Or. Admin. Code § 259-008-0290 - Denial of Public Safety Professional Certifications for Pre-employment Criminal Dispositions

(1) The Board has established moral fitness standards that it has determined are critical to upholding the public's trust in the public safety profession, protecting the public and ensuring that the conduct of a public safety professional or an applicant does not reflect adversely on the public safety profession. The Board finds by adopting this rule that a violation of these standards is substantially related to the duties performed by a certified public safety professional.

(2) This rule defines the grounds for denial and processes for review of professional standards cases where the public safety professional is a new applicant for DPSST training and certification and the professional standards case is based on a criminal disposition that occurred prior to employment in public safety. For the purposes of this rule:

(a) An applicant is an employed public safety professional applying for DPSST training or certification; and

(b) Pre-employment criminal dispositions are criminal dispositions that occurred prior to any employment in any jurisdiction as a police officer, reserve officer, corrections officer, parole and probation officer, regulatory specialist, telecommunicator or emergency medical dispatcher as those terms are defined in OAR 259-008-0005.

(3) Mandatory Grounds for Denial. The Department must deny an applicant's certification based upon a finding that the applicant has a conviction for an offense constituting mandatory grounds for denial of public safety certification as defined in OAR 259-008-0300(2).

(4) Discretionary Grounds for Denial. The Department may deny an applicant's certification based upon a finding that the applicant has a pre-employment criminal disposition, other than a conviction constituting mandatory grounds for denial as defined in OAR 259-008-0300(2), in which the criminal disposition or the underlying conduct include either or both of the following elements:

(a) Dishonesty. Dishonesty includes intentional conduct that includes untruthfulness, dishonesty by admission or omission, deception, misrepresentation, falsification or reckless disregard for the truth; or

(b) Gross Misconduct. Gross Misconduct includes:

(A) Deliberate or reckless conduct that caused or could have caused significant harm to persons or property;

(B) Conduct that includes violence against another person;

(C) Conduct resulting in a criminal disposition for a sex-related offense; or

(D) Discriminatory conduct. For the purposes of this rule, discriminatory conduct includes a pattern of conduct or a single egregious act that evidences knowing and intentional discrimination based on the perception of a person's race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or any protected class as defined by state or federal law, and would lead an objectively reasonable person to conclude that the applicant cannot perform the duties of office in a fair and impartial manner.

(5) The Department will not open a discretionary case under this rule for the following:

(a) A criminal disposition that occurred prior to January 1, 2001; or

(b) A criminal disposition for a successfully completed deferred adjudication or diversion in which the only charge is for driving under the influence of intoxicants. For the purposes of this rule the term "intoxicant" includes intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination of these intoxicants.

(6) The Board delegates the review of discretionary professional standards cases for an applicant's pre-employment criminal dispositions to the Department and the Applicant Review Committee.

(a) The Department will review an applicant's pre-employment criminal disposition and open a case when the criminal disposition or underlying conduct may constitute discretionary grounds for denial as defined in section (4) of this rule.

(b) The Applicant Review Committee will review discretionary cases opened by the Department and determine whether the applicant is denied or not denied certification for the discretionary grounds defined in section (4) of this rule.

(7) Prior to submitting a discretionary case to the Applicant Review Committee, the Department will notify the applicant. The notification will include the deadlines for the applicant to provide evidence of factors that may support mitigation. The applicant may provide mitigation evidence by one or both of the following:

(a) Submitting documents or written statements as supporting evidence for mitigation of the conduct under review to the Department for the Applicant Review Committee to consider.

(b) Arranging with the Department to attend an Applicant Review Committee meeting and present a verbal statement. The verbal statement is limited to a maximum of five minutes and must be presented in person by the applicant or their representative.

(8) The Applicant Review Committee will review the case to:

(a) Affirm, modify or negate the Department-identified moral fitness violations;

(b) Identify aggravating and mitigating circumstances unique to the case;

(c) Determine how the moral fitness violations and aggravating or mitigating circumstances impact the applicant's fitness for certification; and

(d) When denying certification, determine how long the individual should be ineligible for certification.

(9) Aggravating and mitigating circumstances are conditions, factors or actions that increase or decrease the total impact that the identified moral fitness violation has on the applicant's fitness for certification.

(a) Aggravating circumstances generally increase the severity of the impact the moral fitness violation has on fitness for certification and may, in addition to the moral fitness violation, be grounds to deny certification. Aggravating circumstances may increase the recommended ineligibility period. Circumstances that may be considered aggravating include, but are not limited to, the degree of the criminal disposition, prior criminal dispositions or misconduct, lack of accountability, number of persons involved in the underlying conduct, number of separate incidents, passage of time from date of incident or incidents, or any other circumstance the Department or the Applicant Review Committee consider aggravating given the specific issues in the case.

(b) Mitigating circumstances do not excuse or justify the conduct, but generally decrease the severity of the impact the moral fitness violation has on fitness for certification and may decrease the recommended ineligibility period.

(A) Circumstances that must be considered mitigating include the fact that the applicant was not employed in a certifiable position at the time of the conduct and the fact that the applicant has been hired by a public safety agency who is aware of the criminal background.

(B) Circumstances that may be considered mitigating include, but are not limited to, written letters of support, truthfulness, cooperation during the incident or investigation, or any other circumstance the Department or the Applicant Review Committee consider mitigating given the specific issues in the case.

(10) The ineligibility period is the timeframe that the applicant is ineligible for public safety certifications and employment as a certifiable public safety professional as the result of the total impact of the moral fitness violations and the aggravating and mitigating circumstances on the applicant's moral fitness for certification. The Applicant Review Committee may prescribe an ineligibility period from zero days to ten years.

(11) The moral fitness standards defined in administrative rule in effect on the date the Department or the Applicant Review Committee determined that the applicant was unfit for certification will continue to apply until the Final Order has been issued and all appeal rights have been exhausted, regardless of any subsequent amendment or repeal of the rules.

(12) Any Department action to deny an applicant's public safety professional certification will be administered in accordance with OAR 259-008-0290 through OAR 259-008-0340 and the applicable provisions of the Attorney General's Model Rules of Procedure adopted under OAR 259-005-0015.

Notes

Or. Admin. Code § 259-008-0290

DPSST 30-2020, adopt filed 10/22/2020, effective 11/1/2020; DPSST 6-2021, amend filed 04/22/2021, effective 4/23/2021

Statutory/Other Authority: ORS 181A.410, ORS 183.341 & ORS 181A.640

Statutes/Other Implemented: ORS 181A.410, ORS 183.341, ORS 181A.640, ORS 181A.630 & ORS 181A.650