at an Administrative Hearing Before the
Office of Administrative Hearings
The purpose of this page is to explain the basics of representing yourself at an administrative hearing. What happens in your hearing may be a little different from the description here. This will depend on the type of hearing, the unique circumstances of your case, and the agency that made the decision from which you are appealing. Those differences are explained in this webpage.
Although it is generally desirable to be represented by attorneys, citizens who appear before the Office of Administrative Hearings (OAH) more often than not represent themselves. State agencies may be represented by an attorney; however, they may also be represented by agency representatives, who are not attorneys. Whether or not you or the agency has an attorney, Oregon law requires the administrative law judge to make a "full and fair inquiry" into the facts necessary to decide the case.
An administrative hearing is an informal way of resolving disputes between agencies and citizens without the strict procedural rules of a court. An administrative law judge conducts the hearing and prepares an order. There are two kinds of orders: final orders and proposed orders.
The difference is this: A final order is the final decision at the hearings level. Generally only you, and not the agency, can appeal from a final order (depending on the kind of case, appeal is to the Employment Appeals Board, a county circuit court, or the Oregon Court of Appeals). Ninety-eight percent of all orders issued by the Office of Administrative Hearings are final orders. A proposed order is different. It is a recommended decision from the administrative law judge to the agency, based on the administrative law judge’s interpretation of the facts and applicable law. The agency can accept the decision or not. The agency will then issue a final order. The appeal rights section at the end of the OAH decision will tell you what kind of order it is and how to appeal.
The administrative law judge who hears your case is an employee of the Office of Administrative Hearings. He or she is not an employee of the agency which issued the administrative decision. The Office of Administrative Hearings is an independent and impartial agency, which provides professional administrative law judges who are specially trained in administrative law to decide your kind of case.
Before the Hearing
The process begins with an administrative order issued by the agency. The losing party can request a hearing. The agency's order will explain how a request must be made. It is necessary to read carefully the instructions and follow them exactly.
Preparing for the Hearing
Read the hearing notice very carefully. The notice should tell you the date, time, and place of the hearing. It may also include a short statement telling you the issues to be covered at the hearing.
· Many administrative hearings are held by telephone. Whether your hearing is scheduled to be in-person or by telephone, you must show up at the specified date, time and place, and in the manner stated in the notice. If you don't, the administrative law judge will dismiss the case. This means that you lose, and you will not be able to explain your side of the story.
NOTE: If your mailing address or telephone number changes after you have requested a hearing or after you have received the Notice of Hearing, inform the Office of Administrative Hearings office identified on the Notice of Hearing of your new mailing address or telephone number.
What if I can't attend at the scheduled time? If you are unavailable at the time and/or place scheduled for the hearing, you must contact the Office of Administrative Hearings office identified on the Notice of Hearing as soon as possible before the hearing to ask for a postponement. The administrative law judge or division manager will decide whether there is a good reason for the delay. Make your request as soon as you know you can't attend the scheduled hearing. Avoidable delay may result in a denial of your request.
What if I need an interpreter? All hearings are conducted in English. If you are not comfortable with English, the Office of Administrative Hearings will provide an interpreter at no cost to you. Or, if you have a physical disability (for example, a speech or hearing impairment, which will prevent you from actively participating in the hearing, the OAH will provide an interpreter. In either case, however, you must notify the OAH as soon as possible.
NOTE: You cannot bring a family member or friend with you to serve as your interpreter at the hearing.
Identify the issues
First, think about all possible issues in your case. Carefully plan your argument, outlining why you think the agency acted incorrectly and why your arguments should win. People sometimes emphasize the wrong issues, they bring up information having nothing to do with the issues in the case.
When identifying issues in your case, a good place to start is to think about the agency's arguments against you. Those arguments will be in the agency's administrative order. Most often, you will have a prehearing packet from the agency that will include the evidence it intends to offer in your case, and a summary of the arguments the agency will make. Make a list of what the agency might say about the case and why the agency thinks it made the correct decision. Make a list about why you disagree and think you are right.
