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OREGON LIQUOR CONTROL COMMISSION

 

DIVISION 2

CRIMINAL RECORDS CHECK AND FITNESS DETERMINATION

845-002-0200

Statement of Purpose and Statutory Authority

(1) Purpose. These rules control the Commission’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 Commission as an employee, volunteer, contractor or vendor in a position covered by OAR 845-002-0220. The fact that the Commission approves a subject individual as fit does not guarantee the individual a position as a Commission employee, volunteer, contractor or vendor.

(2) Authority. These rules are authorized under ORS 181.534, and ORS 471.030, 471.040, 471.695 and 471.730.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0210

Definitions

As used in OAR chapter 845, division 002, unless the context of the rule requires otherwise, the following definitions apply:

(1) "Approved" means that, pursuant to a preliminary fitness determination under OAR 845-002-0240 or a final fitness determination under 845-002-0260, an authorized designee has determined that the subject individual is fit to be an employee, volunteer, contractor or vendor in a position covered by 845-002-0220.

(2) "Authorized Designee" means a Commission employee authorized to obtain and review 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) “Commission”, “The Commission” or “OLCC” means the Oregon Liquor Control Commission or any subdivision thereof.

(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, fingerprints received and compiled by the Oregon Department of State Police Bureau of Criminal Identification for purposes of identifying criminal offenders and alleged offenders, records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole and release.

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

(a) A check of criminal offender information and motor vehicle registration and driving records conducted through 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 (LEDS Criminal Records Check);

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

(c) 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 Commission’s request (Nationwide Criminal Records Check).

(7) "Criminal Records Check and Fitness Determination Rules" or "These Rules" means OAR chapter 845, division 002.

(8) "Denied" means that, pursuant to a preliminary fitness determination under OAR 845-002-0240 or a final fitness determination under 845-002-0260, an authorized designee has determined that the subject individual is not fit to be an employee, volunteer, contractor or vendor in a position covered by 845-002-0220.

(9) "False Statement" means that, in association with an activity governed by these rules, a subject individual either provided the Commission with materially false information about his or her criminal history, such as materially false information about his or her identity or conviction record, or failed to provide to the Commission information material to determining his or her criminal history.

(10) "Fitness Determination" means a determination made by an authorized designee pursuant to the process established in OAR 845-002-0240 (preliminary fitness determination) or 845-002-0260 (final fitness determination) that a subject individual is or is not fit to be a Commission employee, volunteer, contractor or vendor in a position covered by 845-002-0220.

(11) "Other Criminal Records Information" means any information, in addition to criminal offender information, sought or obtained by the Commission about a subject individual relevant to determining the individual’s criminal history.

(12) “Potentially Disqualifying Crimes” means a crime listed or described in OAR 845-002-0270.

(13) "Related" means that an individual has a relationship with another person described by one of the following labels: 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.

(14) “Subject Individual” means an individual identified in OAR 845-002-0220 as someone whom the Commission may require fingerprints for the purpose of conducting a criminal records check.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0220

Subject Individual

(1) “Subject Individual” means a person from whom the Commission may require fingerprints for the purpose of conducting a criminal records check because the person:

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

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

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

(a) In which the person works in the licensing or enforcement divisions; or

(b) In which the person has access to criminal background information.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0230

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 OLCC Criminal Records Request form and, if requested by the Commission, a fingerprint card. Both forms ask for identifying information, e.g., name, birth date, Social Security Number, physical characteristics, marital status, driver’s license or identification card number, and current address. The OLCC Criminal Records Request form also asks for information about prior residences and for details concerning circumstances listed in OAR 845-002-0240(3)(a)–(f).

(b) A subject individual shall complete and submit to the Commission the OLCC Criminal Records Request form 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 Commission shall receive a fingerprint card from a subject individual under the age of 18 years only if the subject individual also submits the written consent of a parent or 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 Commission in order to resolve an issue hindering the completion of a criminal records check, e.g., providing additional proof of identity.

