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Unofficial Merit System of Personnel Administration Rules

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Merit Protection Commission Effective 3/1/2008

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TITLE 455. MERIT PROTECTION COMMISSION

CHAPTER 10. MERIT SYSTEM OF PERSONNEL ADMINISTRATION RULES

S

UBCHAPTER

T

ITLE

S

ECTION

1 General Provisions 455:10-1-1

3 Jurisdiction, Rights, Processes 455:10-3-1

7 Investigations 455:10-7-1

9 Hearing Process 455:10-9-1

11 Discipline 455:10-11-1

13 Discovery 455:10-13-1

15 Attorney Fees and Costs 455:10-15-1

17 Alternative Dispute Resolution 455:10-17-1

19 Internal Agency Grievance Resolution Procedure 455:10-19-1

21 Presiding Officials, Representatives, Witnesses and Parties 455:10-21-1

SUBCHAPTER 1. GENERAL PROVISIONS

S

ECTION

T

ITLE

455:10-1-1 Purpose

455:10-1-2 Definitions [AMENDED Effective 3/1/2008]

455:10-1-3 Effect of amendments to rules and laws on appeals

455:10-1-4 [REVOKED]

455:10-1-5 Review of Commission records [AMENDED Effective 3/1/2008]

455:10-1-6 [EXPIRED]

455:10-1-7 Organization [AMENDED Effective 3/1/2008]

455:10-1-8 Request for promulgation, amendment or repeal of a rule

455:10-1-9 Request for declaratory ruling

455:10-1-10 Forms and instructions [AMENDED Effective 3/1/2008]

455:10-1-1. Purpose

The rules in this Chapter are the

administrative rules of the Oklahoma Merit

Protection Commission (Commission) which

govern appeals and associated processes

before the Commission. These rules

establish procedures and standards

necessary for the Commission to perform its

duties and functions. The Commission has

adopted the rules in this Chapter. The

Administrator of the Office of Personnel

Management has adopted the rules which

are in OAC 530.

(1) Authority. The authority for these

rules is Section 840-1.9 of Title 74 of the

Oklahoma Statutes. The primary basis is

the Oklahoma Personnel Act, Section 840-

1.1 et seq. of Title 74 of the Oklahoma

Statutes.

(2) Legal cites. Some of these rules

may restate language from statutes. Italic

type means the language repeats language

from statutes and the specific statutory

reference will appear in brackets following

the language in italics.

455:10-1-2. Definitions [AMENDED

Effective 3/1/2008 ]

The following words and terms, when

used in this chapter, shall have the following

meanings, unless the context clearly

indicates otherwise:

"Addendum decision" or "Addendum

order" means a decision or order to add to

a previously issued decision or order.

"Administrative Law Judge" means a

person appointed by the Executive Director

and empowered to preside over prehearing

conferences and hearings with power to

administer oaths, take testimony, rule on

questions of evidence and make final and

addendum decisions.

"Adverse action appeal" means an

appeal by a permanent classified employee

appealing a discharge, suspension without

pay or involuntary demotion.

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"Affidavit" means a sworn statement,

made voluntarily, and taken before a person

with authority to administer an oath or

affirmation.

"Affidavit of service" means a written

statement certifying that a motion, request

or other document has been provided to

other persons.

"Allegation" means the claims of a

party.

"Allege" means to state, assert or

charge; to make an allegation.

"Alleged violation appeal" means an

appeal in which an allegation is made that a

violation of law or rules over which the

Commission has jurisdiction has occurred.

"Appeal" means, as a verb, the filing of

a petition for appeal, or as a noun, the

procedure that takes place after a petition

for appeal is filed.

"Appellant" means a party who files a

petition for appeal.

"Appellee" means a party against

whom an appeal is filed or who is otherwise

named or joined as a party.

"Burden of proof" means the

obligation of a party to establish alleged

fact(s) by a preponderance of evidence.

“Caucus” means a private meeting

between an Alternative Dispute Resolution

Program facilitator and a party for the

purpose of assisting in the resolution of a

dispute.

"Commission" means the Oklahoma Merit

Protection Commission.

"Commissioners" means the members

appointed to the Oklahoma Merit Protection

Commission.

"Consolidation" means the combining

of appeals containing the same or similar

issues but filed by 2 or more appellants into

a single appeal.

"Continuance" means a postponement

of a matter scheduled by the Commission to

a date certain.

"Cross-examination" means the

questioning of a witness by a party other

than the party calling the witness.

"Deny" means to refuse to grant or

accept.

"Deposition" means a method where

the sworn testimony of a person is taken.

The person who answers the questions is

said to be deposed.

“Determination of the Executive

Director” means a document which states

the issues, findings of fact, conclusions of

law and disposition of an appeal.

"Direct-examination" means the

questioning of a witness by the party calling

the witness.

"Discovery" means to obtain relevant

facts and information about the appeal from

another party or person.

"Dismiss" means to close without

further consideration.

"Employee" or "State employee"

means an elected or appointed officer or

employee of an agency unless otherwise

indicated [74:840-1.3(2)].

"Evidence" means relevant documents

or testimony offered to prove or disprove the

existence or non-existence of a fact.

"Ex-parte communication" means

communications by anyone with a presiding

official on the merits of an appeal which

could affect its outcome.

"Executive Director" means the

appointing authority of the Oklahoma Merit

Protection Commission [74:840-1.3(30)].

"Exhibit" means items offered as

evidence.

"Expert" means a person

knowledgeable in a specialized field, that

knowledge being obtained from either

education or personal experience.

"Filing" means the receipt of

documents by the Commission.

"Final decision" means a

determination made by a presiding official

after considering the merits, testimony and

evidence of an appeal. Final decision also

refers to a determination made by the

Executive Director to dismiss an appeal.

"Grant" means to give or permit.

"Hearing" means an open, formal

proceeding conducted by an Administrative

Law Judge, Executive Director or

Commissioners to decide an appeal. The

proceeding is to provide each party with an

opportunity to present evidence in support

of their side of the case. The hearing is

governed by the Oklahoma Administrative

Procedures Act, Sections 309 through 316

of Title 75 of the Oklahoma Statutes.

"Interrogatories" means written

questions given to a party or witness. The

answers are made in writing under oath.

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"Intervenor" means a person or agency

permitted to voluntarily enter an appeal as a

party.

"Investigative report" means a written

account of an investigation to assist the

Executive Director in determining whether

or not a violation within the Commission's

jurisdiction may have occurred.

"Issue" means a disputed point or

question on which the parties to an appeal

seek a resolution.

"Joinder" means the combining of 2 or

more appeals of one appellant.

"Jurisdiction" means the authority of

the Commission to complete its duties and

responsibilities.

"Jurisdictional limitations" means the

statutory restrictions on the scope, time

limits, and type of appeals which may be

considered by the Commission.

"Merit Rules" or "Merit Rules for

Employment" means the merit system of

personnel administration rules. The merit

rules include both the rules in this chapter

as adopted by the Merit Protection

Commission and the rules in OAC 530 as

adopted by the Administrator of the Office of

Personnel Management.

"Moot" means no longer in dispute

because issues have already been decided

or when rendered, a decision could not

have any practical effect on the existing

dispute.

"Motion" means a request for a ruling

to be made by a presiding official or the

Commissioners.

"Not sustain" means to deny a request;

to deny an appeal.

"Order" means a command or directive

given by a presiding official, Executive

Director or Commissioners.

"Party" means an Appellant, Appellee

or Intervenor.

"Payroll claim protest" means a

protest in which an employee challenges

the decision that an overpayment or

underpayment of salary has been made or a

protest of the amount of the alleged

overpayment or underpayment.

"Petition for Appeal" means the form

adopted by the Commission for the filing of

an appeal.

"Petition for Reconsideration,

Rehearing or Reopening" means a

document filed after the final decision on an

appeal has been made requesting that the

Commissioners rehear, reopen or

reconsider the case based on specific

grounds as outlined in Section 317 of Title

75 of the Oklahoma Statutes.

"Prehearing conference" means a

proceeding conducted by an Administrative

Law Judge or Executive Director with the

parties to identify the issues, documents,

witnesses and motions which will guide the

Administrative Law Judge or Executive

Director in the conduct of the hearing.

"Preponderance of evidence" means

information or evidence which is more

convincing or believable than the

information or evidence offered in

opposition.

"Presiding official" means the

Executive Director or a person appointed by

the Executive Director to serve the

Commission in the capacity of

Administrative Law Judge, mediator or other

Alternative Dispute Resolution Program

arbitrator or facilitator.

"Prima facie case" means a case

which on its face is presumed to be true and

will prevail until contradicted and overcome

by other evidence.

"Protective order" means a directive

issued to protect a party or witness from

annoyance, embarrassment, oppression or

undue burden or expense.

"Quash" means to annul or make void.

"Relevant" means directly related to the

issue or issues being examined.

"Remedy" means corrective action

sought by or afforded to a party.

"Representative" means the

designated agent of record, identified in the

petition for appeal or through an entry of

appearance or other written means, acting

on behalf of a party.

"Stipulation" means a voluntary

admission of fact.

"Subpoena" means an order to appear

at a certain time and place to give

testimony.

"Subpoena Duces Tecum" means an

order requiring the production of books,

papers and other documents.

"Summary judgment" means a

request or decision on issues where there is

no dispute of material fact.

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"Sustain" means to grant a request; to

grant an appeal.

"Testimony" means statements given

by a witness under oath or affirmation.

"Violation" means a breach of any law

or rule over which the Commission has

jurisdiction.

455:10-1-3. Effect of amendments to

rules and laws on appeals

(a) If a court of competent jurisdiction finds

any rule or part of any rule in this chapter to

be unenforceable, it shall not impair or

invalidate the remaining rules and the

remaining rules shall be valid and

enforceable to the fullest extent allowed by

law.

(b) Unless precluded by law, any appeal

shall be completed in accordance with the

procedural laws and rules in effect at the

time the appeal was filed.

455:10-1-5. Review of Commission

records [AMENDED Effective 3/1/2008 ]

(a) Generally. The Commission supports

the public's right to know and be informed

about their government. This right must be

balanced with the rights of individuals to

have adequate protection from clearly

unwarranted invasions of personal privacy

and assaults on their integrity. Records

maintained by the Commission may be

inspected and copied during normal

business hours in accordance with state

and federal laws and the rules in this

chapter. Any person wishing to inspect,

copy or reproduce records under the control

of the Commission shall complete the

Commission's Request for Access to

Records form. Sufficient advanced notice

shall be given so the essential functions of

the Commission shall not be severely

disrupted. Appointments are preferred.

(b) Confidential records. Access to

confidential records shall be limited to

officers and employees of state or federal

government acting in their official capacities.

The extent of access may be limited as

determined to be appropriate by the

Executive Director.

(1) The following Commission records

shall be confidential:

(A) records which relate to internal

personnel investigations, including

examination and selection for employment,

hiring, appointment, promotion, demotion,

discipline or resignation. [51:24A.7(A)(1)].

(B) records received from the

federal government or records generated or

gathered as a result of federal legislation

may be kept confidential to the extent

required by law.

(C) records specifically required by

law to be kept confidential, including records

not discoverable under state law, such as

material prepared in anticipation of lawsuit

or trial, records protected by a state

evidentiary privilege, [51:24A.5(1)(a)],

records of what happened during executive

session. [51:24A.5(1)(b)].

(D) other records which, if

disclosed, would constitute a clearly

unwarranted invasion of personal privacy,

such as employee evaluations, payroll

deductions or employment applications of

persons not hired. [51:24A.7(A)(2)].

(E) state employee home

addresses, home telephone numbers and

social security numbers shall not be open to

public inspection or disclosure [74:840-

2.11].

(F) see OAC 455:10-7-6 for access

to Commission investigative files.

(2) The Executive Director may keep

records confidential that are specifically

permitted by law to be kept confidential.

(c) Public records. All personnel records

that are not confidential shall be available

for public inspection and copying. Any

employee of the state of Oklahoma shall

have a right of access to his or her own

records on file with the Commission unless

a law prohibits it. Public records include,

but are not limited to, records of:

(1) employment application of a person

who becomes a state official or employee;

[51:24A.7(B)(1)]

(2) gross receipts of public funds;

[51:24A.7(B)(2)]

(3) dates of employment, title or

position; [51:24A.7(B)(3)]

(4) final disciplinary action resulting in

loss of pay, suspension, demotion or

discharge. [51:24A.7(B)(4)].

(d) Appeal records. The records of an

active appeal shall be open to inspection

only by a party to the appeal or the party's

designated representative. The records of

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an inactive appeal shall be open to

inspection in accordance with the Oklahoma

Open Records Act and these rules.

(e) Fees. The Commission shall charge a

reasonable fee for copies of Commission

records, including a reasonable search fee

to recover the direct costs of document

searches if the request is solely for

commercial purposes [51:24A.5(3)(a)] or

clearly would cause excessive disruption of

the Commission's essential functions.

[51:24A.5(3)(b)].

455:10-1-7. Organization [AMENDED

Effective 3/1/2008 ]

(a) The Oklahoma Merit Protection

Commission consists of nine members

(Commissioners): two members appointed

by the President Pro Tempore of the

Senate; two members appointed by the

Speaker of the House of Representatives;

and five members appointed by the

Governor. The appointing authority of the

Commission is the Executive Director.

(b) The Commissioners and the Executive

Director may take action to carry out the

duties of the Commission and to accomplish

the objectives of any program or activity

within the Commission's jurisdiction and

authority.

(c) Requests, submissions and other

communications to the Commission can be

accomplished by mail, email, fax, telephone,

or personal visit, except where specified in

rule or policy pertaining to the Commission’s

programs and processes.

(d) The normal business hours of the

Commission are 8:00 a.m. to 5:00 p.m.,

Monday through Friday, except for legal

holidays.

455:10-1-8. Request for promulgation,

amendment or repeal of a rule

(a) Any person may request the

Commission adopt, amend or repeal a rule

in this chapter. The request shall be made

in writing and shall include an explanation to

support the request. A request shall also

include:

(1) the name, address and telephone

number of the person making the request;

(2) the name, address and telephone

number of the agency or organization the

person represents, if any;

(3) the number used to identify the rule

if the request is to amend or repeal an

existing rule; and

(4) the proposed language if the request

is to amend an existing rule or adopt a new

rule.

(b) It is the Commission's policy to respond

to such requests within 30 calendar days.

455:10-1-9. Request for declaratory

ruling

(a) Any person directly affected by a

Commission final or addendum decision

may file a request for a declaratory ruling to

explain or clarify the order in relation to a

particular situation. The Commission shall

not entertain a request based on

hypothetical or speculative situations.

(b) Any person may file a request for

interpretation or applicability of any rule

adopted by the Commission.

(c) A request for a declaratory ruling shall

be made in writing and shall include the

following information:

(1) the name, address and telephone

number of the person making the request;

(2) the name, address and telephone

number of the agency or organization the

person represents, if any;

(3) a description of the problem or issue

that is the basis for the request;

(4) a statement of the facts and

questions the person may have; and

(5) the identification of the specific order

or rule on which the declaratory ruling is

being sought.

(d) A request for declaratory ruling

submitted pursuant to this section shall not

automatically stay enforcement of the final

or addendum order or otherwise suspend

any applicable time limits.

455:10-1-10. Forms and instructions

[AMENDED Effective 3/1/2008 ]

Other chapters in this Title contain

references to filing instructions that the

Commission uses and requires. Persons

may contact the Commission to request

forms and general information about

completing and submitting them.

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SUBCHAPTER 3. JURISDICTION, RIGHTS AND PROCESSES

S

ECTION

T

ITLE

455:10-3-1.1 Purpose [AMENDED Effective 3/1/2008]

455:10-3-2 Determining jurisdiction; “file” defined [AMENDED Effective

3/1/2008]

455:10-3-3 Alleged violations of the Oklahoma Personnel Act or Merit Rules

455:10-3-3.3 No jurisdiction over designation of worksite [NEW Effective

3/1/2008]

455:10-3-4.1 Notice of appeal [AMENDED Effective 3/1/2008]

455:10-3-5 Discrimination

455:10-3-6 Alleged violation of employee's freedom of expression

[AMENDED Effective 3/1/2008]

455:10-3-7 Appeal of demotion, suspension without pay or discharge

455:10-3-8 Notice of appeal rights

455:10-3-9 Petition for appeal

455:10-3-10 Processing of appeals

455:10-3-11 Consolidation and joinder of appeals

455:10-3-12 Settlement of appeals

455:10-3-13 Dismissal of appeals

455:10-3-14 Appeal record

455:10-3-15 Transcripts [AMENDED Effective 3/1/2008]

455:10-3-16 Motions and requests

455:10-3-17 Continuances [AMENDED Effective 3/1/2008]

455:10-3-18 Ex-parte communications

455:10-3-19 Sanctions

455:10-3-20 Petitions to rehear, reopen or reconsider cases

455:10-3-21 Stay of enforcement

455:10-3-22 Administrative fine

455:10-3-1.1. Time [AMENDED Effective

3/1/2008 ]

Time is jurisdictional.

(1) Alleged violation appeal. Unless

otherwise provided for by statute or the

rules in this chapter, an alleged violation

appeal shall be filed within 20 calendar days

after the alleged violation occurs. The

Executive Director may extend this time limit

if the appellant demonstrates that he or she

filed within 20 calendar days after becoming

aware of, or with due diligence, should have

become aware of the alleged violation, or

for other good cause shown. For

information on filing an appeal after a formal

grievance see OAC 455:10-19-46.

(2) Adverse action appeal. An appeal

of a permanent classified employee

appealing a discharge, suspension without

pay or involuntary demotion shall be filed

within 20 calendar days after receipt of the

written notice of the action imposed, by

certified mail or personal service. This is a

statutory time limit and may not be

extended. [74:840-6.5(C)].

