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The Oregon Administrative Rules contain OARs filed through March 15, 2017
 
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DEPARTMENT OF CORRECTIONS

 

DIVISION 1

RULES DEVELOPMENT

Developing, Adopting, and Distributing Rules, Policies and Procedures

291-001-0020

Notice of Proposed Rule

Prior to the adoption, amendment, or repeal of a permanent rule, the Department of Corrections shall give notice of the proposed adoption, amendment, or repeal:

(1) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days prior to the effective date of the rule;

(2) By mailing a copy of the notice to persons on the department's mailing list established pursuant to ORS 183.335(7) at least 28 days prior to the effective date of the rule;

(3) By mailing a copy of the notice to the legislators specified in ORS 183.335(14) at least 49 days before the effective date of the rule; and

(4) By furnishing or mailing a copy of the notice to the following at least 28 days prior to the effective date of the rule:

(a) Capitol Press Room;

(b) Associated Press (AP);

(c) American Federation of State-County and Municipal Employees (AFSCME);

(d) Oregon Public Employees Union (OPEU);

(e) American Civil Liberties Union (ACLU);

(f) Public Defender's Office, Marion County;

(g) Oregon State Bar Association;

(h) Crime Victims United;

(i) Department of Corrections -- Institution Legal Libraries; and

(j) Department of Corrections -- Inmate Newsletters.

Stat. Auth.: ORS 183.335 & 183.341
Stats. Implemented: ORS 183.335 & 183.341
Hist.: CD 34-1980, f. & ef. 11-7-80; CD 3-1985(Temp), f. & ef. 4-26-85; CD 9-1985, f. & ef. 7-26-85; CD 2-1986(Temp), f. & ef. 1-31-86; CD 9-1986, f. & ef. 4-18-86; CD 1-1991, f. & cert. ef. 1-9-91; CD 5-1995, f. 2-22-95, cert. ef. 3-1-95; DOC 18-1999(Temp), f. & cert. ef. 10-28-99 thru 4-25-00; DOC 9-2000, f. & cert. ef. 4-14-00; DOC 17-2003, f. & cert. ef. 12-12-03; DOC 4-2007, f. & cert. ef. 7-20-07

291-001-0025

Model Rules of Procedure

Pursuant to the provisions of ORS 183.341 the Department of Corrections adopts the Attorney General's Model Rules of Procedure Under the Administrative Procedures Act effective January 1, 2006.

Stat. Auth.: ORS 183.335 & 183.341
Stats. Implemented: ORS 183.335 & 183.341
Hist.: CD 34-1980, f. & ef. 11-7-80; CD 3-1985(Temp), f. & ef. 4-26-85; CD 9-1985, f. & ef. 7-26-85; CD 2-1986(Temp), f. & ef. 1-31-86; CD 9-1986, f. & ef. 4-18-86; CD 1-1991, f. & cert. ef. 1-9-91; CD 5-1995, f. 2-22-95, cert. ef. 3-1-95; DOC 18-1999(Temp), f. & cert. ef. 10-28-99 thru 4-25-00; DOC 9-2000, f. & cert. ef. 4-14-00; DOC 17-2003, f. & cert. ef. 12-12-03; DOC 4-2007, f. & cert. ef. 7-20-07

291-001-0051

Inmate Written Submissions on Proposed Rules

In accordance with ORS 183.335(3)(b) and 1999 Oregon Laws, Chapter 123, inmate participation to provide comments on the proposed adoption, amendment or repeal of any Department of Corrections administrative rule is limited to written submissions.

Stat. Auth.: ORS 183.335 & ORS 183.341
Stats. Implemented: ORS 183.335 & ORS 183.341
Hist.: DOC 18-1999(Temp), f. & cert. ef. 10-28-99 thru 4-25-00; DOC 9-2000, f. & cert. ef. 4-14-00

291-001-0060

Mailing List Fees

(1) Any individual, organization representing more than ten individuals, or agency may request to be included in the department's mailing list for notification of any proposed adoption, amendment, or repeal of any department rule. The subscription fee to be on the mailing list is $35 annually. The fee established under this rule does not apply to any federal, state, county, or local government entity. Mailings are created for interested persons who want to receive notice of administrative rules promulgated by the Department of Corrections. The request must be sent to the Department of Corrections, Rules Coordinator, 2575 Center St. NE, Salem, OR 97301-4667.

(2) Mail List Subscription Renewal: One annual billing will be sent in July of each year. Subscriptions fees must be paid by September 1 of each year. Government agencies or entities will be sent a confirmation notice and an opportunity to renew their subscription. Anyone not requesting renewal of subscription will be removed at the end of October.