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

(a) An individual meets the definition of “subject individual”, but has not been approved under these rules, unless the individual was a Commission employee serving in his or her current position prior to the effective date of these rules and that position does not involve authorized designee responsibilities;

(b) an individual employed by the Commission meets the definition of “subject individual” because he or she is either moving to or applying for a position that meets the criteria of OAR 845-002-0220(2)(a)–(b), if:

(A) The Commission has not conducted a fitness determination on the subject individual within the previous three years;

(B) The subject individual had been previously approved under OAR 845-002-0260(3)(b); or

(C) An authorized designee determines that the new position requires greater responsibility for functions covered by OAR 845-002-0220(2)(a)–(b) than the subject individual’s prior position;

(c) An authorized designee has reason to believe that a subject individual committed a crime listed or described in OAR 845-002-0270 and either a fitness determination has not yet been done on the subject individual or the crime had not been identified in a prior fitness determination;

(d) An authorized designee has reason to believe that a factor relevant to a fitness determination listed in OAR 845-002-0260(2), not previously identified in a fitness determination, applies to a subject individual who had been previously approved under 845-002-0260(3)(b); or

(e) As required by federal law or regulation, by state law or administrative rule, or by contract or written agreement with the Commission.

(3) Which Criminal Records Check(s) Is Conducted. When an authorized designee determines under subsection (2) of this rule that a criminal record check is needed, the authorized designee shall proceed as follows:

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

(b) Oregon Criminal Records Check. The authorized designee shall request that the Oregon Department of State Police conduct an Oregon criminal records check as part of any fitness determination conducted in regard to a subject individual.

(c) Nationwide Criminal Records Check. The authorized designee shall request that the Oregon Department of State Police conduct a nationwide criminal records check as part of any fitness determination conducted in regard to a subject individual.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0240

Preliminary Fitness Determination

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

(2) An authorized designee shall make a preliminary fitness determination about a subject individual based on information disclosed by the subject individual under OAR 845-002-0230(1) and a LEDS criminal records check.

(3) The authorized designee shall 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 been convicted of, found guilty except for insanity (or comparable disposition) of, or has a pending indictment for a crime listed or described under OAR 845-002-0270;

(b) Within the last five years, has been arrested for or charged with a crime listed or described under OAR 845-002-0270;

(c) Is being investigated for, or has an outstanding warrant for a crime listed or described under OAR 845-002-0270;

(d) Is currently on probation, parole, or another form of post-prison supervision for a crime listed or described under OAR 845-002-0270;

(e) Has a deferred sentence or conditional discharge or is participating in a diversion program in connection with a crime listed or described under OAR 845-002-0270; or

(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 or described under OAR 845-002-0270.

(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 Commission, its client entities, the State, or members of the public.

(5) If a subject individual is either approved or denied on the basis of a preliminary fitness determination, an authorized designee thereafter shall conduct a fitness determination under OAR 845-002-0260.

(6) A subject individual may not appeal a preliminary fitness determination, under the process provided under OAR 845-002-0300 or otherwise.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0250

Hiring or Appointing on a Preliminary Basis

(1) The Commission 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 845-002-0240.

(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 Commission.

(3) A subject individual hired or appointed on a preliminary basis is deemed to be on trial service and, if removed from trial service prior to completion of a final fitness determination under OAR 845-002-0260, may not appeal the trial service removal under the process provided under OAR 845-002-0300.

(4) If a subject individual hired or appointed on a preliminary basis is denied upon completion of a final fitness determination, as provided under OAR 845-002-0260(3)(d), then the Commission shall immediately terminate the subject individual’s employment or appointment.

(5) A subject individual whose employment or appointment is terminated under subsection (4) of this rule may avail himself or herself of the appeal process provided under OAR 845-002-0300.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0260

Final Fitness Determination

(1) An authorized designee shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 845-002-0230(1), the criminal records check(s) conducted, if any, and any false statements made by the subject individual.

