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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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HIGHER EDUCATION COORDINATING COMMISSION
OFFICE OF STUDENT ACCESS AND COMPLETION

 

DIVISION 7

CRIMINAL RECORDS CHECK RULES

575-007-0200

Statement of Purpose and Statutory Authority

(1) Purpose. The purpose of these rules is to provide for the reasonable screening of subject individuals in order to determine if they have a history of criminal behavior such that they are not fit to work or volunteer in positions covered by OAR 575-007-0220(2)(a)-(g).

(2) Authority. These rules are authorized under ORS 348, Chapter 730 (2005 Laws), H.B. 2157 (2005 Laws)

(3) When Rules Apply. These rules are to be applied when obtaining the criminal history of a subject individual and conducting fitness determinations based upon such history. The fact that a subject individual is approved does not guarantee employment or placement.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0210

Definitions

As used in OAR 575-007, 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, volunteer, or contractor in positions covered by these rules.

(2) "Authorized Designee" means a person who is authorized by the Commission to receive and process criminal records check request forms signed by subject individuals and other criminal records information. The authorized designee conducts fitness determinations under the authority of the Commission.

(3) "Contact Person" means a person who is authorized by the Commission to receive and process criminal records check request forms signed by subject individuals, but who is not authorized to receive other criminal records information. The contact person is not allowed to make fitness determinations.

(4) "Conviction" means that the subject individual 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 is not considered a conviction under these rules.

(5) "Criminal Records Check Rules" or "These Rules" means OAR chapter 575, division 007.

(6) "Criminal Records Check" or "CRC" means the Oregon Criminal Records Check and when required, a National Criminal Records Check and/or a State-Specific Criminal Records Check, and the processes and procedures required by these rules.

(7) "Denied" means that a criminal records check and subsequent fitness determination, including a weighing test, has been completed on a subject individual and the subject individual has been found to be not eligible to be an employee or volunteer in positions covered by these rules.

(8) "The Commission" means the Oregon Student Assistance Commission.

(9) "Hiring on a Preliminary Basis" means a subject individual is hired on a preliminary basis and allowed by the authorized designee to participate in the training for, orientation to, and work activities of the positions covered by these rules following submission of a completed OSAC Criminal Records Request form and subject to a final fitness determination. The term "hiring on a preliminary basis" is applicable only during the timeframe prior to a final fitness determination. See OAR 575-007-0310. An employee on trial service cannot appeal a termination except through the terms of the collective bargaining agreement.

(10) "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 (FBI) through the use of fingerprint cards and from other criminal information resources.

(11) "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 a review of information from the Oregon Judicial Information Network (OJIN), Oregon Department of Corrections records, Motor Vehicles Division (DMV), local or regional criminal records information systems, or other law enforcement agency or court records in Oregon.

(12) "Potentially Disqualifying Crime" means a crime listed or described in OAR 575-007-0280.

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

(14) "Related" means spouse, domestic partner, natural parent, child, sibling, adopted child, adoptive parent, stepparent, stepchild, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew or first cousin.

(15) "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.

(16) "Subject Individual": see OAR 575-007-0220.

(17) "Weighing Test" means a process carried out by the authorized designee in which information is considered to determine if a subject individual is approved or denied. See OAR 575-007-0320(5)(c).

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0220

Subject Individuals

(1) As used in OAR 575-007, "Subject Individual" means a person from whom the Commission may require fingerprints for the purpose of conducting a state or nationwide criminal records check.

(2) The Commission may require the fingerprints of a person who is employed by or applying for employment with the Commission or provides services or seeks to provide services to the Commission as a contractor or volunteer and is, or will be, working or providing services in a position in which:

(a) The person has direct access to facilities where students reside or to persons under 18 years of age, elderly persons or persons with disabilities;

(b) 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;

(c) 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. Such information may include Social Security numbers, driver license numbers, medical information, personal financial information or criminal history information;

(d) The person has payroll functions;

(e) The person has responsibility for receiving, receipting or depositing money or negotiable instruments;

(f) The person has responsibility for billing, collections or other financial transactions;

(g) The person has responsibility for purchasing or selling property or has access to property held in trust or to private property in the temporary custody of the state.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0230

Criminal Records Check Required

(1) Who Conducts Check.

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

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

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

(a) The person becomes a subject individual on or after the effective date of these rules;

(b) The individual, subject or not, changes positions and the new position requires a criminal records check, for example, through promotion, transfer, demotion, restoration, bumping and recall;

(c) A criminal records check is required by federal or state laws or regulations, other rules adopted by the Commission, or by contract or written agreement with the Commission;

(d) The Commission has reason, such as any indication of possible criminal behavior, to believe that a check is justified;

(e) After July 1, 2006, is a subject individual who is a contractor or who provides services as a volunteer.

(3) When Check is Not Required. When the subject individual changes positions, a check is not required only under the following:

(a) The authorized designee determines that the new position requires the same or less responsibility for functions covered by OAR 575-007-0220(2)(a)-(g); or

(b) There are no known new potentially disqualifying crimes, arrests, or conditions.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0240

Contact Person and Authorized Designee

(1) Requirements. All requirements in this section must be completed within a 90-day time period and prior to performing any duties as a contact person or authorized designee. To be approved by the Commission, all contact persons and authorized designees must:

(a) Apply to and be registered by the Commission. The application must be in writing on a form provided by the Commission.

(b) Be approved by the Commission after completing both an Oregon and a national criminal records check in accordance with these rules or Oregon State Police rules and must have:

(A) No conviction for a potentially disqualifying permanent review crime,

(B) No convictions for any other crime in the past fifteen years, and

(C) No outstanding warrants, registration as a sex offender in Oregon or any other jurisdiction, or any other condition identified in OAR 575-007-0290.

(c) Complete a training program and successfully pass any testing as required by the Commission.

(2) Denial of Contact Person or Authorized Designee Status.

(a) A person's status as a contact person or authorized designee will be denied if the person does not meet the qualifications to be a contact person or authorized designee as listed in this rule. Once denied, the person can no longer perform the duties of a contact person or authorized designee for the Commission.

(b) Denial or termination of contact person or authorized designee status under OAR 575-007-0240(4)(a) is not subject to hearing rights under these rules unless the denial or termination results in loss of employment or position, in which case they have the same hearing rights as other subject individuals under these rules.

(3) Responsibilities.

