Current through Register Vol. 63, No. 9, September 1, 2024
(1) When the
Department receives information from any source that a certified fire service
professional or an applicant may not meet the established standards for fire
service professional certification, the Department will review the information
to determine if substantial evidence exists to support denial or revocation of
certifications under the statutory and administrative rule requirements for
fire service professional certification.
(2) The Department will not open a case on a
conviction or conduct that was previously reviewed by the Department or the
Fire Policy Committee and the Board and determined not to violate the standards
for fire service professional certifications or resulted in no action to deny
or revoke certification using the administrative rules in effect at the time of
the review.
(a) Nothing in this rule precludes
the Department from opening a case upon discovery of additional mandatory or
discretionary grounds for denial or revocation.
(b) Nothing in this rule precludes the
Department or the Fire Policy Committee and the Board from considering previous
misconduct or criminal behavior as an aggravating circumstance in a separate
discretionary case review.
(3) In professional standards cases where the
Department determines that the conduct being reviewed violates the
certification standards established by the Board as mandatory grounds for
denial or revocation as defined in OAR 259-009-0120(2), the Department will
administratively process the denial or revocation.
(4) In professional standards cases based on
a discharge for cause, the Department may stay any action on the fire service
professional's certifications until a final employment arbitration
determination has been made. The Department will administratively close cases
in which an arbitrator's opinion finds that the underlying facts did not
support the allegations of misconduct.
(5) The Department will defer review of
discretionary convictions, as defined in OAR 259-009-0120(3), when all of the
fire service professional's certifications are lapsed. Upon receipt of an
application for certification or a request for reinstatement, the Department
will proceed with the review process.
(6) When the Department submits a
discretionary professional standards case to the Fire Policy Committee, the
Department will notify the fire service professional. The notification will
include the deadlines for the fire service professional to provide evidence of
factors that may support mitigation. A fire service professional may provide
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 Fire Policy Committee and Board consideration.
(b) Arranging with the Department to attend a
Fire Policy Committee meeting and present a verbal statement. The verbal
statement is limited to a maximum of five minutes and must be presented in
person by the fire service professional or their representative.
(7) Fire Policy Committee Review
of Discretionary Professional Standards Cases.
(a) In professional standards cases where the
Department determines that the conduct being reviewed violates the
certification standards established by the Board as discretionary grounds for
denial or revocation as defined in OAR 259-009-0120(3), the Department will
submit its findings to the Fire Policy Committee for disposition. The Fire
Policy Committee's disposition will be submitted as a recommendation to the
Board for approval.
(b) The Fire
Policy Committee will review the professional standards case to:
(A) Affirm, modify or negate the
Department-identified violations;
(B) Identify aggravating and mitigating
circumstances unique to the professional standards case; and
(C) Determine how the violations and
aggravating or mitigating circumstances impact the fire service professional's
certification.
(c)
Aggravating and mitigating circumstances are conditions, factors or actions
that increase or decrease the total impact that the conviction has on
certification as a fire service professional.
(A) Aggravating circumstances generally
increase the severity of the impact the conviction has on certification and
may, in addition to the conviction, be grounds to deny or revoke certification.
Circumstances that may be considered aggravating include, but are not limited
to, the degree of the conviction, prior misconduct or criminal behavior, lack
of accountability, number of persons involved in the underlying conduct, number
of separate incidents, passage of time from date of incident or incidents, or
any other circumstance the Department or the Fire Policy Committee consider
aggravating given the specific issues in the case.
(B) Mitigating circumstances do not excuse or
justify the conduct, but generally decrease the severity of the impact the
conviction has on certification. Circumstances that may be considered
mitigating include, but are not limited to, written letters of support,
truthfulness, cooperation during the incident or investigation, or any other
circumstance the Department or the Fire Policy Committee consider mitigating
given the specific issues in the case.
