Or. Admin. Code § 813-004-0250

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

Section 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).

Or. Admin. Code § 813-004-0250

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

Stat. Auth.: ORS 181.534 & 456.135

Stats. Implemented: ORS 181.534 & 456.569