[49 Pa.B. 1297]
[Saturday, March 16, 2019]
[Continued from previous Web Page]
CHAPTER 605. SEPARATION OF EMPLOYEES
FROM CLASSIFIED SERVICESubchap.
A. FURLOUGH B. REMOVAL AND SUSPENSION C. RESIGNATION D. LEAVE OF ABSENCE E. SENIORITY
Subchapter A. FURLOUGH Sec.
605.1. General provisions. § 605.1. General provisions.
(a) Reasons. Furloughs shall occur only because of lack of funds or work.
(b) Preference in retention. An appointing authority will not furlough a regular employee while a probationary, provisional, temporary or emergency employee is employed in the same job, in the same furlough unit designated by the appointing authority. An appointing authority will not furlough a probationary employee while a provisional, temporary or emergency employee is employed in the same job and furlough unit.
(c) Furlough units. Furloughs will be conducted within approved furlough units. For purposes of this section, a furlough unit shall be defined as all employees in the job within an affected institution, division, bureau or a combination of the institutions, divisions or bureaus within an agency. Each appointing authority will submit recommended furlough units to the Office of Administration. Once approved by the Office of Administration, the furlough units will be used for subsequent furloughs. Changes to approved furlough units shall be submitted to and approved by the Office of Administration prior to use in subsequent furloughs.
(d) Order of furlough. When a furlough is necessary, the last annual or probationary performance evaluations, as applicable, of regular employees in the same furlough unit and job shall be converted to categories or relative ranks. The employees will be placed into quarters, and those in the lowest quarter will be furloughed or returned under subsection (e), in the inverse order of classified service seniority. Seniority for this purpose shall be the length of continuous service in the classified service if there has been no break in service.
(e) Right of return before furlough. Upon notification of, and until the effective date of furlough, a regular employee to be furloughed shall have a right of return to vacant positions in the appointing authority in any job and status previously held, or to a job and status in the same or lower levels, if the employee meets the minimum qualifications. A probationary employee will be restored to the eligible list from which appointed or to the job previously held if the probationary status resulted from promotion.
(f) Mandatory reemployment. A furloughed employee who is unable to exercise their right of return will be given a mandatory 1-year preference for reemployment in the same job and appointing authority from which furloughed. The preference does not apply to vacancies to which an employee on leave of absence have priority of return, or to a filled position which has been reclassified to a higher-level job after the effective date of furlough.
(g) Optional reemployment. A furloughed employee who is unable to exercise their right of return also will be placed, for 1 year, on optional reemployment lists for the job from which furloughed and for equal and lower-level jobs for which qualified, for certification to all appointing authorities.
(h) Reemployment certification. Requirements for certification shall be as follows:
(1) A certification from a mandatory reemployment list shall preclude issuance of a certification otherwise applicable to available vacancies except for a certification from a preferred reemployment list which shall take precedence over all other eligible lists. Certification from optional reemployment lists shall be considered equally with all other employment or promotion certifications issued for available vacancies.
(2) A furloughed employee shall be certified from mandatory reemployment lists according to their stated availabilities. The appointing authority will give reemployment preference to those on mandatory reemployment lists with higher overall performance evaluations. In cases of identical performance evaluations, furloughees with greater continuous classified service seniority will have reemployment preference.
(3) A furloughed employee shall be certified from optional reemployment lists according to their stated availabilities. The appointing authority may select any furloughed employee from the optional reemployment list.
(i) Refusal of mandatory reemployment. A furloughed employee who refuses reemployment in the same job, location and appointing authority from which furloughed shall forfeit all reemployment preferences and shall be considered as having voluntarily resigned as of the furlough effective date.
(j) Refusal of optional reemployment. A furloughed employee who refuses appointment from an optional reemployment list shall forfeit appointment eligibility for that job and lower-level jobs but shall retain mandatory preference and other optional preferences for reemployment. If preferences subsequently are not, or cannot be, exercised, the furloughees shall be considered as having voluntarily resigned as of the furlough effective date.
(k) Separate reemployment lists. Separate reemployment lists will be established for State and non-State agencies.
(l) Furlough under collective bargaining agreement. If there is a labor agreement covering the employees to be furloughed, the terms of the agreement as to furlough and reemployment procedures shall be controlling.
