SUBCHAPTER 1B ‑ STATE PERSONNEL COMMISSION
SECTION .0100 ‑ GENERAL PROVISIONS
25 NCAC 01B .0101 PURPOSE
25 NCAC 01B .0102 EXTENT OF AUTHORITY
25 NCAC 01B .0103 LOCATION
History Note: Authority G.S. 126‑1; 126‑2; 126‑4; 126‑9; 126‑11;
Eff. February 1, 1976;
Repealed Eff. November 1, 1988.
25 NCAC 01B .0104 STATE PERSONNEL DIRECTOR
The State Personnel Director is responsible to the Governor and the State Personnel Commission for the administration and supervision of the State Personnel System.
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976.
25 NCAC 01B .0105 COMMISSION MEETINGS
25 NCAC 01B .0106 SERVICES TO LOCAL GOVERNMENT
History Note: Authority G.S. 126‑2; 126‑10;
Eff. February 1, 1976;
Repealed Eff. November 1, 1988.
25 ncac 01b .0107 CAREER STATE EMPLOYEE CLASSIFICATION DESIGNATION
History Note: Authority G.S. 126-1A; 126-4;
Eff. February 1, 1993;
Repealed Eff. August 1, 2004.
SECTION .0200 ‑ RULE‑MAKING
25 NCAC 01B .0201 CONTENT AND PROCEDURE
(a) Any person wishing to submit a petition requesting the adoption, amendment, or repeal of a rule of the Commission shall address a petition to:
Office of State Personnel
1331 Mail Service Center
Raleigh, North Carolina 27699-1331.
(b) The petition shall be labeled Petition for Rulemaking and contain the following information:
(1) either a draft of the proposed rule or a summary of its contents;
(2) reason for proposal;
(3) effect on existing rules or orders;
(4) data supporting proposal;
(5) fiscal note on the impact of the proposed rule on existing practices in the area involved, including cost factors and basis of analysis;
(6) names of those most likely to be affected by the proposed rule with addresses if reasonably known;
(7) name(s) and address(es) of petitioner(s).
(c) The Office of State Personnel shall examine the petition and weigh the information therein in relation to the public interest. The Office of State Personnel shall consider all the contents of the submitted petition, plus any additional information the Office of State Personnel deems relevant. The Office of State Personnel shall make a recommendation to the Commission for the denial of the petition or the institution of rule-making proceedings, as the case may be.
(d) At the next regularly scheduled Commission meeting occurring at least 60 days after the submission of the petition, the Commission shall render a final decision. If the decision is to deny the petition, the Office of State Personnel shall notify the petitioner in writing, stating the reasons therefor. If the decision is to grant the petition, the Commission, within 30 days of submission, shall initiate rule-making proceedings by issuing a notice of rulemaking proceeding, in accordance with the requirements G.S. 150B.
History Note: Authority G.S. 126-2; 126-4; 150B‑20;
Eff. February 1, 1976;
Amended Eff. February 1, 2008; March 1, 1996; June 1, 1982.
25 NCAC 01B .0202 NOTICE
History Note: Authority G.S. 150B‑12(c);
Eff. February 1, 1976;
Amended Eff. June 1, 1982;
Repealed Eff. November 1, 1988.
25 NCAC 01B .0203 ADDITIONAL INFORMATION
History Note: Authority G.S. 150B‑12;
Eff. February 1, 1976;
Amended Eff. June 1, 1982;
Repealed Eff. March 1, 1996.
25 NCAC 01B .0204 PRESENTATIONS
(a) Any person desiring to present oral data, views, or arguments on the proposed rule shall before the public hearing, file a notice with: Office of State Personnel, 1331 Mail Service Center, Raleigh, North Carolina 27699-1331.
(b) Any person permitted to make an oral presentation may submit a written copy of the presentation to the designated hearing officer at the public hearing.
History Note: Authority G.S. 126-4;
Eff. February 1, 1976;
Amended Eff. February 1, 2008; March 1, 1996; June 1, 1982.
25 NCAC 01B .0205 ORAL PRESENTATIONS
A request to make an oral presentation shall contain a brief summary of the individual's views with respect thereto, and a statement of the length of time the individual desires. Presentations may not exceed three minutes.
History Note: Authority G.S. 126-4;
Eff. February 1, 1976;
Amended Eff. March 1, 1996.
25 NCAC 01B .0206 ACKNOWLEDGMENT OF REQUESTS
25 NCAC 01B .0207 WRITTEN SUBMISSIONS
History Note: Authority G.S. 150B‑12(e);
Eff. February 1, 1976;
Amended Eff. June 1, 1982;
Repealed Eff. March 1, 1996.
25 NCAC 01B .0208 HEARING PROCEDURE
Upon the commencement of a hearing, the presiding officer shall have complete control of the proceedings, including: extensions of any time requirements, recognition of speakers, time allotments for presentations, direction of the flow of the discussion and the management of the hearing. The presiding officer, at all times, shall take care that each person participating in the hearing is given a fair opportunity to present views, data and comments.
History Note: Authority G.S. 150B‑12(d),(e);
Eff. February 1, 1976.
