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The Oregon Administrative Rules contain OARs filed through July 15, 2014
 
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DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING

 

DIVISION 13

CRIMINAL RECORDS CHECK RULES

259-013-0000

Statement of Purpose and Statutory Authority

(1) Purpose. The purpose of these rules is to establish the reasonable screening procedures for:

(a) All public safety professionals;

(b) Any individual who occupies a position requiring a license or certification or is under investigation by the Department; or

(c) Reissuance of a license or certificate that is issued by the Department.

(2) Authority. These rules are authorized under ORS 181.534 and 181.612.

(3) When Rules Apply. These rules are to be applied when evaluating the criminal history of a subject individual identified in (1) of this rule. The fact that a subject individual is approved does not guarantee licensure or certification.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08; DPSST 1-2014, f. & cert. ef. 1-2-14

259-013-0005

Definitions

As used in OAR chapter 259, division 013, unless the context of the rule requires otherwise, the following definitions apply:

(1) “Approved” means that a criminal records check has been completed on an individual and the Department has not identified any criminal record that would make the individual ineligible for licensure or certification.

(2) "Authorized Designee" means a person who is authorized by the Department to receive, review and process criminal history information.

(3) “Conviction” means that a person was convicted in a court of law. Entering a plea of “guilty” or “no contest” is also considered a conviction for the purpose of these rules unless a subsequent court decision has dismissed the charges. An expunged juvenile or adult record may be considered a conviction under these rules for purposes of eligibility for licensure or certification.

(4) Criminal History Information” means criminal justice records, fingerprints, court records, sexual offender registration records, warrants, DMV information, information provided on a Department form, and any other information obtained by or provided to the Department. “Criminal history information” may include violations or infractions for purposes of eligibility for licensure or certification.

(5) “Criminal Records Check” means the Oregon Criminal Records Check and, when required, a National Criminal Records Check or a State-Specific Criminal Records Check, and the processes and procedures required by these rules.

(6) “Denied” means a criminal records check has been completed on an individual and the individual is ineligible to obtain licensure or certification.

(7) “Department" means the Oregon Department of Public Safety Standards and Training.

(8) "National Criminal Records Check" means obtaining and reviewing criminal records nationwide or from states or jurisdictions other than Oregon. This information may be obtained from the Federal Bureau of Investigation through the use of fingerprint cards and from other criminal information resources.

(9) "Oregon Criminal Records Check" means obtaining and reviewing information from the Oregon State Police's Law Enforcement Data System (LEDS). The Oregon Criminal Records Check may also include, but is not limited to: Oregon Justice Information Network (OJIN), Oregon Department of Corrections records, Motor Vehicles Division, local or regional criminal records information systems, or other official law enforcement agency or court records in Oregon.

(10) "Potentially Disqualifying Crime" means a crime listed or described in OAR 259-013-0260.

(11) "Records Information" includes criminal justice records, fingerprints, court records, sexual offender registration records, warrants, arrests, DMV information, information provided on the Department's criminal records check forms, and any other information obtained by or provided to the Department for the purpose of conducting a fitness determination.

(12) "State-Specific Criminal Records Check" means obtaining and reviewing information from law enforcement agencies, courts or other criminal records information resources located in a state or jurisdiction outside Oregon.

(13) “Subject individual” means a person for whom a criminal records check is required pursuant to these rules.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0220

Individuals Subject to Criminal Records Checks

The Department may require the fingerprints of:

(1) A fire service professional;

(2) A public safety professional;

(3) A private security professional;

(4) A private investigator;

(5) A polygraph intern or general license applicant;

(6) A candidate for election to the office of Sheriff.

Stat. Auth.: ORS 181. 534, 181.612 & 206.015
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08; DPSST 18-2012, f. & cert. ef. 8-27-12; DPSST 1-2014, f. & cert. ef. 1-2-14

259-013-0230

Criminal Records Check Required

(1) Who Conducts Check.

