PERMANENT RULESDEPARTMENT OF PERSONNEL
Filed December 21, 2004,
, effective July 1, 2005
Purpose: These 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.
Adopted under notice filed as WSR 04-18-118
Number of Sections Adopted in Order to Comply with Federal Statute:
Federal Rules or Standards:
or Recently Enacted State Statutes:
Number of Sections Adopted at Request of a Nongovernmental Entity:
Number of Sections Adopted on the Agency's Own Initiative:
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures:
Number of Sections Adopted Using Negotiated Rule Making:
Pilot Rule Making:
or Other Alternative Rule Making:
Date Adopted: October 14, 2004.
E. C. Matt
How are appeal hearings conducted?
Appeal hearings are conducted as follows:
(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
(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
(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
Can hearings and conferences be conducted
by electronic means?
All conferences and hearings before the
board may be conducted by telephone or other electronic means
as determined by the board.
Who has the burden of proof at hearings?
At any hearing on appeal from a dismissal, suspension,
demotion, reduction in base salary, or separation, the
employer has the burden of supporting the charges upon which
the action was initiated. At any other hearing, the party
filing the appeal has the burden of proof.
How may a party request that a hearing be
(1) Any party to a hearing may make a written
motion to the board to continue a hearing for good cause. The
motion must state the specific reason(s) and the period of
time for which a continuance is necessary.
(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.
When may a written motion be filed?
Except as otherwise provided in a prehearing conference
statement or as otherwise specifically provided in these
rules, written motions and any supporting affidavits must be
filed and served not less than thirty calendar days before the
hearing date. Any opposing affidavits must be filed and
served within fourteen calendar days after the motion is
filed. Any reply and counter affidavits by the moving party
must be filed and served within seven calendar days after the
opposing response is filed.
(2) Time requirements for motions for continuance are
found in WAC 357-52-115.
Must the board consider untimely motions?
The board may refuse to consider motions that are not filed on
What must be included with a motion?
party submitting documents in support of or in opposition to a
motion must include proposed findings, conclusions, and order.
How many copies of a motion must be
When the motion will be considered by the board,
the party submitting the documents must provide the original
and three copies to the board and one copy to each opposing
party. When the motion will be considered by a hearing
officer the original will go to the hearing officer, and one
copy to each opposing party.
What may the board decide based on a
(1) The board or hearing officer may decide all or
any part of an appeal by motion if the documents, depositions
and affidavits on file show there is no genuine issue as to
any material fact and the appeal should be decided or
dismissed as a matter of law. The board or hearing officer
must allow oral argument on dispositive or summary judgment
motions at the request of either party. Oral argument may be
presented by telephone or other electronic media.
(2) An order must be issued when an appeal is dismissed
or decided on motion.
Must parties submit prehearing
(1) The board may require all parties to file a
prehearing statement of position.
(2) If the board does not require statements, parties may
still choose to file a prehearing statement.
When must prehearing statements be filed?
(1) If a party is filing a prehearing statement, the statement
must be provided to the board and opposing party at least
fourteen calendar days before the scheduled hearing date or at
such time as set at the prehearing conference.
(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.
What should be included in a prehearing
The prehearing statements must include a summary
of the evidence the party intends to present; a listing of the
rules or statutes upon which the party intends to rely; a
statement of the remedy requested; and an argument as to why
the party is entitled to the requested remedy.
How many copies of the prehearing
statement must be provided?
A party submitting prehearing
statement(s) must provide the original and three copies to the
board and one copy to each opposing party. When the
prehearing statement will be considered by a hearing officer
the original will go to the hearing officer, and one copy to
each opposing party.
Must the board consider untimely
The board may refuse to consider
prehearing statements that are not filed on time.
What actions may be taken by a hearing
officer following a hearing?
(1) At the conclusion of a
hearing, the hearing officer may require post-hearing briefs.