Subchapter B. REMOVAL AND SUSPENSION Sec.
605.2. Generally. § 605.2. Generally.
(a) Just cause for removal and good cause for suspension must be based on at least one merit-related reason.
(b) An appointing authority may, for the purpose of ascertaining an employee's fitness for continued employment, suspend an employee pending the outcome of an internal or external investigation.
(1) When an investigation has not revealed cause for disciplinary action, the suspension shall be retracted and expunged from all records, and the employee shall receive back pay for the full period of suspension.
(2) When an investigation has revealed cause for disciplinary action, the suspension shall be converted, either in whole or in part, to a disciplinary action.
(c) A suspension, including during a pending internal investigation, may not exceed 60 working days in 1 calendar year.
(d) A suspension pending investigation by external agencies may be maintained up to 30 working days after conclusion of the external investigation.
(e) A suspension under 71 Pa.C.S. § 2705(f) (relating to political activity) may not exceed 120 working days.
Subchapter C. RESIGNATION Sec.
605.3. General. 605.4. Notice of acceptance or rejection. 605.5. Reemployment after resignation. 605.6. Resignation following leave of absence. § 605.3. General.
(a) A resignation shall consist of a voluntary termination of employment evidenced by an affirmative statement, either written or verbal, of the employee's intent to resign.
(b) Written notices of resignation should include:
(1) The employee's signature.
(2) The date of signature and the date the resignation is to take effect.
(3) An affirmative statement of the employee's intent to resign.
§ 605.4. Notice of acceptance or rejection.
(a) Unless the employee is being investigated or removal action is pending, an appointing authority may not reject a resignation which gives at least 2 weeks' notice.
(b) The acceptance of a resignation may not bar an appointing authority from giving notice of removal thereafter for causes which occur or become known during the period between the acceptance and the effective date of the resignation.
(c) A written resignation specifying no effective date shall take effect immediately.
(d) The appointing authority's acceptance of resignation shall be evidenced by written notice to the resigning employee within 15 calendar days after the appointing authority's receipt of the notice of resignation.
(e) A resignation may not be withdrawn without the written consent of the appointing authority once it has been accepted, in writing, by the appointing authority.
(f) A resignation that has not been accepted by the appointing authority may be withdrawn by the employee at any time prior to acceptance or the effective date.
§ 605.5. Reemployment after resignation.
(a) Initiation of action. An appointing authority may reinstate a former regular status employee who resigned or otherwise voluntarily separated from civil service employment to a position in the same or similar job from which the employee resigned. The appointing authority shall submit a current application of the former employee to the Office of Administration and verify that the former employee is in all respects qualified and able to serve in the job involved.
(b) Approval. The Office of Administration will approve the request if:
(1) The former employee is qualified for the position sought.
(2) The rights of persons on reemployment or preferred lists would not be violated by the reinstatement.
(c) Probationary period after reinstatement. The appointing authority may waive the probationary period if the former employee returns within 2 years after resignation. If more than 2 years have expired, the reinstated employee shall serve the probationary period prescribed for the job to which returned.
§ 605.6. Resignation following leave of absence.
A voluntary resignation submitted during or at the termination of a leave of absence shall be effective on the date thereof.
Subchapter D. LEAVE OF ABSENCE Sec.
605.7. General. 605.8. Extension or renewal of leave. 605.9. Returning employees. § 605.7. General.
(a) A leave of absence may be granted at the discretion of the appointing authority and shall be granted for a definite period, up to a 2-year increment of time.
(b) A leave of absence for more than 2 years shall be deemed the equivalent of a resignation as of the date of termination of the leave, unless the leave has been extended or renewed as provided in this subchapter.
(c) This section does not apply to military leave of absence, or to a leave of absence granted to a classified service employee to occupy a position in the Senior Management Service.
§ 605.8. Extension or renewal of leave.
(a) For illness or disability. Leave of absence may be extended beyond the initial period granted by the appointing authority, if the circumstances indicate that illness or disability will render the employee temporarily incapable of efficiently performing the duties of the position at the scheduled termination of the leave.
(b) For military service. Leave of absence granted for military purposes shall extend for the period of service.
(c) For employment in the unclassified service. Leave of absence granted to an employee for a position in the unclassified service may be renewed for additional periods not exceeding 2 years in each instance, up to a maximum of 12 years after the date the leave commenced.