(a) A contact person is responsible for performing the following duties:

(A) Ensure that adequate measures are taken to protect the confidentiality of the records as required by these rules;

(B) Take reasonable measures to verify the identity of a subject individual. When the application is submitted in person, these measures include asking the subject individual for government-issued photo identification (example: driver's license, passport) and confirming information written on the OSAC Records Request form with information on the photo identification;

(C) Ensure that, when a subject individual is hired on a preliminary basis, the need for active supervision pursuant to OAR 575-007-0310 is understood by each person responsible for ensuring that active supervision is provided;

(D) Ensure that the subject individual receives a timely, written notice of the final fitness determination. When the decision results in denial or a restriction, the notice must include information regarding how to appeal the decision;

(E) Monitor the status of criminal records check applications and investigate any delays in processing; and

(F) Ensure that documentation required by these rules is processed and maintained in accordance with these rules.

(b) An authorized designee has all the responsibilities of a contact person as listed in (3)(a) of this rule, and in addition must perform the following duties:

(A) Review the OSAC Criminal Records Request form completed by the subject individual (if not already done by a contact person) and conduct a preliminary fitness determination under the authority of the Commission in accordance with OAR 575-007-0320 in order to determine eligibility to be hired on a preliminary basis;

(B) Conduct a final fitness determination under the authority of the Commission in accordance with OAR 575-007-0320; and

(C) Participate in the Commission's appeal process.

(4) Conflict of Interest. An authorized designee must not have access to LEDS information, or make a fitness determination, if there is a conflict of interest between the authorized designee and the subject individual.

(a) A conflict of interest exists when one or more of the following circumstances is true:

(A) The authorized designee or contact person is related to the subject individual, or

(B) The authorized designee or contact person has a financial or close personal relationship, other than an employee-employer relationship, with the subject individual.

(5) Termination of Contact Person or Authorized Designee Status.

(a) When the authorized designee's or contact person's position with the Commission ends, the Commission's registration of a contact person or authorized designee is revoked.

(b) The Commission must suspend or revoke the appointment if a contact person or authorized designee fails to comply with the rules of the Commission or fails to continue to meet the qualifications for the position of authorized designee or contact person, as applicable.

(6) Review of Appointment. The Commission will develop a procedure to review and update appointments of contact persons and authorized designees, up to and including a new application and criminal records check, to assure that all requirements of this rule are met:

(a) Every three years; or

(b) If the Commission has reason to believe the person no longer meets the qualifications to be a contact person or authorized designee, such as but not limited to, any indication of criminal behavior.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0250

Oregon Criminal Records Check Process

(1) Forms Required. The OSAC Criminal Records Request form must be filled out and signed by the applicant/employee. This form indicates what identifying and other information is required from the subject individual to begin the CRC. All information provided by the employee/applicant must be truthful, accurate and current.

(2) Processing.

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

(b) Only an authorized designee, may perform the following duties:

(A) Receive and evaluate Oregon criminal records information from the Oregon State Police as allowed by applicable statutes, or

(B) Conduct fitness determinations.

(c) The Commission or the authorized designee may require that a subject individual obtain and provide additional criminal, judicial or other background information.

(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.

(3) Additional Information Required. In order to conduct an Oregon check and fitness determination, the Commission may require additional information from the subject individual as necessary, 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 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0260

State-Specific Criminal Records Check Process

(1) State-Specific Check. Notwithstanding the provisions of OAR 575-007-0270, the Commission may conduct a state-specific criminal records check in lieu of a national check when the Commission has reason to believe that out-of-state history may exist and that a nationwide criminal records check is not warranted.

(2) Supplement to National Check. The Commission may conduct a state-specific check in addition to a national check in order to clarify incomplete or conflicting information.

(3) Additional Information Required. In order to conduct a state-specific check and complete a fitness determination, the Commission or the authorized designee may require additional information from the subject individual as necessary, 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 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0270

National Criminal Records Check Process

(1) National Criminal Records Check. In addition to an Oregon check (OAR 575-007-0250), a national criminal records check will be required by the Commission under any of the following circumstances:

(a) Out-of-State Residency. The subject individual has lived outside Oregon for 60 or more consecutive days during the previous five (5) years.

(b) Out-of-State Residency for Postsecondary Students. During the previous five (5) years, the subject individual has lived outside Oregon for 90 or more consecutive days or for more than one academic term or semester as part of a study-abroad program, an academic exchange, extended research project, or a similar program or activity.

(c) Criminal History Outside Oregon. The LEDS check, or any other information obtained by the Commission, indicates there may be criminal history outside of Oregon, or the subject individual self-discloses criminal history outside of Oregon.

(d) Identity or History Questioned. The social security number appears not to be valid or is not provided to the Commission on the OSAC Criminal Records Request form, the subject individual has no Oregon driver's license or Oregon identification card, or the Commission has other reason to question the identity or history of the subject individual.

(e) Required by Other Laws or Regulations. A check is required by federal or state laws or regulations, other rules adopted by the Commission, or by contract or written agreement with the Commission.

(2) Additionally, a national criminal records check on a subject individual may be required by the Commission if based on the nature of the position or other relevant factors the Authorized Designee deems it necessary.

(3) Fingerprinting a Juvenile. Consent of the parent or guardian is required to obtain fingerprints from a child under the age of 18 years.

(4) Processing. The subject individual must complete and submit a fingerprint card when requested by the Commission.

(a) Fingerprint Cards. The subject individual must complete and return a fingerprint card (example: FBI Form FD 258) provided by the Commission.

(b) Time Frame for Return. The card must be completed and returned within 7 days of the request to the contact person to avoid closure of application pursuant to OAR 575-007-0320(5)(d).

(c) Extension. The Commission may extend the time allowed for return of the fingerprint card for good cause.

(5) Additional Information Required. In order to conduct a national check and complete a fitness determination, the Commission or the authorized designee may require additional information from the subject individual as necessary, 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 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0275

Imminent Danger

(1) If the Commission determines there is an indication of criminal behavior that could pose a potential immediate threat to safety or security while performing the functions covered by OAR 575-007-0220(2)(a)-(g), the Commission may authorize a new criminal records check without the completion of a new OSAC Criminal Records Request form.

(2) If the Commission determines that a fitness determination based on the new criminal records check may be adverse to the subject individual, the Commission will provide the subject individual the opportunity to disclose criminal history and other information as indicated in OAR 575-007-0300 before completing the fitness determination.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0280

Potentially Disqualifying Crimes

A conviction of any of the following crimes is potentially disqualifying. The lists include offenses that are crimes and are not intended to include offenses that are classified as violations (See ORS 161.505 through 161.565).

(1) Permanent Review. The crimes listed in this section are crimes which require that a fitness determination be completed regardless of date of conviction.

