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The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
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PARKS AND RECREATION DEPARTMENT

 

DIVISION 2

ADMINISTRATIVE ACTIVITIES

736-002-0010

State Park Cooperating Associations

(1) Pursuant to ORS 390.121 to 390.150, the director of the Oregon State Parks and Recreation Department is authorized to enter into agreements with cooperating associations, which are private, non-profit scientific, historic or educational associations organized solely for the purpose of providing interpretive services to recreational facilities in Oregon. Recreation facility includes but is not limited to state parks, state recreation areas, and all recreational, historical and scenic attractions owned or under the control of the State of Oregon and administered by the Parks and Recreation Department.

(2) The following rules are established to carry out the purposes of this program. Agreement form 73410-1602 will be entered into by the cooperating association and the director of the state parks department:

(a) The activities of cooperating associations shall enhance park or facility interpretive and educational functions. Association activities at a recreation facility may not conflict with park or facility resources or objectives and shall be subject to prior approval by the district park manager;

(b) Cooperating associations may be formed to assist Oregon State Parks at a local, regional or statewide level provided that no more than one cooperating association shall be created to undertake activities in a single park or facility. Associations shall be separate entities, but are encouraged to work together as appropriate. Cooperating associations may sponsor interpretive or educational events or functions, as approved by the district park manager;

(c) Each association shall determine the number of directors to comprise the governing board. A state park representative, designated by the director, shall be an ex-officio member of the board. If the board desires, Oregon State Parks in its discretion may provide assistance to the board on an incidental basis. It will be the responsibility of each cooperating association to secure appropriate charter(s) and non-profit, tax-exempt status under provisions of Section 501(c)3 of the federal Internal Revenue Service Tax Code. Cooperating association membership fees may be allowed at the direction of the cooperating association board of directors;

(d) The cooperating association may:

(A) Provide educational or interpretive material for sale at a recreation facility;

(B) Acquire display materials and equipment for exhibits at a recreation facility;

(C) Provide support for special recreation facility interpretive programs or environmental education programs;

(D) Support recreation facility libraries; or

(E) Provide support for other interpretive projects related to a specific recreation facility.

(e) The Oregon State Parks and Recreation Department may:

(A) Provide incidental personnel services to the organization's interpretive program; and

(B) Provide space at a state park facility for the interpretive materials provided by the organization.

(f) Any money received from the sale of publications or other materials provided by an organization pursuant to an agreement entered into under this section shall be retained by the organization for use in the interpretive or educational services of the recreation facility for which the organization provides services. In the event that the cooperative association disbands or dissolves, remaining funds shall be donated to Oregon State Parks and earmarked for interpretive and educational purposes within the Oregon State Park system. An annual fiscal report of the cooperating association shall be presented to the state parks director;

(g) Associations may make available for sale theme-related objects which, in the judgment of the director or designee, can effectively contribute to the success of the park or facility interpretive program. Critical evaluation of proposed sales objects to insure that they are theme-related is extremely important to both Oregon State Parks and non-profit status of the cooperating association. Decisions made by the director are final;

(h) An agreement between a cooperating association and the director may be terminated upon thirty (30) days written notification by either party to the other.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183.545, ORS 183.550, ORS 184 & ORS 390.124
Stats. Implemented: ORS 390.143 - ORS 390.144
Hist.: PR 10-1986, f. & ef. 7-9-86; PR 2-1993, f. & cert. ef. 1-29-93; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0015

Working with Donor Organizations

Authority and Purpose

(1) Oregon Laws 2013, chapter 299, section 2 authorizes the director of the Oregon State Parks and Recreation Department to enter into agreements with private, nonprofit organizations by which the organizations shall solicit gifts, grants and donations for the benefit of the department or donate goods and services to the department.

(2) The purpose of these rules is to provide procedures for soliciting and accepting proposals, reaching agreements, depositing funds, evaluating agreements and renewing or dissolving agreements.

Definitions

(3) As used in these rules and forms to be prepared by the Oregon Parks and Recreation Department, the following definitions apply:

(a) “Agreement” means a written agreement entered into between a donor organization and the department for the purposes identified in Oregon Laws 2013, chapter 299, section 2, subsection 1.

(b) "Department" means the Oregon Parks and Recreation Department or its staff.

(c) "Director" means the director of the Oregon Parks and Recreation Department.

(d) “Donation” means gifts, grants, cash donations, goods or services.

