S055839, Opinion — O'Hara v. Board of Parole

41
Argued and submitted December 10, 2008, decision of Court of Appeals reversed;
order of Board of Parole and Post-Prison Supervision reversed, and case remanded
to Board of Parole and Post-Prison Supervision for further proceedings
March 5, 2009
THOMAS EDWARD O'HARA,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA Al30572; SC S055839}
203 P3d 213

42 	O'Hara v. Board of Parole
CJS, Pardon and Parole § 79.
En Banc
On review from the Court of Appeals.*
Kristin A. 	Carveth, 	Deputy Public Defender, 	Salem,
argued the cause and filed the briefs for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services, Salem.
Jeremy Rice, Assistant Attorney General, argued the
cause and filed the brief for respondent on review. With him
on the brief were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor General.
BALMER,J.
The decision of the Court of Appeals is reversed. The order
of the 	Board of Parole 	and 	Post-Prison Supervision is
reversed, and the case is remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.
* On judicial review from the Board of Parole and Post-Prison Supervision.
218 Or App 229, 179 P3d 752 (2008).

Cite as 346 Or 41 (2009) 	43
BALMER,J.
This administrative case raises a small but impor-
tant issue respecting the procedures by which a party before
an administrative agency can obtain witnesses to testify on
his behalf. The Board of Parole and Post-Prison Supervision
(board) denied petitioner Thomas O'Hara's request to pres-
ent the testimony of eyewitnesses at a hearing on charges
that he had violated the conditions of his post-prison super-
vision, concluding that the testimony would not be relevant.
The board found that petitioner had violated the conditions
and imposed a sanction of 45 days in jail. The Court of
Appeals affirmed without opinion. O'Hara v. Board of Parole,
218 Or App 229, 179 P3d 752 (2008). We allowed review and
now reverse.
The facts pertinent to the issue before us are not dis-
puted. Petitioner was convicted of various crimes and sen-
tenced to prison. After his release from prison, he was placed
on post-prison supervision status. His supervision condi-
tions, among other things, required him to answer his parole
officer's 	questions 	truthfully 	and 	prohibited 	him 	from
associating with known drug users and from possessing
weapons. On March 9, 2005, petitioner's parole officer, Tyler
Frederickson, apparently accompanied by two other parole
officers, 1 visited petitioner at home. One of the officers asked
petitioner if there were "any violations" in his residence. Peti-
tioner responded that there was alcohol on the premises;
however, petitioner was not prohibited from having alcohol.
Petitioner consented to a search of his residence. Petitioner's
girlfriend, Carey Bailey, was present. After an inquiry, the
parole officers discovered that there was an outstanding war-
rant for Bailey's arrest. The parole officers called for assis-
tance and then awaited the arrival of a Salem Police Officer.
The officers searched the house and found petitioner's friend,
Eddie Cortez, hiding in petitioner's closet. Cortez was on
post-prison supervision status for rape and drug offenses and
1 From the record, it is clear that at least two parole officers-Frederickson
and another officer-arrived at petitioner's house together. It is also clear that,
later in the evening, a total of three parole officers were present at petitioner's
house, Frederickson and two others. It is not clear, however, if the third officer
arrived at the same time as the first two or ifhe arrived later, after Frederickson
had called for assistance.

O'Hara v. Board of Parole
also was wanted for a parole violation. The officers searched
Cortez and found marijuana. They also searched petitioner
and found a folding knife. Petitioner was charged with violat-
ing the conditions of his post-prison supervision status by
associating with a known drug user, possessing a weapon,
failing to answer all questions truthfully, and failing to
report for sex offender treatment.
On March 15, 2005, a hearings officer met with peti-
tioner to review his rights in the parole violation process. See
ORS 144.343(3) (describing manner in which notice of rights
is given before parole-violation proceeding). 2 Petitioner filled
out the appropriate sections of a notice-of-rights form, indi-
cating that he wanted a hearing. He supplied the names or
identities of six witnesses who he wanted to testify at the
hearing: Bailey, Cortez, Frederickson, the two parole officers,
and the Salem Police Officer who also was present at peti-
tioner's arrest.
The hearings officer confirmed that petitioner had
reviewed and signed the notice-of-rights form. She acknowl-
edged that petitioner wished to call the six persons who were
present at petitioner's home on March 9, 2005, and stated
that she planned to request the presence of parole officer
Frederickson, but she rejected petitioner's request to call as
witnesses the other parole officers and the police officer. At
that point, petitioner interrupted and said, "But essentially
the people who were there at the time, I can't call as wit-
nesses is what you're telling me." The hearings 	officer
responded that parole officer Frederickson would be there to
"represent what happened." Petitioner countered, "So the
other people who were there who may contradict him when
questions are [raised], I'm not going to be allowed to call
[them]?" She responded, "No. It's not relevant to the-the
allegations." Petitioner insisted, "Actually-actually it is rel-
evant." The hearings officer assured petitioner that she
would explain to him why the witnesses were not relevant.
2 Petitioner was found to be in violation of the condition of his post·prison
supervision, rather than in violation of parole conditions. However, for purposes of
this opinion, the same law applies to post-prison supervision and parole proceed-
ings. See ORS 144.108(2) (requiring hearing that complies with ORS 144.343 and
144.34 7). For ease of reference, we refer to the "parole violation process" rather
than the "post-prison supervision violation process."

