WSR 05-01-190

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed December 21, 2004, 3:13 p.m. , effective July 1, 2005 ]


Purpose: These rules address when state employees file appeals to the Washington Personnel Resources Board. These rules also address mediation and prehearing conferences for appeals filed to the Washington Personnel Resources Board.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Adopted under notice filed as WSR 04-18-119 on September 1, 2004.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 20, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 20, Amended 0, Repealed 0.

Date Adopted: October 14, 2004.

E. C. Matt

Director

Chapter 357-52 WAC

Appeals


NEW SECTION
WAC 357-52-005   May the board waive the procedural rules contained in chapter 357-52?   In order to prevent hardship, delay, or for other good cause, the board may waive any of the procedural rules contained in chapter 357-52 WAC for any party not represented by legal counsel. The board may not waive a jurisdictional rule.

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NEW SECTION
WAC 357-52-010   What actions may be appealed?   (1) Any permanent employee subject to the statutory jurisdiction of the board who is dismissed, suspended, demoted, or separated or whose base salary is reduced may appeal to the board.

(2) Any employee, subject to the statutory jurisdiction of the board who is affected by a violation of the state civil service law (chapter 41.06 RCW) or the rules contained in Title 357 WAC, or an employer, may appeal to the board by filing written exceptions to the director's review determination, except as provided in WAC 357-49-010(1).

(3) Through December 31, 2005, an employee in a position at the time of its allocation or reallocation or the employer may appeal to the personnel appeals board by filing written exceptions to the director's review determination in accordance with Title 358 WAC. As of January 1, 2006, an employee in a position at the time of its allocation or reallocation or the employer may appeal to the personnel resources board by filing written exceptions to the director's review determination.

(4) An employee whose position has been exempted from chapter 41.06 RCW may appeal the exemption to the board.

(5) An individual or the employer may appeal remedial action to the board by filing written exceptions to the director's review determination.

(6) Any permanent Washington management service employee who is dismissed, suspended, demoted, or separated, or whose base salary is reduced may appeal to the board. A determination of which Washington management service positions will be eliminated in a reduction-in-force action is not subject to appeal.

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NEW SECTION
WAC 357-52-015   By when must an appeal be filed and received in order to be considered timely?   In order to be considered timely, an appeal must be received in writing at the office of the board within thirty calendar days after:

(1) the effective date of the disciplinary action or separation,

(2) service of the director's determination unless the rules specifically state that the director's determination is final, or

(3) the effective date of the exemption of a position or the notice of exemption, whichever is later.

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NEW SECTION
WAC 357-52-020   What information must be submitted with the appeal?   (1) The appeal must include:

(a) the name and address of the appellant and if represented the name, address and telephone number of the representative,

(b) the name of the employer and the department that took the action which is being appealed,

(c) a telephone number at which the appellant can be reached,

(d) the job classification or position of the employee at the time of the action which is being appealed,

(e) a short statement of the grounds or reasons for the appeal, and if applicable, the rule(s) the appellant believes has been violated,

(f) a short statement of the relief or remedy sought by the appellant, and

(g) a short statement of whether the appellant believes the case would or would not be appropriate for mediation.

(2) An appeal of a disciplinary action, separation, or exemption must also include the effective date of the action and the employee's appointment status at the time of the action. The appeal must include a short statement of the nature of the action being appealed or a copy of the action letter from the employer.

(3) An appeal on exception to a director's determination must also detail the specific items of the director's determination to which exception is taken and should include a copy of the director's determination.

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NEW SECTION
WAC 357-52-025   Who is responsible for notifying the board of any change in address, telephone number or representation?   The appellant is responsible for notifying the board of any change in address, telephone number or representation.

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NEW SECTION
WAC 357-52-030   Are standardized forms available for filing appeals?   The department makes standardized forms available for filing appeals. Appellants may prepare and use their own appeal documents. Appellants' documents must contain all of the information required by WAC 357-52-020.

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NEW SECTION
WAC 357-52-035   What happens if the appellant does not submit all the information required by WAC 357-52-020?   (1) When the board receives an appeal, it reviews the document(s) to determine whether the information required by this section has been provided.

(2) If any of the required information is not provided with the appeal, the board directs the appellant to provide the missing information and sends a copy of the notice to all affected parties.

(3) The appellant must provide the missing information as requested within twenty-one calendar days of the date the notification is mailed.

(4) When the board receives the requested information, it sends a copy to the other affected parties.

(5) If the appellant fails to comply with the requirements of this section the board may dismiss the appeal according to WAC 357-52-215.

