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SECRETARY OF STATE, ELECTIONS DIVISION
DIVISION 1
PROCEDURAL RULES
165-001-0000
Notice of Proposed Rule
Before adopting, amending or repealing any permanent rule, the Secretary of State, Elections Division will give notice of the intended action:
(1) 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;
(2) By mailing, or transmitting by electronic mail a copy of the Statement of Need and Fiscal Impact and the Notice of Proposed Rulemaking, or the Notice of Proposed Rulemaking Hearing, at least 28 days prior to the effective date of the rule, to each person who has requested to be included on the Elections Division's subscription service established pursuant to ORS 183.335(8);
(3) By mailing, or transmitting by electronic mail a copy of the text of the proposed rule to any person upon request;
(4) By mailing, or transmitting by electronic mail a copy of the Statement of Need and Fiscal Impact, the Notice of Proposed Rulemaking, or the Notice of Proposed Rulemaking Hearing, and the text of the proposed rule to the following persons or organizations at least 28 days prior to the effective date:
(a) County Clerks;
(b) The chair or designee of each statewide political party;
(c) Members of the Oregon Legislature;
(d) The Governor's legal counsel;
(e) Attorney General's office;
(f) League of Oregon Cities;
(g) Association of Oregon Counties;
(h) Oregon Special Districts Association;
(i) Oregon School Boards Association; and
(j) Capitol Press Room.
(5) By mailing, or transmitting by electronic mail a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule;
(6) Within 10 business days after the adoption, amendment or repeal of any temporary or permanent administrative rule, the Secretary of State, Elections Division will provide, by mail, or electronic mail a copy of the certificate and order and the text of the adopted rule to each person or organization listed in sections (2) through (5) of this rule and within no later than 10 days to the Legislative Counsel, as required by ORS 183.715.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.335 & 183.341
Hist.: SD 103, f. & ef. 1-22-76; Elect 16-1994, f. & cert. ef. 8-25-94; ELECT 9-1997, f. & cert. ef. 10-27-97; ELECT 14-2001, f. & cert. ef. 6-15-01; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 7-2005, f. & cert. ef. 12-14-05; ELECT 3-2006, f. & cert. ef. 4-18-06
165-001-0005
Model Rules of Procedure
The Uniform and Model Rules of Procedure, OAR 137-001-0007 through 137-002-0060 as adopted by the Attorney General of the State of Oregon under the Administrative Procedures Act, effective January 1, 2008, are adopted as the rules of procedure for rulemaking and declaratory rulings for the Elections Division, Secretary of State.
[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 Elections Division.]
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.341
Hist.: SD 76, f. 8-31-72; SD 81, f. 10-16-73, ef. 11-11-73; SD 109, f. & ef. 12-9-76; SD 6-1978, f. & ef. 8-4-78; SD 10-1980, f. & ef. 1-30-80; SD 16-1981, f. & ef. 12-2-81; SD 15-1983, f. & ef. 10-4-83; SD 7-1986, f. & ef. 3-6-86; ELECT 30-1988, f. & cert. ef. 8-10-88; ELECT 16-1990, f. & cert. ef. 5-11-90; ELECT 14-1991, f. & cert. ef. 12-4-91; ELECT 4-2001, f. & cert. ef. 3-15-01; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 2-2005, f. & cert. ef. 3-22-05; ELECT 1-2006, f. & cert. ef. 3-7-06; ELECT 13-2009, f. & cert. ef. 5-22-09
165-001-0009
Definitions
Unless the context requires otherwise, the following definitions apply to this Division:
(1) “Charging document” means any document issued by the Secretary of State, Elections Division stating that any person or government agency has violated the laws or rules within this Agency’s jurisdiction.
(2) “Agency” means Secretary of State, Elections Division and any employee thereof.