Stick to the issues
Once you have identified all the issues, stick to them. As you select and collect your evidence, interview witnesses, and write your arguments, you should always stick to the issues. The administrative law judge will not be interested in anything but evidence that relates to the issues.
· Know what you are trying to prove.
· Make only the essential points.
· Don't confuse the issues with irrelevant information.
Once you have identified the issues, the next step is to collect evidence that will help prove your case. Good evidence wins cases. Evidence includes your own testimony and supporting documents and witnesses that will help you prove that you are right. You can start collecting evidence by:
· Reviewing all-important documents and records that relate to the issues in your case. Read each document and decide if it will help your case.
· Interviewing people who have something to say that will help your case.
· Collecting evidence for your case. If you need help getting documents from doctors, hospitals, etc., the agency representative can often help you get the information you need.
Persuasive evidence is not determined by the amount of testimony. In other words, you don't need many different witnesses to testify about the same facts. Bring the witnesses with the most reliable first-hand knowledge.
· First-hand knowledge means that the witness personally knows something that helps prove your case, or is an expert you have consulted about a particular subject.
You should talk with your witnesses before going to the hearing. You can't try to persuade them to give inaccurate or incomplete testimony. But you need to know what they will say if they testify for you. You may decide that you don't want them. It is better to know that before the hearing, than suddenly to realize, while your witness is testifying, that the testimony is not helping you.
Can I make my witnesses show up at the hearing?
If you want to call a witness whom you think won't show up, you can have that person "subpoenaed." A subpoena is an official document, which requires the witness to appear and testify at a hearing. You can ask either the agency or the administrative law judgeto issue a subpoena for a witness.
· There are certain requirements for a subpoena. For example, you must pay the witness a witness fee and mileage expense before the hearing itself. Therefore, you should ask for the subpoena well in advance of your hearing. For more information on subpoenas, you should contact the Office of Administrative Hearings.
At the Hearing
Nature of an administrative hearing. An administrative hearing is similar to a court trial but is less formal. Like a trial, its purpose is to gather facts through testimony, documents, and other evidence.
Exchange of exhibits. As soon as possible before hearing, you must send to the administrative law judge and opposing parties all documents which you want the administrative law judge to consider in deciding the case. If you wait until the day of hearing to submit these documents, they may be excluded.
Things you will need for the hearing. On the day of the hearing, you should have the following items with you:
· all the exhibits which you have received and which you want the administrative law judge to consider;
· a written list of points that you want to make;
· a written list of any questions that you want to ask all the witnesses, both your own and the opposing party's;
· and pen and paper, so you can take notes.
Hearing procedure. The hearing procedure is as follows:
· The first thing the administrative law judge will do is to go through the exhibits, one by one, to ensure that both you and the opposing party have received them all. Those exhibits will then be admitted into the hearing record, unless either you or the other party objects. To be "admitted" means that the administrative law judge will consider them in reaching a decision in the case.
· The administrative law judge will then identify the issue or issues to be decided in the case.
· Depending on the nature of the hearing, you and the other party may be given an opportunity to make an opening statement. An opening statement is an explanation to the administrative law judge what the evidence will show and why the party should win. It is not the time to give actual evidence or to testify. You are not required to make an opening statement.
· After opening statements, the administrative law judge will listen to the testimony of witnesses. Who goes first (you or the opposing party) depends on who has the principal responsibility ("burden of proof") of persuading the administrative law judge. Most often, it is the party, which requested the hearing. Whoever it is, that party will call its first witness to testify. At the conclusion of that testimony, the other party can "cross-examine." This continues until that party has no more witnesses to call. Often the administrative law judge will ask several questions, perhaps right after the witness is sworn in or perhaps after you and the agency have asked all the questions you want.
· After the first party's witnesses have testified, the other party will now call its own witnesses. It is the same process as before: After each witness testifies, the other party can cross-examine.
· Once all the witnesses have testified, you and the agency may be permitted to make closing arguments to the administrative law judge (although, like opening statements, this depends on the nature of the hearing). A closing argument is one in which both of you, in turn, point out the evidence (testimony and exhibits) and the law, which support your respective positions.
