AMENDMENTS TO RULES FOR OCTOBER 17, 2006 RULEMAKING

Board Rule 1-5.		Unless otherwise ordered, all materials to be considered by the Board at its monthly meeting must be received in the Board’s office at least 12 calendar days before the meeting.  The party must provide the original and nine copies of all materials to be considered by the Board, except as otherwise provided in these rules.  (1/1/07)

Board Rule 1-67.	Retirement.  Separation of an employee from the state personnel system who is eligible to retire under the provisions of the state retirement plan in which the employee is enrolled (e.g., Public Employees' Retirement Association's defined benefit plan).  (1/1/07)

Board Rule 2-13.	Any employee entering or remaining in the senior executive service pay plan on or after July 1, 2003, waives retention and reemployment rights with respect to any other position in the personnel system pursuant to Board Rule 1-19, but shall have reinstatement privileges with respect to any vacant position in the employee’s current or previously certified class.  (1/1/07)

Board Rule 6-15.	A written notice of disciplinary action must be sent to the employee's last known address, by certified mail, or may be hand-delivered to the employee.  The employee must receive the notice no later than five days following the effective date of the discipline.  The notice must state the specific charge, the discipline taken, and right to appeal, including the time frame for such an appeal, and the Board's address and telephone and facsimile numbers for filing the appeal.  Employees may submit a written statement to be attached to disciplinary action.  (1/1/07)

A.	If the employee refuses to accept the notice, a dated return receipt from a mail carrier is conclusive proof of the attempt to deliver.

Board Rule 8-19.	If the employee or the department contends the other party has not complied with the terms of the settlement agreement, the employee or the department may petition the Board for a hearing.  If the employee does not comply with the terms of the agreement, the action may be subject to the provisions in the “Performance” chapter.  

A.	If the employee is no longer employed by the department and either party contends the other has not complied with the terms of a settlement agreement, the employee or the department may seek review or enforcement of the Board’s order entered pursuant to Board Rule 8-18 above, under the provisions of §24-4-106, C.R.S.  (1/1/07)

Board Rule 8-23.	The Board will send a copy of the complaint to the department for an initial response.  The response must be filed within 45 days after the date the complaint was filed with the Board.  (1/1/07)
 
Board Rule 8-25.  	(Repealed, 1/1/07)	 

Board Rule 8-26.	(Repealed, 1/1/07)

Board Rule 8-27.	If an appeal is also filed asserting a constitutional or statutory right to a hearing, and the appeal and complaint relate to the same or closely related facts, they may be consolidated for evidentiary hearing.  Either party may request, or the administrative law judge may order, consolidation if it would be more efficient and would not unduly prejudice any party.  The hearing shall be set to commence not later than ninety days after the receipt of the written response filed by the agency and may be continued once for thirty days only upon good cause shown and upon approval of the administrative law judge.  (1/1/07)

Board Rule 8-28.	If the employee does not have a constitutional or statutory right to a hearing, the case will be set for preliminary review pursuant to the discretionary Board hearing section of these rules.  (1/1/07)

Board Rule 8-29.	(Repealed, 1/1/07)

Board Rule 8-30.	Pursuant to §24-50-125.3, C.R.S., the Board has jurisdiction over claims of discrimination within the state personnel system.  If an employee or applicant seeks to have an allegation of discrimination reviewed by the Board, that person must file a petition for hearing within 10 days of the action or receipt of any final written decision, (including, but not limited to, grievance decisions, selection decisions, or performance pay system dispute resolution decisions).  All such decisions must notify that employee or applicant of the right to appeal the final decision, including the time frame for such an appeal, and the Board's address and telephone and facsimile numbers for filing the appeal.  Except for appeals, the Board will defer action to allow the parties a chance to resolve the issue.  (1/1/07)  

Board Rule 8-43.	The appeal must be in writing and copies provided concurrently to the affected department.  Use of the standard “Colorado State Personnel Board Consolidated Appeal/Dispute Form” found on the Board website is required.  For good cause shown, the Board may waive this requirement provided the person filing the appeal (“complainant”) sets forth such grounds at the time the appeal is submitted.  The appeal must clearly state the following in sufficient detail.  (1/1/07)

1.	The name, address, and telephone number of the complainant and any representative.
2.	The specific action being appealed and a copy of the written notice.
3.	The date the complainant received the notice of action.  
4.	A short, specific statement giving the reason for the appeal.
5.	Whether the complainant is a certified employee.
6.	The specific remedy sought.

Failure to provide a copy to the affected department may be grounds for denial or dismissal of the appeal. 

Board Rule 8-50.	Each party is required to file an information sheet containing the following specifically and clearly stated information: 

A.	Complainant

1.	the facts complainant is prepared to prove, if a hearing is granted, that the respondent’s actions were arbitrary, capricious, or contrary to rule or law;
2.	any legal argument or authority complainant relies upon to support his or her claims;
3.	the names, addresses, and telephone numbers of all witnesses, and a brief description of the testimony of each such witness that would substantiate complainant’s allegations and claims;
4.	a list of exhibits that would substantiate complainant’s allegations and claims, with copies of such exhibits attached to the information sheet; and 
5.	a description of the remedy or relief sought by complainant.