(a) ORS 162.155, Escape II;

(b) ORS 162.165, Escape I;

(c) ORS 162.325, Hindering prosecution;

(d) ORS 163.005, Criminal homicide;

(e) ORS 163.095, Aggravated murder;

(f) ORS 163.115, Murder;

(g) ORS 163.118, Manslaughter I;

(h) ORS 163.125, Manslaughter II;

(i) ORS 163.145, Criminally negligent homicide;

(j) ORS 163.160, Assault IV;

(k) ORS 163.165, Assault III;

(l) ORS 163.175, Assault II;

(m) ORS 163.185, Assault I;

(n) ORS 163.187, Strangulation;

(o) ORS 163.190, Menacing;

(p) ORS 163.200, Criminal mistreatment II;

(q) ORS 163.205, Criminal mistreatment I;

(r) ORS 163.207, Female genital mutilation;

(s) ORS 163.208, Assault of Public Safety Officer;

(t) ORS 163.213, Unlawful use of an electrical stun gun, tear gas, or mace I;

(u) ORS 163.225, Kidnapping II;

(v) ORS 163.235, Kidnapping I;

(w) ORS 163.257, Custodial interference I;

(x) ORS 163.275, Coercion;

(y) ORS 163.355, Rape III;

(z) ORS 163.365, Rape II;

(aa) ORS 163.375, Rape I;

(bb) ORS 163.385, Sodomy III;

(cc) ORS 163.395, Sodomy II;

(dd) ORS 163.405, Sodomy I;

(ee) ORS 163.408, Unlawful Sexual penetration II;

(ff) ORS 163.411, Unlawful Sexual penetration I;

(gg) ORS 163.415, Sexual abuse III;

(hh) ORS 163.425, Sexual abuse II;

(ii) ORS 163.427, Sexual abuse I;

(jj) ORS 163.435, Contributing to the sexual delinquency of a minor;

(kk) ORS 163.465, Public indecency;

(ll) ORS 163.515, Bigamy;

(mm) ORS 163.525, Incest;

(nn) ORS 163.535, Abandonment of a child;

(oo) ORS 163.537, Buying or selling a person under 18 years of age;

(pp) ORS 163.545, Child neglect II;

(rr) ORS 163.547, Child neglect I;

(ss) ORS 163.555, Criminal nonsupport;

(tt) ORS 163.575, Endangering the welfare of a minor;

(uu) ORS 163.670, Using child in display of sexually explicit conduct;

(vv) ORS 163.673, Dealing sexual condition of children;

(ww) ORS 163.675, Sale sexual condition of children;

(xx) ORS 163.680, Paying for sexual view of children;

(yy) ORS 163.684, Encouraging child sexual abuse I;

(zz) ORS 163.686, Encouraging child sexual abuse II;

(aaa) ORS 163.687, Encouraging child sexual abuse III;

(bbb) ORS 163.688, Possession of materials depicting sexually explicit conduct of a child I;

(ccc) ORS 163.689, Possession of materials depicting sexually explicit conduct of a child II;

(ddd) ORS 163.693, Failure to report child pornography;

(eee) ORS 163.732, Stalking;

(fff) ORS 164.057, Aggravated theft I;

(ggg) ORS 164.075, Theft by extortion;

(hhh) ORS 164.125, Theft of services;

(iii) ORS 164.225, Burglary I;

(jjj) ORS 164.325, Arson I;

(kkk) ORS 164.395, Robbery III;

(lll) ORS 164.405, Robbery II;

(mmm) ORS 164.415, Robbery I;

(nnn) ORS 165.581, Cellular counterfeiting I;

(ooo) ORS 166.005, Treason;

(ppp) ORS 166.015, Riot;

(qqq) ORS 166.085, Abuse of corpse II;

(rrr) ORS 166.087, Abuse of corpse I;

(sss) ORS 166.155, Intimidation II;

(ttt) ORS 166.165, Intimidation I;

(uuu) ORS 166.220, Unlawful use of weapon;

(vvv) ORS 166.270, Possession of weapons by certain felons;

(www) ORS 166.272, Unlawful possession of machine guns, certain short-barreled firearms and firearm silencers;

(xxx) ORS 166.275, Possession of weapons by inmates of institutions;

(yyy) ORS 166.429, Firearms used in felony;

(zzz) ORS 166.720, Racketeering activity unlawful;

(aaaa) ORS 167.012, Promoting prostitution;

(bbbb) ORS 167.017, Compelling prostitution;

(cccc) ORS 167.062, Sadomasochistic abuse or sexual conduct in live show;

(dddd) ORS 167.065, Furnishing obscene materials to minors;

(eeee) ORS 167.070, Sending obscene materials to minors;

(ffff) ORS 167.075, Exhibiting an obscene performance to a minor;

(gggg) ORS 167.080, Displaying obscene materials to minors;

(hhhh) ORS 167.087, Disseminating obscene material;

(iiii) ORS 167.262, Adult using minor in commission of controlled substance offense;

(jjjj) ORS 167.315, Animal abuse II;

(kkkk) ORS 167.320, Animal abuse I;

(llll) ORS 167.322, Aggravated animal abuse I;

(mmmm) ORS 167.333, Sexual assault of animal;

(nnnn) ORS 181.599, Failure to report as sex offender;

(oooo) ORS 475.525, Sale of drug paraphernalia prohibited;

(pppp) ORS 475.805, Providing hypodermic device to minor prohibited;

(qqqq) ORS 475.967, Possession of precursor substance with intent to manufacture controlled substance;

(rrrr) ORS 475.973, Unlawful possession or distribution of ephedrine, pseudoephedrine or phenylpropanolamine;

(sss) ORS 475.975, Unlawful possession of iodine in its elemental form;

(tttt) ORS 475.976, Unlawful possession of iodine matrix;

(uuuu) ORS 475.982, Providing drug test falsification equipment;

(vvvv) ORS 475.984, Causing another person to ingest a controlled substance;

(wwww) ORS 475.986, Application of controlled substance to the body of another person;

(xxxx) ORS 475.992, Prohibited acts generally (regarding drug crimes);

(yyyy) ORS 475.993, Prohibited acts for registrants (with the State Board of Pharmacy; regarding felony crimes);

(zzzz) ORS 475.995, Distribution to minors;

(aaaaa) ORS 475.999, Penalty for manufacture or delivery of controlled substance within 1000 feet of school;

(bbbbb) ORS 677.080, Prohibited acts (regarding the practice of medicine);

(ccccc) Any federal crime;

(ddddd) Any unclassified felony defined in Oregon Revised Statutes not listed elsewhere in this rule;

(eeeee) Any other felony in Oregon's or any other jurisdiction's statutes not listed elsewhere in this rule that is serious and indicates behavior that poses a threat to safety or security, as determined by the authorized designee.

(fffff) Any crime of attempt, solicitation or conspiracy to commit a crime listed in this section pursuant to ORS 161.405, 161.435, or 161.450, including any crime based on criminal liability for conduct of another pursuant to ORS 161.155.

