Notes of Decisions
A state agency need not be represented at administrative hearings by an attorney unless it chooses to be. Hanchett v. Juras, 12 Or App 33, 504 P2d 1060 (1973)
Reports are not excludable as hearsay where petitioner has option of calling or cross-examining preparer of report. Matthew v. Juras, 16 Or App 524, 519 P2d 402 (1974), Sup Ct review denied; Felling v. Motor Vehicles Division, 30 Or App 479, 567 P2d 581 (1977)
Under provision of this section which provides that agencies may utilize their experience, technical competence and specialized knowledge in evaluation of evidence, finding of Racing Commission that public may lose wagers where licensees enter horse older than conditions set forth for race was permissible though no evidence was offered on point as point was subject with which Commission could be assumed to be familiar. Gregg v. Racing Commn., 38 Or App 19, 588 P2d 1290 (1979), Sup Ct review denied
Where Builders Board hearing was reopened and parties stipulated that second hearing was continuation of first, order based on evidence from second hearing plus exhibits from first hearing was invalid because testimony from first hearing was not considered. Schmidt v. Builders Board, 46 Or App 509, 612 P2d 312 (1980)
Where facts which formed basis for decision of Psychiatric Security Review Board did not appear in hearing record but were supplied only from personal knowledge, they could not form the basis for agency decision without notification and opportunity to rebut. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 633 P2d 846 (1981), Sup Ct review denied
Evidence that employer of petitioner, a pharmacist, had been suspended because of same series of events which gave rise to charges against petitioner was immaterial and should have been excluded, but since there was no showing that evidence influenced boards decision it was harmless. Nichols v. Board of Pharmacy, 61 Or App 274, 657 P2d 216 (1983), Sup Ct review denied
Order dismissing petitioner as student from Oregon Health Sciences University School of Dentistry was reversed and remanded where Hearing Committee considered factual information outside hearing record in contravention of schools guidelines and this section. Morrison v. U. of O. Health Sciences Center, 68 Or App 870, 685 P2d 439 (1984)
Hearings officers general awareness that persons with serious disabilities are gainfully employed is not proper subject of administrative notice. Benson v. AFSD, 69 Or App 185, 684 P2d 624 (1984)
Failure of hearings officer to assist petitioner in presenting evidence constitutes abuse of hearings officers broad discretion in controlling hearing under this section and ORS 183.415 (Notice of right to hearing). Berwick v. AFSD, 74 Or App 460, 703 P2d 994 (1985), Sup Ct review denied
Polygraph evidence is admissible over objection of party in prison disciplinary proceeding to test credibility of unnamed informant. Wiggett v. OSP, 85 Or App 635, 738 P2d 580 (1987), Sup Ct review denied
Party may prove case by hearsay evidence even if other party presents direct evidence. Tri-Met v. Employment Div., 88 Or App 122, 744 P2d 296 (1987)
Where facts can be found in record or were permissible inferences from facts in record, referee did not err in taking judicial notice. Automotive Technology v. Employment Division, 97 Or App 320, 775 P2d 916 (1989), Sup Ct review denied
Absent clear expression of contrary intent by legislature, requirement that agency decision be supported by substantial evidence mandates use of preponderance standard. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied; Gallant v. Board of Medical Examiners, 159 Or App 175, 974 P2d 814 (1999); Staats v. Newman, 164 Or App 18, 988 P2d 439 (1999)
Hearsay evidence is admissible under this section so long as it meets statutory test of reliability. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)
Limitations placed on agency representatives regarding giving legal advice or making legal arguments do not apply to assistant attorneys general representing agency at contested case hearings. Llewellyn v. Board of Chiropractic Examiners, 318 Or 120, 863 P2d 469 (1993)
Judicially cognizable facts is equivalent to judicially noticed fact as used in ORS 40.065 (Rule 201(b). Kinds of facts) (Oregon Evidence Code Rule 201(b)). Arlington Education Association v. Arlington School District No. 3, 177 Or App 658, 34 P3d 1197 (2001), Sup Ct review denied
In general, where party does not request that agency subpoena person who made report, agency is not obligated to produce person at hearing in order to introduce report. Cole/Dinsmore v. DMV, 336 Or 565, 87 P3d 1120 (2004)
Law Review Citations
54 OLR 387 (1975)
Law Review Citations
70 OLR 176 (1991)
See annotations under ORS chapter 183.
Chapter 183
Notes of Decisions
A legislative delegation of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to establish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)
Administrative regulation providing that failure to perform responsibilities adequately was a ground for employees dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied
Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Childrens Services Division, 39 Or App 819, 593 P2d 1262 (1979), affd 288 Or 533, 607 P2d 141 (1980)
Trending factors published by the Department of Revenue and used to appraise property for purposes of property taxation are not rules within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)
Appellate court may review proceeding meeting definition of contested case whether or not proceeding was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)
Circuit court could not entertain action for declaratory judgment directed at PERS, because PERS is subject to APA, which provides exclusive method for review of its actions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied
Board of Education approval of textbook for use in state public schools was not rule, but was order in other than contested case, and jurisdiction for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)
Preponderance of evidence standard applies where initial license application is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied
Completed Citations
Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)
Atty. Gen. Opinions
State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student conduct proceedings as contested cases, (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is fundamentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155
Law Review Citations
51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)
