101 KAR 1:335. Employee actions.

PERSONNEL BOARD

(Amendment)

101 KAR 1:335. Employee actions.

RELATES TO: KRS 18A.075(1), 18A.0751(1), (4), 18A.115(4)

STATUTORY AUTHORITY: KRS 18A.075

NECESSITY, FUNCTION, AND CONFORMITY: KRS 18A.075(1) requires the Personnel Board to promulgate comprehensive administrative regulations consistent with the provisions of KRS 18A.005 to 18A.200. KRS 18A.0751(1) and (4) require the Personnel Board to promulgate administrative regulations for the classified service governing demotion, transfer, reinstatement and reemployment. KRS 18A.115(4) establishes requirements governing the promotion of a career employee to a position exempted from classified service. This administrative regulation establishes the method for determining an employee's work station and the requirements governing a demotion, transfer, or reinstatement of an employee.

Section 1. Definitions. "Class series" means a group of positions that are similar as to the duties performed and have:

(1) Varying levels of:

(a) Discretion;

(b) Responsibility;

(2) Schedules of compensation that are commensurate with minimum requirements.

Section 2. Work Station. (1) The official work station of an employee assigned to an office shall be the street address where the office is located.

(2) The official work station of a field employee shall be that address to which the employee is assigned at the time of appointment to the employee's current position.

(3) Except as provided by Sections 3, 4, and 5 of this administrative regulation, an appointing authority may assign an employee to work at a site other than his work station if the:

(a) Site is within his county of employment; and

(b) Assignment is not a transfer, demotion, or reinstatement.

Section 3. Demotion. (1) A demotion for cause shall be intra-agency.

(2) Voluntary demotion.

(a) A voluntary demotion shall be made if an employee with status requests a voluntary demotion on the Voluntary Transfer or Voluntary Demotion Form prescribed by the Personnel Cabinet.

(b) The form shall include:

1. A statement of the reason for the request;

2. The effective date of the demotion;

3. The position from which he requests demotion;

4. The position to which he will be demoted; and

5. A statement that the employee waives his right to appeal the demotion.

(3) A voluntary demotion shall be interagency or intra-agency.

Section 4. Transfers. (1) The transfer of an employee with status shall conform to the requirements established in this section.

(2)(a) A transfer shall be on a voluntary or involuntary basis.

(b) An appointing authority shall establish a reasonable basis for selecting an employee for involuntary transfer.

(3) Involuntary transfer, same county.

(a) Prior to the effective date of an involuntary transfer to a position with a work station in the same county, an employee shall receive a written notice of involuntary transfer.

(b) The notice shall state the:

1. Employee has been selected for transfer;

2. New work station;

3. Reason for the transfer;

4. Employee is required to report to the new work station;

5. Effective date of the transfer; and

6. Right of the employee to appeal the transfer to the board within sixty (60) days of receipt of the notice of involuntary transfer, excluding the date the notice is received.

(d) An employee shall report to the new work station upon the date specified in the notice.

(4) Involuntary transfer, out of county. If an involuntary transfer is to a position with a work station in a different county:

(a) An employee shall be entitled to travel and moving expenses as provided by 200 KAR 2:006;

(b) An employee shall receive a written notice of involuntary transfer at least thirty (30) days prior to the effective date of the transfer;

1. The information specified in subsection (3)(b) of this section; and

2. A statement that the employee is entitled to:

a. Reimbursement of travel expenses incurred within thirty (30) days of the effective date of the notice; and

b. Moving expenses, if any.

(5) An involuntary transfer shall be intra-agency.

(6) Voluntary transfer.

(a) Prior to a voluntary transfer, an employee with status shall request a voluntary transfer on the Voluntary Transfer or Voluntary Demotion Form prescribed by the Personnel Cabinet.

(b) The form shall include:

1. A statement of the reason for the request;

2. The effective date of the transfer;

3. The position, including identifying number, from which he requests a transfer;

4. The position, including identifying number, to which he requests a transfer; and

5. A statement that the employee waives his right to appeal the transfer.

(7) A voluntary transfer shall be interagency or intra-agency.

Section 5. Reinstatement. (1) A request for reinstatement shall be submitted by [~~approved if it has been~~:

~~(a) Made at the request of~~] the appointing authority to the secretary of Personnel.[~~; and~~

~~(b) Approved by the Commissioner of Personnel.~~]

(2) The request[~~Approval~~] shall include a finding that the candidate for reinstatement:

(a) Meets the current qualifications for the job classification to which he is being reinstated; and

(b) Has previously held status at that grade level or higher.

(3) If the reinstatement is to a classification outside of the classification series where the employee has previously held status, the candidate shall pass the appropriate examination prior to reinstatement.

(4) The request for reinstatement shall contain a copy of the board’s order ordering reinstatement, if applicable.

Section 6. Written Reprimand. (1) An employee or former employee may petition the Personnel Cabinet Secretary for removal of a written reprimand and all related documentation from the employee’s official personnel file after a period of three (3) years.

(a) An employee’s request shall not be granted if the employee has received any disciplinary action or written reprimand in the three (3) years prior to the request for removal.

