Chapter 1	Organization, Responsibilities, Ethics, And Definitions

Authority for rules promulgated in this chapter is found in §§24-50-101, 103, 116, 117, 124, 128, 129, 130, 132, 145, 24-2-103, 24-6-402, 24-72-201, and 24-18-101 through 205, C.R.S.  Board rules are identified by cites beginning with "Board Rule".  

Board Rule 1-54.	Laid Off.  Involuntary non-disciplinary separation from a position in the state personnel system and, if certified, the offer of retention rights and/or placement on a reemployment list.

Board Rule 1-55.	Layoff.  Process of involuntarily separating an employee from a position in the state personnel system due to abolishment of the position for lack of work, lack of funds, reorganization, or displacement by another employee exercising retention rights.

Board Rule 1-66.	Retention Credit.  Credit of time and, if necessary, the calculation of an employee’s ranking under the department’s matrix in a layoff situation, in order to calculate the employee’s retention rights. 

Chapter 4	Employment And Status 

Authority for the rules promulgated in this chapter is found in Colo. Const. art. XII, Section 13, §§24-50-112.5, 114, 132, 137, and 24-50-109.5, C.R.S.  Board rules are identified by cites beginning with "Board Rule".    

Board Rule 4-23.1.	In the case of filling multiple vacancies within the same class, no more than the applicants with the three highest-ranking scores may be considered for any position.  In the event of a tie for any of the three highest-ranking scores, all applicants with tying scores shall be referred.  Any referral list identifying the applicants to be considered for any position(s) shall indicate the rank of each applicant on that list.     

Chapter 7	Separation

Authority for rules promulgated in this chapter is found in Colo. Const. art. XII, Sections 13, 14 and 15; §§ 24-50-109.5, 124, 126 and 136, C.R.S.  Board rules are identified by cites beginning with "Board Rule".    

General Principles

Board Rule 7-1.		The appointing authority must communicate, or make a good-faith effort to communicate, with an employee before conducting any involuntary separation.  The communication may be oral or written, and must provide an opportunity for the appointing authority and employee to exchange information about the separation.  

Board Rule 7-2.		The State of Colorado seeks to promote progressive employment practices.  As such, the Board strongly encourages the Governor, Director, and all appointing authorities to  consider alternatives to minimize or avoid the need for layoffs of employees in the state personnel system including, but not limited to, placement into vacant positions for which the laid off or displaced employees are qualified but for which they do not have retention rights, retraining, voluntary reduction in hours or pay, job-sharing, voluntary unpaid leave, voluntary furloughs, and voluntary separation incentives.  

Board Rule 7-3.		Department heads shall administer the layoff process for any affected employee in accordance with these rules.  Appointing authorities cannot use the layoff process as a substitute for disciplinary or corrective action.  The layoff process should not prevent or interfere with other personnel actions.  

Resignation

Board Rule 7-4.		An employee must give notice of resignation directly to the appointing authority at least 10 working days before its effective date, unless the employee and appointing authority mutually agree to less time.  Failure to provide written notice, as required by § 24-50-126(1), C.R.S., may result in a delay in payout of leave and forfeiture of reinstatement privileges.  If the notice is oral, the appointing authority shall provide written confirmation as soon as possible.  If the employee believes the resignation was coerced or forced, the employee has 10 days from the date of the resignation to appeal to the Board, except that an employee cannot appeal a resignation that is tendered in lieu of disciplinary action.  Upon receipt of any written notice of resignation or upon an appointing authority providing a written confirmation of an oral resignation, an employee must be notified, in writing, of the right to appeal a coerced or forced resignation, including the time for such an appeal, and the Board address and telephone and facsimile numbers for filing the appeal.  If an employee tenders a resignation in lieu of disciplinary action, the employee shall be notified in writing that he or she has waived his or her right to appeal the resignation to the Board.   

Board Rule 7-5.		An employee who has submitted a notice of resignation at least 10 working days before its effective date may withdraw a resignation by the close of two business days after giving notice of resignation.  The day that notice of resignation is given shall not be counted.  A business day shall be the normal hours of operation for the department or employee’s division. However, if the department or employee’s division operates on a 24-hour basis, the business day shall end at midnight.  The appointing authority must approve a timely withdrawal of resignation.  Approval of a request to withdraw a resignation when that request is made more than two business days after the notice of resignation is within the discretion of the appointing authority.  