25 NCAC 01B .0209 HEARING RECORD
25 NCAC 01B .0210 RETENTION OF RECORD
25 NCAC 01B .0211 EMERGENCY RULES
25 NCAC 01B .0212 DECLARATORY RULINGS
History Note: Authority G.S. 150B‑12(d),(e); 150B‑13; 150B‑17;
Eff. February 1, 1976;
Repealed Eff. November 1, 1988.
25 NCAC 01B .0213 REQUESTS FOR DECLARATORY RULING
All requests for declaratory rulings shall be written and mailed to: Office of State Personnel, 1331 Mail Service Center, Raleigh, North Carolina 27699-1331.
History Note: Authority G.S. 126-2; 126-4; 150B‑4;
Eff. February 1, 1976;
Amended Eff. February 1, 2008; March 1, 1996; June 1, 1982.
25 NCAC 01B .0214 CONTENT
All requests for a declaratory ruling must include the following information:
(1) name and address of petitioner;
(2) statute or rule to which petition relates;
(3) concise statement of the manner in which petitioner is aggrieved by the rule or statute or its potential application to him;
(4) a statement of whether an oral hearing is desired, and if so the reasons for such an oral hearing.
History Note: Authority G.S. 150B‑17;
Eff. February 1, 1976.
25 NCAC 01B .0215 REFUSAL TO ISSUE RULING
Whenever the director believes for good cause that the issuance of a declaratory ruling is undesirable, he may refuse to do so. When good cause is deemed to exist, he will notify the petitioner of his decision in writing stating reasons for the denial of a declaratory ruling.
History Note: Authority G.S. 150B‑17;
Eff. February 1, 1976.
25 NCAC 01B .0216 TIME
Where a declaratory ruling is deemed appropriate, the director will issue the ruling within 60 days of receipt of the petition.
History Note: Authority G.S. 150B‑17;
Eff. February 1, 1976.
25 NCAC 01B .0217 PROCEDURE
(a) A declaratory ruling procedure may consist of written submissions, oral hearing, or such other procedure as may be appropriate in a particular case.
(b) Except in special circumstances, the commission will not, as a general rule, issue a declaratory ruling when the matter in respect of which a declaratory ruling requested is involved in a lawsuit pending in any state or federal court.
History Note: Authority G.S. 150B‑17;
Eff. February 1, 1976.
SECTION .0300 ‑ CONTESTED CASE HEARING PROCEDURE
25 NCAC 01B .0301 JURISDICTION
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. October 1, 1977;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0302 AVAILABILITY OF HEARING
25 NCAC 01B .0303 PUBLIC HEARING
History Note: Authority G.S. 126‑4; 126‑5; 126‑16; 126‑25; 126‑36; 126‑36.1; 126‑39; 150B‑2(2);
150B‑32(a); 150B‑23(e);
Eff. February 1, 1976;
Amended Eff. February 1, 1985; October 1, 1977;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0304 PRACTICE BEFORE THE COMMISSION
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. November 1, 1988.
25 NCAC 01B .0305 COMMENCEMENT OF PROCEEDINGS
25 NCAC 01B .0306 DEFICIENCY IN REQUEST
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. February 1, 1985; October 1, 1977;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0307 ASSISTANCE FROM PERSONNEL OFFICER
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0308 AGENCY NOTICE TO STATE PERSONNEL
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0309 PREHEARING MATTERS
25 NCAC 01B .0310 NOTICE
25 NCAC 01B .0311 MOTIONS TO INTERVENE
25 NCAC 01B .0312 ANSWER
History Note: Authority G.S. 150A‑23(b),(c),(d); 150A‑25(b);
Eff. February 1, 1976;
Amended Eff. August 1, 1977;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0313 PREHEARING CONFERENCE
History Note: Authority G.S. 126‑4; 150B‑33(5);
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0314 FACTS DISCLOSED PRIVILEGED
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0315 CONDUCT OF HEARINGS
25 NCAC 01B .0316 FAILURE TO APPEAR
25 NCAC 01B .0317 PROCEDURE AT HEARINGS
25 NCAC 01B .0318 ORDER OF RECEIVING EVIDENCE
25 NCAC 01B .0319 DISCUSSION OF PENDING ACTION
History Note: Authority G.S. 126‑4(9); 126‑4(12); 150B‑25(a); 150B‑32;
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0320 WITNESS FEES
History Note: Authority G.S. 126‑44;
Eff. February 1, 1976;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0321 EVIDENCE
History Note: Authority G.S. 150B‑29;
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0322 STIPULATIONS
25 NCAC 01B .0323 OFFICIAL NOTICE
History Note: Authority G.S. 150A‑30; 150A‑31;
Eff. February 1, 1976;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0324 ABSTRACTS OF DOCUMENTS
25 NCAC 01B .0325 COPIES
25 NCAC 01B .0326 OTHER DOCUMENTS
25 NCAC 01B .0327 CROSS EXAMINATION
25 NCAC 01B .0328 REBUTTAL EVIDENCE
25 NCAC 01B .0329 HEARING OFFICERS
25 NCAC 01B .0330 HEARING OFFICER BIAS
25 NCAC 01B .0331 AUTHORITY OF HEARING OFFICER
History Note: Authority G.S. 126‑4(a); 126‑4(9); 126‑4(11); 126‑37; 150B‑25(d); 150B‑32;
150B‑33;
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0332 EX PARTE COMMUNICATIONS
25 NCAC 01B .0333 DISQUALIFICATION OF HEARING OFFICER
25 NCAC 01B .0334 DISQUALIFICATION OF COMMISSION MEMBER
25 NCAC 01B .0335 ASSIGNMENT OF NEW HEARING OFFICER
History Note: Authority G.S. 150A‑32(b),(c); 150A‑35;
Eff. February 1, 1976;
Amended Eff. October 1, 1977;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0336 PROPOSED FINDINGS OF FACT: CONCLUSIONS OF LAW: BRIEF
25 NCAC 01B .0337 PROPOSAL FOR DECISION OF HEARING OFFICER
25 NCAC 01B .0338 SERVICE OF PROPOSAL
25 NCAC 01B .0339 PREPARATION OF PROPOSAL
History Note: Authority G.S. 126‑4(9); 150B‑34; 150B‑34(b);
Eff. February 1, 1976;
Amended Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0340 DEPOSITIONS
History Note: Authority G.S. 126‑4; 150A‑28;
Eff. December 1, 1978;
Repealed Eff. February 1, 1985.