(b) A petition for removal shall:

1. Be made by the employee, and be dated and signed; and

2. Include the following information:

a. The employee’s current position, agency, work phone number, and work address;

b. The employee’s immediate supervisor at the time of the petition for removal;

c. If the employee seeks to remove a reprimand that was issued while working in a position other than the employee’s current position;

d. The date the written reprimand was issued;

e. A statement by the employee that the employee has not received any disciplinary action or written reprimand in the three (3) years prior to the petition; and

f. A statement that the information contained in the petition is correct and complete to the best of the employee’s knowledge, and that the employee has provided a copy of the petition to the appointing authority.

(c) The petition for removal shall be mailed by first-class mail or hand-delivered to the office of the Personnel Cabinet Secretary.

(2) A petition for removal of a written reprimand shall be subject to the approval of the Personnel Cabinet Secretary.

(a) The Personnel Cabinet Secretary shall approve or deny the petition for removal within thirty (30) days of receipt of the petition.

(b) If the petition is denied, the Personnel Cabinet Secretary shall notify the employee in writing and provide justification for denial. The decision by the secretary with respect to the petition shall be final and not appealable to the Personnel Board.

(c) If the petition is approved, the Personnel Cabinet Secretary shall notify the employee and the appointing authority of the employee’s agency in writing of the approval.

(3) Upon removal from an employee’s official personnel file maintained by the Personnel Cabinet, a written reprimand shall be handled as follows.

(a) The written reprimand shall be delivered to the Office of Legal Services and remain in the custody and care of the Office of Legal Services.

(b) The Office of Legal Services shall maintain the document as confidential work-product materials for the availability or use in any future legal proceeding.

(c) If no legal proceeding has been filed within five (5) years of receipt, the written reprimand shall be permanently destroyed.

(d) Upon removal from the official personnel file, but prior to destruction, a written reprimand shall not be considered as part of any personnel action.

(e) The employing agency shall be notified by the Personnel Cabinet of the removal of a written reprimand from an employee’s official personnel file.

Section 7. [6.] Incorporation by Reference. (1) "Voluntary Transfer or Voluntary Demotion" form, 04-15-94, Personnel Cabinet, is incorporated by reference.

(2) It may be inspected, copied, or obtained at the Personnel Cabinet, Room 531, 5th Floor, 200 Fair Oaks Lane, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

MARK A. SIPEK, Executive Director

APPROVED BY AGENCY: March 28, 2008

FILED WITH LRC: March 28, 2008 at 2 p.m.

PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall be held on May 21, 2008, at 9 a.m. at the Kentucky Personnel Board, 28 Fountain Place, Frankfort, Kentucky. Individuals interested in being heard at this hearing shall notify this agency in writing by May 14, 2008, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. The hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until close of business June 2, 2008. Send written notification of intent to be heard at the public hearing or written comments to:

CONTACT PERSON: Mark A. Sipek, Executive Director, Personnel Board, 28 Fountain Place, Frankfort, Kentucky 40601, phone (502) 564-7830, fax (502) 564-1693.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact person: Mark A. Sipek

(1) Provide a brief summary of:

(a) What this administrative regulation does: The regulation establishes a process for removal of written reprimands from the files of current and former employees.

(b) The necessity of this administrative regulation: To establish a uniform process for consideration of requests for removal of written reprimands.

(c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 18A.0751(4)(e) requires the Personnel Board to promulgate an administrative regulations relative to the classified service and rights of classified employees.

(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: By establishing a process for current and former employees to petition for removal of written reprimands.

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change this existing administrative regulation: The proposed amendment provides for a process whereas an employee or former employee who has received a written reprimand may request its removal from his record

(b) The necessity of the amendment to this administrative regulation: Secretary of the Personnel Cabinet agrees with the Personnel Board a process for removal of written reprimands would be in the best interests of the classified service.

(c) How the amendment conforms to the content of the authorizing statutes: By allowing a process whereby employees may petition for written reprimands to be removed from their personnel file is in keeping with the intent of KRS 18A.020.

(d) How the amendment will assist in the effective administration of the statutes: This amendment is necessary to establish the process whereby employees may request removal of written reprimands from their record.

(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: All state employees and former state employees.

(4) Provide an assessment of how the above group or groups will be impacted by either the implementation of this administrative regulation, if new, or by the change if it is an amendment: These current and former employees will now have a means by which to ask that a written reprimand be removed from their record.

(5) Provide an estimate of how much it will cost to implement this administrative regulation:

(a) Initially: None

(b) On a continuing basis: None

(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Not applicable.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: Not applicable.

(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation does not establish or increase any fees.

(9) TIERING: Is tiering applied? This regulation must apply equally to all classified employees in all state agencies with classified employees.

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

1. Does this administrative regulation relate to any program, service, or requirements of a state or local government (including cities, counties, fire departments, or school districts)? Yes

2. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation?

3. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation.

4. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year?

(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years?

(d) How much will it cost to administer this program for subsequent years?

Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

Revenues (+/-):

Expenditures (+/-):

Other Explanation: