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OREGON YOUTH AUTHORITY

 

DIVISION 800

CRIMINAL RECORDS CHECKS

416-800-0000

Purpose

(1) The Oregon Youth Authority (OYA) seeks to ensure the security and safety of the offenders in its care and custody. OYA values excellence in public service, partnerships with local communities and other agencies, openness and accountability and provision of service in a fair, respectful, and humane manner. As a state agency, OYA employees serve as public officials. As public officials, OYA employees must adhere to ethics and boundaries described in statute and agency policy. OYA expects its Volunteers, contractors, and foster parents to also maintain these ethics and boundaries.

(2) These rules control how OYA accesses Criminal Offender Information about a Subject Individual through Criminal Records Checks and its use of that information to determine whether the Subject Individual is fit to provide services to OYA as an employee, Volunteer, foster parent, contractor, or vendor. The fact that OYA approves a Subject Individual as fit does not guarantee the individual a position as an OYA employee, Volunteer, foster parent, contractor, or vendor.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95, cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. & cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 11-2005, f. & cert. ef. 4-20-05; OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0010

Definitions

(1) Approved: Pursuant to a preliminary Fitness Determination under OAR 416-800-0041 or a final Fitness Determination under OAR 416-800-0050, OYA has determined that the Subject Individual is fit to be an employee, Volunteer, foster parent, contractor, or vendor in a position covered by OAR 416-800-0020.

(2) Conviction: A final judgment on a verdict or finding of guilty, a plea of guilty, a plea of nolo contendere (no contest), or any determination of guilt entered by a court of law against a Subject Individual in a criminal case, unless that judgment has been reversed or set aside by a subsequent court decision.

(3) Crime Relevant to a Fitness Determination: A crime listed or described in OAR 416-800-0055.

(4) Criminal Offender Information: 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.

(5) Criminal Records Check: One or more of the following processes undertaken to check the criminal history of a Subject Individual:

(a) Computerized Criminal Records Check: A check of Criminal Offender Information conducted through use of the Law Enforcement Data Systems (LEDS), including information from the Federal Bureau of Investigation's (FBI) National Crime Information Center (NCIC), and the National Law Enforcement Telecommunications System (NLETS).

(b) Fingerprint-based Criminal Records Check: A national check of federal Criminal Offender Information through the submission of fingerprints and other identifying data, conducted by the Oregon Department of State Police through the Federal Bureau of Investigation or otherwise at OYA’s request.

(6) Denied: A determination by OYA pursuant to a preliminary Fitness Determination under OAR 416-800-0041 or a final Fitness Determination under OAR 416-800-0050, that the Subject Individual is not fit to be an employee, Volunteer, foster parent, contractor, or vendor in a position covered by OAR 416-800-0020.

(7) False Statement: In association with an activity governed by these rules, a Subject Individual either: (a) provided OYA 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 OYA information material to determining his or her criminal history.

(8) Fitness Determination: A determination made pursuant to the process established in OAR 416-800-0041 (preliminary Fitness Determination) or 416-800-0050 (final Fitness Determination) that a Subject Individual is or is not fit to be an employee, Volunteer, contractor, vendor, or foster parent in a position covered by OAR 416-800-0020.

(9) Member of the Household: Any person, other than an OYA offender, who lives in an OYA offender’s home, on the property where an OYA offender’s home is located, is a frequent visitor to the home or who assists in the care provided to an OYA offender including but not limited to Volunteers or a person providing services such as tutoring, recreation, relief care, household chores, or other services, whether paid or unpaid.

(10) Subject Individual: An individual identified in OAR 416-800-0020 as someone from whom OYA may require a Criminal Records Check.

(11) Volunteers: Persons who, as defined in OAR 416-450-0010, provide services to OYA on a non-paid basis.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95, cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. & cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 11-2005, f. & cert. ef. 4-20-05; OYA 15-2005, f. & cert. ef. 6-30-05; OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0020

Subject Individuals

“Subject Individual” means a person who is required to complete a Criminal Records Check pursuant to these rules and from whom OYA may require fingerprints for the purpose of conducting a Criminal Records Check because the person:

(1) Is employed or applying for employment with OYA; or

(2) Provides services or seeks to provide services to OYA as a contractor, vendor, or Volunteer; or

(3) Operates or is an applicant to operate a youth offender foster home, or who is an adult Member of the Household in the foster home.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95, cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. & cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0031

Criminal Records Check Process

(1) Disclosure of Information by Subject Individual.

(a) Preliminary to a Criminal Records Check, Subject Individuals must complete and sign a consent for criminal record check form and, if requested by OYA, a fingerprint card. The consent form must require the following information: name, date of birth, Social Security Number, physical characteristics, driver’s license or identification numbers, current address, prior residences, and any other information deemed necessary by OYA. The consent form may also require details concerning any circumstance listed in OAR 416-800-0041(3)(a)-(e).

