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OREGON DEPARTMENT OF EDUCATION
DIVISION 1
PROCEDURAL RULES
581-001-0000
Notice of Proposed Rule
(1) Before permanently adopting,
amending or repealing any rule, the State Board of Education shall give notice of
the proposed adoption, amendment or repeal:
(a) In the Secretary of State's
Bulletin referred to in ORS 183.360 at least 21 days prior to the effective date
of the rule to be adopted;
(b) By mailing or e-mailing,
at least 28 days before the effective date of the rule, a copy of the notice to
persons on the State Board of Education's mailing list established pursuant to ORS
183.335(8);
(c) By mailing or e-mailing
a copy of the notice to the legislators specified in ORS 183.335(15) at least 49
days before the effective day of the rule;
(d) By mailing or e-mailing
a copy of the notice to the following persons, organizations or publications:
(A) Associated Press;
(B) Oregon Education Investment
Board;
(C) Chancellor's Office, Oregon
University System;
(D) Community Colleges and Workforce
Development Department;
(E) Teacher Standards and Practices
Commission;
(F) Early Learning Council;
(G) School districts, education
service districts and public charter schools;
(H) Confederation of Oregon
School Administrators;
(I)Oregon Community College
Association;
(J) Oregon Education Association;
(K) Oregon Federation of Teachers;
(L) Oregon School Boards Association;
(M) Oregon School Employees
Association;
(N) Oregon Association of Education
Service Districts;
(O) Chalkboard Project;
(P) Stand for Children;
(Q) Disability Rights Oregon;
(R) Other established educational,
student and parent organizations that have submitted mailing or e-mailing addresses;
and
(S) Capitol Press Room
(3) Persons who wish to be placed
on the State Board of Education's mailing or e-mailing list may request in writing
or by e-mailing that the Department of Education send to the person copies of its
notice of proposed rulemaking.
(4) The Department may update
the mailing and e-mailing lists described in this rule annually by requesting persons
to confirm that they wish to remain on the lists. If a person does not respond to
a request for confirmation within 28 days of the date the Department sends the request,
the Department will remove the person from the mailing and e-mailing lists. Any
person removed from the mailing or e-mailing lists will be returned to the mailing
or e-mailing list upon request, provided that the person provides a mailing address
or e-mailing address to which notice may be sent.
(5) Prior to any adoption, amendment
or repeal of a rule (including policies and procedures) related to the implementation
of the Individuals with Disabilities Education Act (IDEA) the Department shall:
(a) Provide notice to the mailing
and e-mailing groups maintained under this rule at least 30 days prior to the effective
date of the rule;
(b) Provide any notice necessary
to ensure that persons and institutions affected by the rule have a reasonable opportunity
to provide public comments;
(c) Conduct
a public hearing on the rule and provide notice of the public hearing at least 30
days prior to the date of the hearing; and
(d) Review and consider all public comments
received during the public hearing or during the public comment period.
Stat. Auth.: ORS 183.335 &
183.341(4)
Stats. Implemented: ORS 183.335
Hist.: 1EB 206, f. 12-5-75,
ef. 12-26-75; Renumbered from 581-061-0040, 4-1-76; 1EB 8-1980, f. & ef. 4-17-80;
1EB 15-1984, f. & ef. 9-27-84; EB 11-1994, f. & cert. ef. 10-3-94; ODE 9-2012,
f. 3-30-12, cert. ef. 4-2-12
581-001-0002
Authorization for Employee to Appear on Behalf of Agency in Certain Hearings
In contested case hearings authorized by ORS 326.603 and OAR 581-053-0006, an officer or employee of the Department may represent the Department if the Attorney General so consents to such representation.
Stat. Auth.: ORS 183.450(7) & ORS 183.450(8)
Stats. Implemented: ORS 183.450(7)
Hist.: EB 1-1995, f. & cert. ef. 1-24-95
581-001-0005
Model Rules of Procedure
Pursuant to the provisions of
ORS 183.341, the State Board of Education adopts the Attorney General's Model Rules
of Procedure under the Administrative Procedure Act in effect on January 1, 2012,
except for special education due process hearings authorized under ORS 343.165,
special education complaint investigations under ORS 343.041(3), and rulemaking
relating to the implementation of Individuals with Disabilities Act, which shall
be heard in accordance with rules of the State Board of Education implementing the
federal law, Individuals with Disabilities Education Act, in effect as of January
1. 2012
[ED. NOTE: The full text of
the Attorney General’s Model Rules of Procedure is available from the office
of the Attorney General or the Department of Education.]
