Current through Register Vol. 63, No. 12, December 1, 2024
(1) The Department may deny, suspend or
revoke the license of any applicant, polygraph examiner or trainee after
written notice, and a hearing if requested, upon finding that the applicant,
polygraph examiner or trainee:
(a) Failed to
meet the minimum standards for a polygraph examiner or trainee as described in
OAR 259-020-0120 and OAR 259-020-0130;
(b) Failed to pass the examination for
licensure within three attempts pursuant to OAR 259-020-0150;
(c) Engaged in conduct that violates any
provisions found within the Act or these rules; or
(d) Engaged in any of the behaviors described
in ORS 703.210. For the purposes of this rule, ORS 703.210(6), demonstrating an
inability or incompetency to carry out the duties of a polygraph examiner or
trainee, is defined as:
(A) Conduct that
violates the law;
(B) Conduct that
violates the practices or standards generally followed in the polygraph
profession;
(C) Conduct that is
prejudicial to the administration of justice;
(D) Conduct that involves
untruthfulness;
(E) The use of test
questions relating to sexual, religious, or political matters, unless such
matters relate to the issue under investigation; or
(F) The deliberate use of unclear,
misleading, circuitous, or ambiguous language in describing or explaining the
relevant issue of the examination or the results of the examination.
(2) In accordance with
ORS 703.140, the Department will immediately suspend the license of a polygraph
examiner or trainee after written Notice, and a hearing if requested, based
upon a finding that the licensee failed to provide written notification of a
change in the licensee's business name, address or contact information as
required by OAR 259-020-0100.
(3)
The Department will initiate a professional standards case upon receipt or
discovery of information that would lead an objectively reasonable person to
conclude that the applicant or licensee has violated the provisions of the Act
or the rules established by the Board for licensure as a polygraph examiner or
trainee. For the purpose of this rule, receipt of information may include, but
is not limited to:
(a) Notification of a
conviction, or any other criminal disposition, of a licensed polygraph
examiner, trainee or applicant; or
(b) Any complaint submitted to the Department
alleging that a licensed polygraph examiner, trainee or applicant may have
engaged in conduct that violates the statutory and administrative rule
requirements for licensure as a polygraph examiner or trainee.
(4) Complaints. All complaints
will be reviewed by the Department to determine if the allegations, if founded,
may violate the statutory and administrative rule requirements for licensure as
a polygraph examiner or trainee. Complaints determined to fall outside of the
Department's jurisdiction will be administratively closed.
(5) Review of a Professional Standards Case
by the Department. When the Department receives factual information from any
source, the Department will review the information to determine if the conduct
may meet statutory and administrative rule requirements for denial, suspension
or revocation as defined in section (1) of this rule.
(a) If the Department determines that the
conduct being reviewed does not meet the statutory and administrative rule
requirements for denial, suspension or revocation, the case will be
administratively closed.
(b) If the
Department determines that the conduct being reviewed may meet the statutory
and administrative rule requirements for denial, suspension or revocation, but
is not supported by adequate factual information, the Department may request
further information from the parties involved or conduct its own investigation
of the matter.
(c) When the
Department determines that the conduct being reviewed may meet the statutory
and administrative rule requirements for denial, suspension or revocation, the
case may be presented to the Board, in consultation with the Director.
(6) Review of a
Professional Standards Case by the Board in Consultation with the Director.
(a) In making a decision to authorize
initiation of proceedings under section (10) of this rule, the Director may
consult the Polygraph Licensing Advisory Committee.
(b) When the Department presents a
professional standards case to the Board, through the Director, a notification
will be sent to the affected applicant or licensee by the Department. The
notification will include the deadlines for the affected person to present
evidence of factors that may support mitigation. The affected person may
present mitigation evidence by one or both of the following:
(A) Submitting documents or written
statements as supporting evidence for mitigation of the conduct under review to
the Department for consideration by the Director and the Board.
(B) Arranging with the Department to present
a verbal statement. Verbal statements are limited to a maximum of five minutes
and must be presented, in person, by the affected person, or the representative
of their choice.
(c) In
order to determine whether or not the conduct engaged in by the applicant or
licensee meets the statutory and administrative rule requirements for denial,
suspension or revocation, the Board, in consultation with the Director, will
review the conduct and consider mitigating and aggravating circumstances.
(d) When the Board, in
consultation with the Director, determines that the conduct being reviewed
meets the statutory and administrative rule requirements for denial, suspension
or revocation and that the conduct reviewed rises to the level to warrant
denial, suspension or revocation of the person's licensure, the affected person
will be ineligible for licensure as a polygraph examiner or trainee for up to
10 years.
(e) The Board, in
consultation with the Director, will determine how long the applicant or
licensee will be ineligible for licensure as a polygraph examiner or trainee
based on the totality of the professional standards case which includes review
of the misconduct and factors supporting aggravation or mitigation pursuant to
this rule.
