Current through Register Vol. 63, No. 3, March 1, 2024
(1) In order to conduct a background check on
an SI, BCU must receive authorization from the SI allowing the criminal records
check and abuse check to proceed. If the SI refuses to provide authorization
for the background check, BCU terminates the background check immediately and
the Department may not allow the SI to work, volunteer, be employed, reside, or
otherwise perform in positions covered by these rules.
(2) The Department conducts a criminal
records checks on an SI through LEDS maintained by the Oregon State Police
(OSP) in accordance with ORS chapter 181A and the rules adopted pursuant
thereto (see OAR Chapter 125, division 007 and Chapter 257, division
15).
(3) If a national criminal
records check of an SI is necessary, OSP provides the Department the results of
criminal records checks conducted pursuant to ORS
181A.195,
including fingerprint identification, through the FBI.
(4) Only Department employees who are ADs may
be authorized and approved to receive and evaluate criminal offender
information and other criminal records information, and to conduct fitness
determinations.
(5) The Department
submits the criminal records check to BCU through ORCHARDS. In accordance with
OAR 125-007-0220, the criminal records check request must include the following
information regarding an SI:
(a) Legal name
and aliases;
(b) Date of
birth;
(c) Address and recent
residency information;
(d) Driver
license or identification card information;
(e) Disclosure of potentially disqualifying
criminal history:
(A) While the SI may provide
minimal information to meet this requirement, the Department finds that more
details from the SI provides positive information for the weighing test in OAR
407-007-0060. The SI may disclose details of potentially disqualifying
convictions and potentially disqualifying criminal conditions at a minimum, and
may disclose all arrests, charges, and convictions regardless of outcome or
date of occurrence. Disclosure includes any juvenile or adult record of
custody, arrests, or charges; and the outcome of custody, arrests, or charges
against a juvenile or adult.
(B)
The disclosed crimes and the dates must reasonably match the SI's criminal
offender information and other criminal history information, as determined by
the Department.
(C) The SI is not
required to disclose any criminal history which has been expunged or set aside
by a court in any jurisdiction. However, if the SI does disclose expunged or
set aside criminal history, the Department may not consider the criminal
history as potentially disqualifying or in a weighing test if the Department
has proof that the criminal history has been expunged or set aside by a court
in any jurisdiction.
(D) The
Department may only consider criminal history as allowed in the weighing test,
OAR 407-007-0060.
(f)
Disclosure of other history required under OAR 407-007-0400 to
407-007-0460.
(g) Disclosure of
other information to be considered in the event of a weighing test if the SI
discloses any criminal history or other history required under OAR 407-007-0400
to 407-007-0460:
(A) The SI may provide
mitigating information for BCU to review in a weighing test.
(B) Human Resources or BCU may require the SI
to provide other information as needed to conduct the weighing test.
(h) Position title and description
of duties to be considered.
(6) The criminal records check request must
include the following:
(a) A notice regarding
disclosure of Social Security number indicating:
(A) The SI's disclosure of his or her Social
Security Number is voluntary; and
(B) The Department requests the Social
Security number solely for the purpose of positively identifying the SI during
the criminal records check process.
(b) A notice that the SI may be subject to
fingerprinting and a criminal records check.
(c) A notice that the SI has the right to
challenge criminal history through the local source of the
information.
(7) The
Department verifies the SI's identity using methods which include but are not
limited to asking for current and valid government-issued photo identification
and confirming the information on the photo identification with the SI and the
information included in the criminal records check request.
(8) BCU conducts an Oregon criminal records
check after receiving a criminal records check request. Using information
submitted, BCU may obtain criminal offender information from the LEDS system
and may request other criminal history information as needed.
(9) BCU may conduct a fingerprint-based
national criminal records check after an Oregon criminal records check is
completed.
(a) A fingerprint-based national
criminal records check may be completed under any of the following
circumstances:
(A) The SI has out of state
residency evidenced by the SI's possession of an out of state driver license or
being outside Oregon for 60 or more consecutive days during the previous five
years.
(B) The criminal offender
information from the LEDS check, SI disclosures, or any other criminal history
information obtained by the Department indicates there may be criminal records
outside of Oregon.
(C) The
Department has reason to question the identity or history of the SI.
(D) The SI's position is at Oregon state
institutions under OAR 407-007-0010.
(E) The SI is assigned duties involving any
aspect of a criminal records or abuse check process.