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.341
Hist.: 1EB 2, f. 12-22-58; 1EB
125, f. 11-4-71, ef. 11-15-71; 1EB 160, f. 11-2-73, ef. 11-25-73; Renumbered from
581-061-0035, 4-1-76; 1EB 222, f. 3-22-76, ef. 4-1-76; 1EB 14-1978, f. & ef.
4-3-78; 1EB 7-1980, f. & ef. 4-17-80; 1EB 20-1981(Temp), f. 12-29-81, ef. 12-31-81;
1EB 11-1982, f. & ef. 3-24-82; 1EB 2-1984, f. 2-17-84, ef. 5-8-84; 1EB 22-1986,
f. & ef. 7-14-86; EB 2-1995, f. & cert. ef. 1-24-95; ODE 2-2006(Temp), f.
& cert. ef. 2-14-06 thru 8-1-06; Administrative correction 8-22-06; ODE 4-2007,
f. & cert. ef. 2-21-07; ODE 6-2011, f. & cert. ef. 4-22-11; ODE 10-2012,
f. 3-30-12, cert. ef. 4-2-12
581-001-0010 [Renumbered to 581-015-0054]
581-001-0016
Deputy Superintendent
of Public Instruction
Except as otherwise
designated or limited by the Governor pursuant to ORS 326.300:
(1) References
to the “Superintendent of Public Instruction” in rules, policies or
in motions adopted by the State Board of Education shall be considered references
to the Superintendent of Public Instruction and the Deputy Superintendent of Public
Instruction.
(2) The Deputy
Superintendent shall perform any act or duty which the State Board of Education
has designated by rule, policy or vote to the Superintendent of Public Instruction.
Stat. Auth.: ORS
326.051
Stats. Implemented:
ORS 326.300 & 326.310
Hist.: ODE
24-2012(Temp), f. 9-13-12, cert. ef. 9-17-12 thru 3-15-13; ODE 1-2013, f. &
cert. ef. 1-15-13
581-001-0053
Parking Rules (OSSD)
(1) There shall be no charge to employees of the Oregon State Schools for the Deaf for parking automobiles at the school or for using bicycle racks provided by the Department.
(2) The Department may issue parking permits to other employees who wish to park at the school. The parking rate for such permits will be one-half of the O rider permits issued for the Pringle site rounded to the nearest half dollar.
(3) The Department provides parking for official business only, unless other arrangements are expressly made for employees (during working hours), visitors, commercial service, and state-owned vehicles. Persons who fail to comply with this rule shall forfeit their parking privileges, and be subject to the enforcement provisions specified in OAR 581-023-0052(12). The Department may provide the following types of additional parking:
(a) Specially marked or designated free parking for the temporary use of individuals with handicaps visiting state offices. Vehicles occupying such spaces shall bear the appropriate identifying plate or decal sticker issued by the Motor Vehicles Division;
(b) Time-limited free spaces for use by persons transacting business in state offices. No state employee shall abuse this class of parking;
(c) Free spaces designated for commercial loading and service vehicle use only.
(4) Provisions for safety and enforcement set forth in OAR 581-001-0052(11) and (12) shall apply as well to parking facilities at the Oregon State School for the Deaf.
(5) Effective date of these amendments shall be September 1, 1988.
Stat. Auth.: ORS 98, 276 & 591
Stats. Implemented: ORS 276.591 & 276.595
Hist.: 1EB 19-1981(Temp), f. & ef. 12-23-81; 1EB 8-1982, f. & ef. 3-24-82; 1EB 13-1986, f. 4-25-86, ef. 4-28-86; EB 33-1988, f. 8-3-88, cert. ef. 9-1-88; ODE 12-2009, f. & cert. ef. 12-10-09
581-001-0100
Audit and Other Financial Appeals
(1)(a) This rule establishes the process to be used by the Department of Education for addressing the overpayment or underpayment of State School Funds from a closed year to a school district, education service district, public charter school or other program based on information received by the department in an audit or other report. A year is closed on the June 30 that is two years after the fiscal year began. For example, the fiscal year beginning July 1, 2008 is closed on June 30, 2010.
