OAR Chapter 167 — Secretary of State, Business Services Division

chapter-167OAR Chapter 167Regulation

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Division 1 PROCEDURAL RULES

Or. Admin. R. 167-001-0005 Model Rules of Procedure

Pursuant to ORS 183.341, the Secretary of State adopts for use by its Business Services Division the Attorney General's Model Rules of Procedure as amended and effective on January 1, 2010.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the Attorney General or Business Services Division.]

History

  • Statutory/Other Authority: ORS 183
  • Statutes/Other Implemented: ORS 183
  • BSD 1-2010, f. & cert. ef. 7-7-10
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
  • SS 1-1992, f. & cert. ef. 8-17-92
Or. Admin. R. 167-001-0007 Application of Rules

These OAR chapter 167, division 001 rules apply to public contracts of the Secretary of State first advertised, but if not advertised then entered into, on or after March 1, 2014.

History

  • Statutory/Other Authority: ORS 279A.065 & 279A.070
  • Statutes/Other Implemented: ORS 279A.020, 279A.030 & 279A.065
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 1-2010, f. & cert. ef. 7-7-10
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0010 Notice of Proposed Rulemaking

Prior to the adoption, amendment or repeal of any permanent rule, the Secretary of State, Business Services Division, shall give notice of the intended action:

(1) In the Secretary of State's Bulletin referred to in ORS 183.360(3) at least 21 days prior to the effective date of the intended action.

(2) By mailing a copy of the notice to persons on the Secretary of State's Business Services Division mailing list established pursuant to ORS 183.335(8) at least 28 days before the effective date of the rule; and

(3) By mailing or furnishing a copy of the notice to:

(a) The Capitol Press Room;

(b) Associated Press; and

(c) Attorney General.

History

  • Statutory/Other Authority: ORS 183
  • Statutes/Other Implemented: ORS 183
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
  • BSD 1-1995, f. & cert. ef. 5-17-95
  • SS 2-1992, f. & cert. ef. 10-13-92
Or. Admin. R. 167-001-0020 Purpose

The Divisions of the Oregon Secretary of State (Secretary) occasionally require the services of an outside party to accomplish all or part of a project. The Secretary intends that the Attorney General's Model Public Contracting Rules, Chapter 137, will govern all Secretary of State public contracting. It is the intent of the Secretary that these Model Rules will be accepted by default in accordance with the provisions of ORS 279A.065(4). These rules supplement and do not replace the Attorney General’s Model Public Contract Rules.

History

  • Statutory/Other Authority: ORS 279A.065
  • Statutes/Other Implemented: ORS 279A.065
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
  • SS 3-1992, f. & cert. ef. 10-13-92
Or. Admin. R. 167-001-0030 Basic Policy

The Secretary will contract for services when the specialized skills, knowledge or resources are not available within the Secretary of State's office; when the work cannot be done in a reasonable time with the Secretary's own work force; when it will be less expensive to contract for the work; or when an independent and impartial evaluation of a situation by recognized professionals is required. Contracts will be granted only after approval of the Secretary or his/her designee.

History

  • Statutory/Other Authority: ORS 279A.065 & 279A.070
  • Statutes/Other Implemented: ORS 279A.015
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 1-2010, f. & cert. ef. 7-7-10
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
  • SS 3-1992, f. & cert. ef. 10-13-92
Or. Admin. R. 167-001-0081 Reinstatement of Expired Contracts

The Secretary of State, Business Services Division Chief Procurement Officer may approve reinstatement of an expired Contract if the following conditions are met:

(1) Failure to renew or extend the Contract would prevent the Secretary from carrying out the duties of the Secretary;

(2) Written request for reinstatement is submitted to the Business Services Division Chief Procurement Officer for approval within a reasonable time after the expiration of the original contract;

(3) A written statement justifying the Contractor’s completion of the work after expiration of the contract, there is no change in the Statement of Work, and either;

(a) The reinstatement is exclusively for the purpose of permitting completion of the work or services for no additional compensation; or

(b) When services are of a continuing or repetitive nature which are compensated at an hourly, daily or similar periodic rate, the reinstatement either:

(A) Does not increase the rate of compensation; or

(B) Does not increase the rate of compensation so as to exceed the rate of the increase determined by comparing the Portland, Oregon Metropolitan Area Consumer Price Index (all items) published immediately prior to the date the original contract was established with the same Index published immediately prior to the date of the reinstatement and extension.

(4) When a Contract is reinstated pursuant to this section, the Secretary may compensate the Contractor, at the rate of compensation established in the original contract, for work performed in the interim between the expiration of the original contract and the execution and approval(s) of the extension or amendment.