(e) "Donor proposal" means a written proposal submitted by a donor organization in a format as required by the department, and which requests to enter into an agreement with the department according to Oregon Laws 2013, ch. 299, section 2, subsection 1.

(f) "Donor organization" or "donor" means a federally tax exempt nonprofit organization registered with the Oregon Secretary of State.

Donor Organization Eligibility

(4) To be eligible to submit a donor proposal, a private nonprofit organization must:

(a) Meet the definition of a donor organization under subsection (3)(e); and

(b) Have an organizational mission that is consistent with the department’s mission and strategic priorities.

Soliciting and Accepting Donor Proposals

(5) The department may request donor proposals as needed or on a biennial basis by posting a notice on the department’s website and on the electronic procurement system the department uses to advertise contracting opportunities. The department may use additional notification means when necessary.

(6) To submit an unsolicited donor proposal, eligible donor organizations may contact the director’s office at any time to obtain information on the process for submitting such a proposal, including required forms.

(7) The department’s goal is to respond to proposals submitted under sections (5) and (6) within 30 days of receipt. If the department has not responded within such time, the applicant organization may contact the director’s office and inquire about the proposal status. Failure to receive a response from the department shall not be interpreted as department acceptance of a proposal.

Evaluating Donor Proposals

(8) When evaluating a donor proposal, the department shall consider the following:

(a) Whether the proposal furthers the department’s strategic priorities;

(b) Whether the proposal will produce financial or public service benefits to the department in excess of the department’s cost to fulfill the agreements;

(c) Whether the proposal demonstrates that the donor organization has the ability to successfully carry out the proposed agreement terms;

(d) Whether the department can successfully meet its obligations as specified or anticipated by the proposal; and

(e) Other factors the department deems appropriate.

(9) The department has sole discretion to accept or deny donor proposals. The department will communicate its decisions to applicants in writing. Acceptance of a donor proposal only means that the department will attempt to reach an agreement with the donor organization as provided in sections (10) to (13), and does not otherwise create an obligation on the department.

Reaching Agreement

(10) The department has 90 days from the date it accepts a donor proposal to negotiate the terms and conditions of an agreement with the selected donor organization. If an agreement is not reached in 90 days, the department may extend the negotiation period at its discretion or may rescind the acceptance.

(11) Each agreement must contain provisions that address the following:

(a) The agreement scope, dates or general timeframe, and projects to be completed by the donor or the process by which individual projects will be agreed upon and implemented;

(b) What the donor organization will provide to the department, the anticipated value and schedule of donations, the manner in which they will be provided, the ownership of each item, if applicable, the records to be kept by the donor organization, and the detail and timing of required reporting concerning the cost of department resources or services made available to donor organizations and the corresponding donations given to the department;

(c) What the department will provide to the donor organization, the schedule and cost for any state resources or services anticipated to be provided, and the manner in which the organization will request and the department will provide resources or services.

(d) Compliance with the terms of relevant statutes, administrative rules and department requirements, including use of the state seal and the department shield;

(e) Representation of the donor organization’s relationship with the department and the requirement that the donor organization must report any political lobbying activities related to the agreement to the department within seven calendar days of undertaking the activity;

(f) Provisions for amending, renewing, and terminating the donor agreement; and

(g) The right of the department to refuse any donations.

(12) All agreements must be in writing and approved by the director or designee in accordance with the department’s authority delegation policy.

(13) At least 30 days prior to the director signing an agreement, the department must:

(a) Post a notice on the department’s website and on the electronic procurement system the department uses to advertise contracting opportunities announcing the proposed agreement with information about its purpose, content, and a link to its online location.

(b) Submit a copy of an executive summary of the content of the proposed agreement to every member of the Legislative Assembly by electronic mail that includes a link to the online location of the proposed agreement; and

(c) Submit a copy of the proposed agreement to the Legislative Administrator.

Management of Funds

(14) The department must deposit all funds received from agreements in subaccounts of the State Parks and Recreation Department Fund as established by ORS 390.134.

Monitoring and Evaluating Agreements

(15) The department must monitor agreements while in progress to determine whether they are properly executed and remain beneficial to the department.

(16) Within the 60 day period prior to the expiration of an agreement, the department must determine whether:

(a) The agreement delivered the benefits outlined;

(b) The donor organization complied with the agreement terms and conditions;

(c) The benefits received provided significant value to the department relative to the costs of the state resources or services expended to secure the benefits;

(d) The department was able to fulfill its obligations under the terms of the agreement; and

(e) The department would consider new agreements with the same donor organization in the future.

