ORS 267.237: Criminal records check; authority of district to require fingerprints; fitness determinations; rules regarding dissemination.

(1) As used in this section: (a) “District” means a mass transit district organized under ORS 267.010 to 267.394 or a transportation district organized under ORS 267.510 to 267.650. (b) “Qualified entity” means an individual or business or organization, whether public, private, for-profit, nonprofit or voluntary, that, under contract with a district, provides individuals to operate motor vehicles for the transportation of passengers in the public transportation system of the district. (c) “Subject individual” means a person subject to a criminal records check as specified by resolution of a mass transit district or a transportation district. (2) A mass transit district or a transportation district shall request the Department of State Police to conduct criminal records checks of subject individuals if the checks are required in order to protect vulnerable Oregonians: (a) To implement a federal or state statute, executive order or rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct; (b) For district employment purposes when hiring individuals to operate motor vehicles of the district; or (c) For the purposes of employment decisions made by a district for qualified entities that, under contracts with the district, employ individuals to operate motor vehicles for the transportation of passengers in the public transportation system of the district. (3) A mass transit district that has a population of more than 500,000 may request the Department of State Police to conduct a criminal records check of a subject individual who is: (a) Seeking employment by the district in a position that provides the individual with access to critical infrastructure or security sensitive facilities or information; or (b) Seeking to provide services to the district that will result in the individual’s having access to critical infrastructure or security sensitive facilities or information. (4) In order to determine the suitability of the subject individual, a district shall require the subject individual to furnish to the district a full set of fingerprints to enable a criminal records check to be conducted. The district shall submit the completed fingerprint cards to the Department of State Police along with the applicable Oregon and Federal Bureau of Investigation processing fees. If no disqualifying record is identified at the state level, the Department of State Police shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal records check. (5) The Federal Bureau of Investigation shall either return or destroy the fingerprint cards used to conduct the criminal records check and shall not keep any record of the fingerprints, except that the Federal Bureau of Investigation may retain the fingerprint cards and records of the fingerprints for purposes described in ORS 181A.205. However, if the federal bureau policy authorizing return or destruction of the fingerprint cards is changed, a district shall cease to cause the cards to be sent to the federal bureau but shall continue to process the information through other available resources. (6) If the Federal Bureau of Investigation returns the fingerprint cards to the Department of State Police, the Department of State Police shall destroy the fingerprint cards and may not retain facsimiles or other material from which a fingerprint can be reproduced, except that the Department of State Police may retain the fingerprint cards or create facsimiles for the purpose of providing information under ORS 181A.205. (7) If only a state criminal records check is conducted, after the criminal records check is completed, the Department of State Police shall destroy the fingerprint cards and the results of the criminal records check provided to the district and may not retain facsimiles or other material from which a fingerprint can be reproduced, except that the Department of State Police may retain the fingerprint cards and results or create facsimiles for the purpose of providing information under ORS 181A.205. (8) The district and the Department of State Police shall permit a subject individual to inspect the individual’s own Oregon and Federal Bureau of Investigation criminal offender records after positive fingerprint identification has been made. (9)(a) A district, subject to rules adopted by the Oregon Department of Administrative Services under ORS 181A.215, shall determine whether a subject individual is fit to operate motor vehicles for the transportation of passengers in the public transportation system of the district or to hold a position or provide services that provide the individual with access to critical infrastructure or security sensitive facilities or information. If a subject individual is determined to be unfit, then that person shall not be allowed to operate motor vehicles for the transportation of passengers in the public transportation system of the district or to hold the position or provide services that provide the individual with access to critical infrastructure or security sensitive facilities or information. (b) In making the fitness determination, the district shall consider: (A) The nature of the crime; (B) The facts that support the conviction or pending indictment or indicate the making of a false statement; (C) The relevancy, if any, of the crime or the false statement to the specific requirements of the subject individual’s present or proposed position or employment; and (D) Intervening circumstances relevant to the responsibilities and circumstances of the position or employment, such as: (i) The passage of time since the commission of the crime; (ii) The age of the person at the time of the crime; (iii) The likelihood of a repetition of offenses; and (iv) The subsequent commission of another relevant crime and the recommendation of an employer. (10) A district shall develop a system that maintains information regarding criminal records checks in order to minimize the administrative burden that criminal records check requirements impose upon subject individuals and providers. Records maintained under this subsection for subject individuals are confidential and may not be disseminated except for the purposes of this section and in accordance with the relevant resolutions of the district. Nothing in this subsection permits a district to retain fingerprint cards of subject individuals. (11) A district, in consultation with the Department of State Police and affected provider groups, shall adopt resolutions to implement this section and other statutes relating to criminal offender information. The resolutions may include but need not be limited to: (a) Specifying which employees are authorized to make criminal record inquiries; (b) Identifying applicable categories of subject individuals as specified by the Oregon Department of Administrative Services under ORS 181A.215 who are subject to criminal records checks by the district; (c) Identifying applicable information that may be required from a subject individual to permit a criminal records check as specified by the Oregon Department of Administrative Services under ORS 181A.215; (d) Specifying which services or qualified entities are subject to this section; (e) Specifying when a district, in lieu of conducting a completely new criminal records check, may proceed to make a fitness determination under this section using the information maintained by the district under subsection (10) of this section; and (f) Determining when a subject individual may be hired on a probationary basis pending a criminal records check, provided that if there is any indication of criminal behavior by the subject individual, the resolution must require that, if the individual is hired, the individual can be hired only on a probationary basis and must be actively supervised at all times when the individual is in contact with children, the elderly or persons with disabilities. (12) Criminal offender information is confidential. The Department of State Police shall adopt rules to restrict dissemination of information received under this section to persons with a demonstrated and legitimate need to know the information. Any district receiving information pursuant to this section is bound by the rules of disclosure adopted by the department. (13) If a subject individual refuses to consent to the criminal records check or refuses to be fingerprinted, the district or qualified entity shall deny or terminate the employment of the individual, or revoke or deny any applicable position, authority to provide services or employment. (14) A district shall define by resolution the conditions under which subject individuals may participate in training, orientation and work activities pending completion of a criminal records check through the Law Enforcement Data System or nationwide criminal records check. At a minimum, subject individuals shall be actively supervised at all times that they are in contact with children, the elderly and persons with disabilities during such periods of training, orientation and work. Subject individuals may continue probationary employment while awaiting the nationwide criminal records check as long as the individual’s criminal records check through the Law Enforcement Data System did not result in disqualification and there are no other indications of criminal behavior. (15) If a district or a qualified entity requires a criminal records check of employees or other persons, the application forms of the district or qualified entity must contain a notice that employment is subject to fingerprinting and a criminal records check as required by this section. [1999 c.1057 §3; 2005 c.730 §65; 2015 c.705 §4; 2015 c.758 §4]