(b) The department may also use the process established by this rule for addressing the overpayment or underpayment of other state funds to a school district, education service district, public charter school or other program based on information received by the department in an audit or other report.
(c) Other reports received by the department that may be the basis to determine that an overpayment or underpayment has been made include but are not limited to information provided by a district, school or program or information from a department investigation.
(d) The department will only seek to recover payments or will pay an amount under this rule if the department received the audit or report that the overpayment or underpayment is based upon within five years of the date that the year was closed. For example, for the fiscal year beginning July 1, 2008, the department will only seek to recover or make payments based on audits or reports involving that fiscal year that were received by the department on or before June 30, 2015.
(e) The department will not seek to recover and will not pay amounts under this rule of $750 or less.
(2) The department shall determine whether there has been an overpayment or underpayment of funds upon receipt of an audit or other report and whether the department will seek an adjustment of funds based on the audit or report. The department shall consider the following when making its determination:
(a) Applicable statutes, rules and policies;
(b) Information from the audit or report and any recommendations made in the audit or report;
(c) Any other relevant information received by the department relating to the overpayment or underpayment of funds. This may include information from an investigation conducted by the department; and (d) Prior determinations of the department on overpayment or underpayments of funds that involved the same statutes, rules or policies or similar facts.
(3)(a) The department shall notify in writing the school district, education service district, public charter school or program of, at a minimum, the following:
(A) The department’s determination including the amount of the overpayment or underpayment;
(B) The basis for the determination; and
(C) The time period in which the overpayment or underpayment occurred.
(b) The department shall include a copy of this rule with the notification.
(4) The school district, education service district, public charter school or program may appeal the determination made under section (3) of this rule to the department. The appeal must be received by the department within 60 calendar days of the date of the notice and must:
(a) Be in writing;
(b) State the reasons for the appeal; and
(c) Be signed by the superintendent or other official with authority to make the appeal.
(5) Within 60 calendar days of receiving the appeal, the department shall notify in writing the school district, education service district, public charter school or program of the department’s decision regarding the appeal.
(6) If the school district, education service district, public charter school or program does not appeal the determination; or if the department renders a decision on an appeal that there has been an overpayment or underpayment of funds, the department shall notify in writing the school district, education service district, public charter school or program of:
(a) The amount of the overpayment or underpayment;
(b) The time period for correcting the overpayment or underpayment; and
(c) The method for paying or collecting the funds.
(7) The department shall establish the time period for correcting any overpayment using the “Repayment Calculator” established by the School Finance Unit of the department. The department shall make the Repayment Calculator available upon request.
(8) The methods for paying or collecting the funds may include, but are not limited to:
(a) Invoices for payment.
(b) Transferring funds.
(c) In the case of State School Fund payments, adjusting subsequent payments from the State School Fund to the school district, education service district or program.
(d) In the case of other state funds, adjusting subsequent payments from those funds to the school district, education service district, public charter school or program.
(9) The school district, education service district, public charter school or program may appeal the determination of the repayment period or method of payment made under section (5) of this rule to the department. The appeal must be received by the department within 60 calendar days of the date of the notice and must:
(a) Be in writing;
(b) Establish through auditable, verifiable data that the repayment period or method of payment established in section (6) of this rule creates extreme financial hardship;
(c) Contain a statement that the information is certified as being accurate and complete; and
(d) Be signed by the superintendent or other official with authority to make the appeal.
(10) The school district, education service district, public charter school or program may propose in the appeal an alternative time period for repayment of the funds.
(11) Within 60 calendar days of receiving the appeal, the department shall notify in writing the school district, education service district, public charter school or program of the department’s decision regarding the appeal. The department shall consider the following when making its determination of the time period for repayment of funds:
(a) Applicable statutes, rules and policies;
(b) Information from the audit or report and any recommendations made in the audit or report regarding the repayment period or method of payment;
(c) Any other relevant information received by the department relating to the overpayment or underpayment of funds;
(d) The financial situation of the school district, education service district, public charter school or program; and
(e) Prior determinations of the department on overpayment or underpayments of funds that involved the same statutes, rules or policies or similar facts and were made following the process prescribed by this rule.
