PURPOSE: This rule prescribes the circumstances under which examination applicants and employees may file appeals with the personnel advisory board and establishes the procedures for the hearing of those appeals.

1. (1) Appeals of examination applicants and employees are provided under the following circumstances:
2. (A) Rejection of Examination Applications. An applicant whose request for admission to any examination has been rejected by the director may appeal by filing the appeal with the board in writing within fifteen (15) days of the mailing of the notice of rejection by the director and in any event before the holding of the examination. The board’s decision on all matters of fact shall be final. Pending consideration of the appeal, the director shall review the initial determination and shall have discretion to admit the applicant to the examination, but admission shall not constitute the assurance of a passing grade in the rating of education and experience (see section 36.390, RSMo);
3. (B) Appeal From Examination Ratings. Any applicant who has taken an examination and who feels that s/he has not been dealt with fairly in any phase of the examination process may request that the director review the case. This request for review of any examination must be filed in writing with the director within thirty (30) days after the date on which notification of the results of the examination was mailed to the applicant. A candidate may /~~._ appeal the decision of the director in writing to the board. This appeal must be filed with the board within thirty (30) days after date on which notification of the decision of the director was mailed to the applicant. The board’s decision with respect to any changes shall be final and shall be entered in the minutes. A correction in the ratings shall not affect a certification or appointment which may have already been made from the register;

4. (C) Appeals of Removal From Register. An eligible whose name has been removed from a register for any of the reasons specified in section 36.180 or 36.240, RSMo may appeal to the board for reconsideration. This appeal ~,,, must be filed in writing at the office of the board within thirty (30) days after the date on which notification was mailed to the applicant. The director shall refer the appeal with all pertinent information to the board. The board after investigation shall make its decision whichshall berecordedin theminutes and the eligible shall be notified accordingly by the director; and

   1. (D) Appeals From Dismissal, Demotion or Suspension. Any regular employee who is dismissed, demoted involuntarily for cause or suspended for more than five (5) days may appeal in writing by fling the appeal with the board on the form prescribed in 1 CSR 20. 4,010(3)(A)l. within thirty (30) days after the effective date of the personnel action, setting forth in substance the reasons for claiming that the dismissal, suspension or demotion was for political, religious or racial reasons or not for the good of the service. Upon appeal, both the appealing employee and appointing authority whose action is reviewed shall have the right to be heard and to present evidence at a hearing which, at the request of the appealing employee, shall be public. At the hearing of the appeals, rules commonly controlling the techniques of presenting relevant, competent and material evidence shall not apply. After the hearing and consideration of evidence for and against a suspension or demotion, the board shall approve or disapprove the action and in the event of a disapproval, the board shall order the reinstatement of the employee to the classification, pay range and increment formerly held and payment to the employee of such salary as had been lost by reason of suspension or demotion. After the hearing and consideration of the evidence for and against a dismissal, the board shall approve or disapprove this action and may make any one (1) of the following appropriate orders:

      1. 1. Order the reinstatement of the

employee to the classification, pay range and increment formerly held and the payment to the employee part or all of such salary as had been lost by reason of the dismissal;

1. 2. Sustain the dismissal of the employee, unless the board finds that the dismissal was based upon political, social or religious reasons, in which case it shall order the reinstatement of the employee to the classification, pay range and increment formerly held and the payment to the employee of such salary as had been lost by reason of his/her dismissal; or

2. 3. Except as provided in this rule, the board-

   1. (A) May sustain the dismissal but may

order the director to recognize reemployment rights for the dismissed employee under 1 CSR 20.3.030(6) in an appropriate class(es); or

1. (B) May take steps to effect the transfer

of the employee to a comparable classification, pay range and increment in another location, 1 CSR20-4 ,

m

division or department (see section 36.390, RSMo).

1. (2) Authority in the Conduct of Investigations and Hearings. In connection with the review of an appeal or for any other purpose necessary to determine the adherence to and effect of the law and these rules, the board and the director may conduct such investigations as are necessary. Any investigation involving the production of records or reports by a division shall be conducted in such manner as to cause the least possible disruption or inconvenience to the division in the conduct of its regular work. The board, each member of the board and the director shall have power to administer oath, subpoena witnesses and compel the production of books and papers pertinent to any investigation or hearing authorized by this law. Any person who shall fail to appear in response to a subpoena or to answer any question or to produce any books or papers pertinent to any such investigation or hearing or who shall knowingly give false testimony shall be guilty of a misdemeanor (see section 36.400, RSMo).

2. (3) Appeals Must be Submitted and Hearings Conducted Following the Procedures and Guides Provided in this Rule.