(8) Board Review of a Professional Standards
Case. The Board will review the case, aggravation and mitigation, and the Fire
Policy Committee's recommendations to determine whether to approve all or part
of the Fire Policy Committee's recommendations.
(a) Upon initial consideration, the Board may
either approve the recommendation in its entirety or defer a decision and
return the recommendation to the Fire Policy Committee.
(b) The Board may approve the Fire Policy
Committee's recommendation by a majority vote of the members present.
(c) The Board, by a majority vote of the
members present, may defer its decision and return the recommendation with
instructions to the Fire Policy Committee to reconsider the recommendation. The
Board may also instruct the Department to obtain further information and revise
the case for a second review and recommendation by the Fire Policy Committee.
The Board may return a recommendation only once.
(A) The Fire Policy Committee must reconsider
its recommendation, along with the Board's instructions and any new information
the Department submits to the Fire Policy Committee.
(B) The Fire Policy Committee will submit a
revised or renewed recommendation to the Board.
(d) The Board will review the revised or
renewed recommendation to decide whether to approve all or part of the
recommendation. The Board may approve the recommendation by a majority vote of
the members present and may disapprove the recommendation by a two-thirds vote
of the total voting members. A failure to achieve a two-thirds vote to
disapprove a recommendation will result in the approval of the recommendation.
(A) When the Board disapproves a
recommendation that proposes no action be taken to deny or revoke
certification, the Board must make its own determination as to whether the fire
service professional has engaged in conduct that violates the discretionary
grounds for denial or revocation of certifications and consider aggravation and
mitigation.
(B) The Board may
identify their own findings or adopt all or any part of the Fire Policy
Committee's findings as the basis for the determination.
(C) If the Board review results in a
determination to deny or revoke fire service professional certifications, the
Department will issue a Notice of Intent pursuant to OAR 259-009-0130. Where
the Board review results in no action to deny or revoke fire service
professional certifications, the issued Notice of Intent will be withdrawn and
the professional standards case will be closed.
(9) Scope of Denial and Revocation. When the
Department denies or revokes fire service professional certifications pursuant
to OAR 259-009-0115 through OAR 259-009-0130, the denial or revocation will
encompass all fire service professional certifications subject to OAR chapter
259 division 9.
(10) Reapplication
Following a Denial or Revocation for Discretionary Grounds. A fire service
professional whose certifications have been denied or revoked for discretionary
grounds, as defined in OAR 259-009-0120(3), may apply for certification after a
minimum of one year has passed since the Board's approval of the denial or
revocation.
(a) Applications for
certification require additional discretionary review if:
(A) The applicant's criminal convictions
still meet the discretionary grounds for denial or revocation, as defined in
OAR 259-009-0120(3)(b) or (c); or
(B) The applicant was denied or revoked for
falsification, as defined in OAR 259-009-0120(3)(a), and the application is
received within 10 years of the denial or revocation.
(b) Applications requiring additional
discretionary review will be submitted to the Fire Policy Committee for
disposition. The Fire Policy Committee will review the case in accordance with
section (7) of this rule. The Fire Policy Committee must consider the
additional time that has passed since the initial denial or revocation occurred
as mitigation.
(c) Applications for
certification do not require additional discretionary review if the case
resulted in no action to deny or revoke certification, if the date of the
conviction no longer requires review per OAR 259-009-0120(3)(b) or (c), or if
10 years have passed since the initial denial or revocation for
falsification.
(11)
Applications for certification submitted by a fire service professional whose
certifications have been denied or revoked will be denied pursuant to OAR
259-009-0130 when:
(a) The certifications were
denied or revoked for mandatory grounds as defined in OAR 259-009-0120(2);
or
(b) The certifications were
denied or revoked for discretionary grounds as defined in OAR 259-009-0120(3)
and the one-year period following Board approval of the denial or revocation
has not passed.
Statutory/Other Authority: ORS
181A.410
Statutes/Other Implemented: ORS
181A.410,
ORS
181A.630,
ORS
181A.640 & ORS
181A.650
