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EMPLOYMENT RELATIONS BOARD

 

DIVISION 45

APPEALS, HEARINGS AND INVESTIGATIONS IN THE STATE SERVICE
UNDER THE STATE PERSONNEL RELATIONS LAW

115-045-0000

Definition of Terms

As used in these rules, unless the context clearly requires otherwise:

(1) "Appeal" means any request for review of a personnel action.

(2) "Appellant" means a person who requests review of a personnel action.

(3) "Appointing Authority" means an officer or agency having the power to make appointments to positions in the state service.

(4) "Board" means the Employment Relations Board.

(5) "Class" or "Class of Positions" means a group of positions in the state classified service sufficiently alike in duties, authority and responsibilities that the same qualifications may reasonably be required for, and the same schedule of pay can be equitably applied to, all positions in the group.

(6) "Date of Filing" means the date of receipt by the Board.

(7) "Date of Service" means the date of mailing or the date of personal service.

(8) "Day" means a calendar day unless otherwise specified.

(9) "Demotion" means a change of an employee from a position in one class to a position in another class which has a lower maximum salary range number.

(10) "Management Service" means all positions not in the unclassified or exempt service which are "confidential," "managerial" or "supervisory" as defined by ORS 243.650(6), (16) and (23) respectively.

(11) "Personnel Action" means any action taken with reference to an applicant, employee or position.

(12) "Recommended Order" means the order of an Administrative Law Judge or other Board agent consisting of recommended rulings, findings of fact, conclusions of law, and a proposed order.

(13) "Respondent" means a party against whom action or relief is sought.

(14) "Regular Employee" means an employee who has been appointed to a position in the classified service in accordance with state law after successfully completing a trial service period or has been otherwise granted regular status through specific provisions of law.

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 240.015
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 1-1998, f. & cert. ef. 1-26-98; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01

115-045-0002

Computation of Time

Time is computed by excluding the first day and including the last day unless the last day falls upon any legal holiday or on Saturday in which case the last day also is excluded.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 240.086(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95

Appeals

115-045-0005

Filing of Appeals

Filing of appeals must be in accordance with these rules. An appeal must be in writing and filed not later than 30 days after the effective date of the action being appealed. An appeal shall beconsidered filed when it is received by the Board or postmarked, if mailed postpaid and properly addressed. Amendments or supplements to appeals will be accepted only on a showing of good cause.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 240.086(1)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 9-1985, f. 10-29-85, ef. 10-31-85; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01; ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04; Administrative correction 8-2-04; ERB 1-2005, f. & cert. ef. 1-24-05

115-045-0010

Regular Employee Appeals from Suspension, Reduction in Pay, Demotion and Dismissal Actions

(1) A regular employee who is suspended, reduced in pay, demoted or dismissed may appeal

the action to the Board.

(2) The appeal must be in writing and must contain a detailed statement specifying:

(a) The action being appealed;

(b) The reasons why appellant believes the action was not in good faith for cause or was taken for political, religious or racial reasons, sex, marital state or age; and

(c) The correction action being requested.

(3) Notice of appeal must be filed with the Board no later than 30 days after the effective date of such action.

Stat. Auth.: ORS 240 & 243
Stats. Implemented: ORS 240.086(1) & 240.560
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 9-1985, f. 10-29-85, ef. 10-31-85; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01; ERB 1-2002, f. & cert. ef. 5-21-02; ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04; Administrative correction 8-2-04; ERB 1-2005, f. & cert. ef. 1-24-05

115-045-0017

Appeals Concerning Temporary Appointments

(1) Any employee may file a complaint alleging a violation of ORS 240.309. The complaint must be in writing and must contain a detailed statement specifying:

(a) The action being appealed;

(b) The reason complainant believes the action violates ORS 240.309; and

(c) The corrective action being requested.

(2) The complaint must be filed with the Board no later than 30 days after the employee knew or should have known of the action being appealed.