Stat. Auth.: ORS 183.335 & ORS 183.341
Stats. Implemented: ORS 183.335 & ORS 183.341
Hist.: CD 5-1995, f. 2-22-95, cert. ef. 3-1-95; DOC 18-1999(Temp), f. & cert. ef. 10-28-99 thru 4-25-00; DOC 9-2000, f. & cert. ef. 4-14-00

291-001-0080

Copies of Department Permanent and Temporary Rules, and Fees

(1) Individuals or organizations requesting copies of the department's permanent or temporary rules, who are not on the department's mailing list, shall be required to prepay to the department a fee of $.50 per page in accordance with the department's rule on Release of Public Record. Requests for copies of department temporary or permanently adopted rules must be in writing and directed to the Rules Coordinator, Oregon Department of Corrections, 2575 Center Street NE, Salem, OR 97301-4667.

(2) The department's notices of intended rulemaking and permanent and temporary rules will be available for review by inmates in manual set(s) located in facility law libraries. If necessary, copies of the department's notices of intended rulemaking will be available to inmates upon request.

(3) Inmates may obtain copies of department permanent or temporary rules in facility law libraries in those facilities with photocopying machines designated for inmate use. Inmates will use their copy cards purchased through the canteen to obtain such copies.

(4) Inmates may also obtain copies of department's permanent or temporary rules by submitting a written request to the department's Rules Coordinator, together with a completed Withdrawal Request form (CD 28). Inmates will be required to pay a fee of $.50 per page, in accordance with the department's rule on Release of Public Records, and must have sufficient funds in their department trust account to cover the photocopying fee at the time of the request. The fee will be debited from the trust account of the inmate to whom the copies are provided.

Stat. Auth.: ORS 183.335 & ORS 183.341
Stats. Implemented: ORS 183.335 & ORS 183.341
Hist.: CD 5-1995, f. 2-22-95, cert. ef. 3-1-95; DOC 18-1999(Temp), f. & cert. ef. 10-28-99 thru 4-25-00; DOC 9-2000, f. & cert. ef. 4-14-00

291-001-0110

Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between Department of Corrections' (department) employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.

(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(3) Nothing in this rule affects any confidentiality created by other law.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Disclosures by Mediator: A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)-(j) of section (7) of this rule.

(6) Confidentiality and Inadmissibility of Mediation Communications: Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation and the department have agreed in writing to the confidentiality of the mediation; and

(b) The person agreeing to the confidentiality of the mediation on behalf of the department:

(A) Is neither a party to the dispute nor the mediator, and

(B) Is designated by the department to authorize confidentiality for the mediation; and

(C) Is at the same or higher level in the department than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the department, unless the Director or Deputy Director is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor's designee.

(7) Exceptions to confidentiality and inadmissibility:

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records; as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law;

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person;

(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law;

(e) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree;

(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosur;.

(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement;

(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements;

(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute;

(j) The mediator may report the disposition of a mediation to the department at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The department or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.

(9) When a mediation is subject to section (6) of this rule, the department will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.224,36.230(4)
Hist.: DOC 4-2007, f. & cert. ef. 7-20-07

291-001-0115

Confidentiality and Inadmissibility of Mediation Communications

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.

(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (8) of this rule.

(5) Mediations Excluded. Sections (6)–(9) of this rule do not apply to:

(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or

(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters; or

(c) Mediation in which the only parties are public bodies; or

(d) Mediation in which two or more public bodies and a private entity are parties if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential; or

(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.

(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)–(d), (j)–(l), (o)–(p) and (r)–(s) of section (8) of this rule.

(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (8) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation sign an agreement to mediate specifying the extent to which mediation communications are confidential; and,

(b) If the mediator is the employee of or acting on behalf of a state agency, the mediator or an authorized representative of the agency signs the agreement.

(8) Exceptions to Confidentiality and Inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any document that, before its use in a mediation, was a public record as defined in ORS 192.410 remains subject to disclosure to the extent provided by ORS 192.410 to 192.505 and may be introduced into evidence in a subsequent proceeding.

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.

(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.

(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:

(A) A request for mediation, or

(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation, or

(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712, or

(D) A strike notice submitted to the Employment Relations Board.

(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:

(A) Attorney client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege, or

(B) Attorney work product prepared in anticipation of litigation or for trial, or

(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency, or

(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation, or

(E) Settlement concepts or proposals, shared with the mediator or other parties.

(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the agency director, administrator or board determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.

(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under ORS 17.095 or state or federal law requires the terms to be confidential.

(p) In any mediation in a case that that has been filed in court or when a public body’s role in a mediation is solely to make mediation available to the parties the mediator may report the disposition of the mediation to that public body or court at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency conducting the mediation or making the mediation available or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232.

(q) An agreement to mediate is not confidential and may be introduced into evidence in a subsequent proceeding.

(r) Any mediation communication relating to child abuse that is made to a person required to report child abuse under ORS 419B.010 is not confidential to the extent that the person is required to report the communication.

(s) Any mediation communication relating to elder abuse that is made to a person who is required to report elder abuse under ORS 124.050 to 124.095 is not confidential to the extent that the person is required to report the communication.

(9) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. The agreement to mediate also must refer to this rule. Violation of this provision does not waive confidentiality or inadmissibility.

Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.224, 36.228, 36.230, 36.232
Hist.: DOC 2-2017, f. & cert. ef. 3-9-17

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