Personnel Rules

CHAPTER Per 200 PROCEDURAL RULES

PART Per 201 RULEMAKING

Per 201.01 Petitions for Rulemaking.

(a) Pursuant to RSA 541-A: 4, any person may petition the director to adopt, amend, or repeal a rule.

(b) The petition shall be in writing and shall be addressed to the director.

(c) The petition shall:

(1) Be signed by the petitioner;

(2) Contain a draft of the proposed rule change; and

(3) State at a minimum:

a. The name and address of the individual petitioner or, if the request is that of an organization or other entity, the identity of such organization or entity and the name and address of the representative authorized by the entity to file the petition;

b. The purpose of the petition, whether the adoption, amendment or repeal of a rule;

c. If amendment or adoption of a rule is sought, the text proposed;

d. If amendment or repeal of a rule is sought, identification of the current rule sought to be amended or repealed; and

e. The statutory provision that authorizes or supports the rulemaking petition.

(d) The director shall respond to a completed petition within 30 days by either denying the petition in writing and stating the reasons for the denial or by initiating a rulemaking proceeding under RSA 541-A: 4.

(e) In accordance with the director’s sole authority to adopt rules pursuant to RSA 21-I: 43, I, the petition shall be denied unless the director concludes that to grant the petition is desirable in order to fulfill the functions of the division in accordance with the law.

(f) The denial of a petition for rulemaking shall not entitle the petitioner to a hearing.

Source. (See Revision Notes at chapter heading for Per 100) #8736, eff 10-18-06

PART Per 202 PUBLIC COMMENT HEARINGS

Per 202.01 Purpose. The purpose of this part is to provide procedures for the conduct of public comment hearings held pursuant to RSA 541-A:11, I - V.

Source. (See Revision Notes at chapter heading for Per 100) #8736, eff 10-18-06

Per 202.02 Public Access and Participation.

(a) Public comment hearings shall be open to the public and members of the public shall be entitled to testify, subject to the limitations of Per 202.03.

(b) People who wish to testify shall be asked to write on the speaker's list:

(1) Their full names and addresses; and

(2) The names and addresses of organizations, entities or other persons whom they represent, if any.

(c) Written or electronic comments, which may be submitted in lieu of or in addition to oral testimony, shall be accepted for 10 days after the adjournment of a hearing or after the adjournment of a postponed or continued hearing.

Source. (See Revision Notes at chapter heading for Per 100) #8736, eff 10-18-06

Per 202.03 Limitations on Public Participation. The director or person designated by the director to preside over a hearing shall refuse to recognize for speaking or revoke the recognition of any person who:

(a) Speaks or acts in an abusive or disruptive manner;

(b) Fails to keep comments relevant to the proposed rules that are the subject matter of the hearing; or

(c) Restates more than once what he or she, or the entity upon whose behalf he or she is speaking, has already stated.

Source. (See Revision Notes at chapter heading for Per 100) #8736, eff 10-18-06

Per 202.04 Conduct of Public Comment Hearings.

(a) Public comment hearings shall be presided over by the director or a designee of the director who is knowledgeable in the subject area of the proposed rules.

(b) Public comment hearings shall be conducted in accordance with RSA 541-A:11.

Source. (See Revision Notes at chapter heading for Per 100) #8736, eff 10-18-06

PART Per 203 DECLARATORY RULINGS

Per 203.01 Requests for Declaratory Ruling.

(a) Any person may petition the director in writing for a declaratory ruling concerning the applicability of a rule or statute to a specific set of circumstances.

(b) The petition shall be addressed to the director and shall be signed by the petitioner.

(c) The petition shall cite the rule or statute in question and explain why the language of the rule or statute makes its applicability unclear to the circumstances of the petitioner's case.

(d) The director shall respond within 120 days to a petition for a declaratory ruling by stating whether or not the rule or statute at issue applies to the specific set of circumstances presented.

Source. (See Revision Notes at chapter heading for Per 100) #8736, eff 10-18-06

PART Per 204 EXPLANATION OF ADOPTED RULES

Per 204.01 Requests for Explanation of Adopted Rules. Pursuant to RSA 541-A: 11, VII, any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the director including:

(a) The name and address of the person making the request; or

(b) If the request is that of an organization or other entity, the name and address of such organization or entity and the name and address of the representative authorized by the organization or entity to make the request.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 204.02 Contents of Explanation. The director shall, within 90 days of receiving a request in accordance with Per 204.01, provide a written response which:

(a) Concisely states the meaning of the rule adopted;

(b) Concisely states the principal reasons for and against the adoption of the rule in its final form; and

(c) States, if applicable, why the director did not accept arguments and considerations presented against the rule.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

PART Per 205 SETTLEMENT OF DISPUTES

Per 205.01 Definitions. For the purposes of this part, the following definitions shall apply:

(a) "Supervisor" means the person who:

(1) Signs the employee's supplemental job description under Per 301.03(d)(12); and

(2) Is designated by the appointing authority as being responsible for affirming, amending, or rescinding the action in dispute.