(b) A Subject Individual must complete and submit to OYA the consent form and, if requested, a fingerprint card within three business days of receiving the forms.

(c) If the Oregon State Police or the FBI returns a Subject Individual’s fingerprint card to OYA as “unreadable,” OYA may require the Subject Individual to submit a new fingerprint card within a reasonable period of time, as established by OYA.

(d) Within a reasonable period of time, as established by OYA, a Subject Individual will disclose additional information as requested by OYA in order to resolve any issue(s) hindering the completion of a criminal record check.

(2) When a Criminal Records Check is Conducted. OYA may conduct, or request that the Oregon State Police conduct, a Criminal Records Check when:

(a) An individual meets the definition of a Subject Individual; or

(b) Required by federal law or regulation, by state or administrative rule, or by contract or written agreement with OYA.

(3) Which Criminal Records Check Is Conducted. When OYA determines under section (2) of this rule that a criminal record check is needed, OYA may request or conduct a computerized records check, a fingerprint-based records check, or both.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0041

Preliminary Fitness Determination

(1) OYA may conduct a preliminary Fitness Determination if it is interested in hiring or appointing a Subject Individual on a preliminary basis, pending a final Fitness Determination.

(2) If OYA elects to make a preliminary Fitness Determination about a Subject Individual, pending a final Fitness Determination, OYA will make a preliminary Fitness Determination about a Subject Individual based on information disclosed by the Subject Individual and a computerized Criminal Records Check.

(3) OYA may approve a Subject Individual as fit on a preliminary basis if OYA has no reason to believe that the Subject Individual has made a False Statement and the information available to OYA 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 416-800-0055.

(b) Is being investigated for, has been arrested for, has an outstanding warrant for, or has been charged with a crime listed under OAR 416-800-0055.

(c) Is currently on probation, parole, or any form of post-prison supervision for a crime listed in OAR 416-800-0055.

(d) Has a deferred sentence or conditional discharge in connection with a crime listed in OAR 416-800-0055.

(e) 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 416-800-0055 if committed by an adult.

(4) A Subject Individual may not appeal a preliminary Fitness Determination under the process described in OAR 416-800-0080.

Stat. Auth.: ORS 181.534 &420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0045

Hiring or Appointing on a Preliminary Basis

(1) OYA may hire or appoint a Subject Individual on a preliminary basis if OYA has Approved the Subject Individual on the basis of a preliminary Fitness Determination under OAR 416-800-0041.

(2) A Subject Individual hired or appointed on a preliminary basis may be provided provisional access to offenders and OYA facilities, training, orientation and work activities, pending the results of a final Fitness Determination described in these rules.

(3) A Subject Individual hired or appointed on a preliminary basis is deemed to be on trial service and, if terminated, prior to the completion of a final Fitness Determination under OAR 416-800-0050 may not appeal the termination under the process provided under OAR 416-800-0070.

(4) If a Subject Individual hired or appointed on a preliminary basis is Denied upon completion of a final Fitness Determination, as provided 416-800-0050, then OYA must immediately terminate the Subject Individual’s employment or appointment.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0050

Final Fitness Determination

(1) If OYA elects to conduct a Criminal Records Check, OYA must make a Fitness Determination about a Subject Individual based on information provided by the Subject Individual under OAR 416-800-0030(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, OYA will consider the factors in subsections (2)(a)–(f) of this rule in relation to information provided by the Subject Individual under OAR 416-800-0030(1), any information obtained through a Criminal Records Check, and any False Statement made by the Subject Individual. To assist in considering these factors, OYA may obtain 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, OYA may request to meet with the Subject Individual, to receive written materials from him or her, or both. OYA will use all collected information in considering:

(a) Whether the Subject Individual has, 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 416-800-0055;

(b) Whether the Subject Individual is being investigated for, has been arrested for, has an outstanding warrant for, or has been charged with a crime listed under OAR 416-800-0055.

(c) Whether the Subject Individual is currently on probation, parole, or any form of post-prison supervision for a crime listed in OAR 416-800-0055.

(d) Whether the Subject Individual has a deferred sentence or conditional discharge in connection with a crime listed in OAR 416-800-0055.

(e) 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 in OAR 416-800-0055 if committed by an adult.

(f) The nature of any crime identified under subsection (2)(a);

(g) The facts that support the arrest, conviction, finding of guilty except for insanity, or pending indictment;

(h) The facts that indicate the Subject Individual made a False Statement;

(i) The relevance, if any, of a crime identified under subsection (2)(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

(j) 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:

(A) The passage of time since the commission or alleged commission of a crime identified under subsection (2)(a);

(B) The age of the Subject Individual at the time of the commission or alleged commission of a crime identified under subsection (2)(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 416-800-0055;

(E) Whether a Conviction identified under subsection (2)(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) Refusal to Consent. If a Subject Individual refuses to submit or consent to a Criminal Records Check, including fingerprint identification, OYA must deny the employment of the Subject Individual, or revoke or deny any applicable position or authority to provide services. A person may not appeal any determination made based on a refusal to consent.

