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Oregon Bulletin

October 1, 2012

Department of Oregon State Police, Chapter 257

Rule Caption: Modify OAR 257-080-0000 to be in compliance with the repeal ORS 181.290 July 2011.

Adm. Order No.: OSP 4-2012

Filed with Sec. of State: 9-5-2012

Certified to be Effective: 9-5-12

Notice Publication Date: 7-1-2012

Rules Adopted: 257-080-0050, 257-080-0055

Rules Amended: 257-080-0000, 257-080-0005, 257-080-0010, 257-080-0015, 257-080-0020, 257-080-0025, 257-080-0030, 257-080-0035, 257-080-0040, 257-080-0045

Subject: Legislative changes in July 2011 require that we clarify rules outlining the process afforded sworn, unrepresented members of the department during consideration of their removal from state service.

Rules Coordinator: Shannon Peterson—(503) 934-0183

257-080-0000

Purpose of Rules

These rules outline the process afforded sworn, unrepresented members of the Department during consideration of their removal from State service, with the following objectives:

(1) To permit the member to address the review board prior to a final decision on removal.

(2) To establish procedures for the member and the review board to follow.

(3) To recognize that sworn, unrepresented members of the department hold their respective positions in an “at-will” status.

(4) To provide the procedure for the decision of the Board to be communicated to the member and to the individual who made the initial recommendation on removal.

(5) To establish the internal mechanism for the member to make a request that the Review Board decision be considered and examined by the Office of the Superintendent.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0005

Statutory Authority for Rules

These rules are adopted under the authority provided by ORS 181.280

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0010

Definitions

(1) Department — refers to the Oregon Department of State Police.

(2) Member — refers to the sworn, unrepresented member with sustained allegations who is afforded an informal meeting under these rules.

(3) Review Board members — Department members appointed by the Superintendent or designee.

(4) Recommending staff — the Department staff making the initial recommendation for removal of the member.

(5) Personnel Report – the record of information that was gathered during a personnel investigation and fact-finding process which is used to decide whether there are grounds to consider the removal of the member from the Department.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0015

Grounds for Removal

Because members subject to these rules hold their position as “at-will” employees, the member’s employment is not subject to any cause standard and the Department legally retains discretion in making a decision on removal.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0020

Investigation and Fact Finding Processes

(1) The investigation process will be the fact-gathering process the Department follows in conducting personnel investigations as found in the most current form of the Department Manual titled “Personnel Complaint Procedures and Guidelines for investigations and Corrective Action.”

(2) The fact-finding process will follow those provisions in the most current form of the same Department Manual under the “Making Findings of Fact” section.

(3) If the results of this process result in “sustained” Findings of Fact the process under these rules will continue.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Administrative Reformatting 12-1-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0025

Procedure to notify member of Findings, Recommendation, and Request to convene a Review Board

(1) The sustained Findings of Fact and Recommendation will be prepared and signed by the recommending staff, or the Office of Professional Standards, and shall include:

(a) The name and duty station of the member.

(b) A listing of sustained allegation(s) with a finding for each.

(c) A statement that removal of the member is being recommended along with a request to convene a Review Board.

(2) The document may include:

(a) A description of information concerning the member’s tenure with the department such as performance reviews and any letters in the file which may be relevant to an understanding of the allegations;

(b) Particular training or education provided;

(c) Prior corrective action(s);

(d) Informal discussions or other communications with the member by other managers or supervisors;

(e) The availability of written standards or expectations - whether formal or informal; and

(f) Any other matters which may provide a context in which to review the specific conduct at issue.

(3) A suggested format for the document is:

(a) Member’s name;

(b) Member’s duty station;

(c) As a sworn member of the department, subject to ORS 181.280 and OAR 257, Division 80, this is written notice of allegation(s) from which a recommendation for your removal as a member of the department has been made along with a request to convene a Review Board.

(d) Relevant background information as appropriate.

(e) The facts that have been sustained, setting them out in a logical and chronological format, using headings and subheadings if necessary, to assist the reader in understanding the particulars that form the basis of the recommendation.