(d) For employment in a position in the Senior Management Service. Leave of absence granted to an employee to take a position in the Senior Management Service shall extend without necessity for renewal, until the employee leaves the Senior Management Service.
§ 605.9. Returning employees.
(a) An employee's right of return is not restricted to a vacancy at the geographic location from which leave was granted.
(b) An employee may return to a vacancy whenever available for reemployment during the period of approved leave, if the employee has given written notice to the appointing authority of the employee's availability.
(c) Upon expiration of a leave of absence or after an employee requests return from leave of absence, an employee's refusal of reemployment in the job and at the location from which leave was granted shall result in the employee's removal from the preferred reemployment list.
(d) An employee may return to an appointing authority other than the one from which leave was granted at the discretion of the gaining appointing authority.
Subchapter E. SENIORITY Sec.
605.10. Break in service. § 605.10. Break in service.
(a) Break in Service. Any of the following shall constitute a break in service:
(1) Removal for just cause.
(2) Resignation.
(3) Retirement.
(4) Failure to report after notification of appointment through mandatory, preferred or optional reemployment rights.
(5) Expiration of mandatory, preferred or optional reemployment rights.
(6) Failure to report after leave and acceptance of other permanent employment while on leave of absence without pay.
(b) If a break in service occurs, the employee shall lose accrued seniority.
(c) Periods of furlough and approved leave of absence without pay shall be deemed continuous employment for seniority purposes, except that the period of furlough or leave of absence without pay will not be counted toward seniority.
(d) Demotion for cause shall terminate seniority in the job from which demoted.
CHAPTER 606. PROHIBITIONS,
PENALTIES AND ENFORCEMENTSubchap.
A. OFFICE OF ADMINISTRATION REVIEW OF LEGALITY OF EMPLOYMENT B. POLITICAL ACTIVITY C. REMOVAL AND DISQUALIFICATION OF OFFICERS AND EMPLOYEES
Subchapter A. OFFICE OF ADMINISTRATION REVIEW OF LEGALITY OF EMPLOYMENT Sec.
606.1. Report of personnel change. 606.2. Action on appointment or personnel change. 606.3. Effect of out-of-class work. § 606.1. Report of personnel change.
Each appointing authority shall promptly report to the Office of Administration an appointment or change in position, status or residence of an employee in the classified service under its jurisdiction, or a permanent change in the salary or other basis upon which an employee is paid and the effective date of the change.
§ 606.2. Action on appointment or personnel change.
Whenever the Office of Administration determines that an appointment or personnel change is not in accordance with the act and this subpart, the Office of Administration will notify the appointing authority in writing, including the reasons for the determination and the required corrective action.
§ 606.3. Effect of out-of-class work.
When it is determined that an employee is filling a position under a job other than that for which examined and certified, or is performing duties or assuming responsibilities which do not properly belong to the position for which examined and certified, except during an emergency period, the Office of Administration may take appropriate action consistent with the act.
Subchapter B. POLITICAL ACTIVITY Sec.
606.4. Prohibited political activities; exception and applicability. 606.5. Complaint procedure. 606.6. Complaint content. § 606.4. Prohibited political activities; exception and applicability.
(a) Notwithstanding the political activities expressly prohibited by the act, classified service employees are permitted to seek and accept appointment, nomination and election to the office of school board director. This exception applies only to the employee who is the candidate. For other civil service employees, the restrictions on political activity remain in effect for school board director elections.
(b) The provisions of the act which expressly prohibit certain political activities do not apply to the classified service employee who has been furloughed or who is on a regular unpaid leave of absence, a leave of absence to take a noncivil service position, or a leave of absence subject to Chapter 53 of the State Employees' Retirement Code in 71 Pa.C.S. § 5302(b) (relating to credited State service). An employee on any other type of paid leave of absence shall continue to comply with the political activity restrictions while on leave. Upon return to the classified service the employee shall immediately cease the political activities prohibited by the act. An employee elected to public office while on leave, who returns to the classified service, may serve out the remaining portion of the present term of office if the duties of the office are not among those prohibited by the act. The employee may not seek and accept appointment, nomination and election for a new term in office.
§ 606.5. Complaint procedure.