Ending or Renewing Agreements

(17) During the course of an agreement, each party may terminate the agreement at any time without cause by providing 30 days written notice to the other party.

(18) Prior to the expiration of an agreement, the department may consider two options based on the results of the agreement evaluation in section (16):

(a) Allow the agreement to expire; or

(b) Renew the agreement by extending or altering the existing agreement scope, conditions and terms, subject to the notice requirements in section (13).

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.134
Hist.: PRD 5-2013, f. & cert. ef. 10-4-13

736-002-0020

Criminal Records Checks, Statement of Purpose and Applicability, Statutory Authority

(1) Purpose. These rules control the Department's acquisition of information about a subject individual's criminal history through criminal records checks or other means and its use of that information to determine whether the subject individual is fit to provide services to the Department as an employee, volunteer, contractor, or licensee in a position identified in OAR 736-002-0032. The fact that the Department approves a subject individual as fit does not guarantee the individual a position as a Department employee or status as a Department volunteer, contractor, or licensee.

(2) Authority. These rules are authorized under ORS 181.534, 390.124, 390.131, 390.140, 565.060, and 565.071.

Stat. Auth.: .ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0030

Definitions

The following definitions are used for the purposes of these Oregon Administrative Rules pertaining to criminal records checks.

(1) "Approved" means that, pursuant to a preliminary fitness determination under OAR 736-002-0050 or a final fitness determination under OAR 736-002-0058, an authorized designee has determined that the subject individual is fit to be an employee, contractor, licensee or volunteer in a position covered by OAR 736-002-0032.

(2) "Authorized Designee" means a Department employee authorized to obtain, review or process criminal offender information and other criminal records information about a subject individual through criminal records checks and other means, and to conduct a fitness determination in accordance with these rules.

(3) "Contact Person" means a person who is authorized by the Department to receive and process criminal records check request forms signed by subject individuals and is authorized to receive criminal records information. The contact person is not allowed to make final fitness determinations. The contact person is allowed to make preliminary fitness determinations under the authority of the Department only if there is no indication of potentially disqualifying crimes or conditions.

(4) "Conviction" means that a court of law has entered a final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere (no contest) against a subject individual in a criminal case, unless that judgment has been reversed or set aside by a subsequent court decision.

(5) "Criminal Offender Information" includes records and related data as to physical description and vital statistics 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 arrest, and the nature and disposition of criminal charges, including sentencing, confinement, parole and release.

(6) "Crime Relevant to a Fitness Determination" means a crime listed or described in OAR 736-002-0070.

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

(a) "LEDS Criminal Records Check" means a name-based check of Oregon criminal offender information conducted through use of the Law Enforcement Data System (LEDS) maintained by the Oregon Department of State Police in accordance with the rules adopted and procedures established by the Oregon Department of State Police.

(b) "Oregon Criminal Records Check" means a check of Oregon criminal offender information, including through fingerprint identification, conducted by the Oregon Department of State Police at the Department's request.

(c) "Nationwide Criminal Records Check" means a nationwide check of federal criminal offender information, including through fingerprint identification, conducted by the Oregon Department of State Police through the Federal Bureau of Investigation or otherwise at the Department's request.

(8) "Criminal Records Check and Fitness Determination Rules" or "these rules" means Oregon Administrative Rules (OAR) chapter 736, division 2, except OAR 736-002-0010.

(9) "Department" means the Oregon Parks and Recreation Department and any division or office thereof.

(10) "False Statement" means a subject individual either (a) provided the Department with materially false information about his or her criminal history, or (b) failed to provide to the Department information material to determining his or her criminal history.

(11) "Family Member" means a spouse, domestic partner, natural parent, foster parent, adoptive parent, stepparent, child, foster child, adopted child, stepchild, sibling, 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.

(12) "Fitness Determination" means a determination made by an authorized designee or a contact person pursuant to the process established in OAR 736-002-0050 or by an authorized designee pursuant to the process established in OAR 736-002-0058, that a subject individual is or is not fit to be a Department employee, contractor, licensee or volunteer in a position covered by OAR 736-002-0032.

(13) "Oregon State Fair" means a division of the Oregon Parks and Recreation Department responsible for holding the annual Oregon State Fair and managing, scheduling, renting, and maintaining the facilities of the Oregon State Fair.

(14) "Subject Individual" means an individual identified in OAR 736-002-0032 as someone from whom the Department may require statements about identity and criminal history and fingerprints for the purpose of conducting a criminal records check.

