The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 

HOUSING AND COMMUNITY SERVICES DEPARTMENT

 

DIVISION 4
MEDIATION COMMUNICATIONS; CRIMINAL RECORDS CHECK
Mediation Communications
813-004-0001
Confidentiality
and Inadmissibility of Mediation Communications
(1) The words and
phrases used in this rule have the same meaning as given to them in ORS 36.110 and
36.234.
(2) Nothing
in this rule affects any confidentiality created by other law. Nothing in this rule
relieves a public body from complying with the Public Meetings Law, ORS 192.610
to 192.690. Whether or not they are confidential under this or other rules of the
agency, mediation communications are exempt from disclosure under the Public Records
Law to the extent provided in 192.410 to 192.505.
(3) This
rule applies only to mediations in which the agency is a party or is mediating a
dispute as to which the agency has regulatory authority. This rule does not apply
when the agency is acting as the "mediator" in a matter in which the agency also
is a party as defined in ORS 36.234.
(4) To the
extent mediation communications would otherwise be compromise negotiations under
ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as
provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary
in section (9) of this rule.
(5) Mediations
Excluded. Sections (6)–(10) of this rule do not apply to:
(a) Mediation
of workplace interpersonal disputes involving the interpersonal relationships between
this agency's employees, officials or employees and officials, unless a formal grievance
under a labor contract, a tort claim notice or a lawsuit has been filed; or
(b) Mediation
in which the person acting as the mediator will also act as the hearings officer
in a contested case involving some or all of the same matters;
(c) Mediation
in which the only parties are public bodies;
(d) Mediation
in which two or more public bodies and a private entity are parties if the laws,
rule or policies governing mediation confidentiality for at least one of the public
bodies provide that mediation communications in the mediation are not confidential;
(e) Mediation
involving 15 or more parties if the agency has designated that another mediation
confidentiality rule adopted by the agency may apply to that mediation;
(6) Disclosures
by Mediator. A mediator may not disclose or be compelled to disclose mediation
communications in a mediation and, if disclosed, such communications may not be
introduced into evidence in any subsequent administrative, judicial or arbitration
proceeding unless:
(a) All the
parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation
communication may be disclosed or introduced into evidence in a subsequent proceeding
as provided in subsections (c)–(d), (j)–(l) or (o)–(p) of section
(9) of this rule; or
(7) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in sections
(8)–(9) of this rule, mediation communications are confidential and may not
be disclosed to any other person, are not admissible in any subsequent administrative,
judicial or arbitration proceeding and may not be disclosed during testimony in,
or during any discovery conducted as part of a subsequent proceeding, or introduced
as evidence by the parties or the mediator in any subsequent proceeding.
(8) Written
Agreement. Section (7) of this rule does not apply to a mediation unless the parties
to the mediation agree in writing that the mediation communications in the mediation
will be confidential and/or nondiscoverable and inadmissible. If the mediator is
the employee of and acting on behalf of a state agency, the mediator or an authorized
agency representative must also sign the agreement. The parties' agreement to participate
in a confidential mediation must refer to this mediation confidentiality rule.
(9) Exceptions
to confidentiality and inadmissibility.
(a) Any statements,
memoranda, work products, documents and other materials, otherwise subject to discovery
that were not prepared specifically for use in the mediation are not confidential
and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation
communications that are public records, as defined in ORS 192.410(4), and were not
specifically prepared for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law.
(c) A mediation
communication is not confidential and may be disclosed by any person receiving the
communication to the extent that person reasonably believes that disclosing the
communication is necessary to prevent the commission of a crime that is likely to
result in death or bodily injury to any person. A mediation communication is not
confidential and may be disclosed in a subsequent proceeding to the extent its disclosure
may further the investigation or prosecution of a felony crime involving physical
violence to a person.
(d) Any mediation
communication related to the conduct of a licensed professional that is made to
or in the presence of a person who, as a condition of his or her professional license,
is obligated to report such communication by law or court rule is not confidential
and may be disclosed to the extent necessary to make such a report.
(e) The parties
to the mediation may agree in writing that all or part of the mediation communications
are not confidential or that all or part of the mediation communications may be
disclosed and may be introduced into evidence in a subsequent proceeding unless
the substance of the communication is confidential, privileged or otherwise prohibited
from disclosure under state or federal law.
(f) A party
to the mediation may disclose confidential mediation communications to a person