(5) This rule authorizes only one reinstatement of a Contract.

(6) No reinstatement of a Contract shall modify the original contract except with respect to the time for performance.

(7) If the reinstatement of a Contract pursuant to this rule raises the aggregate amount of compensation to a level that requires Attorney General approval under ORS 291.045 and 291.047, the Secretary shall obtain such approval or ratification before the extension becomes binding and before any services may be performed under the reinstated contract.

History

  • Statutory/Other Authority: ORS 279A.065 & 279A.070
  • Statutes/Other Implemented: ORS 279A.050, 279A.065, 279A.070 & 279A.140
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 1-2010, f. & cert. ef. 7-7-10
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0300 Electronic Public Notice

The Secretary may publish the advertisement (notice) for Offers on the Department of Administrative Services ORPIN Electronic Procurement System, or subsequent system, instead of publishing notice in a newspaper of general circulation as required by ORS 279B.055(4)(b). In addition, the Secretary may publish the advertisement on the Secretary's web-page.

History

  • Statutory/Other Authority: ORS 279A.065 & 279A.070
  • Statutes/Other Implemented: ORS 279A.065, 279A.070 & 279B.055
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0310 Pre-Closing Withdrawal of Offers

Notwithstanding OAR 137-047-0440(2)(a) and prior to Closing, Offeror may modify or withdraw its Offer via OregonBuys, or subsequent system, using the system functionality.

History

  • Statutory/Other Authority: Oregon Constitution, Article VI, Sections 2 and 5; ORS 279A.065
  • BSD 2-2019, adopt filed 12/02/2019, effective 12/02/2019
Or. Admin. R. 167-001-0360 Purchases Through Federal Programs

(1) The Secretary may purchase supplies and services under the Federal Programs identified in ORS 279A.180, without competitive sealed bidding, competitive sealed proposals or other competition required under ORS 279B.050 to 279B.085, provided that the Secretary has federal authorization to purchase through the program.

(2) To purchase through a Federal Program, the Secretary must document in its contract file that:

(a) The acquisition meets the Secretary’s requirements;

(b) The price and other terms of the acquisition are advantageous to the Secretary;

(c) No other DAS price agreement for the supply or services exists, based upon the Secretary’s review of the contracts on ORPIN;

(d) Preference programs, including but not limited to the Inmate Work Program of ORS 279A.025(2)(i);

(e) The Secretary may add to its contract such contract terms and conditions as are required by State statute or rules, if such additions do not conflict with the Federal Program’s contract terms and conditions, including but not limited to prompt payment requirements, additional commercial terms, and conflict resolution.

History

  • Statutory/Other Authority: ORS 279A.065 & 279A.070
  • Statutes/Other Implemented: ORS 279A.180
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 1-2010, f. & cert. ef. 7-7-10
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0600 Policy

(1) These rules supplement and do not replace ORS 244.010 through ORS 244.400, for the purpose of applying the policy of ORS 244.010 to Oregon Secretary of State (Secretary) public contracting under the Public Contracting Code and related rules. The Secretary's public contracting is a public trust. The Secretary and contractors involved in public contracting must safeguard this public trust.

(2) The Secretary will conduct business with competence, integrity, and dignity. The Secretary will pursue the maximum value of each public dollar spent while complying with all public contracting statues, rules, and regulations. The Secretary will grant all competitive bidders fair consideration, to regard each transaction on its own merits; to foster and promote fair, ethical, and legal trade practices. The Secretary will prompt courteous reception to all who want to conduct legitimate business with the State of Oregon.

History

  • Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
  • Statutes/Other Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0605 Selection and Award of Public Contracts

(1) Secretary officers, employees or agents involved in the process of the selection and award of public contracts must carefully review the provisions of ORS 244.040.

(2) Secretary officers, employees and agents are prohibited from soliciting or receiving gifts, which means something of economic value given to a public official or the public official’s relative or member of the household of the public official without an exchange of valuable consideration of equivalent value, including the full or partial forgiveness of indebtedness, and which is not extended to others who are not public officials or the relatives of public officials or members of the household of the public official on the same terms and conditions; and something of economic value given to a public official or the public official’s relative or member or the household of the public official for valuable consideration less than that required from others who are not public officials.

(3) Secretary officers, employees and agents are prohibited from using their official position for personal or financial gain.

(4) Secretary officers, employees and agents are prohibited from using confidential information gained in the course of the screening and selection procedures for personal or financial gain.

