WSR 05-19-011

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed September 8, 2005, 4:13 p.m. , effective October 10, 2005 ]


Purpose: The purpose of these rules is to address director's reviews.

Citation of Existing Rules Affected by this Order: Amending WAC 357-49-010, 357-52-010, and 357-52-190.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Adopted under notice filed as WSR 05-16-092 on August 2, 2005.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 7, Amended 3, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 7, Amended 3, Repealed 0.

Date Adopted: September 8, 2005.

Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 05-12-082, filed 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.]


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 types 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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NEW SECTION
WAC 357-49-019   What civil service rules govern the director's review process?   Chapter 357-49 WAC governs the process under which director's reviews are conducted.

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NEW SECTION
WAC 357-49-022   Who has the burden of proof in a director's review?   The individual or employee requesting the director's review has the burden of proof in a director's review.

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NEW SECTION
WAC 357-49-025   How must exhibits for director's reviews be prepared and exchanged?   (1) When exhibits are submitted for any director's review, one copy must be provided for the director or designee and one copy must be provided to the opposing party.

(2) For allocation reviews, employees must submit all exhibits through the employer's human resource office. The employer's human resource representative is responsible for forwarding all exhibits to the director or designee within the time frames set by the director or designee.

(3) For all other director's reviews, the party submitting the exhibit is responsible for providing copies to the director or designee and opposing party within the time frames set by the director or designee.

(4) The parties must pre-mark their exhibits for identification before they are provided to the opposing party and submitted to the director or designee.

(5) The director or designee may limit the number, scope and timing of exhibits.

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NEW SECTION
WAC 357-49-035   When does a director's determination become final?   (1) Director review decisions regarding the removal of an individual's name from an applicant or candidate pool or an individual's examination results are not subject to further review or appeal and become final when notice of the determination is served on the parties.

(2) For all other director's determinations, if no exceptions are filed, the determination becomes final thirty calendar days after notice of the determination is served on the parties.

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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.]


AMENDATORY SECTION(Amending WSR 05-01-191, filed 12/21/04, effective 7/1/05)

WAC 357-52-190   What must be included in a party's written exceptions to a recommended decision?   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.

[Statutory Authority: Chapter 41.06 RCW. 05-01-191, 357-52-190, filed 12/21/04, effective 7/1/05.]


NEW SECTION
WAC 357-52-193   What must be included in a party's written exceptions to a director's determination?   The written exceptions must set forth specific exceptions to the director's determination and any additional errors a party contends were made by the director's designee. The party must identify the specific portion(s) of the record that support each exception or claimed error.

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Washington State Code Reviser's Office