Board Rule 7-6.		If an employee is absent without notice for five or more scheduled consecutive working days and has not contacted the supervisor or appointing authority to provide information about the reason for the absence, the appointing authority may construe that absence as an automatic resignation.  The appointing authority shall give the employee written notice, by certified mail, of the effective date of the employee’s resignation.  The employee is ineligible for reinstatement.  

Layoff Principles

Board Rule 7-7.		The only reasons for layoff are lack of funds, lack of work, or reorganization.  These rules apply to any reduction in force that results in the elimination of one or more positions regardless of the reason for layoff.  

A.  	For any and all layoffs, department heads have the discretion initially to make the business decisions as to how their department will continue to meet its mission after engaging in the layoff process.  These decisions include determining which classes or class series will best help the department meet its mission, the level of staffing by various classifications and/or class series and the agency functions to be staffed, either by facility location or department-wide, and must meet any constitutional or statutory mandates.  A department head may delegate this authority to make any of the business decisions to subordinate appointing authorities within the department.  Such delegation must be in writing and describe the parameters of the business decisions to be made by the subordinate appointing authority.      

B.  	Layoff Plan:  For any and all layoffs, after making its business decisions and ten days prior to issuing the first layoff notice, the department shall post a Layoff Plan, signed by the Executive Director, head of a principal department or designee, both in a conspicuous place where all impacted parties have access to view the posting and on the department’s internet or intranet websites.  The purpose of the Layoff Plan is to facilitate strategic planning prior to the abolishment of any positions and to provide an open and transparent explanation for the elimination of positions and/or services.  The Layoff Plan shall include the following: a description of the planned changes in the fundamental structure, positions, or functions accountable to one or more appointing authorities; an organizational chart setting out the planned changes in the fundamental structure, positions, or functions accountable to one or more appointing authorities; the reasons for the change; the anticipated benefits and results, including any cost savings; a general description of the expected changes and their effects on employees; a description of how the work performed by the eliminated positions will be absorbed by the department; a listing of the classes in which positions will be abolished as contemplated in the Layoff Plan; and, if there have been any modifications to the special qualifications for positions affected by the Layoff Plan within sixty days or less prior to publication of the Layoff Plan, a list of such positions. 

1.	When a function and position are transferred to another department, the employee occupying the position transfers.

Board Rule 7-8.		After an appointing authority has made the initial business decisions and posted the department’s Layoff Plan, the layoff of individual employees and the subsequent calculation of their retention rights must be made in accordance with the Board rules setting forth the priorities for determining layoff and retention rights.    

Determining Priorities for Layoff and Retention Rights

Board Rule 7-9.		In making both layoff and retention rights decisions, departments shall first use time bands to determine seniority as set forth below in Board Rule 7-10.  After placing employees into time bands, departments shall then apply a matrix, prepared and posted as set forth below in Board Rule 7-11.  For purposes of this chapter, the term “displaced” shall include both employees who are initially laid off under the Layoff Plan and employees who, as the result of other employees exercising their retention rights, are laid off.  

Board Rule 7-10.	Time Bands:  Time bands for each of the affected classes are established for three-year periods based on seniority.  The three-year period begins with the calendar year in which the layoff notice is given and extends backward, e.g., a notice issued in 2007 creates the most junior time band of 2005-2007, the next time band would be 2002-2004.  For each affected class set out in the Layoff Plan, employees in the most junior time band must be displaced before employees in more senior time bands.

A.  	Seniority is the calendar year in which continuous state service began, plus up to 10 additional years (rounded to the next whole year for partial years) of military service for those eligible for veteran’s preference.  

B.	Continuous state service includes permanent status and state employment outside the state personnel system.  An employee who has a break in service of 90 days or less, time on a departmental reemployment list or waiting for retention rights, or approved leave receives credit for continuous state service during those periods.  If an employee has a break in service of more than 90 days, previous state service does not count toward seniority during layoff.  

