Appealing a Fitness Determination
An SI may contest a final fitness determination outcome of a denied or restricted approval.
Process for authorized agencies using Office of Administrative Hearings (OAH): To request a contested case hearing, the SI or the SI’s legal representative shall submit a written request for a contested case hearing to the address specified in the notice provided under OAR 125-007-0260 (Final Fitness Determination), within the time required by law or a reasonable time period.
Confidentiality. The Department or the administrative law judge may protect information made confidential by ORS 181A.195 (Criminal records check)(11) or other applicable law as provided in OAR 137-003-0570(7) or (8).
No Public Attendance. Unless otherwise provided by law, contested case hearings on fitness determinations are closed to non-participants.
Authorized agencies and districts that are not obligated by law to use the OAH must adopt procedural rules providing for SIs to contest fitness determinations or may elect to use the process outlined in this rule.
Alternative Process. An SI currently employed by the authorized agency district or qualified entity 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. An SI’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.
Challenging Criminal Offender Information. An SI may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by OSP, the FBI, or agencies reporting information to OSP or the FBI. To challenge information, an SI may use any process made available by the providing agency.
Remedy. When the fitness determination is performed as part of an authorized agency’s hiring process or employment decision, the only remedy that may be awarded is a determination the SI is fit or not fit. Under no circumstances shall the authorized agency be required to place an SI in any position, nor shall the agency be required to accept services or enter into a contractual agreement with an SI.
No delay in hiring. Appealing a final fitness determination, challenging criminal offender information with the agency that provided the information, or requesting a new criminal records check may not delay or postpone the authorized agency’s hiring process or employment decisions.