· Following closing arguments, the hearing is concluded.
Burden of presenting evidence. In general, whoever is relying on a particular fact has the burden or proving it to the administrative law judge. Therefore, you should be ready to present evidence supporting your position.
Examination of witnesses
Direct examination: If you call a witness for your side, you must conduct a "direct examination" of that witness. Direct examination means that you must ask your witness questions in a non-leading manner.
· Non-leading questions are questions, which can be answered by explaining what happened. A leading question is one that can be answered only by "yes" or "no." For example, "What you were doing on the evening of October 1, 2001?" is a non-leading question, suitable question for direct examination. But, the question "Isn't it true that you were at home watching television on the evening of October 1, 2001?" is a leading question. If you ask your witness questions that require a "yes" or "no" answer, you are probably asking leading questions and the administrative law judge may stop you.
Cross-examination: Cross-examination is when you question the other party's witnesses. On cross-examination, you are allowed to ask leading questions. Leading questions usually have a "yes" or "no" answer to them.
Keeping the record open. As you go through the hearing, you may realize that the administrative law judge does not have all the available information (for example, documents such as medical reports) to make an accurate decision. If so, you must can ask permission of the administrative law judge to keep the record open, that is, to permit you the opportunity to submit more documents after the hearing ends. The administrative law judge may or may not grant the request. However, it is your responsibility to ensure that your exhibits are sent on time both to the administrative law judge and the opposing party.
The decision. After the hearing has ended and the record closes (that is, no more evidence will be considered), the administrative law judge will review all the evidence and testimony. The administrative law judge will not tell you the decision on the day of the hearing. Instead, you will receive the written decision in the mail, probably a few weeks after the hearing itself or sooner. If you did not win, the hearing decision will include information about your appeal rights. If you want to appeal, you must follow exactly the instructions for appeal set out in the decision.
Tips for your Hearing
· If this is an in-person hearing (that is, a hearing conducted in a hearing room rather than over the telephone), get there a few minutes early so that you can collect your thoughts and have enough time to set up.
· Make sure your witnesses are available at the time and place set for hearing.
· If your hearing is by telephone, make sure you read your notice carefully as it will state a certain phone number with an access code that you must call in to at the designated time. Cell phones are not recommended.
· Make sure you have all the documents received from the agency and those that you want the administrative law judge to use in making the decision.
· Have a checklist of the major points you wish to bring up in the hearing and the questions you want to ask of both your witnesses and those of the other party.
· Always be courteous to the administrative law judge, witnesses, and your opponent.
· Speak simply, clearly, and concisely.
· Focus on the key issues in the case.
· Above all, remember: facts and evidence win cases!
|OTHER AGENCY HEARINGS
OREGONDEPARTMENT OF TRANSPORTATION
Division of Motor Vehicles
Implied Consent hearings are subject to strict statutory timelines. If you request a hearing, the Department has 30 days from the date of arrest in which to hold the hearing and issue a final order. If the Department fails to meet this timeline, it may not suspend your driving privileges (there are limited exceptions). If your hearing request is not received by the Department within 10 days of the date of arrest; you waive your right to a hearing and will be suspended by the Department.
The Department is not represented by an Assistant Attorney General or a case presenter. The Department's case is presented through documents and the testimony of one or more subpoenaed police officers. The hearing begins with the administrative law judge (ALJ) swearing in the police-officer witness. The ALJ is responsible for questioning the police officer, and placing the Department's exhibits into the record. The ALJ takes a very active part in the hearing, asking questions that allow the police witness to provide testimony on the basic elements the department must prove. Once the ALJ has completed questioning the police officer, you may question the officer.
After all the Department's witnesses have testified, you will have an opportunity to present evidence on your own behalf. You may testify yourself, or you may call witnesses. The ALJ will probably ask you questions. In some circumstances, the police officer may also ask questions.
At the end of the hearing, you can give a closing argument. The ALJ will issue a final written order before the 30th day from the date of arrest. This order may be appealed to circuit court, as long as it is filed within 30 days of its issuance.
