Oregon Administrative Rules › Chapter 291 - DEPARTMENT OF CORRECTIONS › Division 105 - PROHIBITED CONDUCT AND PROCESSING DISCIPLINARY ACTIONS › Section 291-105-0028 - Conduct of Formal Hearings

Current through Register Vol. 63, No. 7, July 1, 2024
(1) Unless waived
			 by the AIC, a formal hearing shall be conducted by the Hearings Officer on all
			 misconduct reports charging any major rule violation and any included minor
			 violation, on all misconduct reports charging a minor rule violation(s) for
			 which an AIC requests a formal hearing, and on all misconduct reports referred
			 by the adjudicator for a formal hearing in accordance with OAR
			 291-105-0041(6).
(2) The findings must be on the merits.
			 Technical and clerical errors in the writing or processing of the misconduct
			 report should not be grounds for dismissal, unless there is substantial
			 prejudice to the AIC.
(3) Standard
			 of Proof: Rule violation(s) shall be found upon proof by a preponderance of the
			 evidence. The term "preponderance of the evidence" means the greater weight of
			 evidence, not necessarily established by the amount of evidence or number of
			 witnesses, but by that evidence that has the most convincing force.
(4) The Hearings Officer shall consider such
			 evidence as would be considered by a reasonable person in the conduct of their
			 serious affairs.
(5) Once the
			 formal hearing has begun, if the Hearings Officer determines that the
			 violations are not supported by the facts as written in the misconduct report,
			 the Hearings Officer may substitute a lesser included violation or refer back
			 to the author for less formalized discipline.
(6) At the hearing, the AIC will be allowed
			 to exercise rights as allowed in OAR 2911050056.
(7) The Hearings Officer may pose questions
			 during the hearing.
(8) An
			 investigation shall be conducted in a formal hearing upon the AIC's request if
			 the information sought, when viewed in a light most favorable to the AIC, and
			 with all reasonable inferences drawn in the favor of the AIC, would constitute
			 a defense to the charge or substantially mitigate the violation. The
			 information sought must be within the ability of the facility to procure. If a
			 request for investigation is denied, the reason(s) for denial shall be made a
			 part of the record.
(9) Testimony
			 of Witnesses:
(a) The Hearings Officer shall
			 direct the scheduling and taking of testimony of witnesses at the hearing.
			 Witnesses may include AICs, employees, or other persons. Testimony may be taken
			 in person, by telephone, or by written report or statement.
(b) The AIC may request that the Hearings
			 Officer schedule witnesses to present testimony at the hearing. The request
			 should be submitted to the Hearings Officer in writing in advance of the
			 hearing and include a list of all persons the AIC requests be called to
			 testify, and the questions sought to be posed to each person. Requests for
			 witnesses must minimally be made to the Hearings Officer at the time of the
			 hearing. The AIC must provide sufficient evidence for the Hearings Officer to
			 conclude that the results of the testimony provided by witnesses will either
			 constitute a defense to the alleged violation(s) or substantially lessen the
			 severity of the violation(s). The Hearings Officer shall arrange for the taking
			 of testimony from such witnesses as properly requested by the AIC, subject to
			 the exclusions and restrictions provided in these rules. Requests for witnesses
			 made or received after a hearing is decided will not be considered.
(c) The AIC shall not directly pose questions
			 to any witness.
(d) The Hearings
			 Officer may limit testimony when it is cumulative or irrelevant.
(e) The Hearings Officer may exclude a
			 specific witness upon finding that the witness' testimony, together with all
			 reasonable inferences to be drawn from that testimony, would not constitute a
			 defense to the charge, would not substantially mitigate the violation, or would
			 not assist the Hearings Officer in the resolution of the disciplinary action.
			 The Hearings Officer may exclude a specific witness upon finding that the
			 appearance of the witness at the hearing would present an immediate undue risk
			 to the safe, secure, or orderly operation of the facility, specifically
			 including the safety and security of employees and AICs. If a witness is
			 excluded, the reason(s) shall be made a part of the record.
(f) The Hearings Officer may call witnesses
			 to testify as deemed necessary.
(g)
			 Persons requested as witnesses, other than employees, may refuse to
			 testify.
(h) All questions that may
			 assist in eliciting evidence that would constitute a defense to the alleged
			 rule violation(s) or substantially mitigate the violation(s) shall be posed.
			 The reason for not posing a question will be made part of the record.
(i) Confidential Informants:
(A) When confidential informant testimony is
			 submitted to the Hearings Officer, the identity of the informant and the
			 verbatim statement of the informant shall be submitted to the Hearings Officer
			 in writing using an approved Department of Corrections form but shall remain
			 confidential in accordance with OAR
			 291-105-0036(3).
(B) Information must be submitted supporting
			 the informant is a person who can be believed or that the information provided
			 is believable in order for the Hearings Officer to rely on the testimony of the
			 confidential informant.