WSR 97-08-090

PROPOSED RULES

PERSONNEL RESOURCES BOARD

[Filed April 2, 1997, 11:37 a.m.]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: WAC 251-01-045 Board, 251-01-110 Director, 251-04-040 Exemptions, 251-04-050 Higher Education Personnel Board, 251-10-030 Layoff, 251-12-270 Superior court appeals--Grounds--Notice requirements, 251-12-600 Remedial action, and 251-20-020 Employee performance evaluation--Forms.

Purpose: These rules pertain to the definition of board and director, exemptions from Title 251 WAC, Higher Education Board, layoff, notice requirements to superior court, remedial action and employee performance evaluation forms.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Statute Being Implemented: RCW 41.06.150.

Summary: The revisions are for clarification and the repealers remove duplicative language. All are housekeeping in nature.

Name of Agency Personnel Responsible for Drafting: Sharon Peck, 521 Capitol Way South, Olympia, WA, (360) 753-0468; Implementation and Enforcement: Department of Personnel.

Name of Proponent: Department of Personnel, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: These rules pertain to the definition of the director and the board; exemptions from Title 251 WAC; layoff, notice requirements for superior court; remedial action and employee performance evaluation forms. These revisions and repealers are necessary in order to clarify and reflect the current title of the board and director; remove duplicative language pertaining to exemptions; and remove duplicative language of the statute of the former Higher Education Personnel Board, which was repealed. These revisions and repealers will clarify existing language and remove duplicative language.

Proposal Changes the Following Existing Rules: See above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Pursuant to RCW 34.05.328(5) the Department of Personnel is not an agency subject to the provisions of RCW 34.05.328 (1)-(4). In addition, under RCW 34.05.328 (5)(b)(ii), these rules relate to internal governmental operations that are not subject to violation by a nongovernmental party.

Hearing Location: Department of Personnel, 521 Capitol Way South, Olympia, WA, on May 8, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Department of Personnel by May 1, 1997, TDD (360) 753-4107, or (360) 586-0509.

Submit Written Comments to: Sharon Peck, Department of Personnel, P.O. Box 47500, FAX (360) 586-4694, by May 6, 1997.

Date of Intended Adoption: May 8, 1997.

April 2, 1997

Dennis Karras

Secretary

AMENDATORY SECTION (Amending WSR 86-09-078 (Order 147), filed 4/22/86)

WAC 251-01-045 Board. ((The higher education personnel board established under the provisions of the higher education personnel law.)) The Washington personnel resources board.

[Statutory Authority: RCW 28B.16.100. 86-09-078 (Order 147), 251-01-045, filed 4/22/86.]

AMENDATORY SECTION (Amending WSR 87-21-089 (Order 163), filed 10/21/87)

WAC 251-01-110 Director. ((The director of the higher education personnel board. The director may delegate in writing his/her authority to a higher education personnel board staff member.)) The director of the department of personnel.

[Statutory Authority: RCW 28B.16.100. 87-21-089 (Order 163), 251-01-110, filed 10/21/87; 86-09-078 (Order 147), 251-01-110, filed 4/22/86.]

AMENDATORY SECTION (Amending WSR 94-16-049, filed 7/27/94, effective 9/1/94)

WAC 251-04-040 Exemptions. The following classifications, positions, and employees of higher education institutions/related boards are hereby exempted from coverage of this chapter.

(1) Members of the governing board of each institution/related board; all presidents, vice-presidents and their confidential secretaries, administrative and personal assistants; deans, directors, and chairs; academic personnel; executive heads of major administrative or academic divisions employed by institutions of higher education; principal assistants to executive heads of major administrative or academic divisions; other managerial or professional employees in an institution or related board having substantial responsibility for directing or controlling program operations and accountable for allocation of resources and program results, or for the formulation of institutional policy, or for carrying out personnel administration or labor relations functions, legislative relations, public information, development, senior computer systems and network programming, or internal audits and investigations; and any employee of a community college district whose place of work is one which is physically located outside the state of Washington and who is employed pursuant to RCW 28B.50.092 and assigned to an educational program operating outside of the state of Washington.

(2) Students employed by the institution at which they are enrolled (or related board) and who either:

(a) Work five hundred sixteen hours or less in any six consecutive months, exclusive of hours worked in a temporary position(s) during the summer and other breaks in the academic year, provided such employment does not:

(i) Take the place of a classified employee laid off ((due to lack of funds or lack of work)); or

(ii) Fill a position currently or formerly occupied by a classified employee during the current or prior calendar or fiscal year, whichever is longer;

(b) Are employed in a position directly related to their major field of study to provide training opportunity; or

(c) Are elected or appointed to a student body office or student organization position such as student officers or student news staff members.

