No. 31934: R137-1-2. Definitions

DAR File No.: 31934
Filed: 09/09/2008, 12:49
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this 120-day (emergency rule) is to comply with the state's four 10-hour day work schedule.

Summary of the rule or change:

This change eliminates Fridays as a defined work day.

State statutory or constitutional authorization for this rule:

Section 67-19a-203

Anticipated cost or savings to:

the state budget:

None--Changing the days during the week that Career Service Review Board (CSRB) filings and decisions will be issued will have no fiscal impact whatsoever on operating costs.

local governments:

None--The CSRB has no interaction with local governments.

small businesses and persons other than businesses:

None--Employees will simply not be able to file on Fridays. This will generate no costs for them, and will in fact result in an actual extension of time for them to file with the CSRB.

Compliance costs for affected persons:

None--Employees will simply not be able to file on Fridays. This will generate no costs for them, and will in fact result in an actual extension of time for them to file with the CSRB.

Comments by the department head on the fiscal impact the rule may have on businesses:

This change will have no impact on the CSRB's operations. As said it simply sets forth the days that filings and decisions will be issued. Robert Thompson, CSRB Administrator

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Governor's Executive Order that changed the state's work schedule to four 10-hour work days. Since many grievances and decisions on those grievances are required to be filed within proscribed days, the section defining working day to include Fridays must be changed to be in compliance with law. Specifically, Section R137-1-2 needs to be changed to exclude Friday as a working day.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Career Service Review Board
Administration
Room 1120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Robert W. Thompson at the above address, by phone at 801-538-3047, by FAX at 801-538-3139, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

This rule is effective on:

10/02/2008

Authorized by:

Robert W. Thompson, Administrator

RULE TEXT

R137. Career Service Review Board, Administration.

R137-1. Grievance Procedure Rules.

R137-1-2. Definitions.

Terms defined in Section 63-46b-2 of the Utah Administrative Procedures Act (UAPA) are incorporated by reference within this rule. In addition, other terms which are used in this rule are defined below:

"Abandonment of Grievance" means either the voluntary withdrawal of a grievance or the failure by an employee to properly pursue a grievance through these grievance procedures.

"Administrative Review of the File" means an informal adjudicative proceeding according to Subsection 67-19a-403(2)(b)(ii).

"Administrator" means the incumbent in the position defined at Section 67-19a-101(1).

"Affidavit" means a signed and sworn statement offered for consideration in connection with a grievance proceeding.

"Appeal" means a formal request to a higher level of review of an unacceptable lower level decision.

"Appellant" means the party that is advancing an evidentiary level grievance decision to the appellate level before the board at Step 6.

"Appointing Authority" means the officer, board, commission, person or group of persons authorized to make appointments on personnel/human resource management matters in their respective agency.

"Board" means the entity defined at Section 67-19a-101(2), and refers to the five-member, gubernatorial-appointed entity at Sections 67-19a-201 and 67-19a-202.

"Burden of Moving Forward" means a party's obligation to present evidence on a particular issue at a particular time. The burden of moving forward may shift back and forth between the parties based on certain legal principles.

"Burden of Proof" means the obligation to prove affirmatively a fact or set of facts at issue between two parties. If proven, the opposing party then has a burden of proving any affirmative defense.

"CSRB" and "CSRB Office" mean the agency of state government that statutorily administers these grievance procedures according to Sections 67-19a-101 through 67-19a-408.

"Closing Statement" means a party's final summation of evidence and argument, which is presented at the conclusion of the hearing.

"Consolidation" means the combining of two or more grievances involving the same controversy for purposes of holding a joint hearing, proceeding, or administrative review.

"Continuance" means an authorized postponement or adjournment of a hearing until a later date, whether the date is specified or not.

"Declaratory Order" means a ruling that is explanatory in purpose; it is designed to clarify what before was uncertain or doubtful. A declaratory order constitutes a declaration of rights between parties to a dispute and is binding as to both present and future rights. It is an administrative interpretation or explanation of a right, statute, order or other legal matter under a statute, rule, or an order.

"Default" means an omission of or untimely failure to take or perform a required act in the processing of a grievance. It is the failure to discharge an obligation which results in a forfeiture.

"Deposition" means a form of discovery in which testimony of a witness is given under oath, subject to cross-examination, and recorded in writing, prior to the hearing.

"Discovery" means the prehearing process whereby one party may obtain from the opposing party, or from other individuals or entities, information regarding the witnesses to be called, the documents and exhibits to be used at the hearing, and the facts and information about the case.

"Evidentiary Hearing" means a proceeding of relative formality, though much less formal than a trial, in which witnesses are heard and evidence is presented and considered. Specific issues of fact and of law are tried. Afterwards, ultimate conclusions of fact and of law are set forth in a written decision or order.