455:10-3-2. Determining jurisdiction;

"file" defined [AMENDED Effective

3/1/2008 ]

(a) It is solely the authority of the

Commissioners and Executive Director to

determine whether or not matters being

appealed are subject to the jurisdiction of

the Commission. No request for appeal

shall be accepted more than 12 months

after the event causing the appeal, unless

otherwise provided for by any statute.

Unless otherwise defined in the rules in this

chapter, "file" means receipt by the

Commission.

(b) The file date of a document is the

earliest date the Commission receives the

document or the date it is postmarked. If the

last day for filing is a Saturday, Sunday or

legal holiday as proclaimed by the

Governor, the file date shall be extended to

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the end of the next business day.

(c) The Executive Director is authorized to

establish guidelines for the electronic filing

of documents.

455:10-3-3. Alleged violations of the

Oklahoma Personnel Act or Merit Rules

Any person who believes that his or her

rights under any law or rule over which the

Commission has jurisdiction have been

violated may file a petition for appeal with

the Commission within the time limits

specified in OAC 455:10-3-1.1(1). Pursuant

to OAC 455:10-19-35, the Commission shall

accept appeals regarding promotional

issues, pay movement mechanisms or

compensation issues, discipline issues

(except discharge, suspension without pay

and involuntary demotion), leave issues and

the employee service rating system issues

only after such issues have been filed and

addressed through the internal agency

grievance procedure. For further

information on these specific issues and the

internal agency grievance procedure see

OAC 455:10-19. All other issues, including

illegal discrimination (OAC 455:10-3-5) and

whistleblower (OAC 455:10-3-6) may be

filed directly with the Commission.

455:10-3-3.3. No jurisdiction over

designation of worksite [NEW Effective

3/1/2008]

A state agency shall have sole and final

authority to designate the place or places

where its employees shall perform their

duties. The Oklahoma Merit Protection

Commission shall not have the jurisdiction

to accept an appeal of an employee

resulting from the employing agency

transfer of an employee from one county or

locality to another, changing the assigned

duties of an employee, or reliving the

employee from the performance of duty at a

particular place and reassigning to an

employee duties to be performed at another

place, unless an employee asserts that:

1. The action resulted in a change in

job classification or reduction of the base

salary of the employee;

2. A violation of the provisions of

Section 840-2.5 or 840-2.9 of [Title 74] may

have occurred; or

3. The action was taken clearly for

disciplinary reasons and to deny the

employee the right of appeal [74:840-4.19].

455:10-3-4.1. Notice of appeal

[AMENDED Effective 3/1/2008 ]

Upon receipt of a petition for appeal, the

Commission shall send a notice of appeal to

the appointing authority or designated

representative. The Executive Director may

order a person or agency added as a party

of record and that person or agency shall be

sent a notice of appeal.

455:10-3-5. Discrimination

(a) No person in the state service, whether

subject to the provisions of the Merit System

or in unclassified service, shall be appointed

to, demoted or dismissed from any position

in the state service, or in any way favored,

harassed or discriminated against with

respect to employment because of political

or religious opinions or affiliations, race,

creed, gender, color, ancestry, national

origin or by physical handicap so long as

the physical handicap does not make the

person unable to do the work for which

employed [74:840-2.9].

(b) No agency, department, institution,

board or employee shall:

(1) separate or refuse to employ any

person otherwise qualified on account of

age, political or religious opinions or

affiliations, race, creed, gender, color,

ancestry, national origin or by handicap;

(2) discriminate for the same reasons in

regard to tenure, terms or conditions of

employment;

(3) deny promotion or increase in

compensation solely for these reasons;

(4) publish an offer of employment

based on such discrimination;

(5) adopt or enforce any rule or

employment policy which so discriminates

as to any employee;

(6) seek such information as to any

applicant or employee [this does not

preclude information sought in accordance

with any other federal or state statute]; or

(7) discriminate in the selection of

personnel for training solely on such basis

[74:954].

(c) The Commission may use the

guidelines for reviewing discrimination

complaints as used by the Equal

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Employment Opportunity Commission

(EEOC) and may review court decisions

and federal statutes, to include but not

limited to, such statutes as the Americans

with Disabilities Act (ADA), Age

Discrimination in Employment Act (ADEA),

Title VII of the Civil Rights Act, as amended

and the Civil Rights Act of 1991.

455:10-3-6. Alleged violations of

employee's freedom of expression

[AMENDED Effective 3/1/2008 ]

(a) General. For purposes of this section

agency means any office, department,

commission or institution of the state

government [74:840-2.5(B)]. No officer or

employee of any state agency shall prohibit

or take disciplinary action against

employees of such agency, whether subject

to the provisions of the Merit System or in

unclassified service, for:

(1) Disclosing public information to

correct what the employee reasonably

believes evidences a violation of the

Oklahoma Constitution or law or a rule

promulgated pursuant to law;

(2) Reporting a violation of the

Oklahoma Constitution, state or federal law,

rule or policy; mismanagement; a gross

waste of public funds; an abuse of authority;

or a substantial and specific danger to

public health or safety;

(3) Discussing the operations and

functions of the agency, either specifically or

generally, with the Governor, members of

the Legislature, the print or electronic

media, or other persons in a position to

investigate or initiate corrective action;

(4) Taking any of the above actions

without giving prior notice to the employee’s

supervisor or anyone else in the employee’s

chain of command. [74:840-2.5(B)].

(b) Appeal rights.

(1) Any employee or any former

employee aggrieved pursuant to this section

may file an appeal with the Commission

within 60 calendar days of the alleged

disciplinary action [74:840-2.5(F)]. This is a

statutory time limit and may not be

extended.

(2) The appeal shall contain, as a

minimum,:

(A) the name of the person(s)

alleged to have violated this section;

(B) the disciplinary action taken and

when such disciplinary action was taken;

(C) the public information disclosed,

to whom it was disclosed, and when it was

disclosed; or,

(D) the violation of the Oklahoma

Constitution, state or federal law, rule or

policy, mismanagement, gross waste of

public funds, abuse of authority, or

substantial and specific danger to public

health or safety reported, to whom it was

reported, and when it was reported, or;

(E) the operations and functions of

the agency discussed, with whom such

discussions were made, and when such

discussions took place.

(3) Sufficient evidence or information

shall be provided which causes the

Executive Director to believe there is a

causal connection between the alleged

protected activity and the disciplinary action.

For purposes of this section, causal

connection means such evidence or

information which shows that the

disciplinary action was taken in relationship

to the alleged protected activity.

(c) Sanctions. Section 840-2.5(G) of Title

74 of the Oklahoma Statutes sets out

corrective actions and sanctions which may

be taken for violation of this section.

(d) Freedom of expression posting.

Each state agency, department, institution,

board and commission in all branches of

state government shall prominently post or

publish a copy of Section 840-2.5 of Title 74

of the Oklahoma Statutes in locations where

it can reasonably be expected to come to

the attention of all employees [74:840-

2.5(D)].

455:10-3-7. Appeal of demotion,

suspension without pay or discharge

Any permanent classified employee who

is discharged, involuntarily demoted or

suspended without pay may file a petition

for appeal with the Commission within the

time limits specified in OAC 455:10-3-1.1(2).

455:10-3-8. Notice of appeal rights

When action is taken pursuant to any

rule or statutory provision which requires

notice of a right of appeal to the Oklahoma

Merit Protection Commission, the employee

or applicant shall be provided:

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(1) notice of the right to file an appeal

with the Commission, the time limits for

receipt of the appeal and address of the

Commission office;

(2) a citation of the statute or rule under

which the action was taken; and,

(3) a copy of the Commission's petition

for appeal form.

455:10-3-9. Petition for appeal

(a) A petition for appeal shall contain the

following information:

(1) the name, address and telephone

number of the appellant. The appellant

shall maintain a current address with the

Commission throughout the appeal process.

Failure to do so shall be cause for dismissal

of the appeal.

(2) the name of the agency against

whom the appeal is filed;

(3) the date of the action taken or not

taken which the appellant believes violated

his or her rights;

(4) the date notice was received of any

discharge, suspension without pay or

involuntary demotion and a copy of such

notice shall be attached to the petition for

appeal;

(5) the basis for the appeal stating who

did what, when, where, how and why.

Documentary evidence should be attached

to the petition for appeal;

(6) a citation of the statute or rule the

appellant believes has been violated;

(7) a statement of the remedy the

appellant is seeking;

(8) the name, address and telephone

number of the appellant's representative, if

any;

(9) a description of any internal agency

grievance or other complaint the appellant

or anyone acting on the appellant's behalf

has filed with any other agency regarding

the same issues; and

(10) signature of the appellant and

representative, if any.

(b) If asserting a continuing violation, the

appellant shall demonstrate in the petition

for appeal that the alleged acts are part of

an ongoing pattern and at least one of the

alleged acts occurred within the relevant

jurisdictional time limits.

455:10-3-10. Processing of appeals

(a) Adverse action appeals. Adverse

action appeals shall be processed in

accordance with Section 840-6.5 of Title 74

of the Oklahoma Statutes and the rules in

this chapter.

(b) Alleged violation appeals. Alleged

violation appeals shall be processed in

accordance with Section 840-6.6 of Title 74

of the Oklahoma Statutes and the rules in

this chapter. All appeals arising from

employment in the unclassified service shall

be processed in accordance with this

section.

(c) Payroll claim protests. Payroll claim

protests shall be processed in accordance

with Section 840-2.19 of Title 74 of the

Oklahoma Statutes and the rules in this

chapter. The agency shall:

(1) if asserting the Office of Personnel

Management detected the error(s) and the

agency relied on the information from the

Office of Personnel Management, provide

the Commission copies of the Office of

Personnel Management findings, results of

the audit conference required by Section

840-2.19 of Title 74 of the Oklahoma

Statutes, a summary of the findings of the

agency investigation, a description of the

investigation, a summary of the evidence

obtained from the investigation and a

description of corrective action taken. The

agency shall include a certification from the

appointing authority's authorized payroll

agent of the method used in reaching any

calculation and a certification that such

calculations are correct.

(2) if determining that an overpayment

occurred, provide the Commission a copy of

any and all documents and information

considered during the agency investigation,

a list of documents, laws, rules or policy

which were used in making the factual

determination that an overpayment

occurred, and the date the overpayment

determination was made and the name of

the person making the decision that an

overpayment occurred. The agency shall

include a certification from the appointing

authority's authorized payroll agent of the

method used in reaching any calculation

and a certification that such calculations are

correct.

455:10-3-11. Consolidation and joinder

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of appeals

The Executive Director, on his or her

own initiative or upon written request of a

party, may order the consolidation or joinder

of appeals if to do so will expedite the

processing of the appeals and not adversely

affect the interest of the parties.

455:10-3-12. Settlement of appeals

Settlement discussions are appropriate

and encouraged at any stage of the appeal

process. The parties may elect to enter into

settlement discussions on their own or

through mediation. If settlement is reached

and endorsement of the Commission is

requested, the agreement shall be put into

writing and signed by all parties or

representatives. The agreement shall be

filed with the Commission and shall be

reviewed and approved before dismissal of

the appeal will be entertained. If approved,

the Commission shall retain jurisdiction to

enforce the terms of the agreement over

which the Commission has jurisdiction and

the agreement shall become part of the

record.

455:10-3-13. Dismissal of appeals

(a) A petition for appeal, or an issue in a

petition for appeal, may be dismissed if:

(1) it is moot or there is insufficient

evidence to support the allegations;

(2) the appellant fails or refuses to

appear for a scheduled meeting;

(3) the appellant refuses to accept a

settlement offer which affords the relief he

or she could reasonably expect if he or she

prevailed in the appeal; or

(4) it is not timely filed or is not within

the Commission's jurisdiction or authority.

(b) The Executive Director may order a

person or agency dismissed as a party of

record.

455:10-3-14. Appeal record

(a) Content. An appeal record shall

include:

(1) the petition for appeal, notices and

intermediate rulings;

(2) evidence considered in making a

final decision;

(3) a statement of matters officially

noticed;

(4) questions and offers of proof,

objections and rulings thereon;

(5) proposed findings and exceptions;

(6) any proposed or final orders issued

by the Commission; and

(7) all other data submitted to a

presiding official in connection with his or

her consideration of the appeal.

(b) Transmission to reviewing court:

Within 30 calendar days after proper service

of a petition for review or equivalent process

upon it, or within such further time as the

reviewing court may allow, the Commission

shall transmit to the reviewing court a

certified copy of the appeal record under

review.

455:10-3-15. Transcripts [AMENDED

Effective 3/1/2008 ]

(a) Hearings shall be recorded by digital

recordings. The Commission’s recording

will serve as the official recording for

purposes of creating an official written

transcript. The Commission shall prepare a

written transcript of the recording only upon

written request and receipt of a deposit of

cash or cashiers check in an amount

determined to be appropriate to cover the

costs associated with the transcription,

except as prohibited by statute.

(b) Upon application, the Commission shall

pay transcription costs on behalf of an

indigent respondent, if the respondent

establishes indigent condition through

execution of an in forma pauperis affidavit

upon a form approved by the Commission.

Should the indigent respondent receive a

financial recovery, the respondent shall

reimburse the Commission from those

proceeds. [74:840-1.21].

(c) Any party desiring to have a hearing or

Alternative Dispute Resolution Program

procedure recorded by a court reporter shall

request approval of the presiding official

before initiating such action. The party

making the request shall bear the

associated expenses and costs and shall

provide a copy of the written transcript to

the Commission at no cost.

455:10-3-16. Motions and requests

Oral motions may be made during a

prehearing conference, hearing or

Alternative Dispute Resolution Program

procedure. All other motions and requests

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shall be filed in writing, shall state the

reason for the motion or request and shall

include an affidavit of service to all other

parties.

455:10-3-17. Continuances [AMENDED

Effective 3/1/2008]

A request for continuance shall be filed

in writing and shall include the cause for the

request and a statement of agreement or

disagreement by the other party(s). A

prehearing conference, hearing or

Alternative Dispute Resolution Program

procedure may be continued or adjourned

by the Executive Director or the presiding

official for just cause at any time. A

continuance shall be granted only in those

instances where extraordinary

circumstances exist and good cause has

been shown. If granted, a continuance shall

be made to a date certain.

(1) If granted on behalf of the

Commission or an appellee, and the

appellant is subsequently sustained in the

appeal, back pay and other benefits shall be

awarded for the entire judgment as

determined appropriate by the presiding

official.

(2) If granted on behalf of the appellant

and he or she is subsequently sustained in

the appeal, back pay and other benefits

shall be awarded only for the period of time

that the appellant did not delay the appeal

as determined appropriate by the presiding

official.

455:10-3-18. Ex-parte communication

Ex-parte communications are those

which involve the merits of an appeal. Ex-

parte communications are prohibited from

the time an appeal is filed until a final

decision is issued. This section shall not

apply to Commission investigations or to

other communications authorized or

required by statute or the rules in this

chapter.

455:10-3-19. Sanctions

The Commissioners, Executive Director

or a presiding official may assess sanctions

for failure to comply with notice

requirements, time schedules, directives or

orders. Such sanctions may include, but

are not limited to, dismissal of appeals,

denial of relief, or costs of the action, as

may be warranted.

455:10-3-20. Petitions to rehear, reopen

or reconsider cases

(a) General. A party adversely affected by

the final decision of a presiding official or

the Executive Director may petition the

Commissioners to order rehearing,

reopening or reconsideration of the

decision.

(b) Filing. A petition to rehear, reopen or

reconsider shall be filed within 10 calendar

days after the issue date of the final

decision and shall include an affidavit of

service to all other parties. Any response to

the petition shall be filed within 10 calendar

days after the file date of the petition and

shall include an affidavit of service to all

other parties. The time limit for filing a

petition is statutory (Section 317 of Title 75

of the Oklahoma Statutes) and may not be

extended. The Executive Director may

extend the time limit for filing a response for

good cause shown.

(c) Grounds. A petition shall specify the

grounds upon which the request is made as

specified in Section 317 of Title 75 of the

Oklahoma Statutes. Such grounds are:

(1) newly discovered or newly available

evidence relevant to the issues. The

request shall include the new evidence and

verification that such evidence is true.

(2) need for additional evidence to

adequately develop the facts essential to

proper decision.

(3) probable error committed by the

Commission in the proceeding or in its

decision such as would be grounds for

reversal on judicial review of the order. The

request shall identify the probable error

committed.

(4) need for further consideration of the

issues and the evidence in the public

interest.

(5) a showing that issues not previously

considered ought to be examined in order to

properly dispose of the matter.

(d) Rejection. The Commission shall reject

petitions and responses which are not

timely filed.

(e) Scheduling. The matter shall be

scheduled for consideration by the

Commissioners on the earliest possible date

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and parties shall be notified of the date, time

and location.

(f) Commissioners action. The

Commissioners may permit oral arguments

and may request information or ask

questions of any party or other persons.

The Commissioners shall rule on petitions

by a majority vote of the Commissioners

present at the meeting. If granted, the

grounds shall be stated on the record and

the Commissioners may order:

(1) the matter referred to any presiding

official;

(2) the matter referred to the same

presiding official for further consideration of

the matter on those grounds upon which the

petition was granted;

(3) the matter referred to the Executive

Director for further action;

(4) the decision to be modified or

amended; or

(4) any other relief the Commissioners

determine just and appropriate.

(g) Continuance. A request for

continuance shall be filed in accordance

with OAC 455:10-3-17 and shall be ruled on

by the Executive Director.

(h) Judicial review. Within 30 calendar

days after exhausting all remedies under

the Administrative Procedures Act, either

party may appeal to a higher court. The

State of Oklahoma or any agency of the

state shall not be allowed to appeal to the

district court unless the employee is

continued on full pay in the same status of

employment existing prior to suspension or

discharge [74:840-6.5].

