Chapter 200 Oregon Laws 2003

AN ACT

HB 2207

Relating to criminal offender information; amending ORS 181.537.

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

SECTION 1. ORS 181.537 is amended to read:

181.537. (1) [The Department of Human Services or the Employment Department] An authorized agency may request from the Department of State Police criminal offender information on subject individuals if the information is required in order to protect vulnerable [Oregonians] persons:

(a) To implement a federal or state statute, executive order or rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct;

(b) For [departmental] agency employment purposes;

(c) For the purposes of licensing, certifying, registering or otherwise regulating or administering programs, subject individuals or qualified entities that provide care, treatment, education, training, instruction, supervision, placement services, recreation or support to children, the elderly or persons with disabilities;

(d) For the purposes of employment decisions by qualified entities that are regulated or otherwise subject to oversight by [the Department of Human Services or the Employment Department] an authorized agency and that provide care, treatment, education, training, instruction, supervision, placement services, recreation or support to children, the elderly or persons with disabilities; or

(e) For the purposes of employment decisions made by a mass transit district or transportation district for qualified entities that, under contracts with the district or the Department of Human Services, employ individuals to operate motor vehicles for the transportation of medical assistance program clients.

(2) [The Department of Human Services and the Employment Department] An authorized agency may conduct criminal records checks on subject individuals through the Law Enforcement Data System maintained by the Department of State Police or a qualified vendor, if deemed necessary by the [Department of Human Services or the Employment Department] authorized agency.

(3) If a nationwide criminal records check is necessary for a subject individual, the [Department of Human Services or the Employment Department] authorized agency shall request the Department of State Police to conduct the check, including fingerprint identification, through the Federal Bureau of Investigation. The Department of State Police shall report the results to the [Department of Human Services or the Employment Department] authorized agency. The Department of State Police shall also furnish [such] any information [as] that 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 information.

(4) The Federal Bureau of Investigation shall either return or destroy the fingerprint cards used to conduct the criminal records check and shall not keep any record of the fingerprints. However, if the federal bureau policy authorizing return or destruction of the fingerprint cards is changed, the [Department of Human Services or the Employment Department] authorized agency shall cease to send the cards to the federal bureau but shall continue to process the information through other available resources.

(5) If the Federal Bureau of Investigation returns the fingerprint cards to the Department of State Police, the department shall return the fingerprint cards to the [Department of Human Services or the Employment Department. The Department of Human Services or the Employment Department] authorized agency. The authorized agency shall destroy the fingerprint cards and shall retain no facsimiles or other material from which a fingerprint can be reproduced.

(6) [The Department of Human Services and the Employment Department] An authorized agency may furnish to qualified entities, in accordance with the respective [department’s] agency’s rules and the rules of the Department of State Police, information received from the Law Enforcement Data System or a qualified vendor. In addition, the [Department of Human Services, the Employment Department] authorized agency and the Department of State Police shall permit a subject individual to inspect the individual’s own Oregon criminal offender record. However, any criminal offender records and information furnished to the [Department of Human Services and the Employment Department] authorized agency by the Federal Bureau of Investigation through the Department of State Police may not be disseminated to other qualified entities or subject individuals.

(7)(a) A qualified entity, using rules adopted by [the Department of Human Services and the Employment Department] an authorized agency, shall determine under this section whether a subject individual is fit to hold a position, provide services, be employed or, if the qualified entity has authority to make such a determination, be licensed, certified or registered, based on the criminal offender information obtained pursuant to this section, any false statements made by the individual regarding the criminal history of the individual and any refusal to submit or consent to a criminal records check including fingerprint identification. If a subject individual is determined to be unfit, then that person shall not hold the position, provide services or be employed, licensed, certified or registered.

(b) In making the fitness determination, the qualified entity shall consider:

(A) The nature of the crime;

(B) The facts that support the conviction or pending indictment or indicate the making of the false statement;

(C) The relevancy, if any, of the crime or the false statement to the specific requirements of the subject individual’s present or proposed position, services, employment, license, certification or registration; and

(D) Intervening circumstances relevant to the responsibilities and circumstances of the position, services, employment, license, certification or registration. Intervening circumstances include but are not limited to the passage of time since the commission of the crime, the age of the person at the time of the crime, the likelihood of a repetition of offenses, the subsequent commission of another relevant crime and a recommendation of an employer.

(c) [The Department of Human Services and the Employment Department are the only qualified entities] An authorized agency is the only qualified entity that may make fitness determinations based on criminal offender records and information furnished by the Federal Bureau of Investigation through the Department of State Police.

(d) A qualified entity [shall have immunity] is immune from any civil liability that might otherwise be incurred or imposed for determining pursuant to this subsection that a subject individual is not fit to hold a position, provide services or be employed, licensed, certified or registered. A qualified entity and an employer or employer’s agent who in good faith comply with this section and the decision of the qualified entity are not liable for the failure to hire a prospective employee or the decision to discharge an employee on the basis of the qualified entity’s decision. [No] An employee of the state, a business or an organization is not liable for defamation, invasion of privacy, negligence or any other civil claim in connection with the lawful dissemination of information lawfully obtained under this section.

(8)(a) [The Department of Human Services and the Employment Department shall] Each authorized agency shall establish by rule a contested case process by which a subject individual may appeal the determination that the subject individual is disqualified for a position, services, employment, license, certification or registration pursuant to this section. Challenges to the accuracy or completeness of information provided by the Department of State Police, the Federal Bureau of Investigation and agencies reporting information to the department or bureau must be made through the department, bureau or agency and not through the contested case process required by this paragraph.