(12) After the time period for the appeal has expired under section (11) of this rule or after the department has notified the school district, education service district, public charter school or program of the department’s decision regarding the appeal, the department shall proceed to pay or collect the funds.
(13) A school district, education service district, public charter school or program may request in writing at the same time as when the district, school or program files an appeal under section (4) or (9) of this rule:
(a) A public meeting with the department. If the department grants the meeting, the department will follow statutes and rules that apply to public meetings.
(b) A mediation with the department relating to the issues that are the subject of the appeal. If the department agrees to the mediation, the mediation will be conducted by a mediator approved by the department and the department will not pay more than half the cost of the mediation.
(14)(a) The Superintendent of Public Instruction delegates to the department the authority to make corrections to distribution from the State School Fund for any year that is closed based on ORS 327.120 and the process established by this rule.
(b) The superintendent shall specify which department staff has the authority to make the determinations required by this rule. The determinations required in this rule may only be made by the superintendent or deputy superintendent.
(15) This rule first applies to the overpayment or underpayment of state funds based on information received by the department in an audit or other report on or after January 1, 2009.
Stat. Auth.: ORS 326.051, 327.125
Stats. Implemented: ORS 326.111, 327.006 -327.133
Hist.: 1EB 9-1982, f. & ef. 3-24-82; ODE 14-2007(Temp), f. & cert. ef. 7-6-07 thru 1-2-08; Administrative Correction 1-24-08; ODE 29-2008, f. 12-16-08, cert. ef. 12-19-08
581-001-0105
Establishing Fees for Public Records
(1) The Oregon Department of Education may charge a fee of twenty-five (25) cents per page for supplying copies of public records on request.
(2) The Department may charge an additional fee reasonably calculated to provide reimbursement for costs incurred in locating, compiling, editing or otherwise processing such records to make them available for inspection, and for costs incurred in locating, compiling, editing or otherwise processing such records to make them available for inspection, and for costs of conveying such records to the requester. Employee time required for such purposes shall be billed at a rate not to exceed cost of employee time to the Department.
(3) No additional fee will be charged for providing records in an alternative format to individuals with vision or hearing impairments when required by the Americans with Disabilities Act.
(4) A Deputy Superintendent may reduce or waive fees when:
(a) The time spent making the records available was negligible; or
(b) Supplying the requested records is within the normal scope of Department activity; or
(c) Payment would make extreme financial hardship upon requester.
Stat. Auth.: ORS 326.325
Stats. Implemented: ORS 192.440
Hist.: 1EB 16-1985, f. & ef. 7-3-85; EB 13-1994, f. & cert. ef. 10-3-94
581-001-0110
Confidentiality and Inadmissibility of Mediation Communications
(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.
(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.
(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.
(5) Mediations Excluded. Sections (6)-(10) of this rule do not apply to:
(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or
(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;
(c) Mediation in which the only parties are public bodies;
(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential;
(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.
(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)-(d), (j)-(l) or (o)-(p) of section (9) of this rule.
(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)-(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.
(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate." [Form not included. See ED. NOTE.]
(9) Exceptions to confidentiality and inadmissibility.
(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.
(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.
(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.
(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.
(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.
(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.
(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.
(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.
(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:
(A) a request for mediation, or
(B) a communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation, or
(C) a final offer submitted by the parties to the mediator pursuant to ORS 243.712, or
(D) a strike notice submitted to the Employment Relations Board.
(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.
(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:
(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege, or
(B) Attorney work product prepared in anticipation of litigation or for trial, or
(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency, or
(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation, or
(E) Settlement concepts or proposals, shared with the mediator or other parties.
(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the State Superintendent, Associate Superintendent or designee determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.
(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under ORS 17.095 or state or federal law requires the terms to be confidential.
(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
[ED. NOTE: Forms referenced are available from the agency.]
Stat. Auth. ORS 36.224
Stats. Implemented: ORS 36.224, ORS 36.228, ORS 36.230, ORS 36.232
Hist.: ODE 7-2001, f. & cert. ef. 1-29-01
581-001-0115
Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications
(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.
(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(3) Nothing in this rule affects any confidentiality created by other law.
(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.
(5) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless
(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)-(j) of section (7) of this rule.