455:10-3-21. Stay of enforcement

The filing of a petition to rehear, reopen

or reconsider or a petition for judicial review

shall not automatically stay enforcement of

the original decision.

455:10-3-22. Administrative fine

(a) Section 840-6.9 of Title 74 of the

Oklahoma Statutes states that the

Commissioners may levy an administrative

fine not to exceed five thousand dollars

against any person, whether subject to the

provisions of the merit system or in

unclassified service, who after proper notice

fails or refuses, within a reasonable period

of time, to implement a written order of the

Commission. Such fine shall be assessed

against the person who violates the order

and shall not be paid by any monies of the

employing entity in which the person is

employed or serves.

(b) The Executive Director may file a

request with the Commissioners in

accordance with this section after providing

the person written notice of the actions the

Executive Director may take. The party

shall be afforded an opportunity to respond

and provide additional evidence to support

his or her position.

(c) For purposes of this section,

"reasonable time" means, when the order

does not fix a time for performance of the

action, such time as is necessary,

conveniently, to do what the order requires

to be done, as soon as the circumstances

will permit.

SUBCHAPTER 7. INVESTIGATIONS

S

ECTION

T

ITLE

455:10-7-1 Preliminary investigation

455:10-7-2 Directed investigation [AMENDED Effective 3/1/2008]

455:10-7-3 Fact finding conference

455:10-7-4 Investigative report [AMENDED Effective 3/1/2008]

455:10-7-5 Standards

455:10-7-6 Investigative file [AMENDED Effective 3/1/2008]

455:10-7-7 Agency required investigations

455:10-7-1. Preliminary investigation

(a) A preliminary investigation shall be

conducted upon receipt of a petition for

appeal to determine through review of any

content in the petition for appeal and

attachments: jurisdiction, issues of the

appeal, parties to the appeal and whether or

not there is sufficient evidence to support

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the allegations.

(b) Clarification of the appeal may be

obtained through written questions,

interviews or any other methods determined

appropriate. Failure of the appellant to

appear, respond or provide requested

information shall be grounds to dismiss the

appeal without further review.

(c) If jurisdictional requirements are not met

or if the appellant has not provided evidence

to support the allegations, the parties shall

be sent a copy of the investigative report

which shall describe why proposed

dismissal action is being recommended.

Any party may respond, in writing, and

provide any additional information within the

time limits established for receipt of such

information. The time limit for response

may be extended for good cause.

455:10-7-2. Directed investigation

[AMENDED Effective 3/1/2008 ]

(a) General. Upon receipt of a petition for

appeal or on its own initiative, the

Commissioners or Executive Director may

direct that an investigation of any agency's

employment practices be conducted. The

directed investigation is a method to assist

in determining whether or not a violation

within the Commission's jurisdiction may

have occurred. In conducting

investigations, the Commission may

exercise any statutory authority and may

use all powers not otherwise prohibited.

(b) Extent. The investigation shall be

conducted to the extent necessary to

determine whether or not there are

reasonable grounds and evidence to believe

whether or not the alleged violation(s) may

have occurred.

(c) Requests for information. The

Commission may request responses or

information from any agency or person.

Written responses and information may be

required and may be obtained through

written questions, interviews or any other

methods determined appropriate. The time

limit for submission of responses and

information may be extended for good

cause.

(1) Failure of an appointing authority,

agency representative, or named person to

appear, respond or provide requested

information may be grounds to believe the

alleged violation(s) may have occurred

without further review.

(2) Failure of an appellant, or his or her

designated representative, to appear,

respond or provide requested information

shall be grounds to dismiss the appeal

without further review.

(d) Interviews. Parties and witnesses may

be interviewed face-to-face or by telephone

to obtain relevant facts and knowledge

concerning the issues in dispute. Interviews

may be conducted at the Commission office

or any other location determined

appropriate. A party or witness may have

his or her representative in attendance at

the interview to act in an advisory role only.

The representative shall not have or take an

active role in the investigation or interview

process.

(1) The Commission may make a record

of the interview session by digital recording.

The person being interviewed may also tape

record his or her interview session.

(2) Commission interview recordings

shall be confidential pursuant to Section

24A.7(A)(1) of Title 51 of the Oklahoma

Statutes. The person interviewed may

request a copy of the recording of his or her

interview in accordance with OAC 455:10-1-

5.

455:10-7-3. Fact finding conference

The fact finding conference is an

investigatory technique, not an adversarial

proceeding. Its purpose is to aid in

determining whether or not an alleged

violation over which the Commission has

jurisdiction may have occurred. It is not a

hearing and is not subject to laws or rules

governing hearings. Before the conference,

each party may be requested to provide the

names of persons who have relevant

information about the issues in dispute. The

conference shall be conducted by a

Commission representative who shall have

the authority to adapt the conference to the

situation at hand.

(1) Notice. At least 7 calendar days

before the conference, parties and

witnesses shall be notified of the date, time

and location. This notice shall contain the

names of persons to be interviewed and any

documented information to be brought to

the conference.

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(2) Representation. Each party may

have a representative at the conference to

act in an advisory role only and the

representative shall not be permitted to

examine or cross-examine witnesses. The

appellant and any other named party shall

speak for himself or herself; the appointing

authority may name a spokesperson who

has direct knowledge of the incidents

involving the appeal.

(3) Record of documents. A Record

of Documents shall be reviewed. This

record shall list all relevant documents

submitted before the conference and may

be supplemented with additional relevant

documents received at the conference. The

Commission representative shall determine

the relevance of documents.

(4) Order of procedure. The appellant

shall present his or her case first describing

in detail the incident(s) which allegedly

violate his or her rights and specifically how

each incident described is a violation. The

appellee shall respond to the incidents and

explain the appellee's position.

(5) Testimony of witnesses.

Witnesses shall not be present during the

fact finding conference except when giving

testimony. The witness, after being

identified, shall be asked to state in

narrative his or her knowledge of the

alleged incidents. Each party shall have the

opportunity to ask the witness questions.

The Commission representative shall

decide whether or not questions are

relevant and whether or not the witness is

required to answer. The Commission

representative may ask questions at any

stage of the conference.

(6) Closing. The Commission

representative shall close the conference

after each party has presented his or her

case and witnesses have been heard,

unless sooner terminated as a result of

settlement or other just cause. Each party

shall be notified of the findings of the

conference through the investigative report.

455:10-7-4. Investigative report

[AMENDED Effective 3/1/2008 ]

An investigative report of the preliminary

investigation, directed investigation or fact

finding conference shall be issued and

include a summary of the appeal, issues of

the appeal, findings of fact and a

recommendation for the disposition of the

appeal. The report shall also include a

reference to persons interviewed and

documents used in making the findings of

fact. The purpose of the report shall be to

assist the Executive Director in determining

whether or not a violation within the

Commission's jurisdiction may have

occurred.

(1) A copy of the investigative report

shall be issued to each party and within 10

calendar days after the issue date of the

report, any party may file a response and

include any additional relevant information

to be considered. The time limit for

response may be extended for good cause.

(2) Any party filing a response or

providing additional information should

provide a copy to all other parties.

455:10-7-5. Standards

(a) The following standards of review shall

be used and applied in investigations and in

determining whether or not a violation within

the Commission's jurisdiction may have

occurred:

(1) the applicable or relevant law or

statute;

(2) the applicable rule;

(3) the applicable agency rule, policy,

procedure or practice; and

(4) review for consistent or uniform

application, as appropriate.

(b) The Commission may also review

higher court decisions, formal Attorney

General opinions and past Commission

cases.

455:10-7-6. Investigative file [AMENDED

Effective 3/1/2008 ]

Documents obtained during the course

of a directed investigation or fact finding

conference shall be maintained in an

investigative file. The investigative file shall

be confidential pursuant to Section

24A.7(A)(1) of Title 51 of the Oklahoma

Statutes and the rules in this chapter. A

party to the appeal or his or her designated

representative may review the documents in

the investigative file and listen to a

recording of his or her interview. This

review shall be limited to the time between

the issue date of the investigative report up

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to 10 calendar days after the issue date of

the Determination of the Executive Director.

See OAC 455:10-1-5 for information on

access to Commission records.

455:10-7-7. Agency required

investigations

The Commissioners or Executive

Director may require an appointing authority

to conduct an investigation within his or her

agency of issues within the Commission's

jurisdiction. When such a request is made,

the appointing authority shall sign and send

a report of the investigation to the

Commission by the date established for

receipt. If not received, the Commissioners

or Executive Director may direct a

Commission investigation or schedule the

matter for hearing or the Alternative Dispute

Resolution Program. The report of the

investigation by the appointing authority

shall include, as a minimum:

(1) the name of the person who

conducted the investigation;

(2) a summary of the findings of the

investigation;

(3) a description of how the

investigation was conducted;

(4) a summary of evidence obtained

from the investigation;

(5) a description of any corrective action

taken or planned as a result of the

investigation.

SUBCHAPTER 9. HEARING PROCESS

S

ECTION

T

ITLE

455:10-9-1 Prehearing conference [AMENDED Effective 3/1/2008]

455:10-9-2 Hearing [AMENDED Effective 3/1/2008]

455:10-9-3 Affidavits

455:10-9-4 Closing the record

455:10-9-5 Decisions

455:10-9-1. Prehearing conference

[AMENDED Effective 3/1/2008]

(a) Purpose. The Executive Director may

schedule a prehearing conference on any

appeal set for hearing. The conference

provides an opportunity for the parties to

clarify, isolate and dispose of procedural

matters prior to the hearing.

(b) Party responsibility. Each party shall

be present, on time and prepared. Failure

to do so may result in dismissal of the

appeal or other sanctions unless good

cause is shown. Prior to the prehearing

conference each party shall file with the

Commission and provide to each other party

and the Administrative Law Judge a copy of:

(1) a brief statement of his or her

respective case, to include a list of

stipulations and requested remedy;

(2) a list of any witnesses who have

direct knowledge of the facts surrounding

the issues of the appeal and who are

expected to be called at the hearing. The

list shall include a brief statement of the

testimony each witness will offer. The list

may be amended, with the approval of the

Administrative Law Judge, before the

hearing date;

(3) a list of any documents and exhibits

and the original or a copy of each document

or exhibit to be offered into evidence at the

hearing. The list may be amended, with the

approval of the Administrative Law Judge,

before the hearing date;

(4) a list of any witnesses for whom a

subpoena is required. The list shall include

each witness's name, address and a brief

statement of the testimony to be offered by

each witness. Subpoenas shall not be

issued by the Commission without this

information. The list may be amended, with

the approval of the Administrative Law

Judge, up to 10 calendar days before the

hearing date; and

(5) any requirements or requests for

discovery. Discovery shall be requested

and completed in accordance with OAC

455:10-13-1.

(c) Representation. Each party to the

appeal may have a representative to speak

and act on his or her behalf.

(d) Administrative Law Judge

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responsibility. The Administrative Law

Judge shall:

(1) consider, facilitate and rule on

settlement;

(2) consider any matters which will aid in

the fair and prompt resolution and

disposition of the appeal;

(3) hear and rule on pending requests

or motions;

(4) rule on whether or not witnesses

have knowledge of the facts at issue;

(5) rule on whether or not documents

and exhibits are relevant;

(6) rule on whether or not discovery

requests and other motions and requests

are relevant;

(7) strike or deny witnesses, documents,

exhibits, discovery requests and other

requests or motions which are cumulative,

not relevant or not material; used as a

means of harassment; unduly burdensome

or not timely filed.

(e) Conference. The conference shall be

informal, structured by the Administrative

Law Judge and not open to the public. The

Administrative Law Judge shall record the

conference by digital recording.

(1) Notice. Each party shall be notified

of the date, time and location at least 7

calendar days prior to the scheduled

conference.

(2) Location. The conference shall be

conducted at the Commission offices or any

other location determined appropriate.

(3) Witnesses. Witnesses shall not

appear or present evidence at the

conference.

(4) Continuance. A request for

continuance shall be filed in accordance

with OAC 455:10-3-7 normally no less than

3 calendar days prior to the scheduled

conference. A lesser period of time may be

permitted for good cause shown. The

Administrative Law Judge, or in his or her

absence, the Executive Director, shall rule

on the request and in no case shall a

combination of continuances of the

prehearing conference exceed a total of 30

calendar days except for good cause

shown.

(f) Conclusion. The Administrative

Law Judge shall end the conference when

preparation for the hearing is complete,

unless sooner terminated as a result of

settlement or for other just cause.

455:10-9-2. Hearing [AMENDED Effective

3/1/2008 ]

(a) Purpose. The hearing provides each

party the opportunity to present witnesses

and evidence in support of his or her

respective case for decision by an

Administrative Law Judge. Hearings shall

be conducted in accordance with the

Oklahoma Personnel Act, the Administrative

Procedures Act and the rules in this

chapter.

(b) Party responsibility. Each party shall

be present, on time and prepared. Failure

to do so may result in dismissal of the

appeal or other sanctions unless good

cause is shown.

(c) Representation. Each party to the

appeal may have a representative to speak

and act on his or her behalf.

(d) Administrative Law Judge

responsibility. The Administrative Law

Judge shall rule on questions of

admissibility of evidence, competency of

witnesses and any other matters or

questions of law.

(e) Process. The hearing shall be formal,

structured by the Administrative Law Judge

and open to the public. Parts of a hearing

may be ordered closed when evidence of a

confidential nature is to be introduced or

where to do so would be in the best

interests of a party, witness, the public or

other affected persons. The Administrative

Law Judge shall record the hearing by

digital recording and such recording shall

constitute the official recording of the

hearing.

(1) Notice. Each party shall be notified

of the date, time and location at least 7

calendar days prior to the scheduled

hearing.

(2) Location. The hearing shall be held

at the Commission offices or any other

location determined appropriate. At the

prehearing conference any party may

request the hearing be changed to a more

convenient location. The Administrative

Law Judge shall rule on the request and

may change the location when to do so is in

the best interests of the Commission and

parties. The Administrative Law Judge shall

be compensated for travel, per diem and

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other associated costs by the appointing

authority if the location is changed at his or

her request.

(3) Witnesses. Each party may call

witnesses who have been approved by the

Administrative Law Judge to offer testimony

and evidence. The Administrative Law

Judge shall administer an oath or

affirmation to the witness and may question

the witness at any stage of the hearing.

(4) Continuance. A request for

continuance shall be filed in accordance

with OAC 455:10-3-7 normally no less than

3 calendar days prior to the scheduled

hearing. A lesser period of time may be

permitted for good cause shown. The

Administrative Law Judge shall rule on the

request and in no case shall a combination

of continuances of the hearing exceed a

total of 30 calendar days except for good

cause shown.

(f) Burden of proof. The following

burdens of proof shall also apply to appeals

heard through the Alternative Dispute

Resolution Program as well as the hearing

process.

(1) Adverse action appeal. The

burden of proof shall be upon the appointing

authority who must prove his or her case by

a preponderance of the evidence.

(A) Upon a finding that just cause

existed for the adverse action and the

discipline imposed was just, a presiding

official shall affirm the decision of the

appointing authority.

(B) Upon a finding that just cause

did not exist for the adverse action, a

presiding official may order the

reinstatement of the employee, with or

without back pay and other benefits. A

presiding official may also order that

documentation of the adverse action be

expunged from any and all of the

employee's personnel records.

(C) Upon a finding that just cause

existed for the adverse action, but did not

justify the severity of the discipline imposed,

a presiding official may order reduction of

the discipline or other corrective action. A

presiding official shall, as a minimum,

consider the following circumstances in

ordering the reduction of discipline: the

seriousness of the conduct as it relates to

the employee's duties and responsibilities;

the consistency of action taken with respect

to similar conduct by other employees of the

agency; the previous employment and

disciplinary records of the employee; and

mitigating circumstances.

(D) A presiding official who orders

reinstatement with back pay and other

benefits under (B) or (C) above, may

consider the deduction of any income the

employee may have received for the period

of time the employee was not performing his

or her duties.

(2) Alleged violation appeal. The

burden of proof shall be upon the appellant

who must prove his or her case by a

preponderance of the evidence. Upon a

finding that a violation within the

Commission's jurisdiction did occur, a

presiding official may order the appointing

authority to take the necessary corrective

action or report the findings to any other

appropriate authorities for further action.

Corrective action shall be limited to issues

submitted for decision, shall be consistent

with applicable statutes and rules and shall

be limited to action which makes the person

harmed by the violation whole as if the

violation had not occurred.

(3) Payroll claim protest. In payroll

claim protests of overpayment, the burden

of proof shall be upon the appointing

authority who must prove his or her case by

a preponderance of the evidence. In payroll

claim protests of underpayment, the burden

of proof shall be upon the appellant who

must prove his or her case by a

preponderance of the evidence. The

presiding official may determine the

amounts paid or not paid in error; determine

dates of overpayments or underpayments;

determine options available for repayment;

affirm the protest of the appellant; affirm the

decision of the appointing authority and

order corrective action.

(g) Order of procedure. The party with the

burden of proof shall present his or her case

first and the opposing party may respond. A

presiding official shall have the authority to

alter the order of procedure. This order of

procedure also applies to appeals heard

through the Alternative Dispute Resolution

Program.

(h) Summary judgment. The

Administrative Law Judge may decide

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appeals based on summary judgment when

there is no dispute as to either material fact

or inferences to be drawn from undisputed

facts, or if only question of law is involved.

455:10-9-3. Affidavits

(a)This section shall not limit the authority of

the Commission to compel any witness to

appear and offer testimony. Upon written

request and approval by the Administrative

Law Judge, an affidavit may be used when

a witness or party is unable to attend or

testify because of age, illness, infirmity,

imprisonment or other good reason.

(b) This section shall also apply to the

taking of affidavits through the Alternative

Dispute Resolution Program procedures.

