Or. Admin. R. 575-007-0330

Current through Register Vol. 63, No. 9, September 1, 2024

Section 575-007-0330 - Contesting a Fitness Determination

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

(2) History Disputed.

(a) Correcting Disputed History. If a subject individual wishes to challenge the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation or other agencies reporting information to the Commission, the subject individual may appeal to the entity providing the information. Such challenges are not subject to the Commission's appeal process described in this rule.

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

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

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

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

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

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

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

(f) Other Options. A subject individual may appeal a fitness determination through applicable personnel rules, policies, and collective bargaining provisions. The individual's decision to do so is an election of remedies as to the rights of the individual with respect to the fitness determination and is a waiver of the contested case process.

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

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

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

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

(ii) Providing additional information or additional documents.

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

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

(b) Criminal records check.

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

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

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

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

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

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

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

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

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

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

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

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

(5) Contested Case Hearing.

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

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

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

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

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

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

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

(B) Conduct the hearing;

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

(D) Issue a proposed order.

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

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

(7) Proposed and Final Order.

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

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

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

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

Or. Admin. R. 575-007-0330

OSAC 4-2006, f. & cert. ef. 11-1-06; OSAC 1-2015, f. & cert. ef. 12/18/2015

Stat. Auth.: ORS 348; Ch. 730 2005 OL, HB. 2157 2005 OL

Stats. Implemented: Ch. 730 2005 OL