Criminal Records Checks

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_416/416_800.html
Published: 2015

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

 

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OREGON YOUTH AUTHORITY







 

DIVISION 800
CRIMINAL RECORDS CHECKS

416-800-0000
Purpose
(1) The Oregon Youth Authority (OYA)
seeks to ensure the security and safety of the offenders in its care and custody.
OYA values excellence in public service, partnerships with local communities and
other agencies, openness and accountability and provision of service in a fair,
respectful, and humane manner. As a state agency, OYA employees serve as public
officials. As public officials, OYA employees must adhere to ethics and boundaries
described in statute and agency policy. OYA expects its Volunteers, contractors,
and Foster Care Providers to also maintain these ethics and boundaries.
(2) These rules control how
OYA accesses Criminal Offender Information about a Subject Individual through Criminal
Records Checks and its use of that information to determine whether the Subject
Individual is fit to provide services to OYA as an employee, Volunteer, Foster Care
Provider, contractor, or vendor. The fact that OYA approves a Subject Individual
as fit does not guarantee the individual a position as an OYA employee, Volunteer,
Foster Care Provider, contractor, or vendor.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95,
cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. &
cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 11-2005, f. &
cert. ef. 4-20-05; OYA 3-2010, f. 6-10-10 cert. ef. 6-25-10; OYA 6-2015, f. &
cert. ef. 10-7-15
416-800-0010
Definitions
(1) Approved: Pursuant to a preliminary
Fitness Determination under OAR 416-800-0041 or a final Fitness Determination under
OAR 416-800-0050, OYA has determined that the Subject Individual is fit to be an
employee, Volunteer, Foster Care Provider, contractor, or vendor in a position covered
by OAR 416-800-0020.
(2) Conviction: A final judgment
on a verdict or finding of guilty, a plea of guilty, 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) Criminal Offender Information:
Records and related data as to physical description and vital statistics, fingerprints
received and compiled by the Oregon Department of State Police Bureau of Criminal
Identification for purposes of identifying criminal offenders and alleged offenders,
records of arrests and the nature and disposition of criminal charges, including
sentencing, confinement, parole and release.
(4) Criminal Records Check:
One or more of the following processes undertaken to check the criminal history
of a Subject Individual:
(a) Computerized Criminal
Records Check: A check of Criminal Offender Information conducted through use of
the Law Enforcement Data Systems (LEDS), including information from the Federal
Bureau of Investigation's (FBI) National Crime Information Center (NCIC), and the
National Law Enforcement Telecommunications System (NLETS).
(b) Fingerprint-based Criminal
Records Check: A national check of federal Criminal Offender Information through
the submission of fingerprints and other identifying data, conducted by the Oregon
Department of State Police through the Federal Bureau of Investigation or otherwise
at OYA’s request.
(5) Denied: A determination
by OYA pursuant to a preliminary Fitness Determination under OAR 416-800-0041 or
a final Fitness Determination under OAR 416-800-0050, that the Subject Individual
is not fit to be an employee, Volunteer, Foster Care Provider, contractor, or vendor
in a position covered by OAR 416-800-0020.
(6) False Statement: In association
with an activity governed by these rules, a Subject Individual either: (a) provided
OYA with materially false information about his or her criminal history, such as,
but not limited to, materially false information about his or her identity or Conviction
record; or (b) failed to provide to OYA information material to determining his
or her criminal history.
(7) Fitness Determination:
A determination made pursuant to the process established in OAR 416-800-0041 (preliminary
Fitness Determination) or 416-800-0050 (final Fitness Determination) that a Subject
Individual is or is not fit to be an employee, Volunteer, contractor, vendor, or
Foster Care Provider in a position covered by OAR 416-800-0020.
(8) Foster Care Provider:
A person who supervises a youth offender in a youth offender foster home setting,
including proctor parents as defined in OAR 416-530-0110(4); transitional care respite
providers as defined in OAR 416-530-0200(2)(d); transitional care providers as defined
in OAR 416-530-0200(2)(f); and foster parents as defined in 416-530-0010(12).
(9) Member of the Household:
Any person, other than an OYA offender, who lives in an OYA offender’s home,
on the property where an OYA offender’s home is located, is a frequent visitor
to the home or who assists in the care provided to an OYA offender including but
not limited to Volunteers or a person providing services such as tutoring, recreation,
relief care, household chores, or other services, whether paid or unpaid.
(10) Subject Individual:
An individual identified in OAR 416-800-0020 as someone from whom OYA may require
a Criminal Records Check.
(11) Volunteers: Persons
who, as defined in OAR 416-450-0010, provide services to OYA on a non-paid basis.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95,
cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. &
cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 11-2005, f. &
cert. ef. 4-20-05; OYA 15-2005, f. & cert. ef. 6-30-05; OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0020
Subject Individuals
“Subject Individual” means
a person who is required to complete a Criminal Records Check pursuant to these
rules and from whom OYA may require fingerprints for the purpose of conducting a
Criminal Records Check because the person:
(1) Is employed or applying
for employment with OYA; or
(2) Provides services or
seeks to provide services to OYA as a contractor, vendor, or Volunteer; or
(3) Operates or is an applicant
to operate a youth offender foster home, or who is an adult Member of the Household
in the foster home.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95,
cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. &
cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0031
Criminal Records Check Process
(1) Disclosure of Information by Subject
Individual.
(a) Preliminary to a Criminal
Records Check, Subject Individuals must complete and sign a consent for criminal
record check form and, if requested by OYA, a fingerprint card or scan form. The
consent form may require the following information: name, date of birth, Social
Security Number, physical characteristics, driver’s license or identification
numbers, current address, prior residences, and any other information deemed necessary
by OYA. The consent form may also require details concerning any circumstance listed
in OAR 416-800-0041(3)(a)–(e).
(b) A Subject Individual
must complete and submit to OYA the consent form and, if requested, a fingerprint
card or scan form within three business days of receiving the forms.
(c) If the Oregon State Police
or the FBI returns a Subject Individual’s fingerprint card or scan to OYA
as “unreadable,” OYA may require the Subject Individual to submit a
new fingerprint card or scan within a reasonable period of time, as established
by OYA.
(d) Within a reasonable period
of time, as established by OYA, a Subject Individual will disclose additional information
as requested by OYA in order to resolve any issue(s) hindering the completion of
a criminal record check.
(2) When a Criminal Records
Check is Conducted. OYA may conduct, or request that the Oregon State Police 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 OYA.
(3) Which Criminal Records
Check Is Conducted. When OYA determines under section (2) of this rule that a criminal
record check is needed, OYA may request or conduct a computerized records check,
a fingerprint-based records check, or both.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 181.557,
420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0041
Preliminary Fitness Determination
(1) OYA may conduct a preliminary Fitness
Determination if it is interested in hiring or appointing a Subject Individual on
a preliminary basis, pending a final Fitness Determination.
(2) If OYA elects to make
a preliminary Fitness Determination about a Subject Individual, pending a final
Fitness Determination, OYA will make a preliminary Fitness Determination about a
Subject Individual based on information disclosed by the Subject Individual and
a computerized Criminal Records Check.
(3) OYA may approve a Subject
Individual as fit on a preliminary basis if OYA has no reason to believe that the
Subject Individual has made a False Statement and the information available to OYA
does not disclose that the Subject Individual:
(a) Has pled nolo contendere
(or no contest) to, been convicted of, found guilty except for insanity (or comparable
disposition) of, or has a pending indictment for a crime listed under OAR 416-800-0055.
(b) Is being investigated
for, has been arrested for, has an outstanding warrant for, or has been charged
with a crime listed under OAR 416-800-0055.
(c) Is currently on probation,
parole, or any form of post-prison supervision for a crime listed in OAR 416-800-0055.
(d) Has a deferred sentence
or conditional discharge in connection with a crime listed in OAR 416-800-0055.
(e) 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 416-800-0055 if committed
by an adult.
(4) A Subject Individual
may not appeal a preliminary Fitness Determination under the process described in
OAR 416-800-0080.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0045
Hiring or Appointing on a Preliminary Basis
(1) OYA may hire or appoint a Subject
Individual on a preliminary basis if OYA has Approved the Subject Individual on
the basis of a preliminary Fitness Determination under OAR 416-800-0041.
(2) A Subject Individual
hired or appointed on a preliminary basis may be provided provisional access to
offenders and OYA facilities, training, orientation and work activities, pending
the results of a final Fitness Determination described in these rules.
(3) A Subject Individual
