WSR 05-16-067

EMERGENCY RULES

DEPARTMENT OF PERSONNEL


[ Filed July 29, 2005, 4:57 p.m. , effective July 29, 2005 ]


Purpose: WAC 357-49-010 specifies what actions are subject to review by the Department of Personnel (DOP) director. WAC 357-49-017 identifies when the director's review process is the initial step of the appeal process. WAC 357-49-018 identifies what actions are subject to appeal to the Personnel Resources Board and Personnel Appeals Board. WAC 357-52-010 specifies what actions are subject to appeal to the Personnel Resources Board and Personnel Appeals Board.

Citation of Existing Rules Affected by this Order: Amending WAC 357-49-010 and 357-52-010.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The amendments to WAC 357-49-010 and 357-52-010 are necessary to clarify that an employee's appeal of a layoff action must be filed directly with the board and not subject to a review by the DOP director. The new sections of WAC 357-49-017 and 357-49-018 are necessary to clarify when a director's review is part of the appeal process and when the results of director's reviews may be appealed to the board on an exceptions basis. These clarifications are necessary to insure that civil service employees are afforded the appeal rights guaranteed to them under RCW 41.06.170 and that the director's review process does not result in an employee's appeal to the board being challenged as untimely.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 2, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: July 29, 2005.

Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 05-01-190 [05-12-082], filed 12/21/04 [5/27/05], effective 7/1/05)

WAC 357-49-010   For what actions may an individual request a director's review?   (1) If the department is responsible for the assessment process, an applicant or candidate may request a director's review of his/her examination results or the removal of his/her name from an applicant or candidate pool as specified in WAC 357-16-175. Director review decisions regarding the removal of an individual's name from an applicant or candidate pool or an individual's examination results are final and not subject to further review or appeal.

(2) An individual may request a director's review of the removal of his/her name from a layoff list as specified in WAC 357-46-145.

(3) An employee may request a director's review of the following:

(a) Allocation or reallocation per WAC 357-13-080; or

(b) Performance evaluation process or procedure per WAC 357-37-080.

(4) In addition to the subject((s)) listed in section (2) of this rule, an employee may request a director's review of an alleged violation of the civil service laws or rules within thirty calendar days of the date the employee could reasonably be expected to have knowledge of the action giving rise to a law or rule violation claim or the stated effective date, whichever is later. An employee may not request a director's review of:

(a) ((a))Allegations arising from the development and adoption of the classification plan under the provisions of WAC 357-10-020:

(b) An alleged violation of civil service laws or rules pertaining to layoff, except for removal of his/her name from a layoff list as provided in subsection 2 of this section: or

(c) ((t))The actions of reduction, dismissal, suspension, demotion or separation.

(5) An individual may request the director review his/her request for remedial action per WAC 357-19-430 or 357-19-450. Requests for remedial action must be received within thirty calendar days of the date the individual could reasonably be expected to have knowledge of the action giving rise to violation of the nonpermanent appointment or temporary appointment rules.

[Statutory Authority: Chapter 41.06 RCW. 05-12-082, 357-49-010, filed 5/27/05, effective 7/1/05; 05-01-182, 357-49-010, filed 12/21/04, effective 7/1/05.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
NEW SECTION
WAC 357-49-017   When is a director's review part of the appeal process?   When an individual requests a director's review for any of the following type of actions, the director's review constitutes the initial step of the appeal process:

(1) Review of an employee's allocation or reallocation per WAC 357-13-080;

(2) Review of an alleged violation of civil service law or rules per WAC 357-49-010 (2) and (4); and

(3) Review of a remedial action request per WAC 357-49-010(5).

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NEW SECTION
WAC 357-49-018   Does an individual or an employer have the right to appeal the results of a director's review to the Board?   Except as provided in WAC 357-49-010(1), either party may appeal the results of the director's review to the board by filing written exceptions to the director's determination in accordance with chapter 357-52 WAC. In accordance with WAC 357-52-010, written exceptions for appeals of allocation or reallocation are filed:

(1) Through December 31, 2005, with personnel appeals board; and

(2) As of January 1, 2006, with personnel resources board.

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AMENDATORY SECTION(Amending WSR 05-01-190, filed 12/21/04, effective 7/1/05)

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 as follows:

(a) For a violation of state civil service law or rules relating to a layoff action, excluding removal from a layoff list, the employee may appeal directly to the board.

(b) For a violation of state civil service law or rules relating to any other subject, including removal from a layoff list, the employee or 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.

[Statutory Authority: Chapter 41.06 RCW. 05-01-190, 357-52-010, filed 12/21/04, effective 7/1/05.]

Washington State Code Reviser's Office