(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:
(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation, and;
(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:
(A) Is neither a party to the dispute nor the mediator, and
(B) Is designated by the agency to authorize confidentiality for the mediation, and
(C) Is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor's designee.
(7) Exceptions to confidentiality and inadmissibility.
(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.
(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.
(e) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.
(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.
(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.
(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.
(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.
(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.
(9) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.230(4)
Hist.: ODE 7-2001, f. & cert. ef. 1-29-01
581-001-0125
Administration of Intergovernmental Agreements
(1) For purposes of the rule:
(a) "Agreement to Agree" (ATA) is a written agreement between the Department and a public entity that contains contractual provisions, which can be used in certain future Intergovernmental Agreements between the parties through either incorporation by reference or attachment. Examples of an Agreement to Agree include, but are not limited to:
(A) A non-binding Price Agreement between the Department and a public entity under which the Department may issue purchase orders that create a binding agreement; and
(B) A document of understanding between the Department and a public entity, which identifies potential tasks or services the Department may request the public entity to perform, but are not specifically identified until the Department issues a purchase order or work order that creates a binding agreement.
(b) "Department" means the Oregon Department of Education.
(c) "Direct services" are services provided directly to children.
(d) "Local services" are those delivered within the boundaries of a school district, education service district, or community college district. Current examples include early intervention/early childhood, education of children in hospital programs, and educating children in long-term care or treatment programs.
(e) "Non-direct services" are all other services provided by school districts, education service districts, and community college districts that are not direct services.
(f) "Non-geographic services" are those delivered across more than one region but not across the entire state. Current examples include TESA and Early Intervention/Early Childhood Special Education.
(g) "Regional services" are those delivered within the four zones Education Service Districts they have established as the communications network. Current examples include educating children with disabilities in regional programs.
(h) "Request for Proposals" (RFP) is a solicitation document issued by the Department calling for proposals on specific activities.
(i) "Request for Qualifications" (RFQ) is a solicitation document issued by the Department to develop a list of pre-qualified service providers. Entities that successfully demonstrate they meet the qualifications will enter into Agreements to Agree.
(j) "Statewide services" are those delivered around the entire state. Current examples include administering Student Leadership Centers and the Oregon Public Education Network (OPEN).
(2) By March 31 of each odd-numbered year, the Department will issue Requests for Qualifications for educational services mandated by federal statue or by state legislative direction. These RFQs will be issued to education service districts, school districts, and community college districts in specific areas of the state depending on whether the services to be provided are considered Local, Regional, Non-geographic, or Statewide.
(3) The Department will enter into Agreements to Agree with all entities that have submitted responses to Requests for Qualification that meet the criteria established for specific services.
(4) Not later than 30 days of the end of the legislative session, the Department will issue Requests for Proposals for services likely to be funded by the Oregon Legislative Assembly or the federal government in the upcoming biennium. These RFPs will be issued to entities that have entered into an Agreement to Agree with the Department.
(5) The specific criteria for each RFP will be developed by Department staff having expertise in the content area. Selection criteria will be included in the RFP.
(6) Responses to Requests for Proposals will be evaluated by a team of Department staff having expertise in the content area and expertise in the technical aspects of procurement. The team will score each proposal and retain all documentation of the process for future review.
(7) Following evaluation of proposals, the Department will award an intergovernmental agreement to the successful proposer.
(8) If the Department and the selected ESD/SD are unable to reach an agreement, the Department reserves the right to open the process for broader competition including non-governmental entities. All proposing entities will be required to comply with state and federal requirements.
(9) Any organization submitting a proposal has the right to protest the Department's decision in the manner and on the timeline indicated in each RFP. To resolve protests, the Department will follow the procedures outlined in OAR 137-030-0104(4) and (6).
(10) If unanticipated circumstances arise that are detrimental to the fulfillment of a contract's provisions, the Department reserves the right to choose a provider and negotiate an intergovernmental agreement outside of the process outlined above. Such situations may include, but are not limited to, unexpected termination of an agreement by the current provider or termination of an agreement by the Department where children's health or safety is at risk. Determination of whether such a situation exists will be determined by a Department Deputy Superintendent.
Stat. Auth.: ORS 326.051
Stats. Implemented: ORS 326.051
Hist.: ODE 33-2004, f. & cert. ef. 10-15-04
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