(3) Students participating in a documented and approved programmed internship which consists of an academic component and work experience.

(4) Students employed through the state or federal work/study programs.

(5) Persons employed to work one thousand fifty hours or less in any twelve consecutive month period from the original date of hire or October 1, 1989, whichever is later. Such an appointment may be subject to remedial action in accordance with WAC 251-12-600, if the number of hours worked exceeds one thousand fifty hours in any twelve consecutive month period from the original date of hire or October 1, 1989, whichever is later, exclusive of overtime or work time as described in subsection (2) of this section.

(6) Part-time professional consultants retained on an independent part-time or temporary basis such as physicians, architects, or other professional consultants employed on an independent contractual relationship for advisory purposes and who do not perform administrative or supervisory duties.

(7) The director, his confidential secretary, assistant directors, and professional education employees of the state board for community college education.

(8) The personnel director of the higher education personnel board and his confidential secretary.

(9) The governing board of each institution/related board may also exempt from this chapter, subject to the employee's right of appeal to the higher education personnel board, classifications involving research activities, counseling of students, extension or continuing education activities, graphic arts or publications activities requiring prescribed academic preparation or special training, as determined by the higher education personnel board: Provided, That no nonacademic employee engaged in office, clerical, maintenance, or food and trades services may be exempted by the higher education personnel board under this provision.

(10) Any employee who believes that any classification should or should not be exempt, or any employee because of academic qualifications which would enable such employee to teach and thus be exempt, may appeal to the board in the same manner as provided in WAC 251-12-080, et seq.

(11) Any classified employee having civil service status in a classified position who accepts an appointment in an exempt position shall have the right of reversion to the highest class of position previously held, or to a position of similar nature and salary. Application for return to classified service must be made not later than thirty calendar days following the conclusion of the exempt appointment. A person occupying an exempt position who is terminated from the position for gross misconduct or malfeasance does not have the right of reversion to a classified position as provided for in this section.

(12) When action is taken to convert an exempt position to classified status, the effect upon the incumbent of such position shall be as provided in WAC 251-19-160.

[Statutory Authority: Chapter 41.06 RCW and 41.06.150. 94-16-049, 251-04-040, filed 7/27/94, effective 9/1/94. Statutory Authority: RCW 41.06.040 and 41.06.150. 94-02-031, 251-04-040, filed 12/29/93, effective 2/1/94; 93-19-147 (Order 432), 251-04-040, filed 9/22/93, effective 10/23/93. Statutory Authority: RCW 28B.16.100. 90-17-037, 251-04-040, filed 8/10/90, effective 10/1/90; 90-06-023, 251-04-040, filed 2/28/90, effective 4/1/90. Statutory Authority: RCW 28B.16.100, 28B.16.040(2) and 70.24.300. 90-01-007, 251-04-040, filed 12/7/89, effective 1/7/90. Statutory Authority: RCW 28B.16.100. 89-13-074 (Order 179), 251-04-040, filed 6/21/89, effective 10/1/89; 88-15-023 (Order 170), 251-04-040, filed 7/12/88; 88-02-017 (Order 164), 251-04-040, filed 12/30/87, effective 2/1/88; 87-02-036 (Order 154), 251-04-040, filed 1/2/87, effective 2/1/87; 84-16-067 (Order 119), 251-04-040, filed 7/31/84; 82-16-002 (Order 98), 251-04-040, filed 7/22/82, effective 9/1/82; 82-04-069 (Order 93), 251-04-040, filed 2/3/82; 78-10-090 (Order 70), 251-04-040, filed 9/29/78, effective 11/1/78; Order 64, 251-04-040, filed 12/23/77, effective 1/23/78; Order 63, 251-04-040, filed 11/22/77, effective 12/22/77; Order 61, 251-04-040, filed 8/30/77, effective 10/1/77; Order 10, 251-04-040, filed 12/16/71; Order 4, 251-04-040, filed 2/19/71; Order 1, 251-04-040, filed 9/15/69.]

AMENDATORY SECTION (Amending WSR 96-11-063, filed 5/10/96, effective 6/6/96)

WAC 251-04-050 Higher education personnel board. (1) ((The higher education personnel board is composed of three members appointed by the governor, subject to confirmation by the senate. Each odd-numbered year the governor shall appoint a member for a six-year term. Persons so appointed shall have clearly demonstrated an interest and belief in the merit principle, shall not hold any other employment with the state, shall not have been an officer of a political party for a period of one year immediately prior to such appointment, and shall not be or become a candidate for partisan elective public office during the term to which they are appointed.)) Wherever higher education personnel board, personnel board, and/or board is mentioned in these rules, it shall mean the Washington personnel resources board.

