Trial Board Procedures

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_200/oar_257/257_080.html
Published: 2015

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

 

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DEPARTMENT OF STATE POLICE

 

DIVISION 80
TRIAL BOARD PROCEDURES

257-080-0000
Purpose of Rules
These rules outline
the process afforded sworn, unrepresented members of the Department during consideration
of their removal from State service, with the following objectives:
(1) To permit
the member to address the review board prior to a final decision on removal.
(2) To establish
procedures for the member and the review board to follow.
(3) To recognize
that sworn, unrepresented members of the department hold their respective positions
in an “at-will” status.
(4) To provide
the procedure for the decision of the Board to be communicated to the member and
to the individual who made the initial recommendation on removal.
(5) To establish
the internal mechanism for the member to make a request that the Review Board decision
be considered and examined by the Office of the Superintendent.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0005
Statutory
Authority for Rules
These rules are
adopted under the authority provided by ORS 181.280
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0010
Definitions
(1) Department —
refers to the Oregon Department of State Police.
(2) Member
— refers to the sworn, unrepresented member with sustained allegations who
is afforded an informal meeting under these rules.
(3) Review
Board members — Department members appointed by the Superintendent or designee.
(4) Recommending
staff — the Department staff making the initial recommendation for removal
of the member.
(5) Personnel
Report — the record of information that was gathered during a personnel investigation
and fact-finding process which is used to decide whether there are grounds to consider
the removal of the member from the Department.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0015
Grounds for
Removal
Because members
subject to these rules hold their position as “at-will” employees, the
member’s employment is not subject to any cause standard and the Department
legally retains discretion in making a decision on removal.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0020
Investigation and Fact Finding
Processes
(1) The investigation
process will be the fact-gathering process the Department follows in conducting
personnel investigations as found in the most current form of the Department Manual
titled “Personnel Complaint Procedures and Guidelines for investigations and
Corrective Action.”
(2) The fact-finding
process will follow those provisions in the most current form of the same Department
Manual under the “Making Findings of Fact” section.
(3) If the
results of this process result in “sustained” Findings of Fact the process
under these rules will continue.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Administrative Reformatting 12-1-97; Suspended
by OSP 1-2012(Temp), f. & cert. ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f.
& cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0025
Procedure to notify member
of Findings, Recommendation, and Request to convene a Review Board
(1) The sustained
Findings of Fact and Recommendation will be prepared and signed by the recommending
staff, or the Office of Professional Standards, and shall include:
(a) The name
and duty station of the member.
(b) A listing
of sustained allegation(s) with a finding for each.
(c) A statement
that removal of the member is being recommended along with a request to convene
a Review Board.
(2) The document
may include:
(a) A description
of information concerning the member's tenure with the department such as performance
reviews and any letters in the file which may be relevant to an understanding of
the allegations;
(b) Particular
training or education provided;
(c) Prior
corrective action(s);
(d) Informal
discussions or other communications with the member by other managers or supervisors;
(e) The availability
of written standards or expectations - whether formal or informal; and
(f) Any other
matters which may provide a context in which to review the specific conduct at issue.
(3) A suggested
format for the document is:
(a) Member's
name;
(b) Member's
duty station;
(c) As a
sworn member of the department, subject to ORS 181.280 and OAR 257, Division 80,
this is written notice of allegation(s) from which a recommendation for your removal
as a member of the department has been made along with a request to convene a Review
Board.
(d) Relevant
background information as appropriate.
(e) The facts
that have been sustained, setting them out in a logical and chronological format,
using headings and subheadings if necessary, to assist the reader in understanding
the particulars that form the basis of the recommendation.
(4) The completed
document with the sustained allegations, recommendation and request shall be delivered
to the Office of Professional Standards, where they will be filed and logged.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0030
Initiating a Review Board
(1) Upon notice
from the Office of Professional Standards that the completed document with the sustained
allegations, recommendation and request has been filed and logged, the Superintendent
or designee, shall appoint a three person Board of Review.
(2) The Board
shall consist of three members who are of superior rank to the involved member,
if that is possible, and the three members shall be of equal rank, also to the extent
