A presiding officer may not communicate,
directly or indirectly, regarding any issue in the proceeding other than
communications necessary to procedural aspects of maintaining an orderly
process, with any person employed by the agency without notice and opportunity
for all parties to participate, except as provided in this subsection:
(a) Where the ultimate legal authority of an
agency is vested in a multimember body, and where that body presides at an
adjudication, members of the body may communicate with one another regarding
(b) Any presiding
officer may receive aid from legal counsel, or from staff assistants who are
subject to the presiding officer's supervision; and
(c) Presiding officers may communicate with
other employees or consultants of the agency who have not participated in the
proceeding in any manner, and who are not engaged in any investigative or
prosecutorial functions in the same or a factually related case.
(d) This subsection does not apply to
communications required for the disposition of ex parte matters specifically
authorized by statute.
(2) Unless required for the disposition of ex
parte matters specifically authorized by statute or unless necessary to
procedural aspects of maintaining an orderly process, a presiding officer may
not communicate, directly or indirectly, regarding any issue in the proceeding,
with any person not employed by the agency who has a direct or indirect
interest in the outcome of the proceeding, without notice and opportunity for
all parties to participate.
Unless necessary to procedural aspects of maintaining an orderly process,
persons to whom a presiding officer may not communicate under subsections (1)
and (2) of this section may not communicate with presiding officers without
notice and opportunity for all parties to participate.
(4) If, before serving as presiding officer
in an adjudicative proceeding, a person receives an ex parte communication of a
type that could not properly be received while serving, the person, promptly
after starting to serve, shall disclose the communication in the manner
prescribed in subsection (5) of this section.
(5) Portions of the record pertaining to ex
parte communications or rebuttal statements do not constitute evidence of any
fact at issue in the matter unless a party moves the admission of any portion
of the record for purposes of establishing a fact at issue and that portion is
admitted pursuant to 350-016-0014.
(6) Any commissioner who receives an ex parte
communication during the pendency of a proceeding shall place on the record of
the proceeding all written communications received, all written responses to
the communications and a memorandum stating the substance of all oral
communications received, all responses made, and the identity of each person
from whom the commissioner received an ex parte communication. The
commissioner, or the Chair or presiding officer, shall advise all parties that
these matters have been placed on the record. Upon request made within ten days
after notice of the ex parte communication, any party desiring to rebut the
communication shall be allowed to place a written rebuttal statement on the
(7) The Chair or presiding
officer shall consider the position of the parties and, after review of the
matter, make a recommendation to the Commission to ensure fairness and the
appearance of fairness is maintained. The member of the Commission who was the
subject of the ex parte contact may voluntarily step down from hearing the
matter. The Commission may also request the member of the Commission to
participate in the appeal or proceedings or the member of the Commission step
down from hearing the matter, and the Chair or presiding officer may seal the
portions of the record pertaining to the communication by protective
(8) The agency shall, and
any party may, report any violation of this section to appropriate authorities
for any disciplinary proceedings provided by law.
Or. Admin. R.
CRGC 1-1987 (Temp), f.
& ef. 9-10-87; CRGC 2-1987, f. 12-7-87, ef. 12-8-87; CRGC 3-1988(Temp), f.
11-17-88, cert. ef. 11-17-88 thru 2-13-89; CRGC 1-1989, f. 3-2-89, cert. ef.
3-7-89; CRGC 3-1989(Temp), f. 10-4-89, cert. ef. 10-4-89; CRGC 1-1990, f. &
cert. ef. 1-16-90; CRGC 2-1990, f. & cert. ef. 5-21-90; CRGC 1-2002, f.
10-16-02 cert. ef. 12-2-02
Stat. Auth.: ORS 197.150 & RCW 43.97
Stats. Implemented: ORS 197.150, RCW 43.97 &