(2) ((Each member of the board is eligible to receive compensation in an amount not to exceed one hundred dollars for each day during which the member attends an official meeting of the board or performs statutorily prescribed duties approved by the chairperson of the board. The members of the board may receive any number of daily payments for official meetings of the board actually attended. Members of the board shall also be reimbursed for necessary travel and other expenses incurred in the discharge of their official duties on the same basis as is provided for state officers and employees generally, in accordance with RCW 43.03.050 and 43.03.060.)) Wherever Chapter 28B.16 RCW is mentioned in these rules, it shall mean Chapter 41.06 RCW.

(((3) At its first meeting following the appointment of all its members, and annually thereafter, the board shall elect a chairman and vice chairman from among its members to serve one year. The presence of at least two members of the board shall constitute a quorum to transact business. A written public record shall be kept by the board of all actions of the board.

(4) In the necessary conduct of its work, the board shall meet monthly unless there is no pending business requiring board action. Meetings shall be held on campuses of the various state institutions of higher education. Meetings may be called by the chairman of the board, or a majority of the members of the board. Hearings may be conducted by a hearing officer duly appointed by the board. An official notice of the calling of a hearing shall be filed with the director and all members of the board shall be notified.

(5) No release of material, or statement of findings shall be made except with the approval of a majority of the board.

(6) In the conduct of hearings or investigations, a member of the board, or the director, or the hearing officer appointed to conduct the hearing, may administer oaths.

(7) It shall be the duty of the board to promulgate rules and regulations providing for employee participation in the development and administration of personnel policies. To assure this right, personnel policies, rules, classification and pay plans, and amendments thereto, shall be acted on only after the board has given twenty calendar days' notice to, and considered proposals from employee representatives and institutions/related boards affected. In matters involving the various state community colleges, notice shall also be given to the state board for community college education. Complete and current compilations of all rules and regulations of the board in printed, mimeographed, or multigraphed form shall be available from the board without charge.

(8) The higher education personnel board shall adopt rules, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis and procedures to be followed for:

(a) The dismissal, suspension, or demotion of an employee, and appeals therefrom;

(b) Certification of names for vacancies, including promotions, with the number of names equal to six more names than there are vacancies to be filled, such names representing applicants rated highest on eligibility lists;

(c) Examination for all positions in the competitive and noncompetitive service;

(d) Appointments;

(e) Probationary periods of six to twelve months and rejections therein depending on the job requirements of the class;

(f) Transfers;

(g) Sick leaves and vacations;

(h) Hours of work;

(i) Layoffs when necessary and subsequent reemployment according to seniority;

(j) Determination of appropriate bargaining units within any institution or related board: Provided, That in making such determination the board shall consider the duties, skills, and working conditions of the employees, the history of collective bargaining by the employees and their bargaining representatives, the extent of organization among the employees and the desires of the employees;

(k)Certification and decertification of exclusive bargaining representatives;

(l) Agreements between institutions or related boards and certified exclusive bargaining representatives providing for grievance procedures and collective negotiations on all personnel matters over which the institution/related board may lawfully exercise discretion; written agreements may contain provisions for payroll deductions of employee organization dues upon authorization by the employee member and for the cancellation of such payroll deduction by the filing of a proper prior notice by the employee with the appointing authority and the employee organization: Provided, That nothing contained herein permits or grants to any employee the right to strike or refuse to perform his/her official duties;

(m) Adoption and revision of comprehensive classification plans for all positions in the classified service, based on investigation and analysis of the duties and responsibilities of each such position: In adopting these revisions the board shall comply with Senate Bill S 6767 of 1996, RCW 41.06.150(15), and chapter 43.88 RCW;

(n) Allocation and reallocation of positions within the classification plans;

(o) Adoption and revision of salary schedules and compensation plans as provided in chapter 251-08 WAC;

(p) Training programs including in-service, promotional, and supervisory;

(q) Increment increases within the series of steps for each pay grade; and

(r) Veteran's preference as provided by existing statutes.

(9) After consultation with institution heads, employee organizations, and other interested parties, the board shall develop standardized employee performance evaluation procedures and forms which shall be used by institutions of higher education for the appraisal of employee job performance at least annually. These procedures shall include means whereby individual institutions may supplement the standardized evaluation process with special performance factors peculiar to specific organizational needs. This evaluation procedure shall place primary emphasis on recording how well the employee has contributed to efficiency, effectiveness, and economy in fulfilling institution and job objectives.))