Stat. Auth.: ORS 240.086(3)
Stats. Implemented: ORS 240.086(1) & 240.309
Hist.: ERB 2-1990, f. 11-8-90, cert. ef. 11-19-90; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95

115-045-0020

Other Appeals from Other Personnel Actions

(1) A classified employee may appeal any personnel action affecting the person (including trial service removals) that is alleged to be arbitrary or contrary to law, rule or policy, or taken for political reasons.

(2) The appeal must be in writing, and must contain a detailed statement specifying:

(a) The action being appealed;

(b) The reasons why the appellant believes the action was arbitrary, contrary to law, rule or policy, or taken for political reasons; and

(c) The corrective action being requested.

(3) The written appeal must be filed no later than 30 days after the effective date of such action.

Stat. Auth.: ORS 240 & 243
Stats. Implemented ORS 240.086(1)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 9-1985, f. 10-29-85, ef. 10-31-85; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01; Renumbered from 115-045-0015; ERB 1-2001, f. 2-16-01, cert. ef. 7-1-01; ERB 1-2002, f. & cert. ef. 5-21-02; ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04; Administrative correction 8-2-04; ERB 1-2005, f. & cert. ef. 1-24-05

115-045-0021

Dismissal Appeals by Management Service Employees with Immediate Prior Regular Classified Service

(1) A management service employee with immediate prior regular classified service status who is dismissed from state service may appeal the dismissal to the board.

(2) The appeal must be in writing and must contain a detailed statement specifying:

(a) The action being appealed;

(b) The reasons why the employee believes the action was not in good faith for cause or was taken for political, religious or racial reasons, sex, marital status or age; and

(c) The corrective action being requested.

(3) The written appeal must be filed with the board no later than 30 days after the effective date of such action

Stat. Auth.: ORS 240 & 243
Stats. Implemented: ORS 240.560
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 9-1985, f. 10-29-85, ef. 10-31-85; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 2-2000, f.12-1-00, cert. ef. 7-1-01, Renumbered from 115-045-0010; ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04; Administrative correction 8-2-04; ERB 1-2005, f. & cert. ef. 1-24-05

115-045-0023

Other Management Service Employee Appeals

(1) Disciplinary Actions. A management service employee who is reprimanded, reduced in pay, suspended, demoted or removed from management service may appeal such action to the Board.

(2) Nondisciplinary actions. A management service employee who is removed from the management service for nondisciplinary reasons, assigned, reassigned or transferred may appeal such action to the Board.

(3) Appeals must be in writing and must contain a statement specifying:

(a) The action being appealed;

(b) The reasons why the appellant believes the action was contrary to ORS 240.570(3) (for disciplinary actions) or ORS 240.570(2) (for nondisciplinary actions); and

(c) The corrective action being requested.

(4) The written appeal must be filed no later than 30 days after the effective date of such action.

Stat. Auth.: ORS 240.086(3) & 243
Stats. Implemented: ORS 240.570
Hist.: ERB 1-1982, f. & ef. 1-19-82; ERB 1-1985(Temp), f. & ef. 8-19-85; ERB 9-1985, f. 10-29-85, ef. 10-31-85; ERB 3-1993, f. & cert. ef. 12-15-93; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01;,Renumbered from 115-045-0024; ERB 1-2002, f. & cert. ef. 5-21-02; ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04; Administrative correction 8-2-04; ERB 1-2005, f. & cert. ef. 1-24-05

115-045-0025

Hearings

(1) The Board agent may investigate and attempt to resolve the dispute with the parties. If the case cannot be resolved within a reasonable time, it will be scheduled for public hearing and an order of the Board.

(2) Time and Place of Hearings. The time and place of hearing will be set by the Board agent. Notice of the hearing shall be served personally or by registered or certified mail on the agency head and all other interested parties at least ten days in advance of the hearing date. For disciplinary actions, the hearing will be set no later than 30 days from the date the appeal was filed, unless the parties to the hearing agree to a postponement.