(4) If a Subject Individual is Denied as not fit, then the Subject Individual may not be employed by OYA or provide services to OYA as a Volunteer, foster parent, contractor, or vendor.

(5) Under no circumstances must a Subject Individual be Denied 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.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95, cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. & cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 11-2005, f. & cert. ef. 4-20-05; OYA 15-2005, f. & cert. ef. 6-30-05; OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0055

Types of Crimes Relevant to a Fitness Determination

(1) Crimes Relevant to a Fitness Determination.

(a) All felonies;

(b) All misdemeanors;

(c) Any United States Military crime or international crime;

(d) Any civil restraining order entered for spousal abuse, domestic violence, harassment, or stalking.

(2) Evaluation of Crimes. OYA must evaluate a crime on the basis of the laws of the jurisdiction in which the crime or offense occurred.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0065

Incomplete Fitness Determination

(1) OYA 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” under OAR 416-800-0020;

(b) The Subject Individual does not provide materials or information under OAR 416-800-0030(1) within the timeframes established under that rule;

(c) OYA cannot locate or contact the Subject Individual;

(d) The Subject Individual fails or refuses to cooperate with OYA’s attempts to acquire other relevant information under OAR 416-800-0050(2); or

(e) OYA determines that the Subject Individual is not eligible or not qualified for the position of employee, foster parent, contractor, Volunteer, or vendor for a reason unrelated to the Fitness Determination process; or

(f) The position is no longer open.

(2) A Subject Individual does not have a right to a contested case hearing under OAR 416-800-0080 or alternate appeal process under OAR 416-800-0080(6) to challenge the closing of an incomplete Fitness Determination.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0070

Notice to Subject Individuals of Fitness Determination

OYA must inform the Subject Individual who has been determined not to be fit on the basis of a Criminal Records Check, via certified mail to the most current address provided by the Subject Individual, of such disqualification.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. & cert. ef. 1-18-02; OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0080

Appealing a Fitness Determination

(1) Model Rules of Procedure. OYA adopts the Attorney General's Model Rules of Procedure OAR 137-003-0001 to 137-003-0091 and 137-003-0580, effective January 2012, as procedural rules for contested case hearings. In addition to the Model Rules of Procedure adopted by OYA, the procedures set forth in this rule must apply.

(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 416-800-0070.

(A) A request for a hearing from a foster parent or foster parent applicant must be received by OYA within 60 days of the date of the notice.

(B) A request for a hearing from any Subject Individual other than foster care parents or foster care applicants must be received by OYA within 14 calendar days of the date of the notice.

(b) When a timely request is received by OYA under subsection (a), a contested case hearing must be conducted by a hearing officer appointed by OYA’s Director.

(3) Time and Place of Hearings. The time and place of hearing will be set by the hearing officer. Notice of the hearing must be served on the appropriate assistant director and interested parties at least ten days in advance of the hearing date.

(4) Discovery. OYA 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 must 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 and Final Order

(a) Proposed Order. After a hearing, the hearings officer will issue a proposed order.

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

(c) Default. A completed final Fitness Determination made under OAR 416-800-0050 becomes final:

(A) unless the Subject Individual makes a timely request for hearing; or

(B) when a party withdraws a hearing request, notifies the agency or the hearing officer that the party will not appear, or fails to appear for the hearing.

(8) Alternative Process. A Subject Individual currently employed by OYA 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.

(9) Remedy. The only remedy that may be awarded is a determination that the Subject Individual is fit. Under no circumstances must OYA be required to place a Subject Individual in any position, nor must OYA be required to accept services or enter into a contractual agreement with a Subject Individual.

(10) 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. To challenge information identified in this section (10), a Subject Individual may use any process made available by the agency that provided the information.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10; OYA 2-2013, f. & cert. ef. 7-29-13

416-800-0090

Record Keeping, Confidentiality

Any information obtained in the Criminal Records Check is confidential. OYA must restrict the dissemination of information obtained in the Criminal Records Check. Only those persons, as identified by OYA, with a demonstrated and legitimate need to know the information, may have access to Criminal Records Check records information.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

416-800-0095

Fees

(1) OYA may charge a fee for acquiring Criminal Offender Information for use in making a Fitness Determination. In any particular instance, the fee may not exceed the fee(s) charged OYA by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain Criminal Offender Information on the Subject Individual.

(2) OYA may charge the fee to the Subject Individual on whom Criminal Offender Information is sought, or, if the Subject Individual is an employee of an OYA contractor or vendor and is undergoing a Fitness Determination in that capacity, OYA may charge the fee to the Subject Individual’s employer.

Stat. Auth.: ORS 181.534 & 420A.021
Stats. Implemented: ORS 181.534, 420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10

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