OAR 259-008-0310: Denial/Revocation - Initiation and Review of a Professional Standards Case

(1) When the Department receives information from any source that a certifiable public safety professional or an applicant may not meet the established standards for public safety professionals, the Department will review the information to determine if substantial evidence exists to support denial, revocation or emergency suspension of certifications under the statutory and administrative rule requirements for public safety professional certification. (2) In professional standards cases where the Department has determined that the conduct being reviewed violates the moral fitness standards established by the Board as mandatory grounds for denial or revocation as defined in OAR 259-008-0300(2), the Department will administratively process the denial or revocation. (3) The Department will defer review of professional standards cases for individuals who have not been certified and are not currently employed as a public safety professional until the individual is re-employed as a certifiable public safety professional except when the Department has the authority to proceed pursuant to ORS 181A.640 (9). (4) The Department will administratively close discretionary professional standards cases for deferred adjudications in which the only charge is for ORS 813.010 (Driving Under the Influence of Intoxicants) upon confirmation of dismissal. (5) The Department may recommend administrative closure of a discretionary professional standards case to a Policy Committee when the Department determines that the conduct being reviewed does not meet the statutory and administrative rule requirements for denial or revocation. (6) When the Department recommends administrative closure of a discretionary professional standards case to a Policy Committee, the Policy Committee must either approve or overturn the Department’s recommendation. (a) When the Policy Committee approves the recommendation for administrative closure, the Department will administratively close the professional standards case. (b) When the Policy Committee overturns the recommendation for administrative closure, the Department will prepare the case for a complete review by the Policy Committee pursuant to sections (9) and (10) of this rule. (7) In professional standards cases where the Department has determined that the conduct being reviewed may meet the statutory and administrative rule requirements for denial or revocation but is not supported by adequate factual information, the Department may request further information from the employer pursuant to ORS 181A.670 or conduct its own investigation of the matter. (8) In professional standards cases where there has been an arbitrator’s opinion related to the public safety professional’s employment, the Department will proceed as follows: (a) If the arbitrator’s opinion finds that underlying facts supported the allegations of misconduct, the Department will proceed with review of the professional standards case pursuant to this rule. (b) If the arbitrator has ordered employment reinstatement after a separation of employment without a finding related to whether the misconduct occurred, the Department will proceed with review of the professional standards case pursuant to this rule. (c) If the arbitrator’s opinion finds that underlying facts did not support the allegations of misconduct, the Department will recommend administrative closure of the professional standards case to a Policy Committee, unless the Department receives or discovers additional information that would lead an objectively reasonable person to conclude that the public safety professional has violated Board established employment, training, or certification standards for Oregon public safety professionals. (9) When the Department submits a discretionary professional standards case to a Policy Committee, the Department will notify the public safety professional. The notification will include the deadlines for the public safety professional to provide evidence of factors that may support mitigation. A public safety professional may provide mitigation evidence by one or both of the following: (a) Submitting documents or written statements as supporting evidence for mitigation of the conduct under review to the Department for Policy Committee and Board consideration. (b) Arranging with the Department to attend a Policy Committee meeting and present a verbal statement. The verbal statement is limited to a maximum of five minutes and must be presented in person by the public safety professional or their representative. (10) Policy Committee Review of Discretionary Professional Standards Cases. (a) In professional standards cases where the Department has determined that the conduct being reviewed violates the moral fitness standards established by the Board as discretionary grounds for denial or revocation as defined in OAR 259-008-0300(3), the Department will submit its findings to a Policy Committee for disposition. The Policy Committee’s disposition will be submitted as a recommendation to the Board for approval. (b) The Policy Committee will review the professional standards case to: (A) Affirm, modify or negate the Department-identified moral fitness violations; (B) Identify aggravating and mitigating circumstances unique to the professional standards case; (C) Determine how the moral fitness violations and aggravating or mitigating circumstances impact the public safety professional’s fitness for certification; and (D) When recommending denial or revocation of public safety professional certifications, determine how long the individual should be ineligible for certification. (c) Aggravating and mitigating circumstances are conditions, factors or actions that increase or decrease the total impact that the identified moral fitness violation has on the public safety professional’s fitness for certification. (A) Aggravating circumstances generally increase the severity of the impact the moral fitness violation has on fitness for certification and may, in addition to the moral fitness violation, be grounds to deny or revoke certification. Aggravating circumstances may increase the recommended ineligibility period. Circumstances that may be considered aggravating include, but are not limited to, the degree of the criminal disposition, prior criminal dispositions or misconduct, lack of accountability, number of persons involved in the underlying conduct, number of separate incidents, passage of time from date of incident or incidents, or any other circumstance the Department or the Policy Committee consider aggravating given the specific issues in the case. (B) Mitigating circumstances do not excuse or justify the conduct, but generally decrease the severity of the impact the moral fitness violation has on fitness for certification and may decrease the recommended ineligibility period. Circumstances that may be considered mitigating include, but are not limited to, written letters of support, truthfulness, cooperation during the incident or investigation, or any other circumstance the Department or the Policy Committee consider mitigating given the specific issues in the case. (d) The ineligibility period is the timeframe that the public safety professional or applicant is ineligible for public safety certifications and prohibited from performing the duties of a certifiable public safety professional as the result of the total impact of the moral fitness violations and the aggravating and mitigating circumstances on the public safety professional’s fitness for certification. (A) When the identified moral fitness violations include Dishonesty or Misconduct that is discriminatory as defined in OAR 259-008-0300(3), the Policy Committee may recommend an ineligibility period from three years to lifetime. (B) When the identified moral fitness violations do not include Dishonesty or Misconduct that is discriminatory as defined in OAR 259-008-0300(3), the Policy Committee may recommend an ineligibility period from three years to ten years. (11) Board Review of a Professional Standards Case. The Board will review the professional standards case, aggravation and mitigation, and the Policy Committee’s recommendations to determine whether or not to approve all or part of the Policy Committee’s recommendations. (a) Upon initial consideration, the Board may either approve the recommendation in its entirety or defer a decision and return the recommendation to the Policy Committee. (b) The Board may approve the Policy Committee recommendation by a majority vote of the members present. (c) The Board, by a majority vote of the members present, may defer its decision and return the recommendation with instructions to the Policy Committee to reconsider the recommendation. The Board may also instruct the Department to obtain further information and revise the case for a second review and recommendation by the Policy Committee. The Board may return a recommendation only once. (A) The Policy Committee must reconsider its recommendation, along with the Board’s instructions and any new information the Department submits to the Policy Committee. (B) The Policy Committee will submit a revised or renewed recommendation to the Board. (d) The Board will review the revised or renewed recommendation to decide whether to approve all or part of the recommendation. The Board may approve the recommendation by a majority vote of the members present and may disapprove the recommendation by a two-thirds vote of the total voting members. A failure to achieve a two-thirds vote to disapprove a recommendation will result in the approval of the recommendation. (A) When the Board disapproves a recommendation that proposes no action be taken to deny or revoke certification, the Board must make its own determination as to whether the public safety professional has engaged in conduct that violates the discretionary grounds for denial or revocation of certifications. The Board’s review of the case must follow the process for Policy Committee review as outlined in section (10) of this rule. (B) The Board may identify their own findings or adopt all or any part of the Policy Committee’s findings as the basis for the determination. (C) If the Board review results in a determination to deny or revoke public safety professional certifications, the Department will issue a Notice of Intent pursuant to OAR 259-008-0340. Where the Board review results in no action to deny or revoke public safety professional certifications, the issued Notice of Intent will be withdrawn and the professional standards case will be closed.