2017 ORS 183.650¹
Form of order
  • modification of form of order by agency
  • finding of historical fact

(1) In any contested case hearing conducted by an administrative law judge assigned from the Office of Administrative Hearings, the administrative law judge shall prepare and serve on the agency and all parties to the hearing a form of order, including recommended findings of fact and conclusions of law. The administrative law judge shall also prepare and serve a proposed order in the manner provided by ORS 183.464 (Proposed order by hearing officer) unless the agency or hearing is exempt from the requirements of ORS 183.464 (Proposed order by hearing officer).

(2) If the administrative law judge assigned from the office will not enter the final order in a contested case proceeding, and the agency modifies the form of order issued by the administrative law judge in any substantial manner, the agency must identify the modifications and provide an explanation to the parties to the hearing as to why the agency made the modifications.

(3) An agency conducting a contested case hearing may modify a finding of historical fact made by the administrative law judge assigned from the Office of Administrative Hearings only if the agency determines that there is clear and convincing evidence in the record that the finding was wrong. For the purposes of this section, an administrative law judge makes a finding of historical fact if the administrative law judge determines that an event did or did not occur in the past or that a circumstance or status did or did not exist either before the hearing or at the time of the hearing.

(4) Notwithstanding ORS 19.415 (Scope of appellate review) (3), if a party seeks judicial review of an agency’s modification of a finding of historical fact under subsection (3) of this section, the court shall make an independent finding of the fact in dispute by conducting a review de novo of the record viewed as a whole. If the court decides that the agency erred in modifying the finding of historical fact made by the administrative law judge, the court shall remand the matter to the agency for entry of an order consistent with the court’s judgment. [1999 c.849 §12; 2003 c.75 §11; 2009 c.231 §5; 2009 c.866 §7]

Notes of Decisions

Peti­tioner Asking Appellate Court to Engage In De Novo Review Must

1) separately identify each challenged finding of historical fact in final agency order; 2) identify finding of historical fact by administrative law judge in proposed order that was modified by agency finding; and 3) explain why finding as modified by agency is contrary to preponderance of evidence. Corcoran v. Board of Nursing, 197 Or App 517, 107 P3d 627 (2005)

Independent findings of fact on judicial review are not limited to choosing between conflicting findings of fact contained in proposed and final order. Corcoran v. Board of Nursing, 197 Or App 517, 107 P3d 627 (2005)

Where peti­tioner sought review of administrative law judge’s finding about decision of Board of Licensed Professional Counselors and Therapists to suspend peti­tioner’s professional counseling license, court is re­quired to make independent finding of disputed fact by con­ducting de novo review of record and peti­tioner must identify evidence in record that is contrary to Board’s finding for each finding of fact peti­tioner disputes. Weldon v. Board of Licensed Professional Counselors and Therapists, 266 Or App 52, 337 P3d 911 (2014), Sup Ct review denied

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.