(15) "Unfit" means that, pursuant to a preliminary fitness determination under OAR 736-002-0050 or a final fitness determination under OAR 736-002-0058, an authorized designee or contact person has determined that the subject individual is unfit to be an employee, contractor, licensee or volunteer in a position covered by OAR 736-002-0032.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0032

Subject Individual

The Department may require a subject individual to provide statements about personal identity, criminal history or to provide fingerprints for the purpose of conducting a criminal records check because the person:

(1)(a) Is employed by or applying for employment with the Department; or

(b) Provides services or seeks to provide services to the Department as a contractor, or volunteer; or

(c) Is a licensee of the Oregon State Fair or is applying for a license or renewal of a license that is issued by the Oregon State Fair division of OPRD; and

(2) Is or will be working or providing services in a position with the Department:

(a) In which the person has direct access to persons under 18 years of age, elderly persons, or persons with disabilities;

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

(c) In which the person has payroll functions, or in which the person has responsibility for receiving, receipting, or depositing money or negotiable instruments, billing, collections, or other financial transactions,

(d) In which the person has access to personal information about employees or members of the public, including Social Security numbers, dates of birth, driver's license numbers, medical information, personal financial information, or criminal history information;

(e) In which the person provides security, design, or construction services for government buildings, grounds, or facilities;

(3)(a) Is employed or applying for employment with the Department exclusive of the Oregon State Fair; or

(b) Provides services or seeks to provide services to the Department exclusive of the Oregon State Fair as a contractor or volunteer; and

(4) Is or will be working or providing services in a position with the Department exclusive of the Oregon State Fair,

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

(b) In which the person is responsible for purchasing or selling property, or has access to property held in trust or private property in the temporary custody of the state;

(c) In which the person has responsibility for auditing agency financial transactions;

(d) In which the person has access to tax or financial information of individuals or business entities;

(e) In which the person may issue citations under ORS 390.050.

(5)(a) Is employed or applying for employment with the Oregon State Fair division of OPRD; or

(b) Provides services or seeks to provide services to the Oregon State Fair division of OPRD as a contractor or volunteer; or

(c) Is a licensee of the Oregon State Fair or is applying for a license or renewal of a license that is issued by the Oregon State Fair division of OPRD; and

(6) Is or will be working or providing services in a position with the Oregon State Fair division of OPRD:

(a) In which the person has responsibility for sales or distribution of tickets or other instruments that can be exchanged for good, services, or access to events held on Oregon State Fair property;

(b) In which the person has key access to Oregon State Fair buildings and grounds that contain private property belonging or entrusted to exhibitors, promoters, licensees and event coordinators.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, 390.200, 565.071
Stats. Implemented: ORS 181.534.
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0038

Designated Positions: Authorized Designee and Contact Person

(1) Appointment.

(a) The Department Director or the Director's designee shall designate the positions that include the responsibilities of an authorized designee and /or contact person.

(b) Appointment to one of the designated positions shall be contingent upon an individual being approved under the Department's criminal records check and fitness determination process.

(c) Appointments shall be made by the Department Director or the Director's designee at his or her sole discretion.

(2) The Department Director or the Director's designee may also serve as an authorized designee or contact person, contingent on being approved under the Department's criminal records check and fitness determination process.

(3) Conflict of Interests. Authorized designees and contact persons shall not participate in a fitness determination or review any information associated with a fitness determination for a subject individual if either of the following is true:

(a) The authorized designee or contact person is a family member of the subject individual; or

(b) The authorized designee or contact person has a financial or close personal relationship with the subject individual. If an authorized designee or contact person is uncertain of whether a relationship with a subject individual qualifies as a financial or close personal relationship under this paragraph (b), the authorized designee or contact person shall consult with his or her supervisor prior to taking any action that would violate this rule if such a relationship were determined to exist.

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

(a) When an authorized designee's or contact person's employment in a designated position ends, his or her status as an authorized designee or contact person is automatically terminated.

(b) The Department shall suspend or terminate a Department employee's appointment to a designated position, and thereby suspend or terminate his or her status as an authorized designee or contact person, if the employee fails to comply with OAR 736-002-0010 through 736-002-0160 in conducting criminal records checks and fitness determinations.

(c) An authorized designee or contact person shall immediately report to his or her supervisor if he or she is arrested for or charged with, is being investigated for, or has an outstanding warrant or pending indictment for a crime listed in OAR 736-002-0070. Failure to make the required report is grounds for termination of the individual's appointment to a designated position and thereby termination of his or her status as an authorized designee.

