Or. Admin. R. 839-050-0230

Current through Register Vol. 63, No. 6, June 1, 2024

Section 839-050-0230 - Authority of the Administrative Prosecutor

(1) The Administrative Prosecutor is authorized by ORS chapter 183 to appear on behalf of and represent the Agency. The Administrative Prosecutor may perform any function not prohibited by this rule.

(2) The Administrative Prosecutor may not present legal argument during the contested case proceeding except to the extent authorized by section 3 of this rule. "Legal argument" includes arguments on:

(a) The jurisdiction of the agency to hear the contested case;

(b) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency;

(c) The application of court precedent to the facts of the particular contested case proceeding.

(3) The Administrative Law Judge may allow the Administrative Prosecutor 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.

(4) When an Administrative Prosecutor is representing the Agency in a hearing, the Administrative Law Judge will advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. When such objections may involve legal argument as defined in section 2 of this rule, the Administrative Law Judge will provide reasonable opportunity for the Administrative Prosecutor to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.

Or. Admin. R. 839-050-0230

BL 10-1988, f. & cert. ef. 6-16-88; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0059; 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 5-2014, f. & cert. ef. 4-15-14; BLI 10-2014, f. & cert. ef. 9-4-14; 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 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850