Stat. Auth.: ORS 246.150
Stats. Implemented: ORS 260.232 & 260.995
Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11
165-001-0010
Contested Cases
(1) Contested case rules apply whenever the Secretary of State may impose a civil penalty and a hearing is conducted pursuant to ORS 260.232 or 260.995.
(2) The Secretary of State may designate, in writing, employees of the agency or any other persons to conduct hearings under these rules.
(3) The person or persons against whom a penalty may be assessed is the party in the contested case hearing. Other persons may attend the hearing and may appear as witnesses if called by a party, but will not be considered to be parties in the contested case.
(4) "Person" means an individual, corporation, limited liability company, labor organization, association, firm, partnership, joint stock company, club, organization or other combination of individuals having collective capacity.
Stat. Auth.: ORS 183.335, ORS 183.360, ORS 183.413, ORS 246.150, ORS 260.232 & ORS 260.995
Stats. Implemented: ORS 260.232 & ORS 260.995
Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 27-1993, f. & cert. ef. 7-1-93; ELECT 5-2001, f. & cert. ef. 3-15-01
165-001-0015
Notice of Opportunity for Hearing
When the Secretary of State
proposes to impose a civil penalty or find a violation of an election law, or both,
under ORS 260.232 or 260.995, the Secretary of State shall cause a notice to be
served on the person(s) subject to the penalty. For a violation under ORS 260.232
the notice shall be served by first class mail; for a violation under ORS 260.995
the notice shall be served by certified mail. The notice shall include:
(1) A statement of the person's
right to a hearing before an Administrative Law Judge with the Office of Administrative
Hearings.
(2) A statement that if the
person desires a hearing, the agency must be notified within the number of days
provided by statute from the date of receiving the notice.
(3) A statement of the authority
and jurisdiction under which the hearing is to be held.
(4) A reference to the particular
sections of the statutes and rules involved.
(5) A short and plain statement
of the matters asserted or charged as a violation.
(6) A statement of the amount
of penalty that may be imposed.
(7) A statement that the person
may be represented by counsel at the hearing.
(8) If the person is an agency,
corporation or an unincorporated association, that such person must be represented
by an attorney licensed in Oregon.
(9) If the person is a political
committee subject to a civil penalty under ORS 260.995, that person may be represented
by any officer identified in the most recent statement of organization filed with
the filing officer. “Officer” means any person identified as a director
on the most recent statement of organization for a political committee.
(10) A statement that the record
of the proceeding to date, including the agency file or files on the subject of
the contested case, automatically become part of the contested case record upon
default for the purpose of proving a prima facie case.
(11) A statement that the person
against whom a penalty may be assessed need not appear in person at a hearing held
under ORS 260.232 or 260.995, but instead may submit written testimony and other
evidence, sworn to before a notary public, to the Secretary of State for entry in
the hearing record. Such documents must be received by the Secretary of State not
later than three business days prior to the hearing as provided by ORS 260.232(6)
and 260.995(5).
(12) A statement that unless
precluded by law, informal disposition may be made of any contested case by stipulation,
agreed settlement, consent order or default.
Stat. Auth.: ORS 183.090, 183.470
& 246.150
Stats. Implemented: ORS 183.341,
183.470, 260.232 & 260.995
Hist.: ELECT 15-1988(Temp),
f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 27-1993,
f. & cert. ef. 7-1-93; ELECT 9-1999, f. & cert. ef. 9-29-99; ELECT 7-2003,
f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 7-2011,
f. & cert. ef. 4-8-11; ELECT 10-2011, f. & cert. ef. 7-12-11; ELECT 1-2012,
f. & cert. ef. 1-3-12
165-001-0016
Requesting a Hearing
(1) If a party wishes to request
an in-person or telephone hearing to contest the allegations in the charging document,
they must submit to the Agency a signed Hearing Request Form and an “answer,”
to the allegations in the charging document not later than the deadline to request
a hearing stated in the charging document.