A complaint against a classified service employee for engaging in prohibited political activity shall be addressed to the Office of Administration and will be promptly investigated.
§ 606.6. Complaint content.
A complaint must contain sufficient details of the alleged prohibited political activity so as to enable proper investigation by the Office of Administration.
Subchapter C. REMOVAL AND DISQUALIFICATION OF OFFICERS AND EMPLOYEES Sec.
606.7. Falsification or concealment of material information. 606.8. Notice of violation of act or regulations. 606.9. Penalty for violation. § 606.7. Falsification or concealment of material information.
Whenever the Office of Administration determines that an employee has been appointed or promoted as a result of having furnished false information or concealed material information, the Office of Administration will give written notice of the determination to the appropriate appointing authority. The notice will contain a reference to 71 Pa.C.S. § 2706 (relating to removal and disqualification of officers and employees) and will include instructions as to the remedial actions to be taken by the appointing authority.
§ 606.8. Notice of violation of act or regulations.
Whenever the Office of Administration determines that an employee has violated the act or this subpart, the Office of Administration will give written notice to the appropriate appointing authority of the determination, including appropriate corrective actions.
§ 606.9. Penalty for violation.
If after due inquiry, an employee has been found to have violated the act or this subpart and has been penalized by removal from the classified service under 71 Pa.C.S. § 2706 (relating to removal and disqualification of officers and employees), the employee shall be ineligible for reappointment to any position in the classified service for a period of time determined by the Office of Administration. In setting the period of ineligibility, the Office of Administration may, in its discretion, determine that permanent ineligibility is appropriate.
CHAPTER 607. NOTICE AND HEARINGS Subchap.
A. NOTICE B. PRACTICE AND PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATION
Subchapter A. NOTICE Sec.
607.1. Written notice required. 607.2. Personnel actions. 607.3. Statement of reasons. 607.4. Signatory authority. § 607.1. Written notice required.
(a) Each appointing authority shall provide written notice of personnel actions affecting employees.
(b) When the appointing authority notifies an employee of a furlough or a suspension, it shall simultaneously submit a copy of the notice to the Office of Administration.
(c) The notice requirements in this section are mandatory. Failure to adhere to the notice requirements set forth in this section may nullify the personnel action.
(d) A written notice of personnel actions shall be provided to the employee in advance of the effective dates of the personnel actions, except in cases of suspension, acceptance of resignation or reclassification. Advance notice shall be at least 1 work day, except in circumstances of unusually serious employee infractions where continued employment would be detrimental to the appointing authority, its other employees or its clients.
(e) A written notice of a removal, furlough, involuntary demotion or suspension, or when otherwise required by the Office of Administration, shall provide information on the employee's right to appeal the personnel action to the Commission.
§ 607.2. Personnel actions.
Written notice shall be required for:
(1) Appointment.
(2) Promotion.
(3) Removal, including the removal of a probationary employee before the expiration of the probationary period.
(4) Suspension.
(5) Demotion.
(6) Furlough.
(7) Retirement.
(8) Resignation.
(9) Transfer.
(10) Reassignment.
(11) Leave of absence.
(12) Extension or reduction of probationary period.
(13) Compensation changes, except salary increments, general pay increases, or special pay for such things as overtime or out-of-class work.
(14) Performance evaluation.
(15) Reclassification.
(16) Return to a position or job held prior to promotion.
§ 607.3. Statement of reasons.
A notice of removal, involuntary demotion or suspension issued to a regular employee shall include a clear statement of the reason(s) for the personnel action, sufficient to apprise the employee of the grounds upon which the charges are based. A notice determined to be defective may result in the reversal of the personnel action.
§ 607.4. Signatory authority.
A personnel action notice shall be signed by the agency head, or a designated subordinate. If this responsibility has been delegated within the appointing authority, the delegation shall be submitted in writing to the Office of Administration and identify the designees by specific work title. A subordinate properly delegated signatory authority by the appointing authority may not further delegate the authority. For performance evaluations, the designated subordinate shall be the employee's immediate supervisor and the appointing authority is not required to submit written notification of work titles to the Office of Administration for this purpose.
Subchapter B. PRACTICE AND PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATION Sec.
