Chapter 1057 Oregon Laws
1999
Session Law
AN ACT
SB 1334
Relating to transportation;
creating new provisions; and amending ORS 181.536, 181.537 and 811.215.
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 Resources or the
Employment Department 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:
(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 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; [or]
(d) For the purposes of employment decisions by qualified
entities that are regulated or otherwise subject to oversight by the Department
of Human Resources or the Employment Department 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 Office of
Medical Assistance Programs, employ individuals to operate motor vehicles for
the transportation of medical assistance program clients.
(2) The Department of Human Resources and the Employment
Department 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 Resources or
the Employment Department.
(3) If a nationwide criminal records check is necessary for a
subject individual, the Department of Human Resources or the Employment
Department 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 Resources or the Employment Department. The Department of
State Police shall also furnish such information 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
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 Resources or the Employment Department 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 Resources or the
Employment Department. The Department of Human Resources or the Employment
Department 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 Resources and the Employment
Department may furnish to qualified entities, in accordance with the respective
department'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 Resources, the Employment Department 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 Resources
and the Employment Department 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 Resources and the Employment Department, 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 Resources and the Employment
Department are the only qualified entities 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 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 employee of the state, a business
or an organization is 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 Resources and the Employment
Department shall each 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 Resources or the Employment Department 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 an election of remedies as to
the rights of the subject individual with respect to the disqualification
determination, and shall constitute waiver of the contested case process.
(9) The Department of Human Resources 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 not be
disseminated except for the purposes of this section and in accordance with the
rules of the Department of Human Resources and the Department of State Police.
Nothing in this subsection permits the Department of Human Resources to retain
fingerprint cards of subject individuals.
(10) The Department of Human Resources and the Employment
Department, 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
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 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 Resources 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 Resources shall appoint a criminal
records check rules coordinator who shall be 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 Resources and the Employment Department
are each 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 Resources and Employment
Department 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 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) "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) "Qualified entity" means the Department of Human
Resources, the Employment Department, 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) "Qualified vendor" means a supplier of criminal
history backgrounds who is certified by the Department of Human Resources or
the Employment Department as having substantially the same criminal offender
information as the Law Enforcement Data System.
(d) "Subject individual" means a person subject to a
criminal records check as specified by rule of the Department of Human
Resources or the Employment Department.
SECTION 2.
ORS 181.536, as amended by section 37, chapter 59, Oregon Laws 1999 (Enrolled
Senate Bill 564), is amended to read:
181.536. (1) The Department of Human Resources shall by rule
set forth a timetable that does not exceed 12 months in length for providers, including qualified entities described in
ORS 181.537 (1)(e), to obtain criminal records checks for subject
individuals already employed by the provider if the individuals have not
undergone a criminal records check process comparable to the one set forth in
ORS 181.537.
(2) The Department of Human Resources shall seek federal or
other matching funds that will reduce the cost to providers of complying with
the requirements of ORS 181.537.
SECTION 3. (1) As used in this section:
(a) "District"
means a mass transit district organized under ORS 267.010 to 267.390 or a
transportation district organized under ORS 267.510 to 267.650.
(b) "Qualified
entity" means an individual or business or organization, whether public,
private, for-profit, nonprofit or voluntary, that, under contract with a district,
provides individuals to operate motor vehicles for the transportation of
passengers in the public transportation system of the district.
(c) "Subject
individual" means a person subject to a criminal records check as
specified by resolution of a mass transit district or a transportation
district.
(2) A mass transit district
or a transportation district shall request from the Department of State Police
criminal offender information on subject individuals if the information is
required in order to protect vulnerable Oregonians:
(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 district employment
purposes when hiring individuals to operate motor vehicles of the district; or
(c) For the purposes of
employment decisions made by a district for qualified entities that, under
contracts with the district, employ individuals to operate motor vehicles for
the transportation of passengers in the public transportation system of the
district.
(3) In order to determine
the suitability of the subject individual, a district shall require the subject
individual to furnish to the district a full set of fingerprints to enable a
criminal records check to be conducted. The district shall submit the completed
fingerprint cards to the Department of State Police along with the applicable
Oregon and Federal Bureau of Investigation processing fees. If no disqualifying
record is identified at the state level, the Department of State Police shall
forward the fingerprints to the Federal Bureau of Investigation for a national
criminal records check.