(a) The answer must include
an admission or denial of each factual matter alleged in the charging document and
a statement of each relevant defense to the allegations, including any relevant
mitigating circumstance that may apply and indicate specifically what facts or transactions
the mitigating circumstance applies to.
(b) A general denial is not
sufficient to constitute an answer.
(c) The person must choose whether
they want the hearing by telephone or in-person. If no choice is indicated on the
form, the hearing will be held by telephone.
(d) Any evidence of a mitigating
circumstance or other relevant evidence may be submitted with the answer as exhibits.
(2) An answer not including
the information required by this rule may be disregarded and a notice of default
may be issued in accordance with OAR 165-001-0025 as if no answer had been filed.
(3) Except for good cause shown
to the administrative law judge, factual matters alleged in the charging document
and not denied in the answer will be deemed admitted by the party.
(4) The failure of the party
to raise a mitigating circumstance in the answer is a waiver of such mitigating
circumstance.
(5) The party bears the burden
of proof to show that all or part of the penalty should be mitigated based on a
mitigating circumstance.
(6) Any new facts or defenses
alleged in the answer will be deemed denied by the Agency.
(7) Evidence will not be taken
at the contested case hearing on any factual or legal issue not raised in the charging
document or the answer as filed.
(8) The Secretary of State hereby
adopts by reference and designates the SEL 853 as the Hearing Request Form to be
used to request an in-person or telephone hearing to contest campaign finance violations.
(9) The Secretary of State hereby
adopts by reference and designates the SEL 852 as the Hearing Request Form to be
used to request an in-person or telephone hearing to contest non-campaign finance
violations.
Stat. Auth.: ORS 246.150
Stats. Implemented: ORS 260.232
& 260.995
Hist.: ELECT 7-2011, f. &
cert. ef. 4-8-11; ELECT 1-2012, f. & cert. ef. 1-3-12
165-001-0025
Orders When No Hearing Requested or Failure to Appear
(1) When a party has been given
an opportunity to request a hearing and fails to request a hearing in writing within
the specified time, or having requested a hearing fails to appear at the specified
time and place, the agency shall, subject to section (2) of this rule, enter an
order by default which supports the agency action.
(2) The time provided by statute
to request a hearing under ORS 260.995 is calculated from the delivery date indicated
on the certified letter's postal confirmation. If the certified letter is refused
or left unclaimed at the post office, the time shall be calculated from the date
the post office indicates it has given first notice of a certified letter. If the
certified card is not returned to the Secretary of State by the United States Postal
Service (USPS), the Secretary shall use the date recorded on the official USPS website
utilizing the Track and Confirm delivery service.
(3) The time provided by statute
to request a hearing under ORS 260.232 is 20 calendar days after the service date
on the charging document.
(2) An order adverse to a party
may be issued on default only if the agency record demonstrates a prima facie case
justifying the order. The Administrative Law Judge will declare a party to be in
default if the party which requested the hearing does not appear within 15 minutes
of the time set for the hearing, unless the party gives notice of a reason for the
inability to appear at the designated time and requests and receives a continuance.
A continuance shall be granted only if the reason for the inability to appear is
beyond the reasonable control of the party.
(3) The prima facie record upon
default may be made at a scheduled hearing on the matter, or, if the notice of intended
action states that the order will be issued or become effective upon the failure
of the party to timely request a hearing, when the order is issued.
(4) The record may consist of
oral (transcribed, recorded, or reported) or written evidence or a combination of
oral and written evidence. When the record is made at the time the notice or order
is issued, the agency file may be designated as the record. In all cases, the record must contain substantial evidence to support
the findings of fact.
(5) When the Administrative Law Judge has
set a specified time and place for a hearing and the party subsequently notifies
the agency or the Administrative Law Judge assigned to the case that the party will
not appear at such specified time and place, the agency may cancel the hearing and
follow the procedure described in subsections (2), (3) and (4) of this rule.