(d) The Department will review and update an authorized designee's and contact person's eligibility for service in a designated position, at which time a new criminal records check and fitness determination may be required. This review can occur at any time the Department has reason to believe the authorized designee or contact person has violated these rules or is no longer eligible to serve in his or her current position.

(5) A determination of being unfit under OAR 736-002-0058 (3) related to a designated position is subject to the appeal rights provided under OAR 736-002-0102.

Stat. Auth.: ORS 181.534, 184.340, 184.365.
Stats. Implemented: ORS 181.534(9).
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0042

Criminal Records Check Process

(1) Disclosure of Information by Subject Individual.

(a) Preliminary to a criminal records check, a subject individual shall complete and sign the OPRD Criminal Records Request (form 63400-2053HR), and, if requested by the Department, a fingerprint card. The Criminal Records Request form shall require the following information: name, birth date, Social Security number, driver's license or identification card number, current address, prior residences in other states, and any other information deemed necessary by the authorized designee. The OPRD Criminal Records Request form may also require details concerning any circumstance listed in OAR 736-002-0050(3)(a)-(h)

(b) A subject individual shall complete and submit to the Department the OPRD Criminal Records Request (form #63400-2053HR), and, if requested, a fingerprint card within three business days of receiving the forms. An authorized designee may extend the deadline for good cause.

(c) The Department may not request a fingerprint card from a subject individual under the age of 18 years unless the Department also requests the written consent of a parent or legal guardian.

(d) Within a reasonable period of time, as established by an authorized designee, a subject individual shall disclose additional information as requested by the Department in order to resolve any issue hindering the completion of a criminal records check.

(2) When A Criminal Records Check Is Conducted. An authorized designee may conduct or request the Oregon Department of State Police to conduct a criminal records check when:

(a) An individual meets the definition of "subject individual"; or

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

(3) The Type of Criminal Records Check to Conduct. When an authorized designee determines under section 2 of this rule that a criminal records check is needed, the authorized designee shall proceed as follows:

(a) LEDS Criminal Records Check. The authorized designee may conduct a LEDS criminal records check as part of any fitness determination conducted in regard to a subject.

(b) Oregon Criminal Records Check. The authorized designee may request the Oregon Department of State Police to conduct an Oregon criminal records check (fingerprints required) when:

(A) The authorized designee determines that an Oregon criminal records check is warranted after review of the information provided by the subject individual, the results of a LEDS criminal records check, or other criminal records information; or

(B) The subject individual's job duties require a fingerprint criminal records check.

(c) Nationwide Criminal Records Check. The authorized designee may request the Oregon Department of State Police to conduct a nationwide criminal records check when:

(A) A subject individual has lived outside Oregon for 60 or more consecutive days during the previous three (3) years;

(B) Information provided by the subject individual or the results of a LEDS or Oregon criminal records check provide reason to believe, as determined by an authorized designee, that the subject individual has a criminal history outside of Oregon;

(C) As determined by an authorized designee, there is reason to question the identity of or information provided by a subject individual. Reasonable grounds to question the information provided by a subject individual include, but are not limited to: the subject individual discloses a Social Security Number that appears to be invalid; or the subject individual does not have an Oregon driver's license or identification card;

(D) A check is required by federal law or regulation, by state law or administrative rule, or by contract or written agreement with the Department;

(E) An Executive Service or Management Service employee seeks to serve as an authorized designee; or

(F) A subject individual is an OPRD employee working in, moving to, or applying for a position designated by the Department Director or the Director's designee as including the responsibilities of an authorized designee or contact person.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0050

Preliminary Fitness Determination

(1) An authorized designee may conduct a preliminary fitness determination if the Department is interested in hiring or appointing a subject individual on a preliminary basis, pending a final fitness determination.

(2) If an authorized designee elects to make a preliminary fitness determination about a subject individual, pending a final fitness determination, the authorized designee shall make that preliminary fitness determination about a subject individual based on information disclosed by the subject individual under OAR 736-002-0042(1) and a LEDS criminal records check.

