Or. Admin. Code § 407-007-0030

Current through Register Vol. 63, No. 10, October 1, 2024

Section 407-007-0030 - Criminal Records Check Process

(1) In order to conduct a background check on an SI, BCU must receive authorization from the SI allowing the criminal records check and abuse check to proceed. If the SI refuses to provide authorization for the background check, BCU terminates the background check immediately and the Department may not allow the SI to work, volunteer, be employed, reside, or otherwise perform in positions covered by these rules.

(2) The Department conducts a criminal records checks on an SI through LEDS maintained by the Oregon State Police (OSP) in accordance with ORS chapter 181A and the rules adopted pursuant thereto (see OAR Chapter 125, division 007 and Chapter 257, division 15).

(3) If a national criminal records check of an SI is necessary, OSP provides the Department the results of criminal records checks conducted pursuant to ORS 181A.195, including fingerprint identification, through the FBI.

(4) Only Department employees who are ADs may be authorized and approved to receive and evaluate criminal offender information and other criminal records information, and to conduct fitness determinations.

(5) The Department submits the criminal records check to BCU through ORCHARDS. In accordance with OAR 125-007-0220, the criminal records check request must include the following information regarding an SI:

(a) Legal name and aliases;

(b) Date of birth;

(c) Address and recent residency information;

(d) Driver license or identification card information;

(e) Disclosure of potentially disqualifying criminal history:

(A) While the SI may provide minimal information to meet this requirement, the Department finds that more details from the SI provides positive information for the weighing test in OAR 407-007-0060. The SI may disclose details of potentially disqualifying convictions and potentially disqualifying criminal conditions at a minimum, and may disclose all arrests, charges, and convictions regardless of outcome or date of occurrence. Disclosure includes any juvenile or adult record of custody, arrests, or charges; and the outcome of custody, arrests, or charges against a juvenile or adult.

(B) The disclosed crimes and the dates must reasonably match the SI's criminal offender information and other criminal history information, as determined by the Department.

(C) The SI is not required to disclose any criminal history which has been expunged or set aside by a court in any jurisdiction. However, if the SI does disclose expunged or set aside criminal history, the Department may not consider the criminal history as potentially disqualifying or in a weighing test if the Department has proof that the criminal history has been expunged or set aside by a court in any jurisdiction.

(D) The Department may only consider criminal history as allowed in the weighing test, OAR 407-007-0060.

(f) Disclosure of other history required under OAR 407-007-0400 to 407-007-0460.

(g) Disclosure of other information to be considered in the event of a weighing test if the SI discloses any criminal history or other history required under OAR 407-007-0400 to 407-007-0460:

(A) The SI may provide mitigating information for BCU to review in a weighing test.

(B) Human Resources or BCU may require the SI to provide other information as needed to conduct the weighing test.

(h) Position title and description of duties to be considered.

(6) The criminal records check request must include the following:

(a) A notice regarding disclosure of Social Security number indicating:

(A) The SI's disclosure of his or her Social Security Number is voluntary; and

(B) The Department requests the Social Security number solely for the purpose of positively identifying the SI during the criminal records check process.

(b) A notice that the SI may be subject to fingerprinting and a criminal records check.

(c) A notice that the SI has the right to challenge criminal history through the local source of the information.

(7) The Department verifies the SI's identity using methods which include but are not limited to asking for current and valid government-issued photo identification and confirming the information on the photo identification with the SI and the information included in the criminal records check request.

(8) BCU conducts an Oregon criminal records check after receiving a criminal records check request. Using information submitted, BCU may obtain criminal offender information from the LEDS system and may request other criminal history information as needed.

(9) BCU may conduct a fingerprint-based national criminal records check after an Oregon criminal records check is completed.

(a) A fingerprint-based national criminal records check may be completed under any of the following circumstances:

(A) The SI has out of state residency evidenced by the SI's possession of an out of state driver license or being outside Oregon for 60 or more consecutive days during the previous five years.

(B) The criminal offender information from the LEDS check, SI disclosures, or any other criminal history information obtained by the Department indicates there may be criminal records outside of Oregon.

(C) The Department has reason to question the identity or history of the SI.

(D) The SI's position is at Oregon state institutions under OAR 407-007-0010.

(E) The SI is assigned duties involving any aspect of a criminal records or abuse check process.

