Or. Admin. Code § 585-005-0060 - Appealing a Fitness Determination

(1) A subject individual may contest a final fitness determination made under OAR 585-005-0045 that they are not fit to hold a position with or provide services to Commission in a contested case hearing before the Office of Administrative Hearings (OAH). In addition to the Model Rules of Procedure adopted by the Attorney General, the procedures set forth in this rule shall apply.

(2) Process:

(a) A subject individual may appeal a final fitness determination by submitting a written request for a contested case hearing to the address specified in the final fitness determination provided under OAR 585-05-0045. Any such request for a hearing must be received by Commission within 14 calendar days of the date of the notice;

(b) When a timely request is received by Commission under subsection (a), a contested case hearing shall be conducted by an Administrative Law Judge (ALJ) appointed by OAH.

(3) Time and Place of Hearings. The time and place of hearing will be set by the ALJ. Notice of the hearing shall be served on Commission and interested parties.

(4) Discovery. Commission or the ALJ may protect information made confidential by ORS 181A.195(12) or other applicable laws and rules.

(5) Disclosure of LEDS Information. Information obtained through LEDS shall be disclosed only in a manner consistent with OSP rules and regulations set forth under OAR Chapter 257, Division 15.

(6) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants.

(7) Proposed Order, Exceptions and Default:

(a) Proposed Order. After a hearing, the ALJ shall 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 585-005-0045 becomes final:

(A) Unless the subject individual makes a timely request for hearing; or

(B) When a party withdraws a hearing request, notifies Commission or the ALJ that the party will not appear, or fails to appear for the hearing.

(8) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit, or fit with restrictions pursuant to OAR 585-005-0045(3)(c), and that, at the request of the subject individual, the subject individual's employment application will be kept on file. Commission shall not be required to place a subject individual in any position or to enter into a contract or otherwise accept services.

(9) 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 OSP, the FBI, or agencies reporting information to OSP or the FBI:

(a) To challenge the accuracy or completeness of information identified in this subsection, 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 OSP, the FBI, or an agency reporting information to OSP or the FBI, the subject individual may request that Commission conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 585-005-0045 by submitting a new Commission Criminal Records Request form.

(10) Appealing a fitness determination under subsection (2) of this rule, 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 under subsection (9) of this rule, will not delay or postpone Commission's hiring process or employment decisions except when the Executive Director or an authorized designee in consultation with Commission's DAS Human Resources Business Partner decides that a delay or postponement should occur.

Notes

Or. Admin. Code § 585-005-0060

CFTB 2-2009, f. & cert. ef. 6-11-09; CFTB 2-2021, amend filed 02/23/2021, effective 2/24/2021

Statutory/Other Authority: ORS 346.300 & ORS 181A.195

Statutes/Other Implemented: ORS 346.300 & ORS 181A.195