25 NCAC 01B .0341 GENERAL PRINCIPLES GOVERNING DISCOVERY
History Note: Legislative Objection Lodged Eff. April 5, 1983; Authority G.S. 126‑4; 150B‑28;
Eff. December 1, 1978;
Amended Eff. April 1, 1983;
Curative Amended Eff. May 12, 1983;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0342 INTERROGATORIES TO PARTIES
25 NCAC 01B .0343 PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION
25 NCAC 01B .0344 FAILURE TO MAKE DISCOVERY: SANCTIONS
History Note: Authority G.S. 126‑4; 150A‑28;
Eff. December 1, 1978;
Repealed Eff. April 1, 1983.
25 NCAC 01B .0345 REQUEST FOR CONTINUANCE
History Note: Authority G.S. 126‑4(9);
Eff. August 1, 1980;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0346 REQUIREMENT OF FACTUAL DISPUTE
25 NCAC 01B .0347 NOTIFICATION OF WITNESSES
25 NCAC 01B .0348 AVAILABILITY OF STATE EMPLOYEES TO TESTIFY
25 NCAC 01B .0349 HEARING OFFICER'S AUTHORITY TO RECOMMEND DISMISSAL
History Note: Authority G.S. 126‑4(9); 126‑37;
Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
25 NCAC 01B .0350 TIME FRAME FOR RAISING ALLEGATION OF DISCRIMINATION
Allegations of discrimination based on NCGS 126‑16, 36, 36.1 must be raised within 30 days, either in a direct appeal to the State Personnel Commission or within the departmental grievance procedure, of the date of the action that is alleged to be discriminatory. Failure to raise such an allegation within 30 days shall be cause to have such allegation dismissed.
History Note: Authority G.S. 126‑38;
Eff. February 1, 1985.
25 NCAC 01B .0351 COMPUTATION OF TIME
25 NCAC 01B .0352 FILING OF PAPERS WITH STATE PERSONNEL
25 NCAC 01B .0353 RESOLUTION OF GRIEVANCES WITHOUT HEARING
History Note: Authority G.S. 126‑4(9); 150B‑2(2);
Eff. February 1, 1985;
Repealed Eff. July 1, 1988.
SECTION .0400 ‑ APPEAL TO COMMISSION
25 NCAC 01B .0401 APPEAL
25 NCAC 01B .0402 WHEN APPEAL ALLOWED
History Note: Authority G.S. 126‑4(9); 150A‑34(a); 150B, Article 3;
Eff. February 1, 1976;
Amended Eff. July 1, 1989; August 1, 1980;
Repealed Eff. September 1, 1991.
25 NCAC 01B .0403 DECISION BY COMMISSION
25 NCAC 01B .0404 COMMISSION NOTIFICATION
25 NCAC 01B .0405 QUORUM
25 NCAC 01B .0406 BINDING DECISIONS
25 NCAC 01B .0407 OFFICIAL RECORD
25 NCAC 01B .0408 COST OF TRANSCRIPTS
25 NCAC 01B .0409 GIVING NOTICE OR FILING PAPERS WITH THE COMMISSION BY MAIL
25 NCAC 01B .0410 SERVICE OF PROCESS AND NOTICE
25 NCAC 01B .0411 COMPUTATION OF TIME
History Note: Authority G.S. 126‑2(f); 126‑4(9); 126‑37; 150A‑23(c); 150A‑37;
Eff. February 1, 1976;
Repealed Eff. November 1, 1988.
25 NCAC 01B .0412 ATTORNEY FEES
History Note: Authority G.S. 126‑4(11);
Eff. February 1, 1976;
Amended Eff. November 1, 1977;
Repealed Eff. September 1, 1987.
