2015 ORS 183.450¹
Evidence in contested cases

In contested cases:

(1) Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. Agencies and hearing officers shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form.

(2) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in subsection (4) of this section no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.

(3) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence. Persons appearing in a limited party status shall participate in the manner and to the extent prescribed by rule of the agency.

(4) The hearing officer and agency may take notice of judicially cognizable facts, and may take official notice of general, technical or scientific facts within the specialized knowledge of the hearing officer or agency. Parties shall be notified at any time during the proceeding but in any event prior to the final decision of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed. The hearing officer and agency may utilize the hearing officer’s or agency’s experience, technical competence and specialized knowledge in the evaluation of the evidence presented.

(5) 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. [1957 c.717 §9; 1971 c.734 §15; 1975 c.759 §12; 1977 c.798 §3; 1979 c.593 §21; 1987 c.833 §1; 1995 c.272 §5; 1997 c.391 §1; 1997 c.801 §76; 1999 c.448 §5; 1999 c.849 §34]

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 Comm'n., 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 board's 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 school's guide­lines and this sec­tion. Morrison v. U. of O. Health Sciences Center, 68 Or App 870, 685 P2d 439 (1984)

Hearings of­fi­cer's "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 of­fi­cer's 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 employee's 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. Children's Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff'd 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)


1 Legislative Counsel Committee, CHAPTER 183—Administrative Procedures Act; Legislative Review of Rules; Civil Penalties, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors183.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 183, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano183.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.