History

  • Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
  • Statutes/Other Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
  • BSD 1-2010, f. & cert. ef. 7-7-10
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0620 Specifications

Secretary staff and providers may not develop specifications that primarily benefit only one provider, directly or indirectly.

History

  • Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
  • Statutes/Other Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0625 Sole-Source

The Secretary may not select a sole-source procurement pursuant to ORS 279B.075 to avoid a competitive procurement if the purpose of the selection is to primarily benefit the provider, directly or indirectly, to the detriment of the Secretary or the best interest of the State.

History

  • Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
  • Statutes/Other Implemented: ORS 279A.065(5)(a), 279A.070, 279B.075 & 279A.140
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0630 Fragmentation

A procurement may not be artificially divided or fragmented so as to constitute a small procurement, pursuant to ORS 279B.065, or an intermediate procurement, pursuant to 279B.070, in order to avoid competition.

History

  • Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
  • Statutes/Other Implemented: ORS 279A.065(5)(a), 279A.070 & 279B.065
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05
Or. Admin. R. 167-001-0635 Agency and Provider Communications

(1) Secretary staff are encouraged to freely conduct market research in support of a procurement. This research includes but is not limited to: meetings, industry presentations, and demonstrations with any providers that may be able to meet a need for an approved procurement. Secretary staff are encouraged to meet with providers whose products or services can meet the Secretary's needs and to document the items discussed during the market research phase of Solicitation development. The research phase shall end prior to a release of a solicitation or a request for quote, unless the solicitation provides for a different process that permits on-going research.

(2) Any communication between Secretary and providers after the solicitation release or request for a quote must only be facilitated by the purchasing staff and within the context of the solicitation document requirements, which may allow for discussions, negotiations, and addenda. Secretary purchasing staff are encouraged to respond to written inquiries by addenda or letter in a timely manner.

History

  • Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
  • Statutes/Other Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
  • BSD 1-2014, f. 2-28-14, cert. ef. 3-1-14
  • BSD 2-2005, f. & cert. ef. 6-15-05
  • BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05

Division 50 CRIMINAL RECORDS CHECK RULES

Or. Admin. R. 167-050-0100 Statement of Purpose

Purpose. These rules control the Secretary of State’s acquisition of information about a subject individual’s criminal history through criminal records checks and its use of that information to determine whether the subject individual is fit to provide services to the Secretary of State as an employee or contractor in a position covered by OAR 167-050-0120(2)(a)–(e). The fact that the Secretary of State approves a subject individual as fit does not guarantee the individual a position as a Secretary of State employee or contractor.

History

  • Statutory/Other Authority: ORS 181.534 & ORS 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0110 Definitions

As used in OAR chapter 167, division 050, unless the context of the rule requires otherwise, the following definitions apply:

(1) "Approved" means that a criminal records check and any required fitness determination has been completed on a subject individual and the subject individual is eligible to be an employee or contractor in a position covered by OAR 167-050-0120(2)(a)–(e).

(2) "Conviction" means that a court of law has entered a final judgment on a verdict or finding of guilt on a plea of guilty, or a plea of nolo contendere (no contest), or any determination of guilt, against a subject individual, unless that judgment has been reversed or dismissed by a subsequent court decision.

(3) ”Criminal Offender Information” includes records and related data as to physical description and vital statistics, fingerprints received and compiled by the Oregon Department of State Police Bureau of Criminal Identification for purposes of identifying criminal offenders and alleged offenders, records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole and release

(4) "Criminal Records Check" or "CRC" means one of two processes undertaken to check the criminal history of a subject individual:

(a) "Oregon Criminal Records Check" means obtaining and reviewing information from the Oregon State Police's Law Enforcement Data System (LEDS); or

(b) "National Criminal Records Check" means a national check of criminal offender information conducted by the Oregon Department of State Police through the Federal Bureau of Investigation at the Secretary of State’s request.

(5) "Denied" means that a criminal records check and subsequent fitness determination has been completed on a subject individual and the authorized designee has found the subject individual to be not eligible to be an employee or contractor in a position covered by OAR 167-050-0120(2)(a)–(e).

(6) “False Statement” means that, in association with an activity governed by these rules, a subject individual either:

(a) Provided the Secretary of State with materially false information about his or her criminal history, such as, but not limited to, materially false information about his or her identity or conviction record; or

(b) Failed to provide to the Secretary of State information material to determining his or her criminal history.

(7) “Fitness Determination” means a determination made by the Secretary of State pursuant to the process established in OAR 167-050-0150 (preliminary fitness determination) or 167-050-0170 (final fitness determination) that a subject individual is or is not fit to be a Secretary of State employee or contractor in a position covered by 167-050-0120(2)(a)–(e).

