Current through Register Vol. 63, No. 9, September 1, 2024
(1) An authorized designee shall make a
fitness determination about a subject individual based on information provided
by the subject individual under OAR
845-002-0230(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, an authorized
designee shall consider the factors in subsections (a)-(f) in relation to
information provided by the subject individual under OAR
845-002-0230(1),
and 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 authorized designee may obtain other
criminal records information from the subject individual or any other source,
including law enforcement agencies or courts within or outside of Oregon. To
acquire other criminal offender information from the subject individual, an
authorized designee may request to meet with the subject individual, to receive
written materials from him or her, or both. The authorized designee will use
all collected information in considering:
(a)
Whether the subject individual has been convicted of, found guilty except for
insanity (or a comparable disposition) of, or has a pending indictment for a
crime listed or described under OAR
845-002-0270;
(b) The nature of any crime identified under
subsection (a);
(c) The facts that
support the 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) The following 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:
(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 or described under OAR
845-002-0270;
(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;
(F) A recommendation of an
employer;
(G) The disposition of a
pending indictment identified under subsection (a);
(H) Whether the subject individual has been
arrested for or charged with a crime listed or described under OAR
845-002-0270 within the last
five years;
(I) Whether the subject
individual is being investigated, or has an outstanding warrant, for a crime
listed or described under OAR
845-002-0270;
(J) Whether the subject individual is
currently on probation, parole or another form of post-prison supervision for a
crime listed or described under OAR
845-002-0270;
(K) Whether the subject individual has a
deferred sentence or a conditional discharge or is participating in a diversion
program in connection with a crime listed or described under OAR
845-002-0270;
(L) Whether the subject individual has been
adjudicated in a juvenile court and found to be within the court's jurisdiction
for an offense that would have constituted a crime listed or described under
OAR 845-002-0270 if committed by an
adult;
(M) Periods of incarceration
of the subject individual;
(N)
whether the subject individual has a history of drug or alcohol abuse which
relates to his or her criminal activity and the subject individual's history of
treatment or rehabilitation for such abuse; and
(O) the education and work history (paid or
volunteer) of the subject individual since the commission or alleged commission
of a crime.
(3) Possible Outcomes of a Final Fitness
Determination:
(a) Automatic Approval. An
authorized designee shall approve a subject individual if the information
described in sections (1) and (2) shows:
(A)
No credible evidence that the subject individual has been convicted of, or
found guilty except for insanity (or comparable disposition) of a crime listed
or described under OAR
845-002-0270;
(B) No credible evidence that the subject
individual has a pending indictment for a crime listed or described under OAR
845-002-0270;
(C) No credible evidence of the subject
individual having made a false statement; and
(D) No discrepancies between the criminal
offender information, other criminal records information and information
obtained from the subject individual.
(b) Evaluative Approval. If a fitness
determination under this rule shows credible evidence of any of the factors
identified in paragraphs (3)(a)(A)-(D) of this rule, an authorized designee may
approve the subject individual only if, in evaluating the information described
in sections (1) and (2), the authorized designee determines that the subject
individual acting in the position for which the fitness determination is being
conducted would not pose a risk of harm to the Commission, its client entities,
the State, or members of the public.
(c) Restricted Approval.
(A) If an authorized designee approves a
subject individual under subsection (3)(b) of this rule, the authorized
designee may restrict the approval to specific activities or
locations.
(B) An authorized
designee shall complete a new criminal records check and fitness determination
on the subject individual prior to removing a restriction.
(d) Denial.
(A) If a fitness determination under this
rule shows credible evidence of any of the factors identified in paragraphs
(3)(a)(A)-(D) of this rule and, after evaluating the information described in
sections (1) and (2) of this rule, 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 the Commission, its client
entities, the State, or members of the public, the authorized designee 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 including
fingerprint identification, the authorized designee shall deny the subject
individual as not fit without further assessment under the fitness
determination process.
(C) If a
subject individual is denied as not fit, then the subject individual may not be
employed by or provide services as a volunteer, contractor or vendor to the
Commission in a position covered by OAR
845-002-0220(2).
(4) Final Order. A
completed final fitness determination becomes a final order of the Commission
unless the affected subject individual appeals by requesting either a contested
case hearing as provided by OAR
845-002-0300(2)(a)
or an alternative appeals process as provided by
845-002-0300(6).
Stat. Auth.: ORS
181.534,
471.030,
471.040 &
471.730
Stats. Implemented: ORS
181.534 &
471.695