(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, a district shall cease to
cause the cards to be sent 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 district. The district
shall destroy the fingerprint cards and shall retain no facsimiles or other
material from which a fingerprint can be reproduced.
(6) The district and the
Department of State Police shall permit a subject individual to inspect the
individual's own Oregon and Federal Bureau of Investigation criminal offender
records after positive fingerprint identification has been made.
(7)(a) A district, using
guidelines established by a resolution of the district, shall determine under
this section whether a subject individual is fit to operate motor vehicles for
the transportation of passengers in the public transportation system of the
district, 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 be allowed to operate motor
vehicles for the transportation of passengers in the public transportation
system of the district.
(b) In making the fitness
determination, the district 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 or employment; and
(D) Intervening
circumstances relevant to the responsibilities and circumstances of the
position or employment. 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) A district shall have
immunity 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 or be employed. A district and an employer or employer's
agent who in good faith comply with this section and the decision of the
district are not liable for the failure to hire a prospective employee or the
decision to discharge an employee on the basis of the district's decision. No
employee of the district, a business or an organization is 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 district shall
establish by resolution a process by which a subject individual may appeal the
determination that the subject individual is disqualified for a position or
employment 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
appeal process required by this subsection.
(9) A district 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 not be
disseminated except for the purposes of this section and in accordance with the
relevant resolutions of the district. Nothing in this subsection permits a
district to retain fingerprint cards of subject individuals.
(10) A district, in
consultation with the Department of State Police and affected provider groups,
shall adopt resolutions to implement this section and other statutes relating
to criminal offender information. The resolutions 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
services or qualified entities are subject to this section;
(e) Specifying which crimes
may be considered in reviewing criminal offender information for a subject
individual;
(f) Specifying when a
nationwide criminal records check shall 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 should
be taken into consideration when enacting resolutions under this subsection;
(g) Specifying when a
district, 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 district under subsection (9) of this section;
and
(h) 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 resolution 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.
(11) 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 district
receiving information pursuant to this section is bound by the rules of
disclosure adopted by the department.
(12) For purposes of
receiving the information described in this section, a mass transit district
and a transportation district are each 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.
(13) If a subject individual
refuses to consent to the criminal records check or refuses to be
fingerprinted, the district or qualified entity shall deny or terminate the
employment of the individual, or revoke or deny any applicable position,
service or employment.
(14) A district shall define
by resolution 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 or nationwide criminal
records check. At a minimum, subject individuals shall 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 did not result in
disqualification and there are no other indications of criminal behavior.
(15) If a district or a
qualified entity requires a criminal records check of employees or other
persons, the application forms of the district or qualified entity must contain
a notice that employment is subject to fingerprinting and a criminal records
check as required by this section.
SECTION 4.
ORS 811.215 is amended to read:
811.215. ORS 811.210 does not apply to:
(1) Privately owned commercial vehicles, as defined in ORS
801.210. The exemption in this subsection does not apply to vehicles commonly
known as pickup trucks that have a combined weight of less than 8,000 pounds.
(2) Any vehicle not required to be equipped with safety belts
or safety harnesses at the time the vehicle was manufactured, unless safety
belts or safety harnesses have been installed in the vehicle.
(3) Any vehicle exempted by ORS 815.080 from requirements to be
equipped upon sale with safety belts or safety harnesses.
(4) Any person for whom a certificate is issued by the
Department of Transportation under ORS 811.220.
(5) Any person who is a passenger in a vehicle if all seating
positions in the vehicle are occupied by other persons.
(6) Any person who is being transported while in the custody of
a police officer or any law enforcement agency.
(7) Any person who is delivering newspapers or mail in the
regular course of work.
(8) Any person who is riding in an ambulance for the purpose of
administering medical aid to another person in the ambulance, if being secured
by a safety belt or safety harness would substantially inhibit the
administration of medical aid.
(9) Any person who is reading utility meters in the regular
course of work.
(10) Any person who is
employed to operate a vehicle owned by a mass transit district while the
vehicle is being used for the transportation of passengers in the public
transportation system of the district.
(11) Any person who is
collecting solid waste or recyclable materials in the regular course of work.
Approved by the Governor
September 1, 1999
Filed in the office of the
Secretary of State September 1, 1999
Effective date October 23,
1999
__________