274-006-0018 Appealing a Fitness Determination (1) Purpose. Sections (2) to (5) of this rule set forth the contested case hearing process a subject individual must use to appeal a completed fitness determination made under OAR 274-006-0010 that the individual is not fit to hold a position with, or provide services to the Department as an employee, volunteer, contractor, or vendor. Section (6) of this rule identifies an alternative appeal process available only to current Department employees. (2) Appeal process. (a) To request a contested case hearing, the subject individual or the subject individual's legal representative must submit a written request for a contested case hearing to the address specified in the notice provided under OAR 274-006-0014. To be timely, the request must be received by the Department at the specified address within 14 calendar days of the date stated on the notice. The Department shall address a request received after expiration of the deadline as provided under OAR 137-003-0528. (b) When a timely request is received by the Department under subsection (a), a contested case hearing shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney General's Uniform and Model Rules, “Procedural Rules, Office of Administrative Hearings” OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions of this rule. (3) Discovery. The Department or the administrative law judge may protect information made confidential by ORS 181.534(15) or other applicable law as provided under OAR 137-003-0570(7) or (8). (4) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants. (5) Proposed and Final Order: (a) Proposed Order. After a hearing, the administrative law judge will 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 274-006-0010 becomes final: (A) Unless the subject individual makes a timely request for a hearing; or (B) When a party withdraws a hearing request, notifies the Department or the ALJ that the party will not appear, or fails to appear at the hearing. (6) Alternative Process. A subject individual currently employed by the Department may choose to appeal a fitness determination either under the process made available by this rule or through the process made available by applicable personnel rules, policies and collective bargaining provisions. A subject individual's decision to appeal a fitness determination through applicable personnel rules, policies, and collective bargaining provisions is an election of remedies as to the rights of the individual with respect to the fitness determination and is a waiver of the contested case process made available by this rule. (7) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit or not fit. Under no circumstances shall the Department be required to place a subject individual in any position, nor shall the Department be required to accept services or enter into a contractual agreement with a subject individual. (8) 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 information identified in this section of the rule, 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 274-006-0010 by submitting a new Department criminal records request. This provision only applies if the position for which the original criminal history check was conducted is vacant and available. (9) Appealing a fitness determination under section (2) or section (6) of this rule, challenging criminal offender information with the Department that provided the information, or requesting a new criminal records check and re-evaluation of the original fitness determination under section (8)(b) of this rule, will not delay or postpone the Department’s hiring process or employment decisions. Statutory/Other Authority: ORS 181.534, 406.030 & 2009 SB 94 Statutes/Other Implemented: ORS 181.534, 406.030 & 2009 SB 94 History: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10