hired or appointed on a preliminary basis is deemed to be on trial service and,
if terminated, prior to the completion of a final Fitness Determination under OAR
416-800-0050 may not appeal the termination under the process provided under OAR
416-800-0070.
(4) If a Subject Individual
hired or appointed on a preliminary basis is Denied upon completion of a final Fitness
Determination, as provided 416-800-0050, then OYA must immediately terminate the
Subject Individual’s employment or appointment.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0050
Final Fitness Determination
(1) If OYA elects to conduct a Criminal
Records Check, OYA must make a Fitness Determination about a Subject Individual
based on information provided by the Subject Individual under OAR 416-800-0030(1),
the Criminal Records Check(s) conducted, if any, and any False Statements made by
the Subject Individual.
(2) In making a Fitness Determination
about a Subject Individual, OYA will consider the factors in subsections (2)(a)–(f)
of this rule in relation to information provided by the Subject Individual under
OAR 416-800-0030(1), any information obtained through a Criminal Records Check,
and any False Statement made by the Subject Individual. To assist in considering
these factors, OYA may obtain 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 relevant information from
the Subject Individual, OYA may request to meet with the Subject Individual, to
receive written materials from him or her, or both. OYA will use all collected information
in considering:
(a) Whether the Subject Individual
has, pled nolo contendere (or no contest) to, been convicted of, found guilty except
for insanity (or a comparable disposition) of, or has a pending indictment for a
crime listed in OAR 416-800-0055;
(b) Whether the Subject Individual
is being investigated for, has been arrested for, has an outstanding warrant for,
or has been charged with a crime listed under OAR 416-800-0055.
(c) Whether the Subject Individual
is currently on probation, parole, or any form of post-prison supervision for a
crime listed in OAR 416-800-0055.
(d) Whether the Subject Individual
has a deferred sentence or conditional discharge in connection with a crime listed
in OAR 416-800-0055.
(e) 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 416-800-0055
if committed by an adult.
(f) The nature of any crime
identified under subsection (2)(a);
(g) The facts that support
the arrest, conviction, finding of guilty except for insanity, or pending indictment;
(h) The facts that indicate
the Subject Individual made a False Statement;
(i) The relevance, if any,
of a crime identified under subsection (2)(a) 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
(j) 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, including,
but not limited to:
(A) The passage of time since
the commission or alleged commission of a crime identified under subsection (2)(a);
(B) The age of the Subject
Individual at the time of the commission or alleged commission of a crime identified
under subsection (2)(a);
(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 416-800-0055;
(E) Whether a Conviction
identified under subsection (2)(a) has been set aside or pardoned, and the legal
effect of setting aside the Conviction or of a pardon; and
(F) A recommendation of an
employer.
(3) Refusal to Consent. If
a Subject Individual refuses to submit or consent to a Criminal Records Check, including
fingerprint identification, OYA must deny the employment of the Subject Individual,
or revoke 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 Denied as not fit, then the Subject Individual may not be employed by OYA or
provide services to OYA as a Volunteer, Foster Care Provider, contractor, or vendor.
(5) Under no circumstances
must a Subject Individual be Denied 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 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 2-1995, f. 12-19-95,
cert. ef. 1-2-96; OYA 5-1997, f. & cert. ef. 10-13-97; OYA 8-2002, f. &
cert. ef. 1-18-02; OYA 8-2003, f. & cert. ef. 9-23-03; OYA 11-2005, f. &
cert. ef. 4-20-05; OYA 15-2005, f. & cert. ef. 6-30-05; OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0055
Types of Crimes Relevant to a Fitness Determination
(1) Crimes Relevant to a Fitness Determination.
(a) All felonies;
(b) All misdemeanors;
(c) Any United States Military
crime or international crime;
(d) Any civil restraining
order entered for spousal abuse, domestic violence, harassment, or stalking.
(2) Evaluation of Crimes.
OYA must evaluate a crime on the basis of the laws of the jurisdiction in which
the crime or offense occurred.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0065
Incomplete Fitness Determination
(1) OYA 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 416-800-0020;
(b) The Subject Individual
does not provide materials or information under OAR 416-800-0030(1) within the timeframes
established under that rule;
(c) OYA cannot locate or
contact the Subject Individual;
(d) The Subject Individual
fails or refuses to cooperate with OYA’s attempts to acquire other relevant
information under OAR 416-800-0050(2);
(e) OYA determines that the
