Oregon Administrative Rules › Chapter 165 - SECRETARY OF STATE, ELECTIONS DIVISION › Division 1 - PROCEDURAL RULES › Section 165-001-0025 - Orders When No Hearing Requested, Hearing is Cancelled, or Failure to Appear at Hearing

Current through Register Vol. 63, No. 7, July 1, 2024
(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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) The deadline to issue a Final Order by
			 Default if there is no hearing request, the hearing is cancelled or the party
			 fails to appear at the hearing is not later than the 90th day after the
			 deadline to request a hearing.
(9)
			 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.
(10) 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.
(11) 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.
(12) 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),
			 260.285, or
			 260.995(6).
Statutory/Other Authority:
ORS
				  183.090, ORS
				  183.470,
				  246.150,
				  260.232,
				  260.995  & 260.285
Statutes/Other Implemented:
ORS
				  183.470,
				  260.232,
				  260.995  & 260.285