(2) The hearing officer may affirm, reverse or modify an
action of an employer or remand the matter for further
(3) When the hearing officer reduces a dismissal to a
suspension, the period of suspension is not limited by RCW 41.06.170(1).
What actions may be taken by the board
following a hearing?
(1) At the conclusion of a hearing, the
board may require post-hearing briefs.
(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).
How is a hearing officer's recommended
The hearing officer must provide the
recommended decision to the board, to the employer, to the
appellant, and to the appellant's representative (if any).
The copies to the employer, appellant, and appellant's
representative must be sent by certified mail with a return
Can a party file exceptions to a hearing
officer's recommended decision?
Either party may file written
exceptions to the board. The exceptions must be filed within
thirty calendar days of the date that notice of the
recommended decision was sent by certified mail.
What must be included in a party's
The written exceptions must set forth
specific exceptions to the recommended decision and any
additional errors a party contends were made by the hearing
officer. If a party contends that the hearing officer has
made an error which requires a review of the record, the party
must identify the specific portion(s) of the record that
support each claimed error.
When is a written response in opposition
to exceptions due?
The due date for any written response to
the exceptions is thirty calendar days following the date the
exceptions were filed.
When does a hearing officer's recommended
decision become final?
If no exceptions are filed, the
recommended decision becomes final thirty calendar days after
service, unless the board notifies each party within that
thirty-day period that the board on its own motion will
reconsider the recommended decision.
What is the subject of a hearing on
Hearings on exceptions are limited to the
contentions set forth in the notice of exceptions unless the
board itself chooses to review other matters.
Can a decision by the board be appealed?
Decisions and orders of the board are final.
When may the board dismiss an appeal on
its own motion?
The board may dismiss an appeal on its own
(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.
Will the parties be given notice of the
potential dismissal of an appeal on the board's motion and
when must a party respond?
The parties must be served with
written notice that the appeal will be dismissed unless,
within fifteen calendar days following the date of service, a
written request is made to the board showing good cause why
the appeal should not be dismissed. If no timely request is
made, the board must dismiss the appeal.
How must written documents be filed with
(1) Filing generally. Papers that must be filed
with the board are considered to be filed only when the papers
are actually received in the board's office in Olympia,
(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
(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.
How must written documents be served on
(1) In matters of appeal the board must serve
all orders, notices, and other papers issued by it. Every
other notice, document or paper required to be served must be
served by the party filing it.
(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
(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
(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.
How must exhibits for hearings be
prepared and exchanged?
(1) When exhibits are offered at any
hearing, one copy must be provided for the official file,
sufficient copies must be provided for the board (three
copies) or hearing officer (one copy), one copy must be
provided to the opposing party, and one copy provided for the
(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
(3) The number, scope and timing of exhibits may be
limited by the prehearing statement of results.
Who may prepare, sign and issue a
(1) Subpoenas may be signed and issued by any
member of the board, or the board's designee, or the attorney
of record of the party requiring the appearance of the
(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.
What must a subpoena include?
subpoena must name the board and the title of the proceedings
and must command the person to whom it is directed to attend
and give testimony or produce designated books, documents, or
things under the person's control at the specified time and
How must a subpoena be served?
Parties requesting subpoenas must make arrangements for and
bear the expense of service. It is recommended that all
subpoenas be served at least five calendar days before a
hearing or deposition.
(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.
Which discovery procedures must a party
Parties may use discovery procedures in a manner
consistent with the civil rules for the superior courts of the
state of Washington and as provided in any prehearing
statement of results or other order of the board.
When and who may make a motion to quash?
A party to the appeal or the person to whom the subpoena or
discovery is directed may make a motion to quash. The motion
must be filed at least two calendar days following the receipt
of a subpoena or discovery request.
What actions may the board take when a
motion to quash is filed?
When a motion to quash is filed,
the board provides notice to the party who issued the subpoena
or discovery and allow the party to provide a response to the
motion. After considering the motion and response the board
(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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