Current through Register Vol. 63, No. 9, September 1, 2024
(1) If the Secretary of State elects to
conduct a criminal records check, the Secretary of State shall make a fitness
determination about a subject individual based on information provided by the
subject individual under OAR 167-050-0130, 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 consider
the factors in this subsection (2)(a)-(f) in relation to information provided
by the subject individual under OAR 167-050-0130, 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 Secretary of State 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, the
Secretary of State may request to meet with the subject individual, to receive
written materials from him, or both. The subject individual shall meet with the
Secretary of State if requested and provide additional information within a
reasonable period of time, as established by the Secretary of State. The
Secretary of State 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 167-050-0140;
(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
comparable disposition), 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 167-050-0140;
(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)
Potential Outcomes.
(a) Automatic Approval.
The Secretary of State may 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
167-050-0140;
(B) Evidence that
the subject individual has a pending indictment or warrant for a crime listed
in OAR 167-050-0140;
(C) Evidence
that the subject individual has been arrested for a crime listed in OAR
167-050-0140;
(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.
(A) If a fitness
determination under this rule shows evidence of any of the factors identified
in subsection (3)(a)(A)-(F) of this rule, the Secretary of State may approve
the subject individual only if, in evaluating the information described in
subsections (1) and (2), the Secretary of State determines:
(i) That the evidence is not credible;
or
(ii) If the evidence is credible,
that the subject individual acting in the position for which the fitness
determination is being conducted would not pose any risk of harm to the
Secretary of State, its client entities, the State, or members of the
public.
(c)
Restricted Approval.
(A) If the Secretary of
State approves a subject individual under subsection (3)(b) of this rule, the
Secretary of State may restrict the approval to specific job duties,
activities, or locations.
(B) The
Secretary of State must complete a new criminal records check and fitness
determination on the subject individual before removing a
restriction.
(d) Denial.
(A) If a fitness determination under this
rule shows credible evidence of any of the factors identified in subsection
(3)(a)(A)-(F) of this rule and, after evaluating the information described in
subsections (1) and (2) of this rule, the Secretary of State concludes that the
subject individual acting in the position for which the fitness determination
is being conducted would pose any risk of harm to the Secretary of State, its
client entities, the State, or members of the public, the Secretary of State
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, the
Secretary of State shall deny the employment of the individual. A person may
not appeal any determination made based on a refusal to consent.
(C) If a subject individual is denied as not
fit, the subject individual may not be employed by or provide services as a
contractor to the Secretary of State in a position covered by OAR
167-050-0120(2)(a)-(e).
(4) Final Order. A completed final fitness
determination is final unless the affected subject individual appeals by
requesting either a contested case hearing as provided by OAR 167-050-0190(2),
or an alternative appeals process as provided by 167-050-190(8).
Stat. Auth.: ORS
181.534 &
177.075
Stats. Implemented: ORS
181.534(9)