(ggggg) Any crime in any other jurisdiction that is the substantial equivalent of any of the Oregon crimes listed in this section (section (1)) as determined by the authorized designee.

(hhhhh) Any crime that is no longer codified in Oregon or other jurisdiction but that is the substantial equivalent of any of the crimes listed in this section (section (1)) as determined by the authorized designee.

(iiiii) A new crime, adopted by the Legislature following the most recent amendment of these rules, that is the substantial equivalent of any of the crimes listed in this section (section (1)) as determined by the authorized designee.

(2) Ten-Year Review. The crimes listed in this section are crimes that require that a fitness determination be completed if the date of conviction is within ten years of the date the OSAC Records Request form was signed.

(a) ORS 133.076, Failure to appear on criminal citation

(b) ORS 162.015, Bribe giving;

(c) ORS 162.025, Bribe receiving;

(d) ORS 162.065, Perjury;

(e) ORS 162.075, False swearing;

(f) ORS 162.117, Public investment fraud;

(g) ORS 162.145, Escape III;

(h) ORS 162.175, Unauthorized departure;

(i) ORS 162.185, Supplying contraband;

(j) ORS 162.195, Failure to appear II;

(k) ORS 162.205, Failure to appear I;

(l) ORS 162.247, Interfering with a peace officer;

(m) ORS 162.265, Bribing a witness;

(n) ORS 162.275, Bribe receiving by a witness;

(o) ORS 162.285, Tampering with a witness;

(p) ORS 162.295, Tampering with physical evidence;

(q) ORS 162.305, Tampering with public records;

(r) ORS 162.335, Compounding;

(s) ORS 162.355, Simulating legal process;

(t) ORS 162.365, Criminal impersonation;

(u) ORS 162.367, Criminal impersonation of peace officer;

(v) ORS 162.369, Possession of false law enforcement identification card;

(w) ORS 162.375, Initiating a false report;

(x) ORS 162.385, Giving false information to police officer for a citation;

(y) ORS 162.405, Official misconduct II;

(z) ORS 162.415, Official misconduct I;

(aa) ORS 162.425, Misuse of confidential information;

(bb) ORS 163.195, Recklessly endangering another person;

(cc) ORS 163.212, Unlawful use of an electrical stun gun, tear gas, or mace II;

(dd) ORS 163.245, Custodial interference II;

(gg) ORS 163.445, Sexual misconduct;

(ii) ORS 163.467, Private indecency;

(jj) ORS 163.700, Invasion of personal privacy;

(kk) ORS 163.750, Violating court's stalking protective order;

(ll) ORS 164.043, Theft III;

(mm) ORS 164.045, Theft II;

(nn) ORS 164.055, Theft I;

(oo) ORS 164.085, Theft by deception;

(pp) ORS 164.095, Theft by receiving;

(qq) ORS 164.135, Unauthorized use of a vehicle;

(rr) ORS 164.140, Criminal possession of rented or leased personal property;

(ss) ORS 164.162, Mail theft or receipt of stolen mail;

(tt) ORS 164.215, Burglary II;

(uu) ORS 164.235, Possession of burglar's tools;

(vv) ORS 164.255, Criminal trespass I;

(ww) ORS 164.265, Criminal trespass while in possession of firearm;

(xx) ORS 164.272, Unlawful entry into motor vehicle;

(yy) ORS 164.315, Arson II;

(zz) ORS 164.335, Reckless burning;

(aaa) ORS 164.354, Criminal Mischief II;

(bbb) ORS 164.365, Criminal Mischief I;

(ccc) ORS 164.369, Interfering with police animal;

(ddd) ORS 164.377, Computer crime;

(eee) ORS 165.007, Forgery II;

(fff) ORS 165.013, Forgery I;

(ggg) ORS 165.017, Criminal possession of a forged instrument II;

(hhh) ORS 165.022, Criminal possession of a forged instrument I;

(iii) ORS 165.032, Criminal possession of a forgery device;

(jjj) ORS 165.037, Criminal simulation;

(kkk) ORS 165.042, Fraudulently obtaining a signature;

(lll) ORS 165.055, Fraudulent use of a credit card;

(mmm) ORS 165.065, Negotiating a bad check;

(nnn) ORS 165.070, Possessing fraudulent communications device;

(ooo) ORS 165.074, Unlawful factoring of credit card transaction;

(ppp) ORS 165.080, Falsifying business records;

(qqq) ORS 165.085, Sports bribery;

(rrr) ORS 165.090, Sports bribe receiving;

(sss) ORS 165.095, Misapplication of entrusted property;

(ttt) ORS 165.100, Issuing a false financial statement;

(uuu) ORS 165.102, Obtaining execution of documents by deception;

(vvv) ORS 165.540, Obtaining contents of communication;

(www) ORS 165.543, Interception of communications;

(xxx) ORS 165.570, Improper use of 9-1-1 emergency reporting system;

(yyy) ORS 165.572, Interference with making a report;

(zzz) ORS 165.577, Cellular counterfeiting III;

(aaaa) ORS 165.579, Cellular counterfeiting II;

(bbbb) ORS 165.692, Making false claim for health care payment;

(cccc) ORS 165.800, Identity theft;

(dddd) ORS 166.025, Disorderly conduct;

(eeee) ORS 166.065, Harassment;

(ffff) ORS 166.076, Abuse of a memorial to the dead;

(gggg) ORS 166.115, Interfering with public transportation;

(hhhh) ORS 166.180, Negligently wounding another;

(iiii) ORS 166.190, Pointing firearm at another;

(jjjj) ORS 166.240, Carrying of concealed weapon;

(kkkk) ORS 166.250, Unlawful possession of firearms;

(llll) ORS 166.370, Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school;

(mmmm) ORS 166.382, Possession of destructive device prohibited;

(nnnn) ORS 166.384, Unlawful manufacture of destructive device;

(oooo) ORS 166.470, Limitations and conditions for sales of firearms;

(pppp) ORS 166.480, Sale or gift of explosives to children;

(qqqq) ORS 166.649, Throwing an object off an overpass II;

(rrrr) ORS 166.651, Throwing an object off an overpass I;

(ssss) ORS 166.660, Unlawful paramilitary activity;

(tttt) ORS 167.007, Prostitution;

(uuuu) ORS 167.090, Publicly displaying nudity or sex for advertising purposes;

(vvvv) ORS 167.212, Tampering with drug records;

(wwww) ORS 167.222, Frequenting a place where controlled substances are used;

(xxxx) ORS 167.325, Animal neglect II;

(yyyy) ORS 167.330, Animal neglect I;

