PROPOSED RULES
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule and Other Identifying Information: WAC 357-52-100 How are appeal hearings conducted?, 357-52-105 Can hearings and conferences be conducted by electronic means?, 357-52-110 Who has the burden of proof at hearings?, 357-52-115 How may a party request that a hearing be continued?, 357-52-120 When may a written motion be filed?, 357-52-125 Must the board consider untimely motions?, 357-52-130 What must be included with a motion?, 357-52-135 How many copies of a motion must be submitted?, 357-52-140 What may the board decide based on a motion?, 357-52-145 Must parties submit prehearing statements?, 357-52-150 When must prehearing statements be filed?, 357-52-155 What should be included in a prehearing statement?, 357-52-160 How many copies of the prehearing statement must be provided?, 357-52-165 Must the board consider untimely prehearing statements?, 357-52-170 What actions may be taken by a hearing officer following a hearing?, 357-52-175 What actions may be taken by the board following a hearing?, 357-52-180 How is a hearing officer's recommended decision served?, 357-52-185 Can a party file exceptions to a hearing officer's recommended decision?, 357-52-190 What must be included in a party's written exceptions?, 357-52-195 When is a written response in opposition to exceptions due?, 357-52-200 When does a hearing officer's recommended decision become final?, 357-52-205 What is the subject of a hearing on exceptions?, 357-52-210 Can a decision by the board be appealed?, 357-52-215 When may the board dismiss an appeal on its own motion?, 357-52-220 Will the parties be given notice of the potential dismissal of an appeal on the board's motion and when must a party respond?, 357-52-225 How must written documents be filed with the board?, 357-52-230 How must written documents be served on the parties?, 357-52-235 How must exhibits for hearings be prepared and exchanged?, 357-52-240 Who may prepare, sign and issue a subpoena?, 357-52-245 What must a subpoena include?, 357-52-250 How must a subpoena be served?, 357-52-260 When and who may make a motion to quash?, and 357-52-265 What actions may the board take when a motion to quash is filed?
Hearing Location(s): Department of Personnel, 521 Capitol Way South, Olympia, WA, on October 14, 2004, at 10:00 a.m.
Date of Intended Adoption: October 14, 2004.
Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT," fax (360) 586-4694, by October 8, 2004.
Assistance for Persons with Disabilities: Contact Department of Personnel by October 8, 2004, TTY (360) 753-4107 or (360) 586-8260.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules address how appeal hearings are conducted before the Washington Personnel Resources Board and the process used before, during and after the appeal hearing.
Statutory Authority for Adoption: Chapter 41.06 RCW.
Statute Being Implemented: RCW 41.06.150.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Due to the passage of SHB 1268 the director of the Department of Personnel has rule-making authority regarding appeals.
Name of Proponent: Department of Personnel, governmental.
Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.
A cost-benefit analysis is not required under RCW 34.05.328.
August 31, 2004
E. C. Matt
Director
(1) Hearings on all appeals are open to the public unless the board determines there is substantial reason for not having an open hearing, or the employee so requests.
(2) The hearing is informal. Technical rules of evidence do not apply to the proceedings, except for the rules of privilege recognized by law.
(3) All parties may select representatives of their choosing, present and cross-examine witnesses, and give evidence before the board.
(4) All testimony is under oath administered by a member of the board or the hearing officer. Testimony by affidavit is not admitted at a hearing except for good cause shown, or as otherwise permitted in these rules, as provided in a prehearing conference statement or by stipulation of the parties.
(5) One member of the board may hold a hearing and take testimony to be reported for action by the board.
(6) The board prepares an official audio record of the hearing.
(7) The board is not required to transcribe the record. If the proceedings were recorded, a copy of the audio recording may be ordered from the board for a reasonable charge.
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(2) Any party desiring a continuance must first orally contact the opposing party to determine whether agreement to a continuance can be reached. The requesting party is responsible for filing a written motion for continuance with the board. The motion must include the reason(s) for the request, the opposing party's response to the request, and a date certain for the hearing on which both parties and the board are available.
(3) The motion for continuance must be filed with the board and the opposing party at least fourteen calendar days before the scheduled hearing date. The board must review the motion, decide whether or not to grant the continuance, and notify the parties of the decision within three working days of receipt of the motion.
