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SECRETARY OF STATE, BUSINESS SERVICES DIVISION

 

DIVISION 50

CRIMINAL RECORDS CHECK RULES

167-050-0100

Statement of Purpose

Purpose. These rules control the Secretary of State’s acquisition of information about a subject individual’s criminal history through criminal records checks and its use of that information to determine whether the subject individual is fit to provide services to the Secretary of State as an employee or contractor in a position covered by OAR 167-050-0120(2)(a)-(e). The fact that the Secretary of State approves a subject individual as fit does not guarantee the individual a position as a Secretary of State employee or contractor.

Stat. Auth.: ORS 181.534 & ORS 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0110

Definitions

As used in OAR chapter 167, division 050, unless the context of the rule requires otherwise, the following definitions apply:

(1) "Approved" means that a criminal records check and any required fitness determination has been completed on a subject individual and the subject individual is eligible to be an employee or contractor in a position covered by OAR 167-050-0120(2)(a)–(e).

(2) "Conviction" means that a court of law has entered a final judgment on a verdict or finding of guilt on a plea of guilty, or a plea of nolo contendere (no contest), or any determination of guilt, against a subject individual, unless that judgment has been reversed or dismissed by a subsequent court decision.

(3) ”Criminal Offender Information” includes records and related data as to physical description and vital statistics, fingerprints received and compiled by the Oregon Department of State Police Bureau of Criminal Identification for purposes of identifying criminal offenders and alleged offenders, records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole and release

(4) "Criminal Records Check" or "CRC" means one of two processes undertaken to check the criminal history of a subject individual:

(a) "Oregon Criminal Records Check" means obtaining and reviewing information from the Oregon State Police's Law Enforcement Data System (LEDS); or

(b) "National Criminal Records Check" means a national check of criminal offender information conducted by the Oregon Department of State Police through the Federal Bureau of Investigation at the Secretary of State’s request.

(5) "Denied" means that a criminal records check and subsequent fitness determination has been completed on a subject individual and the authorized designee has found the subject individual to be not eligible to be an employee or contractor in a position covered by OAR 167-050-0120(2)(a)-(e).

(6) “False Statement” means that, in association with an activity governed by these rules, a subject individual either:

(a) Provided the Secretary of State with materially false information about his or her criminal history, such as, but not limited to, materially false information about his or her identity or conviction record; or

(b) Failed to provide to the Secretary of State information material to determining his or her criminal history.

(7) “Fitness Determination” means a determination made by the Secretary of State pursuant to the process established in OAR 167-050-0150 (preliminary fitness determination) or 167-050-0170 (final fitness determination) that a subject individual is or is not fit to be a Secretary of State employee or contractor in a position covered by 167-050-0120(2)(a)-(e).

(8) “Subject Individual” means an individual identified in OAR 167-050-0120.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0120

Subject Individuals

“Subject Individual” means a person who is required to complete a criminal records check pursuant to these rules and from whom the Secretary of State may require fingerprints for the purpose of conducting a criminal history check because the person:

(1) Is employed by or applying for employment with the Secretary of State, or provides services or seeks to provide services to the Secretary of State as a contractor; and

(2) Is, or will be, working or providing services in a position:

(a) In which the person is providing information technology services and has control over, or access to, information technology systems that would allow the person to harm the information technology systems or the information contained in the systems;

(b) In which the person has access to information, the disclosure of which is prohibited by state or federal laws, rules or regulations or information that is defined as confidential under state or federal laws, rules or regulations;

(c) That has fiscal, payroll, or purchasing responsibilities as one of the position’s primary responsibilities;

(d) In which the person has responsibility for conducting audits; or

(e) In which the person has access to personal information about employees or members of the public including Social Security numbers, dates of birth, driver license numbers, personal financial information or criminal background information.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0130

Criminal Records Check Process

(1) Disclosure of Information by Subject Individual.

(a) Preliminary to a criminal records check, the Secretary of State may require a subject individual to complete and sign the Secretary of State’s Criminal Records Request form and, if requested by the Secretary of State, a fingerprint card. The Criminal Records Request form shall require the following information: name, birth date, Social Security Number, physical characteristics, driver’s license or identification card number, current address, and prior residences. The Secretary of State Criminal Records Request form may also require details concerning any circumstance listed in OAR 167-050-0170(2).

(b) A subject individual shall complete and submit to the Secretary of State the Criminal Records Request form and, if requested, a fingerprint card, within five (5) business days of receiving the forms.

