WSR 05-01-191

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed December 21, 2004, 3:14 p.m. , 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 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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 33, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 33, Amended 0, Repealed 0.

Date Adopted: October 14, 2004.

E. C. Matt

Director


NEW SECTION
WAC 357-52-100   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 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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NEW SECTION
WAC 357-52-105   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.

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NEW SECTION
WAC 357-52-110   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.

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NEW SECTION
WAC 357-52-115   How may a party request that a hearing be continued?   (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.

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NEW SECTION
WAC 357-52-120   When may a written motion be filed?   (1) 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.

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NEW SECTION
WAC 357-52-125   Must the board consider untimely motions?   The board may refuse to consider motions that are not filed on time.

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NEW SECTION
WAC 357-52-130   What must be included with a motion?   Any party submitting documents in support of or in opposition to a motion must include proposed findings, conclusions, and order.

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NEW SECTION
WAC 357-52-135   How many copies of a motion must be submitted?   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.

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NEW SECTION
WAC 357-52-140   What may the board decide based on a motion?   (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.

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NEW SECTION
WAC 357-52-145   Must parties submit prehearing statements?   (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.

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NEW SECTION
WAC 357-52-150   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.

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NEW SECTION
WAC 357-52-155   What should be included in a prehearing statement?   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.

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NEW SECTION
WAC 357-52-160   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.

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NEW SECTION
WAC 357-52-165   Must the board consider untimely prehearing statements?   The board may refuse to consider prehearing statements that are not filed on time.

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NEW SECTION
WAC 357-52-170   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 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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NEW SECTION
WAC 357-52-175   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).

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NEW SECTION
WAC 357-52-180   How is a hearing officer's recommended decision served?   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 receipt requested.

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NEW SECTION
WAC 357-52-185   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.

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NEW SECTION
WAC 357-52-190   What must be included in a party's written exceptions?   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.

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NEW SECTION
WAC 357-52-195   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.

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NEW SECTION
WAC 357-52-200   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.

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NEW SECTION
WAC 357-52-205   What is the subject of a hearing on exceptions?   Hearings on exceptions are limited to the contentions set forth in the notice of exceptions unless the board itself chooses to review other matters.

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NEW SECTION
WAC 357-52-210   Can a decision by the board be appealed?   Decisions and orders of the board are final.

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NEW SECTION
WAC 357-52-215   When may the board dismiss an appeal on its own motion?   The board may dismiss an appeal on its own motion when:

(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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NEW SECTION
WAC 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?   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.

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NEW SECTION
WAC 357-52-225   How must written documents be filed with the board?   (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, Washington.

(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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NEW SECTION
WAC 357-52-230   How must written documents be served on the parties?   (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 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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NEW SECTION
WAC 357-52-235   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 witness stand.

(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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NEW SECTION
WAC 357-52-240   Who may prepare, sign and issue a subpoena?   (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 witness.

(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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NEW SECTION
WAC 357-52-245   What must a subpoena include?   Every 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 place.

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NEW SECTION
WAC 357-52-250   How must a subpoena be served?   (1) 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.

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NEW SECTION
WAC 357-52-255   Which discovery procedures must a party follow?   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.

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NEW SECTION
WAC 357-52-260   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.

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NEW SECTION
WAC 357-52-265   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 may:

(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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