(6) When a party requests a
hearing after the time specified by the agency, but before entry of a final order
by default, or, if a final order by default is entered, on or before 30 calendar
days after entry of the order, the agency may accept the late request only if the
cause for failure to timely request the hearing was beyond the reasonable control
of the party. In determining whether to accept a late hearing request, the agency
may require the request to be supported by an affidavit and may conduct such further
inquiry, including holding a hearing, that it deems appropriate. The agency shall
enter an order granting or denying the request.
(7) When a party requests a
hearing after entry of a default order, the party must file the request within a
reasonable time. If the request is received more than 30 days after the agency mailed
the default order to the party or the party’s attorney (based on the service
date of the order), it is presumed that the request is not timely. The request shall
state why the party should be relieved of the default order. If the request is allowed
by the agency, it shall enter an order granting the request and schedule the hearing
in due course. If the request is denied, the agency shall enter an order setting
forth its reasons for the denial.
(8) The agency shall notify
a defaulting party of the entry of a default order by mailing a copy of the order
as required by ORS 183.470.
(9) Notwithstanding the provisions
of this rule relating to late requests for a hearing, no hearing may be held if
the timing of the request would cause the agency to miss the statutory deadlines
established for the conduct of hearings in ORS 260.232(4) or 260.995(6).
Stat. Auth.: ORS 183.090, 183.470,
246.150, 260.232 & 260.995
Stats. Implemented: ORS 183.470,
260.232 & 260.995
Hist.: ELECT 15-1988(Temp),
f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 27-1993,
f. & cert. ef. 7-1-93; ELECT 15-1994, f. & cert. ef. 7-26-94; ELECT 7-2003,
f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 1-2012,
f. & cert. ef. 1-3-12
165-001-0034
Notarized Testimony in lieu of Hearing
(1) If a party wishes to contest
the allegations in the charging document, but does not wish to request an in person
or telephone hearing, the party may submit notarized testimony in lieu of a hearing.
(2) The notarized testimony
must be filed with the Agency not later than the deadline to request a hearing stated
in the charging document.
(3) The notarized testimony
must:
(a) Include an admission or
denial of each factual matter alleged in the charging document and a statement of
each relevant defense to the allegations, including any relevant mitigating circumstance.
A general denial is not sufficient. Notarized testimony not including the information
required by this rule may be disregarded and a notice of default may be issued in
accordance with OAR 165-001-0025 as if no notarized testimony had been filed.
(b) Include a signed and completed
Hearing Request Form.
(c) Be notarized by a commissioned
Notary Public.
(4) After the party submits
notarized testimony, the Agency may submit notarized testimony and any exhibits
to the Office of Administrative Hearings and to the individual who submitted notarized
testimony. If the Agency submits notarized testimony, it will be transmitted via
e-mail to the Office of Administrative Hearings and the party. The Agency may mail
its notarized testimony to the party’s last known address if the party’s
e-mail address is unknown or the e-mail is returned as undeliverable.
(5) The party may, but is not
required to, respond to the Agency testimony by submitting rebuttal notarized testimony.
(a) Rebuttal notarized testimony
is limited to issues raised in the original notarized testimony and the Agency’s
testimony.
(b) Rebuttal notarized testimony
must be notarized by a commissioned Notary Public.
(c) The rebuttal notarized testimony
must be received by the Agency not later than five business days from the date of
service of the Agency’s testimony (the date the testimony was e-mailed or
mailed).
(d) The notarized testimony
hearing record is deemed closed the day after the deadline for the person to submit
rebuttal testimony.
(6) If a person submits notarized
testimony in lieu of requesting an in person or telephone hearing, the person is
waiving their right to an in person or telephone hearing.
Stat. Auth.: ORS 246.150
Stats. Implemented: ORS 260.232
& 260.995
Hist.: ELECT 7-2011, f. &
cert. ef. 4-8-11; ELECT 1-2012, f. & cert. ef. 1-3-12
165-001-0035
Conducting Contested Case Hearings
(1) The contested case hearing shall be conducted by and under the control of the administrative law judge of the Office of Administrative Hearings that is assigned to the case.