B.	Respondent

1.	the response to the allegations and claims of complainant, including all facts respondent intends to prove if a hearing is granted that respondent’s actions were not arbitrary, capricious, or contrary to rule or law;
2.	any legal arguments or authority relied on by respondent;
3.	the names, addresses, and telephone numbers of all witnesses, and a brief description of testimony of each such witness that would substantiate respondent’s allegation and claims;
4.	a list of exhibits that would substantiate respondent’s allegations and claims, with copies of such exhibits attached to the information sheet; and 
5.	the respondent’s response to the remedy or relief sought by complainant. 

C.	Unless an investigation has been referred and is pending as provided in the allegation of discrimination section of this chapter, complainant and respondent shall file their respective information sheets with the Board and serve a copy on the other party within 25 days of receipt of the petition for hearing by the Board.  The Board may grant one extension of time to each party for the filing of information sheets.  Such extension shall be for no more than five (5) days, and granted only upon good cause shown.  (1/1/07)    

D.	In the event an investigation has been referred and is pending pursuant to the allegation of discrimination section of this chapter, the time periods to file information sheets as provided in this rule shall not commence until the final written report or opinion resulting from such investigation is served upon the parties by the Board.  (1/1/07)

E.	The parties shall be required to file their respective information sheets with the Board electronically either on disk or CD-ROM, and to also submit a paper copy of the information sheet, with attached exhibits.  The Board, for good cause, may waive the requirement of an electronically-filed information sheet if the party, no later than five days prior to the time the information sheet is due, makes a written request to the Board with detailed grounds to support the request.

F.	If complainant fails to file a conforming information sheet, the petition for hearing may be considered abandoned and dismissed.  If the respondent fails to file an information sheet, the preliminary recommendation will be based solely upon the information submitted by complainant.  

G.	The Board’s director or administrative law judge will review the information presented by the parties in their information sheets to determine whether valid issues exist which merit a hearing.  Complainant has the burden of demonstrating the existence of valid issues which merit a hearing by showing that there is an evidentiary and legal basis that would support a finding that the action was arbitrary, capricious, or contrary to rule or law, and that the relief requested by complainant is within the Board’s statutory authority.  

H.	An administrative law judge or the Board’s director will make a written preliminary recommendation to the Board, with copies provided to both parties, as to whether a hearing should be granted or denied.  

I.	At any stage in the preliminary review process, the Board’s director or administrative law judge may request the parties to participate in a mediation conference with a trained mediator.  

Board Rule 8-53.	Any action that adversely affects a certified employee’s current base pay, status, or tenure as defined by Board rule may be appealed and will be set for hearing.  An adverse effect results in a reduction of current base pay or loss of other rights to which an employee is entitled by law, including denial of reemployment rights or removal from a reemployment list, probable cause opinion in discrimination cases, appeals of investigative reports finding reasonable basis for retaliation for disclosure of information, dismissal for failure to perform satisfactorily under senior executive service contracts, and reductions of salary during the term of senior executive service contracts.  Issues involving annual total compensation survey, discretionary pay differentials, the granting of in-range salary movements, leave sharing, personal services contracts, job evaluation system and actions, renewals of senior executive service contracts at a reduced salary, and removal of positions from the senior executive service pay plan into the traditional classified pay plan are not subject to appeal.  

A.	Disciplinary actions are subject to appeal and will be set for hearing, except discipline of probationary employees for unsatisfactory performance, reversion of trial service employees for unsatisfactory performance, and demotion of conditional employees to the class in which last certified.  An employee who resigns in lieu of disciplinary action forfeits appeal rights.

B.	Employees who are separated for failure to perform under senior executive service contracts do not have a right to progressive discipline or to a Board Rule 6-10 meeting.  In such an appeal, the appointing authority must produce evidence that the employee’s performance was not satisfactory.  The employee shall then have the burden of producing evidence that performance was satisfactory, and shall bear the burden of proof that the appointing authority’s decision was arbitrary, capricious, or contrary to rule or law.  (1/1/07)

Board Rule 8-64.	Upon oral or written request of a party or counsel for a party no later than 10 days prior to a hearing or deposition, the Board’s director or administrative law judge shall issue a subpoena or subpoena duces tecum requiring the attendance of a witness or the production of documentary evidence, or both, at such deposition or hearing.

A.	The subpoena or subpoena duces tecum shall be served on the witness to whom it is directed in the same manner as subpoenas served in proceeding in the district courts for the State of Colorado pursuant to C.R.C.P. 45.  In addition, the subpoena or subpoena duces tecum must be served at least 48 hours prior to the commencement of the deposition or hearing.

B.	Except for witnesses subpoenaed on behalf of the State of Colorado, or an officer or department of the State of Colorado, witnesses subpoenaed pursuant to this rule shall be paid the same fees for attendance and mileage as are paid to witnesses in the district courts of the State of Colorado.  The party requesting that the subpoena be issued shall pay such fees to the witness at the time the subpoena is served as required by this rule.

C.	Upon the failure of a party or counsel to comply with the requirements of either subparagraphs A or B of this rule, the party or witness subject to the subpoena may petition the Board’s director or the administrative law judge for an order quashing such subpoena.  The Board’s director or the administrative law judge, in his or her discretion, may also award attorney fees for such non-compliance pursuant to Board Rule 8-39.  (1/1/07)

D.	Upon failure or refusal of any witness to comply with a subpoena issued and served upon them under this rule, the Board’s director or administrative law judge may petition the district court for the City and County of Denver for an order citing such witness in contempt for such failure or refusal.  The procedure for such contempt proceedings shall be governed pursuant to §24-4-105(5), C.R.S.