(zzzz) ORS 167.355, Involvement in animal fighting;

(aaaaa) ORS 167.365, Dogfighting;

(bbbbb) ORS 167.370, Participation in dogfighting;

(ccccc) ORS 167.820, Concealing the birth of an infant;

(ddddd) ORS 411.630, Unlawfully obtaining public assistance;

(eeeee) ORS 411.675, Submitting wrongful claim or payment (e.g., public assistance);

(fffff) ORS 411.840, Unlawfully obtaining or disposing of food stamp benefits;

(ggggg) ORS 417.990, Penalty for placement of children in violation of compact;

(hhhhh) ORS 418.130, Unauthorized use and custody of records of temporary assistance for needy families program;

(iiiii) ORS 418.140, Sharing assistance prohibited;

(jjjjj) ORS 418.250, Supervision of child-caring agencies;

(kkkkk) ORS 418.327, Licensing of certain schools and organizations offering residential programs;

(lllll) ORS 433.010, Spreading disease (willfully) prohibited;

(mmmmm) ORS 471.410, Providing liquor to person under 21 or to intoxicated person; allowing consumption by minor on property;

(nnnnn) ORS 475.950, Failure to report precursor substance;

(ooooo) ORS 475.955, Failure to report missing precursor substances;

(ppppp) ORS 475.960, Illegally selling drug equipment;

(qqqqq) ORS 475.965, Providing false information on precursor substances report;

(rrrrr) ORS 475.981, Falsifying drug test results;

(sssss) ORS 475.991, Unlawful delivery of imitation controlled substance;

(ttttt) ORS 475.993, Prohibited acts for registrants (with the State Board of Pharmacy; regarding misdemeanor crimes);

(uuuuu) ORS 475.994, Prohibited acts involving records and fraud;

(vvvvv) ORS 475.996, Commercial drug offense;

(wwwww) ORS 657A.280, Failure to certify child care facility

(xxxxx) ORS 803.230, Forging, altering or unlawfully producing or using title or registration

(yyyyy) ORS 807.620, Giving false information to police officer

(zzzzz) ORS 811.140, Reckless driving

(aaaaaa) ORS 811.540, Fleeing or attempting to elude police officer;

(bbbbbb) ORS 811.700, Failure to perform duties of driver when property is damaged;

(cccccc) ORS 811.705, Failure to perform duties of driver to injured persons;

(dddddd) ORS 819.300, Possession of a stolen vehicle;

(eeeeee) ORS 830.475, Failure to perform the duties of an operator (boat);

(ffffff) Any unclassified misdemeanor defined in Oregon's or any other jurisdiction's statutes not listed elsewhere in this rule;

(gggggg) Any other misdemeanor in Oregon's or any other jurisdiction's statutes not listed elsewhere in this rule that is serious and indicates behavior that poses a threat to safety or security, as determined by the authorized designee;

(hhhhhh) Any crime of attempt, solicitation or conspiracy to commit a crime listed in this section pursuant to ORS 161.405 or 161.435, including any conviction based on criminal liability for conduct of another pursuant to ORS 161.155;

(iiiiii) Any crime in any other jurisdiction which is the substantial equivalent of any of the Oregon crimes listed in this section (section (2)) as determined by the authorized designee;

(jjjjjj) Any crime which is no longer codified in Oregon, but which is the substantial equivalent of any of the crimes listed in this section (section (2)) as determined by the authorized designee;

(kkkkkk) A new crime, adopted by the Legislature following the most recent amendment of these rules, which is the substantial equivalent of any of the crimes listed in this section (section (2)) as determined by the authorized designee;

(3) Five-Year Review. The crimes listed in this section are crimes which require that a fitness determination be completed if the date of conviction is within five years of the date the OSAC Records Request form was signed.

(a) ORS 162.085, Unsworn falsification;

(b) ORS 162.235, Obstructing governmental or judicial administration;

(c) ORS 162.315, Resisting arrest;

(d) ORS 164.245, Criminal trespass II;

(e) ORS 164.345, Criminal mischief III;

(f) ORS 165.555, Unlawful telephone solicitation of contributions for charitable purposes;

(g) ORS 166.075, Abuse of venerated objects;

(h) ORS 166.090, Telephonic harassment;

(i) ORS 166.095, Misconduct with emergency telephone calls;

(j) ORS 167.340, Animal abandonment;

(k) ORS 418.630, Operating uncertified foster home;

(l) ORS 811.182, Criminal driving while suspended or revoked;

(m) ORS 813.010, Driving under the influence of intoxicants (DUII);

(n) ORS 830.325, Operating boat while under influence of intoxicating liquor or controlled substance;

(o) Any conviction for attempt, solicitation or conspiracy to commit a crime listed in this section pursuant to ORS 161.405 or 161.435, including any conviction based on criminal liability for conduct of another pursuant to ORS 161.155;

(p) Any crime in any other jurisdiction which is the substantial equivalent of any of the Oregon crimes listed in this section (section (3)) as determined by the authorized designee;

(q) Any crime which is no longer codified in Oregon, but which is the substantial equivalent of any of the crimes listed in this section (section (3)) as determined by the authorized designee;

(r) A new crime, adopted by the Legislature following the most recent amendment of these rules, which is the substantial equivalent of any of the crimes listed in this section (section (3)) as determined by the authorized designee.

(4) Evaluation Based on Oregon Laws. Evaluations of crimes shall be based on Oregon laws and laws in other jurisdictions in effect at the time of the fitness determination, regardless of the jurisdiction in which the conviction occurred.

(5) 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.

(6) Expunged Adult Record. Under no circumstances shall a subject individual be denied under these rules because of the existence or contents of an adult record that has been expunged or set aside pursuant to ORS 137.225.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0290

Other Potentially Disqualifying Conditions

The following are potentially disqualifying conditions:

(1) False Statement. A "false statement" by the subject individual to the authorized designee or agency, including provision of materially false information, false information regarding criminal history, or failure to disclose information regarding criminal history.

(2) Sex Offender. The subject individual is a registered sex offender in Oregon or any other jurisdiction.

(3) Warrants. An outstanding warrant against the subject individual for any crime in any jurisdiction.

(4) Deferred Sentence, Diversion Program, Parole or Probation. The subject individual has a deferred sentence, conditional discharge, is participating in a diversion program, or has not completed a required diversion program or any condition of post-prison supervision, parole or probation, for any potentially disqualifying crime listed in OAR 575-007-0280.

(5) Parole or Probation Violation. A post-prison supervision, parole or probation violation during the previous five years for any potentially disqualifying crime listed in OAR 575-007-0280.

(6) Unresolved Arrests, Charges or Indictments. An unresolved arrest, charge, or a pending indictment, for a potentially disqualifying crime. (Example: An unresolved arrest for a ten-year review crime during the previous ten years).