Board Rule 7-11.	Matrix:  The purpose of the matrix is to rank employees within the time bands.  The department head must establish the matrix for the entire department.  The matrix must be consistently applied throughout each retention area within the department.  The matrix must be communicated to all employees at least 15 days before the first layoff notice is issued.  Employees with lower matrix rankings in the time band must be displaced before employees with higher matrix rankings, except, as set forth in art. XII, Section 15 of the Colorado Constitution, no veteran can be displaced before a non-veteran regardless of rank.  

A.	The matrix must give at least 51 percent of the total value to performance measured by the average of the latest three years’ annual performance ratings.  Each department must establish a consistent numerical value for each level of performance designated by the State Personnel Director.  If an employee does not have performance ratings for any of the past three years, any missing rating is considered to be the average of the numerical values assigned to the available ratings in the past three years.  

B.	If there is a tie under the department’s matrix, then the employee with the earliest start date of employment with the State of Colorado shall be the higher ranked employee.  If the employees are still tied, then the decision shall be made by taking into account the affirmative action program established by the State Personnel Director pursuant to § 24-50-101(3)(e), C.R.S.  

Board Rule 7-12.	Trial service employees whose performance is satisfactory are treated as if certified in the trial service class during the layoff process.  Conditional employees have retention rights to their previously certified class.  

Board Rule 7-13.	Full-time certified employees whose positions are reduced to part time are eligible for retention rights.  Full-time employees shall be offered other full-time positions before part-time.  Part-time certified employees whose positions are increased to full time are eligible for retention rights.  Part-time employees shall be offered other part-time positions in the current certified class then offered full-time positions in the current certified class, prior to the offer of retention rights in any class or class series to which previously certified.  A full-time employee who accepts a part-time position and a part-time employee who accepts a full-time position may choose to be placed on a departmental reemployment list.  

Notice Requirements

Board Rule 7-14.	The department must provide written notice to certified employees who are to be laid off at least 45 calendar days before the layoff is effective.  The layoff notice must give the employees at least three working days from the date of delivery to state whether they want the department to determine their retention rights.  If the department offers retention rights, it must give the employees at least three working days to accept or reject the offer.  The layoff notice may be hand-delivered directly to the employee or sent by certified mail to the employee’s last known address, in which case it is deemed delivered when it is actually received or five days after the certified mailing, whichever is earlier.  In addition, notification by email shall be sent to the employee, if the employee has a state email address.  

A.	The department must provide written notice to certified employees who are being displaced by another employee at least 10 business days before the displacement.  A displaced certified employee who is separated shall be paid for at least 22 working days after receipt of the notice of displacement.

B.	The department must provide written notice to non-certified employees who are to be laid off at least 10 business days before the layoff is effective.  

Retention Areas 

Board Rule 7-15.	A certified employee may exercise retention rights within the principal department.  Institutions of higher education have the following separate retention areas: each state college, each community college, each university, each campus of the University of Colorado, University of Colorado system administration, each junior college, Auraria Higher Education Center, and central staff of Community Colleges of Colorado. Certified employees of the Department of Higher Education have retention rights in central staff, Colorado Historical Society, and Colorado College Access Network.  

Board Rule 7-16.	A department, upon approval of the Board, may limit retention rights to major divisions of the department only if its department head requests the limitation and the Board approves that request at least thirty days in advance of the posting of the Layoff Plan required by Board Rule 7-7.  Any request to limit retention rights must set forth a reasonable basis for the request. 

Board Rule 7-17.	Any request to limit retention areas must be submitted in writing on or before the twelfth day before the monthly Board meeting at which the request will be considered.  A copy of the request to limit retention areas shall be provided to all affected employees by mail to their home addresses and by email to their state email address, if any, on or before submittal of the request to the Board.  Any parties opposing such a request may either submit a written opposition prior to the Board meeting or testify before the Board at the time of the Board meeting.  The requestor may either submit a written response to the opposition or testify before the Board at the time of the Board meeting.  

Retention Rights

Board Rule 7-18.	An employee must meet the minimum qualifications and any bonafide special qualifications in order to have retention rights to a position.  Departments may not modify special qualifications of any position after the publication of the Layoff Plan.  Certified employees can displace certified employees in more junior time bands.  If there are no junior time bands, certified employees can displace lower-ranked certified employees in the same time band.  