(2) In making a fitness determination about a subject individual, an authorized designee shall consider the factors in subsections (a)–(f) in relation to information provided by the subject individual under OAR 845-002-0230(1), and 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 other criminal records information from the subject individual or any other source, including law enforcement agencies or courts within or outside of Oregon. To acquire other criminal offender 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 convicted of, found guilty except for insanity (or a comparable disposition) of, or has a pending indictment for a crime listed or described under OAR 845-002-0270;

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

(c) The facts that support the conviction, finding of guilty except for insanity, 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 subsection (a) or of a false statement made by the subject individual to the specific requirements of the subject individual’s present or proposed position, services, or employment; and

(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 fitness determination is being made:

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

(B) The age of the subject individual 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 listed or described under OAR 845-002-0270;

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

(F) A recommendation of an employer;

(G) The disposition of a pending indictment identified under subsection (a);

(H) Whether the subject individual has been arrested for or charged with a crime listed or described under OAR 845-002-0270 within the last five years;

(I) Whether the subject individual is being investigated, or has an outstanding warrant, for a crime listed or described under OAR 845-002-0270;

(J) Whether the subject individual is currently on probation, parole or another form of post-prison supervision for a crime listed or described under OAR 845-002-0270;

(K) Whether the subject individual has a deferred sentence or a conditional discharge or is participating in a diversion program in connection with a crime listed or described under OAR 845-002-0270;

(L) Whether the subject individual has been adjudicated in a juvenile court and found to be within the court’s jurisdiction for an offense that would have constituted a crime listed or described under OAR 845-002-0270 if committed by an adult;

(M) Periods of incarceration of the subject individual;

(N) whether the subject individual has a history of drug or alcohol abuse which relates to his or her criminal activity and the subject individual’s history of treatment or rehabilitation for such abuse; and

(O) the education and work history (paid or volunteer) of the subject individual since the commission or alleged commission of a crime.

(3) Possible Outcomes of a Final Fitness Determination:

(a) Automatic Approval. An authorized designee shall approve a subject individual if the information described in sections (1) and (2) shows:

(A) No credible evidence that the subject individual has been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed or described under OAR 845-002-0270;

(B) No credible evidence that the subject individual has a pending indictment for a crime listed or described under OAR 845-002-0270;

(C) No credible evidence of the subject individual having made a false statement; and

(D) No discrepancies between the criminal offender information, other criminal records information and information obtained from the subject individual.

(b) Evaluative Approval. If a fitness determination under this rule shows credible evidence of any of the factors identified in paragraphs (3)(a)(A)–(D) of this rule, an authorized designee may approve the subject individual only if, in evaluating the information described in sections (1) and (2), the authorized designee determines that the subject individual acting in the position for which the fitness determination is being conducted would not pose a risk of harm to the Commission, its client entities, the State, or members of the public.

(c) Restricted Approval.

(A) If an authorized designee approves a subject individual under subsection (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.

(d) Denial.

(A) If a fitness determination under this rule shows credible evidence of any of the factors identified in paragraphs (3)(a)(A)–(D) of this rule and, after evaluating the information described in sections (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 Commission, its client entities, the State, or members of the public, the authorized designee shall deny the subject individual as not fit for the position.

(B) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal records check including fingerprint identification, the authorized designee shall deny the subject individual as not fit without further assessment under the fitness determination process.

(C) If a subject individual is denied as not fit, then the subject individual may not be employed by or provide services as a volunteer, contractor or vendor to the Commission in a position covered by OAR 845-002-0220(2).

(4) Final Order. A completed final fitness determination becomes a final order of the Commission unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR 845-002-0300(2)(a) or an alternative appeals process as provided by 845-002-0300(6).

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0270

Potentially Disqualifying Crimes

(1) FELONIES AND MISDEMEANORS. 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). No crimes are considered automatically disqualifying under these rules.

(a) Any federal crime.

(b) Any U.S. military crime.

(c) Felonies and misdemeanors in Oregon. Any felony or misdemeanor in Oregon Revised Statutes.