25 NCAC 01B .0413 EXERCISE OF COMMISSION DISCRETION
The State Personnel Commission will weigh all relevant factors and circumstances in employee contested cases, including factors of mitigation and justification, in making a decision in a contested case of whether disciplinary action was imposed for just cause.
History Note: Authority G.S. 126‑4(9); 126‑37;
Eff. August 1, 1980;
Amended Eff. May 1, 1989.
25 nCAC 01b 0414 SITUATIONS IN WHICH ATTORNEY'S FEES MAY BE AWARDED
Attorney's fees may be awarded by the State Personnel Commission only in the following situations:
(1) the grievant is reinstated in accordance with Rule .0428 of this Section;
(2) the grievant is awarded back pay from either a demotion or a dismissal, without regard to whether the grievant has been reinstated;
(3) the grievant is determined, by the Commission or by the agency's internal grievance procedure, to have been discriminated against or harassed in violation of G.S. 126-16 or G.S. 126-36;
(4) the grievant is awarded back pay as the result of a successful grievance alleging a violation of G.S. 126-7.1;
(5) the grievant is the prevailing party in a final appeal of a Commission decision;
(6) any combination of the situations listed in this Rule.
Attorney's fees may be awarded when any of the above situations occur, either within the agency internal grievance procedure, in an appeal to the State Personnel Commission, or in an appeal of a State Personnel Commission decision.
History Note: Authority G.S. 126-4(11); 126-7.1;
Eff. September 1, 1987;
Amended Eff. March 1, 1996; July 1, 1989;
Temporary Amendment Eff. February 18, 1999;
Amended Eff. August 1, 2000.
25 NCAC 01B .0415 ATTORNEY'S FEES MAY BE AWARDED AS A RESULT OF A SETTLEMENT
Attorney's fees may be awarded as the result of a settlement in the grievance procedure, either in the agency internal procedure or at the Personnel Commission level, providing such fees are explicitly incorporated as a part of a written settlement agreement signed by both parties. Attorney's fees shall not be awarded as the result of a settlement unless such fees are a specific part of the written settlement agreement.
History Note: Authority G.S. 126‑4(11);
Eff. September 1, 1987.
25 NCAC 01B .0416 PROVISIONS ON AWARDING ATTORNEY'S FEES
25 NCAC 01B .0417 LIMITATION ON REPRESENTATION
25 NCAC 01B .0418 COSTS AND TRAVEL TIME
25 NCAC 01B .0419 DUAL FEE RATES PERMITTED
25 NCAC 01B .0420 APPEAL/COMMISSION SOLELY/DETERMINE ATTORNEY'S FEE AWARD
History Note: Authority G.S. 126‑4(11);
ARRC Objection July 16, 1987;
Eff. December 1, 1987;
Repealed Eff. March 1, 1989 in accordance with G.S. 150B‑59(c).
25 NCAC 01B .0421 BACK PAY
(a) The Personnel Commission has the authority to award full or partial back pay in all cases in which back pay is a requested or possible remedy.
(b) The Personnel Commission may award full or partial back pay regardless of whether reinstatement is ordered.
(c) Gross back pay shall always be reduced by any interim earnings, except that interim earnings from employment which was approved secondary employment prior to dismissal shall not be set off against gross back pay. Any unemployment insurance paid to the employee shall also be deducted from the gross back pay amount due.
(d) All applicable state and federal withholding taxes, including social security taxes shall be paid from the reduced gross back pay due; reduced gross back pay being gross back pay due minus interim earnings or unemployment insurance received.
(e) The employee's regular retirement contribution shall be paid on the total, unreduced amount of gross back pay due.
(f) Back pay shall include payment for all holidays which the grievant would have been paid for except for the interruption in employment status. Holiday premium pay shall never be a part of any back pay award.
(g) Shift premium pay shall be a part of a back pay award, if the grievant would have been entitled to such pay in the absence of the interruption in employment. This benefit shall not be applicable in cases involving a failure to hire or a failure to promote.
(h) Employees shall not be entitled to any discretionary pay which may or may not have been awarded to them in the absence of the interruption in employment (for example, merit increments).
(i) Back pay shall include any across the board compensation which would have been included in the grievant's regular salary except for the interruption in employment. This includes one‑time "bonuses", across the board legislative increments or across the board legislative pay increases.
(j) If the grievant's longevity eligibility date occurred during the period of interrupted employment, back pay shall include the difference between the pro‑rated longevity payment made at dismissal and the amount of longevity pay that would have been payable had employment not been interrupted. If the grievant is reinstated prior to his longevity date, no adjustment for longevity pay shall be made in the back pay award. The pro‑rated longevity payment made at the time of dismissal shall be deducted from the full amount otherwise payable on the next longevity eligibility date.
(k) Back pay must be applied for on Office of State Personnel form PD 14. Copies of this form are available from the Office of State Personnel, Employee Relations Division.
