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OREGON BOARD OF DENTISTRY

 

DIVISION 5

CRIMINAL RECORDS CHECKAND FITNESS DETERMINATION RULES

818-005-0000

Definitions

As used in OAR chapter 818, division 005, unless the context of the rule requires otherwise, the following definitions apply:

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

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

(3) Crime Relevant to a Fitness Determination: A crime listed or described in OAR 818-005-0020.

(4) Criminal Records Check: One or more of the following processes used to check the criminal history of an employee applicant/employee:

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

(b) A check of Oregon criminal offender information through fingerprint identification, conducted by the Oregon State Police at the Board’s request (Oregon Criminal Records Check); or

(c) A nationwide check of federal criminal offender information through fingerprint identification, conducted by the Oregon State Police through the Federal Bureau of Investigation at the Board’s request (Nationwide Criminal Records Check).

(5) Denied: A fitness determination by the Board pursuant to a final fitness determination under OAR 818-005-0025 that the subject individual is not fit to be an employee, volunteer, contractor, or vendor in a position covered by OAR 818-005-0025.

(6) False Statement: In association with an activity governed by these rules, an employee applicant/ employee either:

(a) Provided the Board with materially false information about the employee applicant’s/employee’s criminal history, such as, but not limited to, materially false information about employee applicant/employee or conviction record; or

(b) Failed to provide to the Board information material to determining employee applicant’s/employee’s criminal history.

(7) Fitness Determination: A determination made by the Board pursuant to the process established in OAR 818-005-0025 that an employee applicant/ employee is or is not fit to be a Board employee, volunteer, contractor, or vendor.

(8) Employee applicant/employee: An individual identified in OAR 818-005-0025 as someone from whom the Board may require a criminal records check.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0005

Employee Applicant/Employee

The Board may require an Employee Applicant/Employee to complete a criminal records check pursuant to these rules if the person:

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

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

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

(a) Provides 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; or

(b) Accesses information, that state or federal laws, rules or regulations prohibit disclosing or define as confidential.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0011

Criminal Records Check Required

The Board may conduct, or request the Oregon State Police to conduct, a criminal records check when:

(1) An individual meets the definition of an employee applicant/employee; or

(2) Required by federal law or regulation, by state or administrative rule, or by contract or written agreement with the Board.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert. ef. 11-15-11

818-005-0015

Criminal Records Check Process

(1) Disclosure of Information by employee applicant/employee.

(a) Preliminary to a criminal records check, an employee applicant/employee shall complete and sign the Oregon Board of Dentistry Criminal Records Request form and, if requested by the Board, a fingerprint card within three business days of having received the card. The Oregon Board of Dentistry Criminal Records Request form shall require the following information: name, birth date, Social Security Number, driver’s license or identification card number, prior residency in other states, and any other identifying information deemed necessary by the Board. The Oregon Board of Dentistry Criminal Records Request form may also require details concerning any circumstance listed in OAR 818-005-0020(1).

NOTE: The Board may extend the deadline for good cause.

(b) The Board may require additional information from the employee applicant/employee as necessary to complete the criminal records check and fitness determination, such as, but not limited to, proof of identity; or additional criminal, judicial, or other background information.

(2) When the Board determines under OAR 818-005-0005 that a criminal records check is required, the Board may request or conduct a LEDS Criminal Records Check, an Oregon Criminal Records Check, a Nationwide Criminal Records Check, or any combination thereof.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0021

Potentially Disqualifying Crimes

(1) Crimes Relevant to a Fitness Determination:

(a) All felonies;

(b) All misdemeanors;

(c) Any Federal crime, United States Military crime or international crime.

(2) Evaluation Based on Oregon and Other 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 an employee applicant/employee may have committed a crime, as those laws are in effect at the time of the fitness determination.

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

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0025

Final Fitness Determination

(1) If the Board elects to conduct a criminal records check, the Board shall make a fitness determination about an employee applicant/employee based on information provided by the employee applicant/employee under OAR 818-005-0005, the criminal records check(s) conducted, and any materially false statements made by the employee applicant/employee.