(3) Postponements. When the parties to a hearing agree to a postponement, they shall promptly submit a written request for postponement to the Board agent. For good cause shown, the Board agent may grant a postponement. A hearing on an appeal under ORS 240.560 will not be postponed beyond 30 days from the date the appeal was filed, unless the parties to the hearing and the Board agent agree to a postponement.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 240.086(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01; ERB 1-2002, f. & cert. ef. 5-21-02; ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04; Administrative correction 8-2-04; ERB 1-2005, f. & cert. ef. 1-24-05

115-045-0030

Conduct of Hearings

(1) General Procedure:

(a) The Board agent will open the hearing with a brief introduction of parties and issues;

(b) Parties may make opening statements;

(c) Parties may present evidence in support of their respective positions. Cross-examination of witnesses will be allowed opposing party(ies); and

(d) Parties may make closing arguments.

(2) Conference During Hearings. In any proceeding, the Board agent may, in his/her discretion, call the parties together for a conference prior to the taking of testimony or may recess the hearing for such conference to resolve undisputed or procedural matters. The results of such conference shall be summarized on the record.

(3) Fact Stipulations. The parties to any proceeding or investigation may, by stipulation and subject to approval by the Board or its agent, agree upon the facts or any portion thereof involved in the controversy, such stipulation shall be binding upon the parties thereto and may be used as evidence in the case.

(4) Continuances. If it appears on the motion of a party that further testimony or argument should be received, the Board agent may, in his/her discretion, continue the hearing. The date of such continued hearing may be fixed at the time of hearing or by later written notice to the parties.

(5) Representation. An appellant may be represented by counsel or may, on his/her own, request the issuance of subpoenas, examine and cross-examine witnesses, make statements, summarize testimony, and otherwise conduct his/her own case.

(6) Burden of Proof. In a hearing on an appeal from a disciplinary action under ORS 240.555 or 240.570(3), the respondent shall have the burden of proof and the burden of going forward with the evidence. The appellant shall have the burden of proving affirmative defenses. In all other cases, the appellant shall have the burden of proof and the burden of going forward with the evidence.

(7) Rules of Evidence. See OAR 115-010-0050.

(8) Conduct at Hearing. All parties to hearings, their counsel and spectators shall conduct themselves in a respectful manner. Demonstrations of any kind will not be permitted. Failure to comply with the Board agent's effort to maintain order are grounds for removal from the hearing.

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 240.086(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 9-1985, f. 10-29-85, ef. 10-31-85; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01

115-045-0035

Motions

All motions shall be typewritten or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. Written motions shall be filed with the Board agent, together with the proof of service of a copy thereof upon the other parties.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 240.086(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-045-0040

Post-Hearing Procedures

(1) Recommended Order. The Board agent shall prepare and serve on the parties a recommended order consisting of rulings, findings of fact, conclusions of law and a proposed order.

(2) Objections to Recommended Order. The parties shall have 14 days from date of service of the Recommended Order to file specific written objections with the Board. (See also OAR 115-010-0090.)

(3) Board review:

(a) Oral or Written Argument. If objections are filed to the Recommended Order, parties will be given an opportunity to present oral argument to the Board. If a party desires to submit written argument in lieu of oral argument, it must be filed with the Board not less than five days before the date set for argument and the party filing the written argument shall serve a copy on all parties of record in the case and provide proof of service to the Board;

(b) Memorandum in Aid of Oral Argument. If parties wish to submit written memoranda in aid of oral argument in addition to argument, it must be filed with the Board not less than five days before the date set for oral argument and copies must be served upon all parties of record. Parties shall provide the Board with proof of service;

(c) Review of Record. Review by the Board of a Board agent's recommended order shall be confined to the record. The Order of the Board shall be in writing and shall be sent to the parties.

(4) Petitions for Reconsideration or Rehearing. Petitions for reconsideration or rehearing may be filed, but not later than 14 days from date of service of the Order. Petitions shall state specifically the grounds for reconsideration or rehearing. The Board may, at its discretion, set such petitions for oral argument.

(5) Service of Documents. All documents shall be served upon named parties unless there is a representative of record, in which case documents may be served on the representative.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 240.086(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01

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