455:10-9-4. Closing the record

The record shall be closed when each

party has had an opportunity to be heard

and present evidence. If the final decision

is based on summary judgment or if the

Administrative Law Judge requires the

parties to submit briefs or additional

information, the record shall be closed on

the date established for the receipt of

submissions. Once the record is closed, no

additional evidence or arguments shall be

considered. This section shall also apply to

the closing of a record through the

Alternative Dispute Resolution Program

procedures.

455:10-9-5. Decisions

The Administrative Law Judge shall file

a final decision with the Commission within

10 calendar days after the record is closed.

The final decision shall include findings of

fact and conclusions of law, written in clear

and concise language.

(1) The Executive Director shall issue

the final decision to each party, by personal

service or certified mail, within 5 calendar

days after receipt.

(2) The decision of the Administrative

Law Judge shall be final and conclusive

except as provided in the Administrative

Procedures Act and OAC 455:10-3-20

SUBCHAPTER 11. DISCIPLINE

S

ECTION

T

ITLE

455:10-11-1 General [AMENDED Effective 3/1/2008]

455:10-11-2 Purpose

455:10-11-3 Definitions

455:10-11-4 Progressive discipline [AMENDED Effective 3/1/2008]

455:10-11-5 Appointing authority responsibility

455:10-11-6 Supervisor responsibility

455:10-11-7 Employee responsibility

455:10-11-8 Records

455:10-11-9 Statistics

455:10-11-10 First phase - informal discipline

455:10-11-11 Second phase - formal discipline

455:10-11-12 [RESERVED]

455:10-11-13 Written reprimand

455:10-11-14 Causes for discharge, suspension without pay or involuntary demotion

[AMENDED Effective 3/1/2008]

455:10-11-15 Suspension without pay

455:10-11-16 Involuntary demotion

455:10-11-17 Discharge [AMENDED Effective 3/1/2008]

455:10-11-18 [RESERVED]

455:10-11-1. General [AMENDED

Effective 3/1/2008]

Each appointing authority shall establish

written policies and procedures for

progressive discipline of employees

according to the rules established by the

Oklahoma Merit Protection Commission

[74:840-6.3(A)]. Each appointing authority

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is responsible for developing and

maintaining a safe and productive work

environment. Each appointing authority and

each supervisor is responsible for promptly

applying discipline when necessary that is

equitable and suitable for the offense

considering the circumstances.

455:10-11-2. Purpose

The rules in this subchapter provide

standards and guidelines for applying

prompt, equitable and suitable discipline.

These rules pertain to probationary and

permanent classified employees unless

otherwise specified by law or the rules in

this subchapter.

455:10-11-3. Definitions

In addition to words and terms defined

in the Merit System of Personnel

Administration Rules, the following words

and terms shall have the following meaning

unless the text clearly indicates otherwise.

"Discharge" means the act of

terminating the employment relationship of

a permanent classified employee who did

not voluntarily resign or otherwise forfeit his

or her position according to any other

statutory provision. Discharge does not

include separation due to reduction-in-force.

"Discipline" means informal or formal

action to correct infractions of statute, rule,

policy, practice or procedure regarding work

performance or behavior.

"Involuntary Demotion" means the

reclassification of a permanent classified

employee from his or her classification to a

different classification which has a lower

grade assigned, made without the consent

of the employee.

455:10-11-4. Progressive discipline

[AMENDED Effectove 3/1/2008]

(a) Progressive discipline is a system

designed to ensure not only the

consistency, impartiality and predictability of

discipline, but also the flexibility to vary

penalties if justified by aggravating or

mitigating conditions. Typically, penalties

range from verbal warning to discharge,

with intermediate levels of a written warning,

suspension or demotion. Absent mitigating

circumstances, repetition of an offense is

accompanied by a generally automatic

progression to the next higher level of

discipline [74:840-6.3(B)].

(b) Based on relevant circumstances, a

single incident may justify a higher step of

discipline without proceeding through lower

steps of discipline.

455:10-11-5. Appointing authority

responsibility

(a) The appointing authority shall use the

progressive discipline phases outlined in

this subchapter and may adopt other

progressive discipline steps which address

the specific needs of his or her agency

[74:840-6.3(A)]. The appointing authority

shall file a copy of any adopted progressive

discipline policy, including revisions, with

the Commission. Any adopted progressive

discipline policy shall include a general

statement certifying that the policy contains

minimum requirements which:

(1) ensure the consistency,

evenhandedness and predictability of

discipline; and

(2) ensure the flexibility to vary penalties

if justified.

(b) The appointing authority shall furnish to

each employee a copy of the progressive

discipline policy, including revisions, used

by the agency.

455:10-11-6. Supervisor responsibility

Each supervisor shall:

(1) inform employees of the agency's

progressive discipline policy;

(2) apply discipline when necessary that

is corrective, progressive in nature,

appropriate for the offense and equitable;

(3) consider relevant circumstances

when determining the proper disciplinary

action; and,

(4) use prompt, positive action to avoid

more serious disciplinary actions.

455:10-11-7. Employee responsibility

Each employee has a duty and

responsibility to comply with the agency’s

progressive discipline policy.

455:10-11-8. Records

(a) The appointing authority shall maintain

documentation of formal discipline in the

employee's agency personnel record

consistent with the General Records

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Schedule of the Oklahoma Department of

Libraries, Office of Archives and Records.

(b) An employee shall be given a copy of

any formal disciplinary document when it is

placed in his or her agency personnel

record.

(c) Section 24A.1 et seq. of Title 51 of the

Oklahoma Statutes, Oklahoma Open

Records Act, shall govern access to

disciplinary documents.

(1) An employee shall have a right to

review disciplinary documents in his or her

agency personnel record.

(2) The Commission, because of

statutory responsibility, shall have a right of

access to disciplinary documents.

(d) The appointing authority may specify

procedures in the agency's progressive

discipline policy for the review and removal

of disciplinary documents from the

employee's agency personnel record. Any

such procedures shall be applied

consistently and uniformly.

455:10-11-9. Statistics

(a) The appointing authority shall maintain

statistical information about the number and

nature of formal disciplinary actions.

(b) The appointing authority shall provide to

the Commission on a fiscal year basis, a

discipline report containing the following

information:

(1) the number of formal disciplinary

actions taken, by type of discipline;

(2) the grade, sex and race of each

employee receiving formal discipline.

(c) The discipline report for the previous

fiscal year shall be filed with the

Commission no later than August 1 of each

year.

(d) Appointing authorities shall submit a

report even if no disciplinary actions

occurred during the relevant time period.

455:10-11-10. First phase - informal

discipline

(a) The first phase of progressive discipline

shall be informal discipline and may include

steps of verbal warning, informal discussion,

corrective interview and oral reprimand, etc.

This phase shall serve to streamline the

progressive discipline system and to bring

potential problems to an employee's

attention before they escalate.

Documentation of informal discipline may be

noted and maintained by the supervisor and

employee.

(b) Informal discipline may be given to

correct infractions of statute, rule, policy,

practice or procedure regarding work

performance or behavior. In administering

informal discipline, an employee shall be

told, as a minimum, of:

(1) the nature of the problem which is

cause for the discipline and steps which

must be taken to resolve the problem; and

(2) the consequences of repeated

infractions or continuing deficient

performance or behavior.

455:10-11-11. Second phase - formal

discipline

The second phase of progressive

discipline shall be formal discipline and shall

include written reprimand, suspension

without pay, involuntary demotion and

discharge. An employee may receive

formal discipline to correct violations of

statute, rule, policy, practice or procedure

regarding work performance or behavior.

Absent aggravating conditions, formal

discipline is normally administered after

informal discipline has failed to produce

acceptable results. Formal discipline

documentation shall include a citation of any

other informal or formal discipline which was

used in the decision to administer formal

discipline.

455:10-11-12. [RESERVED]

455:10-11-13. Written reprimand

(a) Supervisors may administer a written

reprimand to correct violations of statute,

rule, policy, practice or procedure regarding

work performance or behavior. A written

reprimand shall include, as a minimum:

(1) the date of the written reprimand;

(2) the statute, rule, policy, practice or

procedure regarding work performance or

behavior which was violated;

(3) a statement of the act or incident

which is cause or reason for the written

reprimand;

(4) steps which can be taken to resolve

the problem;

(5) a citation of any other informal or

formal discipline which was used in the

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decision to administer the written reprimand;

and

(6) consequences of repeated

infractions or continuing deficient

performance or behavior.

(b) The employee shall be provided an

opportunity to respond in writing to the

written reprimand. Any response shall be

attached to the written reprimand.

(c) The written reprimand and any response

shall be filed in the employee's agency

personnel record.

455:10-11-14. Causes for discharge,

suspension without pay or involuntary

demotion [AMENDED Effective 3/1/2008 ]

Any employee in the classified service

may be discharged, suspended without pay

for not to exceed sixty (60) calendar days,

or demoted by the agency, department,

institution, or officer by whom employed, for

misconduct, insubordination, inefficiency,

habitual drunkenness, inability to perform

the duties of the position in which employed,

willful violation of the Oklahoma Personnel

Act or of the rules prescribed by the Office

of Personnel Management or by the

Oklahoma Merit Protection Commission,

conduct unbecoming a public employee,

conviction of a crime involving moral

turpitude, or any other just cause [74:840-

6.5(C)].

455:10-11-15. Suspension without pay

(a) General. A permanent classified

employee may be suspended without pay

for any of the reasons set forth in OAC

455:10-11-14.

(b) Notice. The employee shall be

provided notice of the proposed suspension

without pay, by personal service or certified

or registered mail. Pending completion of

the notice and response opportunity, an

employee may be suspended with pay in

accordance with rules adopted by the

Administrator of the Office of Personnel

Management. The notice shall include, as a

minimum:

(1) the statute, rule, policy, practice or

procedure regarding work performance or

behavior which was violated and cause for

the proposed suspension without pay.

(2) the specific acts or omissions which

are cause or reason for the proposed

suspension without pay;

(3) an explanation of the evidence

which justifies the proposed suspension

without pay, and

(4) an opportunity, either in writing or

orally, to present reasons why the proposed

suspension without pay is improper.

(c) Final action. Within ten working days

after the employee has had opportunity to

respond to the proposed suspension without

pay, he or she shall be provided written

notice of the final action by personal service

or certified or registered mail. If the

decision made is to proceed with the

suspension without pay, the written notice to

the employee shall include as a minimum:

(1) the statute, rule, policy, practice or

procedure regarding work performance or

behavior which was violated and cause for

the suspension without pay;

(2) grounds for the action;

(3) a citation or the law or rule under

which the action is being taken;

(4) effective date and inclusive dates of

the suspension without pay;

(5) a citation of any other informal or

formal discipline which was used in the

decision to administer the suspension

without pay; and

(6) a statement of the employee's right

to file an appeal with the Commission, the

20 calendar day time limit for the

Commission's receipt of the appeal and the

address of the Commission; and

(7) a copy of the Commission's petition

for appeal form.

455:10-11-16. Involuntary demotion

(a) General. A permanent classified

employee may be involuntarily demoted for

any of the reasons set forth in OAC 455:10-

11-14.

(b) Notice. The employee shall be

provided notice of the proposed involuntary

demotion, by personal service or certified or

registered mail. Pending completion of the

notice and response opportunity, an

employee may be suspended with pay in

accordance with rules adopted by the

Administrator of the Office of Personnel

Management. The notice shall include, as a

minimum:

(1) the statute, rule, policy, practice or

procedure regarding work performance or

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behavior which was violated and cause for

the proposed involuntary demotion;

(2) the specific acts or omissions which

are cause or reason for the proposed

involuntary demotion;

(3) an explanation of the evidence

which justifies the proposed involuntary

demotion, and

(4) an opportunity, either in writing or

orally, to present reasons why the proposed

involuntary demotion is improper.

(c) Final action. Within ten working days

after the employee has had opportunity to

respond to the proposed involuntary

demotion, he or she shall be provided

written notice of the final action by personal

service or certified or registered mail. If the

decision made is to proceed with the

involuntary demotion, the written notice to

the employee shall include as a minimum:

(1) the statute, rule, policy, practice or

procedure regarding work performance or

behavior which was violated and cause for

the involuntary demotion;

(2) grounds for the action;

(3) a citation or the law or rule under

which the action is being taken;

(4) effective date of the involuntary

demotion and the classification and grade to

which demoted;

(5) a citation of any other informal or

formal discipline which was used in the

decision to administer the involuntary

demotion; and

(6) a statement of the employee's right

to file an appeal with the Commission, the

20 calendar day time limit for the

Commission's receipt of the appeal and the

address of the Commission; and

(7) a copy of the Commission's petition

for appeal form.

455:10-11-17. Discharge [AMENDED

Effective 3/1/2008]

(a) General. A permanent classified

employee may be discharged for any of the

reasons set forth in OAC 455:10-11-14.

(b) Pretermination hearing. Before any

permanent classified employee may be

terminated, the employee shall be afforded

a pretermination hearing to be held before

the appointing authority or his or her

designee. A pretermination hearing shall

not be required if the employee is being

terminated as part of a reduction-in-force as

provided for in Title 74 O.S., Section 840-

2.27C.

(1) Purpose. The purpose of a

pretermination hearing is to provide the

appointing authority or his or her designee

with information from which a determination

may be made as to whether or not

reasonable grounds exist to believe that the

charges against the employee are true and

whether or not the grounds support the

proposed termination.

(2) Notice. Notice of the pretermination

hearing shall be provided to the employee

by personal service or certified or registered

mail at least seven calendar days before the

scheduled pretermination hearing. Pending

completion of this notice and the pre-

termination hearing, an employee may be

suspended with pay in accordance with

rules adopted by the Administrator of the

Office of Personnel Management. The

notice shall include, as a minimum:

(A) the statute, rule, policy, practice

or procedure of work performance or

behavior which was violated and cause for

the proposed action;

(B) all grounds for the proposed

action;

(C) a summary of evidence or

physical evidence to support each of the

stated grounds for the proposed action;

(D) a statement of the employee's

right to be represented, by an attorney or

other person of his or her choice, at the pre-

termination hearing; and

(E) date, time and location of the

pre-termination hearing.

(3) Disciplinary certificate. The

appointing authority shall file in the

employee's official personnel file at least

seventy-two (72) hours before each

pretermination hearing, a certificate to be

included in the record stating what

disciplinary actions have been taken to

comply with progressive discipline prior to

the pretermination hearing and proposed

termination and further certifying that all

mandatory progressive discipline actions as

required by statute or rule have been taken

before pretermination hearing; provided,

said certificate shall not be required where

grounds for proposed termination are for

commission of a criminal offense and/or

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acts involving moral turpitude [74:840-

6.4(B)(3)].

(4) Hearing. The pretermination

hearing need not be a full evidentiary

hearing and formal rules of evidence shall

not apply. The pretermination hearing shall

be recorded in its entirety. The employee

shall be provided a copy of the recording, at

no cost, if the employee appeals to the

Commission and requests a copy. A copy

shall be provided as soon as possible but

no later than 14 calendar days after the

request is made.

(5) Legal review. Following the

pretermination hearing, if recommendation

for termination is made, recordings of the

pretermination hearing and all evidence in

support thereof, shall be reviewed for legal

sufficiency by the appointing agency

director or his or her designee before

termination is final [74:840-6.4(B)(7)].

(c) Final action. Within ten working days

after the pretermination hearing the

employee shall be provided written notice of

the final action, by personal service or

certified or registered mail. If the decision is

made to proceed with the termination, the

notice shall include, as a minimum:

(1) the statute, rule, policy, practice or

procedure regarding work performance or

behavior which was violated and cause for

the termination;

(2) all grounds for the termination;

(3) a citation of the law or rule under

which the termination is being taken;

(4) effective date of the termination;

(5) a citation of any other informal or

formal discipline which was used in the

decision to administer the termination; and

(6) a statement of the employee's right

to file an appeal with the Commission, the

20 calendar day time limit for the

Commission's receipt of the appeal and the

address of the Commission; and

(7) a copy of the Commission's petition

for appeal form.

455:10-11-18. [RESERVED]

SUBCHAPTER 13. DISCOVERY

S

ECTION

T

ITLE

455:10-13-1 Commission Discovery Code

455:10-13-2 Discovery methods, scope and limits

455:10-13-3 Signing and supplementation of requests, responses and objections

455:10-13-4 Discovery orders

455:10-13-5 Experts

455:10-13-6 Protective orders

455:10-13-7 Interrogatories (written questions)

455:10-13-8 Request for documents

455:10-13-9 Request for admissions

455:10-13-10 Depositions

455:10-13-11 Failure to make or cooperate in discovery

455:10-13-1. Commission Discovery

Code

This section shall be known and cited as

the Commission Discovery Code (Code).

This Code shall govern the procedure for

discovery in matters before the Commission

to provide for the just, speedy and

inexpensive determination of actions. A

party requesting discovery shall show a

reasonable need for the information

requested. Each party shall participate in

the discovery process, to the maximum

extent possible, without intervention by the

Commission. Any matter pertaining to

discovery not defined or addressed by these

rules shall be ruled on by the Executive

Director or presiding official.

455:10-13-2. Discovery methods, scope

and limits

(a) Discovery may be requested and

obtained by interrogatories (written

questions); request for production of

documents, requests for admissions and

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depositions. Discovery methods may be

used in any sequence and the fact that a

party is conducting discovery shall not

operate to delay discovery by another party.

(b) Discovery may begin after an order is

issued scheduling the appeal for hearing or

the Alternative Dispute Resolution Program.

Discovery shall be limited only to those

issues to be heard by the Commission.

455:10-13-3. Signing and

supplementation of requests, responses

and objections

A request, response or objection to

discovery shall be signed by the party or his

or her designated representative. A party

responding to a request that was complete

when it was made shall supplement the

response when it is discovered the

response was incorrect when made or the

response is no longer true.