(2) If the administrative law judge or any decision maker has an actual or potential conflict of interest as defined in ORS 244.020(1) or (7), that officer shall comply with the requirements of ORS Chapter 244 (e.g. ORS 244.120 and 244.130).
(3) The hearing shall be conducted, subject to the discretion of the administrative law judge, so as to include the following:
(a) The statement and evidence of the agency in support of its action;
(b) The statement and evidence of the person against whom the penalty may be assessed;
(c) Any rebuttal evidence;
(d) Any closing arguments.
(4) The administrative law judge, the agency, and the person against whom the penalty may be assessed shall have the right to question witnesses.
(5) The hearing may be continued with recesses as determined by the administrative law judge.
(6) The administrative law judge may set reasonable time limits for oral presentation and may exclude or limit cumulative, repetitious, or immaterial matter.
(7) Exhibits shall be marked and maintained by the administrative law judge as part of the record of the proceedings.
(8) If the administrative law judge receives any written or oral ex parte communication on a fact in issue during the contested case proceeding, that person shall notify all parties and otherwise comply with the requirements of OAR 165-001-0045.
Stat. Auth.: ORS 246.150, 260.232 & 260.995
Stats. Implemented: ORS 260.232 & 260.995
Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09
165-001-0036
Employee Representation at Contested Case Hearings
(1) The Agency’s goal in contested case hearings is to have a full and accurate record upon which the Agency can make the best decision. To help ensure a full record, the Agency allows employees to represent the Agency in certain contested case hearings. The employee representative's role is to represent the Agency in a way that supports objective fact finding and encourages an open, fair, and efficient process.
(2) An Agency employee may represent the Agency in contested case hearings involving violations of ORS 260.035, 260.039, 260.041, 260.042, 260.044, 260.054, 260.055, 260.057, 260.076, 260.078, 260.083, 260.102, 260.112, 260.118, and 260.735.
(3) The representative's responsibilities include, but are not limited to:
(a) Presenting evidence;
(b) Asking questions of all witnesses;
(c) Presenting information about the facts, and advocating for staff's position surrounding the facts;
(d) Presenting information on how the facts apply to the statutes or rules directly related to the issues in the contested case;
(e) Presenting information comparing Agency actions in similar situations;
(f) Presenting information about the literal meaning of the statutes or rules that apply to the issues in the contested case; and
(g) Presenting information about the admissibility of evidence or the correctness of procedures being followed.
(4) The employee representative may not make legal arguments. "Legal arguments" include 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 the Agency; and
(c) The application of court precedent to the facts of the particular contested case proceeding.
(5) When an employee represents the Agency in a contested case hearing, the presiding officer will advise the employee representative of the way in which objections may be made. This advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objections. If the objections involve legal argument, the presiding officer will provide reasonable opportunity for the employee representative to consult legal counsel and permit legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.
Stat. Auth.: ORS 246.150
Stats. Implemented: ORS 260.232 & 260.995
Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11
165-001-0040
Evidentiary Rules
(1) Evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible.
(2) Irrelevant, immaterial or unduly repetitious evidence shall be excluded.
(3) All offered evidence, not objected to, will be received by the administrative law judge subject to the administrative law judge's power to exclude irrelevant, immaterial or unduly repetitious matter.
(4) Evidence objected to may be received by the administrative law judge. If the administrative law judge does not rule on its admissibility at the hearing, the administrative law judge shall do so either on the record before a proposed order is issued or in the proposed order.
(5) The administrative law judge shall accept an offer of proof made for excluded evidence. The offer of proof shall contain sufficient detail to allow the agency or court to determine whether the evidence was properly excluded. The administrative law judge shall have discretion to decide whether the offer of proof is to be oral or written and at what stage in the proceeding it will be made. The administrative law judge may place reasonable limits on the offer of proof, including the time to be devoted to an oral offer or the number of pages in a written offer.