if the party's communication with that person is privileged under ORS Chapter 40
or other provision of law. A party to the mediation may disclose confidential mediation
communications to a person for the purpose of obtaining advice concerning the subject
matter of the mediation, if all the parties agree.
(g) An employee
of the agency may disclose confidential mediation communications to another agency
employee so long as the disclosure is necessary to conduct authorized activities
of the agency. An employee receiving a confidential mediation communication under
this subsection is bound by the same confidentiality requirements as apply to the
parties to the mediation.
(h) A written
mediation communication may be disclosed or introduced as evidence in a subsequent
proceeding at the discretion of the party who prepared the communication so long
as the communication is not otherwise confidential under state or federal law and
does not contain confidential information from the mediator or another party who
does not agree to the disclosure.
(i) In any
proceeding to enforce, modify or set aside a mediation agreement, a party to the
mediation may disclose mediation communications and such communications may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the request
of a party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other than
the parties to the agreement.
(j) In an
action for damages or other relief between a party to the mediation and a mediator
or mediation program, mediation communications are not confidential and may be disclosed
and may be introduced as evidence to the extent necessary to prosecute or defend
the matter. At the request of a party, the court may seal any part of the record
of the proceeding to prevent further disclosure of the mediation communications
or agreements.
(k) When
a mediation is conducted as part of the negotiation of a collective bargaining agreement,
the following mediation communications are not confidential and such communications
may be introduced into evidence in a subsequent administrative, judicial or arbitration
proceeding:
(A) A request
for mediation, or
(B) A communication
from the Employment Relations Board Conciliation Service establishing the time and
place of mediation, or
(C) A final
offer submitted by the parties to the mediator pursuant to ORS 243.712, or
(D) A strike
notice submitted to the Employment Relations Board.
(l) To the
extent a mediation communication contains information the substance of which is
required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that
portion of the communication may be disclosed as required by statute.
(m) Written
mediation communications prepared by or for the agency or its attorney are not confidential
and may be disclosed and may be introduced as evidence in any subsequent administrative,
judicial or arbitration proceeding to the extent the communication does not contain
confidential information from the mediator or another party, except for those written
mediation communications that are:
(A) Attorney
client privileged communications so long as they have been disclosed to no one other
than the mediator in the course of the mediation or to persons as to whom disclosure
of the communication would not waive the privilege, or
(B) Attorney
work product prepared in anticipation of litigation or for trial, or
(C) Prepared
exclusively for the mediator or in a caucus session and not given to another party
in the mediation other than a state agency, or
(D) Prepared
in response to the written request of the mediator for specific documents or information
and given to another party in the mediation, or
(E) Settlement
concepts or proposals, shared with the mediator or other parties.
(n) A mediation
communication made to the agency may be disclosed and may be admitted into evidence
to the extent the Oregon Housing and Community Services Director or designee determines
that disclosure of the communication is necessary to prevent or mitigate a serious
danger to the public's health or safety, and the communication is not otherwise
confidential or privileged under state or federal law.
(o) The terms
of any mediation agreement are not confidential and may be introduced as evidence
in a subsequent proceeding, except to the extent the terms of the agreement are
exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms
to be confidential under 17.095 or state or federal law requires the terms to be
confidential.
(p) In any
mediation in a case that that has been filed in court or when a public body’s
role in a mediation is solely to make mediation available to the parties the mediator
may report the disposition of the mediation to that public body or court at the
conclusion of the mediation so long as the report does not disclose specific confidential
mediation communications. The agency conducting the mediation or making the mediation
available or the mediator may use or disclose confidential mediation communications
for research, training or educational purposes, subject to the provisions of ORS
36.232(4).
(q) Not withstanding
this rule, a written agreement executed pursuant to section (8) of this rule may
be introduced into evidence in a subsequent proceeding.
(10) When
a mediation is subject to section (7) of this rule, the agency will provide to all
parties to the mediation and the mediator a copy of this rule or a citation to the
rule and an explanation of where a copy of the rule may be obtained. Violation
of this provision does not waive confidentiality or inadmissibility.
Stat. Auth.: ORS
36.224