(c) The Secretary of State shall not request a fingerprint card from a subject individual under the age of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550 et seq., or unless the Secretary of State also requests the written consent of a parent or guardian. In such case, such parent or guardian and youth must be informed that they are not required to consent. Notwithstanding, failure to consent may be construed as a refusal to consent under OAR 167-050-0170(3)(d)(B).

(d) A subject individual shall disclose additional information as requested by the Secretary of State in order to resolve any issue(s) hindering the completion of a criminal records check within five (5) business days of the request.

(2) When Check is Required. The Secretary of State may conduct, or request that the Oregon Department of State Police conduct, a criminal records check when:

(a) A person meets the definition of a subject individual; or

(b) Required by federal or state laws or regulations, other rules adopted by the Secretary of State, or by contract or written agreement with the Secretary of State;

(3) Which Criminal Records Check(s) Is Conducted. When the Secretary of State determines under subsection (2) of this rule that a criminal records check is needed, the Secretary of State may request or conduct an Oregon Criminal Records Check, or a Nationwide Criminal Records Check, or both.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0140

Potentially Disqualifying Crimes

(1) Crimes Relevant to a Fitness Determination.

(a) All felonies;

(b) All Class A misdemeanors;

(c) Any United States Military or international crime that is equivalent to any crime listed in this section;

(d) Any crime of attempt, solicitation, or conspiracy to commit a crime listed in this section (1) pursuant to ORS 161.405, 161.435, or 161.450;

(e) Any crime based on criminal liability for conduct of another pursuant to ORS 161.555, when the underlying crime is listed in this subsection (1).

(f) Any crime which, if convicted, would require the individual to register as a sex offender.

(2) Evaluation Based on Oregon Laws. The Secretary of State shall evaluate a crime on the basis of Oregon laws and, if applicable, federal laws or the laws of any other jurisdiction in which a criminal records check indicates a subject individual may have committed a crime, as those laws are in effect at the time of the fitness determination.

(3) Expunged Juvenile Record. Under no circumstances shall a subject individual be denied under these rules because of the existence or contents of a juvenile record that has been expunged pursuant to ORS 419A.260 through 419A.262.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0150

Preliminary Fitness Determination

(1) The Secretary of State may conduct a preliminary fitness determination if the Secretary of State is interested in hiring or appointing a subject individual on a preliminary basis, pending a final fitness determination.

(2) If the Secretary of State elects to make a preliminary fitness determination about a subject individual, pending a final fitness determination, the Secretary of State shall make that determination of the basis of any information disclosed by the subject individual and on an Oregon Criminal Records Check.

(3) The Secretary of State shall approve a subject individual as fit on a preliminary basis if the Secretary of State has no reason to believe that the subject individual has made a false statement and the information available to the Secretary of State does not disclose that the subject individual:

(a) Has pled nolo contendere (or no contest) to, been convicted of, found guilty except for insanity (or comparable disposition) of, or has a pending indictment for a crime listed under OAR 167-050-0140;

(b) Has been arrested for or charged with a crime listed under OAR 167-050-0140;

(c) Is being investigated for, or has an outstanding warrant for a crime listed under OAR 167-050-0140;

(d) Is currently on probation, parole, or any form of post-prison supervision for a crime listed under OAR 167-050-0140;

(e) Has a deferred sentence or conditional discharge in connection with a crime listed under OAR 167-050-0140;

(f) 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 in OAR 167-050-0140 if committed by an adult; or

(g) Has made a false statement.

(4) If the information available to the Secretary of State discloses one or more of the circumstances identified in subsection (3), the Secretary of State may nonetheless approve a subject individual as fit on a preliminary basis if the Secretary of State concludes, after evaluating all available information, that hiring or appointing the subject individual on a preliminary basis does not pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public.

(5) If a subject individual is either approved or denied on the basis of a preliminary fitness determination, the Secretary of State thereafter shall conduct a fitness determination under OAR 167-050-0170.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0160

Hiring or Appointing on a Preliminary Basis

(1) The Secretary of State may hire or appoint a subject individual on a preliminary basis if the Secretary of State has approved the subject individual on the basis of a preliminary fitness determination under OAR 167-050-0150.

(2) A subject individual hired or appointed on a preliminary basis under this rule may participate in training, orientation, or work activities as assigned by the Secretary of State.

(3) A subject individual hired or appointed on a preliminary basis is deemed to be on trial service and, if terminated before completion of a final fitness determination under OAR 167-050-0170, may not appeal the termination under the processes provided under 167-050-0190.

