Or. Admin. R. 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 818-005-0050 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 818-005-0050 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 an 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, an 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.
Notes
Stat. Auth.: ORS 181.534, 676.303 & 679.253
Stats. Implemented: ORS 676.303 & 181.534
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