(l) One component of the decision to award back pay shall be evidence, if any, of the grievant's efforts to obtain available, suitable employment following separation from state government.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0422 FRONT PAY
Front pay is the payment of an amount to an employee above his/her regular salary, such excess amount representing the difference between the employee's salary in his/her current position and a higher salary determined to be appropriate due to a finding of discrimination. Front pay may also result from an order of reinstatement to a position of a particular level, which the agency is unable to accommodate immediately. Front pay shall be paid for such period as the agency is unable to hire, promote or reinstate the employee to a position at the level ordered by the Personnel Commission. Front pay shall terminate upon acceptance or rejection of a position consistent with the order of the commission. Front pay shall be available as a remedy in cases involving hiring, promotion, demotion or dismissal. Front pay shall be payable under the same conditions as back pay except that the only deductions from front pay shall be for usual and regular deductions for state and federal withholding taxes and the employee's retirement contribution. There may also be a deduction for other employment earnings, whether paid by the state or another employer, so as to avoid unjust enrichment of the grievant. Shift premium pay and holiday premium pay shall not be available on front pay. Submission of a form PD 14 is not required for front pay.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0423 LEAVE
(a) An employee shall be credited on reinstatement with all vacation leave which would have been earned except for the interruption in employment.
(b) An employee shall be credited on reinstatement with all sick leave which would have been earned except for the interruption in employment.
(c) The decision as to whether or not to allow the reinstated employee to purchase back the vacation leave paid out in a lump sum at dismissal is within the discretion of the agency. A failure to allow such repurchase is not grievable.
(d) Employees reinstated from dismissal shall have their former balance of sick leave at dismissal reinstated, in addition to the credit for sick leave which would have been earned except for the dismissal.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0424 HEALTH INSURANCE
Employees reinstated from dismissal shall be entitled to either retroactive coverage under the state health insurance plan or to reimbursement up to the amount the state contributes for employee only coverage. The employee shall have the right to elect between these two choices, provided that if the employee elects reimbursement the employee may do so only if the employee had secured alternate health insurance coverage during the period of interruption of employment. The employee shall not be reimbursed for the cost of coverage of dependents or spouse during the period between dismissal and reinstatement. It is the responsibility of the employee to provide proof of insurance expenses incurred during the period of unemployment.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0425 INTEREST
The state shall not be required to pay interest on any back pay award.
History Note: Authority G.S. 126‑4(9); 126‑37;
ARRC Objection July 16, 1987;
Eff. December 1, 1987;
ARRC Objection Removed Eff. February 16, 1989.
25 NCAC 01B .0426 CERTAIN REMEDIES NOT AVAILABLE
Punitive, exemplary and other such damages are not available as remedies in appeals before the State Personnel Commission.
History Note: Authority G.S. 126‑4(9); 126‑37;
ARRC Objection July 16, 1987;
Eff. December 1, 1987;
ARRC Objection Removed Eff. February 16, 1989.
25 NCAC 01B .0427 VOLUNTARY PROGRAMS OR BENEFITS
Voluntary programs or benefits (such as the 401K program, voluntary health and life insurance programs or deferred compensation) are the choice of the employee and are the employee's responsibility. Such voluntary programs or benefits are not addressed by any awards under these regulations and Chapter 126, but may be governed by contractual provisions with non‑state agencies. Retroactive contributions or membership in any such program shall not be part of any remedy awarded by an agency or the State Personnel Commission. To the extent that retroactive coverage or membership is available, the grievant is responsible for any action seeking to obtain such benefits.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0428 REINSTATEMENT
As used in these rules, reinstatement means the return to employment of a dismissed employee, in the same or similar position, at the same pay grade and step which the employee enjoyed prior to dismissal. Reinstatement may also refer to the promotion of a demoted employee to the same pay grade and step as the employee was demoted from.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0429 RECOMMENDATION OF DISCIPLINARY ACTION
The State Personnel Commission shall have the authority to recommend to the respondent agency that disciplinary action be imposed as a result of any employee's failure to observe state policy and procedures in effecting disciplinary actions and dismissals.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0430 REMOVAL OF MATERIAL FROM PERSONNEL FILE
The State Personnel Commission shall have the authority to order the removal of any material in a personnel file which it finds to be inaccurate or misleading.
History Note: Authority G.S. 126‑4(9);
Eff. September 1, 1987.
25 NCAC 01B .0431 CAUSES FOR REINSTATEMENT
The State Personnel Commission shall order reinstatement from dismissal or demotion only upon a finding of lack of substantive just cause (25 NCAC 1J .0604) or discrimination prohibited by N.C.Gen. Stat. 126-16 or 126-36. For the purpose of this Rule, and in addition to those matters listed in 25 NCAC 1J .0604, failure to issue the required number and kind of warnings or other disciplinary actions prior to dismissal for unsatisfactory job performance shall also be considered to constitute a lack of substantive just cause.
History Note: Authority G.S. 126‑4(9); 126‑35; 126‑37;
Eff. September 1, 1987;
Amended Eff. March 1, 1996.
25 NCAC 01B .0432 REMEDIES FOR PROCEDURAL VIOLATIONS
(a) Failure to give written notice of applicable appeal rights in connection with a dismissal, demotion or suspension without pay shall be deemed a procedural violation. The sole remedy for this violation shall be an extension of the time in which to file an appeal. The extension shall be from the date of the procedural violation to no more than 30 calendar days from the date the employee is given written notice of applicable appeal rights.