These hearings are subject to the Administrative Procedures Act (ORS chapter 183) and the Hearing Panel Rules (OAR 137-003-0501). The Department is generally not represented by an assistant attorney general or a case presenter. At the present time, the Department will only be represented in hearings conducted in the areas of Motor Carrier, Access Management and Business Regulations (car dealers).
In these cases, the Department has the burden of proof and it goes first in presenting its evidence. In most Department of Transportation cases, the ALJ will issue a final written order. Final orders may be appealed to the Oregon Court of Appeals. In Motor Carrier, Access Management and Domicile cases, the ALJ will issue a proposed order.
DEPARTMENT OF HUMAN SERVICES
Cash, child care, medical and food stamp programs
Most hearings are held by telephone. There are exceptions such as for hearing-impaired people. Generally, an employee of the Department of Human services, who is not an attorney, represents the Department. You may represent yourself in your hearing, or you may hire an attorney at your own expense. If your hearing involves food stamp or medical benefits, including the Oregon Health Plan, you may choose anyone to help or represent you at the hearing. For all other hearings, (General Assistance, child care, and TANF, for example) the only non-attorneys who can represent you must work for non-profit legal services agencies like Legal Aid or Oregon Legal Services.
All hearings are tape-recorded. Each party may give an opening statement. The Department will first present its case. The ALJ may have questions for the Department. You will also be given an opportunity to ask questions of the Department. Then you will present your case. The ALJ may ask questions of you and your witnesses as well. The Department may also ask questions. After all of the testimony and other evidence has been submitted, each party may give a closing statement.
Most orders are final orders, which are appealable to the Oregon Court of Appeals. In some cases, ALJs issue proposed orders. The Department will then make the final decision and issue a final order. You will be told at the beginning of the hearing whether you will be getting a final or a proposed order.
CONSTRUCTION CONTRACTORS BOARD
Parties who request a hearing will receive detailed information concerning the hearing process from the Construction Contractors Board (CCB) at the time they refer your case to the Office of Administrative Hearings. Unless a party to the claim or the CCB requests in writing that a claim be heard as a contested case, the claim will normally be decided in an arbitration hearing.
Once your hearing request has been referred to the OAH, the OAH will set a pre-hearing/hearing date and time. Most hearings are held in person. If you need to change the hearing date and time, you must contact the OAH to ask if this can be done. You may call collect. Your request may or may not be granted, depending upon the reason you are requesting a postponement. If a postponement has not been granted and you fail to show to your hearing, an order will still be issued which may be adverse to you.
In a hearing the person seeking monetary damage is the "claimant." The contractor from whom monetary damages are sought is the "respondent." Respondents must be represented by an attorney depending upon how their business is organized. Claimants who are not a business may choose to represent themselves or may obtain legal counsel at their own expense.
At the hearing the Administrative Law Judge (ALJ) or Arbitrator will ask everyone who will testify in the hearing to take an oath to tell the truth. Each party may give an opening statement. The claimant will first present their case. The ALJ/Arbitrator may ask questions of those testifying. The respondent will then have an opportunity to ask questions. Then the respondent will present their case. Again, the ALJ/Arbitrator may ask questions, as well as the claimant. Generally, the hearing record closes at the end of the hearing.
The Arbitrator will issue an arbitration award arbitration hearings. In contested case hearings, the ALJ will issue a proposed and final order. If neither party appeals in a timely manner, the order becomes final.
All orders will tell you what your appeal rights are at the end of the order. If you are not satisfied with the outcome of the order, you must follow the instructions given to you on the order within the appropriate time frames to appeal the decision.
DEPARTMENT OF CONSUMER AND BUSINESS SERVICES
Sanction cases are those in which the Insurance Division seeks to either revoke or suspend the license or, or impose a fine against, an insurance company or agent. These are in-person hearings held in Salem. The Insurance Division is always represented by an assistant attorney general from the Oregon Department of Justice. At hearing, the Insurance Division has the burden of proving the allegations. It will present its evidence first. Then it is the turn of the company or agent. The company or agent go first in presenting evidence, followed by the respondent. A respondent may represent themselves or be represented by an attorney who is licensed by the State of Oregon.
