845-002-0300 Appealing a Fitness Determination (1) Purpose. This rule sets forth a contested case hearing process by which a subject individual may appeal a completed fitness determination made under OAR 845-002-0260 that he or she is fit or not fit to hold a position with, or provide services to the Commission as an employee, volunteer, contractor, or vendor. Section (6) of the rule identifies an alternative appeal process available only to current Commission employees. (2) Process: (a) A subject individual may appeal a fitness determination by submitting a written request for a contested case hearing to the address specified in the notice provided under OAR 845-002-0290(1)(b), within 14 calendar days of the date appearing on the notice. The Commission shall address a request received after expiration of the deadline as provided under 137-003-0528. (b) When a timely request is received by the Commission under subsection (a), a contested case hearing shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney General’s Model Rules for Contested Cases, “Rules for the Office of Administrative Hearings” OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions of this rule. (c) The Commission shall provide the subject individual or the subject individual’s legal representative with all of the information required under OAR 137-003-0510. (d) As provided in OAR 137-003-0510(3), if participating in a contested case hearing, the Commission and the subject individual may agree to use a collaborative method of dispute resolution designed to encourage them to work together to develop a mutually agreeable solution, such as negotiation or a settlement conference. (3) Discovery: (a) A subject individual’s hearing request under section (2)(a) of this rule shall constitute a discovery request for the following records: (A) Any records the subject individual has a right to inspect under OAR 845-002-0310(2)(e); and (B) In accordance with the Public Records Law, any records described in OAR 845-002-0310(3)(a). (b) The Commission or the administrative law judge may protect information made confidential by ORS 181.534(15) or other applicable law as provided in OAR 137-003-0570(7) or (8). (4) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants. (5) Proposed and Final Order: (a) Proposed Order. After a hearing, the administrative law judge shall issue a proposed order. If the subject individual or subject individual’s legal counsel does not file written exceptions with the Commission within 15 calendar days of the mailing of the proposed order, the proposed order shall become the final order. (b) Exceptions. If the subject individual or the subject individual’s legal counsel files timely written exceptions to the proposed order with the Commission, the Commission Administrator or Administrator’s designee shall consider the exceptions and serve a final order, or request a revised proposed order from the administrative law judge. (c) Default. A completed final fitness determination made under OAR 845-002-0260 shall constitute a final order without a hearing as provided under 137-003-0672. (6) Alternative Process. A subject individual currently employed by the OLCC may choose to appeal a 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. (7) 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 (7), 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 Commission conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 845-002-0260 by submitting a new OLCC Criminal Records Request form. 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