Or. Admin. Code § 291-105-0028
Current through Register Vol. 63, No. 11, November 1, 2024
Section 291-105-0028 - [Effective until 11/27/2024] Conduct of Formal Hearings(1) Unless waived by the AIC, a formal hearing shall be conducted by the Hearings Officer on all misconduct reports charging any major rule violation and any included minor violation, on all misconduct reports charging a minor rule violation(s) for which an AIC requests a formal hearing, and on all misconduct reports referred by the adjudicator for a formal hearing in accordance with OAR 291-105-0041(6).(2) The findings must be on the merits. Technical and clerical errors in the writing or processing of the misconduct report should not be grounds for dismissal, unless there is substantial prejudice to the AIC.(3) Standard of Proof: Rule violation(s) shall be found upon proof by a preponderance of the evidence. The term "preponderance of the evidence" means the greater weight of evidence, not necessarily established by the amount of evidence or number of witnesses, but by that evidence that has the most convincing force.(4) The Hearings Officer shall consider such evidence as would be considered by a reasonable person in the conduct of their serious affairs.(5) Once the formal hearing has begun, if the Hearings Officer determines that the violations are not supported by the facts as written in the misconduct report, the Hearings Officer may substitute a lesser included violation or refer back to the author for less formalized discipline.(6) At the hearing, the AIC will be allowed to exercise rights as allowed in OAR 291-105-0056.(7) The Hearings Officer may pose questions during the hearing.(8) An investigation shall be conducted in a formal hearing upon the AIC's request if the information sought, when viewed in a light most favorable to the AIC, and with all reasonable inferences drawn in the favor of the AIC, would constitute a defense to the charge or substantially mitigate the violation. The information sought must be within the ability of the facility to procure. If a request for investigation is denied, the reason(s) for denial shall be made a part of the record.(9) Testimony of Witnesses:(a) The Hearings Officer shall direct the scheduling and taking of testimony of witnesses at the hearing. Witnesses may include AICs, employees, or other persons. Testimony may be taken in person, by telephone, or by written report or statement.(b) The AIC may request that the Hearings Officer schedule witnesses to present testimony at the hearing. The request should be submitted to the Hearings Officer in writing in advance of the hearing and include a list of all persons the AIC requests be called to testify, and the questions sought to be posed to each person. Requests for witnesses must minimally be made to the Hearings Officer at the time of the hearing. The AIC must provide sufficient evidence for the Hearings Officer to conclude that the results of the testimony provided by witnesses will either constitute a defense to the alleged violation(s) or substantially lessen the severity of the violation(s). The Hearings Officer shall arrange for the taking of testimony from such witnesses as properly requested by the AIC, subject to the exclusions and restrictions provided in these rules. Requests for witnesses made or received after a hearing is decided will not be considered.(c) The AIC shall not directly pose questions to any witness.(d) The Hearings Officer may limit testimony when it is cumulative or irrelevant.(e) The Hearings Officer may exclude a specific witness upon finding that the witness' testimony, together with all reasonable inferences to be drawn from that testimony, would not constitute a defense to the charge, would not substantially mitigate the violation, or would not assist the Hearings Officer in the resolution of the disciplinary action. The Hearings Officer may exclude a specific witness upon finding that the appearance of the witness at the hearing would present an immediate undue risk to the safe, secure, or orderly operation of the facility, specifically including the safety and security of employees and AICs. If a witness is excluded, the reason(s) shall be made a part of the record.(f) The Hearings Officer may call witnesses to testify as deemed necessary.(g) Persons requested as witnesses, other than employees, may refuse to testify.(h) All questions that may assist in eliciting evidence that would constitute a defense to the alleged rule violation(s) or substantially mitigate the violation(s) shall be posed. The reason for not posing a question will be made part of the record.(i) Confidential Informants: (A) When confidential informant testimony is submitted to the Hearings Officer, the identity of the informant and the verbatim statement of the informant shall be submitted to the Hearings Officer in writing using an approved Department of Corrections form but shall remain confidential in accordance with OAR 291-105-0036(3).(B) Information must be submitted supporting the informant is a person who can be believed or that the information provided is believable in order for the Hearings Officer to rely on the testimony of the confidential informant.(10) Documents and Physical Evidence: (a) An AIC participating in a formal disciplinary hearing may present documents and physical evidence during the hearing, subject to the exclusions and restrictions provided in these rules. Any evidence submitted by the AIC will be added to the record and will not be returned or photocopied for the AIC by the Hearings Officer. In instances where the AIC does not have the ability to procure the evidence (for example, obtaining surveillance video footage), the Hearings Officer may assist.(b) Any person who is knowledgeable of any rule violation charged in the misconduct report(s) may submit documents and physical evidence in advance of or during the hearing.(c) The Hearings Officer may exclude documents and physical evidence upon finding that such evidence would not assist the Hearings Officer in the resolution of the disciplinary action or that such evidence would present an undue risk to the safe, secure, or orderly operation of a facility, specifically including the safety and security of employees and AICs. The reason(s) for exclusion shall be made a part of the record.