274-006-0011 Final Fitness Determination (1) If the Department elects to conduct a criminal records check, the Department shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 274-006-0005, the criminal records check(s) conducted, and any false statements made by the subject individual. (2) In making a fitness determination about a subject individual, the Department will also consider the factors in subsections (a) through (f) below in relation to information provided by the subject individual under OAR 274-006-0005, any LEDS report or criminal offender information obtained through a criminal records check, and other information known by the Department. To assist in considering these factors, the Department may obtain any other information deemed relevant from the subject individual or any other source, including law enforcement and criminal justice agencies or courts within or outside of Oregon. To acquire other criminal offender information from the subject individual, the Department may request to meet with the subject individual, and may request to receive written materials or authorization to obtain other relevant information, from him or her. The subject individual shall meet with the Department if requested and provide additional information or authorization within a reasonable period of time, as established by the Department. The Department will use all collected information in considering: (a) Whether the subject individual has been convicted, found guilty except for insanity (or a comparable disposition), has a pending indictment, has been arrested, or has an outstanding warrant for arrest for a crime listed in OAR 274-006-0012; (b) The nature of any crime identified under section (2)(a) of this rule; (c) The facts that support the conviction, finding of guilty except for insanity, or pending indictment; (d) Any facts that indicate the subject individual made a false statement; (e) The relevance, if any, of a crime identified under section (2)(a) of this rule 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) Intervening circumstances, including, but not limited to the following, and only 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 section (2)(a) of this rule; (B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under section (2)(a) of this rule; (C) The likelihood of a repetition of offenses or of the commission of another crime; (D) The subsequent commission of another crime listed in OAR 274-006-0012; (E) Whether a conviction identified under section (2)(a) of this rule has been set aside, and the legal effect of setting aside the conviction; (F) A recommendation of an employer; (G) 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 in OAR 274-006-0012 if committed by an adult. (3) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal records check including fingerprint identification, the Department will deny the employment of the subject individual or deny any applicable position or authority to provide services. A person may not appeal any determination made based on a refusal to consent. (4) If a subject individual is determined to be not fit, the subject individual may not be employed by or provide services as a volunteer, contractor or vendor to the Department in a position described in OAR 274-006-0004(2). (5) Final Order. A completed final fitness determination is a final order of the Department unless the affected subject individual appeals the determination by requesting a contested case hearing as provided by OAR 274-006-0018(2) or an alternative appeals process as provided by OAR 274-006-0018(6). Statutory/Other Authority: ORS 181.534 & 2009 SB 94 Statutes/Other Implemented: ORS 181.534 & 2009 SB 94 History: DVA 1-2009, f. 12-22-09 cert. ef. 1-1-10