The Oregon Administrative Rules contain OARs filed through November 15, 2015
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DEPARTMENT OF VETERANS' AFFAIRS
DIVISION 6
CRIMINAL RECORDS CHECKS
274-006-0001
Purpose
These rules provide for the Department of Veterans' Affairs (Department) acquisition of information about a subject individual's criminal history through criminal records checks and its use of that information to determine whether the individual is fit to provide services to the Department as an employee, volunteer, contractor or vendor. The fact that the Department determines that an individual is fit does not guarantee the individual a position as a Department employee, volunteer, contractor or vendor or that the individual will be hired by the Department.
Stat. Authority: ORS 181.534 and 406.030
Stats. Implemented: ORS 181.534 and 406.030
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0002
Definitions
(1) "Criminal Offender Information" means records and related data concerning physical description and vital statistics, fingerprints received and compiled by the Oregon Department of State Police to identify criminal offenders and alleged offenders, records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole and release records.
(2) "Criminal Records Check" means one or more of the following three processes undertaken by the Department to check the criminal history of a subject individual:
(a) A name-based check of criminal offender information conducted through the Law Enforcement Data System (LEDS) maintained by the Oregon Department of State Police, in accordance with the rules adopted and procedures established by the Oregon Department of State Police;
(b) A check of Oregon criminal offender information, through fingerprint identification and other means, conducted by the Oregon Department of State Police at the Department’s request (Oregon Criminal Records Check); or
(c) A nationwide check of federal criminal offender information, through fingerprint identification and other means, conducted by the Oregon Department of State Police through the Federal Bureau of Investigation or otherwise at the Department’s request (Nationwide Criminal Records Check).
(3) "Department" means the Department of Veterans’ Affairs as defined in ORS 406.005.
(4) "Fitness Determination" means a determination made by the Department, pursuant to the process established under OAR 274-006-0011, that a subject individual is fit or not fit to be a Department employee, volunteer, contractor or vendor in a position covered by OAR 274-006-0004(2).
(5) "Subject Individual" means an individual identified in OAR 274-006-0004 as someone from whom the Department may require a criminal records check.
Stat. Auth.: ORS 181.534, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0004
Subject Individual
The Department may require a subject individual to complete a criminal records check pursuant to these rules because the person:
(1)(a) Is applying for employment with the Department of Veterans’ Affairs in a position described in subsection (2) of this rule or is employed by the Department but is being transferred, promoted or demoted to a position described in subsection (2) of this rule; or
(b) Provides goods or services or seeks to provide goods or services to or on behalf of the Department as a contractor, subcontractor, vendor or volunteer, or as an employee, member or agent of a contractor, subcontractor, vendor or volunteer; and
(2) Is or will be working or providing services in a position in which the subject individual has:
(a) Control over, or access to, information technology systems would allow the person to harm the information technology systems or the information contained in the systems;
(b) Access to information that state or federal laws, rules or regulations prohibit disclosing or define as confidential;
(c) Responsibility for payroll, billing, collections or other financial transactions or for purchasing or selling property;
(d) Access to money, negotiable instruments or financial information of the Department;
(e) Mailroom duties;
(f) Responsibility for auditing the Department or other business entities doing business with the Department;
(g) Personnel or human resources functions or access to personnel information;
(h) Access to Social Security numbers, dates of birth or criminal background information of other persons;
(i) Access to tax or financial information of the Department or persons employed by the Department; or
(j) Access to tax or financial information collected by the Department about individuals or business entities.
Stat. Auth.: ORS 181.534, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0005
Criminal Records Check Process
(1) When a Criminal Records Check is Required. The Department may conduct, or request the Oregon State Police to conduct, a criminal records check when:
(a) An individual meets the definition of a subject individual; or
(b) Required by federal law or regulation, by state or administrative rule, or by contract or written agreement with the Department.
(2) Which Criminal Records Check is Conducted. When the Department determines under section (1) Of this rule that a criminal records check is needed, the Department may request or conduct a LEDS Criminal Records Check, an Oregon Criminal Records Check, a Nationwide Criminal Records Check, or any combination thereof.
