2017 ORS 183.452¹
Representation of agencies at contested case hearings

(1) Agencies may, at their discretion, be represented at contested case hearings by the Attorney General.

(2) Notwithstanding ORS 9.160 (Bar membership required to practice law), 9.320 (Necessity for employment of attorney) and ORS chapter 180, and unless otherwise authorized by another law, an agency may be represented at contested case hearings by an officer or employee of the agency if:

(a) The Attorney General has consented to the representation of the agency by an agency representative in the particular hearing or in the class of hearings that includes the particular hearing; and

(b) The agency, by rule, has authorized an agency representative to appear on its behalf in the particular type of hearing being conducted.

(3) An agency representative acting under the provisions of this section may not give legal advice to an agency, and may not present legal argument in contested case hearings, except to the extent authorized by subsection (4) of this section.

(4) The officer presiding at a contested case hearing in which an agency representative appears under the provisions of this section may allow the agency representative to present evidence, examine and cross-examine witnesses, and make arguments relating to the:

(a) Application of statutes and rules to the facts in the contested case;

(b) Actions taken by the agency in the past in similar situations;

(c) Literal meaning of the statutes or rules at issue in the contested case;

(d) Admissibility of evidence; and

(e) Proper procedures to be used in the contested case hearing.

(5) Upon judicial review, no limitation imposed under this section on an agency representative is the basis for reversal or remand of agency action unless the limitation resulted in substantial prejudice to a party.

(6) The Attorney General may prepare model rules for agency representatives authorized under this section. [1999 c.448 §3]

Note: 183.452 (Representation of agencies at contested case hearings) was added to and made a part of 183.413 (Notice to parties before hearing of rights and procedure) to 183.470 (Orders in contested cases) by legislative action but was not added to any other series. See Preface to Oregon Revised Statutes for further explanation.

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; Review of Rules; Civil Penalties, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors183.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 183, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano183.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.