635-600-0050 Appealing a Final Fitness Determination (1) An authorized designee shall provide written notice to a subject individual upon completion of the final fitness determination when there is a denied or restricted approval. Such notice shall meet the requirements of ORS 183.415 and shall be served personally or by registered or certified mail. (2) A subject individual may appeal a final fitness determination outcome of a denied or restricted approval. To appeal a Final Fitness Determination: (a) The subject individual shall submit a written request for a review to the appropriate ODFW Division or Region Administrator within 14 calendar days from the date they were notified of a denied or restricted approval. (b) If the outcome of the review in subsection (2)(a) continues to be a denied or restricted approval, the subject individual or the subject individual’s legal representative shall submit a written request for a contested case hearing to the address specified in the written notice provided by Department, within 14 calendar days of the date appearing on the written notice from the ODFW Division or Region Administrator. The Department shall address a request received after expiration of the deadline as provided under OAR 137-003-0528. (3) When a timely request for a contested case hearing is received by the Department under subsection 2b, a contested case hearing shall be conducted by the Office of Administrative Hearings . (4) Confidentiality. The Department or the administrative law judge may protect information made confidential by ORS 181A.195 or other applicable law as provided in OAR 137-003-0568. (5) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants. (6) Proposed and Final Order (a) Proposed Order. After a hearing, the administrative law judge 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 635-600-0030 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 agency or the ALJ that the party will not appear, or fails to appear at the hearing. (7) Alternative Process. A subject individual currently employed by the Department may choose to appeal a final 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. (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 (8), a subject individual may use any process made available by the providing agency. (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 history check and re-evaluate the original fitness determination made under OAR 635-600-0030 by submitting a new ODFW Criminal History Request form. This provision only applies if the position for which the original criminal history check was conducted is vacant and available. (9) 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. (10) No delay in hiring. Appealing a fitness determination, challenging criminal offender information with the agency that provided the information, or requesting a new criminal history check and re-evaluation of the original fitness determination, may not delay or postpone the Department's hiring process or employment decisions. Statutory/Other Authority: ORS 181A.195 & ORS 496.121 Statutes/Other Implemented: ORS 181.A.195 & ORS 496.121 History: DFW 20-2018, amend filed 02/14/2018, effective 02/14/2018 DFW 40-2008, f. & cert. ef. 4-24-08