(3) Disclosure of Information by Subject Individual.
(a) Prior to a criminal records check, an individual shall complete and sign the Department's Criminal Records Request form and, if requested by the Department, a fingerprint card within three business days of receiving the forms. The Department may extend the deadline for good cause. The Department’s criminal records request form will require the following information: name, birth date, social security number, physical characteristics, driver's license or identification card number and current address, prior residency in other states, military history, and any other identifying information deemed necessary by the Department.
(b) The Department may require additional information from the subject individual as necessary to complete the criminal records check and fitness determination, such as, but not limited to, proof of identity; or additional criminal, judicial, or other background information.
(c) The Department shall not request a fingerprint card from a subject individual under the age of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550 et seq, or unless the Department also requests the written consent of a parent or guardian. In such case, such parent or guardian and youth must be informed that they are not required to consent. Notwithstanding, failure to consent may be construed as a refusal to consent under OAR 274-006-0011(3).
Stat. Auth.: ORS 181.534, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0010
Hiring or Appointing on a Preliminary Basis
(1) If the Department elects to conduct a criminal records check pursuant to these rules, the Department, in its sole discretion, may hire or appoint the subject individual on a preliminary basis pending completion of a criminal records check when:
(a) The subject individual has provided all information (including a fingerprint card, if requested) as required by the Department pursuant to OAR 274-006-0005; and
(b) The Department, in its sole discretion, determines that preliminary hiring is in the Department’s best interests.
(2) A subject individual hired or appointed on a preliminary basis under this rule may participate in training, orientation, or work activities as assigned by the Department.
(3) A subject individual hired or appointed on a preliminary basis is deemed to be on trial service.
(4) Nothing in this rule shall be construed as requiring the Department to hire on a preliminary basis.
Stat. Auth.: ORS 181.534, 406.005, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.005, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0011
Final Fitness Determination
(1) If the Department elects to conduct a criminal records check, the Department shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 274-006-0005, the criminal records check(s) conducted, and any false statements made by the subject individual.
(2) In making a fitness determination about a subject individual, the Department will also consider the factors in subsections (a) through (f) below in relation to information provided by the subject individual under OAR 274-006-0005, any LEDS report or criminal offender information obtained through a criminal records check, and other information known by the Department. To assist in considering these factors, the Department may obtain any other information deemed relevant from the subject individual or any other source, including law enforcement and criminal justice agencies or courts within or outside of Oregon. To acquire other criminal offender information from the subject individual, the Department may request to meet with the subject individual, and may request to receive written materials or authorization to obtain other relevant information, from him or her. The subject individual shall meet with the Department if requested and provide additional information or authorization within a reasonable period of time, as established by the Department. The Department will use all collected information in considering:
(a) Whether the subject individual has been convicted, found guilty except for insanity (or a comparable disposition), has a pending indictment, has been arrested, or has an outstanding warrant for arrest for a crime listed in OAR 274-006-0012;
(b) The nature of any crime identified under section (2)(a) of this rule;
(c) The facts that support the conviction, finding of guilty except for insanity, or pending indictment;
(d) Any facts that indicate the subject individual made a false statement;
(e) The relevance, if any, of a crime identified under section (2)(a) of this rule or of a false statement made by the subject individual to the specific requirements of the subject individual's present or proposed position, services or employment; and
(f) Intervening circumstances, including, but not limited to the following, and only to the extent that they are relevant to the responsibilities and circumstances of the services or employment for which the fitness determination is being made:
(A) The passage of time since the commission or alleged commission of a crime identified under section (2)(a) of this rule;
(B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under section (2)(a) of this rule;
(C) The likelihood of a repetition of offenses or of the commission of another crime;
(D) The subsequent commission of another crime listed in OAR 274-006-0012;
(E) Whether a conviction identified under section (2)(a) of this rule has been set aside, and the legal effect of setting aside the conviction;
(F) A recommendation of an employer;
(G) Whether the subject individual has been adjudicated in a juvenile court and found to be within the court's jurisdiction for an offense that would have constituted a crime listed in OAR 274-006-0012 if committed by an adult.
