PROPOSED RULES
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule and Other Identifying Information: WAC 357-49-010 For what actions may an individual request a director's review?, 357-49-017 When is a director's review part of the appeal process?, 357-49-018 Does an individual or an employer have the right to appeal the results of a director's review to the board?, 357-49-019 What civil service rules govern the director's review process?, 357-49-022 Who has the burden of proof in a director's review?, 357-49-025 How must exhibits for director's reviews be prepared and exchanged?, 357-49-035 When does a director's determination become final?, 357-52-010 What actions may be appealed?, 357-52-190 What must be included in a party's written exceptions to a recommended decision?, and 357-52-193 What must be included in a party's written exceptions to a director's determination?
Hearing Location(s): Department of Personnel, Classroom #4, 600 South Franklin, Olympia, WA, on September 8, 2005, at 10:00 a.m.
Date of Intended Adoption: September 8, 2005.
Submit Written Comments to: Sandi Stewart, Department of Personnel, P.O. Box 47500, fax (360) 586-4694 (FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT"), by September 1, 2005.
Assistance for Persons with Disabilities: Contact Department of Personnel by September 1, 2005, TTY (360) 753-4107 or (360) 586-8260.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to:
• Modify WAC 357-49-010 and 357-52-010 to clarify that an employee may appal layoff actions directly to the board without requesting a director's review.
• Create new rules (WAC 357-49-017, 357-49-018, and 357-49-019) to clarify that the director's review is part of the appeal process and that director's reviews are governed by chapter 357-49 WAC.
• Create a new rule (WAC 357-49-022) to identify who has the burden of proof in a director's review.
• Create a new rule (WAC 357-49-025) to describe how exhibits must be prepared and exchanged during a director's review.
• Create a new rule (WAC 357-49-035) to specify when a director's determination becomes final.
• Modify WAC 357-52-190 to clarify that the rule is addressing exceptions to recommended decisions.
• Create a new rule (WAC 357-52-193) to address what must be contained in the written exceptions to the director's determination.
Statutory Authority for Adoption: Chapter 41.06 RCW.
Statute Being Implemented: RCW 41.06.133, 41.06.150, and 41.06.170.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of Personnel, governmental.
Name of Agency Personnel Responsible for Drafting: Sandi Stewart, 521 Capitol Way South, Olympia, WA, (360) 664-6324; Implementation and Enforcement: Department of Personnel.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.
A cost-benefit analysis is not required under RCW 34.05.328.
August 1, 2005
Eva N. Santos
Director
(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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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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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(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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(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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(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.]
[Statutory Authority: Chapter 41.06 RCW. 05-01-191, § 357-52-190, filed 12/21/04, effective 7/1/05.]
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