(f) An individual whose
licensure has been denied, suspended or revoked is prohibited from conducting
polygraph examinations, referring to themselves as a polygraph examiner or
trainee or offering or advertising services as a polygraph examiner or
trainee.
(7)
Ineligibility Period. Any applicant, polygraph examiner or trainee whose
licensure is denied, suspended or revoked will be ineligible to hold any
polygraph examiner or trainee license for a period up to 10 years.
(a) The period of ineligibility will be
included in any Final Order of the Department.
(b) The first day of the ineligibility period
will be based upon the date the conduct or behavior, identified as cause for
denial, suspension or revocation, occurred.
(c) The ineligibility period will cease when
the applicable timeframe stated in the Final Order has been
satisfied.
(d) The prescribed
ineligibility period for subsection (1) (b) of this rule, failure to pass the
examination for licensure, is a period of two years and one day.
(8) The Board's decision to deny,
suspend or revoke certifications will be subject to the contested case
procedure described in section (10) of this rule.
(9) Eligibility for Licensure after
Satisfying an Ineligibility Period.
(a) In
order to be eligible for licensure after satisfying an ineligibility period,
the affected person must meet all of the minimum requirements as described in
OAR 259-020-0120 or OAR 259-020-0130.
(b) Satisfaction of ineligibility period
means the conduct for which the person was denied, suspended or revoked is no
longer a course of behavior that would prohibit them licensure.
(c) Any application for licensure submitted
by a person whose ineligibility period has not been satisfied will be denied
pursuant to section (10) of this rule.
(10) Initiation of Proceedings: Upon
determination that the reason for denial, suspension or revocation is supported
by factual data meeting the statutory and administrative rule requirements, the
Department will prepare a Contested Case Notice.
(a) All contested case notices will be
prepared in accordance with the applicable provisions of the Attorney General's
Model Rules of Procedure adopted under OAR 259-005-0015. The Department will
have a copy of the notice served on the person whose license is being affected.
(b) Response time:
(A) A party who has been served with a
Contested Case Notice of Intent to Deny Licensure has 60 calendar days from the
date of mailing or personal service of the notice in which to file with the
Department a written request for hearing or a written notice withdrawing their
application for consideration.
(B)
A party who has been served with a Contested Case Notice of Intent to Revoke
Licensure has 20 calendar days from the date of mailing or personal service of
the notice in which to file with the Department a written request for hearing.
(C) A party who has been served
with a Contested Case Notice of Intent to Suspend Licensure has 10 calendar
days from the date of mailing or personal service of the notice in which to
file with the Department a written request for hearing.
(c) Default Order: If a timely request for a
hearing is not received, the Contested Case Notice will become a final order
denying, revoking or suspending licensure pursuant to OAR 137-003-0672.
(d) The Department may enter a
Final Order revoking the licensure of a polygraph examiner or trainee upon the
person's withdrawal of a request for hearing and written agreement to accept
the Department's revocation of licensure as a polygraph examiner or trainee. If
the person's licensure as a polygraph examiner or trainee is revoked pursuant
to this subsection, the person is ineligible for licensure as a polygraph
examiner or trainee for 10 years. The Department will deny any application that
the person submits for licensure as a polygraph examiner or trainee, pursuant
to section (10) of this rule, if the 10 year ineligibility period has not been
satisfied.
(11) Upon
receipt of written notification of the suspension or revocation of a license by
the Department, a polygraph examiner or trainee must immediately surrender the
license to the Department.
(12)
Appeal Procedure. Polygraph examiners or trainees aggrieved by the findings and
Order of the Department may file an appeal with the Court of Appeals from the
Final Order of the Department, as provided in ORS 183.480.
(13) A licensed polygraph examiner or trainee
may request the Department accept the surrender of their license.
(a) In considering whether to accept the
request to surrender licensure as a polygraph examiner or trainee, the
Department may request further information from the licensee or conduct its own
investigation to determine if any minimum standards for licensure have been
violated and proceed pursuant to this rule.
(b) If an administrative proceeding has
commenced pursuant to section (10) of this rule, the Department may, in its
discretion, withdraw its Contested Case Notice of Intent and accept the
person's surrender of the polygraph examiner or trainee license.
(c) The polygraph examiner or trainee license
will remain active until the Department accepts the surrender.
(d) Once the surrender has been accepted by
the Department, the individual may no longer conduct polygraph examinations,
refer to themselves as a polygraph examiner or offer or advertise services as a
polygraph examiner.
(14)
Pursuant to ORS 703.220, the Department may restore a suspended or revoked
license to the prior holder upon written application and receipt by the
Department of evidence that the conditions which caused the suspension or
revocation have been corrected to the satisfaction of the Department.
Statutory/Other Authority: ORS 703.230
Statutes/Other Implemented: ORS 703.230, ORS 703.210 &
ORS 703.220
