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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
DIRECTOR'S OFFICE

 

DIVISION 7

CRIMINAL RECORDS CHECK AND FITNESS DETERMINATION RULES

440-007-0200

Statement of Purpose

This rule provides for the reasonable screening of subject individuals to identify a history of criminal behavior such that it would impact their ability to be employed or volunteer in positions covered by OAR 440-007-0230(2)(a)–(h). Departmental approval of a subject individual’s fitness does not guarantee the individual a position with the department.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0210

Definitions

As used in OAR chapter 440, division 007, unless the context of the rule requires otherwise, the following definitions apply:

(1) Approved: Pursuant to a final fitness determination under OAR 440-007-0270, the department has determined that the subject individual is fit to be an employee, volunteer, contractor, or vendor in a position covered by 440-007-0230(2)(a)-(h).

(2) 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 a subject individual in a criminal case, unless that judgment has been reversed or set aside by a subsequent court decision.

(3) Criminal Offender Information: 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; and records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole, and release.

(4) Crime Relevant to a Fitness Determination: A crime listed or described in OAR 440-007-0260.

(5) Criminal Records Check and Fitness Determination Rules: OAR chapter 440, division 007.

(6) Criminal Records Check: One or more of the following processes used to check the criminal history of a subject individual:

(a) A name-based check of 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 (LEDS Criminal Records Check);

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

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

(7) Denied: A fitness determination by the department pursuant to a final fitness determination under OAR 440-007-0270 that the subject individual is not fit to be an employee, volunteer, contractor, or vendor in a position covered by OAR 440-007-0230(2)(a)–(h).

(8) Department: The Department of Consumer and Business Services (DCBS) or any subdivision thereof, including the Workers’ Compensation Board.

(9) False Statement: In association with an activity governed by these rules, a subject individual either: (a) provided the department with materially false information about his or her criminal history, such as, but not limited to, materially false information about his or her identity or conviction record; or (b) failed to provide to the department information material to determining his or her criminal history.

(10) Fitness Determination: A determination made by the department pursuant to the process established in OAR 440-007-0270 that a subject individual is or is not fit to be a department employee, volunteer, contractor, or vendor in a position covered by OAR 440-007-0230(2)(a)–(h).

(11) Subject Individual: An individual identified in OAR 440-007-0230 as someone from whom the department may require a criminal records check.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0230

Subject Individual

The department may require a subject individual to complete a criminal records check pursuant to these rules if 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 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;

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

(c) Is responsible for payroll functions; for receiving, receipting or depositing money or negotiable instruments; for billing, collections or other financial transactions; for purchasing or selling property; or in which the person has access to property held in trust or to private property in the temporary custody of the state;

(d) Performs mailroom duties as a primary duty or job function;

(e) Is responsible for auditing the department;

(f) Performs personnel or human resources functions as a primary responsibility;

(g) Accesses Social Security numbers, dates of birth or criminal background information of employees or members of the public; or

(h) Accesses tax or financial information about individuals or business entities.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0240

Criminal Records Check Required

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

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

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

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0250

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 DCBS Criminal Records Request form and, if requested by the department, a fingerprint card within three working days of having received the card. The DCBS 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 department. The DCBS Criminal Records Request form may also require details concerning any circumstance listed in OAR 440-007-0270(2).

Note: The department may extend the deadline for good cause.

(b) The department may require additional information from the subject individual 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.

(c) The department shall not request a fingerprint card from a subject individual under the age of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550 et seq, or unless the department also requests the written consent of a parent or guardian. In this case, the parent or guardian and youth must be informed that they are not required to consent. Notwithstanding, failure to consent may be construed as a refusal to consent under OAR 440-007-0270(3).

(2) When the department determines under OAR 440-007-0240 that a criminal records check is required, the department 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 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0260

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 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 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 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0270

Final Fitness Determination

(1) If the department elects to conduct a criminal records check, the department shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 440-007-0250, the criminal records check(s) conducted, and any materially false statements made by the subject individual.