(7) Adjudication. Adjudication in a juvenile court, finding that the subject individual was responsible for a potentially disqualifying crime. Consideration of the adjudication of a potentially disqualifying crime will follow the review periods for crimes listed in OAR 575-007-0280.

(8) Guilty Except for Insanity. A finding of "guilty except for insanity", "guilty except by reason of insanity", "not guilty by reason of insanity" or similarly worded disposition regarding a potentially disqualifying crime listed in OAR 575-007-0280. Consideration of the guilty except for insanity finding of a potentially disqualifying crime will follow the review periods for crimes listed in OAR 575-007-0280.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0300

Other Information Considered

(1) Consideration of Other Information. When other information is disclosed by the subject individual, or is otherwise known by the authorized designee, the authorized designee must consider such information in addition to potentially disqualifying crimes and conditions when making the fitness determination, including but not limited to:

(a) Circumstances regarding the potentially disqualifying crimes and conditions. These may include, but are not limited to:

(A) Age of the subject individual at time of the crime;

(B) Details of incidents leading to the charges of potentially disqualifying crimes or resulting in potentially disqualifying conditions;

(C) Facts that support or contradict the conviction, pending indictment, the making of a false statement, or other potentially disqualifying condition; or

(D) Consideration of Oregon or federal laws, regulations, or rules covering the position, facility or employer in regard to the potentially disqualifying crimes or conditions.

(b) Other Circumstances. The authorized designee must also consider other factors when relevant information is provided by the Commission or the subject individual including, but not limited to:

(A) Other information related to criminal activity including charges, arrests, and convictions. This includes subsequent commission of another relevant crime and whether the conviction was set aside and the legal effect of setting aside the conviction;

(B) Periods of incarceration of the subject individual;

(C) Passage of time since commission of the crime;

(D) Parole or probation status;

(E) Evidence of drug or alcohol issues, including history of use, manufacturing, delivery, treatment, and rehabilitation;

(F) Evidence of other treatment or rehabilitation related to criminal activity or other factors listed in this rule;

(G) Likelihood of repetition of criminal behavior, including, but not limited to, the subject individual's acknowledgment and honesty relative to past behavior, patterns of criminal activity, and whether the subject individual appears to accept responsibility for past actions, as determined by the authorized designee;

(H) Changes in circumstances subsequent to the criminal activity or disqualifying condition;

(I) Education;

(J) Work history (employee or volunteer) or license or certificate history;

(K) Written recommendations from current or past employer(s);

(L) Indication that criminal history has or has not been truthfully and fully disclosed to employer;

(M) Indication of the subject individual's cooperation and honesty during the criminal records check process as described in these rules.

(c) Relevancy of History to Position. The relevancy of the subject individual's criminal history or false statement to the paid or volunteer position, or to the environment in which the subject individual will work, must be considered.

(2) Fitness Determination with Available Information. If the authorized designee requests other information for the purpose of conducting a weighing test under OAR 575-007-0320(5)(c), and the subject individual does not respond in a stated time period, the authorized designee will make a fitness determination based on the potentially disqualifying crimes or conditions, the available information, and the subject individual's failure to timely or adequately respond to information requests.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0310

Hiring on a Preliminary Basis

A subject individual may participate in training, orientation, and work activities prior to a final fitness determination only under the following conditions and will be considered to be hired on a preliminary basis:

(1) OSAC Records Request Form Completed. A OSAC Criminal Records Request form must have been completed by the subject individual and reviewed by the authorized designee.

(2) Preliminary Fitness Determination Required. A preliminary fitness determination must have been completed pursuant to OAR 575-007-0320.

(3) Active Supervision. A subject individual who is hired on a preliminary basis must be actively supervised at all times by someone who is approved pursuant to these rules.

(a) Duties. The person providing active supervision at all times must meet all of the following conditions:

(A) Know where the person hired on a preliminary basis is and what the person is doing; and

(B) Periodically observe the actions of the person hired on a preliminary basis.

(b) Exemption from Active Supervision. A subject individual who was approved without restrictions within the previous 24 months through a documented criminal records check pursuant to these rules by OSAC or by another Oregon public employer or prior OSAC criminal records check rules may be hired on a preliminary basis without active supervision, provided the subject individual provides proof of having worked for a sustained period under the previous fitness determination. The Commission must maintain the documentation. The 24-month time frame is based on the length of time between the date of previous approval and the date of starting the new position.This exemption is not allowed:

(A) If the subject individual discloses criminal history that occurred within the previous 24 months;

(B) If the subject individual is currently involved in an appeal under these rules; or

(C) If, as determined by the authorized designee or the Commission, the job duties in the new position are so substantially different from the previous position that the previous fitness determination is inadequate for the current position.

(4) Status Prior to Final Fitness Determination. Nothing in this rule is intended to require that a subject individual who is eligible for hire on a preliminary basis be allowed to work, volunteer, or be trained prior to a final fitness determination.

(5) Termination of Hire on a Preliminary Basis.

(a) Those subject individuals hired on a preliminary basis may be terminated by the Commission immediately for the following reasons:

(A) There is any indication of falsification of application or other false statement by the applicant/employee;

(B) The criminal records check reveals a conviction for any potentially disqualifying crime not disclosed by the subject individual;

(C) The LEDS check identifies the subject individual as a "multi-state offender" and the subject individual did not disclose an out-of-state conviction or arrest;

(D) The subject individual failed to disclose a conviction or an arrest that did not result in a conviction;

(E) The Commission determines that hiring on a preliminary basis was not appropriate, based on the application, criminal history, position duties, or laws or rules applicable to the position.

(b) Termination of the hire on a preliminary basis is not subject to appeal under these rules.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0320

Fitness Determinations

(1) Fitness Determination Before Work or Placement. The Commission must not allow a subject individual to participate in training, orientation, or work activities prior to a fitness determination.

(2) Termination Following Denial. When a subject individual is denied, the individual must not be allowed to work, volunteer or be trained in an environment covered by these rules and must be terminated immediately. A denial applies only to the position and application in question.

(3) Preliminary Fitness Determination. A preliminary fitness determination must be completed prior to allowing a subject individual to be hired on a preliminary basis. The preliminary fitness determination must be made by an authorized designee. A person hired on a preliminary basis must meet all the criteria in either subsection (a) or (b) as listed below:

(a) No Indication of Potentially Disqualifying Crime. If there is no indication of a potentially disqualifying crime or condition on the OSAC Criminal Records Request form and the authorized designee or contact person has no reason to believe the subject individual has potentially disqualifying history, the subject individual may be hired on a preliminary basis.

