Or. Admin. Code § 839-050-0140

Current through Register Vol. 63, No. 12, December 1, 2024

Section 839-050-0140 - Amendments

(1) The Agency may amend its charging document:

(a) At any time before the hearing commences; or

(b) During the hearing, but before the evidentiary record closes, as allowed in (4) and (5) of this rule.

(2) If the Agency files an amended charging document with the Contested Case Coordinator before the hearing commences, any party may file an answer to it as it would in responding to an original charging document under OAR 839-050-0130(2)-(3), except:

(a) The answer to an amended charging document must be filed with the Contested Case Coordinator no later than seven days after the amended charging document is served on the party, subject to the Administrative Law Judge's discretion to alter the deadline; and

(b) The answer to an amended charging document may differ from the answer to the previous charging document only as needed to respond to new or amended information, unless good cause is shown. If a party does not file an answer to an amended charging document with the Contested Case Coordinator, the party's answer to the previous charging document will be deemed its answer to the amended charging document.

(3) For good cause shown to the Administrative Law Judge, a party may amend its answer at any time before the hearing commences. Any new facts or defenses alleged in the amended answer will be deemed denied by the Agency.

(4) Once the hearing commences, issues not raised in the charging document or answer may be raised and evidence presented on such issues, provided there is express or implied consent of the participants, except that affirmative defenses not raised in the answer may only be raised in response to an agency motion to amend that is made and allowed under this section or section (5) of this rule. Consent will be implied when there is no objection to the introduction of such issues and evidence or when the participants address the issues. Any participant raising new issues must move the Administrative Law Judge, before the close of the evidentiary portion of the hearing, to amend its charging document or answer to conform to the evidence and to reflect issues presented. The Administrative Law Judge may address and rule upon such issues in the Proposed Order.

(5) If evidence offered at hearing is objected to on the grounds that it is not within the issues raised by the charging document or answer, the administrative law judge may allow the pleadings to be amended to conform to the evidence presented. The administrative law judge will allow the amendment when the participant seeking the amendment shows good cause for not having included the new matter in its charging document or answer prior to hearing and the objecting participant fails to satisfy the administrative law judge that it would be substantially prejudiced by the admission of such evidence. The administrative law judge may grant a continuance to enable the objecting participant to meet such evidence. A party may amend its answer to raise an affirmative defense and introduce evidence in support of that defense only when the amendment responds to new matter raised in a charging document amended under this section or section (4) of this rule.

Or. Admin. Code § 839-050-0140

BL 8-1986, f. & ef. 9-2-86; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0075; BL 12-1996, f. & cert. ef. 12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 42-2006, f. & cert. ef. 12-6-06; BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10; BLI 5-2014, f. & cert. ef. 4-15-14; BLI 8-2019, amend filed 07/01/2019, effective7/1/2019

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)

Statutes/Other Implemented: ORS 279.361, 279.370, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850