(d) Crimes Outside Oregon. Any felony or misdemeanor in a jurisdiction outside Oregon (including crimes outside the United States) that is the substantial equivalent of any Oregon crime, or that is serious and indicates behavior that poses a threat or jeopardizes the safety of the Commission, its client entities, the State, or members of the public as determined by the authorized designee.

(e) Inchoate crimes. Any inchoate crime or attempt, solicitation or conspiracy to commit a crime listed or described 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. If the crime occurred outside Oregon, similar inchoate crimes from local jurisdictions shall be considered by the authorized designee.

(f) Repealed crimes. Any offense that no longer constitutes a crime under Oregon law or the law of another jurisdiction, but is the substantial equivalent of any of the crimes listed or described in this section (section (1)) as determined by the authorized designee.

(2) 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.

(3) 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.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0280

Incomplete Fitness Determination

(1) The Commission will close a preliminary or final fitness determination as incomplete when:

(a) Circumstances change so that a person no longer meets the definition of a “subject individual” under OAR 845-002-0220;

(b) The subject individual does not provide materials or information under OAR 845-002-0230(1) 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 criminal records information under OAR 845-002-0260(2); or

(e) The Commission determines that the subject individual is not eligible or not qualified for the position (of employee, contractor, vendor or volunteer) for a reason unrelated to the fitness determination process.

(2) A subject individual does not have a right to a contested case hearing under OAR 845-002-0300 to challenge the closing of an incomplete fitness determination.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0290

Notice to Subject Individual of Fitness Determination

(1) An authorized designee shall provide, in a format approved by the Commission, written notice to a subject individual upon completion of a preliminary or final fitness determination, or upon the closing of a fitness determination due to incompleteness.

(a) The authorized designee shall record on the notice the date on which the fitness determination was either closed as incomplete or completed.

(b) If the notice pertains to a completed final fitness determination, it shall be accompanied by a separate notice addressing the subject individual’s right to request a contested case hearing to appeal the Commission’s determination and containing the information required by OAR 137-003-0505.

(2) An authorized designee shall provide for hand delivery or first class mail delivery of the notice as soon as possible after completion or closure of a fitness determination, but in no case later than 14 calendar days after the date of completion or closure, to the address provided by the subject individual on the OLCC Criminal Records Request form, or to an updated address as provided in writing by the subject individual. If the separate notice regarding hearing rights is included pursuant to subsection (1)(b) of this rule, then such notice shall be provided by personal service or service by registered or certified mail.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0300

Appealing a Fitness Determination

(1) Purpose. This rule sets forth a contested case hearing process by which a subject individual may appeal a completed fitness determination made under OAR 845-002-0260 that he or she is fit or not fit to hold a position with, or provide services to the Commission as an employee, volunteer, contractor, or vendor. Section (6) of the rule identifies an alternative appeal process available only to current Commission employees.

(2) Process:

(a) A subject individual may appeal a fitness determination by submitting a written request for a contested case hearing to the address specified in the notice provided under OAR 845-002-0290(1)(b), within 14 calendar days of the date appearing on the notice. The Commission shall address a request received after expiration of the deadline as provided under 137-003-0528.

(b) When a timely request is received by the Commission under subsection (a), 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 Model Rules for Contested Cases, “Rules for the Office of Administrative Hearings” OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions of this rule.

(c) The Commission shall provide the subject individual or the subject individual’s legal representative with all of the information required under OAR 137-003-0510.

(d) As provided in OAR 137-003-0510(3), if participating in a contested case hearing, the Commission and the subject individual may agree to use a collaborative method of dispute resolution designed to encourage them to work together to develop a mutually agreeable solution, such as negotiation or a settlement conference.

(3) Discovery:

(a) A subject individual’s hearing request under section (2)(a) of this rule shall constitute a discovery request for the following records:

(A) Any records the subject individual has a right to inspect under OAR 845-002-0310(2)(e); and

(B) In accordance with the Public Records Law, any records described in OAR 845-002-0310(3)(a).

(b) The Commission or the 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. If the subject individual or subject individual’s legal counsel does not file written exceptions with the Commission within 15 calendar days of the mailing of the proposed order, the proposed order shall become the final order.