(b) Failure to give specific reasons for dismissal, demotion or suspension without pay shall be deemed a procedural violation. The Personnel Commission, in its discretion, may award back pay, attorney's fees, or both for such a violation. Back pay or attorney's fees, or both, may be awarded for such a period of time as the Commission determines, in its discretion, to be appropriate under all the circumstances.
(c) Failure to conduct a pre‑dismissal conference shall be deemed a procedural violation. Further, the remedy for this violation shall require that the employee be granted back pay from the date of the dismissal until a date determined appropriate by the commission in light of the purpose of pre‑dismissal conferences. Reinstatement shall not be a remedy for lack of a pre‑dismissal conference.
History Note: Authority G.S. 126‑4(9); 126‑35; 126‑37; 126‑38;
Eff. September 1, 1987;
Amended Eff. November 1, 1991.
25 NCAC 01B .0433 SUSPENSION WITHOUT PAY
The State Personnel Commission shall order back pay in those cases in which it is determined that a suspension without pay lacked substantive just cause or was an act of discrimination prohibited by N.C. 126‑16.
History Note: Authority G.S. 126‑4(6); 126‑16; 126‑35;
Eff. September 1, 1987.
25 NCAC 01b .0434 DISCRIMINATION
In those cases in which the State Personnel Commission finds an act of discrimination or unlawful workplace harassment prohibited by G.S. 126-16, G.S. 126-36 or G.S. 126-36.1, the Commission may order reinstatement, back pay, transfer, promotion or other appropriate remedy. The Commission shall also have the authority in such cases to order other corrective remedies to ensure that the same or similar discriminatory acts do not recur.
History Note: Authority G.S. 126-4(9); 126-16; 126-36; 126-36.1;
Eff. September 1, 1987;
Temporary Amendment Eff. February 18, 1999;
Amended Eff. August 1, 2000.
25 NCAC 01B .0435 REMEDIES: SALARY ADJUSTMENTS
(a) No department, agency or institution may use within‑grade salary adjustments as a method of resolving any grievance, contested case or lawsuit without advance notice to the Office of State Personnel and the specific, written approval of the State Personnel Director and the State Personnel Commission. The only exception shall be such an adjustment in the context of a front pay award ordered by the State Personnel Commission pursuant to 25 NCAC 1B .0422.
(b) Any within‑grade salary adjustment proposed to be approved by the State Personnel Director and the State Personnel Commission must be in compliance with existing salary administration policies (see 25 NCAC 1D .0100 et seq) or shall have prior approval as an exception to or waiver from such policies in accordance with 25 NCAC 1A .0004.
History Note: Authority G.S. 126‑4(2);
Eff. January 1, 1990.
25 NCAC 01B .0436 SETTLEMENTS/CONSENT AGREEMENTS IN GRIEVANCES, CONTESTED CASES
(a) Any settlement or consent agreement in a grievance or contested case which requires the processing of personnel action forms by the Office of State Personnel must be approved by the Office of State Personnel before such personnel action forms will be processed. Approval by the Office of State Personnel shall be indicated by the signature of the State Personnel Director or his designee in an appropriate place on the settlement or consent agreement. This provision shall not be construed to require Office of State Personnel approval of a settlement in which the only portion requiring approval is the awarding of attorney's fees to the employee's attorney by the State Personnel Commission. This provision shall also not be construed to require approval of any settlement the terms of which allow an employee to substitute a resignation for a dismissal and to withdraw a grievance or a contested case action.
(b) The provisions of 25 NCAC 1A .0004 (EXCEPTIONS AND VARIANCES) must be complied with when any provision of a settlement or consent agreement in a grievance or contested case requires an exception to or variance from existing personnel policy. This compliance shall be in addition to the requirements of this Rule. Any settlement or consent agreement which contains a provision which requires an exception to or variance from existing personnel policy must be reviewed and approved by the State Personnel Commission prior to the processing of any personnel action forms by the Office of State Personnel.
(c) Personnel action forms, required by the provisions of any settlement or consent agreement which has not been approved by the Office of State Personnel or the State Personnel Commission as required by this Rule, shall not be processed by the Office of State Personnel and shall be returned to the agency without action.
(d) Any settlement or consent agreement which does not require action by the Office of State Personnel or the State Personnel Commission does not require the approval of either body to be effective.
History Note: Authority G.S. 126‑4;
Eff. January 1, 1990;
Amended Eff. March 1, 1991.
25 NCAC 01B .0437 STATE PERSONNEL COMMISSION: PROCEDURES
(a) The State Personnel Commission Administrator, on behalf of the State Personnel Commission, shall receive the record in the contested cases forwarded by the Office of Administrative Hearings and the State Personnel Commission shall make a final administrative decision in the case. Any record received by the Administrator on the day of a Commission meeting shall be deemed to have been received after the Commission meeting and the time in which the Commission has to review and decide the case shall run from the Commission meeting. The Office of State Personnel shall be responsible for the administrative management of contested cases coming before the Commission for its review and decision.