(8) “Subject Individual” means an individual identified in OAR 167-050-0120.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0120 Subject Individuals

“Subject Individual” means a person who is required to complete a criminal records check pursuant to these rules and from whom the Secretary of State may require fingerprints for the purpose of conducting a criminal history check because the person:

(1) Is employed by or applying for employment with the Secretary of State, or provides services or seeks to provide services to the Secretary of State as a contractor; and

(2) Is, or will be, working or providing services in a position:

(a) In which the person is providing information technology services and has control over, or access to, information technology systems that would allow the person to harm the information technology systems or the information contained in the systems;

(b) In which the person has access to information, the disclosure of which is prohibited by state or federal laws, rules or regulations or information that is defined as confidential under state or federal laws, rules or regulations;

(c) That has fiscal, payroll, or purchasing responsibilities as one of the position’s primary responsibilities;

(d) In which the person has responsibility for conducting audits; or

(e) In which the person has access to personal information about employees or members of the public including Social Security numbers, dates of birth, driver license numbers, personal financial information or criminal background information.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0130 Criminal Records Check Process

(1) Disclosure of Information by Subject Individual.

(a) Preliminary to a criminal records check, the Secretary of State may require a subject individual to complete and sign the Secretary of State’s Criminal Records Request form and, if requested by the Secretary of State, a fingerprint card. The Criminal Records Request form shall require the following information: name, birth date, Social Security Number, physical characteristics, driver’s license or identification card number, current address, and prior residences. The Secretary of State Criminal Records Request form may also require details concerning any circumstance listed in OAR 167-050-0170(2).

(b) A subject individual shall complete and submit to the Secretary of State the Criminal Records Request form and, if requested, a fingerprint card, within five (5) business days of receiving the forms.

(c) The Secretary of State shall not request a fingerprint card from a subject individual under the age of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550 et seq., or unless the Secretary of State also requests the written consent of a parent or guardian. In such case, such parent or guardian and youth must be informed that they are not required to consent. Notwithstanding, failure to consent may be construed as a refusal to consent under OAR 167-050-0170(3)(d)(B).

(d) A subject individual shall disclose additional information as requested by the Secretary of State in order to resolve any issue(s) hindering the completion of a criminal records check within five (5) business days of the request.

(2) When Check is Required. The Secretary of State may conduct, or request that the Oregon Department of State Police conduct, a criminal records check when:

(a) A person meets the definition of a subject individual; or

(b) Required by federal or state laws or regulations, other rules adopted by the Secretary of State, or by contract or written agreement with the Secretary of State;

(3) Which Criminal Records Check(s) Is Conducted. When the Secretary of State determines under subsection (2) of this rule that a criminal records check is needed, the Secretary of State may request or conduct an Oregon Criminal Records Check, or a Nationwide Criminal Records Check, or both.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0140 Potentially Disqualifying Crimes

(1) Crimes Relevant to a Fitness Determination.

(a) All felonies;

(b) All Class A misdemeanors;

(c) Any United States Military or international crime that is equivalent to any crime listed in this section;

(d) Any crime of attempt, solicitation, or conspiracy to commit a crime listed in this section (1) pursuant to ORS 161.405, 161.435, or 161.450;

(e) Any crime based on criminal liability for conduct of another pursuant to ORS 161.555, when the underlying crime is listed in this subsection (1).

(f) Any crime which, if convicted, would require the individual to register as a sex offender.

(2) Evaluation Based on Oregon Laws. The Secretary of State shall evaluate a crime on the basis of Oregon laws and, if applicable, federal laws or the laws of any other jurisdiction in which a criminal records check indicates a subject individual may have committed a crime, as those laws are in effect at the time of the fitness determination.

(3) Expunged Juvenile Record. Under no circumstances shall a subject individual be denied under these rules because of the existence or contents of a juvenile record that has been expunged pursuant to ORS 419A.260 through 419A.262.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0150 Preliminary Fitness Determination

(1) The Secretary of State may conduct a preliminary fitness determination if the Secretary of State is interested in hiring or appointing a subject individual on a preliminary basis, pending a final fitness determination.

(2) If the Secretary of State elects to make a preliminary fitness determination about a subject individual, pending a final fitness determination, the Secretary of State shall make that determination of the basis of any information disclosed by the subject individual and on an Oregon Criminal Records Check.