(F) A fingerprint-based criminal records check is required by federal or state laws or regulations, other rules adopted by the Department, or by contract with the Department.

(G) If the Department has reason to believe that fingerprints are needed to make a final fitness determination.

(b) BCU must request fingerprints for an SI under the age of 18 in accordance with OAR 125-007-0220(3).

(c) The SI must complete and submit a fingerprint capture when requested by the Department.

(A) The Department must give the SI notice regarding the Social Security number as set forth in section (5) of this rule.

(B) The Department may require new fingerprint capture if previous captures are rejected by OSP or the FBI.

(10) BCU requires that due diligence be exercised in complying with national criminal records check requirements including fingerprints. However, if BCU determines that an SI is unable to submit fingerprints, BCU must document the circumstances that lead to the decision to waive fingerprinting and proceed with obtaining other criminal history information from states based on an SI's residential history and disclosures in lieu of a fingerprint based criminal records check as required in this rule. A fingerprint-based national criminal records may be waived due to inability to submit fingerprints unless fingerprints are required by state or federal laws or regulations. Reasons for inability to submit fingerprints include but are not limited to:

(a) A physical condition in which all the SI's fingerprints are illegible or missing, or which makes the capture of fingerprints impossible;

(b) A mental or psychological condition which makes the capture of fingerprints impossible;

(c) Undue safety risk to the SI or other individuals in capturing the fingerprints.

(11) The Department may also research other criminal history information from other states in lieu of or in addition to a national criminal records check. Reasons for such research include but are not limited to when:

(a) The Department has reason to believe that out-of-state criminal records may exist.

(b) The Department has been unable to complete a national criminal records check due to illegible fingerprints.

(c) The national criminal records check results show incomplete information about charges or criminal records without final disposition.

(d) There is indication of residency or criminal records in a state that does not submit all criminal records to the FBI.

(e) Based on available information, the Department has reason to believe that other criminal history information regarding the SI is present in another state.

(12) In order to complete a criminal records check and fitness determination, the Department may require additional information from an SI.

(a) Additional information includes but is not limited to criminal, judicial, other background information, or proof of identity.

(b) If an SI who is a represented Department employee is required to provide additional information, the process for obtaining that information through investigatory interviews must adhere to collective bargaining agreements on investigatory interviews.

(13) BCU may conduct further research regarding criminal history through local jurisdiction courts, Department records, or other resources.

(14) In addition to criminal records check requirements in this rule, a criminal records check for an SI in a position which requires use or access to CJI, or CJIS clearance must include:

(a) A fingerprint-based national check;

(b) A review by Oregon State Police for CJIS clearance;

(15) In addition to criminal records check requirements in this rule, a criminal records check for an SI in a position which requires use or access to FTI must include:

(a) A fingerprint-based national check;

(b) A check of local law enforcement agencies where the SI has lived, worked, or attended school within the past five years;

(c) Validation of the SI's eligibility to legally work in the United States.

(16) The Department may conduct a criminal records check in situations of imminent danger on SIs who have been background checked under these rules.

(a) If the Department determines there is indication of potentially disqualifying criminal behavior by an SI that could more likely than not pose an immediate risk to the Department, its clients, or vulnerable persons, the Department may authorize a criminal records check without the completion of a criminal records check request.

(b) If the Department determines that a fitness determination based on the criminal records check would be adverse to the SI, the Department must provide the SI, if available, the opportunity to disclose potentially disqualifying convictions and conditions, and other information as indicated in OAR 407-007-0060 before the completion of the fitness determination.

(17) If the criminal records check process results in an incomplete fitness determination as described in OAR 407-007-0070(2)(d), BCU closes the criminal records check. When a criminal records check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the criminal records check request. An incomplete fitness determination results in immediate termination, dismissal, or removal of the SI.

(18) BCU must document criminal records checks conducted under this rule.

Or. Admin. Code § 407-007-0030

DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16; DHSD 4-2016, f. 6-9-16, cert. ef. 6/15/2016; DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018; DHSD 32-2018, amend filed 11/28/2018, effective 12/1/2018; DHSD 18-2019, temporary amend filed 09/26/2019, effective 9/27/2019 through 03/24/2020; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 7-2021, temporary amend filed 06/25/2021, effective 6/25/2021 through 12/21/2021; DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050

Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010