Or. Admin. Code § 736-002-0102 - Appealing a Fitness Determination

(1) A subject individual may contest a final fitness determination made under OAR 736-002-0058 that he or she is not fit to hold a position with or provide services to the Department as an employee, contractor, licensee, or volunteer in a contested case hearing before the Office of Adminstrative Hearings.

(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 notice provided under OAR 125-007-0260(2) within 14 calendar days of the date appearing on the notice. The Department shall address a request received after expiration of the deadline as provided under OAR 137-003-0528.

(b) When the Department receives a timely request under subsection (a) of this rule, an adminstrative law judge assigned by the Office of Administrative Hearings shall conduct a contested case hearing pursuant to OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions of this rule.

(3) Discovery. The Department or an administrative law judge may protect information made confidential by ORS 181A.195(11).

(4) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants as provided in OAR 125-007-0300.

(5) Proposed and Final Order:

(a) Proposed Order. After a hearing, the administrative law judge shall issue a proposed order as provided in OAR 137-003-0645.

(b) Exceptions. The subject individual or the subject individual's legal counsel or the Department's representative may file written exceptions with the Department within 14 calendar days after service of the proposed order. Exceptions will be considered as set forth in OAR 137-003-0650 and 137-003-0655.

(c) Default. A final fitness determination made under OAR 736-002-0058 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 administrative law judge 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 as provided in OAR 125-007-0300.

(7) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit, or not fit pursuant to OAR 125-007-0300(8).

(8) A subject individual may only challenge Criminal Offender Information as provided in OAR 125-007-0300(7).

(9) No Delay in Hiring. As provided in OAR 125-007-0300, an appeal of a fitness determination may not delay or postpone the Department's hiring process or employment decisions except when the authorized designee, in consultation with the Human Resources Division, decides that a delay or postponement should occur.

Notes

Or. Admin. Code § 736-002-0102

PRD 3-2004, f. & cert. ef. 1-15-04; PRD 3-2008, f. & cert. ef. 2-15-08; PRD 2-2018, amend filed 02/23/2018, effective 2/23/2018

Statutory/Other Authority: ORS 390.124, 390.131, 390.140, 181A.195 & 390.200

Statutes/Other Implemented: 181A.195