Or. Admin. Code § 291-105-0046
Current through Register Vol. 63, No. 11, November 1, 2024
Section 291-105-0046 - Conduct of the Informal Hearings(1) An informal hearing shall be conducted by the adjudicator on all misconduct report(s) that do not charge a major violation(s), unless the AIC requests a formal hearing in writing on the Notice of Hearing and Rights form or verbally prior to the start of the informal hearing.(2) Findings by the adjudicator must be on the merits. Technical and clerical errors in the writing or processing of the misconduct report shall not be grounds for dismissal.(3) The adjudicator shall consider such evidence as would be considered by a reasonable person in the conduct of their serious affairs.(4) 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.(5) The AIC shall be given the opportunity to provide testimony, to submit evidence, or to waive the right to participate in the hearing as set forth in OAR 291-105-0056. AICs shall not be permitted to call witnesses in an informal hearing.(6) Assistance by an employee, AIC, or other person approved by the adjudicator will be utilized in cases where it is found that assistance is necessary based upon language barriers or capacity of the AIC.(7) The adjudicator may pose questions during the hearing.(8) Documents and Physical Evidence:(a) An AIC participating in an informal disciplinary hearing may present documents and physical evidence during the hearing, subject to the exclusions and restrictions provided in these rules.(b) Any person who is knowledgeable of the rule violation(s) charged in the misconduct report(s) may submit documents and physical evidence in advance of or during the hearing.(c) The adjudicator may exclude documents and physical evidence upon finding that such evidence would not assist 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 adjudicator may classify documents and physical evidence as confidential, and not disclose such evidence to the AIC, upon finding that disclosure 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 or that disclosure would interfere with an ongoing official investigation or criminal prosecution. The reason(s) for classifying documents and physical evidence as confidential shall be made a part of the record.(9) At the informal hearing the adjudicator shall decide: (a) No Violation: The adjudicator may find that the AIC did not commit the violation charged, in which case the AIC may be restored to the same status and privileges as before being charged as allowed by other rules, policies, etc.(b) Violation: The adjudicator may find that the AIC did commit the violation charged, in which case, the adjudicator will so inform the AIC.(c) Dismissal: The adjudicator may dismiss the alleged rule violation(s) without entering a finding if: (A) There is insufficient evidence to support the alleged violation(s); or(B) Corrective action using less formalized procedures would be more appropriate; or(C) The AIC is released from custody.(10) At the conclusion of the hearing the AIC shall be informed of the finding and any sanctions imposed.(11) If the AIC is found in violation, the record of the decision shall be retained in the Hearings Unit records as per retention schedules.(12) Upon finding that a violation occurred as charged, the adjudicator shall impose sanctions within the appropriate range of the minor disciplinary grid (Exhibit 2).(13) The adjudicator may also consider imposing the additional sanctions that are available per OAR 291-105-0071.(14) The adjudicator may suspend imposition of any or all of the ordered disciplinary sanctions, informing the AIC of expected future conduct to avoid imposition and the length of time for which the sanction will be suspended.(15) The adjudicator may impose any or all sanctions previously suspended after finding that the rule violation in question was also a violation of the conditions of the suspension.(16) The adjudicator may give a verbal warning and reprimand in lieu of sanctions on the minor grid, informing the AIC of expected future conduct.(17) No verbatim recording of the hearing shall be made.Or. Admin. Code § 291-105-0046
CD 19-1979(Temp), f. & ef. 10-19-79; CD 13-1980, f. & ef. 4-15-80; CD 25-1982, f. & ef. 11-19-82; CD 30-1985, f. & ef. 8-16-85; 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 28-1999(Temp), f. & cert. ef. 12-22-99 thru 6-19-00; DOC 16-2000, f. & cert. ef. 6-19-00; 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 5/23/2023Statutory/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, 421.185, 421.190, 423.020, 423.030 & 423.075