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Unofficial Merit System of Personnel Administration Rules
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Merit Protection Commission Effective 3/1/2008
Page 1
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.