Cite as 346 Or 41 	45
Finally, when asked if he had anything to add to the record,
petitioner stated, "Just that I'll object to any denial of any
witnesses." From that colloquy, it appears that the hearings
officer also rejected petitioner's request to call Bailey and
Cortez. 3
On March 28, 2005, a violation hearing was con-
ducted before the same hearings officer who had conducted
petitioner's notice-of-rights hearing. The hearings officer
noted petitioner's previous request to call Bailey, Cortez, and
the officers (other than Frederickson) as witnesses and again
denied the request, concluding that the testimony of those
witnesses was not relevant to the issues to be examined. Peti-
tioner objected to the denial of his request, asserting that
"each one would give testimony as to what they saw at that
time for their part in the actions that Mr. Frederickson has
deemed to be violations." Petitioner further indicated that he
would address each matter as it came up and "tell what each
one of those witnesses would have presented and the ques-
tions that I would have asked them, and what they may have
stated at that time[.]" Later in the hearing, petitioner stated
that Bailey, if she had been allowed to testify, would have
stated that she never had told petitioner that she had any
outstanding warrants. Petitioner did not, however, make any
particular 	statements 	about 	the 	anticipated 	content 	of
Cortez's testimony.
Petitioner also testified on his own behalf. He stated
that the knife found on his person was used in his work clean-
ing carpets, in preparing food, and in carving wood. 4 He
claimed that he did not know that Cortez was wanted for a
parole violation or that Cortez possessed marijuana. He also
stated that he did not know that Cortez had a conviction for a
drug offense, although he thought that Cortez was a sex
offender. Petitioner admitted that he knew that Cortez was
present in the home, but did not want to "snitch" on him. 5
3 Indeed, at petitioner's subsequent parole-revocation hearing, the hearings
officer stated that she had already denied petitioner's request to call Bailey, Cortez,
and the other officers.
4 The parole officer indicated that permission to use the knife was limited to
work and concluded that petitioner's possession of the knife at home was a
violation.
5 Petitioner stated at the hearing, "I may not have said, 'He's in the closet,' but
I didn't have a problem with them searching the closet, and told them so."

46 	O'Hara v. Board of Parole
The hearings officer found that petitioner had pos-
sessed a weapon and had not answered his parole officer's
questions truthfully when he failed to disclose that he was in
violation of several conditions. 6 The hearings officer recom-
mended a 45-day jail sentence as a sanction. The board
adopted the hearings officer's findings and recommendation.
Petitioner timely sought administrative review of the sanc-
tion order, and the board denied relief in an Administrative
Review Response. Petitioner sought judicial review, and, as
noted, the Court of Appeals affirmed without opinion. Peti-
tioner then sought review in this court, which we allowed.
Orders of the board are subject to judicial review
under ORS 144.335(1), and appellate courts review those
orders under the standards set out in ORS 183.482(8). See
ORS 144.335(3) (so stating). ORS 183.482(8)(b)(C) provides
that the court shall remand an order to the agency issuing
the order if the agency action was "in violation of a constitu-
tional or statutory provision."
Before turning to petitioner's substantive arguments
regarding whether petitioner's proffered witnesses likely
would have provided relevant information and whether the
board was therefore required to issue subpoenas for those
witnesses, we address whether petitioner adequately pre-
served those issues in the parole revocation proceeding. The
board argues that the dispute about petitioner's proffered
witnesses was not preserved because petitioner did not make
an offer of proof at the hearing as to the testimony that the
witnesses would have given. In the alternative, the board
asserts that any offer of proof by petitioner was inadequate.
Petitioner maintains that he adequately informed the hear-
ings officer about the individuals that he wanted to call as
witnesses and why he wanted to call them. Assuming, with-
out deciding, that an unrepresented party in an administra-
tive hearing must make something analogous to an offer of
proof, for the reasons set out below, we hold that what peti-
tioner did here was sufficient.
6 The charge for the failure to tell the truth was based on not disclosing the
knife when asked if he had "any violations" and failing to indicate Cortez's presence
in the house.