(F) A fingerprint-based criminal records
check is required by federal or state laws or regulations, other rules adopted
by the Department, or by contract with the Department.
(G) If the Department has reason to believe
that fingerprints are needed to make a final fitness determination.
(b) BCU must request fingerprints
for an SI under the age of 18 in accordance with OAR 125-007-0220(3).
(c) The SI must complete and submit a
fingerprint capture when requested by the Department.
(A) The Department must give the SI notice
regarding the Social Security number as set forth in section (5) of this
rule.
(B) The Department may
require new fingerprint capture if previous captures are rejected by OSP or the
FBI.
(10) BCU
requires that due diligence be exercised in complying with national criminal
records check requirements including fingerprints. However, if BCU determines
that an SI is unable to submit fingerprints, BCU must document the
circumstances that lead to the decision to waive fingerprinting and proceed
with obtaining other criminal history information from states based on an SI's
residential history and disclosures in lieu of a fingerprint based criminal
records check as required in this rule. A fingerprint-based national criminal
records may be waived due to inability to submit fingerprints unless
fingerprints are required by state or federal laws or regulations. Reasons for
inability to submit fingerprints include but are not limited to:
(a) A physical condition in which all the
SI's fingerprints are illegible or missing, or which makes the capture of
fingerprints impossible;
(b) A
mental or psychological condition which makes the capture of fingerprints
impossible;
(c) Undue safety risk
to the SI or other individuals in capturing the fingerprints.
(11) The Department may also
research other criminal history information from other states in lieu of or in
addition to a national criminal records check. Reasons for such research
include but are not limited to when:
(a) The
Department has reason to believe that out-of-state criminal records may
exist.
(b) The Department has been
unable to complete a national criminal records check due to illegible
fingerprints.
(c) The national
criminal records check results show incomplete information about charges or
criminal records without final disposition.
(d) There is indication of residency or
criminal records in a state that does not submit all criminal records to the
FBI.
(e) Based on available
information, the Department has reason to believe that other criminal history
information regarding the SI is present in another state.
(12) In order to complete a criminal records
check and fitness determination, the Department may require additional
information from an SI.
(a) Additional
information includes but is not limited to criminal, judicial, other background
information, or proof of identity.
(b) If an SI who is a represented Department
employee is required to provide additional information, the process for
obtaining that information through investigatory interviews must adhere to
collective bargaining agreements on investigatory interviews.
(13) BCU may conduct further
research regarding criminal history through local jurisdiction courts,
Department records, or other resources.
(14) In addition to criminal records check
requirements in this rule, a criminal records check for an SI in a position
which requires use or access to CJI, or CJIS clearance must include:
(a) A fingerprint-based national
check;
(b) A review by Oregon State
Police for CJIS clearance;
(15) In addition to criminal records check
requirements in this rule, a criminal records check for an SI in a position
which requires use or access to FTI must include:
(a) A fingerprint-based national
check;
(b) A check of local law
enforcement agencies where the SI has lived, worked, or attended school within
the past five years;
(c) Validation
of the SI's eligibility to legally work in the United States.
(16) The Department may conduct a
criminal records check in situations of imminent danger on SIs who have been
background checked under these rules.
(a) If
the Department determines there is indication of potentially disqualifying
criminal behavior by an SI that could more likely than not pose an immediate
risk to the Department, its clients, or vulnerable persons, the Department may
authorize a criminal records check without the completion of a criminal records
check request.
(b) If the
Department determines that a fitness determination based on the criminal
records check would be adverse to the SI, the Department must provide the SI,
if available, the opportunity to disclose potentially disqualifying convictions
and conditions, and other information as indicated in OAR 407-007-0060 before
the completion of the fitness determination.
(17) If the criminal records check process
results in an incomplete fitness determination as described in OAR
407-007-0070(2)(d), BCU closes the criminal records check. When a criminal
records check results in an incomplete fitness determination, the SI must not
be allowed to work, volunteer, be employed, or otherwise perform in the
position listed on the criminal records check request. An incomplete fitness
determination results in immediate termination, dismissal, or removal of the
SI.
(18) BCU must document criminal
records checks conducted under this rule.
Statutory/Other Authority: ORS
181A.195,
181A.200
& 409.050
Statutes/Other Implemented: ORS
181A.195,
181A.200
& 409.010