(2) In making a fitness determination about a subject individual, the department shall also consider the factors in subsections (a), (b), and (c) below in relation to information provided by the subject individual under OAR 440-007-0250, any LEDS report or criminal offender information obtained through a criminal records check, and other information known by the department. To assist in considering these factors, the department may obtain any other information deemed relevant, from the subject individual 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 subject individual, the department may request to meet with the subject individual and may request to receive written materials or authorization to obtain other relevant information, from him or her. The subject individual shall meet with the department when requested and provide additional information or authorization within a reasonable period of time, as arranged with the department. The department’s final fitness determination regarding a subject individual 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 subject individual to the department;

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

(C) Warrants. An outstanding warrant against the subject individual for any crime in any jurisdiction;

(D) Deferred Sentence, Diversion Program, Parole or Probation. The subject individual 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 subject individual’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 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;

(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 a subject individual refuses to consent to a criminal records check, including fingerprint identification, the department shall deny the employment of the subject individual 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 a subject individual is denied as not fit, the subject individual may not be employed by the department, or provide services as a volunteer, contractor, or vendor, in a position covered by OAR 440-007-0230(2)(a)–(h).

(5) A final fitness determination is a final order of the department unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR 440-007-0280(2) or an alternative appeals process as provided by 440-007-00280(8).

(6) The department shall inform the subject individual 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 subject individual, of such disqualification.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0272

Hiring on A Preliminary Basis

(1) If the department elects to conduct a criminal records check pursuant to these rules, the department, in its sole discretion, may hire, appoint, or accept services from a subject individual on a preliminary basis pending completion of a criminal records check when:

(a) The subject individual has provided all information (including a fingerprint card, if requested) as required by the department pursuant to OAR 440-007-0250; and

(b) The department, in its sole discretion, determines that it is in the department’s best interests to hire, appoint, or accept services from the subject individual on a preliminary basis.

(2) A subject individual hired, appointed, or otherwise engaged to perform services on a preliminary basis under this rule may provide services, or participate in training, orientation, or work activities as deemed appropriate by the Department.

(3) Nothing in this rule shall be construed as requiring the department to hire, appoint, or accept services from a subject individual on a preliminary basis.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0275

Incomplete Fitness Determination

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

(a) Circumstances change so that a person no longer meets the definition of a “subject individual” under OAR 440-007-0230;

(b) The subject individual does not provide materials or information under OAR 440-007-0250(1)(a) within the time frames established under that rule;

(c) The department cannot locate or contact the subject individual;

(d) The subject individual fails or refuses to cooperate with the department’s attempts to acquire other relevant information under OAR 440-007-0250(1)(b);

(e) The department determines that the subject individual 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) A subject individual does not have a right to a contested case hearing under OAR 440-007-0280(2) or a right to an alternate appeals process under OAR 440-007-0280(8) to challenge the closing of a fitness determination as incomplete.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0280

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 440-007-0270 that he or she is fit or not fit to be a department employee, volunteer, contractor, or vendor in a position covered by 440-007-0230(2)(a)-(h). Section (8) of this rule identifies an alternative appeal process available only to current DCBS employees.

(2) The Attorney General’s Model Rules of Procedure, OAR 137-003-0001 through 137-003-0092, apply unless the department refers the matter to the Office of Administrative Hearings to assign an Administrative Law Judge. If the department 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 subject individual or the subject individual's legal representative must submit a written request to the department’s human resources services office. To be timely, the request must be received by the department’s human resources services office within ten working days of the postmark of the fitness determination notification letter.

(b) A contested case hearing shall be conducted by a hearings officer appointed by the Director once a timely request has been received by the department as outlined in section (3)(a).

(4) The hearings officer will establish the time and place of the hearing. Notice of the hearing shall be served on the Chief Human Resource Officer 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 440-007-0270 becomes final when:

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

(b) A party withdraws a hearing request, notifies the agency or the hearings officer that the party will not appear, or fails to appear for the hearing.

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

(8) A subject individual currently employed by the department 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. A subject individual’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 subject individual is fit or not fit. Under no circumstances shall the department be required to place a subject individual in any position, nor shall the department be required to accept services or enter into a contractual agreement with a subject individual.

(10) 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. To challenge the accuracy or completeness of information identified in this section (10), a subject individual 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 department’s hiring process or employment decisions.

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0285

Agency Representation

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

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

(3) When the department determines it is necessary to consult with the Attorney General's office, the hearings officer will provide a reasonable period of time for an agency 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 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0290

Record Keeping, Confidentiality

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

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

440-007-0300

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

Stat. Auth.: ORS 181.534 & 705.135
Stats. Implemented: ORS 705.141 & 181.534
Hist.: DO 1-2008, f. 8-14-08 cert. ef. 9-2-08

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