(6) Pursuant to OAR 165-001-0016, evidence may not be taken at the contested case hearing on any factual or legal issue not raised in the charging document or the answer.
Stat. Auth.: ORS 246.150, 260.232 & 260.995
Stats. Implemented: ORS 183.450, 183.470, 260.232 & 260.995
Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 9-1999, f. & cert. ef. 9-29-99; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 7-2011, f. & cert. ef. 4-8-11
165-001-0045
Ex Parte Communications
(1) An ex parte communication is:
(a) An oral or written communication;
(b) By a party, a party’s representative or legal advisor, any other person who has a direct or indirect interest in the outcome of the proceeding, any other person with personal knowledge of the facts relevant to the proceeding, or any offer, employee or agent of the agency;
(c) That relates to a legal or factual issue in the contested case proceeding;
(d) Made directly or indirectly to the administrative law judge;
(e) While the contested case proceeding is pending;
(f) That is made without notice and opportunity for the agency and all parties to participate in the communication.
(2) If an agency decision maker or administrative law judge receives an ex parte communication during the pendency of the proceeding, the administrative law judge shall place in the record:
(a) The name of each individual from whom the administrative law judge received an ex parte communication;
(b) A copy of any ex parte written communication received by the administrative law judge;
(c) A memorandum reflecting the substance of any ex parte oral communication made to the administrative law judge;
(d) A copy of any written response made by the administrative law judge to any ex parte oral or written communication; and
(e) A memorandum reflecting the substance of any oral response made by the administrative law judge to any ex parte oral or written communication.
(3) The provisions of this rule do not apply to:
(a) Communications made to an administrative law judge by other administrative law judges;
(b) Communications made to an administrative law judge by any person employed by the Office of Administrative Hearings to assist the administrative law judge.
Stat. Auth.: ORS 246.150, 260.232 & 260.995
Stats. Implemented: ORS 260.232 & 260.995
Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09
165-001-0050
Proposed Orders in Contested Cases, Filing of Exceptions, Argument, and Adoption of Order
(1) The administrative law judge shall
prepare a proposed order and serve the proposed order on the agency and each party.
The proposed order shall be served not later than 30 calendar days after the hearing
is adjourned. The proposed order shall also include information about when and where
written exceptions to the proposed order must be filed to be considered by the agency.
(2) The exceptions must be
received by the Elections Division not later than 30 calendar days after the service
date of the proposed order. The date of service is the day the proposed order is
mailed, not the date the party receives the proposed order.
(3) If the administrative
law judge’s proposed order recommended a decision favorable to a party and
the agency intends to reject that recommendation and issue an order adverse to that
party, the agency shall issue an amended proposed order. When the agency serves
an amended proposed order on the party, the agency shall, at the same time notify
the party when and where written exceptions for the amended order must be filed
to be considered by the agency.
(4) The agency decision maker,
after considering any of the written exceptions may adopt the proposed order, amended
proposed order or prepare a new order.
Stat. Auth.: ORS 183.090, 183.470, 246.150,
260.232 & 260.995
Stats. Implemented: ORS 183.470,
260.232 & 260.995
Hist.: ELECT 15-1988(Temp),
f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 7-2003,
f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 10-2011,
f. & cert. ef. 7-12-11; ELECT 4-2014, f. & cert. ef. 1-2-14
165-001-0055
Final Orders
(1) Final orders on contested cases shall be in writing and shall include the following:
(a) The case caption.
(b) The name of the administrative law judge(s), the appearance of the parties and identity of witnesses.
(c) A statement of the issues.
(d) References to specific statutes or rules at issue.
(e) Rulings on admissibility of offered evidence when the rulings are not set forth in the record.
