Current through Register Vol. 63, No. 3, March 1, 2024
(1) The
Executive Director or an authorized designee shall make a fitness
determination about a subject individual based on information
provided by the subject individual under OAR 585-005-0030(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, the Executive Director or
an authorized designee shall also consider the factors in subsections
(a)-(f) in relation to information provided by the subject individual
under OAR 585-005-0030(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 Executive Director or 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, the
Executive Director or an authorized designee may request to meet with
the subject individual, to receive written materials, or both. The
subject individual shall meet with the Executive Director or the
authorized designee if requested and provide additional information
within a reasonable period of time, as established by the Executive
Director or the authorized designee. The Executive Director or 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 585-005-0050;
(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 585-005-0050;
(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) Upon completion of the fitness
determination, one of the following outcomes shall be made and the
subject individual shall be provided written notice of the outcome
and will be informed when appeal rights are afforded or when a
fitness determination is not completed:
(a) Approval. The Executive
Director or an authorized designee 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
585-005-0050;
(B)
Evidence that the subject individual has a pending indictment for any
crime listed in OAR 585-005-0050;
(C) Evidence that the subject
individual has been arrested for any crime listed in OAR
585-005-0050;
(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)(i)-(v) of this rule, the
Executive Director or an authorized designee may approve as fit the
subject individual only if, in evaluating the information described
in sections (1) and (2), the Executive Director or the authorized
designee determines:
(A) that the
evidence is not credible; or
(B) that the subject individual
acting in the position for which the fitness determination is being
conducted would not pose a risk of harm to Commission, its client
entities, the State, or members of the public.
(c) Restricted Approval: If the
Executive Director or an authorized designee approves as fit a
subject individual, the Executive Director or the authorized designee
may restrict the approval to specific activities or locations. 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: The Executive Director
or the authorized designee may, after conducting a fitness
determination under this rule, deny as fit a subject individual when:
(A) There is credible evidence
showing the presence of any of the factors identified in paragraphs
(3)(a)(i)-(v) of this rule and, after evaluating the information
described in sections (1) and (2) of this rule, the Executive
Director or 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 Commission, its
client entities, the State, or members of the public, the Executive
Director or the authorized designee shall deny the subject individual
as not fit for the position; or
(B) Pursuant to ORS
181A.195(13),
if a subject individual refuses to submit or consent to a criminal
records check, including fingerprint identification. The Executive
Director or the authorized designee shall deny the subject individual
as not fit without further assessment under the fitness determination
process.
(e) If
a subject individual is denied as not fit, the subject individual may
not be employed by Commission.
(4) Under no circumstances shall a
subject individual be denied as being fit 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) A completed final fitness
determination is final unless the affected subject individual appeals
by requesting a contested case hearing as provided by OAR
585-005-0060.