Current through Register Vol. 63, No. 9, September 1, 2024
(1) Purpose. This rule sets forth a contested
case hearing process by which a subject individual may appeal a completed
fitness determination made under OAR
845-002-0260 that he or she is
fit or not fit to hold a position with, or provide services to the Commission
as an employee, volunteer, contractor, or vendor. Section (6) of the rule
identifies an alternative appeal process available only to current Commission
employees.
(2) Process:
(a) A subject individual may appeal a fitness
determination by submitting a written request for a contested case hearing to
the address specified in the notice provided under OAR
845-002-0290(1)(b),
within 14 calendar days of the date appearing on the notice. The Commission
shall address a request received after expiration of the deadline as provided
under 137-003-0528.
(b) When a timely request is received by the
Commission under subsection (a), a contested case hearing shall be conducted by
an administrative law judge assigned by the Office of Administrative Hearings,
pursuant to the Attorney General's Model Rules for Contested Cases, "Rules for
the Office of Administrative Hearings" OAR
137-003-0501 to
137-003-0700, as supplemented by
the provisions of this rule.
(c)
The Commission shall provide the subject individual or the subject individual's
legal representative with all of the information required under OAR
137-003-0510.
(d) As provided in OAR
137-003-0510(3),
if participating in a contested case hearing, the Commission and the subject
individual may agree to use a collaborative method of dispute resolution
designed to encourage them to work together to develop a mutually agreeable
solution, such as negotiation or a settlement conference.
(3) Discovery:
(a) A subject individual's hearing request
under section (2)(a) of this rule shall constitute a discovery request for the
following records:
(A) Any records the
subject individual has a right to inspect under OAR
845-002-0310(2)(e);
and
(B) In accordance with the
Public Records Law, any records described in OAR
845-002-0310(3)(a).
(b) The Commission or the
administrative law judge may protect information made confidential by ORS
181.534(15) or
other applicable law as provided in OAR
137-003-0570(7) or
(8).
(4) No Public Attendance. Contested case
hearings on fitness determinations are closed to non-participants.
(5) Proposed and Final Order:
(a) Proposed Order. After a hearing, the
administrative law judge shall issue a proposed order. If the subject
individual or subject individual's legal counsel does not file written
exceptions with the Commission within 15 calendar days of the mailing of the
proposed order, the proposed order shall become the final order.
(b) Exceptions. If the subject individual or
the subject individual's legal counsel files timely written exceptions to the
proposed order with the Commission, the Commission Administrator or
Administrator's designee shall consider the exceptions and serve a final order,
or request a revised proposed order from the administrative law
judge.
(c) Default. A completed
final fitness determination made under OAR
845-002-0260 shall constitute a
final order without a hearing as provided under
137-003-0672.
(6) Alternative Process. A subject
individual currently employed by the OLCC may choose to appeal a fitness
determination either under the process made available by this rule or through
the process made available by applicable personnel rules, policies, and
collective bargaining provisions. A subject individual's decision to appeal a
fitness determination through applicable personnel rules, policies, and
collective bargaining provisions is an election of remedies as to the rights of
the individual with respect to the fitness determination and is a waiver of the
contested case process made available by this rule.
(7) Challenging Criminal Offender
Information. A subject individual may not use the appeals process established
by this rule to challenge the accuracy or completeness of information provided
by the Oregon Department of State Police, the Federal Bureau of Investigation,
or agencies reporting information to the Oregon Department of State Police or
the Federal Bureau of Investigation.
(a) To
challenge information identified in this section (7), a subject individual may
use any process made available by the providing agency.
(b) If the subject individual successfully
challenges the accuracy or completeness of information provided by the Oregon
Department of State Police, the Federal Bureau of Investigation, or an agency
reporting information to the Oregon Department of State Police or the Federal
Bureau of Investigation, the subject individual may request that the Commission
conduct a new criminal records check and re-evaluate the original fitness
determination made under OAR
845-002-0260 by submitting a new
OLCC Criminal Records Request form.
Stat. Auth.: ORS
181.534,
471.030,
471.040 &
471.730
Stats. Implemented: ORS
181.534 &
471.695