(4) The completed document with the sustained allegations, recommendation and request shall be delivered to the Office of Professional Standards, where they will be filed and logged.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0030

Initiating a Review Board

(1) Upon notice from the Office of Professional Standards that the completed document with the sustained allegations, recommendation and request has been filed and logged, the Superintendent or designee, shall appoint a three person Board of Review.

(2) The Board shall consist of three members who are of superior rank to the involved member, if that is possible, and the three members shall be of equal rank, also to the extent that is possible.

(3) The Board shall convene, select a Presiding Officer, and determine the time and place of the meeting to be scheduled with no less than ten days notice to the member.

(4) The member shall be notified, in writing, of the following:

(a) The individuals composing the Review Board and the member’s right to demand, in writing and one time only, that any or all of the persons appointed to the board be replaced without stating reason or cause. On receipt of such a demand, the Superintendent or designee shall appoint new representatives to replace those removed;

(b) The location, date and time of the member to meet with the Board;

(c) The member’s right to be accompanied by legal counsel, at their own expense, or another employee of their choosing to assist them in presenting information or suggesting further inquiry before a decision is made by the Board ;

(5) If an extension of time is necessary for the member to prepare a presentation, the board shall grant a reasonable period of time upon request.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0035

Review Board — Generally

(1) An audio recording of the meeting will be made, which shall constitute the only record.

(2) The Board may have legal counsel from the Oregon Department of Justice to advise them on any matters and attend the meeting and deliberative process as it deems necessary.

(3) Failure to comply with one or more of the terms of these rules concerning the Review Board process shall not invalidate any sustained allegations or negate any proceeding before the board.

(4) All attendees shall conduct themselves in a respectful manner. Failure to comply with the Board’s effort to retain order will result in expulsion from the meeting.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0040

Review Board Pre-meeting Matters

(1) The Department shall forward to the member, within a reasonable time after the hearing is set, all investigative reports and other documents prepared according to the requirements of the department’s personnel review manual.

(2) The member’s official personnel file shall be available for inspection by the parties or their respective representatives upon advance request to the Office of Professional Standards Section at General Headquarters.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0045

Board Meeting

(1) The Board designated Presiding Officer shall open the meeting on the record, by introducing the parties and identifying the purpose of the meeting.

(2) The record made available to the Board shall be identified by the Presiding officer.

(3) The member, or designee, may make opening remarks.

(4) The member may offer physical evidence and written statements.

(5) Review Board members may ask questions of the member.

(6) The member or designee may make concluding remarks.

(7) The meeting will be private unless the member makes written request that it be public.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0050

The Board’s Decision

(1) The Board shall adjourn the meeting and meet in private to reach a decision regarding corrective action, which decision shall then be reduced to written form.

(2) The Board decision shall state specifically whether removal or other corrective action is appropriate with a brief explanation of its rationale.

(3) In assessing an appropriate action the board may consider:

(a) The rank and corresponding duties and expectations for the position held by the member;

(b) The number and relative severity of sustained allegations; and

(c) Any information presented by the member at the meeting regarding the sustained allegations.

(4) The Board is not authorized to apply the concept of “progressive discipline” as a matter of right.

(5) The Board is not authorized to nor shall it require proof of “cause” as it makes a decision.

(6) The decision of the Board shall be delivered to the member and the Office of Professional Standards by hand-delivery or certified mail, return receipt requested, as is most expeditious.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

257-080-0055

Office of Superintendent’s consideration of Review Board Decision

(1) Following receipt of the Board’s decision the member may request the Office of the Superintendent to consider the Board’s decision by an examination of all materials, including the tape of the Review Board meeting.

(2) The request must be in writing and received by the Office of Professional Standards not later than fifteen (15) days after the date of the Board’s decision.

(3) The request may include a meeting by the member with the Superintendent or a designee in addition to the examination of the associated documentation.

(4) If no request is made, the Superintendent will send a notice to the member with a Final decision.

(6) The Superintendent retains the ultimate legal authority on whether to remove the member.

(7) The Superintendent shall inform the member in writing of the final decision, with a brief explanation that the Superintendent has exercised the legal discretion afforded the Department in arriving at a decision.

(8) There is no right of appeal of the decision on removal.

Stat. Auth.: ORS 181.280 & 181.310
Stats. Implemented: ORS 181.290 - 181.340
Hist.: OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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

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