455:10-13-4. Discovery orders

At the written request of a party, the

Executive Director or presiding official may

order discovery if the request includes a

statement of the issues in dispute; a

proposed plan and schedule for discovery;

any proposed limitations; and a statement

showing that a reasonable effort to reach

agreement with the opposing party on the

matters set forth in the request has been

made. The request shall include an affidavit

of service to all other parties. A response

may be filed within 10 calendar days after

the request is filed with the Commission and

shall include an affidavit of service to all

other parties. The presiding official may

rule on discovery requests at the prehearing

conference or preparation conference.

455:10-13-5. Experts

Parties calling expert witnesses shall be

required to state the subject matter on

which the person is considered an expert

and facts and opinions on which the expert

witness will testify.

455:10-13-6. Protective orders

The Executive Director or presiding

official may issue an order to protect a party

or person from annoyance, embarrassment,

oppression or undue burden or expense,

including but not limited to the following:

(1) that discovery not be permitted;

(2) that discovery be permitted only on

specific terms and conditions, including a

designation of the time or place;

(3) that discovery be permitted only by a

specific method;

(4) that certain matters not be inquired

into, or that discovery be conducted with no

one present except designated persons;

and

(5) that privileged or confidential

information not be disclosed or be disclosed

only in a designated way.

455:10-13-7. Interrogatories (written

questions)

(a) Availability and procedure. A party

may serve on any other party written

questions not to exceed 20 in number.

Each question shall be answered separately

and fully in writing or shall be objected to by

the person making the answer. If objected

to, the reasons shall be stated. Answers or

objections shall be made within 10 calendar

days after service unless a shorter or longer

time is ordered or agreed upon by the

parties.

(b) Scope and use. Questions may relate

to any relevant matter which is material to

the issues in dispute. It is not a ground for

objection that an answer relates to fact or

the application of law to fact.

(c) Option to produce records. Where

the answer to a question may be obtained

from the records kept by a party, it is a

sufficient answer to specify the records from

which the answer may be obtained. The

answer shall afford the party making the

request an opportunity to examine, audit or

inspect such records.

455:10-13-8. Request for documents

(a) Scope and procedure. A party may

serve on any other party a request to

produce, inspect and copy any designated

documents not confidential or privileged. A

request shall describe the items to be

inspected and a reasonable time, place and

manner of making the inspection and

performing the related acts.

(b) Response. A written response shall be

made within 10 calendar days after the

service of a request unless a shorter or

longer time is ordered or agreed upon by

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the parties. If objected to, the reasons shall

be stated. A party who produces

documents for inspection shall produce

them as they are kept in the usual course of

business or shall organize and label them to

correspond with the categories in the

request.

455:10-13-9. Request for admission

(a) General. A party may serve on any

other party a written request for admissions

of the truth of any matters that relate to

statements or opinions of fact or of the

application of law to fact. This includes the

genuineness of any documents described in

the request. Copies of documents shall be

served with the request unless they have

otherwise been furnished or made available

for inspection and copying. The number of

requests for admissions shall be limited to

20 in number.

(b) Response. Each matter for which an

admission is requested shall be answered

separately. The answer shall admit or deny

the matter or state why the answering party

can not admit or deny the matter. A written

response shall be made within 10 calendar

days after the service of a request unless a

shorter or longer time is ordered or agreed

upon by the parties. If an objection is made

the reasons shall be stated.

(c) Effect of admission. Any matter

admitted is established unless withdrawal or

amendment of the admission is permitted.

455:10-13-10. Depositions

A party may ask questions of any other

party or person, under oath, before a person

authorized to administer such oath

(depositions). A written transcript shall be

made by the person seeking the deposition

and that person shall provide a copy to the

other party or person.

455:10-13-11. Failure to make or

cooperate in discovery

For purposes of this section an evasive

or incomplete answer may be treated as a

failure to answer. If a party or his or her

designated representative knowingly fails to

obey a Commission order to provide or

permit discovery, the Commission may

issue any other such orders which are just

and may order the party or other person

failing to act to pay the reasonable

discovery fee costs, including attorney fees.

Failure to act as described in this section

may not be excused on the ground that the

discovery sought was objectionable.

SUBCHAPTER 15. ATTORNEY FEES AND COSTS

S

ECTION

T

ITLE

455:10-15-1 Award

455:10-15-2 Reasonable costs

455:10-15-3 Reasonable attorney fees

455:10-15-4 Requests [AMENDED Effective 3/1/2008]

455:10-15-5 Addendum decision

455:10-15-6 Frivolous appeals

455:10-15-1. Award

(a) General. A presiding official of any

hearing or Alternative Dispute Resolution

Program procedure may order payment of

reasonable attorney fees and costs to the

prevailing party if the position of the

nonprevailing party was without reasonable

basis or was frivolous.

(b) Burden of proof. The prevailing party

shall bear the burden of proof that he or she

is entitled to an award of attorney fees and

costs by a preponderance of the evidence.

(c) Showing of proof. To be entitled to an

award of attorney fees and costs, the

prevailing party shall be deemed to have

prevailed if he or she received all or a

significant part of the relief sought through

the appeal. Attorney fees shall not be

awardable for non-attorney pro-se

representation. There shall be a finding that

the nonprevailing party's position was

without reasonable basis or was frivolous.

(d) Standards. The without reasonable

basis or frivolous standard includes, but is

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not limited to:

(1) where the nonprevailing party's

action was clearly without merit or was

wholly unfounded;

(2) where the nonprevailing party

initiated an action against the prevailing

party in bad faith, including where the action

was brought to harass or intimidate the

prevailing party;

(3) where the nonprevailing party

committed a gross procedural error which

prolonged the proceeding or severely

prejudiced the prevailing party; and

(4) where the nonprevailing party knew

or should have known he or she would not

prevail on the merits of the action taken.

455:10-15-2. Reasonable costs

Reasonable costs shall be determined

primarily through costs associated with the

defense of the specific action before the

Commission.

455:10-15-3. Reasonable attorney fees

Reasonable attorney fees shall be

determined primarily though the analysis of

the number of hours devoted to the appeal

multiplied by a reasonable hourly billing

rate. Reasonable attorney fees may be

determined by looking at fees awarded the

attorney in the past.

(1) The prevailing community rate is

considered a reasonable hourly rate.

(2) The fee agreement between an

attorney and a party to the appeal or any

organization, union or association

representing a party, establishes a

presumption that the amount agreed upon is

the maximum reasonable amount.

(3) The actual rate of pay for a state

attorney representing a party shall be a

reasonable rate.

455:10-15-4. Request [AMENDED

Effective 3/1/2008]

A request for the award of attorney fees

or costs shall be filed with the Commission

within 10 calendar days after the issue date

of the final decision and shall include an

affidavit of service to all other parties. This

time limit is statutory and may not be

extended [74:840-6.8(B)].

(1) Grounds. The request shall

specifically state why an award of attorney

fees or costs should be made and shall be

supported by evidence to substantiate the

request and evidence to determine whether

or not the amount claimed is reasonable.

(2) Evidence. Evidence submitted with

the request shall include, as a minimum:

(A) adequate time records so the

reasonableness of the claimed fee can be

ascertained;

(B) a copy of any fee agreement

between the attorney and the client or any

fee agreement between the attorney and

any organization, union or association

representing the client;

(C) the attorney's customary billing

rate for similar work, provided the attorney

has a billing practice to report;

(D) evidence of the prevailing

community rate sufficient to establish a

market value for the services rendered;

(E) specific evidence of the

prevailing rate for similar work of attorneys

of comparable experience and reputation;

and

(F) specific detailed documentation

identifying the actual costs associated with

the request.

(3) Response. Any party may file a

response in opposition to the request within

10 calendar days after the date the request

is filed with the Commission. The response

shall include an affidavit of service to all

other parties. This time limit is statutory and

may not be extended [74:840-6.8(B)].

(4) Rejection. Requests and

responses which are not timely filed or do

not meet the requirements of this section

shall be rejected by the Commission.

455:10-15-5. Addendum decision

The presiding official shall file an

addendum decision with the Commission

within 20 calendar days after receipt of a

request and any responses. The presiding

official shall scrutinize with due care the

hours and billing rates claimed. The

addendum decision shall include findings of

fact and conclusions of law written in clear

and concise language. The Executive

Director shall issue the addendum decision

to the parties within 5 calendar days after

the addendum decision is filed with the

Commission. The addendum decision shall

be final and conclusive except as provided

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for in the Administrative Procedures Act and

OAC 455:10-3-20.

455:10-15-6. Frivolous appeals

(a) Excluding appeals heard through the

hearing or Alternative Dispute Resolution

Program, any party may be assessed

attorney fees and costs if the

Commissioners determine an appeal is

frivolous. A request for attorney fees and

costs of processing an appeal shall comply

with the provisions of this section.

(b) The Executive Director may file a

request with the Commissioners in

accordance with this section for

reimbursement of any attorney fees and

costs associated with processing an appeal.

Such action shall be taken only after a party

has been provided written notice of the

actions the Executive Director may take.

The party shall be afforded an opportunity to

respond and provide additional evidence to

support his or her position.

SUBCHAPTER 17. ALTERNATIVE DISPUTE RESOLUTION

S

ECTION

T

ITLE

455:10-17-1 Purpose, use and scope of Alternative Dispute Resolution Program

455:10-17-2 Alternative Dispute Resolution advantages

455:10-17-3 Negotiation conference

455:10-17-4 Preparation conference

455:10-17-5 Summary conference

455:10-17-6 Binding arbitration conference

455:10-17-7 Non-binding arbitration conference

455:10-17-8 Voluntary mediation

455:10-17-1 - Purpose, use and scope of

Alternative Dispute Resolution Program

(a) General. The Oklahoma Merit

Protection Commission shall establish and

maintain a mandatory Alternative Dispute

Resolution Program and shall adopt and

promulgate such rules as may be necessary

for the implementation and management of

the program [74:840-6.1(A)].

(b) Purpose. A purpose of the Alternative

Dispute Resolution Program is to provide an

economical means and access to effective

alternative dispute resolution services to all

state agencies and employees [74:840-

6.1(B)]. Alternative Dispute Resolution

(ADR) gives state agencies, employees and

applicants for state employment an

alternate means to resolve appeals,

disputes and conflicts. ADR affords the

parties to an appeal the same equity and

impartiality as the hearing process while

offering faster, less costly and more flexible

ways to resolve disputes. ADR is designed

for lay-people (people who are not

attorneys) to use.

(c) Use. The Oklahoma Merit Protection

Commission may require employees and

agencies to utilize the Alternative Dispute

Resolution Program to resolve disputes

brought before the Commission pursuant to

Sections 840-6.5 and 840-6.6 of Title 74 of

the Oklahoma Statutes [74:840-6.1(C)].

The Executive Director shall determine if

ADR is appropriate to resolve any appeal.

In making the decision to use ADR, the

types of issues to be decided, applicable

laws and rules, time factors, the efficient

and timely resolution of the appeal,

Commission resources and costs and party

interests shall be considered.

(d) Processes. The negotiation

conference shall be considered an

appropriate procedure to seek the resolution

of any appeal. Thereafter, ADR shall:

(1) not automatically be considered for

an adverse action appeal from a permanent

classified employee of discharge,

suspension without pay of 4 calendar days

or more or involuntary demotion. If

settlement is not reached at the negotiation

conference, such appeals shall be set for

prehearing conference and hearing before

an Administrative Law Judge. This shall not

preclude the employee or the agency from

requesting the appeal be resolved through

further ADR.

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(2) not automatically be considered for

an alleged violation appeal in which a

determination has been made that a

violation of Title 74 O.S., Section 840-2.5,

commonly known as the "Whistleblower

statute", may have occurred. If settlement

is not reached at the negotiation

conference, such appeals shall be set for

prehearing conference and hearing before

an Administrative Law Judge. This shall not

preclude a party to the appeal from

requesting the appeal be resolved through

further ADR.

(3) be considered appropriate to

resolve an adverse action appeal from a

permanent classified employee of

suspension without pay of 3 calendar days

of less.

(4) be considered appropriate to

resolve a payroll claim protest.

(5) be considered appropriate to

resolve all other alleged violation appeals in

which a determination has been made a

violation within the Commission's

jurisdiction may have occurred.

(e) Party request. Any party to an appeal

may request the appeal be resolved through

ADR and may also request a particular

procedure be used. The decision as to the

resolution method and which particular

procedure shall be used rests with the

Executive Director.

455:10-17-2 - Alternative Dispute

Resolution advantages

There are many advantages to ADR.

The advantages generally recognized are

the economics of time and money; the

expertise of a neutral facilitator;

confidentiality; the opportunity for a "day in

court"; the direct involvement of the parties

involved and the preservation of working

relationships.

(1) Time and money. The advantage

of saving time and money is the most

alluring. For example, resolving within

weeks differences arising out of ordinary

employment transactions, as opposed to

months of legal litigation, obviously

produces savings. Legal costs are reduced.

The time necessary for an employee or

agency to continually monitor the problem is

eliminated and the aggravation flowing from

unresolved problems is eliminated.

(2) Facilitator. The expertise of a

neutral facilitator is an advantage that

cannot be ignored. A facilitator has hands-

on experience on the issues in dispute and

has been trained by the Commission. The

facilitator can get to and address the issues

in dispute without legal perspectives.

(3) Confidentiality. The advantage of

a confidential procedure is often overlooked.

Problems of adverse publicity and the

element of embarrassment over the dispute

can be avoided.

(4) Day in court. ADR affords the

parties an opportunity to tell their side of the

dispute. The parties have their "day in

court" which allows their anger and

emotions to subside and the healing

process to begin.

(5) Direct involvement. ADR allows

agency supervisors and managers to

become involved more quickly in settling

disputes. Often the dispute is between

employees, supervisors and managers who

have an ongoing working relationship. The

preservation of this relationship is beneficial

to everyone and an early resolution of the

dispute is highly desirable.

455:10-17-3 - Negotiation conference

(a) General. The negotiation conference

provides an opportunity for the parties to

present and discuss settlement with each

other and a neutral Alternative Dispute

Resolution Program (ADRP) facilitator in

order to resolve the issues of an appeal.

The parties may discuss, negotiate and

settle any differences or issues in reaching

a resolution of the appeal. The Executive

Director may schedule a negotiation

conference:

(1) on an alleged violation appeal, after

a determination has been made a violation

within the Commission's jurisdiction may

have occurred;

(2) on a payroll claim protest, after a

properly filed protest has been presented to

the

Commission; or

(3) on an adverse action appeal, after a

determination has been made the appeal is

timely filed and the Commission has

jurisdiction.

(b) Party responsibility. Each party shall

be present and on time. Failure to do so

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may result in dismissal of the appeal or

other sanctions unless good cause is

shown. Each party is expected to negotiate

in good faith, without time constraints, and

put forth his or her best efforts with the

intention to settle, if possible. Even if the

parties do not reach a complete settlement,

they may reach agreement on various

issues.

(1) Each party to the appeal shall speak

for himself or herself.

(2) The appointing authority may name

a spokesperson to speak and act on behalf

of the agency. The spokesperson shall

have direct knowledge of or involvement in

the incidents surrounding the appeal. The

appointing authority shall not name a legal

representative to act in this capacity unless

the legal representative has direct

knowledge of or involvement in the incidents

surrounding the appeal.

(c) Party submissions. At the conference

each party shall provide to the ADRP

facilitator and each other party a copy of a

proposed good faith settlement offer.

(d) Representation. Each party to the

appeal may have a representative

accompany him or her to the conference to

act in an advisory role only. A

representative shall not be allowed to

interrogate or question any party and shall

not otherwise have or take an active role in

the conference.

(e) Facilitator. The ADRP facilitator shall:

(1) take an active role in the conference

to aid the parties in the discussion of

settlement and resolution of the appeal;

(2) have the flexibility to adapt the

conference to the situation at hand;

(3) have the authority to require any

party to produce documents for review at

the conference if to do so will aid in the

discussion of settlement and resolution of

the appeal. Documents produced and

reviewed at the conference shall not

become part of the appeal record at that

time; and

(4) terminate the conference because

of the disruptive behavior or conduct of a

party or representative and may order

sanctions if appropriate.

(5) not be assigned to preside over any

further ADR procedures on the same

matter.

(f) Conference. The conference shall be

informal, structured by the ADRP facilitator,

and not open to the public. The conference

shall be a confidential procedure and shall

not be filmed or taped.

(1) Notice. At least 7 calendar days

before the scheduled conference, the

Commission shall notify the parties of the

date, time and location of the conference.

(2) Location. The conference shall be

held at the Commission office or any other

location determined appropriate.

(3) Witnesses. Witnesses shall not

appear or give testimony at the conference.

(4) Caucus. The ADRP facilitator may

call a caucus at any stage of the

conference.

(5) Continuance. A request for

continuance shall normally be filed in writing

no less than 3 calendar days before the

scheduled negotiation conference date in

accordance with OAC 455:10-3-17. A

lesser period of time may be permitted for

good cause shown.

(A) The Executive Director shall rule

on the request and shall grant a request

only in those instances where extraordinary

circumstances exist and good cause has

been shown.

(B) A continuance shall be granted

to a date certain and in no case shall a

combination of continuances of the

negotiation conference exceed a total of 30

calendar days except for good cause

shown.

(g) Agreement. If agreement between the

parties is reached, it shall be reduced to

writing and signed by each party and the

ADRP facilitator. The agreement shall be

reviewed and approved by the Executive

Director before dismissal of the appeal shall

be entertained. If approved, the

Commission shall retain jurisdiction to

enforce the terms of the agreement over

which the Commission has jurisdiction. The

agreement shall become part of the appeal

record.