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NEW SECTION
WAC 357-52-040   How does the board acknowledge receipt of an appeal?   (1) When the board receives an appeal, it sends a written acknowledgement to the appellant and a copy to the other affected parties.

(2) If necessary, the board requests a copy of the action letter from the employer.

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NEW SECTION
WAC 357-52-045   Are appeals reviewed for timeliness?   (1) The board reviews all appeal(s) for timeliness. When an appeal appears to be untimely, the board directs the parties to submit affidavits and/or written argument addressing the timeliness of the appeal.

(2) In addition, any party to an appeal may submit a motion to dismiss for untimeliness at any time during the appeal process.

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NEW SECTION
WAC 357-52-050   How does the board notify the parties when the appeal is set for hearing?   The board must notify the parties of record in writing of the time and place of the hearing. The notice of hearing must be mailed at least thirty calendar days before the date of the hearing, unless all parties agree to a shorter notice period.

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NEW SECTION
WAC 357-52-055   May anyone other than the board adjudicate appeals or conduct prehearing meetings?   The board may designate one or more hearing officers or the director to act as a board designee to mediate appeals, conduct prehearing conferences and/or hearings, and make recommended or final decisions.

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NEW SECTION
WAC 357-52-060   Can appeals be mediated?   When both parties to an appeal agree, the appeal can be mediated.

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NEW SECTION
WAC 357-52-065   Who mediates appeals?   The board may assign the case to a mediator. Nothing in this section prevents the parties from selecting their own mediator. However, if a mediator other than the one designated by the board is selected, the parties must pay the cost of the mediator.

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NEW SECTION
WAC 357-52-070   How are mediations conducted?   (1) After the board assigns a mediator, the parties must meet and confer at least once and engage in a good faith attempt to negotiate a resolution of the appeal. The mediator may decide to hold the mediation by telephone. The appellant and at least one designee of the employer must personally participate in the mediation. If the designee of the employer does not have authority to act on behalf of the employer, a person with the requisite authority must be available by telephone.

(2) Mediation and settlement discussions are privileged and the proceedings must not be reported or recorded in any manner, except for agreements reached by the parties.

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NEW SECTION
WAC 357-52-075   What happens at the conclusion of mediation conducted by the board?   (1) If a settlement is reached, the agreement must be put in writing. The agreement will be binding on all parties to that agreement. The appellant must sign a request to withdraw the appeal.

(2) If a settlement is not reached, the mediator must inform the board.

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NEW SECTION
WAC 357-52-077   What happens when the parties settle an appeal without the assistance of a board mediator?   If a settlement is reached, the appellant must inform the board and must sign and submit a request to withdraw the appeal.

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NEW SECTION
WAC 357-52-080   What can a prehearing conference be used for?   The board may direct the parties or their representatives to engage in a prehearing conference(s) to consider the following:

(1) Simplification or limitation of issues;

(2) Possibility of obtaining stipulations, admissions of fact, and admissions of the genuineness of documents that will avoid unnecessary proof;

(3) Discovery, discovery methods and discovery deadlines;

(4) Number of witnesses expected to be called and their names when possible;

(5) Approximate time necessary for presentation of the evidence of the respective parties;

(6) Whether or when motions may be brought;

(7) Exhibits;

(8) Affidavits; and

(9) Such other matters as may aid in the prompt disposition of the appeal.

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NEW SECTION
WAC 357-52-085   How and when may a prehearing conference be held?   (1) A prehearing conference may be held in conjunction with a mediation.

(2) Prehearing conferences may be held by telephone.

(3) The parties are encouraged where possible to resolve their disputes by agreement. To facilitate such resolution, the prehearing conference may be recessed at any time to give the parties time to discuss settlement of their dispute. In the event settlement is reached, the parties must notify the board and the appellant must sign and submit a request to withdraw the appeal.

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NEW SECTION
WAC 357-52-090   How are the results of a prehearing conference documented?   The results of the prehearing conference must be stated in a written statement of results. The statement must include, where applicable, agreements concerning issues, admissions, stipulations, witnesses, discovery, length of hearing, motions, exhibits, affidavits, and other matters that may expedite the appeal hearing. The statement resulting from the prehearing conference must control the subsequent course of the appeal, subject to modification upon a filing of exceptions to the statement.

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NEW SECTION
WAC 357-52-095   What happens if one of the parties fails to participate in the prehearing conference?   Failure of a party to participate in a prehearing conference may result in dismissal of the appeal, or other appropriate sanctions.

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