Chapter 871 Oregon Laws 2001

AN ACT

HB 2884

Relating to criminal offender information; creating new provisions; amending ORS 181.538 and 181.556; appropriating money; and limiting expenditures.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (1) As used in this section:

(a) “Authorized agency” means the Department of State Police or other governmental agency designated by the state to report, receive or disseminate criminal offender information.

(b) “Qualified entity” means a business or organization that:

(A) Provides care or placement services, or licenses or certifies others to provide care or placement services, for children, elderly persons or dependent persons;

(B) Is not governed by a state regulatory or licensing agency; and

(C) Has been determined by an authorized agency to meet the criteria established by the authorized agency by rule under subsection (9) of this section.

(c) “Subject individual” means a person who is employed or seeks to be employed by a qualified entity or who is providing services or seeks to provide services to a qualified entity on a contractual or volunteer basis.

(2) An entity may request from an authorized agency a criminal records check for purposes of evaluating the fitness of a subject individual as an employee, contractor or volunteer. The authorized agency may access state and federal criminal records under this subsection only through use of the subject individual’s fingerprints.

(3) Before an authorized agency may conduct a criminal records check under this section:

(a) The authorized agency shall determine whether the entity requesting the criminal records check is a qualified entity;

(b) The qualified entity must establish criteria to be used by the authorized agency in reviewing the criminal offender information for a final record check determination;

(c) The qualified entity must provide the criteria established under paragraph (b) of this subsection to the authorized agency; and

(d) The qualified entity must have informed the subject individual that the qualified entity might request a fingerprint-based criminal records check and that the subject individual may obtain a copy of the record check report from, or challenge the accuracy or completeness of the record check report through, the authorized agency or the Federal Bureau of Investigation.

(4)(a) Upon receipt of a subject individual’s criminal offender information, the authorized agency shall make a final record check determination by comparing the criminal offender information with the criteria provided to the authorized agency by the qualified entity under subsection (3)(c) of this section. In making the final record check determination, the authorized agency may consider only information that the Department of State Police may disclose under ORS 181.560.

(b) An authorized agency is immune from civil liability that might otherwise be incurred or imposed for making the final record check determination under this subsection.

(5) An authorized agency may not transfer a fingerprint card used to conduct the criminal records check unless the public agency or person receiving the fingerprint card agrees to destroy or return the fingerprint card to the authorized agency.

(6) If the public agency or person returns a fingerprint card to the authorized agency, the authorized agency shall destroy the fingerprint card. The authorized agency may not keep a record of the fingerprints.

(7) The authorized agency shall permit a subject individual to inspect the individual’s Oregon and Federal Bureau of Investigation criminal offender information after positive identification has been established based upon fingerprints.

(8) Challenges to the accuracy or completeness of information provided by the authorized agency, the Federal Bureau of Investigation and agencies reporting information to the authorized agency or bureau must be made through the authorized agency or bureau.

(9) The authorized agency shall adopt rules to implement this section. The rules may include but are not limited to:

(a) Criteria to be used by the authorized agency to determine whether an entity is a qualified entity; and

(b) Fees to be charged for conducting criminal records checks under this section in amounts not to exceed the actual costs of acquiring and furnishing criminal offender information.

SECTION 2. ORS 181.556 is amended to read:

181.556. (1) When the Department of State Police is asked to provide criminal offender information under ORS 181.555 (2) or section 1 of this 2001 Act, the department shall waive any fee otherwise charged by the department for providing the information if:

[(1)] (a) The request is made by [a nonprofit] an organization [that operates mentoring or tutoring programs]; and

[(2)] (b) The individual about whom the criminal offender information is sought is a volunteer, or prospective volunteer, of the [nonprofit] organization.

(2) In addition to waiving any fee otherwise charged by the department, the department may not charge the individual or organization the fee charged by the Federal Bureau of Investigation for conducting nationwide criminal records checks.

(3) As used in this section:

(a) “Dependent person” means a person who, because of physical or mental disability, or medical disability due to alcohol or drug dependence, needs mentoring or tutoring programs.

(b) “Elderly person” means a person 65 years of age or older.

(c) “Mentoring program” means a program that provides a committed, sustained, one-to-one relationship between a volunteer and a youth, dependent person or elderly person that allows the youth, dependent person or elderly person to achieve that person’s greatest potential. A sustained relationship typically lasts nine months or longer.