(b) Exceptions. If the subject individual or the subject individual’s legal counsel files timely written exceptions to the proposed order with the Commission, the Commission Administrator or Administrator’s designee shall consider the exceptions and serve a final order, or request a revised proposed order from the administrative law judge.

(c) Default. A completed final fitness determination made under OAR 845-002-0260 shall constitute a final order without a hearing as provided under 137-003-0672.

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

(7) Challenging Criminal Offender Information. A subject individual may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or agencies reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation.

(a) To challenge information identified in this section (7), a subject individual may use any process made available by the providing agency.

(b) If the subject individual successfully challenges the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or an agency reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation, the subject individual may request that the Commission conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 845-002-0260 by submitting a new OLCC Criminal Records Request form.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0310

Record Keeping and Confidentiality

(1) An authorized designee shall document a preliminary or final fitness determination, or the closing of a fitness determination due to incompleteness, in writing.

(2) Records Received from the Oregon Department of State Police.

(a) Records the Commission 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).

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

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

(d) Authorized designees 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 Commission and the Oregon Department of State Police.

(e) If a fingerprint-based criminal records check was conducted with regard to a subject individual, the Commission shall 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 subsection (e) requests, the Commission shall provide the subject individual with a copy of the individual’s own state and federal criminal offender information, unless prohibited by federal law.

(3) Other Records.

(a) The Commission shall treat all records received or created under these rules that concern the criminal history of a subject individual, other than records covered under section (2) of this rule, including OLCC Criminal Records Request forms and fingerprint cards, as confidential pursuant to ORS 181.534(15).

(b) Within the Commission, only authorized designees shall have access to the records identified under subsection (a).

(c) An authorized designee shall have access to records identified under subsection (a) only if the authorized designee has a demonstrated and legitimate need to know the information contained in the records.

(d) A subject individual shall have access to records identified under subsection (a) pursuant to the terms of the Public Records Law, ORS 192.410 to 192.505.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0320

Authorized Designees

(1) Appointment.

(a) The Commission Administrator or the Administrator’s designee shall designate positions within the Human Resources Unit and the Enforcement & Compliance Unit as including the responsibilities of an authorized designee.

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

(c) Appointments shall be made by the Commission Administrator or the Administrator’s designee at his or her discretion.

(2) The Commission Administrator and Deputy Administrator may also serve as authorized designees, contingent on being approved under the Commission’s criminal records check and fitness determination process.

(3) Conflict of Interests. An authorized designee 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 is related to the subject individual; or

(b) The authorized designee has a financial or close personal relationship with the subject individual. If an authorized designee is uncertain of whether a relationship with a subject individual qualifies as a financial or close personal relationship under this subsection (b), the authorized designee 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 Status.

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

(b) An authorized designee 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 or described under OAR 845-002-0270. Failure to make the required report is grounds for termination of his or her status as an authorized designee.

(c) The Commission must suspend or terminate the appointment as an authorized designee if the authorized designee fails to comply with the rules of the Commission or fails to continue to meet the qualifications for the status of authorized designee, as applicable.

(d) A termination of authorized designee status due to a Final Fitness Determination is not subject to hearing rights under these rules unless the termination results in loss of employment or position, in which case they have the same hearing rights related to Fitness Determinations as other subject individuals under these rules.

(5) Review of Appointment. The Commission will develop a procedure to review and update appointments of 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 an authorized designee, such as but not limited to, any indication of criminal behavior.

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

845-002-0330

Fees

(1) The Commission 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 Commission by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain criminal offender information on the subject individual.

(2) The Commission may charge the fee to the subject individual on whom the criminal offender information is sought, or, if the subject individual is an employee of a Commission contractor or vendor and is undergoing a fitness determination in that capacity, the Commission may charge the fee to the subject individual’s employer.

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

Stat. Auth.: ORS 181.534, 471.030, 471.040 & 471.730
Stats. Implemented: ORS 181.534 & 471.695
Hist.: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08

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