(3) The Secretary of State shall approve a subject individual as fit on a preliminary basis if the Secretary of State has no reason to believe that the subject individual has made a false statement and the information available to the Secretary of State does not disclose that the subject individual:

(a) Has pled nolo contendere (or no contest) to, been convicted of, found guilty except for insanity (or comparable disposition) of, or has a pending indictment for a crime listed under OAR 167-050-0140;

(b) Has been arrested for or charged with a crime listed under OAR 167-050-0140;

(c) Is being investigated for, or has an outstanding warrant for a crime listed under OAR 167-050-0140;

(d) Is currently on probation, parole, or any form of post-prison supervision for a crime listed under OAR 167-050-0140;

(e) Has a deferred sentence or conditional discharge in connection with a crime listed under OAR 167-050-0140;

(f) Has been adjudicated in a juvenile court and found to be within the court’s jurisdiction for an offense that would have constituted a crime listed in OAR 167-050-0140 if committed by an adult; or

(g) Has made a false statement.

(4) If the information available to the Secretary of State discloses one or more of the circumstances identified in subsection (3), the Secretary of State may nonetheless approve a subject individual as fit on a preliminary basis if the Secretary of State concludes, after evaluating all available information, that hiring or appointing the subject individual on a preliminary basis does not pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public.

(5) If a subject individual is either approved or denied on the basis of a preliminary fitness determination, the Secretary of State thereafter shall conduct a fitness determination under OAR 167-050-0170.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0160 Hiring or Appointing on a Preliminary Basis

(1) The Secretary of State may hire or appoint a subject individual on a preliminary basis if the Secretary of State has approved the subject individual on the basis of a preliminary fitness determination under OAR 167-050-0150.

(2) A subject individual hired or appointed on a preliminary basis under this rule may participate in training, orientation, or work activities as assigned by the Secretary of State.

(3) A subject individual hired or appointed on a preliminary basis is deemed to be on trial service and, if terminated before completion of a final fitness determination under OAR 167-050-0170, may not appeal the termination under the processes provided under 167-050-0190.

(4) If a subject individual hired or appointed on a preliminary basis is denied upon completion of a final fitness determination, as provided under OAR 167-050-0170, then the Secretary of State shall immediately terminate the subject individual’s employment or appointment.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0170 Final Fitness Determination

(1) If the Secretary of State elects to conduct a criminal records check, the Secretary of State shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 167-050-0130, the criminal records check(s) conducted, if any, and any false statements made by the subject individual.

(2) In making a fitness determination about a subject individual, an authorized designee shall consider the factors in this subsection (2)(a)–(f) in relation to information provided by the subject individual under OAR 167-050-0130, any LEDS report or criminal offender information obtained through a criminal records check, and any false statement made by the subject individual. To assist in considering these factors, the Secretary of State may obtain any other information deemed relevant from the subject individual or any other source, including law enforcement and criminal justice agencies or courts within or outside of Oregon. To acquire other relevant information from the subject individual, the Secretary of State may request to meet with the subject individual, to receive written materials from him, or both. The subject individual shall meet with the Secretary of State if requested and provide additional information within a reasonable period of time, as established by the Secretary of State. The Secretary of State will use all collected information in considering:

(a) Whether the subject individual has been arrested, pled nolo contendere (or no contest) to, been convicted of, found guilty except for insanity (or a comparable disposition) of, or has a pending indictment for a crime listed in OAR 167-050-0140;

(b) The nature of any crime identified under subsection (a);

(c) The facts that support the arrest, conviction, finding of guilty except for insanity (or comparable disposition), or pending indictment;

(d) The facts that indicate the subject individual made a false statement;

(e) The relevance, if any, of a crime identified under subsection (a) or of a false statement made by the subject individual to the specific requirements of the subject individual’s present or proposed position, services or employment; and

(f) Intervening circumstances, to the extent that they are relevant to the responsibilities and circumstances of the services or employment for which the fitness determination is being made, including, but not limited to, the following:

(A) The passage of time since the commission or alleged commission of a crime identified under subsection (a);

(B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under subsection (a);

(C) The likelihood of a repetition of offenses or of the commission of another crime;

(D) The subsequent commission of another crime listed in OAR 167-050-0140;

(E) Whether a conviction identified under subsection (a) has been set aside or pardoned, and the legal effect of setting aside the conviction or of a pardon; and

(F) A recommendation of an employer.

(3) Potential Outcomes.