Stats. Implemented:
ORS 36.224, 36.228, 36.230 & 36.232

Hist.: OHCS
5-2012(Temp), f. & cert. ef. 10-15-12 thru 4-12-13; OHCS 3-2013, f. & cert.
ef. 3-28-13
813-004-0002
Confidentiality
and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications
(1) This rule applies
to workplace interpersonal disputes, which are disputes involving the interpersonal
relationships between this agency's employees, officials or employees and officials.
This rule does not apply to disputes involving the negotiation of labor contracts
or matters about which a tort claim notice or a lawsuit has been filed.
(2) The words
and phrases used in this rule have the same meaning as given to them in ORS 36.110
and 36.234.
(3) Nothing
in this rule affects any confidentiality created by other law.
(4) To the
extent mediation communications would otherwise be compromise negotiations under
ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as
provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary
in section (9) of this rule.
(5) Disclosures
by Mediator. A mediator may not disclose or be compelled to disclose mediation
communications in a mediation and, if disclosed, such communications may not be
introduced into evidence in any subsequent administrative, judicial or arbitration
proceeding unless:
(a) All the
parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation
communication may be disclosed or introduced into evidence in a subsequent proceeding
as provided in subsections (c) or (h)–(j) of section (7) of this rule.
(6) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in section (7)
of this rule, mediation communications in mediations involving workplace interpersonal
disputes are confidential and may not be disclosed to any other person, are not
admissible in any subsequent administrative, judicial or arbitration proceeding
and may not be disclosed during testimony in, or during any discovery conducted
as part of a subsequent proceeding, or introduced into evidence by the parties or
the mediator in any subsequent proceeding so long as:
(a) The parties
to the mediation and the agency have agreed in writing to the confidentiality of
the mediation, and;
(b) The person
agreeing to the confidentiality of the mediation on behalf of the agency:
(A) Is neither
a party to the dispute nor the mediator, and
(B) Is designated
by the agency to authorize confidentiality for the mediation, and
(C) Is at
the same or higher level in the agency than any of the parties to the mediation
or who is a person with responsibility for human resources or personnel matters
in the agency, unless the agency head or member of the governing board is one of
the persons involved in the interpersonal dispute, in which case the Governor or
the Governor's designee.
(7) Exceptions
to confidentiality and inadmissibility.
(a) Any statements,
memoranda, work products, documents and other materials, otherwise subject to discovery
that were not prepared specifically for use in the mediation are not confidential
and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation
communications that are public records, as defined in ORS 192.410(4), and were not
specifically prepared for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law.
(c) A mediation
communication is not confidential and may be disclosed by any person receiving the
communication to the extent that person reasonably believes that disclosing the
communication is necessary to prevent the commission of a crime that is likely to
result in death or bodily injury to any person. A mediation communication is not
confidential and may be disclosed in a subsequent proceeding to the extent its disclosure
may further the investigation or prosecution of a felony crime involving physical
violence to a person.
(d) The parties
to the mediation may agree in writing that all or part of the mediation communications
are not confidential or that all or part of the mediation communications may be
disclosed and may be introduced into evidence in a subsequent proceeding unless
the substance of the communication is confidential, privileged or otherwise prohibited
from disclosure under state or federal law.
(e) A party
to the mediation may disclose confidential mediation communications to a person
if the party's communication with that person is privileged under ORS Chapter 40
or other provision of law. A party to the mediation may disclose confidential mediation
communications to a person for the purpose of obtaining advice concerning the subject
matter of the mediation, if all the parties agree.
(f) A written
mediation communication may be disclosed or introduced as evidence in a subsequent
proceeding at the discretion of the party who prepared the communication so long
as the communication is not otherwise confidential under state or federal law and
does not contain confidential information from the mediator or another party who
does not agree to the disclosure.
(g) In any
proceeding to enforce, modify or set aside a mediation agreement, a party to the
mediation may disclose mediation communications and such communications may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the request
of a party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other than
the parties to the agreement.
(h) In an
action for damages or other relief between a party to the mediation and a mediator
or mediation program, mediation communications are not confidential and may be disclosed
and may be introduced as evidence to the extent necessary to prosecute or defend
the matter. At the request of a party, the court may seal any part of the record
of the proceeding to prevent further disclosure of the mediation communications
or agreements.
(i) To the
extent a mediation communication contains information the substance of which is
required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that
portion of the communication may be disclosed as required by statute.
(j) The mediator
may report the disposition of a mediation to the agency at the conclusion of the
mediation so long as the report does not disclose specific confidential mediation
communications. The agency or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the provisions
of ORS 36.232(4).
(8) The terms
of any agreement arising out of the mediation of a workplace interpersonal dispute
are confidential so long as the parties and the agency so agree in writing. Any
term of an agreement that requires an expenditure of public funds, other than expenditures
of $1,000 or less for employee training, employee counseling or purchases of equipment
that remain the property of the agency, may not be made confidential.
(9) When
a mediation is subject to section (6) of this rule, the agency will provide to all
parties to the mediation and to the mediator a copy of this rule or an explanation
of where a copy of the rule may be obtained. Violation of this provision does not
waive confidentiality or inadmissibility.
Stat. Auth.: ORS
36.224

Stats. Implemented:
ORS 36.230(4)

