167-050-0170 Final Fitness Determination (1) If the Secretary of State elects to conduct a criminal records check, the Secretary of State shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 167-050-0130, 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 this subsection (2)(a)–(f) in relation to information provided by the subject individual under OAR 167-050-0130, any 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 Secretary of State 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 relevant information from the subject individual, the Secretary of State may request to meet with the subject individual, to receive written materials from him, or both. The subject individual shall meet with the Secretary of State if requested and provide additional information within a reasonable period of time, as established by the Secretary of State. The Secretary of State will use all collected information in considering: (a) Whether the subject individual has been arrested, pled nolo contendere (or no contest) to, been convicted of, found guilty except for insanity (or a comparable disposition) of, or has a pending indictment for a crime listed in OAR 167-050-0140; (b) The nature of any crime identified under subsection (a); (c) The facts that support the arrest, conviction, finding of guilty except for insanity (or comparable disposition), 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) 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, including, but not limited to, the following: (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 in OAR 167-050-0140; (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; and (F) A recommendation of an employer. (3) Potential Outcomes. (a) Automatic Approval. The Secretary of State may approve as fit a subject individual if the information described in sections (1) and (2) shows none of the following: (A) Evidence that the subject individual has pled nolo contendere (or no contest) to, been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed in OAR 167-050- 0140; (B) Evidence that the subject individual has a pending indictment or warrant for a crime listed in OAR 167-050-0140; (C) Evidence that the subject individual has been arrested for a crime listed in OAR 167-050-0140; (D) Evidence of the subject individual having made a false statement; or (E) Any discrepancy between the criminal offender information and other information obtained from the subject individual. (b) Evaluative Approval. (A) If a fitness determination under this rule shows evidence of any of the factors identified in subsection (3)(a)(A)–(F) of this rule, the Secretary of State may approve the subject individual only if, in evaluating the information described in subsections (1) and (2), the Secretary of State determines: (i) That the evidence is not credible; or (ii) If the evidence is credible, that the subject individual acting in the position for which the fitness determination is being conducted would not pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public. (c) Restricted Approval. (A) If the Secretary of State approves a subject individual under subsection (3)(b) of this rule, the Secretary of State may restrict the approval to specific job duties, activities, or locations. (B) The Secretary of State must complete a new criminal records check and fitness determination on the subject individual before removing a restriction. (d) Denial. (A) If a fitness determination under this rule shows credible evidence of any of the factors identified in subsection (3)(a)(A)–(F) of this rule and, after evaluating the information described in subsections (1) and (2) of this rule, the Secretary of State concludes that the subject individual acting in the position for which the fitness determination is being conducted would pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public, the Secretary of State 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, the Secretary of State shall deny the employment of the individual. A person may not appeal any determination made based on a refusal to consent. (C) If a subject individual is denied as not fit, the subject individual may not be employed by or provide services as a contractor to the Secretary of State in a position covered by OAR 167-050-0120(2)(a)–(e). (4) Final Order. A completed final fitness determination is final unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR 167-050-0190(2), or an alternative appeals process as provided by 167-050-190(8). Statutory/Other Authority: ORS 181.534 & 177.075 Statutes/Other Implemented: ORS 181.534(9) History: BSD 1-2008, f. & cert. ef. 7-16-08