818-005-0035 Contesting a Fitness Determination (1) This rule sets forth a contested case hearing process by which a subject individual may appeal a fitness determination made under OAR 818-005-0050 that he or she is fit or not fit to be a Board employee, volunteer, contractor, or vendor. (2) The Attorney General’s Model Rules of Procedure, OAR 137-003-0001 through 137-003-0092, apply unless the Board refers the matter to the Office of Administrative Hearings to assign an Administrative Law Judge. If the Board refers the matter to the Office of Administrative Hearings, 137-003-0501 through 137-003-0700 shall apply. (3) Process. (a) To request a contested case hearing, the employee applicant/employee or the employee applicant/employee individual's legal representative must submit a written request to the Executive Director of the Board. To be timely, the request must be received by the Executive Director of the Board within 21 business days of the postmark of the fitness determination notification letter. (b) A contested case hearing shall be conducted by an Administrative Law Judge appointed by the Office of Administrative Hearings once a timely request has been received by the Board as outlined in section (3)(a). (4) The Administrative Law Judge will establish the time and place of the hearing. Notice of the hearing shall be served on the Board or designee and participants at least ten working days in advance of the hearing date. (5) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants. (6) A fitness determination made under OAR 818-005-0050 becomes final when: (a) A timely request for hearing is not filed; or (b) A party withdraws a hearing request, notifies the Board or the Administrative Law Judge that the party will not appear, or fails to appear for the hearing. (7) The Administrative Law Judge will issue a proposed order following a hearing. Exceptions, if any, must be received by the Board within 10 working days after the service of the proposed order. (8) An employee applicant/employee currently employed by the Board who is denied as unfit pursuant to a final fitness determination may appeal the fitness determination either under the contested case process made available by this rule or through a process available under applicable personnel rules, policies and collective bargaining agreements. An employee applicant’s/employee’s decision to appeal a fitness determination through applicable personnel rules, policies, and collective bargaining agreements 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. (9) The only remedy that may be awarded is a determination that the employee applicant/employee is fit or not fit. Under no circumstances shall the Board be required to place an employee applicant/employee in any position, nor shall the Board be required to accept services or enter into a contractual agreement with an employee applicant/employee. (10) An employee applicant/employee may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation, or agencies reporting information to the Oregon State Police or the Federal Bureau of Investigation. To challenge the accuracy or completeness of information identified in this section, an employee applicant/employee may use any process made available by the agency that provided the information. (11) Appealing a fitness determination, challenging criminal offender information with the agency that provided the information, or requesting a new criminal records check and re-evaluation of the original fitness determination will not delay or postpone the Board’s hiring process or employment decisions. (12) Alternative Process. An employee currently employed by the Board may choose to appeal a fitness determination either under the process made available by this rule or through a process made available by applicable personnel rules, policies and collective bargaining provision. A subject individual’s decision to appeal a fitness determination through applicable personnel rules, polices 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. (13) The only remedy that may be awarded is a determination that the employee is fit or not fit. Under no circumstances shall the Board be required to place an employee in any position, or shall the Board be required to accept services or enter into a contractual agreement with an employee. Statutory/Other Authority: ORS 181.534, 676.303 & 679.253 Statutes/Other Implemented: ORS 676.303 & 181.534 History: OBD 2-2016, f. 11-2-16, cert. ef. 3-1-17 OBD 4-2011, f. & cert. ef. 11-15-11