(a) The Department may request that the Department of State Police conduct a criminal records check on an individual. If a nationwide criminal records check of an individual is necessary, the Department may request that the Department of State Police conduct the check, including fingerprint identification, through the Federal Bureau of Investigation.

(b) The Department may conduct criminal records checks on individuals through the Law Enforcement Data System maintained by the Department of State Police in accordance with the adopted rules, and established procedures, of the Department of State Police.

(2) When Check is Required (New Checks and Re-checks). An individual is required to have a check in the following circumstances:

(a) When a public safety officer applies for, or is employed by, a law enforcement agency, the public safety officer or applicant must submit to a criminal records check as required by OAR 259-008-0010.

(b) When a certified instructor applies for, or is employed by, a law enforcement agency, or the Department, the certified instructor must submit to a criminal records check as required by OAR 259-008-0080.

(c) When a person applies for a license to conduct polygraphs, the polygrapher, or applicant, must submit to a criminal records check as required by the provisions of OAR 259-0020-0010 or 259-0020-0015.

(d) When a person is elected or appointed to the Office of Sheriff, the applicant must submit to a criminal records check as required by the provisions of OAR 259-008-0075.

(e) When a person applies for a private security certificate or license, the applicant must submit to a criminal records check as required by the provisions of OAR 259-060-0025.

(f) When a person applies for a private investigator license, the applicant must submit to a criminal records check as required by the provisions of OAR 259-061-0070.

(g) When a check is required by federal or state laws or regulations, other rules adopted by the Department, or by contract or written agreement with the Department.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08; DPSST 18-2012, f. & cert. ef. 8-27-12; DPSST 1-2014, f. & cert. ef. 1-2-14

259-013-0235

Refusal to Consent to a Criminal Records Check

If any subject individual refuses to consent to a criminal records check, or refuses to be fingerprinted when required, the Department may revoke or deny any application, license or certificate issued by the Department.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0240

Oregon Criminal Records Check Process

(1) Processing.

(a) The Department will obtain criminal records information from the Oregon State Police Law Enforcement Data System and from other sources of criminal, judicial and motor vehicle information.

(b) The Department will authorize one or more designees to receive and evaluate Oregon criminal records information from the Oregon State Police as allowed by applicable statutes.

(c) A subject individual may be required to obtain and provide additional criminal, judicial or other background information to the Department or its authorized designee.

(d) Criminal records information obtained from the Law Enforcement Data System must be handled in accordance with applicable Oregon State Police requirements in ORS Chapter 181 and OAR chapter 257, division 15.

(2) Additional Information Required. The Department may require additional information from a subject individual in order to conduct an Oregon Criminal Record Check. The information may include, but is not limited to, proof of identity, residential history, names used while living at each residence, or additional criminal, judicial, or other background information.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0250

National Criminal Records Check Process

(1) National Criminal Records Check. In addition to an Oregon criminal records check (OAR 259-013-0250), the Department may require a national criminal records check consistent with the requirements for licensure or certification.

(2) Processing. The individual must complete and submit fingerprint card(s) when requested by the Department.

(3) Additional Information Required. In order to conduct a national check, the Department may require additional information such as, but not limited to, proof of identity, residential history, names used while living at each residence, or additional criminal, judicial, or other background information.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0260

Potentially Disqualifying Crimes

A conviction of any of the following crimes is potentially disqualifying. The lists include offenses that are crimes and may include offenses that are classified as violations or infractions for purposes of eligibility for licensure or certification. (See ORS 161.505 through 161.585).

(1) Any crime or offense listed in OAR 259-008-0070;

(2) Any crime listed in OAR 259-009-0070;

(3) Any crime listed in OAR 259-060-0300;

(4) Any crime listed in OAR 259-061-0040.

(5) Any federal crime.

(6) Any unclassified felony defined in Oregon Revised Statutes not listed elsewhere in this rule.

(7) Any other felony in Oregon’s or any other jurisdiction’s statutes not listed elsewhere in this rule.

