Or. Admin. Code § 274-006-0018 - Appealing a Fitness Determination
(1) Purpose. Sections (2) to (5) of this rule
set forth the contested case hearing process a subject individual must use to
appeal a completed fitness determination made under OAR 274-006-0010 that the
individual is not fit to hold a position with, or provide services to the
Department as an employee, volunteer, contractor, or vendor. Section (6) of
this rule identifies an alternative appeal process available only to current
Department employees.
(2) Appeal
process.
(a) To request a contested case
hearing, the subject individual or the subject individual's legal
representative must submit a written request for a contested case hearing to
the address specified in the notice provided under OAR 274-006-0014. To be
timely, the request must be received by the Department at the specified address
within 14 calendar days of the date stated on the notice. The Department shall
address a request received after expiration of the deadline as provided under
OAR 137-003-0528.
(b) When a timely
request is received by the Department under subsection (a), a contested case
hearing shall be conducted by an administrative law judge assigned by the
Office of Administrative Hearings, pursuant to the Attorney General's Uniform
and Model Rules, "Procedural Rules, Office of Administrative Hearings" OAR
137-003-0501 to 137-003-0700, as supplemented by the provisions of this
rule.
(3) Discovery. The
Department or the administrative law judge may protect information made
confidential by ORS 181.534(15) or
other applicable law as provided under OAR 137-003-0570(7) or (8).
(4) No Public Attendance. Contested case
hearings on fitness determinations are closed to non-participants.
(5) Proposed and Final Order:
(a) Proposed Order. After a hearing, the
administrative law judge will issue a proposed order.
(b) Exceptions. Exceptions, if any, shall be
filed within 14 calendar days after service of the proposed order. The proposed
order shall provide an address to which exceptions must be sent.
(c) Default. A completed final fitness
determination made under OAR 274-006-0010 becomes final:
(A) Unless the subject individual makes a
timely request for a hearing; or
(B) When a party withdraws a hearing request,
notifies the Department or the ALJ that the party will not appear, or fails to
appear at the hearing.
(6) Alternative Process. A subject individual
currently employed by the Department may choose to appeal a fitness
determination either under the process made available by this rule or through
the process made available by applicable personnel rules, policies and
collective bargaining provisions. A subject individual's decision to appeal a
fitness determination through applicable personnel rules, policies, 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.
(7) Remedy. 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.
(8) Challenging Criminal Offender
Information. 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.
(a) To
challenge information identified in this section of the rule, a subject
individual may use any process made available by the agency that provided the
information.
(b) If the subject
individual successfully challenges the accuracy or completeness of information
provided by the Oregon Department of State Police, the Federal Bureau of
Investigation, or an agency reporting information to the Oregon Department of
State Police or the Federal Bureau of Investigation, the subject individual may
request that the Department conduct a new criminal records check and
re-evaluate the original fitness determination made under OAR 274-006-0010 by
submitting a new Department criminal records request. This provision only
applies if the position for which the original criminal history check was
conducted is vacant and available.
(9) Appealing a fitness determination under
section (2) or section (6) of this rule, challenging criminal offender
information with the Department that provided the information, or requesting a
new criminal records check and re-evaluation of the original fitness
determination under section (8)(b) of this rule, will not delay or postpone the
Department's hiring process or employment decisions.
Notes
Stat. Auth.: ORS 181.534, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.030 & 2009 SB 94
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