OAR 350-016-0090. Procedure in Contested Case Hearing; Informal Dispositions; Default; Record of Proceeding

(1) Parties may elect to be represented by counsel and to respond and present evidence and argument on all issues involved. (2) Informal disposition (a) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. (b) Any informal disposition of a contested case, other than an informal disposition by default, must be in writing and signed by the party or parties to the contested case. The Gorge Commission shall incorporate that disposition into a final order. An order under this section is not subject to 350-016-0190. The Gorge Commission shall deliver or mail a copy of the order to each party and to the attorney of record if the party is represented. An order that incorporates the informal disposition is a final order in a contested case, but is not subject to judicial review. A party may petition the Gorge Commission to set aside a final order that incorporates the informal disposition on the ground that the informal disposition was obtained by fraud or duress. (3) Default (a) If a party fails to attend or participate in a hearing or other stage of a contested case proceeding, the Gorge Commission may serve upon all parties a default or other dispositive order, which shall include a statement of the grounds for the order. An order adverse to a party may be issued upon default only upon prima facie case made on the record. The record on a default order shall include all materials submitted by the party. The record on a default order may be made at the time of issuance of the order. If the record on the default order consists solely of an application and other materials submitted by the party, the agency shall so note in the order. (b) Within seven days after service of a default order under this section, the party against whom it was entered may file a written motion requesting that the order be vacated, and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the presiding officer may adjourn the proceedings or conduct them without the participation of that party, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. (4) At the commencement of the hearing, the officer presiding shall explain the issues involved in the hearing and the matters that the parties must either prove or disprove. (5) Testimony shall be taken upon oath or affirmation of the witness. The officer presiding at the hearing, or their delegate, shall administer oaths or affirmatives to witnesses. (6) All members of the Gorge Commission participating at the hearing shall place on the record a statement of the substance of any written or oral ex parte communication on a fact in issue made to them during the pendency of the proceeding and notify the parties of the communication and of their right to rebut the communication. (7) The Gorge Commission shall ensure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues property before the Gorge Commission and the correct application of law to those facts. (8) Record of Contested Case (a) The Gorge Commission shall maintain an official record of each contested case. (b) The record in a contested case shall include: (A) Notices of all proceedings; (B) Any prehearing order; (C) All pleadings, motions, briefs, petitions, requests, and intermediate rulings; (D) Evidence received or considered; (E) Stipulations; (F) A statement of matters officially noticed; (G) Questions and offers of proof, objections and rulings thereon; (H) A statement of any ex parte communications that must be disclosed under section (6) of this rule; (I) Staff memoranda or data submitted to the Gorge Commission and that are not privileged communication; (J) Proposed findings, requested orders, and exceptions; (K) Any final order or order on reconsideration prepared by the Gorge Commission; (c) A verbatim oral, written, or mechanical record shall be made of all motions, rulings, and testimony. The record need not be transcribed unless requested for purposes of rehearing or court review. The Gorge Commission may charge the party requesting transcription, unless the party files an appropriate affidavit of indigency.