[Statutory Authority: RCW 41.06.150. 96-11-063, 251-04-050, filed 5/10/96, effective 6/6/96; 95-19-055, 251-04-050, filed 9/15/95, effective 10/16/95. Statutory Authority: RCW 41.06.040 and 41.06.150. 93-19-147 (Order 432), 251-04-050, filed 9/22/93, effective 10/23/93. Statutory Authority: RCW 28B.16.100. 86-09-077 (Order 149), 251-04-050, filed 4/22/86, effective 6/1/86. Statutory Authority: Chapter 28B.16 RCW. 85-20-048 (Order 135), 251-04-050, filed 9/25/85, effective 11/1/85. Statutory Authority: RCW 28B.16.100. 84-12-047 (Order 117), 251-04-050, filed 6/1/84; 82-16-002 (Order 98), 251-04-050, filed 7/22/82, effective 9/1/82; Order 61, 251-04-050, filed 8/30/77, effective 10/1/77; Order 1, 251-04-050, filed 9/15/69.]

AMENDATORY SECTION (Amending WSR 96-13-078, filed 6/18/96, effective 8/1/96)

WAC 251-10-030 Layoff. (1) An appointing authority may layoff or reduce the number of working hours or the work year of an employee without prejudice because of lack of funds or lack of work and/or for good faith reorganization for efficiency purposes.

(2) Each institution shall develop for approval by the director a layoff procedure based upon layoff seniority as defined in WAC 251-01-245, to include as a minimum:

(a) Clearly defined layoff unit(s), in order to minimize the disruption of an institution's total operation, and

(b) Provision for veterans preference for eligible veterans and their unmarried widows/widowers as defined in WAC 251-10-045.

(3) A permanent status employee scheduled for layoff shall receive written notice of any available options in lieu of layoff as provided in subsections (5) and (6) of this section. The employee shall be given no less than three working days to select an option, if available, or to elect to be laid off and/or be placed on the appropriate institution-wide layoff list(s).

(4) Written notice of at least fifteen calendar days must be given to the employee after he/she has selected one of the options or upon completion of the option period.

(5) Within the layoff unit, a permanent status employee scheduled for layoff shall be offered employment options to position(s):

(a) For which he/she meets any specific position requirements;

(b) Which are comparable, as determined by the personnel officer; and

(c) Which are in:

(i) Class(es) in which the employee has held permanent status which have the same or lower salary range maximum as the current class;

(ii) Lower class(es) in those same class series for which the employee is qualified.

The employee may exercise either option subsection (5)(c)(i) or (ii) of this section provided that the employee being replaced is the least senior in a comparable position in the class and has less layoff seniority than the employee replacing him/her. A vacant position, if available, should be considered to be the position in the class held by the least senior person. The employee may elect to have access to less-than-comparable positions by so notifying the personnel officer in writing.

(6) Except as provided in WAC 251-10-035, a permanent employee scheduled for layoff who has no options available under subsection (5) of this section shall be offered position(s) as follows:

(a) The personnel officer will offer in writing not less than three positions from among the highest available classes (unless the total available is less than three); provided that any position(s) offered must be:

(i) At the same level or lower than the class from which the employee is being laid off; and

(ii) Vacant or held by a provisional, temporary, or probationary employee; and

(iii) In a class for which the employee being laid off meets the minimum qualifications and can pass the appropriate qualifying examination.

(b) The employee will be required to indicate within three working days his/her interest in a specific class(es) so that the personnel officer may schedule the appropriate examination(s).

(c) Upon satisfactory completion of the examination(s) the employee will be offered option(s) to specific position(s), including salary information.

(d) Employees appointed to positions through provisions of this subsection will be required to serve a trial service period.

(7) In order to be offered a layoff option or return from layoff to a position for which specific position requirements have been documented in accordance with WAC 251-18-255(1), the employee must demonstrate a satisfactory level of knowledge, skill, or ability on the specific position requirements.

(8) In a layoff action involving a position for which a particular sex is a bona fide occupational requirement, as approved by the Washington state human rights commission, the most senior employee meeting the occupational requirements may be retained in the position over more senior employees in such class who do not meet the occupational requirement.

(9) When it is determined that layoffs will occur within a unit, the personnel officer will:

(a) Provide a copy of the institution's reduction in force procedure to all employees subject to layoff;

(b) Advise each employee in writing of available options in lieu of layoff;

(c) Advise each employee in writing of the specific layoff list(s) upon which he/she may be placed as required per WAC 251-10-055 and 251-10-035;

(d) Provide information about the process by which the employee may make application for state-wide layoff lists, as required per WAC 251-10-060(7);

(e) Advise each employee in writing of the right to appeal his/her layoff to the personnel appeals board per WAC 251-12-080.