that is possible.
(3) The Board
shall convene, select a Presiding Officer, and determine the time and place of the
meeting to be scheduled with no less than ten days notice to the member.
(4) The member
shall be notified, in writing, of the following:
(a) The individuals
composing the Review Board and the member’s right to demand, in writing and
one time only, that any or all of the persons appointed to the board be replaced
without stating reason or cause. On receipt of such a demand, the Superintendent
or designee shall appoint new representatives to replace those removed;
(b) The location,
date and time of the member to meet with the Board;
(c) The member's
right to be accompanied by legal counsel, at their own expense, or another employee
of their choosing to assist them in presenting information or suggesting further
inquiry before a decision is made by the Board ;
(5) If an
extension of time is necessary for the member to prepare a presentation, the board
shall grant a reasonable period of time upon request.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0035
Review Board — Generally
(1) An audio recording
of the meeting will be made, which shall constitute the only record.
(2) The Board
may have legal counsel from the Oregon Department of Justice to advise them on any
matters and attend the meeting and deliberative process as it deems necessary.
(3) Failure
to comply with one or more of the terms of these rules concerning the Review Board
process shall not invalidate any sustained allegations or negate any proceeding
before the board.
(4) All attendees
shall conduct themselves in a respectful manner. Failure to comply with the Board’s
effort to retain order will result in expulsion from the meeting.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0040
Review Board Pre-meeting
Matters
(1) The Department
shall forward to the member, within a reasonable time after the hearing is set,
all investigative reports and other documents prepared according to the requirements
of the department's personnel review manual.
(2) The member's
official personnel file shall be available for inspection by the parties or their
respective representatives upon advance request to the Office of Professional Standards
Section at General Headquarters.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0045
Board Meeting
(1) The Board designated
Presiding Officer shall open the meeting on the record, by introducing the parties
and identifying the purpose of the meeting.
(2) The record
made available to the Board shall be identified by the Presiding officer.
(3) The member,
or designee, may make opening remarks.
(4) The member
may offer physical evidence and written statements.
(5) Review
Board members may ask questions of the member.
(6) The member
or designee may make concluding remarks.
(7) The meeting
will be private unless the member makes written request that it be public.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
1-1997, f. & cert. ef. 1-22-97; Suspended by OSP 1-2012(Temp), f. & cert.
ef. 5-9-12 thru 11-1-12; OSP 3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12;
OSP 4-2012, f. & cert. ef. 9-5-12
257-080-0050
The Board’s Decision
(1) The Board shall
adjourn the meeting and meet in private to reach a decision regarding corrective
action, which decision shall then be reduced to written form.
(2) The Board
decision shall state specifically whether removal or other corrective action is
appropriate with a brief explanation of its rationale.
(3) In assessing
an appropriate action the board may consider:
(a) The rank
and corresponding duties and expectations for the position held by the member;
(b) The number
and relative severity of sustained allegations; and
(c) Any information
presented by the member at the meeting regarding the sustained allegations.
(4) The Board
is not authorized to apply the concept of “progressive discipline” as
a matter of right.
(5) The Board
is not authorized to nor shall it require proof of "cause" as it makes a decision.
(6) The decision
of the Board shall be delivered to the member and the Office of Professional Standards
by hand-delivery or certified mail, return receipt requested, as is most expeditious.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert.
ef. 9-5-12
257-080-0055
Office of Superintendent’s
consideration of Review Board Decision
(1) Following receipt
of the Board’s decision the member may request the Office of the Superintendent
to consider the Board’s decision by an examination of all materials, including
the tape of the Review Board meeting.
(2) The request
must be in writing and received by the Office of Professional Standards not later
than fifteen (15) days after the date of the Board’s decision.
(3) The request
may include a meeting by the member with the Superintendent or a designee in addition
to the examination of the associated documentation.
(4) If no
request is made, the Superintendent will send a notice to the member with a Final
decision.
(6) The Superintendent
retains the ultimate legal authority on whether to remove the member.
(7) The Superintendent
shall inform the member in writing of the final decision, with a brief explanation
that the Superintendent has exercised the legal discretion afforded the Department
in arriving at a decision.
(8) There
is no right of appeal of the decision on removal.
Stat. Auth.: ORS
181.280 & 181.310

Stats. Implemented:
ORS 181.290 - 181.340

Hist.: OSP
3-2012(Temp), f. & cert. ef. 7-12-12 thru 11-1-12; OSP 4-2012, f. & cert.
ef. 9-5-12

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