Cite as 346 Or 41 	47
Rules of preservation in court proceedings serve sev-
eral purposes, including encouraging the parties to sharpen
the issues and to present them fully and fairly to the trial
court in the first instance, so that the trial court has an oppor-
tunity to make an informed ruling and develop an adequate
record and the opposing party and the reviewing court are
not taken by surprise later. See Peeples v. Lampert, 345 Or
209, 219, 191 P3d 637 (2008) ("Preservation gives a trial
court the chance to consider and rule on a contention, thereby
possibly avoiding an error altogether or correcting one
already made, which in tum may obviate the need for an
appeal."); State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988)
("The purpose of this rule [requiring an offer of proof) is to
assure that appellate courts are able to determine whether it
was error to exclude the evidence and whether any error was
likely to have affected the result of the case."); ORAP 5.45(1)
(claimed error must be preserved in lower court). In making
the determination that an issue has been preserved, "an
appellate court must view the facts in light of the purposes of
fairness and efficiency that underlie the requirement." State
v. Stevens, 328 Or 116, 122, 970 P2d 215 (1998).
Petitioner's statements at the notice-of-rights hear-
ing and the subsequent violation hearing-whether charac-
terized as an "offer of proof' or otherwise-were sufficient to
satisfy the 	purposes that the 	preservation requirement
serves, namely, providing the hearings officer with sufficient
information to make an informed decision as to the admissi-
bility of the proffered testimony and providing procedural
fairness 	to the opposing party. As discussed, petitioner
requested specific witnesses, the request was denied, and
petitioner attempted to explain the relevance of the proffered
testimony based on his limited knowledge of what the wit-
nesses might say. That information was sufficient as to
Bailey, for example, because Bailey's anticipated testimony,
as petitioner described it, would have impeached Frederick.son's
statements about petitioner's knowledge of Bailey's out-
standing warrants and because petitioner implied that her
testimony otherwise would have supported his version of the
facts. Although petitioner did not specifically recount the tes-
timony that Cortez would have given, he stated that Cortez
was present at the house during the events in question, and it

48 	O'Hara v. Board of Parole
is apparent from petitioner's request to call him as a witness
that he thought that Cortez would support petitioner's ver-
sion of what had occurred and perhaps petitioner's asserted
lack of knowledge about Cortez's drug conviction. Petitioner's
objections adequately informed the hearings officer of the rel-
evance of the proffered witnesses' testimony, given that the
hearings officer knew that the witnesses were present during
the parole officer's visit to petitioner's apartment and that
petitioner had maintained that the witnesses would present
testimony that "dealt specifically with each violation and
their part in that."
Moreover, the board cannot claim surprise that peti-
tioner would request those witnesses to testify. Petitioner
first requested the attendance of his witnesses six days after
he was taken into custody, when the hearings officer met
with him to review his notice of rights. Thus, the board had
notice of whom petitioner wished to call as witnesses before
the parole revocation hearing.
The board contends that petitioner failed to make a
formal offer of proof as to the anticipated testimony of the
witnesses who he wanted to testify on his behalf. That might
be an appropriate objection in formal litigation. An informal
administrative hearing, however, does not require the same
level of formality as litigation in a court of law. The parole
revocation proceeding at issue here is conducted in accor-
dance with a statute and administrative rules, rather than
the Oregon Rules of Civil Procedure, see generally ORS
144.343 (describing procedure for parole-revocation hearing),
and the offender frequently is not represented by counsel. See
ORS 144.343(3)(£), (4)(d) (describing requirements for right
to court-appointed counsel). No rule or case law applicable to
this proceeding requires an offer of proof of the kind one
encounters in litigation in court, and, indeed, such a require-
ment might be difficult to administer. In civil or criminal lit-
igation, an attorney would have an opportunity to investigate
and speak with potential witnesses and could be expected to
provide an offer of proof if the proffered evidence were
rejected. Here, petitioner was taken into custody at the same
time that Bailey and Cortez were arrested. There is no indi-
cation that petitioner had the ability to communicate with

