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Oregon Bulletin

June 1, 2012

Department of Oregon State Police, Chapter 257

Rule Caption: Trial Board Procedures.

Adm. Order No.: OSP 1-2012(Temp)

Filed with Sec. of State: 5-9-2012

Certified to be Effective: 5-9-12 thru 11-1-12

Notice Publication Date:

Rules Suspended: 257-080-0000, 257-080-0005, 257-080-0010, 257-080-0015, 257-080-0020, 257-080-0025, 257-080-0030, 257-080-0035, 257-080-0040, 257-080-0045

Subject: Repeal of OAR 257-080-0000 et. Seq.

Rules Coordinator: Shannon Peterson—(503) 934-0183

257-080-0000

Purpose of Rules

These rules implement and give effect to state law mandating procedures for use when considering removal of Department members subject to ORS 181.290–340, with the following objectives:

(1) To define the statutory grounds for removal of members.

(2) To provide guidelines for the preparation and filing of written charges.

(3) To outline the procedures to follow in hearings before the trial board.

(4) To specify the form and general contents of written Findings and Recommendations.

(5) To describe the duty of the Superintendent to carry out the written recommendation.

(6) To assure an expeditious and fair resolution of any charges against a member through the trial board process.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0005

Statutory Authority for Rules

These rules are adopted under the authority provided by ORS 181.200, 181.280, 181.290, 181.310, 181.330 and 181.340.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0010

Definitions

(1) Department — refers to the Oregon Department of State Police.

(2) Member — refers to the employee subject to the written charges who is afforded a hearing under these rules.

(3) Presiding officer — is the Superintendent or any commissioned officer designated by the Superintendent to preside over the trial board proceedings.

(4) Willful — volitional conduct, of one’s own free will; not accidental.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0015

Grounds for Removal

The statutory grounds for removal are defined as follows:

(1) Inefficiency means failure to meet expectations for a particular position, including the failure to exercise reasonable judgment, or to produce desired results.

(2) Misfeasance means conduct which is improper, inappropriate or unsuitable, including performance of otherwise lawful actions in an illegal or unacceptable manner.

(3) Malfeasance means conduct positively wrongful or unwarranted. It is characterized by behavior which is offensive and/or displays a disregard of ethical standards.

(4) Nonfeasance in office means the omission to undertake actions, especially those which ought to be done in the particular position.

(5) Violations of the criminal laws of the state or of the United States means engaging in conduct which meets the elements of any criminal statutory offense. Proof may be established by either:

(a) Evidence of the conduct offered before the trial board; or

(b) Submission to the board of a certified judgment, after trial or plea, from the appropriate tribunal which disposed of the matter. Conduct charged as a crime which does not result in conviction (either because there was no trial or the verdict resulted in acquittal) may still be grounds for removal under the preponderance standard in these rules.

(6) Willful violation of any rule or regulation of the department means volitional conduct by a member that is contrary to standards/expectations established in department rules and regulations.

(7) Insubordination means refusing to submit to authority as in disobedient and/or the failure to recognize or accept the authority of a superior. It is characterized by the willful refusal to:

(a) Comply with a written or verbal instruction; or

(b) At all times maintain toward superior officers the respectful attitude that discipline requires and courtesy demands.

(8) Forfeiture of license to operate a motor vehicle means that the member’s license has been adjudged by a court of competent jurisdiction or an authorized administrative agency to be revoked or suspended.

(9) Physical or mental disability not incurred in line of duty means any condition which prohibits a member from performing the necessary duties of a sworn police officer even if reasonable adjustments were made to assist the member in performing.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0020

Preparation and Filing of Written Charges

(1) Written charges may be prepared by the immediate supervisor of the affected member or by the Office of the Superintendent.

(2) The document shall include:

(a) The name and mailing address of the member.

(b) A statement that the document is notice of written charges under the statutes and rules covering removal proceedings.