(2) In making a fitness determination about an employee applicant/employee, the Board shall also consider the factors in subsections (a), (b), and (c) below in relation to information provided by the employee applicant/employee under OAR 818-005-0015, any LEDS report or criminal offender information obtained through a criminal records check, and other information known by the Board. To assist in considering these factors, the Board may obtain any other information deemed relevant, from the employee applicant/employee or any other credible source, including law enforcement and criminal justice agencies or courts within or outside of Oregon. To acquire other criminal offender information from the employee applicant/employee, the Board may request to meet with the employee applicant/employee and may request to receive written materials or authorization to obtain other relevant information, from employee applicant/employee. The employee applicant/employee shall meet with the Board when requested and provide additional information or authorization within a reasonable period of time, as arranged with the Board. The Board’s final fitness determination regarding an employee applicant/employee will include considerations of:

(a) Potentially disqualifying crimes or conditions and any mitigating circumstances including, but not limited to:

(A) False Statement. Any materially false statements made by the employee applicant/employee to the Board;

(B) Sex Offender. The employee applicant/employee is registered, or is required to register, as a sex offender in Oregon or any other jurisdiction;

(C) Warrants. An outstanding warrant against the employee applicant/employee for any crime in any jurisdiction;

(D) Deferred Sentence, Diversion Program, Parole or Probation. The employee applicant/employee 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;

(E) Parole or Probation Violation. A post-prison supervision, parole or probation violation for any potentially disqualifying crime; or

(F) Unresolved Arrests, Charges or Indictments. An unresolved arrest, charge, or a pending indictment, for a potentially disqualifying crime.

(b) Evaluating any potentially disqualifying crime or condition identified in this subsection (a), the department shall consider:

(A) The nature of the crime;

(B) The facts that support the conviction or pending indictment or that indicate the making of a false statement;

(C) The relevancy, if any, of the crime or the false statement to the specific requirements of the employee applicant’s/employee’s present or proposed position, services, or employment.

(c) Intervening circumstances, when applicable, relevant to the responsibilities of the employment or services, including, but not limited to:

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

(B) The age of the employee applicant/employee at the time of the commission or alleged commission of a crime identified under subsection (a);

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

(D) The subsequent commission of another crime;

(E) Whether a conviction identified under subsection (a) has been set aside and the legal effect of setting aside the conviction; and

(F) A recommendation of an employer.

(3) If an employee applicant/employee refuses to consent to a criminal records check, including fingerprint identification, the Board shall deny the employment of the employee applicant/employee or deny any applicable position or authority to provide services. A person may not appeal any determination made based on a refusal to consent.

(4) If an employee applicant/employee is denied as not fit, the subject individual may not be employed by the Board, or provide services as a volunteer, contractor, or vendor.

(5) A final fitness determination is a final order of the Board unless the affected employee applicant/employee appeals by requesting either a contested case hearing as provided by OAR 818-005-0035.

(6) The Board shall inform the employee applicant/employee who has been determined not to be fit on the basis of a criminal records check, via courier, or registered or certified mail to the most current address provided by the employee applicant/employee, of such disqualification.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0030

Incomplete Fitness Determination

(1) The Board will close a fitness determination as incomplete when:

(a) Circumstances change so that a person no longer meets the definition of an “employee applicant/employee” under OAR 818-005-0005;

(b) The employee applicant/employee does not provide materials or information under OAR 818-015-0015(1)(a) within the time frames established under that rule;

(c) The Board cannot locate or contact the employee applicant/employee;

(d) The Board applicant/employee fails or refuses to cooperate with the Board’s attempts to acquire other relevant information under OAR 818-005-0015(1)(b);

(e) The Board determines that the employee applicant/employee is not eligible or not qualified for the position for a reason unrelated to the fitness determination process; or

(f) The position is no longer open.

(2) An employee applicant/employee does not have a right to a contested case hearing under OAR 818-005-0035(2).