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

(a) Has pled nolo contendere (or no contest to), been convicted of, found guilty of, or has a pending indictment for a crime listed under OAR 736-002-0070;

(b) Has been arrested for or charged with a crime listed under OAR 736-002-0070;

(c) Is being investigated for, or has an outstanding warrant for a crime listed under OAR 736-002-0070;

(d) Is currently on probation, parole, or post-prison supervision for a crime listed under OAR 736-002-0070;

(e) Has a deferred sentence or conditional discharge or is participating in a diversion program in connection with a crime listed under OAR 736-002-0070;

(f) Has been adjudicated in a juvenile court and found to be within the court's jurisdiction for an offense that would have constituted a crime listed in OAR 736-002-0070 if committed by an adult; or

(g) Is determined to be a sex offender and required to report under ORS 181.595, 181.596, or 181.597, or is determined to be a predatory sex offender under 181.585.

(h) Only for jobs where driving is an essential function, has a felony driving conviction or other driving crime convictions that indicate a pattern of high-risk driving behavior.

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

(5) If a subject individual is determined to be fit or unfit to work/volunteer on the basis of a preliminary fitness determination, an authorized designee thereafter shall conduct a final fitness determination under OAR 736-002-0058.

(6) A subject individual may not appeal a preliminary fitness determination under the process provided under OAR 736-002-0102 or otherwise.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0052

Hiring or Appointing on a Preliminary Basis

(1) The Department may hire or appoint a subject individual on a preliminary basis if an authorized designee has approved the subject individual on the basis of a preliminary fitness determination under OAR 736-002-0050.

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

(3) A subject individual hired or appointed on a preliminary basis is deemed to be on trial service and, if terminated prior to completion of a final fitness determination under OAR 736-002-0058, may not appeal the termination under the process provided under OAR 736-002-0102.

(4) If a subject individual hired or appointed on a preliminary basis is determined to be unfit upon completion of a final fitness determination, as provided under OAR 736-002-0058(3)(c), then the Department shall immediately terminate the subject individual's employment or appointment.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0058

Final Fitness Determination

(1) If the Department elects to conduct a criminal records check, an authorized designee shall make a final fitness determination about a subject individual based on information provided by the subject individual under OAR 736-002-0042(1), the criminal records check(s) conducted, if any, and any false statements made by the subject individual.

(2) In making a final fitness determination about a subject individual, an authorized designee shall consider the factors in paragraphs a-f of this section (2) in relation to information provided by the subject individual under OAR 736-002-0042(1), any LEDS report or criminal offender information obtained through a criminal records check, and any false statement made by the subject individual. To assist in considering these factors, the authorized designee may obtain any other information deemed relevant from the subject individual or any other source, including law enforcement and criminal justice agencies or courts within or outside of Oregon. To acquire other relevant information from the subject individual, an authorized designee may request to meet with the subject individual, to receive written materials from him or her, or both. The authorized designee will use all collected information in considering:

(a) Whether the subject individual has been arrested, pled nolo contendere (or no contest to), convicted of, found guilty of, or has a pending indictment for a crime listed in OAR 736-002-0070;

(b) The nature of any crime conviction identified under paragraph a of this section (2);

(c) The facts that support the arrest, conviction, finding of guilty, or pending indictment;

(d) The facts that indicate the subject individual made a false statement;

(e) The relevance, if any, of a crime identified under paragraph a of this section (2) or of a false statement made by the subject individual to the specific requirements of the subject individual's present or proposed position, services or employment; and

(f) The following intervening circumstances, to the extent that they are relevant to the responsibilities and circumstances of the services or employment for which the final 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 paragraph a of this section (2);

(B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under paragraph a of this section (2);

(C) The likelihood of a repetition of offenses or of the commission of another crime;

(D) The subsequent commission of another crime identified under OAR 736-002-0070;

(E) Whether a conviction identified under paragraph a has been set aside or pardoned, and the legal effect of setting aside the conviction or of a pardon;

(F) A recommendation of a current or recent employer;

(3) Possible Outcomes of a Final Fitness Determination.

(a) Automatic Approval. An authorized designee shall approve a subject individual if the information reviewed as described in paragraphs (1) and (2) of this rule shows none of the following:

(A) Evidence that the subject individual has been convicted of, or found guilty of a crime listed in OAR 736-002-0070;

(B) Evidence that the subject individual has a pending indictment for a crime listed in OAR 736-002-0070;

(C) Evidence that the subject individual has been arrested for any crime listed in OAR 736-002-0070;

(D) Evidence of the subject individual having made a false statement; and

(E) Any discrepancies between the criminal offender information and information obtained from the subject individual.

(b) Restricted Approval.

(A) If an authorized designee approves a subject individual under paragraph 3,b of this rule, the authorized designee may restrict the approval to specific activities or locations.

