________ _________

Signature of Agency's authorized representative Date

(when agency is a party) or Agency employee acting as the mediator (when Agency is mediating the dispute)

d) _____________________________________________________

Name of party to the mediation

__________________________________________ _________

Signature of party's authorized representative Date

e) _____________________________________________________

Name of party to the mediation

__________________________________________ _________

Signature of party's authorized representative Date

(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 to 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 agency director determines 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 17.095 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 or 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: Forms referenced are available from the agency.]

Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.224, 36.228, 36.230, 36.232
Hist.: CFTB 1-2006(Temp), f. & cert. ef. 11-24-06 thru 5-23-07; CFTB 1-2007, f. & cert. ef. 4-23-07

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