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0035

Contesting a Fitness Determination

(1) This rule sets forth a contested case hearing process by which a subject individual may appeal a fitness determination made under OAR 818-005-0025 that he or she is fit or not fit to be a Board employee, volunteer, contractor, or vendor.

(2) The Attorney General’s Model Rules of Procedure, OAR 137-003-0001 through 137-003-0092, apply unless the Board refers the matter to the Office of Administrative Hearings to assign an Administrative Law Judge. If the Board refers the matter to the Office of Administrative Hearings, 137-003-0501 through 137-003-0700 shall apply.

(3) Process.

(a) To request a contested case hearing, the employee applicant/employee or the employee applicant/employee individual's legal representative must submit a written request to the Executive Director of the Board. To be timely, the request must be received by the Executive Director of the Board within 21 business days of the postmark of the fitness determination notification letter.

(b) A contested case hearing shall be conducted by an Administrative Law Judge appointed by the Office of Administrative Hearings once a timely request has been received by the Board as outlined in section (3)(a).

(4) The Administrative Law Judge will establish the time and place of the hearing. Notice of the hearing shall be served on the Board or designee and participants at least ten working days in advance of the hearing date.

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

(6) A fitness determination made under OAR 818-005-0025 becomes final when:

(a) A timely request for hearing is not filed; or

(b) A party withdraws a hearing request, notifies the Board or the Administrative Law Judge that the party will not appear, or fails to appear for the hearing.

(7) The Administrative Law Judge will issue a proposed order following a hearing. Exceptions, if any, must be received by the Board within 10 working days after the service of the proposed order.

(8) An employee applicant/employee currently employed by the Board who is denied as unfit pursuant to a final fitness determination may appeal the fitness determination either under the contested case process made available by this rule or through a process available under applicable personnel rules, policies and collective bargaining agreements. An employee applicant’s/employee’s decision to appeal a fitness determination through applicable personnel rules, policies, and collective bargaining agreements is an election of remedies as to the rights of the individual with respect to the fitness determination and is a waiver of the contested case process made available by this rule.

(9) The only remedy that may be awarded is a determination that the employee applicant/employee is fit or not fit. Under no circumstances shall the Board be required to place an employee applicant/employee in any position, nor shall the Board be required to accept services or enter into a contractual agreement with a employee applicant/employee.

(10) An employee applicant/employee may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation, or agencies reporting information to the Oregon State Police or the Federal Bureau of Investigation. To challenge the accuracy or completeness of information identified in this section (10), a employee applicant/employee may use any process made available by the agency that provided the information.

(11) Appealing a fitness determination, 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 will not delay or postpone the Board’s hiring process or employment decisions.

(12) Alternative Process. An employee currently employed by the Board may choose to appeal a fitness determination either under the process made available by this rule or through a process made available by applicable personnel rules, policies and collective bargaining provision. A subject individual’s decision to appeal a fitness determination through applicable personnel rules, polices 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.

(13) The only remedy that may be awarded is a determination that the employee is fit or not fit. Under no circumstances shall the Board be required to place an employee in any position, or shall the Board be required to accept services or enter into a contractual agreement with an employee.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0040

Agency Representation

(1) Subject to the approval of the Attorney General, an officer or employee of the Board, designated by the Executive Director, is authorized to appear on behalf of the Board in contested case hearings conducted pursuant to these rules.

(2) Board officers, employees, or other authorized personnel may not present legal argument as defined under OAR 137-003-0008 on behalf of the Board in contested case hearings conducted pursuant to these rules.

(3) When the Board determines it is necessary to consult with the Attorney General's office, the Administrative Law Judge will provide a reasonable period of time for a Board’s representative to consult with the Attorney General's office and to obtain either written or oral legal argument or advice, if necessary.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

818-005-0045

Record Keeping, Confidentiality

Any information obtained in the criminal records check is confidential. The Board must restrict the dissemination of information obtained in the criminal records check. Only those persons, as identified by the Board, with a demonstrated and legitimate need to know the information, may have access to criminal records check records.

Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
Hist.: OBD 4-2011, f. & cert,. ef. 11-15-11

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