(b) Oral Argument. Either party to a contested case may request the opportunity to appear before the State Personnel Commission and make oral argument in all cases. Such arguments shall be based solely on the information contained in the record submitted by the OAH. Oral arguments shall be requested or waived in writing no more than 10 calendar days after the filing date of the decision of the Administrative Law Judge and the parties shall attach a copy of the Administrative Law Judge's decision to the request or waiver. After the Commission has received either a request or waiver of oral argument from the parties, the Commission shall send a notice of review which shall contain the date, time and place of the Commission meeting at which the case may be reviewed. If a party has failed to request or waive oral argument in a timely fashion, that party may not be allowed to present oral argument or file legal briefs or memoranda to the Commission. Each party requesting oral argument shall be allotted a maximum of 10 minutes for the presentation, unless the time period is extended by a vote of the Commission. Time may be extended by the Commission for good cause shown as defined in 25 NCAC 01B .0439. All requests to speak for more than 10 minutes shall be made in writing in the same document which requests the opportunity to make oral argument. The party which did not prevail before the Administrative Law Judge is entitled to make the first oral argument and to present a rebuttal. If both parties are seeking changes in the Administrative Law Judge's decision, both parties may present a rebuttal and the party with the burden of proof in the contested case is entitled to the last rebuttal.
(c) Briefs, Legal Memoranda, Attorney's Fees Requests. All briefs and legal memoranda in cases other than those arising under G.S. 14.4 shall be received by the Office of State Personnel no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge. Such document shall also be served upon the opposing party and a copy of the decision of the Administrative Law Judge shall be attached to the document. Such a document received after the deadline shall be presented to the Commission only after the party has shown that the opposing party was served with the document no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge. Attorney's fees requests must be presented to the Commission by the prevailing party to a Commission Decision and Order at least one month before the meeting at which the matter is to be considered. Such requests must also be served upon the opposing party. The Commission shall notify the parties upon receipt of a request for attorneys fees and provide an opportunity for the opposing party to file objections to the fees requested. If the parties wish to make oral argument on an attorney's fees request, a request for oral argument must be received by the Office of State Personnel within two weeks after the filing of the attorney's fees request and at least one month prior to the meeting at which such oral argument is requested. Parties shall submit 25 copies of each pleading (with three holes in the left margin) filed with the Commission. An extension of time to file documents with the Commission may be granted by the Administrator for good cause shown as defined in 25 NCAC 1B .0439.
(d) Written Exceptions. Proposed Alternative Findings, Conclusions and Recommendations. Each party shall submit written exceptions to the decision of the Administrative Law Judge, unless the party accepts the decision in its entirety. Any party may choose to submit proposed alternative findings of fact and conclusion of law. Exceptions and alternative findings of fact and conclusions shall be received by the Office of State Personnel no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge. Written exceptions shall be specifically drawn. Each exception and proposed alternative finding or conclusion shall specifically, separately, and in detail, set forth how the finding or conclusion is clearly contrary to the preponderance of the admissible evidence, the specific reason(s) the Commission should not adopt the Administrative Law Judge's finding of fact or conclusion of law and the specific evidence in the record which supports the rejection of the Administrative Law Judge's finding of fact or conclusion of law, including but not limited to references to the testimony of witnesses, any evidentiary exhibits, and any exercise of discretion by the agency to which deference should be accorded. Any new findings of fact proposed to the Commission must be supported by a preponderance of the evidence which shall be set forth in support of the new finding of fact. Any new decision proposed to the Commission must be supported by a preponderance of the admissible evidence in the record and the reason that the Administrative Law Judge's decision is clearly contrary to the preponderance of the admissible evidence in the record must be set forth in detail. If the Administrative Law Judge has recommended granting summary judgment or judgment on the pleadings and a party proposes that the Commission reject the Administrative Law Judge's decision, the party shall set forth the basis for rejecting the Administrative Law Judge's decision in detail. Reference must be made to the transcript (and volumes, where applicable), if the transcript of the hearing was made and is available. Where a party excepts to a finding, conclusion, or recommendation and requests its deletion or amendment, an alternative finding, conclusion, or recommendation shall be made. Such a document received after the deadline shall be presented to the Commission only after the party has shown that the opposing party was served with the document no later than 30 calendar days after the filing date of the Administrative Law Judge's decision. The Commission may adopt the findings of fact and conclusions of law of the Administrative Law Judge, or amend the same, or adopt alternative findings of fact and conclusion of law, either from those submitted by the parties or drawn from its own review of the whole record. Parties shall submit 25 copies of each pleading (with three holes in the left margin) filed with the Commission. An extension of time to file documents with the Commission may be granted by the Administrator for good cause shown as defined in 25 NCAC 01B .0439.