(a) Automatic Approval. The Secretary of State may approve as fit a subject individual if the information described in sections (1) and (2) shows none of the following:

(A) Evidence that the subject individual has pled nolo contendere (or no contest) to, been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed in OAR 167-050- 0140;

(B) Evidence that the subject individual has a pending indictment or warrant for a crime listed in OAR 167-050-0140;

(C) Evidence that the subject individual has been arrested for a crime listed in OAR 167-050-0140;

(D) Evidence of the subject individual having made a false statement; or

(E) Any discrepancy between the criminal offender information and other information obtained from the subject individual.

(b) Evaluative Approval.

(A) If a fitness determination under this rule shows evidence of any of the factors identified in subsection (3)(a)(A)–(F) of this rule, the Secretary of State may approve the subject individual only if, in evaluating the information described in subsections (1) and (2), the Secretary of State determines:

(i) That the evidence is not credible; or

(ii) If the evidence is credible, that the subject individual acting in the position for which the fitness determination is being conducted would not pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public.

(c) Restricted Approval.

(A) If the Secretary of State approves a subject individual under subsection (3)(b) of this rule, the Secretary of State may restrict the approval to specific job duties, activities, or locations.

(B) The Secretary of State must complete a new criminal records check and fitness determination on the subject individual before removing a restriction.

(d) Denial.

(A) If a fitness determination under this rule shows credible evidence of any of the factors identified in subsection (3)(a)(A)–(F) of this rule and, after evaluating the information described in subsections (1) and (2) of this rule, the Secretary of State concludes that the subject individual acting in the position for which the fitness determination is being conducted would pose any risk of harm to the Secretary of State, its client entities, the State, or members of the public, the Secretary of State shall deny the subject individual as not fit for the position.

(B) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal records check, the Secretary of State shall deny the employment of the individual. A person may not appeal any determination made based on a refusal to consent.

(C) If a subject individual is denied as not fit, the subject individual may not be employed by or provide services as a contractor to the Secretary of State in a position covered by OAR 167-050-0120(2)(a)–(e).

(4) Final Order. A completed final fitness determination is final unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR 167-050-0190(2), or an alternative appeals process as provided by 167-050-190(8).

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0180 Incomplete Fitness Determination

(1) The Secretary of State will close a preliminary or final fitness determination as incomplete when:

(a) Circumstances change so that a person no longer meets the definition of a subject individual;

(b) The subject individual does not respond within a stated period of time to a request from the Secretary of State for corrections to the application, fingerprints, any other information necessary to conduct a criminal records check under these rules, or any information described in OAR 167-050-0175;

(c) The subject individual withdraws the application, leaves the position prior to completion of the check or cannot be located or contacted by the authorized designee;

(d) The subject individual is determined to be ineligible for the position or is not chosen for the position for reasons other than the criminal records check;

(e) The position is no longer open.

(2) A subject individual does not have a right to a contested case hearing to challenge the closing of an incomplete fitness determination.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0190 Appealing a Fitness Determination

(1) Model Rules of Procedure. In addition to the Model Rules of Procedure adopted by the Attorney General, OAR 137-003-0001 through 137-003-0092, the procedures set forth in this rule shall apply.

(2) Process.

(a) A subject individual may appeal a final fitness determination by submitting a request in writing to the Secretary of State Human Resources Division. Any such request for a hearing must be received by the Secretary of State within 10 calendar days of the date of the notice.

(b) When a timely request is received by the Secretary of State under subsection (a), a contested case hearing shall be conducted by a hearing officer appointed by the Secretary of State.

(c) The Secretary of State may extend the time to appeal if the Secretary of State determines the delay was caused by factors beyond the reasonable control of the subject individual.

(3) Time and Place of Hearings. The time and place of hearing will be set by the hearing officer. Notice of the hearing shall be served on the Director of Human Resources and interested parties at least ten days in advance of the hearing date.

(4) Discovery. The Secretary of State or the hearing officer may protect information made confidential by ORS 181.534(15) or other applicable laws and rules.

(5) Disclosure of LEDS Information. Information obtained through LEDS shall be disclosed only in a manner consistent with Oregon State Police rules and regulations.

(6) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants.

(7) Proposed Order, Exceptions and Default.

(a) Proposed Order. After a hearing, the hearings officer appointed by the Secretary of State shall issue a proposed order.

(b) Exceptions. Exceptions, if any, shall be filed within 14 calendar days after service of the proposed order. The proposed order shall provide an address to which exceptions must be sent.

(c) Default. A completed final fitness determination made under OAR 167-050-0170 becomes final:

(A) Unless the subject individual makes a timely request for hearing; or

(B) When a party withdraws a hearing request, notifies the Secretary of State or the hearing officer that the party will not appear, or fails to appear for the hearing.