(h) Conclusion. The ADRP facilitator shall

end the negotiation conference when an

agreement is reached and reduced to

writing. If an agreement is not reached, the

ADRP facilitator shall end the conference

when he or she determines settlement is not

possible, unless sooner terminated for just

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cause. If agreement is not reached:

(1) an adverse action appeal of a

discharge, involuntary demotion or

suspension without pay of 4 calendar days

or more, shall continue on for a prehearing

conference and hearing.

(2) an alleged violation appeal, payroll

claim protest or adverse action appeal of a

suspension without pay of 3 calendar days

or less shall continue on for a preparation

conference and further ADRP procedures.

455:10-17-4 - Preparation conference

(a) General. The Executive Director may

schedule a preparation conference on any

appeal set for Alternative Dispute

Resolution. The preparation conference

provides an opportunity for the parties to

discuss and present their respective cases

with each other and an Alternative Dispute

Resolution Program (ADRP) facilitator in

order to clarify, isolate and dispose of

procedural issues before any further ADRP

procedure. The Executive Director may

schedule a preparation conference after a

negotiation conference and before any other

ADR procedure is used.

(b) Party responsibility. Each party shall

be present, on time and prepared. Failure to

do so may result in dismissal of the appeal

or other sanctions unless good cause is

shown. Prior to the preparation conference

each party shall file the original with the

Commission and provide to the ADRP

facilitator and each other party a copy of:

(1) a brief statement of his or her

respective case, to include a list of what he

or she will agree to and the remedy he or

she is seeking;

(2) a list of witnesses who have direct

knowledge of the facts surrounding the

issues in dispute. The list shall include a

brief statement of the testimony each

witness has to offer;

(3) a list of those witnesses and the

address for each witness for whom a

subpoena is required;

(4) a list of documents associated with

the issues in dispute. The original or a copy

of each document shall be attached to the

list; and

(5) any requirements for discovery.

(c) Representation. Each party to the

appeal may have a representative

accompany him or her to the conference to

speak and act on his or her behalf.

(d) Facilitator. The ADRP facilitator shall:

(1) take an active role in the conference

and maintain neutrality and impartiality at all

time;

(2) have the flexibility to adapt the

conference to the situation at hand;

(3) consider any matters which will aid

in the fair and prompt resolution and

disposition of the appeal, including

settlement;

(4) rule on whether witnesses have

direct knowledge of the issues in dispute;

(5) rule on whether documents are

directly related to the issues in dispute;

(6) rule on whether discovery requests

or other requests or motions are relevant;

(7) strike or deny witnesses,

documents, discovery requests or any other

requests or motions if they are:

(A) cumulative, not relevant or not

material;

(B) used as a means of

harassment;

(C) unduly burdensome; and

(D) not timely filed.

(8) terminate the conference for the

disruptive behavior or conduct of a party or

representative; and

(9) prepare a preparation conference

order which shall record the actions taken

and any agreements reached. The

preparation conference order shall control

the subsequent course of any further ADRP

procedure.

(e) Conference. The preparation

conference shall be informal, structured by

the ADRP facilitator and not open to the

public. The ADRP facilitator shall record the

conference by audio tape recording.

(1) Notice. At least 7 calendar days

before the scheduled conference, the

Commission shall notify the parties of the

date, time and location of the conference.

(2) Location. The conference shall be

conducted at the Commission office or any

other location determined appropriate.

(3) Witnesses. Witnesses shall not

appear or give testimony at the conference.

(4) Continuance. A request for

continuance shall normally be filed in writing

no less than 3 calendar days before the

scheduled conference date in accordance

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with OAC 455:10-3-17. A lesser period of

time may be permitted for good cause

shown.

(A) The ADRP Facilitator, or in his

or her absence the Executive Director, shall

rule on the request and shall grant a request

only in those instances where extraordinary

circumstances exist and good cause has

been shown.

(B) A continuance shall be granted

to a date certain and in no case shall a

combination of continuances of the

preparation conference exceed a total of 30

calendar days except for good cause

shown.

(f) Conclusion.

(1) The ADRP facilitator shall end the

preparation conference when preparation

procedures are completed, unless sooner

terminated for other just cause.

(2) The ADRP facilitator may provide

the Executive Director any other relevant

information to assist in the disposition of the

case.

455:10-17-5 - Summary conference

(a) General. The summary conference

provides an opportunity for each party to

present oral argument (explanation) and

offers of proof (documentation), in a limited

amount of time, of his or her respective

case for decision by an Alternative Dispute

Resolution Program (ADRP) facilitator or a

panel of ADRP facilitators. Proof is

presented, but no formal rules of evidence

apply. The Executive Director may

schedule a summary conference after a

preparation conference.

(b) Party responsibility. Each party shall

be present, on time and prepared. Failure to

do so may result in dismissal of the appeal

or other sanctions unless good cause is

shown.

(c) Representation. Each party to the

appeal may have a representative

accompany him or her to the conference to

speak and act on his or her behalf.

(d) Facilitator. The Executive Director

may assign a single ADRP facilitator or a

panel of three ADRP facilitators. If the

Executive Director assigns a panel, he or

she shall name a chair ADRP facilitator who

shall be responsible for administrative

matters. The ADRP facilitator(s) shall:

(1) take an active role in the conference

to determine the facts and maintain

neutrality and impartiality at all times;

(2) have the flexibility to adapt the

conference to the situation at hand;

(3) consider any matters which will aid

in the fair and prompt resolution and

disposition of the appeal, including

settlement;

(4) provide each party an opportunity to

explain and present documents in support

of his or her respective case;

(5) rule on the relevancy of evidence;

and

(6) terminate the conference because

of the disruptive behavior or conduct of a

party or representative.

(e) Conference. The conference shall be

informal, structured by the ADRP

facilitator(s) and open to the public. The

conference shall be recorded by audio tape

recording.

(1) Notice. At least 7 calendar days

before the scheduled conference, the

Commission shall notify the parties of the

date, time and location of the conference.

(2) Location. The conference shall be

conducted at the Commission office or any

other location determined appropriate.

(3) Witnesses. Witnesses shall not

appear or give testimony at the conference.

(4) Time. Each party shall be limited to

no more than 2 hours for the presentation of

his or her case.

(5) Record of documents. The ADRP

facilitator(s) shall maintain a record of

documents to reflect all documents

submitted at the conference as offers of

proof (documentation).

(6) Continuance. A request for

continuance shall normally be filed in writing

no less than 3 calendar days before the

scheduled summary conference date in

accordance with OAC 455:10-3-17. A

lesser period of time may be permitted for

good cause shown.

(A) The ADRP facilitator(s), or in his

or her absence, the Executive Director, shall

rule on the request and shall grant a request

only in those instances where extraordinary

circumstances exist and good cause has

been shown.

(B) A continuance shall be granted

to a date certain and in no case shall a

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combination of continuances of the

summary conference exceed a total of 30

calendar days except for good cause

shown.

(7) Closing. The ADRP facilitator(s)

shall close the conference after each party

has presented his or her case, unless

sooner terminated for other just cause.

(f) Proposed order. The ADRP

facilitator(s) shall file a proposed order with

the Commission within 10 calendar days

after the conference is closed. The

proposed order shall include findings of fact

and conclusions of law. Findings of fact

shall be written in clear and concise

language.

(1) The Executive Director shall issue

the proposed order to the parties within 5

calendar days after the proposed order is

filed.

(2) Within 10 calendar days after the

issue date of the proposed order, any party

may file a response and include any

additional relevant information for

consideration by the ADRP facilitator(s).

The time limit may be extended for good

cause.

(3) Any party filing a response or

providing additional relevant information

should provide a copy to all other parties.

(g) Final order. The ADRP facilitator(s)

shall review the available relevant evidence,

including but not limited to, the petition for

appeal, oral arguments (explanations),

offers of proof (documentation), the

proposed order, any responses and

additional relevant information filed in

response to the proposed order, and

applicable laws and rules.

(1) Within 10 calendar days after the

time limit for receipt of responses to the

proposed order, the ADRP facilitator(s) shall

file a final order with the Commission. The

final order shall include findings of fact and

conclusions of law. Findings of fact shall be

written in clear and concise language.

(2) The Executive Director shall issue

the final order to the parties within 5

calendar days after the final order is filed.

(3) The final order shall be final and

conclusive except as provided in the

Administrative Procedures Act and this

Chapter.

455:10-17-6 - Binding arbitration

conference

(a) General. The binding arbitration

conference provides an opportunity for each

party to present witnesses and evidence in

support of his or her respective case for

decision by an Alternative Dispute

Resolution Program (ADRP) facilitator or a

panel of ADRP facilitators. Proof is

presented but no formal rules of evidence

apply. The Executive Director may

schedule a binding arbitration conference

after a preparation conference.

(b) Party responsibility. Each party shall

be present, on time and prepared. Failure to

do so may result in dismissal of the appeal

or other sanctions unless good cause is

shown.

(c) Representation. Each party to the

appeal may have a representative

accompany him or her to the conference to

speak and act on his or her behalf.

(d) Facilitator. The Executive Director

may assign a single ADRP facilitator or a

panel of three ADRP facilitators. If the

Executive Director assigns a panel, he or

she shall name a chair ADRP facilitator who

shall be responsible for administrative

matters. The ADRP facilitator(s) shall:

(1) take an active role in the conference

to determine the facts and maintain

neutrality and impartiality at all times;

(2) have the flexibility to adapt the

conference to the situation at hand;

(3) consider any matters which will aid

in the fair and prompt resolution and

disposition of the appeal, including

settlement;

(4) provide each party an opportunity to

present his or her case;

(5) rule on whether witnesses,

documents, requests or motions are

relevant; and

(6) terminate the conference because

of the disruptive behavior or conduct of a

party or representative.

(e) Conference. The conference shall be

informal, structured by the ADRP

facilitator(s) and open to the public. The

conference shall be recorded by audio tape

recording.

(1) Notice. At least 7 calendar days

before the scheduled conference, the

Commission shall notify the parties of the

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date, time and location of the conference.

(2) Location. The conference shall be

held at the Commission office or any other

location determined appropriate.

(3) Witnesses. Witnesses shall not be

present during the conference except when

giving testimony. The ADRP facilitator(s)

shall put the witness under oath or

affirmation and may ask questions of the

witness at any point.

(4) Record of documents. The ADRP

facilitator(s) shall maintain a record of

documents to reflect all documents

submitted at the conference as exhibits.

(5) Record of witnesses. The ADRP

facilitator(s) shall maintain a record of

witnesses to reflect all witnesses called and

giving testimony at the conference.

(6) Continuance. A request for

continuance shall normally be filed in writing

no less than 5 calendar days before the

scheduled binding arbitration conference

date in accordance with OAC 455:10-3-17.

A lesser period of time may be permitted for

good cause shown.

(A) The ADRP facilitator(s), or in his

or her absence the Executive Director, shall

rule on the request and shall grant a request

only in those instances where extraordinary

circumstances exist and good cause has

been shown.

(B) A continuance shall be granted

to a date certain and in no case shall a

combination of continuances of the binding

arbitration conference exceed a total of 30

calendar days except for good cause

shown.

(7) Closing. The ADRP facilitator(s)

shall close the conference after each party

has presented his or her case, unless

sooner terminated for other just cause.

(f) Proposed order. The ADRP

facilitator(s) shall file a proposed order with

the Commission within 10 calendar days

after the conference is closed. The

proposed order shall include findings of fact

and conclusions of law. Findings of fact

shall be written in clear and concise

language.

(1) The Executive Director shall issue

the proposed order to the parties within 5

calendar days after the proposed order is

filed.

(2) Within 10 calendar days after the

issue date of the proposed order, any party

may file a response and include any

additional relevant information for

consideration by the facilitator. The time

limit may be extended for good cause.

(3) Any party filing a response or

providing additional relevant information

should provide a copy to all other parties.

(g) Final order. The ADRP facilitator(s)

shall review the available relevant evidence,

including but not limited to, the petition for

appeal, evidence submitted at the

conference, the proposed order, any

responses and additional relevant

information filed in response to the

proposed order, and applicable laws and

rules.

(1) Within 10 calendar days after the

time limit for receipt of responses to the

proposed order, the ADRP facilitator(s) shall

file a final order with the Commission. The

final order shall include findings of fact and

conclusions of law. Findings of fact shall be

written in clear and concise language.

(2) The Executive Director shall issue

the final order to the parties within 5

calendar days after the final order is filed.

(3) The final order shall be final and

conclusive except as provided in the

Administrative Procedures Act and this

Chapter.

455:10-17-7 - Non-binding arbitration

conference

(a) General. The non-binding arbitration

conference provides an opportunity for each

party to present witnesses and evidence in

support of his or her respective case for

decision by an Alternative Dispute

Resolution Program (ADRP) facilitator or a

panel of ADRP facilitators. Proof is

presented but no formal rules of evidence

apply. The Executive Director may schedule

a non-binding arbitration conference after a

preparation conference.

(b) Party responsibility. Each party shall

be present, on time and prepared. Failure to

do so may result in dismissal of the appeal

or other sanctions unless good cause is

shown.

(1) Each party to the appeal shall speak

for himself or herself.

(2) The appointing authority may name

a spokesperson to speak and act on behalf

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of the agency. The spokesperson shall

have direct knowledge of or involvement in

the incidents surrounding the appeal. The

appointing authority shall not name a legal

representative to act in this capacity unless

the legal representative has direct

knowledge of or involvement in the incidents

surrounding the appeal.

(c) Representation. Each party to the

appeal may have a representative

accompany him or her to the conference to

act in an advisory role only. A

representative shall not be allowed to

interrogate or question any party or witness

and shall not otherwise have or take an

active role in the conference.

(d) Facilitator. The Executive Director

may assign a single ADRP facilitator or a

panel of three ADRP facilitators. If the

Executive Director assigns a panel, he or

she shall name a chair ADRP facilitator who

shall be responsible for administrative

matters. The ADRP facilitator(s) shall:

(1) take an active role in the conference

to determine the facts and maintain

neutrality and impartiality at all times;

(2) have the flexibility to adapt the

conference to the situation at hand;

(3) consider any matters which will aid

in the fair and prompt resolution and

disposition of the appeal, including

settlement;

(4) provide each party an opportunity to

present his or her case;

(5) rule on whether witnesses,

documents, requests or motions are

relevant; and

(6) terminate the conference because

of the disruptive behavior or conduct of a

party or representative.

(e) Conference. The conference shall be

informal, structured by the ADRP

facilitator(s) and open to the public. The

conference shall be recorded by audio tape

recording. Court reporters shall not

normally be appropriate to record the

conference.

(1) Notice. At least 7 calendar days

before the scheduled conference, the

Commission shall notify the parties of the

date, time and location of the conference.

(2) Location. The conference shall be

held at the Commission office or any other

location determined appropriate.

(3) Witnesses. Witnesses shall not be

present during the conference except when

giving testimony. The ADRP facilitator(s)

shall put the witness under oath or

affirmation and may ask questions of the

witness at any point.

(4) Record of documents. The ADRP

facilitator(s) shall maintain a record of

documents to reflect all documents

submitted at the conference as exhibits.

(5) Record of witnesses. The ADRP

facilitator(s) shall maintain a record of

witnesses to reflect all witnesses and giving

testimony at the conference.

(6) Continuance. A request for

continuance shall normally be filed in writing

no less than 3 calendar days before the

scheduled non-binding arbitration

conference date in accordance with OAC

455:103-17. A lesser period of time may be

permitted for good cause shown.

(A) The ADRP facilitator(s), or in his

or her absence the Executive Director, shall

rule on a request and shall grant a request

only in those instances where extraordinary

circumstances exist and good cause has

been shown.

(B) A continuance shall be granted

to a date certain and in no case shall a

combination of continuances exceed a total

of 30 calendar days except for good cause

shown.

(7) Closing. The ADRP facilitator(s)

shall close the conference after each party

has presented his or her case, unless

sooner terminated for other just cause.

(f) Proposed order. The ADRP

facilitator(s) shall file a proposed order with

the Commission within 10 calendar days

after the conference is closed. The

proposed order shall include findings of fact

and conclusions of law. Findings of fact

shall be written in clear and concise

language.

(1) The Executive Director shall issue

the proposed order to the parties within 5

calendar days after the proposed order is

filed.

(2) Within 10 calendar days after the

issue date of the proposed order, any party

may file a response and include any

additional relevant information for

consideration by the ADRP facilitator(s).

The time limit may be extended for good

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cause.

(3) Any party filing a response or

providing additional relevant information

should provide a copy to all other parties.

(g) Final order. The ADRP facilitator(s)

shall review the available relevant evidence,

including but not limited to, the petition for

appeal, evidence submitted at the

conference, the proposed order, any

responses and additional relevant

information filed in response to the

proposed order, and applicable laws and

rules.

(1) Within 10 calendar days after the

time limit for the receipt of responses to the

proposed order, the ADRP facilitator(s) shall

file a final order with the Commission. The

final order shall include findings of fact and

conclusions of law. Findings of fact shall be

written in clear and concise language.

(2) The Executive Director shall issue

the final order to the parties within 5

calendar days after the final order is filed.

(3) The final order shall become final,

conclusive and enforceable unless a

rejection is filed in accordance with OAC

455:10-17-7(h) below.

(h) Rejection of final order. Within 10

calendar days after the issue date of the

final order, any party may file a request for

rejection and request the matter be heard

through a hearing. The request for rejection

shall include an affidavit of service to all

other parties.

(1) Within 7 calendar days after

receiving a timely filed request for rejection,

the Executive Director shall schedule the

matter for a prehearing conference and

hearing.

(2) If after the hearing, the final decision

to sustain or deny the appeal is the same as

the final decision in the non-binding

arbitration conference, or if the filing party

fails to advance or gain in the decision, the

party filing the request for rejection shall

bear the costs of the hearing.

