OAR 137-007-0300: Appealing a Fitness Determination

(1) Model Rules of Procedure. In addition to the Model Rules of Procedure adopted by the Attorney General, the procedures set forth in this rule shall apply. (2) Process: (a) A subject individual may appeal a final fitness determination by submitting a written request for a contested case hearing to the address provided in the final fitness determination. Any such request for a hearing must be received by the Department within 14 calendar days of the date of the notice; (b) When a timely request is received by the Department under subsection (a), a contested case hearing shall be conducted by a hearing officer appointed by the Attorney General. (3) Time and Place of Hearings. The time and place of hearing will be set by the hearing officer. Notice of the hearing shall be served on the Director of Human Resources and interested parties at least ten days in advance of the hearing date. (4) Discovery. The Department or the hearing officer may protect information made confidential by ORS 181.534(15) or other applicable laws and rules as provided in OAR 137-003-0570(7) or (8). (5) Disclosure of LEDS Information. Information obtained through LEDS shall 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 Order, Exceptions and Default: (a) Proposed Order. After a hearing, the person appointed by the Attorney General shall 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 137-007-0260 becomes final: (A) Unless the subject individual 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 subject individual is fit, or fit with restrictions pursuant to OAR 137-007-0260(3)(c), and that, at the request of the subject individual, the subject individual’s employment application will be kept on file. The Department shall not be required to place a subject individual in any position or to enter into a contract or otherwise accept services. (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: (a) To challenge the accuracy or completeness of information identified in this subsection (9), 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 Department conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 137-007-0260 by submitting a new Department of Justice Criminal Records Request form. (10) Appealing a fitness determination under subsection (2) 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 subsection (9) of this rule, will not delay or postpone the Department’s hiring process or employment decisions except when the authorized designee in consultation with the Human Resources Section decides that a delay or postponement should occur.