Hist.: OHCS
5-2012(Temp), f. & cert. ef. 10-15-12 thru 4-12-13; OHCS 3-2013, f. & cert.
ef. 3-28-13
Criminal Records Check
813-004-0200
Purpose
The purpose of these
rules is to provide for the reasonable screening of subject individuals to determine
if they have a history of criminal behavior such that they are not fit to work or
volunteer in positions covered in OAR 813-004-0220. The fact that the Agency determines
that a subject individual is fit does not guarantee the individual a position as
an Agency employee, volunteer, contractor or vendor or that the individual will
be hired by the Agency.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0210
Definitions
As used in OAR chapter
813, division 4, unless the context of the rule requires otherwise, the following
definitions apply:
(1) Agency:
Oregon Housing and Community Services.
(2) Conviction:
A final judgment on a verdict or finding of guilty, a plea of guilty, or a plea
of nolo contendere (no contest) or any determination of guilt entered by a court
of law against a subject individual in a criminal case, unless that judgment has
been reversed or set aside by a subsequent court decision.
(3) Fitness
determination: A determination made by the Agency, pursuant to the process established
under OAR 813-004-0230, that a subject individual is fit or not fit to be an Agency
employee, volunteer, contractor or vendor in a position covered by OAR 813-004-0220.
(4) Criminal
offender information: 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.
(5) Criminal
records check: One or more of the following three processes undertaken by the Agency
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 Agency'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 Agency's request (Nationwide
Criminal Records Check).
(6) Criminal
records request form: An Agency-approved form, completed by a subject individual,
requesting the Agency to conduct a criminal records check.
(7) False
statement: In association with an activity governed by these rules, a subject individual
either:
(a) Provided
the Agency with false information about the subject individual’s criminal
history, including but not limited to false information about the individual’s
identity or conviction record; or
(b) Failed
to provide the Agency information material to determining the individual’s
criminal history.
(8) Subject
Individual: An individual identified in OAR 813-004-0220 as someone from whom the
Agency may require a criminal records check.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0220
Subject Individual
The Agency may require
a subject individual to complete a criminal records check pursuant to these rules
because the person:
(1)(a) Is
employed by or applying for employment with the Agency; or
(b) Provides
services or seeks to provide services to the Agency as a volunteer, contractor,
or vendor; and
(2) Is, or
will be, working or providing services in a position:
(a) In which
the subject individual is providing information technology services and has control
over, or access to, information technology systems that would allow the person to
harm the information technology systems or the information contained in the systems;
(b) In which
the subject individual has access to information that state or federal laws, rules
or regulations prohibit disclosing or define as confidential;
(c) That
has payroll functions;
(d) In which
the subject individual has responsibility for receiving, receipting or depositing
money or negotiable instruments;
(e) In which
the subject individual has responsibility for billing, collections or other financial
transactions;
(f) In which
the subject individual has responsibility for purchasing or selling property or
has access to property held in trust or to private property in the temporary custody
of the state;
(g) That
has mailroom duties as the primary duty or job function;
(h) That
has personnel or human resources functions as one of the position's primary responsibilities;
(i) In which
the subject individual has access to Social Security numbers, dates of birth or
criminal background information of employees or members of the public;
(j) In which
the individual has access to tax or financial information about individuals or business
entities.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0230
Criminal
Records Check Process
(1) Disclosure of
Information by Subject Individual.
(a) Preliminary
to a criminal records check, a subject individual must complete and sign the Agency
criminal records request and a fingerprint card.
(b) A subject
individual must complete and submit to the Agency the Criminal Records Request form
and, if requested, a fingerprint card within three business days of receiving the
forms. The Agency may extend the deadline for good cause. The Agency’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 residences in other states and any other
identifying information deemed necessary by the Agency.
(c) The Agency
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.
(d) The Agency
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 Agency 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 813-004-0250(3).
(2) When
a Criminal Records Check is Required. The Agency 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 Agency.
(3) Which
Criminal Records Check is Conducted. When the Agency determines under section (2)
of this rule that a criminal records check will be done, the Agency may request
or conduct a LEDS Criminal Records Check, an Oregon Criminal Records Check, a Nationwide
Criminal Records Check, or any combination thereof.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0240
Hiring or
Appointing on a Preliminary Basis
(1) If the Agency
elects to conduct a criminal records check pursuant to these rules, the Agency,
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 Agency pursuant to OAR 813-004-0230; and
(b) The Agency,
in its sole discretion, determines that preliminary hiring is in the Agency’s
best interests.
(2) A subject
individual hired or appointed on a preliminary basis under this rule may participate
in training, orientation, and work activities as assigned by the Agency.
(3) Nothing
in this rule shall be construed as requiring the Agency to hire on a preliminary
basis.
(4) A subject
individual hired on a preliminary basis is deemed to be on trial service.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0250
Final Fitness
Determination
(1) If the Agency
elects to conduct a criminal records check, the Agency shall make a fitness determination
about a subject individual based on information provided by the subject individual