   1. (A) Appeal submission and preparation for hearing are governed by the following protisions:

      1. 1. Appeals shall be written. The appeal

may be filed by FAX, by mail or by other delivery to the board’s office. The written appeal must provide substantiallv the follow. iii inform&n: appellant’s name; appointing authority and agency; the type of disciplinary action appealed; the effective date of the disciplinary action; the appellant’s reason for appealing the disciplinary action; the appel~ lant’s response to the reasons given by the appointing authority; name8 of witnesses to be subpoenaed if a heanng is granted; a detailed description of any books, papers or records to be subpoenaed, along with their location, and a statement of the reasons that the items are needed for the hearing; the name, address, telephone number and signature of the appella& attorney, if any; the appellant’s signed acknowledgement andcertificationoftruthfor the information supplied in the written appeal;

1. 2. Theappellant mayfiletheappealon the

form for appeal prescribed by the board. The information required for completion of that form shall be deemed sufficient to satisfy the requirement for a written appeal. The board will provide to the appellant or to the appoinb ing authority, on request, a copy of the current form for appeal. The appointing authority shall deliver a copy of the form to an employee receiving any appealable disciplinary action. 1 CSR 20-4-ADMINISTRATION

The completed form or other written appeal must be received at the office of the board within thirty (30) days after the effective date of the disciplinary action appealed. A copy of the appellant’s contentions set out in the appeal will be furnished to the appointing authority;

1. 3. Appellants may represent themselves

and handle their own Casey but shall have the right to be represented by duly licensed attorneys. A party to an appeal cannot be represented by anyone other than a duly licensed attorney except that the appointing authority may appear by an employee in the agency. If either party intends to employ and be represented by an attorney, that party promptly shall notify the Personnel Advisory Board of the name and address of his/her attorney;

1. 4. If either party to an appeal desires the

issuance of a subpoena for any witness or records at any hearing, that party must apply for it sufficiently in advance of the hearing that the subpoena may be delivered to the requesting party by mail or by FAX at least one (1) day before the hearing. The requesting party shall provide the name and address of any witness subpoenaed, a detailed de&p tion of any records to be subpoenaed and a statement of what is intended to be proved by the records. The Personnel Advisory Board issues the subpoena by request, but the service of the subpoena rests in the hands of the party requesting it. Service of the subpoena is to be effected in accordance with section 536.077, RSMo; RSMo;

1. 5. Upon the acceptance of an appeal, the 5. Upon the acceptance of an appeal, the

appellant and appointing authority or their appellant and appointing authority or their representatives may meet with the Personnel representatives may meet with the Personnel Advisors Board, at a time and place set by the Advisors Board, at a time and place set by the boardfo; a preh&ngconfer&ce to determine the facts at issue. At the preheating conference both parties may stipulate on mutually agreed matters relevant to the disciplinary action or theappealmayberesolvedbyagreementofthe parties. If, during the prehearing conference, the case is not resolved and the appeal goes forward to a hearing before the Personnel Advisory Board, the board may confine the hearing to the law and facts at issue as stipulated by mutual agreement of the parties to the appeal; and

1. 6. All motions or other pleadings by the

parties shall be submitted in writing with a copy served or mailed to the opposing party. Parties to an appeal may amend their pleadings as a matter of course at any time before aresponsive pleadingisfiled and served or if the pleading is one to which no responsive pleading is required and the action has not been set for hearing, the party may so amend it at any time within thirty (30) days after it is filed. Otherwise, a party may amend a pleading only by leave of the Personnel Advisory Board or by written consent of the adverse party; and leave shall be given freely when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be the longer, unless the Personnel Advisory Board otherwise orders.

1. (B) Hearings Procedure. The conduct of hearings before the Personnel Advisory Board is subject to the following provisions:

   1. 1. Hearings will be held in the Office of the

Personnel Advisory Board in Jefferson City, Missouri, unless a different location is speckfied by action of the board;

1. 2. If no prehearing conference has been

held, the board will make a determination of what questions are at issue based upon the notice of the disciplinary action and the appellant’s contentions in the appeal prior to the taking of testimony. The hearing shall be confined to and come within the scope of law and facts that the board has determined to be at issue. The board may exclude evidence which is purely cumulative;

1. 3. The board requires attendance at the

hearing of the appeal of the person who imposed the discipline. If that person is not the appointing authority? it must be the subordinate to whom authonty has been delegated;

1. 4. The person conducting the hearing will

read a statement citing the appropriate sections of the merit system law applicable to appeals;

1. 5. The nerson condo&m the hear% will

read the charges of the appointing authority and the contentions of the appellant. By agreement these documents may be inserted in the record without reading before commencing the taking of testimony;

1. 6. All witnesses will be sworn or affirmed.