(b) A subject individual who is also employed by [the Department of Human Services or the Employment Department] an authorized agency and who is determined disqualified for a position may appeal the determination through either the contested case process adopted under this subsection or applicable personnel rules, policies and collective bargaining provisions. A subject individual’s decision to appeal a determination through personnel rules, policies and collective bargaining provisions [shall constitute] is an election of remedies as to the rights of the subject individual with respect to the disqualification determination, and [shall constitute] is a waiver of the contested case process.

(9) The Department of Human Services shall develop a system that maintains information regarding criminal records checks in order to minimize the administrative burden that criminal records check requirements impose upon subject individuals and providers. Records maintained under this subsection for subject individuals are confidential and [shall] may not be disseminated except for the purposes of this section and in accordance with the rules of the Department of Human Services and the Department of State Police. Nothing in this subsection permits the Department of Human Services to retain fingerprint cards of subject individuals.

(10) [The Department of Human Services and the Employment Department] Each authorized agency, in consultation with the Department of State Police and affected provider, beneficiary and employee groups, shall adopt rules to implement this section and other statutes relating to criminal offender information. The rules may include but are not limited to:

(a) Specifying which employees are authorized to make criminal record inquiries;

(b) Specifying categories of subject individuals who are subject to criminal records checks;

(c) Specifying the information, including fingerprints, that may be required from a subject individual to permit a criminal records check;

(d) Specifying which programs, services or qualified entities are subject to this section;

(e) Specifying which qualified entities may request criminal offender information;

(f) Specifying which qualified entities are responsible for deciding whether a subject individual is not fit for a position, service, license, certification, registration or employment;

(g) Specifying which crimes may be considered in reviewing criminal offender information for a subject individual;

(h) Specifying when a nationwide criminal records check [shall] must be conducted on a subject individual through the Department of State Police. The additional cost of obtaining a nationwide criminal records check and the risk to vulnerable [Oregonians] persons should be taken into consideration when adopting rules under this paragraph;

(i) Specifying when a qualified entity, in lieu of conducting a completely new criminal records check, may proceed to make a fitness determination under this section using the information maintained by the Department of Human Services pursuant to subsection (9) of this section;

(j) Determining when a subject individual may be hired on a probationary basis pending a criminal records check. At a minimum, if there is any indication of criminal behavior by the subject individual, the rules must require that, if the individual is hired, the individual can be hired only on a probationary basis and must be actively supervised at all times when the individual is in contact with children, the elderly or persons with disabilities; and

(k) Establishing fees in an amount not to exceed the actual cost of acquiring and furnishing criminal offender information.

(11) The Department of Human Services shall appoint a criminal records check rules coordinator who [shall be] is responsible for ensuring that the department’s divisions and offices adopt appropriately consistent criminal records check processes that minimize adverse impacts to subject individuals and providers while accomplishing protection for children, the elderly and persons with disabilities.

(12) Criminal offender information is confidential. The Department of State Police shall adopt rules to restrict dissemination of information received under this section to persons with a demonstrated and legitimate need to know the information. Any qualified entity receiving information pursuant to this section is bound by the rules of disclosure adopted by the department.

(13) For purposes of receiving the information described in this section, [the Department of Human Services and the Employment Department are each] an authorized agency is considered to be a “designated agency” under ORS 181.010 to 181.560 and 181.715 to 181.730 and the rules adopted under ORS 181.555.

(14) If a subject individual refuses to consent to the criminal records check or refuses to be fingerprinted, the qualified entity shall deny or terminate the employment of the individual, or revoke or deny any applicable position, service, employment, license, certification or registration.

(15) [The Department of Human Services and Employment Department] An authorized agency shall define by rule the conditions under which subject individuals may participate in training, orientation and work activities pending completion of a criminal records check through the Law Enforcement Data System, qualified vendor or nationwide criminal records check. At a minimum, subject individuals [shall] must be actively supervised at all times that they are in contact with children, the elderly and persons with disabilities during such periods of training, orientation and work. Subject individuals may continue probationary employment while awaiting the nationwide criminal records check as long as the individual’s criminal records check through the Law Enforcement Data System or qualified vendor did not result in disqualification and there are no other indications of criminal behavior.

(16) If the qualified entity requires a criminal records check of employees or other persons, the application forms of the qualified entity must contain a notice that employment is subject to fingerprinting and a criminal records check as required by this section and ORS 181.539.

(17) As used in this section:

(a) “Authorized agency” means the Department of Human Services, the Employment Department and the State Parks and Recreation Department.

[(a)] (b) “Care” means the provision of care, treatment, education, training, instruction, supervision, placement services, recreation or support to children, the elderly or persons with disabilities and developmental disabilities.

[(b)] (c) “Qualified entity” means [the Department of Human Services, the Employment Department] an authorized agency, community mental health and developmental disability program, local health department or an individual or business or organization, whether public, private, for-profit, nonprofit or voluntary, that provides care, including a business or organization that licenses, certifies or registers others to provide care.

[(c)] (d) “Qualified vendor” means a supplier of criminal history backgrounds who is certified by [the Department of Human Services or the Employment Department] an authorized agency as having substantially the same criminal offender information as the Law Enforcement Data System.

[(d)] (e) “Subject individual” means a person subject to a criminal records check as specified by rule of [the Department of Human Services or the Employment Department] an authorized agency.

Approved by the Governor June 4, 2003

Filed in the office of Secretary of State June 5, 2003

Effective date January 1, 2004

__________