Current through Register Vol. 63, No. 12, December 1, 2024
(1) If the Department elects to conduct a
criminal records check, an authorized designee shall make a fitness
determination about a subject individual based on information provided by the
subject individual under OAR 137-007-0230(1), the criminal records check(s)
conducted, if any, and any false statements made by the subject
individual.
(2) In making a fitness
determination about a subject individual, an authorized designee shall also
consider the factors in subsections (a)-(f) in relation to information provided
by the subject individual under OAR 137-007-0230(1), any LEDS report or
criminal offender information obtained through a criminal records check, and
any false statement made by the subject individual. To assist in considering
these factors, the authorized designee may obtain any other information deemed
relevant from the subject individual or any other source, including law
enforcement and criminal justice agencies or courts within or outside of
Oregon. To acquire other relevant information from the subject individual, an
authorized designee may request to meet with the subject individual, to receive
written materials, or both. The subject individual shall meet with the
authorized designee if requested and provide additional information within a
reasonable period of time, as established by the authorized designee. The
authorized designee will use all collected information in considering:
(a) Whether the subject individual has been
arrested, pled nolo contendere (or no contest) to, been convicted of, found
guilty except for insanity (or a comparable disposition) of, or has a pending
indictment for a crime listed in OAR 137-007-0270;
(b) The nature of any crime identified under
subsection (a);
(c) The facts that
support the arrest, conviction, finding of guilty except for insanity, or
pending indictment;
(d) The facts
that indicate the subject individual made a false statement;
(e) The relevance, if any, of a crime
identified under subsection (a) or of a false statement made by the subject
individual to the specific requirements of the subject individual's present or
proposed position, services or employment; and
(f) Intervening circumstances, to the extent
that they are relevant to the responsibilities and circumstances of the
services or employment for which the fitness determination is being made,
including, but not limited to, the following:
(A) The passage of time since the commission
or alleged commission of a crime identified under subsection (a);
(B) The age of the subject individual at the
time of the commission or alleged commission of a crime identified under
subsection (a);
(C) The likelihood
of a repetition of offenses or of the commission of another crime;
(D) The subsequent commission of another
crime listed in OAR 137-007-0270;
(E) Whether a conviction identified under
subsection (a) has been set aside or pardoned, and the legal effect of setting
aside the conviction or of a pardon; and
(F) A recommendation of an
employer.
(3)
Possible Outcomes of a Final Fitness Determination:
(a) Automatic Approval. An authorized
designee shall approve as fit a subject individual if the information described
in sections (1) and (2) shows none of the following:
(A) Evidence that the subject individual has
pled nolo contendere (or no contest) to, been convicted of, or found guilty
except for insanity (or comparable disposition) of a crime listed in OAR
137-007-0270;
(B) Evidence that the
subject individual has a pending indictment for any crime listed in OAR
137-007-0270;
(C) Evidence that the
subject individual has been arrested for any crime listed in OAR
137-007-0270;
(D) Evidence of the
subject individual having made a false statement; or
(E) Any discrepancy between the criminal
offender information and other information obtained from the subject
individual.
(b)
Evaluative Approval. If a fitness determination under this rule shows evidence
of any of the factors identified in paragraphs (3)(a)(A)-(E) of this rule, an
authorized designee may approve as fit the subject individual only if, in
evaluating the information described in sections (1) and (2), the authorized
designee determines (i) that the evidence is not credible; or (ii) that the
subject individual acting in the position for which the fitness determination
is being conducted would not pose a risk of harm to the Department, its client
entities, the State, or members of the public;
(c) Restricted Approval:
(A) If an authorized designee approves as fit
a subject individual under subsection (3)(b) of this rule, the authorized
designee may restrict the approval to specific activities or
locations;
(B) An authorized
designee shall complete a new criminal records check and fitness determination
under this rule on the subject individual prior to removing a
restriction.
(d) Denial:
(A) If a fitness determination under this
rule shows credible evidence of any of the factors identified in paragraphs
(3)(a)(A)-(E) of this rule and, after evaluating the information described in
sections (1) and (2) of this rule, an authorized designee concludes that the
subject individual acting in the position for which the fitness determination
is being conducted would pose a risk of harm to the Department, its client
entities, the State, or members of the public, the authorized designee shall
deny the subject individual as not fit for the position;
(B) Refusal to Consent. If a subject
individual refuses to submit or consent to a criminal records check including
fingerprint identification, the authorized designee shall deny the subject
individual as not fit without further assessment under the fitness
determination process;
(C) If a
subject individual is denied as not fit, the subject individual may not be
employed by or provide services as a volunteer or contractor to the Department
in a position covered by OAR 137-007-0220(2)(a)-(c).
(4) Expunged Juvenile Record.
Under no circumstances shall a subject individual be denied under these rules
on the basis of the existence or contents of a juvenile record that has been
expunged pursuant to ORS
419A.260 and
419A.262.
(5) Final Fitness Determination. A completed
final fitness determination is final unless the affected subject individual
appeals by requesting a contested case hearing as provided by OAR
137-007-0300(2).
Stat. Auth.: ORS
181.534,
180.267
Stats. Implemented: ORS
181.534(9)