(c) A list of the statutory terms from ORS 181.290 that the trial board will be asked to consider.

(d) A description of information concerning the member’s tenure with the department which may be relevant to an understanding of the charges. Examples include:

(A) Particular training or education provided;

(B) Prior corrective action;

(C) Informal discussions or other communications with the member by other managers or supervisors;

(D) The availability of written standards or expectations — whether formal or informal; and

(E) All other matters which may provide a context in which to review the specific conduct at issue. The contents of this part of the written charges shall not be construed as a limitation on the type or nature of evidence which can be offered at the hearing by either party.

(e) A concise description of the conduct which forms the basis of the charges, arranged either chronologically or by substantive content, so that it is organized in a fashion which is reasonably understandable by the member.

(3) A suggested format for the written charges is as follows:

(a) Member’s name;

(b) Member’s mailing address;

(c) As a sworn member of the department, subject to ORS 181.290 through 181.340 and OAR 257, division 80, this is written notice of charges which can result in your removal as a member of the department.

(d) The statutory grounds under ORS 181.290 relied upon are: (cite to each term in ORS 181.290 that applies).

(e) Relevant background information: (set out particulars).

(f) The conduct at issue: (set out particulars).

(4) The completed written charges shall be delivered to the Office of the Superintendent, where they will be filed and logged by date and time of receipt.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Administrative Reformatting 12-1-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0025

Initiating a Trial Board

(1) Upon receipt of written charges, the Superintendent shall, without undue delay, determine their sufficiency and whether to initiate a trial board. The charges may be referred back to the drafter or to the Professional Standards Section for revision or amendment. The revised or amended charges shall be refiled and logged in by date and time.

(2) During the pendency of the matter the Superintendent shall determine the appropriate duty and pay status of the member. Any action to suspend without pay must comply with due process of law.

(3) The Superintendent shall appoint two commissioned officers who are senior in service to serve on the board. If the Superintendent determines to designate a commissioned officer other than the Superintendent to act as presiding officer of the board that shall be done by written order.

(4) The Superintendent shall determine the time and place of the hearing, which designation shall be with no less than ten days notice to the member.

(5) The member shall be notified, in writing, of the following:

(a) The individuals composing the trial board;

(b) The location, date and time of the hearing;

(c) The member’s right to have legal counsel represent the member, at the member’s expense, before the board;

(d) The duty and pay status of the member during the hearing process; and

(e) The need to inform the Superintendent within 72 hours whether the member will attend the hearing. Attached to this notice shall be a copy of these rules and a copy of the written charges.

(6) Failure to comply with one or more of the terms of these rules concerning the Trial Board process shall not invalidate any written charges or negate any proceeding before the board. To the extent necessary to protect a member’s legal rights, if an extension of time is necessary for the member to prepare a defense, the presiding officer shall grant a reasonable period of time.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0030

Trial Board Proceedings — Generally

(1) The presiding officer shall have full authority to direct all matters connected with the hearing process, including but not limited to the matters specified in these rules and the statute.

(2) To the extent any matter is not covered by these rules, the presiding officer shall have the authority to provide mechanisms necessary to comply with any legal requirements to assure a fair and orderly hearing process.

(3) An audio recording of the proceedings will be made, which shall constitute the official record.

(4) The department has the burden of going forward with its evidence and the burden of proving the written charges by a preponderance of the evidence. The member has the burden to establish any affirmative matters asserted in defense of the charges by a preponderance of the evidence.

(5) Evidence commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible subject to irrelevant or unduly repetitious evidence being excluded by the presiding officer.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0035

Trial Board Proceedings — Prehearing Matters

(1) The Department shall forward to the member, within a reasonable time after the hearing is set, all investigative reports and other documents prepared according to the requirements of the department’s personnel review manual that were available at the time the written charges were formulated.