(b) Self-Disclosed Criminal History. When a subject individual discloses a conviction or arrest for a potentially disqualifying crime in any jurisdiction, or any other potentially disqualifying condition, the individual may be hired on a preliminary basis only after a preliminary fitness determination using a weighing test is completed by an authorized designee.

(4) Final Fitness Determination. Upon receipt of the criminal history, the authorized designee must timely complete the fitness determination. The final fitness determination must be completed within 21 days after receiving the records information.

(a) This deadline may be extended in the discretion of the authorized designee.

(5) Potential Outcomes.

(a) Hiring on a Preliminary Basis. A subject individual may be hired on a preliminary basis following a preliminary fitness determination as described in section (3) of this rule.

(b) Automatic Approval. A subject individual is approved in a final fitness determination without a weighing test if after all required records information is received the subject individual meets all of the following conditions:

(A) No potentially disqualifying crimes, warrants, sex offender registration, probation or parole status, or other conditions;

(B) No unresolved arrests for potentially disqualifying crimes within the previous five years; and

(C) No discrepancies, and no failure to disclose conviction history or arrests.

(c) Weighing Test. Only authorized designees may conduct and participate in a weighing test. The weighing test must be used to assess fitness unless the subject individual receives automatic approval pursuant to subsection (5)(b) of this rule or the application is closed pursuant to subsection (5)(d) of this rule. In the weighing test, the authorized designee must consider the criminal history disclosed by the subject individual and other information as described in OAR 575-007-0280, 575-007-0290 and 575-007-0300 in order to assess fitness. When the weighing test is used in a final fitness determination, criminal history discovered during the criminal records check must also be considered. The authorized designee may rely on official written communications and records from law enforcement agencies and judicial systems, and on criminal history provided by the subject individual. Possible outcomes of a weighing test are as follows:

(A) Hiring on a Preliminary Basis. In a weighing test for a preliminary fitness determination, the outcome is either to allow, or to disallow, hiring on a preliminary basis. Hiring on a preliminary basis is not a possible outcome in a final fitness determination.

(B) Approval. A subject individual may be approved by one or more authorized designees after a weighing test.

(C) Denial. A subject individual who, following such consideration, is determined to pose a significant risk to safety or security while performing the functions covered by OAR 575-007-0220(2)(a)-(g) must be denied by the authorized designee.

(i) Volunteered History. A subject individual may be denied following a weighing test based upon potentially disqualifying history disclosed by the subject individual without conducting an Oregon, state-specific, or national criminal records check.

(ii) Discovered History. A subject individual may be denied following a weighing test based upon potentially disqualifying history discovered by the authorized designee or the Commission following an Oregon, state-specific, or national criminal records check.

(d) Closed Case.

(A) If the subject individual or Department discontinues the application or the subject individual fails to cooperate with the criminal records check process then the application is considered incomplete. Discontinuance or failure to cooperate includes, but is not limited to, the following circumstances:

(i) The subject individual refuses to be fingerprinted when required by these rules.

(ii) The subject individual does not respond within a stated period of time to a request from the authorized designee or the Commission 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 575-007-0300.

(iii) 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.

(iv) The subject individual is determined to not be eligible for the position or is not chosen for the position for reasons other than the criminal records check.

(B) The incomplete application is closed without a final fitness determination and there is no right to a contested case hearing.

(6) Notice to Subject Individual. Upon closure per section (5)(d) above or completion of a final fitness determination resulting in a denial, the authorized designee must provide written notice to the subject individual. The notice must be:

(a) In a format approved by the Commission, and

(b) Mailed or hand-delivered to the subject individual as soon as possible, but in no case later than fourteen days after the decision. The date of the decision must be recorded on the form. If mailed, the notice shall be mailed by regular mail to the address on the application or to an updated address provided in writing by the applicant.

(7) Documentation. Preliminary and final fitness determinations must be documented in writing.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0330

Contesting a Fitness Determination

(1) Work Pending Appeal Prohibited. If a subject individual is denied, then that person may not hold the position or be employed.

(2) 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 Commission, the subject individual may appeal to the entity providing the information. Such challenges are not subject to the Commission's appeal process described in this rule.

(b) Request for Re-Evaluation Following Correction. If the subject individual successfully contests the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation or other agency reporting information to the Commission, the Commission will conduct a new criminal records check and re-evaluate the criminal history upon submission of a new criminal records request form.

(3) Challenging the Fitness Determination. If a subject individual wishes to dispute an adverse final fitness determination, the subject individual may appeal the determination by requesting a contested case hearing. The subject individual must be notified of the opportunity for appeal on a form available from the Commission.

(a) Appeal. In order to request a contested case hearing the subject individual or the subject individual's legal representative must complete and sign the hearing request form. The form is available from the contact person for the Commission.

(b) Records. If a fingerprint-based criminal records check was conducted on the subject individual, then the hearing request form will also be deemed a request for the subject individual's own state and national criminal offender records.

(c) Deadline for Appeal. The completed and signed form must be received by the contact person no later than 10 days after the notice of the fitness determination is mailed for subject individuals who are employees, applicants for employment, volunteers, or applicants for volunteer positions with the Commission (subject individuals under OAR 575-007-0220(1) and 575-007-0220(2).

(d) Extension of Deadline. The Commission may extend the time to appeal if the Commission determines the delay was caused by factors beyond the reasonable control of the subject individual.

(e) Hearing on timeliness. The Commission may refer an untimely request to the Office of Administrative Hearings for a hearing on the issue of timeliness.

(f) Other Options. A subject individual may appeal a fitness determination through applicable personnel rules, policies, and collective bargaining provisions. 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.

(4) Informal Administrative Review (Mandatory). When a subject individual is denied and the subject individual, or the subject individual's legal representative, requests a contested case hearing, the Commission conducts an informal administrative review before referring the appeal to the Office of Administrative Hearings.

(a) Participation by Subject Individual. The subject individual and, if applicable, the subject individual's legal representative, must participate in the informal administrative review.

(A) Participation may include, but is not limited to:

(i) Providing fingerprint cards, if not previously provided, for the purpose of a national check pursuant to OAR 575-007-0270 or to confirm identity.

(ii) Providing additional information or additional documents.

(iii) Participating in a telephone or in-person conference.

(B) Failure to participate in the informal administrative review by the subject individual or the subject individual's representative may result in termination of hearing rights. The Commission will review a request to reinstate hearing rights if received in writing by the Commission within 14 days.

(b) Criminal records check.

(A) If the denial was based on disclosed criminal history, the Commission will conduct a criminal records check during the informal administrative review.

(B) The Commission may conduct additional criminal records checks during the informal administrative review to update or verify the subject individual's criminal history.