(d) The Hearings Officer shall classify documents and physical evidence as confidential upon finding that disclosure would present an undue risk to the safe, secure, or orderly operation of any facility, specifically including the safety and security of employees and AICs, or that disclosure would interfere with an ongoing official investigation. The reason(s) for classifying documents and physical evidence as confidential shall be made a part of the record. Documents and physical evidence classified as confidential by the Hearings Officer shall not be shown or otherwise provided to the AIC.(e) The Hearings Officer may show to the AIC or read into the record any evidence submitted. However, the Hearings Officer will not provide copies of the evidence to the AIC. AICs may request and obtain copies of nonexempt records in accordance with the department's rule on Release of Public Records (OAR 291-037).(11) The Hearings Officer shall determine whether any rule violations occurred.(a) The Hearings Officer may postpone the rendering of a decision for a reasonable period of time, not to exceed seven working days, for the purpose of reviewing the evidence to determine if there is a violation(s). The decision will be based solely upon information obtained in the hearings process, including employee reports, the statements of the AIC charged, and evidence derived from witnesses and documents.(b) Attempt or Conspiracy: An AIC who attempts or conspires to commit a rule violation shall be found in violation of the rule and shall be subject to appropriate sanctions on the same basis as if the AIC had committed the rule violation.(12) At the formal hearing the Hearings Officer shall decide: (a) No Violation: The Hearings Officer may find that the AIC did not commit the violation(s) charged, in which case the AIC may be restored to similar status and privileges as before being charged, as allowed by other rules, policies, etc.(b) Violation: The Hearings Officer may find that the AIC committed the violation(s) charged, in which case, the Hearings Officer will so inform the AIC.(c) Dismissal: The Hearings Officer may dismiss the alleged rule violation(s) if: (A) There is insufficient evidence to support the alleged violation(s); or(B) Corrective action using less formalized procedures would be more appropriate. The Hearings Officer may refer back to the author for less formalized discipline; or(C) The AIC is released from custody.(d) Violation Not Responsible: An AIC is deemed not to be responsible for their actions.(e) Violation of Leave: When conduct constitutes a violation of the AIC's condition(s) of Short-Term Transitional Leave or Non-Prison Leave, the Hearings Officer may also recommend retraction of earned time, statutory good time, or extra good time credits in accordance with the department's rule on Prison Term Modification (OAR 291-097).(13) If no violation is found or all of the alleged rule violation(s) are dismissed on the misconduct report(s), the report(s) shall not be placed in the AIC's institution file but may be retained for statistical or litigation purposes in the Hearings records.(14) Upon the finding of violation(s) by the Hearings Officer, the Hearings Officer: (a) Shall determine the location of the violation(s) on the major or minor grids (Exhibits 1 and 2).(b) Shall determine the AIC's prior misconduct history as recorded on the Disciplinary Misconduct System. Evidence of the AIC's prior misconduct history shall be placed in the record either orally or in writing.(c) Shall impose appropriate sanctions in accordance with the major or minor grids (Exhibits 1 and 2).(d) Determine if a deviation of disciplinary segregation sanction (upward or downward) is appropriate. The Hearings Officer shall document in writing the substantial reasons for the deviation of disciplinary segregation sanction in accordance with OAR 291-105-0072.(e) Determine if consecutive sanctions are appropriate for separate rule violations arising from a single misconduct report. The Hearings Officer must document in writing the substantial reasons for consecutive sanctions, in accordance with OAR 291-105-0066(4)(b).(15) The Hearings Officer may also consider imposing the additional sanctions that are available per OAR 291-105-0069.(16) The Hearings Officer may suspend imposition of any or all of the imposed disciplinary sanctions, informing the AIC of expected conduct to avoid imposition and the length of time for which the sanction will be suspended.(17) The Hearings Officer may impose any or all sanctions previously suspended after finding that the AIC has failed to comply with the conditions of the suspension.(18) At the conclusion of the hearing, the AIC shall be informed of the rule violations the Hearings Officer found the AIC committed and any sanctions imposed.(19) A verbatim record of the hearing shall be made. A written record will be made of the decision and the supporting reasons.Or. Admin. Code § 291-105-0028
Formerly Exhibit 2 to OAR 291-105-026; CD 25-1982, f. & ef. 11-19-82; CD 8-1985(Temp), f. & ef. 6-19-85; CD 30-1985, f. & ef. 8-16-85; CD 6-1986(Temp), f. 3-14-86, ef. 4-15-86; CD 29-1986, f. ef. 8-20-86; CD 38-1987, f. & ef. 10-2-87; CD 5-1989, f. & cert. ef. 4-21-89; CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 6-1993, f. 3-10-93, cert. ef. 4-1-93; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 3-1999, f. 2-25-99, cert. ef. 3-1-99; DOC 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; DOC 19-2001(Temp), f. & cert. ef. 12-3-01 thru 6-1-02; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 14-2008, f. & cert. ef. 6-2-08; DOC 24-2011, f. 12-2-11, cert. ef. 12-7-11; DOC 25-2020, amend filed 12/14/2020, effective 12/15/2020; DOC 10-2023, amend filed 05/23/2023, effective 5/23/2023; DOC 8-2024, amend filed 05/16/2024, effective 5/24/2024; DOC 10-2024, temporary amend filed 05/22/2024, effective 6/1/2024 through 11/27/2024Statutory/Other Authority: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075
Statutes/Other Implemented: ORS 179.040, 421.068, 421.180, 423.020, 423.030 & 423.075