(2) Parties shall make written request to the presiding officer, with a copy to the opposing party, for the issuance of subpoenas. The presiding officer may require an explanation of the testimony expected from the witness and/or the nature of the physical evidence expected to be produced by subpoena and whether the opposing party has been requested to voluntarily produce the person or item sought before deciding whether to issue the subpoena. All fees authorized by the statute and service costs shall be the responsibility of the party requesting the subpoena.

(3) Any request for assistance or relief shall be by written motion; identifying:

(a) The facts and circumstances supporting the motion;

(b) The relief sought; and

(c) The authority relied upon in seeking the particular request. There must be proof of service on the other party to the proceeding accompanying the motion.

(4) Prehearing conference(s) may be convened if deemed necessary by the presiding officer or as requested by a party and approved by the presiding officer. During a conference the presiding officer may inquire of each side:

(a) The number of witnesses and their estimated length of time testifying;

(b) The number and description of documents;

(c) Whether stipulations are possible;

(d) Whether any motions are going to be filed; and

(e) Any other matter which may facilitate the orderly and efficient presentation of evidence at the hearing.

(5) On a date established by the presiding officer, but in no event less than five days prior to the hearing, the parties shall exchange:

(a) Marked exhibits;

(b) A witnesses list; and

(c) Any materials necessary to comply with prehearing agreements or orders. This provision does not apply to evidence to be used exclusively for impeachment.

(6) Failure to comply with requirements set by these rules or the presiding officer and failure to abide by agreements with the opposing party may result in denial of the right to submit evidence at the hearing on such matter, unless good cause is shown.

(7) The member’s official personnel file shall be available for inspection by the parties or their respective representatives upon advance request to the Professional Standards Section at General Headquarters.

(8) A copy of the official personnel file shall be forwarded to the presiding officer in advance of the hearing so that it will be available at the hearing. It shall be entered into evidence so that the parties may refer to it and the panel may have it available during deliberations.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0040

Trial Board Proceedings — The Hearing

(1) The presiding officer shall open the hearing, on the record, by introducing the parties and identifying the purpose of the hearing as required by ORS 183.413.

(2) The parties may make opening statements.

(3) The parties may offer physical and testimonial evidence in support of their respective positions. All exhibits must be marked and the original and three copies submitted to the board and one (previously) supplied to the opposing party. Cross examination of witnesses shall be allowed.

(4) The parties shall make oral closing arguments unless the presiding officer requests a post-hearing written argument. The length and subjects of the written argument shall be specified by the presiding officer.

(5) The presiding officer may rule on objections at the time they are made or defer ruling until the board makes its written determination.

(6) All parties, counsel, witnesses and spectators shall conduct themselves in a respectful manner. Failure to comply with the presiding officer’s effort to retain order is ground for removal from the hearing.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

257-080-0045

Trial Board Proceedings — The Board Findings and Recommendation

(1) The board’s Findings and Recommendation shall be in written form.

(2) The Findings and Recommendation shall contain:

(a) All rulings on admissibility and/or objections that were deferred;

(b) Factual findings, including specific findings of “guilty” to each charge found to be proved; and

(c) Conclusions of law which address application of the facts to the controlling law.

(3) The Findings shall state specifically whether removal or other disciplinary punishment is recommended and identify and explain the rationale upon which the board relied. Any recommendation for economic discipline must comply with applicable laws, including the Fair Labor Standards Act.

(4) In assessing the appropriate level of punishment the panel shall consider:

(a) The rank and corresponding duties and expectations for the position held by the member;

(b) The number and relative severity of charges proven; and

(c) Any evidence presented to mitigate the proven charges. The panel shall make credibility determinations as part of its process.

(5) While evidence may mitigate proven charges, the panel is not to apply progressive discipline as a matter of right nor shall it require proof of “just cause” as that term is used in labor agreements.

(6) The Superintendent shall direct the punishment established by the board and so inform the member by sending a copy of the board’s Findings and Recommendations along with the notice of punishment. This notice shall also advise the member of the right to appeal under ORS 181.350.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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