167-050-0190 Appealing a Fitness Determination (1) Model Rules of Procedure. In addition to the Model Rules of Procedure adopted by the Attorney General, OAR 137-003-0001 through 137-003-0092, the procedures set forth in this rule shall apply. (2) Process. (a) A subject individual may appeal a final fitness determination by submitting a request in writing to the Secretary of State Human Resources Division. Any such request for a hearing must be received by the Secretary of State within 10 calendar days of the date of the notice. (b) When a timely request is received by the Secretary of State under subsection (a), a contested case hearing shall be conducted by a hearing officer appointed by the Secretary of State. (c) The Secretary of State may extend the time to appeal if the Secretary of State determines the delay was caused by factors beyond the reasonable control of the subject individual. (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 Secretary of State or the hearing officer may protect information made confidential by ORS 181.534(15) or other applicable laws and rules. (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 hearings officer appointed by the Secretary of State 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 167-050-0170 becomes final: (A) Unless the subject individual makes a timely request for hearing; or (B) When a party withdraws a hearing request, notifies the Secretary of State or the hearing officer that the party will not appear, or fails to appear for the hearing. (8) Other Options. A subject individual may appeal a fitness determination through applicable personnel rules and policies. The individual’s decision to do so 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. (9) History Disputed: (a) Correcting Disputed History. If a subject individual wishes to challenge the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation or other agencies reporting information to the Secretary of State, the subject individual may appeal to the entity providing the information. Such challenges are not subject to the Secretary of State’s appeal process described in this rule. (10) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit, or fit with restrictions pursuant to OAR 167-050-0170(3)(c). The Secretary of State shall not be required to place a subject individual in any position or to enter into a contract or otherwise accept services. Statutory/Other Authority: ORS 181.534 & 177.075 Statutes/Other Implemented: ORS 181.534 History: BSD 1-2008, f. & cert. ef. 7-16-08