Petitioner seeks review of an order postponing his parole release date because of serious misconduct. The only issue is whether the Board of Parole (Board) may postpone a parole release date without a hearing.
The Board cites OAR 255-50-010(1) as its authority to postpone a parole release date without a hearing. It provides:
“When the Board is notified by the Administrator of the Corrections Division that an extension of a prison term has been recommended, a panel or the Full Board may conduct a hearing to determine whether the misconduct requires extension. The recommendation also may be resolved by Administrative File Pass.”
OAR 255-50-010(1) conflicts with the clear and unambiguous language of ORS 144.125(2):
“The board shall postpone a prisoner’s scheduled release date if it finds, after a hearing, that the prisoner engaged in serious misconduct during confinement. The board shall adopt rules defining serious misconduct and specifying periods of postponement for such misconduct.” (Emphasis supplied.)
The requirement of a hearing in ORS 144.125(2) cannot be eliminated by an administrative rule. It is elementary that an agency may not amend, alter, enlarge or limit the specific terms of a legislative enactment by rule. Miller v. Employment Division, 290 Or 285, 289, 620 P2d 1377 (1980); Oregon Educ. Ass’n. v. Eugene School Dist. 4J, 53 Or App 722, 727, 633 P2d 28 (1981). Accordingly, OAR 255-50-010(1) is invalid, as is the Board’s decision to postpone petitioner’s release date.
Reversed and remanded for reconsideration.