(4) If a subject individual hired or appointed on a preliminary basis is denied upon completion of a final fitness determination, as provided under OAR 167-050-0170, then the Secretary of State shall immediately terminate the subject individual’s employment or appointment.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0170

Final Fitness Determination

(1) If the Secretary of State elects to conduct a criminal records check, the Secretary of State shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 167-050-0130, 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 this subsection (2)(a)–(f) in relation to information provided by the subject individual under OAR 167-050-0130, 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 Secretary of State 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 Secretary of State may request to meet with the subject individual, to receive written materials from him, or both. The subject individual shall meet with the Secretary of State if requested and provide additional information within a reasonable period of time, as established by the Secretary of State. The Secretary of State 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 167-050-0140;

(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 comparable disposition), 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 167-050-0140;

(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) Potential Outcomes.

(a) Automatic Approval. The Secretary of State 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 167-050- 0140;

(B) Evidence that the subject individual has a pending indictment or warrant for a crime listed in OAR 167-050-0140;

(C) Evidence that the subject individual has been arrested for a crime listed in OAR 167-050-0140;

(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.

(A) If a fitness determination under this rule shows evidence of any of the factors identified in subsection (3)(a)(A)–(F) of this rule, the Secretary of State may approve the subject individual only if, in evaluating the information described in subsections (1) and (2), the Secretary of State determines:

(i) That the evidence is not credible; or

(ii) If the evidence is credible, that the subject individual acting in the position for which the fitness determination is being conducted would not pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public.

(c) Restricted Approval.

(A) If the Secretary of State approves a subject individual under subsection (3)(b) of this rule, the Secretary of State may restrict the approval to specific job duties, activities, or locations.

(B) The Secretary of State must complete a new criminal records check and fitness determination on the subject individual before removing a restriction.

(d) Denial.

(A) If a fitness determination under this rule shows credible evidence of any of the factors identified in subsection (3)(a)(A)–(F) of this rule and, after evaluating the information described in subsections (1) and (2) of this rule, the Secretary of State concludes that the subject individual acting in the position for which the fitness determination is being conducted would pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public, the Secretary of State 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, the Secretary of State shall deny the employment of the individual. A person may not appeal any determination made based on a refusal to consent.

(C) If a subject individual is denied as not fit, the subject individual may not be employed by or provide services as a contractor to the Secretary of State in a position covered by OAR 167-050-0120(2)(a)–(e).

(4) Final Order. A completed final fitness determination is final unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR 167-050-0190(2), or an alternative appeals process as provided by 167-050-190(8).

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0180

Incomplete Fitness Determination

(1) The Secretary of State will close a preliminary or final fitness determination as incomplete when:

(a) Circumstances change so that a person no longer meets the definition of a subject individual;

(b) The subject individual does not respond within a stated period of time to a request from the Secretary of State for corrections to the application, fingerprints, any other information necessary to conduct a criminal records check under these rules, or any information described in OAR 167-050-0175;

(c) The subject individual withdraws the application, leaves the position prior to completion of the check or cannot be located or contacted by the authorized designee;

(d) The subject individual is determined to be ineligible for the position or is not chosen for the position for reasons other than the criminal records check;

(e) The position is no longer open.

(2) A subject individual does not have a right to a contested case hearing to challenge the closing of an incomplete fitness determination.

Stat. Auth.: ORS 181.534 & 177.075
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0190

Appealing a Fitness Determination

(1) Model Rules of Procedure. In addition to the Model Rules of Procedure adopted by the Attorney General, OAR 137-003-0001 through 137-003-0092, the procedures set forth in this rule shall apply.

(2) Process.

(a) A subject individual may appeal a final fitness determination by submitting a request in writing to the Secretary of State Human Resources Division. Any such request for a hearing must be received by the Secretary of State within 10 calendar days of the date of the notice.

(b) When a timely request is received by the Secretary of State under subsection (a), a contested case hearing shall be conducted by a hearing officer appointed by the Secretary of State.

(c) The Secretary of State may extend the time to appeal if the Secretary of State determines the delay was caused by factors beyond the reasonable control of the subject individual.

(3) Time and Place of Hearings. The time and place of hearing will be set by the hearing officer. Notice of the hearing shall be served on the Director of Human Resources and interested parties at least ten days in advance of the hearing date.

