EXHIBIT A
438-006-0095
Change of Administrative Law Judge
(1) Except as provided in section
[(3)] (4) of this rule, an Administrative Law Judge shall disqualify
himself or herself from a proceeding in which the Administrative Law Judge's
impartiality reasonably may be questioned, including, but not limited to, instances
when:
(a) The Administrative Law Judge has
a bias or prejudice concerning a party, a representative, or any other participant
in the proceeding before the Administrative Law Judge, or has knowledge, obtained
from sources outside the proceeding, of disputed evidentiary facts concerning
the proceeding;
(b) The Administrative Law Judge served
as a lawyer in the matter in controversy, or a lawyer with whom the Administrative
Law Judge previously was associated served during the period of association
as a lawyer in the matter, or the Administrative Law Judge or the lawyer has
been a material witness in the matter;
(c) The Administrative Law Judge knows
that the Administrative Law Judge, individually or as a fiduciary, or the Administrative
Law Judge's spouse, parent or child, wherever residing, or any other person
residing in the Administrative Law Judge's household has a financial interest
in the subject matter in controversy, is a party to the proceeding or has any
other interest that could be substantially affected by the outcome of the proceeding;
(d) The Administrative Law Judge, the
Administrative Law Judge's spouse, parent or child, wherever residing, or any
other person residing in the Administrative Law Judge's household:
(A) Is a party to the proceeding, or
an officer, director, partner or trustee of a party;
(B) Is acting as a lawyer in the proceeding;
or
(C) Is, to the Administrative Law Judge's
knowledge, likely to be a material witness in the proceeding.
(2) When an Administrative Law Judge disqualifies himself or herself
from a proceeding under this rule, the Administrative Law Judge is not required
to disclose the reason or reasons for the disqualification except as required
by law.
[(2)] (3) For purposes of
this rule:
(a) "Fiduciary" includes relationships
such as personal representative, trustee, conservator and guardian;
(b) "Financial interest" means
ownership of a legal or equitable interest, however small, or a relationship
as director, advisor or other active participant in the affairs of a party,
except that:
(A) Ownership in a mutual or common investment
fund that owns securities is not a "financial interest" unless the
Administrative Law Judge participates in the management of the fund;
(B) Holding an office in an educational,
religious, charitable, fraternal or civic organization is not a "financial
interest" in property of the organization;
(C) The proprietary interest of a policy
holder in a mutual insurance company, a depositor in mutual savings association,
or a similar proprietary interest is a "financial interest" in the
organization only if the outcome of the proceeding could substantially affect
the value of the interest; and
(D) Ownership of government securities
is a "financial interest" in the issuer only if the outcome of the
proceeding could substantially affect the value of the securities.
[(3)] (4) An Administrative Law Judge who would be disqualified
under this rule may, rather than disqualify himself or herself from the proceeding,
disclose to the parties the basis of the disqualification. If, after such disclosure,
any party wishes the Administrative Law Judge to disqualify himself or herself
from the proceeding, the Administrative Law Judge shall do so. If, after such
disclosure, the parties all agree in writing or on the record that the Administrative
Law Judge's impartiality is not in question because of the information disclosed
to the parties, the Administrative Law Judge may participate in the proceeding.
Any writing signed by or on behalf of all parties shall be incorporated into
the record of the proceeding, or, in the case of a mediation, made part of the
Administrative Law Judge's mediation file.
[(4)] (5) Immediately upon discovering
the asserted basis, any party may request that an Administrative Law Judge disqualify
himself or herself from a proceeding on any basis set forth in section (1) of
this rule. If the Administrative Law Judge does not then disqualify himself
or herself, any party may promptly file a request for disqualification of the
Administrative Law Judge with the Presiding Administrative Law Judge. Such a
request shall include an affidavit setting out, in detail, the basis for the
requested disqualification.
[(5)] (6) Following review
of the request for disqualification and accompanying affidavit, the Presiding
Administrative Law Judge will determine, in his/her discretion, whether a hearing
on the allegations in the affidavit shall be held. Following such a hearing
or following the Presiding Administrative Law Judge's determination that a hearing
will not be held, the Presiding Administrative Law Judge shall issue a written
decision concerning the disqualification request. If the Presiding Administrative
Law Judge determines that the Administrative Law Judge should be disqualified,
the Presiding Administrative Law Judge shall so state and explain the basis
for his/her decision, and shall assign another Administrative Law Judge to the
case. If the Presiding Administrative Law Judge determines that the Administrative
Law Judge should not be disqualified, the Presiding Administrative Law Judge
shall so state and explain the basis for his/her decision, and the case shall
proceed with the Administrative Law Judge.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88;
WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03