If an audited business is structured as a corporation, it may be represented at hearing by an attorney licensed by the State of Oregon or by an authorized officer or regular employee of the corporation. If the business is structured as a limited liability company (LLC), it may be represented by an authorized member of the company or a regular employee of the LLC. If structured as a partnership or a sole proprietorship, the business may be represented by an attorney or the sole proprietor or authorized partner of a partnership may represent the business.
The business presents evidence first, and has the burden of proving that the final premium audit billing is incorrect. The insurance carrier then presents evidence. In premium audit cases, the ALJs issue proposed orders. The Department will then make the final decision and issue a final order.
Unemployment insurance hearings are held by telephone. Make sure you read your notice carefully as it will state a certain phone number with an access code that you must call in to at the designated time of your hearing. Celll phones are not recommended
You have the right to be represented by an attorney. Most claimants, however, are not represented by an attorney. Employers are sometimes represented either by an attorney or by an employer services company.
The claimant has the burden of proof in a voluntary leaving case to prove they had good cause to quit their job. The employer has the burden of proof in a discharge case to prove that it discharged the claimant for misconduct. The ALJ will first ask questions of the parties and witnesses, one at a time. Each party will have an opportunity testify and ask questions of their witnesses. A party also can question the other party and their witnesses. Parties have the right to make an opening statement before testimony is taken and make a closing argument after all the testimony is given, although most parties don't make either an opening statement or a closing argument. The ALJ will issue a final order to the parties within one to two weeks after the hearing ends. The ALJ's final order can be appealed to the Employment Appeals Board if a party disagrees with the ALJ's decision.
The Employment Department is represented by an employee of the Department in employment tax cases. The employer has the burden of proof in a tax case to prove that the tax assessment or determination issued by the Department is incorrect.
The ALJ will first ask questions of the Department's witnesses, and of the employer and employer's witnesses, one at a time. The employer and the Department each have an opportunity to testify and ask questions of their witnesses. The employer and the Department also can question the other side and their witnesses. Both the employer and the Department have the right to make an opening statement before testimony is taken and make a closing argument after all testimony is given.
The ALJ will issue a final order within about 30 days after the hearing ends. The ALJ's order can be appealed to the Oregon Court of Appeals if either the employer or the Department disagrees with the ALJ's decision.
OREGONLIQUOR CONTROL COMMISSION
The Commission is represented by an Assistant Attorney General (AAG) or a case presenter in all cases. You will be notified prior to your hearing who will represent the Commission. OLCC hearing are conducted in-person and in the same geographic location as the establishment involved in the hearing, although occasionally they are conducted by telephone (depending on the nature of the case).
In most OLCC related hearings, the administrative law judge (ALJ) will issue a discovery order that requires both you and OLCC to exchange evidence and case summaries prior to the hearing. Often, pre-hearing conferences are scheduled in order to discuss the timeframes of the hearing, the order of presentation of information, the list of witnesses, the issues in dispute, the exhibits for the hearing, any agreement to facts, and any other relevant matters.
Because the Commission has the burden of proof, it always goes first. ALJ issue only proposed orders; the Commission issues the final orders. Final orders are appealable to the Court of Appeals.
WATER RESOURCES DEPARTMENT
The person applying for a water right is called the "applicant." The person objecting to the decision of the Department regarding the application is called the "protestant." If the applicant is objecting to the denial of the application, the applicant is called the "applicant/protestant."
Water rights cases are generally held in-person. If the applicant is protesting the Department's denial of the application, the applicant has the burden of proving the case. If the protestant is opposing the grant of the application, the protestant has the burden. The person with the burden of proof always goes first. The ALJ will issue a proposed order. The Department will then make the final decision and issue a final order.
Disclaimer: The information provided here is by no means exhaustive of your rights and responsibilities when representing yourself in an administrative hearing. It is intended to be only a general overview of the contested case hearing system in Oregon.