(8) Other Options. A subject individual may appeal a fitness determination through applicable personnel rules and policies. The individual’s decision to do so 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.

(9) History Disputed:

(a) Correcting Disputed History. If a subject individual wishes to challenge the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation or other agencies reporting information to the Secretary of State, the subject individual may appeal to the entity providing the information. Such challenges are not subject to the Secretary of State’s appeal process described in this rule.

(10) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit, or fit with restrictions pursuant to OAR 167-050-0170(3)(c). The Secretary of State shall not be required to place a subject individual in any position or to enter into a contract or otherwise accept services.

History

  • Statutory/Other Authority: ORS 181.534 & 177.075
  • Statutes/Other Implemented: ORS 181.534
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0200 Representation at Hearing

(1) Secretary of State Representation. Subject to the approval of the Attorney General, an officer or employee of the Secretary of State is authorized to appear on behalf of the Secretary of State in contested case hearings involving criminal background checks conducted pursuant to these rules. The Secretary of State retains the right to be represented by the Attorney General.

(2) The agency representative may not make legal arguments on behalf of the Secretary of State.

(a) “Legal argument” includes arguments on:

(A) The jurisdiction of the Secretary of State to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to the agency; and

(C) The application of court precedent to the facts of the particular contested case proceeding;

(b) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the agency in handling similar situations;

(C) The literal meaning of the statute or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence; or

(E) The correctness of procedures being followed in the contested case hearing.

History

  • Statutory/Other Authority: ORS 183.452
  • Statutes/Other Implemented: ORS 181.534(9) & (11)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0210 Recordkeeping and Confidentiality

(1)(a) Records the Secretary of State receives from the Oregon Department of State Police resulting from a criminal records check, including, but not limited to, LEDS reports and state or federal criminal offender information originating with the Oregon Department of State Police or the Federal Bureau of Investigation, are confidential pursuant to ORS 181.534(15).

(b) Only those persons, as identified by the Secretary of State, with a demonstrated and legitimate need to know the information, may have access to criminal records check records.

(2)(a) If a fingerprint-based criminal records check was conducted with regard to a subject individual, the Secretary of State shall permit that subject individual to inspect his or her own state and federal criminal offender information, unless prohibited by federal law.

(b) If a subject individual with a right to inspect criminal offender information under subsection (2)(a) of this rule requests to do so, the Secretary of State shall provide the subject individual with a copy of the individual’s own state and federal criminal offender information, unless prohibited by federal law.

(3) Other Records.

(a) The Secretary of State shall treat all records received or created under these rules that concern the criminal history of a subject individual, other than records covered under section (1)(a) of this rule, including Secretary of State Criminal Records Request forms and fingerprint cards, as confidential pursuant to ORS 181.534(15).

(b) A subject individual shall have access to records identified under subsections (3)(a) of this rule and pursuant to and only to the extent required by the terms of the Public Records Law.

History

  • Statutory/Other Authority: ORS 181.534
  • Statutes/Other Implemented: ORS 181.534(9)
  • BSD 1-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-050-0220 Fees

(1) The Secretary of State may charge a fee for acquiring criminal offender information for use in making a fitness determination. In any particular instance, the fee shall not exceed the fee(s) charged the Secretary of State by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain criminal offender information on the subject individual.

(2) The Secretary of State may charge the fee to the subject individual on whom criminal offender information is sought, or, if the subject individual is an employee of a Secretary of State contractor and is undergoing a fitness determination in that capacity, the Secretary of State may charge the fee to the subject individual’s employer.

History

  • Statutory/Other Authority: ORS 181.534
  • Statutes/Other Implemented: ORS 181.534
  • BSD 1-2008, f. & cert. ef. 7-16-08

Division 55 RECRUITMENT RULES

Or. Admin. R. 167-055-0100 Recruitment Process

(1) Applicants for a vacant and available position must complete and submit a Secretary of State application form within the designated time period. All documents requested as a part of the application must be attached and submitted with the completed application form. These may include, but are not limited to, resumes, writing samples, and references.

(2) An applicant claiming veteran’s preference points must submit a copy of the Certificate of Release or Discharge from Active Duty (DD Form 214 or 215) with the employment application. Disabled Veterans must also submit a copy of their Veteran's disability preference letter from the Department of Veteran Affairs, unless the information is included in the DD Form 214 or 215.