(10) Layoff actions for employees of special employment programs as identified in WAC 251-19-150 shall be administered as provided in WAC 251-10-035.

[Statutory Authority: RCW 41.06.150 and chapter 41.06 RCW. 96-13-078, 251-10-030, filed 6/18/96, effective 8/1/96. Statutory Authority: RCW 28B.16.100. 93-01-155, 251-10-030, filed 12/23/92, effective 2/1/93; 88-22-057 (Order 174), 251-10-030, filed 11/1/88; 88-02-017 (Order 164), 251-10-030, filed 12/30/87, effective 2/1/88; 87-02-036 (Order 154), 251-10-030, filed 1/2/87, effective 2/1/87; 85-16-038 (Order 134), 251-10-030, filed 7/31/85, effective 9/1/85; 82-07-074 (Order 94), 251-10-030, filed 3/23/82; 79-07-096 (Order 76), 251-10-030, filed 6/29/79, effective 8/1/79; 79-03-029 (Order 71), 251-10-030, filed 2/27/79, effective 4/2/79; Order 61, 251-10-030, filed 8/30/77, effective 10/1/77; Order 44, 251-10-030, filed 6/25/75; Order 41, 251-10-030, filed 3/17/75; Order 35, 251-10-030, filed 7/23/74; Order 32, 251-10-030, filed 3/19/74; Order 8, 251-10-030, filed 6/17/71, effective 7/19/71; Order 4, 251-10-030, filed 2/19/71; Order 1, 251-10-030, filed 9/15/69.]

REPEALER

WAC 251-12-270 Superior court appeals--Grounds--Notice requirements.

AMENDATORY SECTION (Amending WSR 90-01-007, filed 12/7/89, effective 1/7/90)

WAC 251-12-600 Remedial action. (1) The director may take remedial action when it is determined that the following conditions exist.

(a) The hiring institution has made an appointment that does not comply with higher education personnel board rules.

(b) The employee has worked in one or more positions for more than one thousand fifty hours in any twelve consecutive month period since the original hire date or October 1, 1989, whichever is later. (These hours do not include overtime or work time as described in WAC 251-04-040(2).)

(c) The position or positions are subject to civil service.

(d) The employee has not taken part in any willful failure to comply with these rules.

(2) Remedial action includes the power to confer permanent status, set salary, establish seniority, and determine benefits accrued from the seniority date. Remedial action also includes other actions the director may require to meet the highest personnel standards.

(3) If the institution has complied with WAC 251-19-122, the employee must:

(a) Submit any request for remedial action in writing; and

(b) File the request within thirty calendar days after the effective date of the alleged violation of the conditions of employment which are to be specified in the written notification of temporary appointment.

(4) The director's order for remedial action shall be final and binding unless exceptions are filed with the personnel appeals board within thirty calendar days of the date of service of the order. Exceptions must state the specific items of the order to which exception is taken. The personnel appeals board will review the exceptions and may hold a hearing prior to modifying or affirming the director's order.

[Statutory Authority: RCW 28B.16.100, 28B.16.040(2) and 70.24.300. 90-01-007, 251-12-600, filed 12/7/89, effective 1/7/90. Statutory Authority: RCW 28B.16.100. 89-13-074 (Order 179), 251-12-600, filed 6/21/89, effective 10/1/89; 88-22-057 (Order 174), 251-12-600, filed 11/1/88; 81-24-019 (Order 92) 251-12-600, filed 11/24/81, effective 1/1/82; 79-03-029 (Order 71), 251-12-600, filed 2/27/79, effective 4/2/79; Order 61, 251-12-600, filed 8/30/77, effective 10/1/77.]

AMENDATORY SECTION (Amending WSR 84-16-067 (Order 119), filed 7/31/84)

WAC 251-20-020 Employee performance evaluation--Forms. (1) Standardized performance evaluation forms approved by the ((board)) director shall be used to record employee evaluations. The forms shall contain standard "rating factors" and shall provide for one or more "optional factors" developed by the institution, which reflect organizational requirements and specific job-related aspects of performance.

(2) The approved forms shall accommodate the provisions of WAC 251-20-040.

(3) The approved forms may be supplemented with other forms and/or information used by an institution to support the ratings recorded on the approved forms.

[Statutory Authority: RCW 28B.16.100. 84-16-067 (Order 119), 251-20-020, filed 7/31/84; 78-06-068 (Order 68), 251-20-020, filed 5/25/78, effective 7/1/78.]

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