No. 29883 (Amendment): R477-2. Administration

DAR File No.: 29883
Filed: 04/30/2007, 09:56
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This amendment exempts employees of the Attorney General's Office from these rules; removes detail from the rule that should more appropriately be placed in department policy with the consolidation of the new Department of Human Resource Management (DHRM) and makes other nonsubstantive changes to correct references to rule and Utah code.

Summary of the rule or change:

Subsection R477-2-1(3)(f) now exempts all employees of the Attorney General's Office from the DHRM rules in compliance with provisions of H.B. 316, 2007 Legislative Session, which creates a separate career service system for that agency. Subsections R477-2-5(8)(a) through (t) are deleted from the rules and this requires an amendment to Section R477-2-6. Prior to this year, these subsections required Human Resources (HR) employees who were not part of DHRM to provide certain employee related information to the public as required by the Government Records Access and Management Act. With the consolidation of HR into DHRM effective 07/01/2006, all HR employees report to the new department and these provisions can now be handled by department policy. All other amendments are nonsubstantive corrections to the way DHRM cites rules and references to the Utah Code. (DAR NOTE: H.B. 316 (2007) is found at Chapter 166, Laws of Utah 2007, and will be effective 07/15/2007.)

State statutory or constitutional authorization for this rule:

Section 52-3-1, Subsections 63-2-204(5) and 63-2-903(4), and Sections 67-19-3 and 67-19-18

Anticipated cost or savings to:

the state budget:

These amendments do not require any additional or new action on the part of agencies and therefore, do not have any fiscal impact.

local governments:

This rule only affects the executive branch of state government and will have no impact on local governments.

other persons:

This rule only affects the executive branch of state government and will have no impact on other persons.

Compliance costs for affected persons:

This rule only affects agencies of the executive branch of state government.

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

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. This act limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or savings on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business. Jeff Herring, Executive Director

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

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Lyle Almond at the above address, by phone at 801-538-3391, by FAX at 801538-3081, 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:

06/14/2007

This rule may become effective on:

07/01/2007

Authorized by:

Jeff Herring, Executive Director

RULE TEXT

R477. Human Resource Management, Administration.

R477-2. Administration.

R477-2-1. Rules Applicability.

These rules apply to all career and career service exempt state employees except those specifically exempted in Section 67-19-12.

(1) Certificated employees of the State Board of Education are covered by these rules except for rules governing classification and compensation, found in Rule R477-3 and R477-6.

(2) Nonstate agencies with employees protected by the career service provisions of these rules in Rule R477-4, R477-5, R477-9 and R477-11 are exempted by contract from any provisions deemed inappropriate in their jurisdictions by the Executive Director, DHRM.

(3) Unless employees in exempt positions have written contracts of employment for a definite period of time, they are career service exempt employees. The following employees are exempt from mandatory compliance with these rules:

(a) members of the Legislature and legislative employees;

(b) members of the judiciary and judicial employees;

(c) elected members of the executive branch and their direct staff who are career service-exempt employees;

(d) officers, faculty, and other employees of state institutions of higher education;

(e) any positions for which the salary is set by law;

(f) [attorneys]employees in the Attorney General's Office;

(g) agency heads and other persons appointed by the governor when authorized by statute;

(h) employees of the Governor's Office of Economic Development whose positions have been designated executive/professional by the executive director of the Governor's Office of Economic Development with the concurrence of the Executive Director, DHRM;

(i) employees of the Medical Education Council.

(4) All other exempt positions are covered by provisions of these rules except rules governing career service status in Rule R477-4, R477-5, R477-9 and R477-11.

(5) The above positions may or may not be exempt from federal and other state regulations.

 

R477-2-2. Compliance Responsibility.

Agencies shall [manage their own human resources in compliance]comply with these rules. Agencies are authorized to correct any administrative errors.

(1) The Executive Director, DHRM, may authorize exceptions to provisions of these rules when one or more of the following criteria are satisfied:

(a) Applying the rule prevents the achievement of legitimate government objectives;

(b) Applying the rule impinges on the legal rights of an employee.

(2) Agency personnel records, practices, policies and procedures, employment and actions, shall comply with these rules and are subject to compliance audits by DHRM.