(d) “Organization” means a qualified entity that:

(A) Is exempt from taxation under section 501(c) of the Internal Revenue Code, as amended and in effect on the effective date of this 2001 Act; and

(B) Provides mentoring programs or tutoring programs.

(e) “Qualified entity” has the meaning given that term in section 1 of this 2001 Act.

(f) “Tutoring program” means a program that provides a committed, sustained, one-to-one relationship between a volunteer and a youth, dependent person or elderly person based upon a specified activity that increases specific skills of the youth, dependent person or elderly person. A sustained relationship typically lasts nine months or longer.

(g) “Youth” means a person who has not attained 18 years of age.

SECTION 3. In addition to and not in lieu of any other appropriation, there is appropriated to the Department of State Police, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $18,000, which may be expended for paying the fees required to be waived under ORS 181.556.

SECTION 4. ORS 181.538 is amended to read:

181.538. (1) Upon the request of a Native American tribe, and in compliance with procedures adopted by the Department of State Police under ORS 181.555, the Department of State Police shall furnish to the authorized staff of the Native American tribe such information on a subject individual or contractor as the Department of State Police may have in its possession from its central bureau of criminal identification, including but not limited to manual or computerized criminal offender information. With the approval of the Department of State Police, a local law enforcement agency may furnish the information described in this subsection to a Native American tribe.

(2)(a) Subsequent to furnishing the information required under subsection (1) of this section, the Department of State Police shall conduct nationwide criminal records checks of the subject individual or contractor through the Federal Bureau of Investigation by use of the subject individual’s or contractor’s fingerprints and shall report the results to the staff of the Native American tribe, who must be specifically authorized to receive the information. In accordance with the procedures of the Department of State Police, a local law enforcement agency may conduct the criminal records check described in this paragraph if the local law enforcement agency has received approval under subsection (1) of this section.

(b) The Department of State Police shall return the fingerprint cards to the Native American tribe.

(3) For purposes of requesting and receiving the information and data described in subsections (1) and (2) of this section, Native American tribes are designated agencies for purposes of ORS 181.010 to 181.560 and 181.715 to 181.730.

(4) As used in this section:

(a) “Contractor” means any natural person or corporation, trust, association, partnership, joint venture, subsidiary or other business entity with whom a Native American tribe intends to contract for the purpose of providing supplies or services related to tribal gaming, or any control person of a contractor.

(b) “Control person” means:

(A) In a privately owned corporation, the officers, directors and stockholders of the parent company and, if applicable, each of its subsidiaries.

(B) In a publicly owned corporation, the officers and directors of the parent company, each of its subsidiaries and stockholders owning at least 15 percent of the company’s stock.

(D) In an association, the members, officers and directors.

(E) In a partnership or joint venture, the general partners, limited partners or joint venturers.

(F) A member of the immediate family of any of the persons listed in subparagraphs (A) to (E) of this paragraph if the person is involved in the business.

(G) A subcontractor of a contractor, if the subcontractor performs more than 50 percent of the contractor’s contract with the Native American tribe.

(A) Authorized by the Indian Gaming Regulatory Act of October 17, 1988 (Public Law 100-497), 25 U.S.C. 2701 et seq., and the State of Oregon to conduct gambling operations on tribal land; or

(B) Eligible for special programs and services provided by the United States to Indians because of their status as Indians.

(d) “Subject individual” means a person who is:

(A) Applying for employment at a tribal gaming facility as a key employee, high security employee, low security employee or management employee; or

(B) Employed or applying for employment with a tribal government or agency responsible for child care, child welfare, law enforcement, education, health care, housing or social services.

SECTION 5. Notwithstanding any other law limiting expenditures for payment of expenses from fees, moneys or other revenues, including Miscellaneous Receipts, but excluding lottery funds, for the biennium beginning July 1, 2001, the expenditure limitation established for the Department of State Police by section 2, chapter 776, Oregon Laws 2001 (Enrolled Senate Bill 5538), for forensic services and medical examiner activities and operations is increased by $1,349,601 for the purpose of implementing section 1 of this 2001 Act and the amendments to ORS 181.556 and 181.538 by sections 2 and 4 of this 2001 Act.

Approved by the Governor July 31, 2001

Filed in the office of Secretary of State July 31, 2001

Effective date January 1, 2002

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