Or. Admin. Code § 863-003-0090 - Appealing a Fitness Determination

(1) A subject individual may not appeal a criminal background fitness determination or a decision to close a criminal background fitness determination for reasons of incompleteness and refusal to consent.

(2) A subject individual may appeal a final fitness determination outcome of a denied or restricted approval. To appeal a Final Fitness Determination, the subject individual or the subject individual's legal representative shall submit a written request for a contested case hearing to the address specified in the written notice provided by the Agency within 14 calendar days of the date appearing on the written notice from the Agency. The Agency shall address a request received after the expiration of the deadline as provided under OAR 137-003-0528.

(3) When a timely request for a contested case hearing is received by the Agency under subsection (2), a contested case hearing shall be conducted by the Office of Administrative Hearings.

(4) Confidentiality. The Agency or the administrative law judge may protect information made confidential by ORS 181A.195 or other applicable law as provided by OAR 137-003-0568.

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

(6) Proposed and Final Order:

(a) Proposed Order. After a hearing, the administrative law judge will issue a proposed order.

(b) Default. A completed final fitness determination made under OAR 863-003-0050 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 Agency or the ALJ that the party will not appear, or fails to appear at the hearing

(7) Alternative Process. A subject individual currently employed by the Agency may choose to appeal a fitness determination under 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.

(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 any other agency reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation.

(a) To challenge information, a subject individual may use any process made available by the providing agency.

(b) If the subject individual successfully challenges the accuracy or completeness of any 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 the Agency to conduct a new criminal records check and re-evaluate the original criminal background fitness determination made under OAR 863-003-0050. The subject individual shall submit a new background check application to the Agency within 30 days of the date 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 issues a corrected criminal background report.

(9) Remedy. When the fitness determination is performed as part of the Agency's hiring process or employment decision, the only remedy that may be awarded is a determination that the subject individual is fit or not fit. Under no circumstances shall the Agency be required to place a subject individual in any position, nor shall the Agency be required to accept services or enter into a contractual agreement with a subject individual.

(10) No delay in hiring. Appealing a final fitness determination, challenging criminal offender information with the agency that provided the information, or requesting a new criminal records check may not delay or postpone the Agency's hiring process or employment decisions.

Notes

Or. Admin. Code § 863-003-0090

REA 9-2014, f. 4-14-14, cert. ef. 4-28-14; REA 4-2018, minor correction filed 01/05/2018, effective 1/5/2018; REA 35-2018, amend filed 10/09/2018, effective 10/31/2018

Statutory/Other Authority: ORS 181A.195, ORS 696.385 & ORS 696.790

Statutes/Other Implemented: ORS 181A.195 & ORS 696.790