(i) Costs. For purposes of this section,

costs of the hearing shall include costs to

the Commission, costs of witnesses

appearing at the hearing and reasonable

attorney fees and costs. Reasonable costs

and attorney fees shall be determined

according to OAC 455:10-15-3 and OAC

455:10-15-4.

(1) Within 10 calendar days after the

final decision is issued, a request for award

of attorney fees and costs associated with

the hearing may be filed for decision by the

Administrative Law Judge. The request

shall be filed according to OAC 455:10-15-

5.

(2) Within 10 calendar days after

receipt of a request, the Administrative Law

Judge shall file an addendum decision in

accordance with OAC 455:10-15-6.

(3) The amount of award determined by

the Administrative Law Judge shall be final

and conclusive except as provided in the

Administrative Procedures Act and this

Chapter.

455:10-17-8 - Oklahoma State Shared

Mediation Program (OSSMP)

(a) General. The Oklahoma State Shared

Mediation Program (OSSMP) is a project of

the Commission to provides mediation as

an alternative means to resolve disputes in

the state workplace. The purpose of the

OSSMP is to resolve disputes at the earliest

possible time to increase the quality of

communication within the workforce, to

maintain a productive work environment and

to reduce the costs and time involved with

formal processes. The Commission will

establish guidelines for use of the OSSMP.

The OSSMP provides an opportunity for

agencies and employees to voluntarily settle

appeals, grievances and other employment

disputes and conflicts. It is not necessary

for a petition for appeal or internal agency

grievance to be filed before requesting or

using the OSSMP.

(b) Participant responsibility. The

participants shall be present and on time.

Failure to do so may result in dismissal of

the mediation session. Each participant

shall mediate in good faith, without time

constraints, and put forth their best efforts

with the intention of reaching settlement, if

possible. Even if the participants do not

reach a complete settlement, they may

reach agreement on various issues.

(1) Each participant shall speak for

himself or herself.

(2) If the appointing authority is involved

in the dispute or conflict, he or she may

name a spokesperson to speak and act on

behalf of the agency. The spokesperson

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shall have knowledge of the incidents

surrounding the dispute and shall have

settlement authority. The appointing

authority shall not name a legal

representative to act in this capacity unless

the legal representative has knowledge of

the incidents surrounding the dispute.

(c) Representation. Each participant may

have a representative accompany him or

her to the mediation session to act in an

advisory role only. A representative shall

not be allowed to interrogate or question

any participant and shall not otherwise take

or have an active role in the mediation

session.

(1) Any participant at the mediation

session without a representative must

consent to allowing the attendance of a

representative for any other participant.

(2) A representative shall be subject to

the laws, rules, terms and conditions

governing mediation, including but not

limited to, confidentiality.

(3) A representative need not be an

attorney.

(d) Mediator. The mediator shall be

assigned by the Executive Director. The

mediator shall:

(1) take an active role in the session

and maintain neutrality and impartiality at all

times;

(2) have the flexibility to adapt the

session to the situation at hand;

(3) aid the participants in the discussion

of settlement and resolution of the issues in

dispute; and

(4) terminate the session because of

the disruptive behavior or conduct of a

participant or representative.

(e) Time limits. After acceptance of a

request for mediation, any applicable time

limits shall be tolled pending completion of

the mediation process.

(f) Referral. In an effort to make mediation

available to the widest possible audience,

the Commission shall accept referrals from

the Commission staff, Administrative Law

Judges, appointing authorities, agency

grievance managers, supervisors and

individual employees.

(g) Request. A request for mediation shall

include:

(1) the name, address and work

telephone number of the person making the

request and the names, addresses and

work telephone numbers of those involved

in the dispute or conflict;

(2) a description of any internal agency

grievance or other complaint pending on the

issues in dispute; and

(3) signature of the person making the

request.

(A) submission of the Commission's

Request for Mediation of Grievance or

Request for Mediation Services shall satisfy

this requirement;

(B) If mediation is requested by an

agency grievance manager or decision

maker in the internal agency grievance

process, the agency grievance manager

shall notify the employee of the request; and

(C) If mediation is requested by an

employee and an internal agency grievance

is pending, the employee shall notify the

agency grievance manager of the request.

(h) Intake.

(1) The Commission shall conduct an

intake interview upon receipt of a request

for mediation to determine if:

(A) the matter in dispute or conflict

is appropriate for mediation;

(B) the persons involved in the

dispute or conflict are correctly identified;

(C) the persons involved in the

dispute or conflict are willing to mediate;

and

(D) any person involved in the

dispute or conflict will have a representative

in attendance at the session.

(2) The Commission's Mediation Intake

form shall be completed by the person

conducting the intake with a

recommendation to accept or reject the

request. The Executive Director shall

review the recommendation and accept or

reject the request.

(A) If rejected, the person making

the request and the persons involved in the

dispute or conflict shall be contacted and

notified.

(B) If accepted, the Executive

Director shall assign a mediator.

(i) Session. The mediation session shall

be informal, structured by the mediator and

not open to the public. The session shall be

a confidential procedure and shall not be

filmed, taped or otherwise recorded.

Participants and representatives shall

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respect and maintain the confidentiality of

the session.

(1) Notice. At least 3 calendar days

before the scheduled session, the

Commission shall notify the parties of the

date, time and location of the session.

(2) Location. The session shall be

held at the Commission office or any other

location determined appropriate.

(3) Witnesses. Witnesses shall not

appear or give testimony at the session.

(4) Agreement to mediate. Before the

session begins the participants and

representatives shall sign the Commission's

Agreement to Mediate form.

(5) Caucus. The mediator may call a

caucus at any stage of the session.

(6) Continuance. A request for

continuance shall be filed in writing no less

than 3 calendar days before the scheduled

mediation session date in accordance with

OAC 455:10-3-17. A lesser period of time

may be permitted for good cause shown.

(A) The Executive Director shall rule

on the request and shall grant a request

only in those instances where extraordinary

circumstances exist and good cause has

been shown.

(B) A continuance shall be granted

to a date certain and no case shall a

combination of continuances of voluntary

mediation exceed a total of 30 calendar

days except for good cause shown.

(j) Agreement. If an agreement is

reached, it shall be reduced to writing and

signed by each participant and the

mediator. The agreement shall be reviewed

and approved by the Executive Director

before it can become final or before

dismissal of an appeal shall be entertained.

(1) If an agreement is reached and

approved by the Executive Director, the

Commission shall conduct two follow-ups to

determine the success of the voluntary

mediation session.

(A) The first follow-up shall be

conducted between 30 and 45 days after

the agreement is approved.

(B) The second follow-up shall be

conducted between 75 and 90 days after

the agreement is approved.

(2) The Commission's Case Follow-Up

Report form shall be used to record any

complaints, concerns or compliments

expressed by the participants during the

follow-ups.

(k) Conclusion. The mediator shall end

the session when an agreement is reached

and reduced to writing. If an agreement is

not reached, the mediator shall end the

session when any participant elects to not

continue or when in the judgment of the

mediator, agreement is not possible, unless

sooner terminated for the disruptive

behavior or conduct of a participant or

representative.

SUBCHAPTER 19. INTERNAL AGENCY GRIEVANCE RESOLUTION PROCEDURE

S

ECTION

T

ITLE

PART I. GENERAL PROVISIONS

455:10-19-1 General [AMENDED Effective 3/1/2008]

455:10-19-2 Purpose

455:10-19-3 Definitions

455:10-19-4 Records

455:10-19-5 Statistics

455:10-19-6 [RESERVED]

455:10-19-7 Grievance notice

455:10-19-8 Retaliation - prohibited

455:10-19-9 Time

PART 3. RESPONSIBILITIES

455:10-19-20 Appointing authority responsibility

455:10-19-21 Supervisor responsibility

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455:10-19-22 Internal agency grievance manager responsibility

455:10-19-23 Employee responsibility

PART 5. GRIEVANCE PROVISIONS

455:10-19-35 Grievance [AMENDED Effective 3/1/2008]

455:10-19-36 [RESERVED]

455:10-19-37 Grievance preparation and processing

455:10-19-38 Leave and travel

455:10-19-39 Employee representation

455:10-19-40 Group grievances

455:10-19-41 [RESERVED]

455:10-19-42 Filing time

455:10-19-43 Form

455:10-19-44 Resolution time

455:10-19-45 Resolution decision

455:10-19-46 Filing an appeal after a formal grievance

455:10-19-47 Grievance and appeal - separate filings

PART 7. GRIEVANCE PROCEDURE

455:10-19-60 General

455:10-19-61 Step one - informal discussion

455:10-19-62 Step two - formal grievance

455:10-19-63 [RESERVED]

455:10-19-64 Use of voluntary mediation

PART 1. GENERAL PROVISIONS

455:10-19-1. General [AMENDED

Effective 3/1/2008]

The Oklahoma Merit Protection

Commission shall establish standard

internal agency grievance resolution

procedures for classified state employees

[74:840-6.2(A)]. It is the Commission's

policy to seek resolution of disputes at the

lowest level possible The Commission will

not normally intervene when the issues in

dispute are being addressed through the

internal agency grievance resolution

procedure.

455:10-19-2. Purpose

(a) The rules in this subchapter provide

standards and guidelines for the prompt and

equitable resolution of employment disputes

and grievances at the lowest possible level

within the employing agency. These rules

pertain to probationary and permanent

classified employees.

(b) An appointing authority may elect to use

these procedures, or other procedures, to

address disputes of other employees. Any

such procedures shall be separate and

apart from the grievance procedure and

shall not automatically give jurisdiction of

the issues in dispute to the Commission.

455:10-19-3. Definitions

In addition to words and terms defined

in the Merit System of Personnel

Administration Rules, the following words

and terms, when used in this subchapter,

shall have the following meaning unless the

text clearly indicates otherwise.

"Accept" means a determination by an

agency grievance manager that issue(s)

meet jurisdictional requirements.

"Deny" means to refuse to grant a

remedy requested, to determine an issue to

be without merit or to end a grievance

without further consideration.

"Grant" means to find an issue to have

merit and to give an appropriate remedy.

"Grievance" means a request for relief

in an employment matter made by an

employee, or a group of employees, which

affects them and which is subject to control

of the appointing authority. For purposes of

grievances, an employee may be a

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probationary or permanent classified

employee.

"Jurisdiction" means the authority to

decide an issue within the agency grievance

procedure. The time limit to file a

grievance, an employee's eligibility to use

the agency grievance procedure and the

issues raised are general factors in

determining agency jurisdiction.

"Reject" means a determination by an

agency grievance manager that a grievance

or an issue does not meet agency

jurisdictional requirements.

"Remedy" means the corrective

action(s) sought by an employee or offered

by a decision-maker or appointing authority.

"Toll" means to temporarily stop or

suspend applicable time limits.

455:10-19-4. Records

(a) The appointing authority shall maintain a

record of each formal grievance filed.

Grievance records shall be maintained

separate and apart from other individual

employee personnel files [74:840-6.2(I)].

(b) Section 24A.1 et seq. of Title 51 of the

Oklahoma Statutes, Oklahoma Open

Records Act, shall govern access to

grievance records.

(1) An employee or former employee

shall have a right of access to the grievance

record of grievances he or she filed after the

agency grievance procedure has been

completed [74:840-6.2(I)].

(2) The Commission, because of

statutory responsibility, shall have a right of

access to grievance records.

(c) Grievance records shall be maintained

consistent with the General Records

Disposition Schedule of the Oklahoma

Department of Libraries, Office of Archives

and Records.

455:10-19-5. Statistics

(a) The appointing authority shall maintain

summary and statistical information about

the number, nature and outcome of all

formal grievances filed [74:840-6.2(I)].

(b) The appointing authority shall provide to

the Commission, on a fiscal year basis, a

grievance report containing the following

information:

(1) the number of grievances filed,

resolution time for each grievance and the

nature and outcome of each grievance; and

(2) the grade, sex and race of each

employee filing a grievance.

(c) The grievance report for the previous

fiscal year shall be filed with the

Commission no later than August 1of each

year.

(d) Appointing authorities shall submit a

report even if no grievance actions occurred

during the relevant time period.

455:10-19-6. [RESERVED]

455:10-19-7. Grievance notice

Each appointing authority shall

prominently display a notice reflecting the

name, address and telephone number of

the employee(s) designated to receive and

process formal grievances. Such notices

shall be displayed in locations where they

can reasonably be expected to come to the

attention of employees.

455:10-19-8. Retaliation - prohibited

(a) No employee shall be disciplined or

otherwise prejudiced in his or her

employment for exercising his or her rights

under the internal agency grievance

resolution procedure [74:840-6.2(C)].

(b) Any employee who believes this section

has been violated may file a petition for

appeal with the Commission. The petition

for appeal shall identify the name of the

person alleged to have violated this section

and shall be specific as to who did what,

when, where, how and why.

455:10-19-9. Time

For purposes of the rules in this

subchapter, time shall be counted in terms

of calendar days. If the last day of the count

is a Saturday, Sunday or legal holiday as

proclaimed by the Governor, the period

shall continue to the next business day.

PART 3. RESPONSIBILITIES

455:10-19-20. Appointing authority

responsibility

(a) The appointing authority shall use the

internal agency grievance resolution steps

established in Part 7 of this subchapter or

adopts other grievance resolution

procedures which address the specific

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needs of their agencies [74:840-6.2(A)].

The appointing authority shall file a copy of

any adopted resolution procedures,

including revisions, with the Commission.

Any adopted grievance resolution procedure

shall include a general statement certifying

that the procedure contains the following

minimum requirements which:

(1) encourage resolution of disputes

within the agency quickly, informally and at

the lowest possible level;

(2) require prompt resolution of

grievances within established time periods;

and

(3) guarantee the employee the right to

be represented by a person of his or her

own choosing at each step of the

procedure, except the initial informal

discussion with his or her immediate

supervisor;

(4) reflect the name, address and

telephone number of the person(s)

designated to receive and process formal

grievances.

(b) The appointing authority shall:

(1) furnish to each classified employee

a copy of the internal agency grievance

resolution procedure, including revisions,

used by the agency [74:840-6.2(B)].

(2) designate an employee or

employees within the agency to receive and

process formal grievances [74:840-6.2(G)].

If the appointing authority does not

designate such employee(s), the appointing

authority shall be the grievance manager;

(3) within 30 calendar days after such

designation, provide the Commission with

the name, address, telephone number and

designation date of such employee(s); and

(4) ensure employee(s) designated to

receive and process formal grievances are

scheduled to attend and notified of required

Commission training and shall make time

available for employees to complete training

[74:840-6.2(H)].

455:10-19-21. Supervisor responsibility

Each supervisor shall:

(1) inform their employees of the

internal agency grievance resolution

procedure;

(2) be aware and informed of the names

of employee(s) designated by the

appointing authority to receive and process

formal grievances;

(3) ensure that applicable time limits

pertaining to supervisory responsibility

within the grievance procedure are met;

(4) informally discuss, address and

resolve disputes brought to their attention,

when possible, at the lowest level possible.

455:10-19-22. Internal agency grievance

manager responsibility

Any employee designated to receive

and process formal grievances by their

appointing authority shall:

(1) within 6 months after designation to

serve in this capacity, successfully complete

the initial training programs required by the

Commission;

(2) maintain proficiency by successfully

completing continuing training programs

required by the Commission;

(3) provide advice, assistance and

technical direction to the appointing

authority, supervisors, and employees on

the internal agency grievance resolution

procedure;

(4) review formal grievances and accept

or reject them;

(5) ensure that time limits which apply to

the processing and resolution of formal

grievances are met;

(6) facilitate the prompt, equitable and

timely resolution of grievances at the lowest

possible level; and

(7) ensure the formal grievance is

reviewed and addressed by a person within

the employing agency with authority to

resolve the dispute.

455:10-19-23. Employee responsibility

(a) Any employee who has reason to

believe his or her employment has been

directly affected by unfair treatment, unsafe

working conditions or erroneous

interpretation or application of agency

policy, procedure, merit rule or law, has a

duty and responsibility to attempt to resolve

the dispute informally. Thereafter, the

employee has the right to file a formal

grievance.

(b) Any employee filing a formal grievance

has a duty and responsibility to provide

accurate, timely information to support his

or her assertions and to make a good faith

effort to resolve the dispute.

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(c) Employees should refrain from idle talk

and should treat information about formal

grievances with discretion as required by

rules adopted by the Administrator of the

Office of Personnel Management regarding

the conduct of classified employees.

PART 5. GRIEVANCE PROVISIONS

455:10-19-35. Grievance [AMENDED

Effective 3/1/2008 ]

(a) General. The resolution of disputes is

advocated within the agency before appeals

are filed with the Commission.

(b) Promotion. Any employee who feels

that he or she has not been treated fairly

with regard to a promotional action has the

right to file a formal grievance. The

Commission will accept an appeal regarding

a promotional issue only after such

complaint has been reviewed in the formal

grievance procedure [74:840-4.15(C)].

(c) Classification. An employee has the

right and responsibility to file a classification

grievance, as provided by law and rule,

when duties performed on a regular and

consistent basis do not conform to the class

specification [74:840-4.3(B)].

(1) Employees shall be classified in

accordance with the work they are assigned

on a regular and consistent basis as an

integral part of their normal work

assignment and class specification [74:840-

4.3(B)]. Any employee who believes he or

she is not classified in accordance with the

work assigned on a regular and consistent

basis as an integral part of his or her work

assignment and job family descriptor, has

the right to file a formal grievance.

(2) An employee is entitled to the

compensation assigned to the job family

descriptor for which duties were performed

on a regular and consistent basis as

determined by the Office of Personnel

Management [74:840-4.3(B)]. Any

employee who believes he or she is entitled

to compensation for having performed

duties on a regular and consistent basis

which do not conform to the job family

descriptor for the position he or she

occupies or occupied, has the right to file a

formal grievance.

(3) The appointing authority and

employee shall attempt to resolve these

disputes through the formal grievance

procedure.

