845-002-0260 Final Fitness Determination (1) An authorized designee shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 845-002-0230(1), the criminal records check(s) conducted, if any, and any false statements made by the subject individual. (2) In making a fitness determination about a subject individual, an authorized designee shall consider the factors in subsections (a)–(f) in relation to information provided by the subject individual under OAR 845-002-0230(1), and LEDS report or criminal offender information obtained through a criminal records check, and any false statement made by the subject individual. To assist in considering these factors, the authorized designee may obtain other criminal records information from the subject individual or any other source, including law enforcement agencies or courts within or outside of Oregon. To acquire other criminal offender information from the subject individual, an authorized designee may request to meet with the subject individual, to receive written materials from him or her, or both. The authorized designee will use all collected information in considering: (a) Whether the subject individual has been convicted of, found guilty except for insanity (or a comparable disposition) of, or has a pending indictment for a crime listed or described under OAR 845-002-0270; (b) The nature of any crime identified under subsection (a); (c) The facts that support the conviction, finding of guilty except for insanity, or pending indictment; (d) The facts that indicate the subject individual made a false statement; (e) The relevance, if any, of a crime identified under subsection (a) or of a false statement made by the subject individual to the specific requirements of the subject individual’s present or proposed position, services, or employment; and (f) The following intervening circumstances, to the extent that they are relevant to the responsibilities and circumstances of the services or employment for which the fitness determination is being made: (A) The passage of time since the commission or alleged commission of a crime identified under subsection (a); (B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under subsection (a); (C) The likelihood of a repetition of offenses or of the commission of another crime; (D) The subsequent commission of another crime listed or described under OAR 845-002-0270; (E) Whether a conviction identified under subsection (a) has been set aside or pardoned, and the legal effect of setting aside the conviction or of a pardon; (F) A recommendation of an employer; (G) The disposition of a pending indictment identified under subsection (a); (H) Whether the subject individual has been arrested for or charged with a crime listed or described under OAR 845-002-0270 within the last five years; (I) Whether the subject individual is being investigated, or has an outstanding warrant, for a crime listed or described under OAR 845-002-0270; (J) Whether the subject individual is currently on probation, parole or another form of post-prison supervision for a crime listed or described under OAR 845-002-0270; (K) Whether the subject individual has a deferred sentence or a conditional discharge or is participating in a diversion program in connection with a crime listed or described under OAR 845-002-0270; (L) Whether the subject individual has been adjudicated in a juvenile court and found to be within the court’s jurisdiction for an offense that would have constituted a crime listed or described under OAR 845-002-0270 if committed by an adult; (M) Periods of incarceration of the subject individual; (N) whether the subject individual has a history of drug or alcohol abuse which relates to his or her criminal activity and the subject individual’s history of treatment or rehabilitation for such abuse; and (O) the education and work history (paid or volunteer) of the subject individual since the commission or alleged commission of a crime. (3) Possible Outcomes of a Final Fitness Determination: (a) Automatic Approval. An authorized designee shall approve a subject individual if the information described in sections (1) and (2) shows: (A) No credible evidence that the subject individual has been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed or described under OAR 845-002-0270; (B) No credible evidence that the subject individual has a pending indictment for a crime listed or described under OAR 845-002-0270; (C) No credible evidence of the subject individual having made a false statement; and (D) No discrepancies between the criminal offender information, other criminal records information and information obtained from the subject individual. (b) Evaluative Approval. If a fitness determination under this rule shows credible evidence of any of the factors identified in paragraphs (3)(a)(A)–(D) of this rule, an authorized designee may approve the subject individual only if, in evaluating the information described in sections (1) and (2), the authorized designee determines that the subject individual acting in the position for which the fitness determination is being conducted would not pose a risk of harm to the Commission, its client entities, the State, or members of the public. (c) Restricted Approval. (A) If an authorized designee approves a subject individual under subsection (3)(b) of this rule, the authorized designee may restrict the approval to specific activities or locations. (B) An authorized designee shall complete a new criminal records check and fitness determination on the subject individual prior to removing a restriction. (d) Denial. (A) If a fitness determination under this rule shows credible evidence of any of the factors identified in paragraphs (3)(a)(A)–(D) of this rule and, after evaluating the information described in sections (1) and (2) of this rule, an authorized designee concludes that the subject individual acting in the position for which the fitness determination is being conducted would pose a risk of harm to the Commission, its client entities, the State, or members of the public, the authorized designee shall deny the subject individual as not fit for the position. (B) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal records check including fingerprint identification, the authorized designee shall deny the subject individual as not fit without further assessment under the fitness determination process. (C) If a subject individual is denied as not fit, then the subject individual may not be employed by or provide services as a volunteer, contractor or vendor to the Commission in a position covered by OAR 845-002-0220(2). (4) Final Order. A completed final fitness determination becomes a final order of the Commission unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR 845-002-0300(2)(a) or an alternative appeals process as provided by 845-002-0300(6). Statutory/Other Authority: ORS 181.534 & 471.030, 471.040 & 471.730 Statutes/Other Implemented: ORS 181.534 & 471.695 History: OLCC 10-2008, f. 8-18-08, cert. ef. 9-1-08