(3) In cases of noncompliance with [the State Personnel Management Act, ] Title 67, Chapter 19, and these rules, the Executive Director, DHRM, may find the responsible agency official to be subject to the penalties prescribed by [Section]Subsection 67-19-18(1) pertaining to misfeasance, malfeasance or nonfeasance in office.

 

R477-2-5. Records.

(1) DHRM shall maintain a computerized file for each employee that contains the following, as appropriate:

(a) performance ratings;

(b) records of actions affecting employee salary, current classification, title and salary range, salary history, and other personal data, status or standing.

(2) Agencies shall maintain the following records in each employee's personnel file:

(a) applications for employment, Employment Eligibility Certification record, Form I-9, and other documents required by the United States Bureau of Citizenship and Immigration Services Regulations, under the Immigration Reform and Control Act of 1986, employee signed overtime agreement, personnel action records, notices of corrective or disciplinary actions, new employee orientation form, performance evaluation records, separation and leave without pay records, including employee benefits notification forms for PEHP and URS;

(b) references to or copies of transcripts of academic, professional, or training certification or preparation;

(c) copies of items recorded in the DHRM computerized file and other materials required by agency management to be placed in the personnel file. The agency personnel file shall be considered a supplement to the DHRM computerized file and shall be subject to the rules governing personnel files;

(d) leave and time records; and

(e) copies of any documents affecting the employee's conduct, status or salary. The agency shall inform employees of any changes in their records based on conduct, status or salary no later than when changes are entered into the file.

(3) Agencies shall maintain a separate file from the personnel file containing confidential employee medical information.

(a) Information in this file shall include all written and orally obtained information pertaining to medical issues, including Family Medical and Leave Act forms, medical and dental enrollment forms which contain health related information, health statements, applications for additional life insurance, and any other medical information.

(b) Information regarding the results from fitness for duty evaluations and drug testing shall be maintained in a file separate from the personnel file and from the file containing confidential employee medical information.

(c) Information in this file is considered private or controlled information. Communication shall adhere to [the Government Records Access and Management Act, Section 63-2-101]Title 63, Chapter 2, the Government Records Access and Management Act.

(d) An employee who violates confidentiality is subject to state disciplinary procedures.

(4) An employee has the right to review the employee's personnel file, upon request, in DHRM or the agency, as governed by law and as provided through agency policy.

(a) An employee may correct, amend, or challenge any information in the DHRM computerized or agency personnel file, through the following process:

(i) The employee shall request in writing that changes occur.

(ii) The employing agency shall be given an opportunity to respond.

(iii) Disputes over information that are not resolved between the employing agency and the employee shall be decided in writing by the Executive Director, DHRM. DHRM shall maintain a record of the employee's letter, the agency's response, and the DHRM Executive Director's decision.

(5) When a disciplinary action is rescinded or disapproved upon appeal, forms, documents and records pertaining to the case shall be removed from the personnel file.

(a) When the record in question is on microfilm, a seal will be placed on the record and a suitable notice placed on the carton or envelope. This notice shall indicate the limits of the sealed section and the authority for the action.

(6) Upon employee separation, DHRM and agencies shall retain computerized records for thirty years. Agency hard copy records shall be retained by the agency for a minimum of two years, then transferred to the State Record Center to be retained according to the record retention schedule.

(7) Information classified as private in both DHRM and agency personnel and payroll files shall be available only to the following people:

(a) the employee;

(b) users authorized by the Executive Director, DHRM, who have a legitimate need to know;

(c) individuals who have the employee's written consent.

(8) Utah is an open records state, according to [Chapter 2, Title 63,]Title 63, Chapter 2, the Government Records Access and Management Act. [Requests for information shall be in writing. The following information]Information classified as public concerning current or former state employees, volunteers, independent contractors, and members of advisory boards or commissions shall be released upon request.[given to the public upon written request where appropriate with the exception of employees whose records are private or protected:

(a) the employee's name;

(b) gross compensation;

(c) salary range;

(d) contract fees;

(e) the nature of employer paid benefits;

(f) the basis for and the amount of any compensation in addition to salary, including expense reimbursement;

(g) job title;

(h) performance plan;

(i) education and training background as it relates to qualifying the individual for the position;

(j) previous work experience as it relates to qualifying the individual for the position;

(k) date of first and last employment in state government;

(l) the final disposition of any appeal action by the Career Service Review Board;

(m) the final disposition of any disciplinary action;

(n) work location;

(o) a work telephone number;

(p) city and county of residence, excluding street address;

(q) honors and awards as they relate to state government employment;

(r) number of hours worked per pay period;

(s) gender;

(t) other records as approved by the State Records Committee.]