Cite as 346 Or 41 (2009) 	49
those witnesses or arrange for their participation at his hear-
ing without the assistance of the hearings officer or board.
Neither is there any indication that the board or the hearings
officer offered petitioner any such assistance-indeed, the
record suggests to the contrary.
The board concedes that Cortez was a witness who
possessed relevant information, but criticizes petitioner's
failure to preserve his arguments for review, because he
failed to make an offer of proof with sufficient specificity. It
was insufficient, the board argues, for petitioner to tell the
hearings officer nothing more than the fact that Cortez was
present when the parole officer searched the home and would
testify concerning what he saw. The board further argues
that petitioner's argument that Bailey's testimony could be
used to impeach the parole officer's credibility "is not pre-
served* * *because he never presented that theory of admis-
sibility to either the hearings officer or the Court of Appeals."
There is no requirement, however-in statute, rule, or case
law-that a party offer a "theory of admissibility" to support
the testimony of an eyewitness to the very events at issue in
the informal hearing. The board faults the level of specificity
of petitioner's arguments but fails to address the fact that he
made straightforward and accurate statements about the rel-
evance of the testimony of particular witnesses who, the
board concedes, were eyewitnesses to the events at issue.
Petitioner sufficiently preserved his arguments for
review by providing enough information to demonstrate that
the witnesses who he wanted to call likely had some knowl-
edge of relevant facts. The hearings officer responded by
asserting that the requested witnesses knew nothing that
was relevant-a blanket assertion that even the board now
recognizes was too sweeping. In the face of the hearings offi-
cer's unwavering resistance to petitioner's request, petitioner
did not have to do more to preserve the relevance issue for
review.
We turn to the issue whether petitioner had a right
to present the proffered testimony. Even prior to the hearing,
petitioner was entitled to be informed of, among other rights,
his "right to present * * * persons with relevant information
at the hearing unless it has been determined that informants

50 	O'Hara v. Board of Parole
would be subject to risk of harm if their identity were dis-
closed." 	ORS 	144.343(3)(d); 	see 	also 	OAR 	255-075-0025
(detailing notice-of-rights requirements). At the revocation
hearing itself, petitioner had the right "[t]o present evidence
on [his] behalf," including "the right to present * * * persons
with relevant information regarding the alleged violations[.]"
ORS 	144.343(4)(a). Similarly, OAR 255-075-0036(3) 	pro-
vides, "The offender may present witnesses who have rele-
vant information[.]" In sum, petitioner had a right to present
the witnesses' testimony as long as that testimony was "rel-
evant" to the issues to be resolved in the hearing.
Relevance does not pose a high standard for admis-
sibility. We agree with the parties that whether information
is relevant for purposes of the statutes and rules that apply to
this proceeding is determined by the same definition of "rel-
evant evidence" that appears in Rule 401 of the Oregon
Evidence Code: "evidence having any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it
would be without the evidence."
Petitioner contends 	that 	testimony from 	Cortez
would have been relevant because Cortez was present and
because Cortez would have testified about petitioner's knowl-
edge of Cortez's drug history and possession of drugs, which
would have provided a defense to the charge that petitioner
was associating with a known drug user. Likewise, petitioner
asserts that Bailey would have provided testimony about
petitioner's 	knowledge 	of Cortez's 	drug 	possession 	and
Bailey's own outstanding warrants, as well as testimony
regarding petitioner's defense that the knife found in his pos-
session was used for work. Given the nature of the allega-
tions against petitioner and the undisputed fact that both
witnesses were present at the time of the parole officer's visit,
we conclude that those witnesses reasonably could have been
expected to provide relevant evidence. Whether or not Bailey
and Cortez would have been useful percipient witnesses of
the events that transpired when petitioner was arrested-
and their testimony regarding those events might have been
useful to petitioner-they would have offered some evidence
of petitioner's state of mind with respect to two of petitioner's
alleged violations of the conditions of post-prison supervision,

