Or. Admin. Code § 407-007-0060

Current through Register Vol. 63, No. 12, December 1, 2024

Section 407-007-0060 - Weighing Test

If the SI has potentially disqualifying convictions under OAR 407-007-0041, or potentially disqualifying conditions under OAR 407-007-0050, the Department conducts a weighing test. If the SI is subject to an abuse check in accordance with OAR 407-007-0400 to 407-007-0460 and has potentially disqualifying abuse, the weighing test includes the consideration of factors in this rule and in OAR 407-007-0430. The weighing test includes consideration of factors pursuant to ORS 181A.195 and the following if available at the time of the weighing test:

(1) Circumstances regarding the nature of potentially disqualifying crimes and conditions including but not limited to:

(a) Age, maturity and capacity of the SI at time of the potentially disqualifying conviction or condition.

(b) Details of incidents leading to or resulting in potentially disqualifying convictions or conditions.

(c) If there are more than one potentially disqualifying conviction or condition (including potentially disqualifying abuse defined in OAR 407-007-0410), the timeline, frequency and relation between potentially disqualifying history.

(d) Facts that support the potentially disqualifying conviction or condition.

(e) Passage of time since commission of the crime or potentially disqualifying condition.

(f) Consideration of state or federal laws, regulations, or rules covering the position or the Department, regarding the potentially disqualifying convictions or conditions.

(g) Consideration of state or federal laws, regulations, or rules that impact what is considered potentially disqualifying. For example:

(A) Effective February 1, 2021, most possession crimes in Oregon were reduced to violations, making them no longer potentially disqualifying.

(B) The Department may give less weight to a potentially disqualifying conviction or condition which is only potentially disqualifying because it was a crime at the time it occurred but at the time of the weighing test is no longer considered a crime nor is associated with any potentially disqualifying conviction or condition.

(C) The consideration given potentially disqualifying convictions or conditions impacted by federal laws, regulations, or rules is determined by the number of these potentially disqualifying convictions or conditions and evaluation of relevant factors in sections (1), (2) and (3).

(2) Other factors when available including but not limited to:

(a) Periods of incarceration, including rehabilitation or other impacts on SI.

(b) Status of and compliance with parole, post-prison supervision, or probation regarding potentially disqualifying convictions or conditions.

(c) Evidence of drug or alcohol issues directly related to potentially disqualifying convictions or conditions.

(d) Evidence of other treatment or rehabilitation related to potentially disqualifying convictions or conditions.

(e) Likelihood of repetition of behaviors leading to potentially disqualifying convictions or conditions.

(f) Changes in circumstances subsequent to the criminal activity or disqualifying conditions including but not limited to:

(A) History of high school, college, or other education related accomplishments.

(B) Work history (employee or volunteer).

(C) History regarding licensure, certification, or training for licensure or certification.

(D) Written recommendations from current or past employers.

(g) Indication of the SI's cooperation, honesty during the background check process, including:

(A) Acknowledgment and acceptance of responsibility of potentially disqualifying convictions and conditions; or

(B) Providing false, incomplete or misleading information regarding potentially disqualifying convictions and conditions, or any subsequent circumstances.

(3) The Department must consider the relevancy of the SI's potentially disqualifying convictions or conditions to the position or to the environment of the position. Consideration includes the relation between the SI's potentially disqualifying convictions or conditions and the following tasks or duties in the position:

(a) Access to or direct contact with Department clients, client property, or client funds.

(b) Access to information technology services, or control over or access to information technology systems that would allow an individual holding the position to harm the information technology systems or the information contained in the systems.

(c) Access to information, the disclosure of which is prohibited by state or federal laws, rules, or regulations, or information that is defined as confidential under state or federal laws, rules, or regulations.

(d) Access to payroll functions.

(e) Responsibility for receiving, receipting, or depositing money or negotiable instruments.

(f) Responsibility for billing, collections, or other financial transactions.

(g) Access to mail received or sent to the Department, including interagency mail, or access to any mail facilities in the Department.

(h) Responsibility for auditing the Department or other governmental agencies.

(i) Responsibility for any personnel or human resources functions.

(j) Access to personal information about employees, clients, or members of the public including Social Security numbers, dates of birth, driver license numbers, residency information, medical information, personal financial information, criminal offender information, or other criminal records information.

(k) Access to medications, chemicals, or hazardous materials; access to facilities in which medications, chemicals, and hazardous materials are present; or access to information regarding the transportation of medications, chemicals, or hazardous materials.

(L) Access to property to which access is restricted in order to protect the health or safety of the public.

(m) Responsibility for security, design, or construction services. This includes government buildings, grounds, or facilities or buildings, owned, leased, or rented for government purposes.

(n) Access to critical infrastructure or security-sensitive facilities or information.

(o) Access or use of CJI, or the need for CJIS clearance.

(p) Access or use of FTI.

Or. Admin. Code § 407-007-0060

DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16; DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16; DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018; DHSD 32-2018, amend filed 11/28/2018, effective 12/1/2018; DHSD 18-2019, temporary amend filed 09/26/2019, effective 9/27/2019 through 03/24/2020; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 7-2021, temporary amend filed 06/25/2021, effective 6/25/2021 through 12/21/2021; DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021; DHS 5-2023, temporary amend filed 10/04/2023, effective 10/4/2023 through 3/30/2024; DHS 8-2024, amend filed 03/26/2024, effective 3/27/2024

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050

Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010 & 443.008