"Excusable Neglect" means the exercise of due diligence by a reasonably prudent person and constitutes a failure to take proper steps at the proper time, not in consequence of the person's own carelessness, inattention, or willful disregard in the processing of a grievance, but in consequence of some unexpected or unavoidable hindrance or accident.

"File" means to submit a document, grievance, petition, or other paper to the CSRB Office as prescribed by these rules. The term "file" includes faxing and E-mailing.

"Filing Date" means the day that a document, grievance, petition, or other paper is recorded as having been received by the CSRB Office.

"Grievance Procedures" mean the grievance and appeal procedures codified at Sections 67-19a-101 through 67-19a-408 and promulgated through this rule.

"Grievant" means the person or party advancing one or more issues as a petitioner through these grievance procedures to the evidentiary/step 5 level. However, at the appellate/step 6 level one party is designated as the appellant, the other as respondent.

"Group Grievance" means a grievance submitted and signed by two or more aggrieved employees. The term does not include "class action."

"Hearing" means the opportunity to be heard in an administrative proceeding.

"Hearing Officer" means an impartial trier of facts appointed by the CSRB administrator and assigned to hear a particular grievance case at the evidentiary/step 5 level.

"Hearsay Evidence" means evidence not based upon a witness's personal knowledge as a direct observer of an event. Rather, hearsay evidence stems from the repetition of what a witness heard another person say. Hearsay's value rests upon the credibility of the declarant. Hearsay is a statement made outside of the hearing that is offered as evidence of the truth of matters asserted in the hearing.

"Issuance" means the date on which a decision, order or ruling is signed and dated; it is not the date of mailing, or the date of the mailing certificate, nor the postal date. Date of issuance is the date specified according to Subsection 63-46b-14(3)(a), of the UAPA.

"Joint Hearing" means the uniting of two or more grievances involving the same, similar, or related circumstances or issues to conduct a single hearing; also see "Consolidation."

"Jurisdiction" means the legal right and authority to hear and decide issues and controversies.

"Jurisdictional Hearing" means a hearing conducted by the administrator (or hearing officer who sits by designation to represent the administrator in these hearings) to determine timeliness, standing, jurisdiction, direct harm, and eligibility to advance a grievance issue to the evidentiary/step 5 level.

"Management Representative" means a person of managerial or supervisory status who is not subject to exclusion. Legal counsel is not included within the meaning of the term.

"Motion" means a request offered verbally or in writing for a ruling or to take some action.

"Notice" and "Notification" mean a proper written notice to the parties involved in a grievance procedural hearing or conference, setting forth date, time, location, and the issue to be considered.

"Pleadings" mean the formal written allegations of the parties that set forth their respective claims and defenses.

"Pro Se" means in one's own behalf. A person is represented pro se in an administrative proceeding when acting without legal counsel or other representation.

"Quash" means to cancel, annul, or vacate a subpoena.

"Relevant" means directly applying to the matter in question; pertinent, germane. It is evidence that tends to make the existence of any facts more probable or certain than they would be without the evidence; and tending to prove the precise fact at issue.

"Remand" means to send back, as for further deliberation and judgment, to the presiding official or other tribunal from which a case was appealed.

"Respondent" means the party against whom an appeal is made at the appellate/step 6 level.

"Standard of Proof" means the evidentiary standard, which in CSRB adjudications is the substantial evidence standard.

"Stay" means a temporary suspension of a case or of some designated proceeding within the case.

"Submit" means to commit to the discretion of another; to present for determination.

"Subpoena" means a formal legal document issued under authority to compel the appearance of a witness at an administrative proceeding, the disobedience of which may be punishable as a contempt of court.

"Subpoena Duces Tecum" means a formal legal document issued under authority to compel specific documents, books, writings, papers, or other items.

"Substantial Evidence" means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which issues tendered can be reasonable resolved. It is evidence that a reasonable mind might accept as adequate to support a conclusion, but is less than a preponderance.

"Summary Judgment" means a ruling made upon motion by a party or the presiding official when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only a question of law is involved. The motion may be directed toward all or part of a claim or defense.

"Transcript" means an official verbatim written record of an adjudicative proceeding or any part thereof, which has been recorded and subsequently transcribed by a certified court reporter.

"UAPA" means the Utah Administrative Procedures Act found at Sections 63-46b-1 through 63-46b-21.

"Withdraw" means to recall or retract a grievance from further consideration under these grievance procedures.

"Witness Fee" means an appearance fee and may also include a mileage rate established by statutory provision pursuant to Section 21-5-4.

"Working Days" means for purposes of the time periods for filing a grievance, advancing an appeal or responding to an employee's grievance or appeal, all days except [for ]Fridays, Saturdays, Sundays and recognized State holidays.

 

KEY: grievance procedures

Date of Enactment or Last Substantive Amendment: October 2, 2008

Notice of Continuation: August 4, 2006

Authorizing, and Implemented or Interpreted Law: 34A-5-106; 67-19-30; 67-19-31; 67-19-32; 67-19a et seq.; 63-46b et seq.