(c) Weighing Test Always Applied. The Commission will use the weighing test as described in these rules during the informal administrative review.

(d) Content of Administrative Review. The Commission representative, the authorized designee, the subject individual and the subject individual's legal representative may discuss any of the matters listed in OAR 137-003-0575(4). The administrative review may also be used to:

(A) Inform the subject individual of the rules that serve as the basis for the denial;

(B) Ensure the subject individual understands the reason for the denial;

(C) Give the subject individual an opportunity to review the information that is the basis for the denial, except as prohibited by state or federal law;

(D) Give the Commission and subject individual an opportunity to research or provide additional information to consider as listed in OAR 575-007-0300;

(E) Give the Commission and the subject individual the opportunity to correct any misunderstanding of the facts; or

(F) Determine if the subject individual wishes to have any witness subpoenas issued should a formal hearing be necessary.

(e) Decision Following Administrative Review. Upon completion of the informal review, the subject individual or the subject individual's legal representative is advised by the Commission in writing of the finding within 14 days. The notice of finding will be mailed or hand-delivered. If mailed, the notice shall be mailed by regular mail to the address on the application or to an updated address provided in writing by the applicant.

(f) Hearing Following Administrative Review. If the informal administrative review reverses the denial, no hearing will be held and the appeal will not be forwarded to the Office of Administrative Hearings. If the informal administrative review upholds the denial, the appeal will be referred to the Office of Administrative Hearings and a hearing is held unless the subject individual or the subject individual's legal representative withdraws the request for a contested case hearing or the Commission reverses the denial before the hearing is held.

(5) Contested Case Hearing.

(a) Format. The hearing is conducted in accordance with Attorney General's Uniform and Model Rules of Procedure, "Hearing Panel Rules," OAR 137-003-0501 and the rules that follow.

(b) Commission Representation. Employees of the Commission may in accordance with ORS 183.452 be authorized by the Commission's Director to represent the Commission in the contested case hearing. Authorization from the Office of Attorney General is also required. The Commission retains the right to be represented by the Attorney General.

(c) Exhibits. The administrative law judge must be provided a complete copy of the criminal records check information as follows:

(A) In the case of federal criminal history records and criminal history records from jurisdictions outside Oregon, the subject individual must obtain copies of the FBI criminal history report, or a copy of the state criminal history report from each state in which there was criminal or arrest history recorded. If a fingerprint-based criminal record check was conducted on the subject individual and if requested by the subject individual, the Commission will provide them with copies of the individual's own state and national criminal offender records. The subject individual or the subject individual's legal representative must provide copies of such documentation to the administrative law judge at least seven days prior to the scheduled hearing. The Commission may also provide out-of-state information received from other official sources.

(B) In the case of Oregon criminal history, the Commission may provide a copy of the LEDS printout, OJIN records or other court records to the administrative law judge, unless to do so would result in ex parte communication.

(d) Role of Administrative Law Judge. The Office of Administrative Hearings and the administrative law judge perform the following duties in the hearing process:

(A) Provide the subject individual or the subject individual's legal representative with all of the information required under ORS 183.413(2) in writing before the hearing;

(B) Conduct the hearing;

(C) Issue a dismissal by order when neither the subject individual nor the subject individual's representative appears at the hearing; and

(D) Issue a proposed order.

(e) Public Attendance. Neither the informal administrative review nor the contested case hearing is open to the public.

(6) Withdrawal. The subject individual or the subject individual's legal representative may withdraw a hearing request orally or in writing at any time. The withdrawal is effective the date it is received by the Commission or the Office of Administrative Hearings. A dismissal order will be issued by the Commission or the Office of Administrative Hearings. The subject individual may cancel the withdrawal in writing up to 14 days after the date the order is served.

(7) Proposed and Final Order.

(a) Informal Disposition. When an appeal is resolved before being referred to the Office of Administrative Hearings due to an administrative review or withdrawal, the Commission will serve a final order confirming the resolution.

(b) Failure to Appear. A hearing request is dismissed by order when neither the subject individual nor the subject individual's legal representative appears at the time and place specified for the hearing. The order is effective on the date scheduled for the hearing and is served by the Office of Administrative Hearings. The Commission will cancel the dismissal order on request of the subject individual or the subject individual's legal representative on a showing that the subject individual and the subject individual's legal representative were unable to attend the hearing and unable to request a postponement for reasons beyond their control.

(c) Proposed Order. After a hearing, the administrative laws judge issues a proposed order. If no written exceptions are received by the Commission within 14 days after the service of the proposed order, the proposed order becomes the final order.

(d) Exceptions. If timely written exceptions to the proposed order are received by the Commission, the Commission Director or the Director's designee will consider the exceptions and serve a final order, or request a revised proposed order from the administrative law judge.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0340

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 subject individual shall not only be permitted to inspect the individual's own state and national criminal offender records, but if requested by the subject 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 Commission, 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, 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) shall 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 Commission shall destroy the fingerprint cards and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(c) If only a state criminal records check is conducted, the Department of State Police shall destroy the fingerprint cards after the criminal records check is completed and the results of the criminal records check are provided to the Commission and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(4) OSAC Forms and Other Documentation.

(a) Confidentiality. All completed OSAC Records Request forms must be kept confidential and disseminated only on a need-to-know basis.

(b) Retention. OSAC forms and other records documenting the criminal records check and used in the fitness determination must be retained and destroyed in accordance with records retention schedules published by Oregon State Archives and implemented by Department of Administrative Services, Human Resources Division.

(5) OSAC History Database. Commission maintains a database regarding criminal records checks.

(a) Data. The authorized designee will maintain a system of information regarding criminal records checks for volunteers and contractor who have been active within the past three years.

(b) Confidentiality. Records maintained under section (4) of this rule are confidential and are only disseminated by the Commission as allowed by these rules and in accordance with the rules of the Oregon State Police (OSP).

(c) Retention. Information maintained in the database must be retained and destroyed in accordance with records retention schedules published by Oregon State Archives and in accordance with federal law.

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0350

Immunity from Liability

The Commission and its authorized designee have immunity from any civil liability that might otherwise be incurred or imposed for determining, in accordance with Chapter 730 (2005 Laws) that a subject individual is fit or not fit to hold a position, provide services, or be employed. The Commission or its employee acting within the course and scope of employment who in good faith complies with Chapter 730 (2005 Laws) is not liable for employment-related decisions based on the fitness determination. No Department, or an employee of the state, the Commission, 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 Chapter 730 (2005 Laws).

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

575-007-0380

Fees

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

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL
Stats. Implemented: Ch. 730 2005 OL
Hist.: OSAC 4-2006, f. & cert. ef. 11-1-06

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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