OAR 259-009-0125: Denial/Revocation - Initiation and Review of a Professional Standards Case

(1) When the Department receives information from any source that a certified fire service professional or an applicant may not meet the established standards for fire service professional certification, the Department will review the information to determine if substantial evidence exists to support denial or revocation of certifications under the statutory and administrative rule requirements for fire service professional certification. (2) The Department will not open a case on a conviction or conduct that was previously reviewed by the Department or the Fire Policy Committee and the Board and determined not to violate the standards for fire service professional certifications or resulted in no action to deny or revoke certification using the administrative rules in effect at the time of the review. (a) Nothing in this rule precludes the Department from opening a case upon discovery of additional mandatory or discretionary grounds for denial or revocation. (b) Nothing in this rule precludes the Department or the Fire Policy Committee and the Board from considering previous misconduct or criminal behavior as an aggravating circumstance in a separate discretionary case review. (3) In professional standards cases where the Department determines that the conduct being reviewed violates the certification standards established by the Board as mandatory grounds for denial or revocation as defined in OAR 259-009-0120(2), the Department will administratively process the denial or revocation. (4) In professional standards cases based on a discharge for cause, the Department may stay any action on the fire service professional’s certifications until a final employment arbitration determination has been made. The Department will administratively close cases in which an arbitrator’s opinion finds that the underlying facts did not support the allegations of misconduct. (5) The Department will defer review of discretionary convictions, as defined in OAR 259-009-0120(3), when all of the fire service professional’s certifications are lapsed. Upon receipt of an application for certification or a request for reinstatement, the Department will proceed with the review process. (6) When the Department submits a discretionary professional standards case to the Fire Policy Committee, the Department will notify the fire service professional. The notification will include the deadlines for the fire service professional to provide evidence of factors that may support mitigation. A fire service 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 Fire Policy Committee and Board consideration. (b) Arranging with the Department to attend a Fire 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 fire service professional or their representative. (7) Fire Policy Committee Review of Discretionary Professional Standards Cases. (a) In professional standards cases where the Department determines that the conduct being reviewed violates the certification standards established by the Board as discretionary grounds for denial or revocation as defined in OAR 259-009-0120(3), the Department will submit its findings to the Fire Policy Committee for disposition. The Fire Policy Committee’s disposition will be submitted as a recommendation to the Board for approval. (b) The Fire Policy Committee will review the professional standards case to: (A) Affirm, modify or negate the Department-identified violations; (B) Identify aggravating and mitigating circumstances unique to the professional standards case; and (C) Determine how the violations and aggravating or mitigating circumstances impact the fire service professional’s certification. (c) Aggravating and mitigating circumstances are conditions, factors or actions that increase or decrease the total impact that the conviction has on certification as a fire service professional. (A) Aggravating circumstances generally increase the severity of the impact the conviction has on certification and may, in addition to the conviction, be grounds to deny or revoke certification. Circumstances that may be considered aggravating include, but are not limited to, the degree of the conviction, prior misconduct or criminal behavior, 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 Fire 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 conviction has on certification. 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 Fire Policy Committee consider mitigating given the specific issues in the case. (8) Board Review of a Professional Standards Case. The Board will review the case, aggravation and mitigation, and the Fire Policy Committee’s recommendations to determine whether to approve all or part of the Fire 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 Fire Policy Committee. (b) The Board may approve the Fire Policy Committee’s 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 Fire 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 Fire Policy Committee. The Board may return a recommendation only once. (A) The Fire Policy Committee must reconsider its recommendation, along with the Board’s instructions and any new information the Department submits to the Fire Policy Committee. (B) The Fire 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 fire service professional has engaged in conduct that violates the discretionary grounds for denial or revocation of certifications and consider aggravation and mitigation. (B) The Board may identify their own findings or adopt all or any part of the Fire Policy Committee’s findings as the basis for the determination. (C) If the Board review results in a determination to deny or revoke fire service professional certifications, the Department will issue a Notice of Intent pursuant to OAR 259-009-0130. Where the Board review results in no action to deny or revoke fire service professional certifications, the issued Notice of Intent will be withdrawn and the professional standards case will be closed. (9) Scope of Denial and Revocation. When the Department denies or revokes fire service professional certifications pursuant to OAR 259-009-0115 through OAR 259-009-0130, the denial or revocation will encompass all fire service professional certifications subject to OAR chapter 259 division 9. (10) R eapplication Following a Denial or Revocation for Discretionary Grounds. A fire service professional whose certifications have been denied or revoked for discretionary grounds, as defined in OAR 259-009-0120(3), may apply for certification after a minimum of one year has passed since the Board’s approval of the denial or revocation. (a) Applications for certification require additional discretionary review if: (A) The applicant’s criminal convictions still meet the discretionary grounds for denial or revocation, as defined in OAR 259-009-0120(3)(b) or (c); or (B) The applicant was denied or revoked for falsification, as defined in OAR 259-009-0120(3)(a), and the application is received within 10 years of the denial or revocation. (b) Applications requiring additional discretionary review will be submitted to the Fire Policy Committee for disposition. The Fire Policy Committee will review the case in accordance with section (7) of this rule. The Fire Policy Committee must consider the additional time that has passed since the initial denial or revocation occurred as mitigation. (c) Applications for certification do not require additional discretionary review if the case resulted in no action to deny or revoke certification, if the date of the conviction no longer requires review per OAR 259-009-0120(3)(b) or (c), or if 10 years have passed since the initial denial or revocation for falsification. (11) Applications for certification submitted by a fire service professional whose certifications have been denied or revoked will be denied pursuant to OAR 259-009-0130 when: (a) The certifications were denied or revoked for mandatory grounds as defined in OAR 259-009-0120(2); or (b) The certifications were denied or revoked for discretionary grounds as defined in OAR 259-009-0120(3) and the one-year period following Board approval of the denial or revocation has not passed.