(3) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal records check including fingerprint identification, the Department will deny the employment of the subject individual or deny any applicable position or authority to provide services. A person may not appeal any determination made based on a refusal to consent.
(4) If a subject individual is determined to be not fit, the subject individual may not be employed by or provide services as a volunteer, contractor or vendor to the Department in a position described in OAR 274-006-0004(2).
(5) Final Order. A completed final fitness determination is a final order of the Department unless the affected subject individual appeals the determination by requesting a contested case hearing as provided by OAR 274-006-0018(2) or an alternative appeals process as provided by OAR 274-006-0018(6).
Stat. Auth.: ORS 181.534 & 2009 SB 94
Stats. Implemented: ORS 181.534 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0012
Potentially Disqualifying Crimes
(1) Crimes Relevant to a Fitness Determination:
(a) All felonies;
(b) All misdemeanors;
(c) Any United States Military crime or international crime;
(2) Evaluation of Crimes. The Department shall evaluate a crime on the basis of the law of the jurisdiction in which the crime or offense occurred, as those laws are in effect at the time of the fitness determination.
(3) Expunged Juvenile Record. Under no circumstances shall a subject individual be determined to be not fit under these rules on the basis of the existence or contents of a juvenile record that has been expunged pursuant to ORS 419A.260 and 419A.262.
Stat. Auth.: ORS 181.534 & 2009 SB 94
Stats. Implemented: ORS 181.534 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0013
Incomplete Fitness Determination
(1) The Department will close a preliminary or final fitness determination as incomplete when:
(a) Circumstances change so that a person no longer meets the definition of a "subject individual" under OAR 274-006-0004.
(b) The subject individual does not submit materials or information within the time required under OAR 274-006-0005(3);
(c) The Department cannot locate or contact the subject individual;
(d) The subject individual fails or refuses to cooperate with the Department’s attempts to acquire other criminal records information under OAR 274-006-0011(2); or
(e) The Department determines that the subject individual is not eligible or not qualified for the position (of employee, contractor, vendor or volunteer) for a reason unrelated to the fitness determination process.
(f) The position is no longer open.
(2) A subject individual does not have a right to a contested case hearing under OAR 274-006-0018(2) or a right to an alternative appeals process as provided by OAR 274-006-0018(6) to challenge the closing of a fitness determination as incomplete.
Stat. Auth.: ORS 181.534 & 2009 SB 94
Stats. Implemented: ORS 181.534 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0014
Notice to Subject Individual of Fitness Determination
The Department shall inform the subject individual who has been determined not to be fit on the basis of a criminal records check, via personal service, or registered or certified mail to the most current address provided by the subject individual, of such disqualification.
Stat. Auth.: ORS 181.534 & 2009 SB 94
Stats. Implemented: ORS 181.534 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0015
Fees
(1) The Department may charge a fee for acquiring criminal offender information for use in making a fitness determination. In any particular instance, the fee shall not exceed the fee(s) charged the Department by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain criminal offender information on the subject individual.
(2) The Department may charge the fee to the individual on whom criminal offender information is sought, or, if the individual is an employee of a Department contractor or vendor and is undergoing a fitness determination in that capacity, the Department may charge the fee to the individual’s employer.
Stat. Auth.: ORS 181.534, 406.005, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.005, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
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.
Stat. Auth.: ORS 181.534, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
274-006-0020
Recordkeeping Confidentiality
Any information obtained in the criminal records check is confidential. The Department must restrict the dissemination of information obtained in the criminal records check. Only those persons, as identified by the Department, with a demonstrated and legitimate need to know the information, may have access to criminal records check records.
Stat. Auth.: ORS 181.534, 406.030 & 2009 SB 94
Stats. Implemented: ORS 181.534, 406.030 & 2009 SB 94
Hist.: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10
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