A.	The department shall offer retention rights in the following priority.  

1.	First, to any funded vacant position in the current certified class.  If there are no funded vacant positions, then occupied positions are offered in the following order: provisional, probationary, conditional, certified.  If there are multiple occupied positions in the current certified class and the occupants of those positions are certified, then the lowest ranked employee within the most junior time band shall be displaced first.  
2.	If there are no available funded vacant or occupied positions in the current certified class, then a funded vacant position in a previously certified class at the same maximum pay rate.  If there are no funded vacant positions, then occupied positions shall be offered in the following order: provisional, probationary, conditional, certified.  If there are multiple occupied positions in a previously certified class at the same maximum pay rate and the occupants of those positions are certified, then the lowest ranked employee within the most junior time band shall be displaced first. 
3.	If there are no available funded vacant or occupied positions in the current or a previously certified class at the same maximum pay rate, then the highest level demotion in a vacant position in the current or a previously certified class series.  If there are no vacant positions, occupied positions shall be offered in the current or a previously certified class series in the following order: provisional, probationary, conditional, certified.  If there are multiple occupied positions in the highest level demotion in the current or a previously certified class series and the occupants of those positions are certified, then the lowest ranked employee within the most junior time band shall be displaced first.    

B.	For those departments with multiple work locations throughout the state, the department shall offer retention rights in the following order:

1.	Within a 75-mile radius of the employee’s current work location, funded vacant positions in the current certified class.
2.	If there are no funded vacant positions in the current certified class, occupied positions in the current certified class within a 75-mile radius are offered in the following order:  provisional, probationary, conditional, certified.  If there are multiple occupied positions in the current certified class within the 75-mile radius, and the occupants of those positions are certified, then the lowest ranked employee within the most junior time band shall be displaced first.
3.	If there are no available funded vacant or occupied positions in the current certified class within a 75-mile radius, then a funded vacant position in a previously certified class at the same maximum pay rate.  If there are no funded vacant positions, then occupied positions shall be offered in the following order:  provisional, probationary, conditional, certified.  If there are multiple occupied positions in a previously certified class at the same maximum pay rate and the occupants of those positions are certified, then the lowest ranked employee within the most junior time band shall be displaced first.
4.	If there are no available funded vacant or occupied positions in the current or a previously certified class at the same maximum pay rate within a 75-mile radius, then the highest level demotion within a 75-mile radius in a vacant position in the current or a previously certified class series.  If there are no vacant positions, occupied positions shall be offered in the current or a previously certified class series in the following order:  provisional, probationary, conditional, certified.  If there are multiple occupied positions in the current or a previously certified class series within the 75-mile radius, and the occupants of those positions are certified, then the lowest ranked employee within the most junior time band shall be displaced first.  
5.	If the only retention opportunity within a 75-mile radius is a demotion, then in addition to the offer of that demotion, the employee shall be given retention rights outside of the 75-mile radius to a position in the current certified class.

C.	Employees in the Teacher I class have retention rights to their academic achievement levels. 

Board Rule 7-19.	If the employee accepts an offer outside the 75-mile radius, that employee can claim moving expenses as prescribed in fiscal rule.  

Reallocation

Board Rule 7-20.	If a position is allocated downward and the employee elects not to remain in the position or if a position is allocated upward and the employee does not qualify, is not appointed or elects not to remain in the position, the employee will be laid off or given retention rights pursuant to the provisions of this chapter.  If a certified employee is laid off or demoted due to an upward or downward allocation or layoff, the employee is placed on a departmental reemployment list.  If an employee refuses a retention offer, the employee is laid off and placed on the departmental reemployment list.  

Appeals

Board Rule 7-21.	All employees whose positions have been eliminated or who have been upwardly or downwardly allocated to a different position in the course of a layoff shall have a mandatory right to a hearing before the State Personnel Board.  Acceptance of retention rights to another position does not eliminate the employee’s appeal rights.

Recordkeeping

Board Rule 7-22.	Department heads must provide any required or requested information to the Director or Board in a timely manner.