(f) Findings as to each issue of fact and as to each ultimate fact required to support the order, along with a statement of the underlying facts supporting each finding.
(g) Conclusion(s) of law based on the findings of fact and applicable law.
(h) An explanation of the reasoning that leads from the findings of fact to the legal conclusion(s)
(i) An order stating the action taken by the agency as a result of the facts found and the legal conclusions arising therefrom.
(j) A citation of the statutes under which the order may be appealed.
(k) The date of service of the order on the party shall be specified in writing and be part of or attached to the order on file with the agency.
(l) The final order shall be served on each party and, if the party is represented, on the party’s attorney.
(2) If the agency modifies the proposed order issued by the administrative law judge in any substantial manner, the agency must identify the modifications and explain to the parties why the agency made the modifications. For purposes of this provision, an agency modifies a proposed order in a “substantial manner” when the effect of the modification is to change the outcome or the basis for the order or to change a finding of fact.
Stat. Auth.: ORS 183.090, 183.470, 246.150, 260.232 & 260.995
Stats. Implemented: ORS 183.470, 260.232 & 260.995
Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09
165-001-0080
Contested Case Hearings
(1) The administrative law judge will hold a hearing by telephone unless the party requesting the hearing specifically requests a personal appearance hearing. If the party requests a personal appearance hearing, the hearing shall be held in Salem at the Office of Administrative Hearings. Nothing in this rule precludes the agency from allowing some parties or witnesses to attend by telephone while others attend in person.
(2) The administrative law judge shall make an audio or stenographic record of any telephone hearing.
(3) Not less than 5 business days prior to the commencement of a hearing, each party, including the agency, must deliver copies of the exhibits it intends to offer into evidence at the hearing. The exhibits must be delivered to the administrative law judge, all parties and the agency. For purposes of this rule, delivery may be accomplished by any of the following means, or by other means of a similar nature: hand delivery, deposit into first class or certified mail, facsimile, email or professional delivery service.
(4) Nothing in this rule precludes any party or the agency from seeking to introduce documentary evidence in addition to evidence described in subsection (4) during the hearing. The administrative law judge shall receive such evidence, subject to the applicable rules of evidence, if inclusion of the evidence in the record is necessary to conduct a full and fair hearing. If any evidence introduced during the hearing has not previously been provided to the agency and to the other parties, the hearing may be continued upon the request of any party or the agency for sufficient time to allow the party or the agency to obtain and review the evidence.
(5) The agency will give primary consideration to accommodate the needs of persons that are disabled so that they are not disadvantaged due to their disability.
(6) As used in this rule, "telephone" means any two-way or multi-party electronic communication device, including video conferencing.
Stat. Auth.: ORS 260
Stats. Implemented: ORS 260.232 & 260.995
Hist.: ELECT 5-1999, f. 7-30-99, cert. ef. 9-1-99; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 5-2010, f. & cert. ef. 11-1-10
165-001-0090
HAVA Complaint Procedures
(1) The purpose of this rule is to adopt procedures for the receipt and disposition of complaints filed with the Secretary of State, Elections Division alleging violations of Title III of the Help America Vote Act of 2002 (HAVA). The rule is intended to fully comply with all federal requirements for the complaint procedure, as described in Section 402 of HAVA (P.L. 107-252).
(2) The procedures described in this rule are to be used solely for complaints filed alleging a violation of Title III of HAVA. Title III includes voting system standards, accessibility of voting systems to persons with disabilities, instructions on correcting voting errors, identification requirements for voting in federal elections if registration was by mail, computerized voter registration, contents of registration forms and provisional voting.
(3) State and county elections officials are encouraged to resolve HAVA complaints informally if possible. If informal resolution is not possible, and a person wishes to file a formal HAVA complaint under this procedure, the person shall use the HAVA complaint form (SEL 820). The complaint will be accepted and processed only if made in writing, signed under oath by the person filing the complaint, and notarized. The complaint form must be filed directly with the Secretary of State, Elections Division. If the complaint is submitted to a county elections office, the county elections official shall promptly forward the original complaint to the Elections Division. The complaint shall be considered filed on the day it is received at the office of the Elections Division.