(B) An authorized designee shall complete a new criminal records check and fitness determination on the subject individual prior to removing a restriction.

(c) Unfit for Employment/Appointment.

(A) If a final fitness determination under this rule shows credible evidence of any of the factors identified in paragraphs (3)(a)(A)–(E), of this rule and, after evaluating the information described in paragraphs (1) and (2) of this rule, an authorized designee concludes that the subject individual acting in the position for which the fitness determination is being conducted would pose a risk of harm to the Department, its client entities, the State, or members of the public, the authorized designee shall determine the subject individual to be unfit for the position.

(B) If a subject individual is determined to be unfit, then the subject individual may not be employed by or provide services as a contractor, licensee, or volunteer to the Department in a position covered by OAR 736-002-0032.

(C) Under no circumstances shall a subject individual be determined to be unfit 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.

(d) Refusal to Consent: If a subject individual refuses to submit or consent to a criminal records check including fingerprint identification, the authorized designee shall close the fitness determination file in accordance with OAR 736-002-0082 without further assessment under the fitness determination process.

(4) Final Fitness Determination. A final fitness determination becomes final unless the affected subject individual appeals by requesting either a contested case hearing or an alternative appeals process as described in OAR 736-002-0102.

(5) Reapplication. A new application received from a subject individual, who has received a final fitness determination and been determined to be unfit for an OPRD position or appointment, will not be considered during the same open recruitment period for the same position or volunteer appointment. The final fitness determination will stand pending the outcome of any appeal. No other recourse is available to the subject individual.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0070

Crimes to be Considered

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

(2) Crimes Relevant to A Fitness Determination

(a) All felonies;

(b) All misdemeanors.

(c) Any federal crime;

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

(e) Any crime of attempt, solicitation, or conspiracy to commit any crime listed in this rule pursuant to ORS 161.405, 161.435, or 161.450.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0082

Closed Fitness Determination File

(1) The Department will close a fitness determination file when:

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

(b) The subject individual refuses to sign and/or complete a Criminal Records Request form and/or does not provide materials or information under OAR 736-002-0042 within the timeframes established under that rule;

(c) An authorized designee cannot locate or contact the subject individual;

(d) The subject individual fails or refuses to cooperate with an authorized designee's attempts to acquire other relevant information under OAR 736-002-0058(2);

(e) The Department determines that the subject individual is not eligible or not qualified for the position of employee or volunteer 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 736-002-0102 to challenge the closing of an incomplete fitness determination file.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0092

Notice to Subject Individual of Fitness Determination or File Closure

(1) An authorized designee shall provide written notice to a subject individual (form 63400-2055HR) of:

(a) A preliminary fitness determination;

(b) A final fitness determination;

(c) Closure of a fitness determination file.

(2) The written notice shall include:

(a) The date on which the fitness determination was completed or the fitness determination file was closed;

(b) In the case of a final fitness determination, a separate notice addressing the subject individual's right to request a contested case hearing to appeal the final fitness determination and containing the information required by OAR 137-003-0505 (form 63400-2056HR) shall also be provided.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0102

Appealing a Fitness Determination

(1) Purpose. This rule sets forth a contested case hearing process by which a subject individual may appeal a final fitness determination made under OAR 736-002-0058 that he or she is not fit to hold a position with or provide services to the Department as an employee, contractor, licensee, or volunteer.

(2) Process.

(a) A subject individual may appeal a final fitness determination by submitting a written request for a contested case hearing on OPRD Hearing Request (form 63400-2057HR) to the address specified in the notice provided under OAR 736-002-0092(2)(b) within 14 calendar days of the date appearing on the notice. The Department shall address a request received after expiration of the deadline as provided under OAR 137-003-0528.

(b) When a timely request is received by the Department under paragraph 2, a of this rule, a contested case hearing shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney General's Uniform and Model Rules, "Procedural Rules, Office of Administrative Hearings," OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions of this rule.

(3) Discovery. The Department or an administrative law judge may protect information made confidential by ORS 181.534(15) or other applicable law as provided in OAR 137-003-0570(7) or (8).

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

(5) Proposed and Final Order:

(a) Proposed Order. After a hearing, the administrative law judge shall issue a proposed order.

(b) Exceptions. The subject individual or the subject individual's legal counsel or the Department's representative may file written exceptions with the Department within 14 calendar days after service of the proposed order. Exceptions will be considered as set forth in OAR 137-003-0650 and 137-003-0655.