History

  • Statutory/Other Authority: ORS 177.050.
  • Statutes/Other Implemented: ORS 177.050.
  • BSD 2-2008, f. & cert. ef. 7-16-08

Division 60 PUBLIC RECORDS AND DISCLOSURE RULES

Or. Admin. R. 167-060-0100 Policy on Public Records

It is the policy of the Secretary of State that public records will be available to all persons, consistent with all laws governing the disclosure of such records and consistent with the need to protect such records, to prevent interference with the regular discharge of duties and to recover fees reasonably calculated to reimburse the Agency for its actual cost in making such records available.

History

  • Statutory/Other Authority: ORS 192.430
  • Statutes/Other Implemented: ORS 192.502
  • BSD 3-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-060-0110 Requests for Disclosure

(1) Any person may apply for release of public record information.

(2) The request must be in writing, addressed to the Business Services Division Director, 255 Capitol Street NE, Salem, OR 97310 or faxed to (503) 378-4991, and must specify the record(s) from which information is requested, if known. Where applicable, the request must be accompanied by a signed release of information.

(3) The request must include:

(a) The name and address of the person requesting the public record;

(b) The telephone number or other contact information for the person requesting the public record; and

(c) A sufficiently detailed description of the record(s) requested to allow the agency to search for and identify responsive records.

(4) The request should be dated and signed by the person requesting the public record.

History

  • Statutory/Other Authority: ORS 192.430
  • Statutes/Other Implemented: ORS 192.502
  • BSD 3-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-060-0120 Costs for Complying with Request

(1)(a) The Secretary of State may charge a fee reasonably calculated to reimburse its costs of providing and conveying copies of public records. The agency shall charge 25¢ per page for the first 20 pages and 15¢ per page thereafter to recover the costs of photocopying and normal and reasonable staff time to locate, separate, photocopy and return document(s) to file and to prepare/mail public record(s) to requestors. If, for operational or other reasons, the Secretary of State uses the services of an outside facility or contractor to photocopy requested records, it shall charge the actual costs incurred.

(b) “Normal and reasonable” staff time is 10 minutes or less per request.

(2) Additional charges for staff time may be made when responding to record requests that require more than the “normal and reasonable” time for responding to routine record requests. Staff time shall be charged at the hourly billing rate, by position.

(3) In addition to any costs identified under subsections (1) and (2), the Secretary of State may also recoup the cost of time spent by an attorney in reviewing the public records, redacting material from the public records, or segregating the public records into exempt and nonexempt records.

(4) No inspection and/or duplication of record(s) is authorized until payment has been received.

History

  • Statutory/Other Authority: ORS 192
  • Statutes/Other Implemented: ORS 192.430 & 192.440
  • BSD 3-2008, f. & cert. ef. 7-16-08
Or. Admin. R. 167-060-0130 Financial Transparency Policy

(1) It is the policy of the Secretary of State to maintain full and timely transparency for all spending to ensure accountability and restore public trust in state government.

(2) The Secretary of State’s office shall post financial transparency disclosures that are updated monthly. All disclosure reports shall be posted prominently online, publicly accessible, fully searchable, and include both payroll and non-payroll expenditures.

(3) Financial transparency disclosures for each non-payroll expenditure shall list each expenditure along with the associated budget category, budget sub-category, vendor name, vendor city, vendor state, expenditure amount, payment date, invoice description, agency division, reference document number, and any other appropriate associated information, each listed separately by category.

(4) Financial transparency disclosures for each payroll expenditure shall include the position number and separate amounts for each of the payments associated with that position in the following categories: monthly salary, overtime, holiday pay, standby duty pay, work out of class and lead pay, Public Employee Retirement System payments, Public Employee Retirement System pension obligation bond payment, health insurance, dental insurance, life insurance, Social Security and Medicare taxes, Public Employees’ Benefit Board fees, the Workers Benefit Fund assessment, the Employee Relations Board assessment, any other appropriate payroll expense, each listed separately by category.

(5) The Secretary of State’s office shall maintain online financial transparency disclosures with information from all payroll and non-payroll expenditures for at least as long as the established retention schedule for financial records.

(6) Disclosure reports should be posted in open-source, machine-readable data formats, and data should contain unique identifiers to enable integration and comparison with other data sets.

History

  • Statutory/Other Authority: Oregon Constitution, Article VI, Sections 2, Oregon Constitution, Article VI, Sections 5 & ORS 177.050
  • Statutes/Other Implemented: Oregon Constitution, Article VI, Sections 2
  • BSD 1-2026, minor correction filed 06/30/2026, effective 06/30/2026
  • BSD 1-2019, adopt filed 01/11/2019, effective 01/14/2019

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