(4) Upon receipt of a complaint, the Elections Division staff will review the complaint to determine if it alleges a violation of Title III of HAVA. If the complaint does not allege a violation of Title III, the complaint will be dismissed, with a letter provided to the complainant explaining the reason for the dismissal. If the complaint alleges a violation of Title III, the complaint will be acknowledged in writing, and the complainant will be offered the opportunity to request a hearing on the record. A hearing on the record may be provided by telephone or in person. The Elections Division staff will then request information from other persons who may have information related to the substance of the complaint. When the responses are received, copies will be sent to the complainant to provide an opportunity for the complainant to respond or rebut the information provided. Unless the complainant requested a hearing on the record, or the Elections Division chooses to provide such a hearing because of the nature of the allegations and responses, the Division will prepare a determination letter based on the information provided. The determination letter will address whether any violation of Title III has occurred and address how to resolve the problem to avoid its occurrence in the future.
(5) If a hearing on the record is scheduled, the Division will decide whether the hearing is to be conducted by telephone or in-person. The complainant and other persons who have relevant information to provide will be invited to participate. The hearing will be conducted before an Elections Division employee. The purpose of the hearing is to determine whether any procedure required by Title III was not correctly followed, and to develop a plan to make sure the violation, if any, does not happen again. The hearing is to be conducted as a fact-finding, problem solving forum. A record must be kept, including copies of any documents submitted and minutes, a tape or other record of the hearing.
(6) Whether the complaint is resolved through the procedures of subsections (4) or (5) of this rule, the final determination will be prepared by the Elections Division. If the outcome of the proceeding requires the provision of a remedy, the remedy must conform to state elections law and will not include financial payments to complainants or civil penalties against other involved individuals. Remedies may include written findings that a violation of Title III has occurred, strategies for insuring that that violation does not occur again, and, if it appears that the complaint involves a systemic problem, possible actions by the Elections Division to provide better instructions, training or procedures to all election officials to avoid future violations.
(7) Final determination letters will be signed by the Secretary of State or Deputy Secretary of State. All determination letters will be posted on the Division's website. A copy of the final determination will be provided to the complainant and to any other persons who provided information or participated in a hearing.
(8) The Division will handle all complaints filed under this rule in a way that allows a final determination to be issued within 90 days of the receipt of the complaint. If delays appear to put the 90 day deadline at risk, the Division may ask the complainant to provide an extension to complete the investigation or to conduct the hearing. If the complainant does not agree to provide an extension, the final determination must either be issued within the 90 days, or the matter must be referred to the dispute resolution process described in subsection (9).
(9) The Division will provide an alternative dispute resolution process for complaints that are not resolved within 90 days of the filing of the complaint (unless an extension is granted by the complainant) or for complaints that the Division, in its sole discretion, determine warrant this level of review. The alternative dispute resolution process is intended to be a consensus or cooperative outcome procedure, not an arbitration or mediation process model with adversaries or parties. The Division will select a person from a panel of volunteers who agree to provide their services to convene a meeting of the interested parties to resolve a particular complaint or complaints. The panel member will then recommend an outcome to the Secretary, to be adopted within 60 days of the referral. The Secretary will adopt the recommendation, or a revised version of the recommendation, as appropriate. Final determinations reached following this alternative dispute resolution process shall be publicized and distributed in the manner described in subsection (7) of this rule.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 246.150, Ch. 64, 2003 OL: Other Auth Title III, Help America Vote Act of 2002 (HAVA)(P.L. 107-252)
Stats. Implemented: Ch. 64, 2003 OL
Hist.: ELECT 25-2003, f. & cert. ef. 12-31-03
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