When possible, witnesses will stand to be Swxn or affirmed;

1. 7. The Personnel Advisory Board, on

request of either party or on its own motion, may order that the witnesses be separated so as to preclude any witness, other than the parties and their attorneys, from hearing the testimony of other witnesses. When requested by the appellant, only one (1) person in addition to counsel shall remain in the room to represent the appointing authority;

1. 8. The appointing authority will be

required to present his/her case first. Experience has shown this method gives the board a clearer and quicker picture of the issues. This is not a shift of the burden of proof, but is only the burden of going ahead with the proof;

1. 9. The Personnel Advisory Board may

take notice of its rules, the class specifications, official records of the Personnel Division and

CODEOFSTATEREGIJLATIONS

the pay plan without the necessity of an offer in evidence;

1. 10. The Personnel Advisory Board may fix the total time to be allowed for oral argument;
2. 11. At the heaine the entire oroceedines will be tape reeorded.;pfter the b&d anno&- ces its findings of fact, conclusions of law, decision and order, or at an earlier time if the board determines that the interest of efficient administration would be served, a copy of the recording, will be made available to either party. The board will not transcribe the record fmm aural to written form. The cost of a transcription will be borne by the requesting party. The transcription may be performed by any commercial business or agency selected by the requesting party. The board will forward directly to the selected business or agency a copy of the aural recording;

3. 12. No rehearing shall be granted from a final decision of the Personnel Advisory Board; however, at any time prior to issuance of the decision, the board may require the production of additional documents and records, the presentation of additional testimony afterpriornotification to both parties, or both;

   1. 13. An appeal set for hearing may be continued by the Personnel Advisory Board for cause deemed sufficient or by consent of both parties to the appeal. However, a continuance will not be granted except for compelling cause or to serve the ends of justice. If an appellant requests and is granted a continuance, the Personnel Advisory Board, in its discretion, may deny the appellant any compensation for that portion of time lost by reason of the continuance made at the request if the appellant’s appeal is finally sustained. If an appeal scheduled for hearing is not reached, it shall be reset and &en orecedence over an” subsequent appeak- .
   2. 14. The finding of the board will be announced in writing subsequent to the hearing. Parties will be notified by letter sent by certified mail. The finding will be made as provided in section 36.390(5), RSMo; and
   3. 15. As appropriate and where no specific rule governs the issue, the Personnel Advisory Board will utilize the rules of the civil procedure for guidance.

4. (C) Special Hearing Procedures. In the hearing of appeals from disciplinary actions and in the conduct of other appeals or investigations authorized under these rules or the merit system law, the board or the chairman of the board may delegate responsibility for the conduct ofinvestigations and the hearing of appeals provided under any section of the law to a member of the board or to a hearing officer designated by the board. The hearing officer shall have the power to administer oaths, subpoena witnesses, and

   (l/27/95) MISSOURI secretm Of state

compel the production of records pertinent to any hearing or investigation. The hearing officer may take any action in connection with the hearing or investigation which the board itself is authorized to take by law other than making the final decision and appropriate order. When a hearing has been completed, the individual board member or the hearing officer who conducted the hearing shall prepare a summary of the hearing and the evidence and recommend a findings of fact, conclusions of law, decision and appropriate order for appmval of the board. The board may adopt such recommendations in whole or in part, require the production of additional testimony, reassign the case for rehearing or may conduct itself a new or additional hearing as is deemed necessary prior to rendering a final decision (see section 36.390, RSMo). Whenever this rule uses the term Personnel Advisory Board or board, the same shall apply to a member ofthe board or a hearing officer who has been delegated the responsibility to conduct the investigation or hear the appeal.

Auth: sections 36.060, RSMo (Cum. Supp. 1993) and 36.070, RSMo (1986).* Original rule filed July 9,1947, effectiue July 19, 1947. Amended: Filed April 19, 1968, effectiue April 29, 1968. Amended: Filed June 20, 1969, effectiue June 30, 1969. Amended: Filed April 23, 1974, effective May 2, 1974. Amended: Filed Dec.8,1975,effectiveDec.19,1975.Emergency amendment filed Sept. 13, 1979, effectiue Sept. 28, 1979, expired Jan. 25, 1980. Amended: Filed Oct. 12, 1979, effectiue Jan. 15, 1980. Amended: Filed June 2, 1988, effective Oct. 1, 1986. Amended: Filed NW. 16, 1993, effectiue July 30, 1994. Amended: Filed July 21, 1994, effective Feb. 26,1995. *Original authority: 36.060, RSMo (1945), amended 1971, 1979, 1993 and 36.070, RSMo (19451, amended 2979.