under OAR 813-004-0230, 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 Agency will also consider
the factors in subsections (a) through (f) below in relation to information provided
by the subject individual under OAR 813-004-0230(1), any LEDS report or criminal
offender information obtained through a criminal records check, and other information
known by the Agency. To assist in considering these factors, the Agency 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 Agency 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 Agency if requested and provide
additional information or authorization within a reasonable period of time, as established
by the Agency. The Agency will use all collected information in considering:
(a) Whether
the subject individual has been convicted, found guilty except for insanity (or
a comparable disposition), or has a pending indictment for a crime listed in OAR
813-004-0260;
(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) The following
intervening circumstances, 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 813-004-0260;
(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) The disposition
of a pending indictment identified under section (2)(a) of this rule;
(H) Whether
the subject individual has been arrested for or charged with a crime listed under
OAR 813-004-0260;
(I) Whether
the subject individual is being investigated, or has an outstanding warrant, for
a crime listed under OAR 813-004-0260;
(J) Whether
the subject individual is currently on probation, parole or another form of post-prison
supervision for a crime listed under OAR 813-004-0260;
(K) Whether
the subject individual has a deferred sentence or conditional discharge in connection
with a crime listed under OAR 813-004-0260;
(L) 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 813-004-0260 if committed by an adult;
(M) Periods
of incarceration of the subject individual;
(N) The education
and work history (paid or volunteer) of the subject individual since the commission
or alleged commission of a crime.
(3) Refusal
to Consent. If a subject individual refuses to submit or consent to a criminal records
check including fingerprint identification, the Agency 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 Agency
in a position described in OAR 813-004-0220(2).
(5) Final
Order. A completed final fitness determination is a final order of the Agency unless
the affected subject individual appeals the determination by requesting a contested
case hearing as provided by OAR 813-004-0290(2) or an alternative appeals process
as provided by OAR 813-004-0290(6).
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0260
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 Agency 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 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0270
Incomplete
Fitness Determination
(1) The Agency 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 813-004-0220.
(b) The subject
individual does not submit materials or information within the time required under
OAR 813-004-0230(1);
(c) The Agency
cannot locate or contact the subject individual;
(d) The subject
individual fails or refuses to cooperate with the Agency's attempts to acquire other
criminal records information under OAR 813-004-0260(2); or
(e) The Agency
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 813-004-0290(2)
or a right to an alternative appeals process as provided by OAR 813-004-0290(6)
to challenge the closing of a fitness determination as incomplete.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0280
Notice to
Subject Individual of Fitness Determination
The Agency 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 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0290
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 final fitness determination made under OAR 813-004-0250
that the individual is not fit to hold a position with, or provide services to the
Agency as an employee, volunteer, contractor, or vendor. Section (6) of this rule
identifies an alternative appeal process available only to current Agency 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 813-004-0280. To be timely, the
request must be received by the Agency at the specified address within 14 calendar
days of the date stated on the notice. The Agency 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 Agency 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 Agency or the administrative law judge may protect information made confidential
by ORS 181.534(15) or other applicable law as provided under OAR 137-003-0566.
(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 813-004-0250 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.
(6) Alternative
Process. A subject individual currently employed by the Agency may choose to appeal
a fitness determination either under the process made available by this rule or
through a 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 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.
(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 Agency
conduct a new criminal records check and re-evaluate the original fitness determination
made under OAR 813-004-0250 by submitting a new Agency 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 agency 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
Agency’s hiring process or employment decisions.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0300
Recordkeeping
and Confidentiality
Any information
obtained in the criminal records check is confidential. The Agency must restrict
the dissemination of information obtained in the criminal records check. Only those
persons, as identified by the Agency, with a demonstrated and legitimate need to
know the information, may have access to criminal records check records.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13
813-004-0310
Fees
(1) The Agency may
charge a fee for acquiring criminal offender information for use in making a fitness
determination that will not exceed the fee charged the Agency by the Oregon Department
of State Police and the Federal Bureau of Investigation to obtain such information.
(2) The Agency
may charge the fee to the subject individual on whom criminal offender information
is sought or, if the subject individual is an employee of an Agency contractor or
vendor and is undergoing a fitness determination in that capacity, the Agency may
charge the fee to the subject individual's employer.
Stat. Auth.: ORS
181.534 & 456.135

Stats. Implemented:
ORS 181.534 & 456.569

Hist.: OHCS
1-2013, f. & cert. ef. 1-4-13

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use