Cite as 346 Or 41 (2009) 	51
associating with known drug users and possessing weapons.
The hearings officer and the board erred in concluding that
the testimony of Cortez and Bailey would not have been rel-
evant to the issues at the hearing.7
The state next argues that any error by the board in
executing the proffered testimony was harmless. The state
contends that, even if Cortez and Bailey had testified as peti-
tioner hoped they would and the hearings officer had credited
their testimony, petitioner still would have been found in vio-
lation of one or more of his post-prison supervision conditions
because that testimony would not have rebutted every fact on
which the board based its revocation decision. That argu-
ment misses the point. Even assuming that, notwithstanding
the testimony of the witnesses that he requested, petitioner
would have been found in violation of one or more conditions,
the testimony of those witnesses would have been relevant to
the sanction imposed. The number of conditions that peti-
tioner violated, the number of instances in which the hear-
ings officer concluded that petitioner had not told the truth to
his parole officer, and petitioner's mental state as to the pos-
session of the knife or the status of Cortez and Bailey all
would have been relevant to the severity of the sanction that
the hearings officer imposed.
The final issue is whether the board erred in failing
to 	issue 	subpoenas 	for 	petitioner's 	witnesses. 	ORS
144.347(1)8 and OAR 255-075-0036 9 provide for the issuance
7 The hearings officer, of course, like a trial judge, has the authority to exclude
even relevant testimony for various reasons, including that the cumulative nature
of the evidence substantially outweighs its probative value. See OEC 403
("Although relevant, evidence may be excluded if its probative value is substan-
tially outweighed by the danger of unfair prejudice, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay or needless presentation of
cumulative evidence.").
8 ORS 144.34 7(1) provides:
"Upon request of any party to the hearing provided in ORS 144.343 and
upon a proper showing of the general relevance and reasonable scope of the tes-
timony to be offered, the board or its designated representatives shall issue
subpoenas requiring the attendance and testimony of witnesses. In any case,
the board, on its own motion, may issue subpoenas requiring the attendance
and testimony of witnesses."
9 OAR 255-075-0036(1) provides:
"Offenders shall make their own arrangements for calling and presenting
witnesses. However, upon the request of any party to the hearing, and upon a

52 	O'Hara v. Board of Parole
of subpoenas to require the attendance of witnesses on a
"proper" showing of the "relevance and reasonable scope" of
the anticipated testimony. If, at the notice-of-rights hearing,
petitioner made a sufficient showing ofrelevance and reason-
able scope, the board was obligated to subpoena the wit-
nesses on his behalf. See ORS 144.34 7(1) ("upon a proper
showing * * * the board or its designated representatives
shall issue subpoenas") (emphasis added). Whether subpoe-
nas should have been issued depends on the relevance of the
witnesses' testimony and whether that testimony would have
been "reasonable [in] scope." We already have concluded that
the witnesses would have offered relevant testimony. And
nothing in this record indicates that their testimony would
not have been reasonable in scope. As described by petitioner,
that testimony would have focused on the events in peti-
tioner's home, petitioner's understanding of the permissible
scope of his use of the knife, and what petitioner knew about
the status of Bailey and Cortez. To the extent that a particu-
lar witness may have started to wander too far afield in tes-
tifying or to present testimony that was cumulative or redun-
dant, the hearings officer could have stepped in to control the
focus of the testimony.
The board argues that petitioner never asked the
hearings officer to issue subpoenas. While it is correct that
petitioner did not use the term "subpoena," he expressed a
clear desire at the notice-of-rights hearing that certain wit-
nesses should be made to appear at his violation hearing. The
hearings officer thus was sufficiently apprised of what peti-
tioner wanted, despite the fact that petitioner did not, in so
many words, ask that subpoenas be issued. Accordingly, the
hearings officer should have issued subpoenas for petitioner's
witnesses or explained why petitioner was not entitled to
have the witnesses subpoenaed, as is contemplated by ORS
144.34 7(1).
In denying petitioner's request to call witnesses who
petitioner specifically identified and who possessed relevant
evidence, without providing a sufficient reason, the board
proper showing of the relevance and reasonable scope of the testimony to be
offered, the Sanction Authority or Hearings Officer shall issue subpoenas
requiring the attendance and testimony of witnesses. In addition, the Sanction
Authority or the Hearings Officer may subpoena documents when relevant."

Cite as 346 Or 41 (2009) 	53
deprived petitioner of the procedural rights set out in ORS
144.343(4)(a). In failing to issue subpoenas, the board failed
to provide petitioner the rights granted by ORS 144.347(1).
Although the hearings officer and the board have discretion
in the conduct of parole revocation hearings, that discretion
must be exercised consistently with statutory requirements.
The board failed to adhere to those statutory requirements in
this case. The board's order therefore must be reversed, and
the 	case 	remanded 	for 	further 	proceedings. 	See 	ORS
183.482(8)(b)(C) (court shall remand to agency when agency's
exercise of discretion violates statutory provision). We there-
fore reverse and remand so that the board may conduct
another hearing at which it considers the relevant testimony
of petitioner's requested witnesses.
The decision of the Court of Appeals is reversed. The
order of the Board of Parole and Post-Prison Supervision is
reversed, and the case is remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.