(c) Default. A final fitness determination made under OAR 736-002-0058 becomes final:

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

(B) When a party withdraws a hearing request, notifies the department or the administrative law judge that the party will not appear, or fails to appear at the hearing.

(6) Alternative Process. A subject individual currently employed by OPRD may choose to appeal a fitness determination either under the process made available by this rule or through the process made available by applicable human resource rules, policies and collective bargaining provisions. A subject individual's decision to appeal a final fitness determination through applicable human resource rules, policies, and collective bargaining provisions is an election of remedies as to the rights of the individual with respect to the fitness determination and is a waiver of the contested case process made available by this rule.

(7) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit, or fit with restrictions pursuant to OAR 736-002-0058.

(8) Challenging Criminal Offender Information.

(a) 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.

(b) To challenge information as identified in this section 8, a subject individual may use any process made available by the providing agency.

(9) Hiring Not Postponed or Delayed. Appealing a fitness determination under section 2 or section 6 of this rule, challenging criminal offender information with the agency that provided the information, or requesting a new criminal records check and re-evaluation of the original fitness determination under section 8 of this rule, will not delay or postpone the Department's hiring process or employment decisions except when the authorized designee, in consultation with the Human Resources Division, decides that a delay or postponement should occur.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0150

Recordkeeping, Confidentiality, and Retention

(1) Recordkeeping:

(a) An authorized designee shall document a preliminary or final fitness determination, or the closing of a fitness determination file in writing (OPRD form 63400-2055HR).

(b) Written documentation of preliminary or final fitness determination and closing of a fitness determination file (OPRD form 63400-2055HR) shall be retained in the applicant file for two years after the date of notice.

(2) Confidentiality:

(a) Records Received from Oregon Department of State Police:

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

(B) Within the Department, only authorized designees and contact persons shall have access to records the Department receives from the Oregon Department of State Police resulting from a criminal records check.

(C) An authorized designee or contact person shall have access to records received from the Oregon Department of State Police in response to a criminal records check only if there is a demonstrated and legitimate need to know the information contained in the records.

(D) Authorized designees and contact persons shall maintain and disclose records received from the Oregon Department of State Police resulting from a criminal records check in accordance with applicable requirements and restrictions in ORS chapter 181 and other applicable federal and state laws, rules adopted by the Oregon Department of State Police pursuant thereto (see OAR chapter 257, division 15), these rules, and any written agreement between the Department and the Oregon Department of State Police.

(E) Only if a fingerprint-based criminal records check was conducted with regard to a subject individual, and only upon receiving a signed written request/authorization to review from the subject individual, shall the Department permit that subject individual to inspect his or her own state and federal criminal offender information, unless prohibited by federal law.

(F) If a subject individual, with a right to inspect criminal offender information under paragraph (2)(a)(E) of this rule, requests a copy of the individual's own state and federal criminal offender information, the Department, only upon receiving from the subject individual a signed written request and authorization to release the subject individual's criminal records, shall provide the subject individual with a copy, unless prohibited by federal law. The Department shall require sufficient identification from the subject individual to determine his or her identity before providing the criminal offender information to him or her.

(b) Other Records.

(A) The Department shall treat all records received or created under these rules that concern the criminal history of a subject individual, including OPRD Criminal Record Disclosure & Request Authorization (form 63400-2053HR) and fingerprint cards, as confidential pursuant to ORS 181.534(15).

(B) Within the Department, only authorized designees and contact persons may have access to the records identified under paragraph 2, a, if this rule.

(C) An authorized designee and/or contact person shall have access to records identified under paragraph 2, a, of this rule only if they have a demonstrated and legitimate need to know the information contained in the records.

(D) A subject individual shall have access to records identified under section 2 of this rule pursuant to and only to the extent required by the terms of the Public Records Law.

(3) Retention: Criminal records check records may exist in a variety of forms and shall be retained in accordance with the Secretary of State, Archives Division, OAR 166-300-0040.

Stat. Auth.: ORS 390.124, 390.131, 390.140, 181.534, HB 2157 (2005 Legislative Session)
Stats. Implemented: ORS 181.534
Hist.: PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08

736-002-0160

Fees

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

(2) The Department shall not charge a fee if the subject individual is a Department employee, a Department volunteer, or an applicant for employment or a volunteer position with the Department.

Stat. Auth.: ORS 181.534, 180.267.
Stats. Implemented: ORS 181.534(9).
Hist.: PRD 3-2008, f. & cert. ef. 2-15-08

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