(9) When an employee transfers from one agency to another, the former agency shall transfer the employee's personnel and medical file to the new agency. The file shall contain a record of all actions that have affected the employee's status and standing.

(10) An employee may request a copy of any documentary evidence used for disciplinary purposes in any formal hearing, regardless of the document's source, prior to such use. This shall not apply to documentary evidence used for rebuttal.

(11) Employee medical information obtained orally or documented in separate confidential files is considered private or controlled information. Communication must adhere to [the Government Records Access and Management Act, Section 63-2-101]Title 63, Chapter 2, the Government Records Access and Management Act. Employees who violate confidentiality are subject to state disciplinary procedures and may be personally liable for slander or libel.

(12) In compliance with the Government Records Access and Management Act, only information classified as public or private which can be determined to be related to and necessary for the disposition of a long term disability or unemployment insurance determination shall be approved for release on a need to know basis. The [agency human resource manager or ]authorized manager in DHRM shall make the determination.

(13) An employee may verbally request the release of information for personal use, or authorize in writing the release of personal performance records for use by an outside agent based on a need to know authorization. Private data shall only be released, except to the employee, after a written request has been evaluated and approved.

 

R477-2-6. Release of Information in a Reference Inquiry.

Reference checks or inquiries made regarding current or former public employees, volunteers, independent contractors, and members of advisory boards or commissions can be released if the information [falls under a category outlined in R477-2-5(8)]is classified as public, or if the subject of the record has signed and provided a reference release form for information authorized under Title 63, Chapter 2, of the Government Records Access and Management Act.

(1) The employment record is the property of Utah State Government with all rights reserved to utilize, disseminate or dispose of in accordance with the Government Records Access and Management Act.

(2) Additional information may be provided if authorized by law.

 

R477-2-7. Employment Eligibility Certification (Immigration Reform and Control Act - 1986).

[(1)] All career and career service exempt employees appointed on and after November 7, 1986, as a new hire, rehire, agency transfer or through reciprocity with or assimilation from another career service jurisdiction must provide verifiable documentation of their identity and eligibility for employment in the United States by completing all sections of the Employment Eligibility Certification Form I-9 as required under the Immigration Reform and Control Act of 1986.[

(2) Agency hiring officials are responsible for verifying the identity and employment eligibility of these employees, by completing all sections of the Employment Eligibility Certification Form I-9 in conformance with United States Bureau of Citizenship and Immigration Services (BCIS) Regulations. The I-9 form shall be maintained in the agency personnel file.]

 

R477-2-8. Disclosure by Public Officers Supervising a Relative.

It is unlawful for a public officer to appoint, directly supervise, or to make salary or performance recommendations for relatives except as prescribed in the [Nepotism Act, ]Section 52-3-1.

(1) A public officer supervising a relative shall make a complete written disclosure of the relationship to the agency head in accordance with Section 52-3-1.

 

R477-2-9. Employee Liability.

An employee who becomes aware of any occurrence which may give rise to a law suit, who receives notice of claim, or is sued because of an incident related to his employment, shall give immediate notice to his supervisor and to the Department of Administrative Services, Division of Risk Management.

(1) In most cases, under provisions of [the Governmental Immunity Act (GIA),] Sections 63-30-36, and 63-30-37, the Governmental Immunity Act (GIA), an employee shall receive defense and indemnification unless the case involves fraud, malice or the use of alcohol or drugs by the employee.

(2) If a law suit results against an employee, the GIA stipulates that the employee must request a defense from his agency head in writing within ten calendar days.

 

KEY: administrative responsibility, confidentiality of information, fair employment practices, public information

Date of Enactment or Last Substantive Amendment: July 1, 200[6]7

Notice of Continuation: June 11, 2002

Authorizing, and Implemented or Interpreted Law: 52-3-1; 63-2-204(5); 63-2-903(4); 67-19-6; 67-19-18