(4) In unusual circumstances or emergency situations, and only where the reason(s) for the continuance could not have been foreseen, the board may allow a motion for continuance with less than fourteen calendar day's notice.
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(2) Time requirements for motions for continuance are found in WAC 357-52-115.
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(2) An order must be issued when an appeal is dismissed or decided on motion.
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(2) If the board does not require statements, parties may still choose to file a prehearing statement.
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(2) Any opposing response to these statements must be provided to the board and opposing party at least seven calendar days before the scheduled hearing date or at such time as set at the prehearing conference.
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(2) The hearing officer may affirm, reverse or modify an action of an employer or remand the matter for further proceedings.
(3) When the hearing officer reduces a dismissal to a suspension, the period of suspension is not limited by RCW 41.06.170(1).
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(2) The board may affirm, reverse or modify the action of an employer or the recommended decision of the hearing officer or remand the matter for further proceedings.
(3) When the board reduces a dismissal to a suspension, the period of suspension is not limited by RCW 41.06.170(1).
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(1) An appellant has failed to provide information required under WAC 357-52-020;
(2) The parties have notified the board that the case has been settled and the appeal has not been withdrawn within thirty calendar days of the notice of settlement;
(3) An appeal is not filed on time;
(4) The board lacks jurisdiction over the subject matter or parties to the appeal;
(5) A party fails to participate in a prehearing conference as described in WAC 357-52-095; or
(6) The board is unable to contact the appellant at the last address and telephone number provided by the appellant.
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(2) Filing by telephone facsimile.
(a) Written documents filed with the board by telephone facsimile are considered received when a legible copy of the document is reproduced on the board's telephone facsimile equipment in the board's office. If transmission begins after customary office hours, which are 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal holidays, the document will be deemed filed on the next business day.
(b) Any document filed with the board by telephone facsimile should be preceded by a cover page identifying the addressee; the party making the transmission, including the address, telephone and telephone facsimile number of such party; the appeal to which the document relates; the date of transmission; and the total number of pages included in the transmission.
(c) The party attempting to file papers by telephone facsimile bears the risk that the papers will not be timely received or legibly printed, regardless of the cause. If the telephone facsimile is not legible, it will be considered as if it had never been sent.
(d) The original of any document filed by telephone facsimile should be mailed to the board within twenty-four hours of the time that the telephone facsimile was sent.
(e) The filing of papers by electronic mail ("e-mail") is not authorized without the express prior approval of the board, and only under such circumstances as the board allows.
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(2) All notices, documents, or papers served by either the board or any other party must be served upon all counsel of record at the time of such filing and upon parties not represented by counsel. Service of papers must be made by personal delivery; by mail; or by telephone facsimile transmission with same-day mailing of copies. Correspondence between the board and employers may be sent via the state mail service.
(3) Service upon parties will be regarded as completed when personal service has been accomplished; or upon deposit in the mail, properly stamped and addressed; or upon production by telephone facsimile transmission of confirmation of transmission.
(4) Service upon parties by electronic mail ("e-mail") is not authorized without the express prior approval of the board, and only under such circumstances as the board allows.
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(2) The parties must arrive at the hearing location at least thirty minutes before the scheduled hearing for the purpose of exchanging exhibits. The parties must pre-mark their exhibits for identification and present copies to the other party and the board's staff before the beginning of the hearing.
(3) The number, scope and timing of exhibits may be limited by the prehearing statement of results.
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(2) Parties desiring subpoenas to be signed by a member of the board or the board's designee must prepare subpoenas for issuance and submit the subpoenas for signature at least ten calendar days before a hearing or deposition.
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(2) Subpoenas must be personally served upon the designated individual. The individual where entitled, may demand the fees for one day's attendance and the mileage allowed by law.
(3) A copy of the subpoena must also be provided to the opposing party or the party's representative and to the employer's human resource office.
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(1) Deny the motion;
(2) Grant the motion if the subpoena or discovery is unreasonable or requires evidence not relevant to any matter in issue; or
(3) Modify the contents of the subpoena or scope of the discovery request for just and reasonable cause.
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