(b) “Division director” means the person in charge of a division as defined by RSA 21-G: 5, VII, or, if an agency is not organized according to the structure set forth in RSA 21-G, the person in the agency, if any, whose position most closely approximates that of the director of a division under RSA 21-G: 5, VII.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.02 Informal Settlement Prior to Appeal to the Board.

(a) In accordance with RSA 541-A: 38, the director may resolve issues of conflict concerning the application of personnel rules through the process of informal settlement established in this part, except:

(1) Matters not subject to the informal settlement process under Per 205.08; and

(2) Matters provided in RSA 21-I: 57, relating to classification decisions of the director.

(b) An informal settlement shall not be substituted for a full appeal to the board under RSA 21-I: 58 unless an agreement is reached which is satisfactory to all affected parties.

(c) Upon request, the director shall apply the process of informal settlement to resolve disputes pertaining to the following decisions:

(1) Decisions of the director relative to the application of the personnel rules; and

(2) Decisions by appointing authorities relative to the application of the personnel rules.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.03 Process of Informal Settlement.

(a) Before the director conducts a review of a dispute involving the application of personnel rules pursuant to Per 205.07, the following steps shall take place within the employee's agency:

(1) Step I, involving a decision by employee's supervisor, as described in Per 205.04;

(2) Step II, involving a decision by the employee’s division director, if applicable, as described in Per 205.05; and

(3) Step III, involving a decision by the appointing authority, as described in Per 205.06.

(b) An employee seeking resolution of a dispute may choose any person as the employee's representative, and that person shall be recognized as the employee's representative in all meetings concerning resolution of the dispute.

(c) For the purposes of Per 205.04 through Per 205.07, notification provided to the employee shall also be provided to the employee’s chosen representative, if any.

(d) An employee seeking resolution of a dispute may forego one or more of the steps noted in Per 205.03 (a) and begin the process of informal settlement at the next higher step if:

(1) One or more of the lower steps at which a determination would otherwise have been made does not exist within the agency; or

(2) The person making the determination at a higher step in the process is also the person who would make a determination at a lower step in the process.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.04 Step I Process - Decision by Employee's Supervisor.

(a) The employee shall present a detailed written description of the basis for the dispute to the supervisor within 15 calendar days of the action in dispute.

(b) Within 15 calendar days of receiving the written statement, the supervisor shall notify the employee in writing of the decision to:

(1) Modify, reverse or otherwise amend the action in dispute;

(2) Affirm the decision and refer the dispute to step II or step III; or

(3) Schedule a meeting of the employee and the supervisor for further review of the dispute.

(c) If further review of the dispute is conducted under (b) (3) above, the supervisor shall, within 15 calendar days of the meeting, notify the employee in writing of the decision to:

(1) Modify, reverse or otherwise amend the action in dispute; or

(2) Affirm the action in dispute.

(d) Nothing in this section shall prohibit the employee and the supervisor from agreeing, in writing, to extend the time limits established herein.

(e) If the supervisor fails to notify the employee in accordance with the time periods established in this rule, the employee may proceed to step II or step III, depending upon the structure of the agency.

(f) If the employee elects to proceed to step II or step III, the employee shall notify the supervisor in writing.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.05 Step II Process - Decision by Employee's Division Director.

(a) The employee shall present a detailed written description of the basis for the dispute to the division director within 15 calendar days of the conclusion of the step I process.

(b) Within 15 calendar days of receiving the written statement, the division director shall notify the employee in writing of the decision to:

(1) Modify, reverse or otherwise amend the action in dispute;

(2) Affirm the decision and refer the dispute to step III; or

(3) Schedule a meeting of the employee and the division director for further review of the dispute.

(c) If review of the dispute is conducted under (b) (3) above, the division director shall, within 15 calendar days of the meeting, notify the employee in writing of the decision to:

(1) Modify, reverse or otherwise amend the action in dispute; or

(2) Affirm the action in dispute.

(d) Nothing in this section shall prohibit the employee and the division director from agreeing, in writing, to extend the time limits established herein.

(e) If the division director fails to notify the employee in accordance with the time periods established in this rule, the employee may proceed to step III.

(f) If the employee elects to proceed to step III, the employee shall notify the division director in writing.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.06 Step III Process - Decision by Appointing Authority.

(a) An employee who is unable to resolve a dispute by using the procedures outlined in step I and, if applicable, step II may file a statement describing the dispute with the appointing authority of the employee's agency.