(4) If the dispute can not be resolved,

the resolution decision by the appointing

authority shall be to advise the employee to

complete an Office of Personnel

Management (OPM) Classification or

Allocation Dispute Review Request form

(OPM-70) pursuant to rules adopted by the

Administrator of the Office of Personnel

Management.

(5) Agency classification and

reclassification decisions shall not be

subject to appeal to the Oklahoma Merit

Protection Commission. However, the

involuntary removal of a permanent

employee in permanent status in a job

family level to a lower level in the same job

family or to another job family level

assigned a lower pay band shall be

considered a demotion. Such action may be

appealed by the employee to the Oklahoma

Merit Protection Commission [74:840-

4.3(B)]. An employee may allege a

violation of law or rule over which the

Commission has jurisdiction in the

classification and reclassification process

pursuant to OAC 455:10-3-3.

(d) Discipline. Any employee who has

reason to believe that discipline imposed

was not uniform, appropriate or in

compliance with the agency progressive

discipline policy, has the right to file a formal

grievance. The Commission will accept an

appeal regarding a discipline issue (except

suspension without pay, involuntary

demotion or discharge) only after such

complaint has been reviewed in the formal

grievance procedure.

(e) Leave. Any employee who feels that he

or she has not been treated fairly with

regard to annual, sick or any other leave

accrual, accumulation, use or eligibility

(including leave without pay and leave

sharing), has the right to file a formal

grievance. The Commission will accept an

appeal regarding leave issues only after

such complaint has been reviewed in the

formal grievance procedure.

(f) Employee service rating system. Any

employee who disagrees with his or her

individual service rating has the right to file

a formal grievance.

(1) The Commission will accept, for

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alternative dispute resolution only, a

complaint involving disagreement with the

individual service rating only after such

complaint has been reviewed in the formal

grievance procedure.

(2) The Commission will accept an

appeal of alleged violation of the Oklahoma

Personnel Act or Merit Rules in regard to

the employee service rating system only

after such complaint has been reviewed in

the formal grievance procedure.

(3) Alleged violations of Title 74 O.S.,

Section 840-2.5 and Section 840-2.9 in

regard to the employee service rating

system may be appealed directly to the

Commission.

(g) Discrimination. Complaints of illegal

discrimination, including sexual harassment,

are subject to the internal agency grievance

resolution procedure. The appointing

authority may adopt special procedures for

addressing and resolving discrimination

complaints. Any such procedures shall

comply with federal laws and rules, the

Oklahoma Personnel Act and the rules in

this subchapter.

(h) Pay movement mechanisms and

other compensation issues. Any

employee who feels that a violation of law,

rule, policy or practice has occurred with

regard to pay movement mechanisms or

other compensation issues, has the right to

file a formal grievance. The Commission

will accept an appeal regarding pay

movement mechanisms and other

compensation issues only after such

complaint has been reviewed in the formal

grievance procedure.

455:10-19-36. [RESERVED]

455:10-19-37. Grievance preparation and

processing

An employee may request approval

from his or her supervisor for necessary and

reasonable absence from work to gather

information in preparation to file and

process a formal grievance. The request for

the time needed should be made in

advance. The supervisor may approve

such absence if the time away will not

cause undue hardship or upset any

employee's work place operation. Any

approved absence shall not result in a loss

of pay or leave.

455:10-19-38. Leave and travel

(a) An employee who has filed a formal

grievance, or witnesses whose attendance

is required, shall not be charged leave to

attend meetings held to decide the

grievance.

(b) Approved travel and other expenses

incurred to resolve a formal grievance shall

be reimbursed by the employing agency in

accordance with the State Travel

Reimbursement Act.

455:10-19-39. Employee representation

(a) An employee has the right to be

represented by a person of his or her own

choosing at each step of the internal agency

grievance resolution procedure, except the

initial informal discussion with his or her

immediate supervisor.

(b) The representative must be willing and

available to serve and have authority to

negotiate settlement.

(c) The employee is responsible for all

costs and expenses of his or her

representation.

(d) A representative who is a state

employee shall be on approved leave or

leave without pay while working on the

grievance.

455:10-19-40. Group grievances

(a) Employees may file a formal grievance

as a group, when the grievance issues and

personal relief sought are the same or

similar for each. The group shall name a

spokesperson who shall speak and act on

behalf of the group. The spokesperson

shall be one of the employees of the group

filing a formal grievance. The group is

entitled to a representative as outlined in

OAC 455:10-19-39.

(b) The appointing authority may

consolidate formal grievances containing

the same or similar issues filed by two or

more employees when to do so will produce

a more efficient, more economical or more

timely processing and resolution of the

grievances and will not adversely affect the

interests of the employees filing the

grievances.

(c) The appointing authority may join formal

grievances filed by an employee when to do

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so will produce a more efficient, more

economical or more timely processing and

resolution of the grievances and will not

adversely affect the interests of the

employee.

(d) Other specific requirements for filing and

resolving formal group grievances may be

adopted in an appointing authority's internal

agency grievance resolution procedure.

455:10-19-41. [RESERVED]

455:10-19-42. Filing time

(a) A formal grievance shall be filed:

(1) within 20 calendar days of the date

of the act or incident; or

(2) within 20 calendar days of the date

the employee becomes aware of or, with

reasonable effort, should have become

aware of a grievable issue.

(b) The appointing authority may extend the

time limit for filing a formal grievance if the

employee shows that he or she could not

have otherwise timely filed or if the

employee provides evidence that he or she

was making a good faith effort to resolve the

dispute informally, or for other good cause

shown. The decision to extend the filing

time shall not automatically give jurisdiction

of the issues in dispute to the Commission.

455:10-19-43. Form

(a) A formal grievance shall be filed with the

agency grievance manager on the form

prescribed by the Commission or on a form

adopted by the appointing authority which

addresses the specific needs of the agency.

(b) The formal grievance form shall include,

as a minimum:

(1) the name, address and work

telephone number of the employee;

(2) the classification of the employee;

(3) the work location, department,

division or section of the employee;

(4) the name of the supervisor with

whom the employee discussed the dispute

and the date of the discussion;

(5) the date of the alleged act or

incident which is cause for the formal

grievance or the date the employee became

aware of the grievable issue;

(6) a brief statement of the dispute citing

such information as the reason for the

grievance, persons involved, etc.

(7) any laws, merit rules, agency policy,

practice or procedures the employee

believes to have been violated;

(8) a requested remedy which the

employee believes to be appropriate;

(9) the name, address and telephone

number of the employee's representative, if

any;

(10) the name, address and telephone

number of the spokesperson if the

grievance is from a group;

(11) the date and signature of the

employee or the spokesperson; and

(12) a list of the names of the

employees if a group grievance.

455:10-19-44. Resolution time

(a) A formal grievance shall be resolved by

the employing agency within 45 calendar

days after the filing of the grievance.

(1) The appointing authority may extend

the resolution time up to an additional 15

days for good cause. The extension shall

be made in writing to the employee before

the expiration of the 45 calendar day

resolution time and include reasons for the

extension.

(2) The employee and the appointing

authority may mutually extend the resolution

time up to an additional 30 calendar days

for good cause. Any extension shall be

agreed to in writing and include reasons for

the extension.

(3) In no case shall the resolution time

of a formal grievance exceed 90 calendar

days.

(b) Time limits for completion of resolution

steps may be adopted in an appointing

authority's internal agency grievance

resolution procedure.

455:10-19-45. Resolution decision

(a) Resolution decisions shall address the

issues raised in the formal grievance.

(b) Resolution decisions shall be made in

writing to the employee filing the formal

grievance or if a group grievance, to the

spokesperson. Resolution decisions shall

be delivered personally or by mail.

455:10-19-46. Filing an appeal after a

formal grievance

(a) After filing a formal grievance, an

employee may file an appeal with the

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Commission within 20 calendar days after:

(1) expiration of the resolution time,

including any extension, and a resolution

decision has not been received;

(2) receiving a resolution decision and

the employee can provide evidence the

resolution decision was not correct, did not

address the issues of the grievance or that

violations occurred during the processing of

the formal grievance.

(b) An employee may file an appeal before

the agency grievance procedure is

concluded if the employee can provide

evidence that violations of the agency

grievance procedure are occurring or if the

employee can provide evidence that the

alleged violations are continuing.

(c) The issues of the appeal shall be limited

to those raised in the formal grievance or

discovered during the internal agency

grievance process over which the

Commission has jurisdiction.

455:10-19-47. Grievance and appeal -

separate filings

The filing of formal grievances with the

employing agency and appeals with the

Commission are separate actions. Each is

the responsibility of the employee. The

filing of one does not substitute for the filing

of the other.

PART 7. GRIEVANCE PROCEDURE

455:10-19-60. General

The internal agency grievance

resolution procedure shall be a two step

procedure.

(1) The first step shall be an informal

discussion between the employee and the

immediate supervisor.

(2) The second step shall be the formal

grievance.

455:10-19-61. Step one - informal

discussion

(a) The purpose of the informal discussion

shall be to provide the employee and his or

her supervisor an opportunity to address

and resolve concerns and complaints at the

lowest level possible. The effort to resolve

disputes at this level may include, but is not

limited to, the use of mediation.

(b) An employee who has a grievable issue

shall promptly bring the dispute to the

attention of his or her supervisor. The

employee and the supervisor shall strive to

informally resolve the dispute.

(c) If the supervisor is unable to resolve the

dispute because it is not within his or her

control or authority, the supervisor shall

attempt to determine who can resolve the

dispute and give that person an opportunity

to resolve the dispute informally or advise

the employee to proceed to Step 2.

455:10-19-62. Step two - formal

grievance

(a) If the dispute is not resolved informally,

the employee may file a formal grievance

within the time specified in OAC 455:10-19-

42.

(b) Formal grievances shall promptly and

impartially be addressed and resolved at the

lowest level possible.

(c) A face-to-face meeting or telephone

conversation is required between the

resolution decision maker and the employee

at this step.

455:10-19-63. [RESERVED]

455:10-19-64. Use of voluntary

mediation

(a) Employees, supervisors, appointing

authorities and grievance managers are

encouraged to use mediation as a means of

resolution at any step of the internal agency

grievance procedure.

(b) Applicable grievance time limits shall be

tolled if a request for mediation is made.

The tolling time shall begin as soon as

mediation is requested and shall end:

(1) once it is determined the

participants are not willing to use mediation;

or

(2) upon conclusion of the mediation

session or at such time that any participant

withdraws from participating in the

mediation session.

(c) The agency grievance manager shall be

notified of the tolling time as soon as

possible and practical.

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SUBCHAPTER 21. PRESIDING OFFICIALS, REPRESENTATIVES,

WITNESSES AND PARTIES

S

ECTION

T

ITLE

455:10-21-1 Administrative Hearing Officers

455:10-21-2 Alternative Dispute Resolution Program Facilitators

455:10-21-3 Representatives

455:10-21-4 Witnesses

455:10-21-5 Parties

455:10-21-6 Intervenors

455:10-21-1. Administrative Law Judges

(a) General. Administrative Law Judges

shall be assigned by the Executive Director

to preside over prehearing conferences and

hearings. An Administrative Law Judge

shall be fair and impartial and take all

necessary action to avoid delay in the

resolution and disposition of an appeal. An

Administrative Law Judge shall have all

powers necessary to that end which are not

otherwise prohibited. An Administrative

Law Judge shall be subject to the

Commission Code of Conduct for

Administrative Law Judges.

(b) Withdrawal. An Administrative Law

Judge shall withdraw from any appeal in

which he or she can not be fair and

impartial. The Executive Director shall be

immediately notified of the withdrawal and

reason for such withdrawal.

(c) Disqualification. A party to an appeal

may file a request seeking the

disqualification of an Administrative Law

Judge on the basis of inability to be fair or

impartial. The request shall specifically

state the reasons for such request and shall

be filed as soon as the party making the

request has reason to believe there is a

basis for the disqualification and shall

include an affidavit of service to all other

parties. The Administrative Law Judge shall

be provided an opportunity to respond. The

Executive Director shall rule on the request

and the decision is final and conclusive

except as provided for the in the

Administrative Procedures Act and OAC

455:10-3-20.

455:10-21-2. Alternative Dispute

Resolution Program Facilitators

(a) General. Alternative Dispute Resolution

Program (ADRP) Facilitators shall be

assigned by the Executive Director to

preside over ADRP procedures. An ADRP

Facilitator shall be fair and impartial and

take all necessary action to avoid delay in

the resolution and disposition of an appeal.

An ADRP Facilitator shall have all powers

necessary to that end which are not

otherwise prohibited. An ADRP Facilitator

shall be subject to the Commission Code of

Conduct for ADRP Facilitators.

(b) Withdrawal. An ADRP Facilitator shall

withdraw from any appeal in which he or

she can not be fair and impartial. The

Executive Director shall be immediately

notified of the withdrawal and reason for

such withdrawal.

(c) Disqualification. A party to an appeal

may file a request seeking the

disqualification of an ADRP Facilitator on

the basis of inability to be fair or impartial.

The request shall specifically state the

reasons for such request and shall be filed

as soon as the party making the request

has reason to believe there is a basis for the

disqualification and shall include an affidavit

of service to all other parties. The ADRP

Facilitator shall be provided an opportunity

to respond. The Executive Director shall

rule on the request and the decision is final

and conclusive except as provided for the in

the Administrative Procedures Act and OAC

455:10-3-20.

455:10-21-3. Representatives

A person who voluntarily selects a

representative is bound by the acts and

omissions of the representative; therefore,

careful consideration should be given to the

selection of a representative. Unless

otherwise required by statute or the rules in

this chapter, a representative need not be

an attorney.

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(1) A representative shall have

knowledge of the appeal and shall be willing

and available to serve. A representative

shall have the authority to negotiate and

approve settlement.

(2) A representative shall be identified in

the petition for appeal or through an entry of

appearance or other written means.

(3) A representative shall be subject to

any Code of Conduct for Representatives

adopted by the Commission.

(4) The Commissioners, Executive

Director or presiding official may disqualify

or release a representative for conflict of

interest or any other good cause. A request

shall be submitted as soon as the person

making the request becomes aware of a

reason that justifies the request.

455:10-21-4. Witnesses

(a) General. The Commissioners,

Executive Director or presiding official may

compel the attendance of persons as

witnesses when their testimony will aid in

establishing the facts of an appeal. The

Commissioners, Executive Director or

presiding official may ask the witness

specific questions when to do so will aid in

the resolution and disposition of an appeal.

Employees appearing as witnesses shall be

released from duty by the employing agency

without loss of pay or time and without

effect on their employee service ratings.

(1) Employees shall be reimbursed by

the employing agency for expenses as

provided for in the State Travel

Reimbursement Act. The costs of securing

witnesses who are not state employees, to

include fees and mileage, shall be

computed and paid by the party calling the

witness.

(2) No person shall directly or indirectly

use, or threaten to use, any official authority

or other influence which would tend to

discourage any other person from offering

testimony.

(b) Subpoenas. The Commissioners,

Executive Director or Administrative Hearing

Officer may issue a subpoena to compel the

attendance of a person to give testimony or

for the production of books, records,

accounts, papers and other instruments and

tangible objects pursuant to any

investigation, hearing or Alternative Dispute

Resolution Program procedure. A

subpoena duces tecum may direct that

records be produced by the officer or

employee responsible for them.

(1) Service. Service of a subpoena

shall be the responsibility of the party

requesting the subpoena. A subpoena may

be served by any person 18 years of age or

older. Service may be made by personal

service or certified mail, but shall be made

at least 3 calendar days before the person

is required to appear. The person serving

the subpoena shall provide a written

statement showing the person served and

the date and manner of service. This

requirement may be satisfied by completion

of the affidavit on the subpoena form. The

attendance of a witness shall not be

enforced unless the affidavit of service is on

file with the Commission at the time of

attendance.

(2) Quashing or limiting. The

Commissioners, Executive Director or

Administrative Hearing Officer may quash or

limit a subpoena if: the subpoena was used

primarily as a means of harassment; the

testimony or documents sought are

cumulative; the testimony or documents

sought are not relevant or material; to

respond to the subpoena would be unduly

burdensome; for other good reasons, basic

fairness dictates that the subpoena not be

enforced.

(3) Failure to appear. Any person who

fails to appear in response to a subpoena,

fails to answer any question or produce any

books or papers, or who shall knowingly

give false testimony therein upon conviction

shall be subject to penalties pursuant to

Section 840-6.9 of Title 74 of the Oklahoma

Statutes.

(4) Effect of continuances. It shall be

the responsibility of the party requesting the

subpoena to notify the person subpoenaed

of the specific time and date of a

continuance and of the fact that the

subpoena remains in effect. Subpoenas

shall not normally be re-issued as a result of

a continuance.

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455:10-21-5. Parties

Parties to an appeal shall be afforded all

the rights they are entitled to. OAC 455:10-

3-3 defines who a party is. The Executive

Director may add or dismiss a party to an

appeal when the evidence justifies such

action be taken.

455:10-21-6. Intervenors

Any person alleged to have committed a

violation over which the Commission has

jurisdiction or who may be directly affected

by the outcome of an appeal, may request

permission to intervene in the appeal. The

request shall be made in writing at the

earliest possible time and shall include a

showing that the outcome of the appeal

would directly affect the person making the

request.

(1) Intervenors shall be considered

parties and shall have the same rights and

duties as an original party except that

intervenors shall not have an independent

right to a hearing. An intervenor may only

participate on the issues affecting him or her

as stated in the order granting intervention.

(2) The Executive Director, because of

statutory responsibility, may intervene as a

matter of right.

(3) The Administrator of the Office of

Personnel Management may personally

intervene at the earliest possible time he or

she knew, or should have known, that the

issues in the appeal would directly affect the

authority or responsibility of the Office of

Personnel Management.

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