(e) Proposed Decision and Order. Each party to a contested case shall submit a proposed Decision and Order for consideration by the Commission in that case. The proposed Decision and Order shall be received by the Office of State Personnel no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge. The Commission may delay decision in a case until all parties have submitted a proposed Decision and Order. The Proposed Decision and Order shall indicate which findings, conclusions, and recommendations of the Administrative Law Judge are being deleted or amended and why, and specifically, separately, and in detail, set forth how the finding or conclusion is clearly contrary to the preponderance of the admissible evidence. The Proposed Decision and Order must include the specific reason(s) the Commission should not adopt the Administrative Law Judge's finding of fact or conclusion of law and the specific evidence in the record which supports the rejection of the Administrative Law Judge's finding of fact or conclusion of law, including but not limited to references to the testimony of witnesses, any evidentiary exhibits, and any exercise of discretion by the agency to which deference should be accorded. Any new findings of fact proposed to the Commission must be supported by a preponderance of the evidence which shall be set forth in support of the new finding of fact in the Proposed Decision and Order. Any new conclusions of law or decision proposed to the Commission must be supported by a preponderance of the admissible evidence in the record and the reason that the Administrative Law Judge's decision is clearly contrary to the preponderance of the admissible evidence in the record must be set forth in detail in the Proposed Decision and Order. If the Administrative Law Judge has recommended granting summary judgment or judgment on the pleadings and a party proposes that the Commission reject the Administrative Law Judge's decision, the party shall set forth the basis for rejecting the Administrative Law Judge's decision in detail in the Proposed Decision and Order. The proposed Decision and Order shall contain an order in the case for the signature of the Administrator to the Commission, consistent with and supported by the findings and conclusions. Parties shall submit 25 copies of each pleading (with three holes in the left margin) filed with the Commission. An extension of time to file documents with the Commission may be granted by the Administrator for good cause shown as defined in 25 NCAC 01B .0439.
(f) Service on Opposing Parties. Copies of all documents permitted or required by this Rule shall be served on the opposing party, but no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge. If a document is filed electronically with the Commission as permitted in 25 NCAC 01B .0437(h), the document must also be served electronically on the opposing party if the opposing party has an electronic address. Electronic service must be followed by service of printed copies of any document filed electronically within 24 hours of electronic filing.
(g) Notification. The parties or when applicable, the legal representative of record for a party, shall be notified by certified mail, return receipt requested, of the Commission's decision. The Commission's decision shall be prepared and sent out by the Office of State Personnel. Copies or the content of a specific decision and order shall not be released to non-parties until the Office of State Personnel has knowledge that all parties have received a copy of the Decision and Order.
(h) Electronic Filing. Any documents which are required or permitted to be filed under 25 NCAC 01B .0437, may be filed electronically by midnight of the filing date with the State Personnel Commission Administrator in a format readable by the Administrator. Printed copies of any documents filed electronically must also be filed with the Administrator in accordance with 25 NCAC 01B .0437(c), (d) and (e) within 24 hours of the electronic filing.
History Note: Authority G.S. 126-4.
Eff. September 1, 1991;
Amended Eff. August 1, 2000; March 1, 1996;
Temporary Amendment Eff. January 1, 2001;
Amended Eff. July 18, 2002.
25 ncac 01b .0438 ESTABLISHMENT OF REASONABLE ATTORNEY FEES BY THE COMMISSION
The Commission shall award the reimbursement of legal fees and costs as follows:
(1) Attorney fees incurred in connection with the contested case proceeding before the Commission and with any successful appeal of a Commission decision in the General Courts of Justice at a reasonable hourly rate based on the prevailing market rate but at a rate no higher than the fee agreement between the parties;
(2) Law Clerk, Paralegal, or Legal Assistant fees at a reasonable hourly rate based on the prevailing market rate but at a rate no higher than the fee agreement between the parties;
(3) Travel time at a maximum rate of one-half the applicable hourly attorney or legal support staff fee rate;
(4) Costs at the actual cost.
Fees shall not be awarded unless requested by an attorney or the Petitioner and documented by an itemized, per activity, accounting of the hours expended, in addition to a copy of the fee agreement between the parties and any relevant receipts or other documentation of prior payment.
History Note: Authority G.S. 126-4(11);
Eff. March 1, 1996;
Temporary Amendment Eff. May 11, 2001;
Amended Eff. August 1, 2002.
25 NCAC 01B .0439 CONTINUANCES
(a) The State Personnel Commission hereby delegates to the Administrator to the Commission the authority to rule upon the availability of a continuance in any case on the Commission docket which does not require an extension of jurisdiction pursuant to G.S. 150B-44. The Administrator shall grant a request for continuance where the request is made at least five days prior to the Commission meeting at which the case is docketed and where good cause exists for the continuance request. Good cause shall include a court order requiring a continuance; a documented conflict in a superior forum; death or incapacitating illness of a party, representative, or attorney of a party; lack of notice of the Commission meeting; a required substitution of an attorney of a party; mutual consent of the parties where settlement negotiations or other relevant matters necessitate a continuance. Requests for continuance shall be made in writing and directed as follows:
Administrator, State Personnel Commission
Office of State Personnel
1331 Mail Service Center
Raleigh, North Carolina 27699-1331.
(b) Continuance requests for good cause received within five days of the applicable Commission meeting or in cases where a G.S. 150B-44 jurisdictional extension is required, shall be ruled upon by the Commission. Continuance requests received after the deadline for the submission of objections, exceptions, briefs, memoranda, or other pleadings does not extend the time period for the submission of these documents.
History Note: Authority G.S. 126-4(11);
Eff. March 1, 1996;
Amended Eff. February 1, 2008.