(8) Any crime or offense in any other jurisdiction that is the substantial equivalent of any of the Oregon crimes identified in this section or as determined by an authorized designee of the Department.

(9) Any crime adopted by the Legislature that is the substantial equivalent of any of the crimes listed in this section.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0270

Record Keeping, Confidentiality

(1) LEDS Reports.

(a) Confidentiality. All LEDS reports are confidential and must be maintained by the authorized designee in accordance with applicable Oregon State Police requirements in ORS Chapter 181 and the rules adopted pursuant thereto. (NOTE: See OAR chapter 257, division 15).

(A) Authorized Designee Access. LEDS reports are confidential and may only be shared with another authorized designee if there is a need to know consistent with these rules.

(B) Subject Individual Access.

(i) The subject individual must be allowed to inspect the LEDS report if the subject individual requests to see it. The LEDS report, and photocopies of the LEDS report, must not be given to the subject individual, with the following exception:

(ii) If a fingerprint-based criminal records check was conducted on the subject individual, then the individual shall not only be permitted to inspect the individual’s own state and national criminal offender records in the custody of the Department, but if requested by the individual, be provided with a copy of those same records.

(b) Retention. LEDS reports must be retained and destroyed in accordance with records retention schedules published by Oregon State Archives.

(2) National (FBI) Information.

(a) Confidentiality and Dissemination.

(A) National criminal information provided by the FBI is confidential and may not be disseminated by the Department, with the following exception:

(B) If a fingerprint-based criminal records check was conducted on the subject individual, then the subject individual shall not only be permitted to inspect the individual’s own state and national criminal offender records in the custody of the Department, but if requested by the subject individual, be provided with a copy of those same records.

(b) Retention. FBI reports must be retained and destroyed in accordance with records retention schedules published by Oregon State Archives and in accordance with federal law.

(3) Fingerprint Cards:

(a) The Federal Bureau of Investigation (FBI) must return or destroy the fingerprint cards used to conduct the criminal records check and may not keep any record of the fingerprints. If the FBI policy authorizing return or destruction of the fingerprint cards is changed, the Department of State Police shall cease to send the cards to the FBI but shall continue to process the information through other available resources.

(b) If the FBI returns the fingerprint cards to the Department of State Police, the department must destroy the fingerprint cards and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(c) The Department of State Police may retain or destroy fingerprint cards after a criminal records check is completed and the results of the criminal records check is provided to the Department in accordance with rules adopted and procedures established by the Department of State Police.

(d) If only a state criminal records check is conducted, the Department of State Police may retain or destroy the fingerprint cards after the criminal records check is completed and the results of the criminal records check are provided to the Department in accordance with rules adopted and procedures established by the Department of State Police.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0280

Immunity from Liability

The Department and its authorized designees have immunity from any civil liability that might otherwise be incurred or imposed for determining, in accordance with ORS 181.612 that a subject may not obtain or maintain a license or certificate issued by the department, or be employed. The Department or its employee acting within the course and scope of employment who in good faith complies with 181.534 is not liable for employment-related decisions based on the fitness determination. No Department, or an employee of the state, the Department, a business or an organization acting within the course and scope of employment, is liable for defamation, invasion of privacy, negligence or any other civil claim in connection with the lawful dissemination of information lawfully obtained under 181.534.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0290

Appeal Process

(1) If an individual has been convicted of a potentially disqualifying crime, the Department will proceed in accordance with the relevant process for denial or revocation identified in either OAR 259-008-0070, 259-009-0070, 259-020-0031, 259-060-0300 or 259-061-0040.

(2) An individual may appeal a determination of the Department in accordance with the applicable rules identified in subsection (1) of this section.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

259-013-0300

Fees

Fees may not exceed the actual cost of acquiring and furnishing criminal offender information.

Stat. Auth.: ORS 181.534 & 181.612
Stats. Implemented: ORS 181.612
Hist.: DPSST 17-2008, f. & cert. ef. 10-15-08

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