(4) Discovery. The Secretary of State or the hearing officer may protect information made confidential by ORS 181.534(15) or other applicable laws and rules.

(5) Disclosure of LEDS Information. Information obtained through LEDS shall be disclosed only in a manner consistent with Oregon State Police rules and regulations.

(6) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants.

(7) Proposed Order, Exceptions and Default.

(a) Proposed Order. After a hearing, the hearings officer appointed by the Secretary of State shall issue a proposed order.

(b) Exceptions. Exceptions, if any, shall be filed within 14 calendar days after service of the proposed order. The proposed order shall provide an address to which exceptions must be sent.

(c) Default. A completed final fitness determination made under OAR 167-050-0170 becomes final:

(A) Unless the subject individual makes a timely request for hearing; or

(B) When a party withdraws a hearing request, notifies the Secretary of State or the hearing officer that the party will not appear, or fails to appear for the hearing.

(8) Other Options. A subject individual may appeal a fitness determination through applicable personnel rules and policies. The individual’s decision to do so 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.

(9) History Disputed:

(a) Correcting Disputed History. If a subject individual wishes to challenge the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation or other agencies reporting information to the Secretary of State, the subject individual may appeal to the entity providing the information. Such challenges are not subject to the Secretary of State’s appeal process described in this rule.

(10) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit, or fit with restrictions pursuant to OAR 167-050-0170(3)(c). The Secretary of State shall not be required to place a subject individual in any position or to enter into a contract or otherwise accept services.

Stat. Auth.: ORS 181.534 & 177.075

Stats. Implemented: ORS 181.534

Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0200

Representation at Hearing

(1) Secretary of State Representation. Subject to the approval of the Attorney General, an officer or employee of the Secretary of State is authorized to appear on behalf of the Secretary of State in contested case hearings involving criminal background checks conducted pursuant to these rules. The Secretary of State retains the right to be represented by the Attorney General.

(2) The agency representative may not make legal arguments on behalf of the Secretary of State.

(a) “Legal argument” includes arguments on:

(A) The jurisdiction of the Secretary of State to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to the agency; and

(C) The application of court precedent to the facts of the particular contested case proceeding;

(b) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the agency in handling similar situations;

(C) The literal meaning of the statute or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence; or

(E) The correctness of procedures being followed in the contested case hearing.

Stat. Auth.: ORS 183.452
Stats. Implemented: ORS 181.534(9) & (11)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0210

Recordkeeping and Confidentiality

(1)(a) Records the Secretary of State receives from the Oregon Department of State Police resulting from a criminal records check, including, but not limited to, LEDS reports and state or federal criminal offender information originating with the Oregon Department of State Police or the Federal Bureau of Investigation, are confidential pursuant to ORS 181.534(15).

(b) Only those persons, as identified by the Secretary of State, with a demonstrated and legitimate need to know the information, may have access to criminal records check records.

(2)(a) If a fingerprint-based criminal records check was conducted with regard to a subject individual, the Secretary of State shall permit that subject individual to inspect his or her own state and federal criminal offender information, unless prohibited by federal law.

(b) If a subject individual with a right to inspect criminal offender information under subsection (2)(a) of this rule requests to do so, the Secretary of State shall provide the subject individual with a copy of the individual’s own state and federal criminal offender information, unless prohibited by federal law.

(3) Other Records.

(a) The Secretary of State shall treat all records received or created under these rules that concern the criminal history of a subject individual, other than records covered under section (1)(a) of this rule, including Secretary of State Criminal Records Request forms and fingerprint cards, as confidential pursuant to ORS 181.534(15).

(b) A subject individual shall have access to records identified under subsections (3)(a) of this rule and pursuant to and only to the extent required by the terms of the Public Records Law.

Stat. Auth.: ORS 181.534
Stats. Implemented: ORS 181.534(9)
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

167-050-0220

Fees

(1) The Secretary of State may charge a fee for acquiring criminal offender information for use in making a fitness determination. In any particular instance, the fee shall not exceed the fee(s) charged the Secretary of State by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain criminal offender information on the subject individual.

(2) The Secretary of State may charge the fee to the subject individual on whom criminal offender information is sought, or, if the subject individual is an employee of a Secretary of State contractor and is undergoing a fitness determination in that capacity, the Secretary of State may charge the fee to the subject individual’s employer.

Stat. Auth.: ORS 181.534
Stats. Implemented: ORS 181.534
Hist.: BSD 1-2008. f. & cert. ef. 7-16-08

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