Subject Individual is not eligible or not qualified for the position of employee,
Foster Care Provider, contractor, Volunteer, or vendor for a reason unrelated to
the Fitness Determination process; or
(f) The position is no longer
open.
(2) A Subject Individual
does not have a right to a contested case hearing under OAR 416-800-0080 to challenge
the closing of an incomplete Fitness Determination.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0070
Notice to Subject Individuals of Fitness
Determination
OYA must inform the Subject Individual
who has been determined not to be fit on the basis of a Criminal Records Check,
via certified mail to the most current address provided by the Subject Individual,
of such disqualification.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 181.557,
420A.010, 420A.020, 420A.021
Hist.: OYA 5-1997, f. &
cert. ef. 10-13-97; OYA 8-2002, f. & cert. ef. 1-18-02; OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0080
Appealing a Fitness Determination
(1) Model Rules of Procedure. OYA adopts
the Attorney General's Model Rules of Procedure OAR 137-003-0001 to 137-003-0092
and 137-003-0580, effective July 2014, as procedural rules for contested case hearings.
In addition to the Model Rules of Procedure adopted by OYA, the procedures set forth
in this rule must apply.
(2) Process
(a) A Foster Care Provider
or Foster Care Provider applicant may appeal a Fitness Determination by submitting
a written request for a contested case hearing to the address specified in the notice
provided under OAR 416-800-0070.
(b) A request for a hearing
from a Foster Care Provider or Foster Care Provider applicant must be received by
OYA within 60 days of the date of the notice.
(c) When a timely request
is received by OYA under subsection (a), a contested case hearing must be conducted
by a hearing officer appointed by OYA’s Director.
(3) Time and Place of Hearings.
The time and place of hearing will be set by the hearing officer. Notice of the
hearing must be served on the appropriate assistant director and interested parties
at least ten days in advance of the hearing date.
(4) Discovery. OYA or the
hearing officer may protect information made confidential by ORS 181.534(15) or
other applicable laws and rules.
(5) Disclosure of LEDS Information.
Information obtained through LEDS must be disclosed only in a manner consistent
with Oregon State Police rules and regulations.
(6) No Public Attendance.
Contested case hearings on Fitness Determinations are closed to non-participants.
(7) Proposed and Final Order
(a) Proposed Order. After
a hearing, the hearings officer will issue a proposed order.
(b) Exceptions. Exceptions,
if any, must be filed within 14 calendar days after service of the proposed order.
The proposed order must provide an address to which exceptions must be sent.
(c) Default. A completed
final Fitness Determination made under OAR 416-800-0050 becomes final:
(A) Unless the Foster Care
Provider or Foster Care Provider applicant makes a timely request for hearing; or
(B) When a party withdraws
a hearing request, notifies the agency or the hearing officer that the party will
not appear, or fails to appear for the hearing.
(8) Remedy. The only remedy
that may be awarded is a determination that the Foster Care Provider or Foster Care
Provider applicant is fit. Under no circumstances must OYA be required to place
a Foster Care Provider or Foster Care Provider applicant in any position, nor must
OYA be required to accept services or enter into a contractual agreement with a
Foster Care Provider or Foster Care Provider applicant.
(9) 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. To challenge information identified in this section (9), a Subject
Individual may use any process made available by the agency that provided the information.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 2-2013, f. & cert. ef. 7-29-13; OYA 6-2015, f. &
cert. ef. 10-7-15
416-800-0090
Record Keeping, Confidentiality
Any information obtained in the Criminal
Records Check is confidential. OYA must restrict the dissemination of information
obtained in the Criminal Records Check. Only those persons, as identified by OYA,
with a demonstrated and legitimate need to know the information, may have access
to Criminal Records Check records information.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 181.557,
420A.010, 420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15
416-800-0095
Fees
(1) OYA may charge a fee for acquiring
Criminal Offender Information for use in making a Fitness Determination. In any
particular instance, the fee may not exceed the fee(s) charged OYA by the Oregon
Department of State Police and the Federal Bureau of Investigation to obtain Criminal
Offender Information on the Subject Individual.
(2) OYA 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 OYA contractor or vendor and is undergoing
a Fitness Determination in that capacity, OYA may charge the fee to the Subject
Individual’s employer.
Stat. Auth.: ORS 420A.021
Stats. Implemented: ORS 420A.010,
420A.020, 420A.021
Hist.: OYA 3-2010, f. 6-10-10
cert. ef. 6-25-10; OYA 6-2015, f. & cert. ef. 10-7-15

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