(b) The statement filed under paragraph (a) shall:

(1) State all the facts pertaining to the dispute; and

(2) Be filed within 15 calendar days from the expiration of step I or, if applicable, step II.

(c) For the purposes of subparagraph (b) (2) above, the steps noted shall expire on:

(1) The date of the written decision of the supervisor and, if applicable, the division director; or

(2) The date of the written notice from the employee to the supervisor or, if applicable, the division director that the employee has elected to proceed to step III.

(d) At the time the employee files the statement under paragraph (a) with the appointing authority, the employee shall also file a copy of the statement with the employee's supervisor and, if applicable, the division director.

(e) If the supervisor or division director disagrees with any of the facts stated by the employee, the supervisor or division director shall provide a written statement to the appointing authority upon receipt of the employee's statement and prior to any meeting held between the appointing authority and the employee under paragraph (f).

(f) Within 15 calendar days of receipt of the employee's statement filed under paragraph (a), the appointing authority or his or her designee shall arrange a meeting with the employee, the supervisor and, if applicable, the division director to discuss all the facts involved in the dispute.

(g) Within 15 calendar days of the meeting between the appointing authority or his or her designee, the supervisor, and the employee and, if applicable, the division director, the appointing authority or his or her designee shall notify the employee, the supervisor and, if applicable, the division director in writing of the decision and the reason or reasons therefor, to:

(1) Modify, reverse or otherwise amend the action in dispute; or

(2) Affirm the action in dispute.

(h) Nothing in this section shall prohibit the employee and the appointing authority from agreeing, in writing, to extend the time limits established herein.

(i) If an appointing authority or his or her designee fails to provide a written decision to the employee within the time periods established by this rule, the employee may notify the appointing authority in writing that the employee has elected to:

(1) Request a review by the director under Per 205.07; or

(2) Request a hearing before the board.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.07 Step IV - Review by the Director.

(a) If an employee's dispute is not resolved under Per 205.03 - Per 205.06, the employee may request a review by the director within 15 calendar days of the decision of the appointing authority or the expiration of step III.

(b) The request for review shall be in writing and shall contain:

(1) A summary of all issues addressed during the previous steps; and

(2) A copy of all previous requests and decisions.

(c) Within 15 calendar days, the director shall notify the employee in writing of the decision to:

(1) Modify, reverse or otherwise amend the action in dispute;

(2) Affirm the decision; or

(3) Schedule a meeting of the employee and such supervisory personnel as the agency may designate, for further review of the dispute.

(d) If further review is conducted under paragraph (c), the director shall, within 15 calendar days of the meeting, notify the employee and the appointing authority in writing of the decision to:

(1) Modify, reverse or otherwise amend the action in dispute; or

(2) Affirm the action in dispute.

(e) Subject to paragraph (h), nothing in this section shall prohibit the employee and the director from agreeing, in writing, to extend the time limits established herein.

(f) If the director fails to render a decision under Per 205.07 within 15 calendar days of the further review conducted under paragraph (c), the employee may notify the director in writing that the employee considers step IV to have expired.

(g) If the employee's dispute is not resolved under Per 205.07, the employee may file an appeal with the board, in accordance with the statutes applicable to or rules established by the board.

(h) Pursuant to RSA 21-I: 58, appeals to the board shall be made within 15 calendar days of the action giving rise to the appeal.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06

Per 205.08 Invalid Appeals and Matters Not Subject to Informal Settlement Process. The following matters shall not be subject to settlement or appeal under Part Per 205:

(a) Classification decisions of the director when the reasons for appeal are based on the following:

(1) An employee's education or experience exceed the minimum qualifications required for the position;

(2) An employee has held a position for a long period of time;

(3) An employee has attained the maximum step of the assigned salary grade range;

(4) An increase or decrease in volume of work; or

(5) The cost of living or other related economic factors.

(b) The general requirements listed on the class specification for a class title, including any of the following:

(1) The minimum qualifications required of an applicant in order to be certified for entry into a class;

(2) Any special requirements of the class, such as successful participation in a state examination; or

(3) The knowledge, skills, and abilities listed in the work traits section as necessary for successful job performance in the class.

(c) Class titles of positions previously held by the employee;

(d) Examination score;

(e) Content of a performance evaluation for any classified employee;

(f) Refusal of an appointing authority to grant a leave of absence without pay;

(g) Implementation of a statutory provision, executive order, or court order outside of the jurisdiction of the personnel rules which affects classified employees;

(h) Untimely appeals; and

(i) Resignation, unless the employee can demonstrate by a preponderance of evidence that the resignation was made under extreme duress.

Source. (See Revision Notes at chapter heading for Per 100) #8737, eff 10-18-06