607.5. Applicability of General Rules of Administrative Practice and Procedure. 607.6. Hearings before the Office of Administration. 607.7. Representation. 607.8. Authority of presiding officer. 607.9. Record of proceedings. 607.10. Evidence. 607.11. Subpoenas. 607.12. Post-hearing briefs. 607.13. Final disposition. § 607.5. Applicability of General Rules of Administrative Practice and Procedure.
This subchapter is intended to supersede 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure). The General Rules of Administrative Practice and Procedure are not applicable to activities of and proceedings before the Office of Administration.
§ 607.6. Hearings before the Office of Administration.
(a) Public access. All hearings scheduled by the Office of Administration under its authority under the act shall be open to the public.
(b) Presiding officer. The Secretary of Administration, or a designee authorized by the Secretary of Administration in writing, shall conduct hearings scheduled by the Office of Administration under its authority under the act.
(c) Discretionary hearings. Hearings conducted under 71 Pa.C.S. § 2202(a)(10) (relating to duties of Office of Administration) may be convened at the sole discretion of the Office of Administration. The burdens of proof and production shall be determined by the presiding officer, if necessary.
(d) Eligible list cancellation hearings. Under 71 Pa.C.S. § 2307(d) (relating to duration of eligible lists), the Office of Administration will hold a hearing before cancelling the whole or a part of an eligible list due to illegality or fraud in connection with the eligible list.
(e) Notice of hearing. The Office of Administration shall provide advance notice of a scheduled hearing to interested individuals and appointing authorities. The notice will contain a statement of the matters to be addressed at the hearing, as well as specific instructions regarding the date, time and place of hearing. The Office of Administration shall post all hearing notices on its web site in advance of a hearing.
(f) Consolidation of proceedings. The Office of Administration may consolidate two or more proceedings at its discretion where the proceedings involve a common question of law or fact, provided that such consolidation does not prejudice any interested individual or appointing authority.
(g) Severance of proceedings. The Office of Administration may sever two or more proceedings at its discretion where the proceedings lack a common question of law or fact, provided that such severance does not prejudice any interested individual or appointing authority.
(h) Continuances. The presiding officer may, upon a showing of good cause, grant a request for a continuance of a scheduled hearing. The requests shall be submitted as far in advance of the scheduled hearing date as possible, be made in writing, and must state the specific reason(s) for the continuance request.
(i) Failure to attend a hearing. When a properly notified interested individual or appointing authority fails to appear at a hearing, the hearing may be held without the participation of the individual or appointing authority and, thereafter, the presiding officer may take appropriate action in due course.
(j) Additional hearings and evidence. After the conclusion of a hearing, but prior to the issuance of a final disposition, the presiding officer may, upon its own motion or upon request of an interested individual or appointing authority, allow one or more additional hearings or the submission of additional evidence.
§ 607.7. Representation.
An interested individual may appear on their own behalf or be represented by an attorney licensed to practice law in the Commonwealth of Pennsylvania or a legal intern certified by the Supreme Court of Pennsylvania. Appointing authorities shall be represented by an attorney licensed to practice law in the Commonwealth of Pennsylvania or a legal intern certified by the Supreme Court of Pennsylvania. A representative of an interested individual or appointing authority shall file an entry of appearance with the Office of Administration.
§ 607.8. Authority of presiding officer.
A presiding officer has the discretionary authority to do the following:
(1) Regulate the conduct of hearings, including the scheduling, recessing, reconvening, and adjournment thereof, and to do acts and take measures necessary or proper for the efficient conduct of hearings.
(2) Administer oaths and affirmations.
(3) Receive evidence.
(4) Rule upon offers of proof and evidentiary objections.
(5) Hold appropriate conferences before or during hearings and order the parties to submit memoranda in advance of the conference.
(6) Dispose of procedural requests, including discovery, or similar matters.
(7) Specify the manner in which pleadings are to be submitted to the presiding officer, including the format and contents of these documents.
(8) Require that an interested individual or an appointing authority, prior to the hearing, file a witness list and/or a list of documents to be presented at the hearing.
(9) Take other actions as necessary and appropriate to discharge the presiding officer's vested duties, consistent with statutory authority, regulations, and applicable Office of Administration directives, policies and guidelines.
§ 607.9. Record of proceedings.
A complete record of the proceedings shall be made. Interested individuals and appointing authorities shall make arrangements to purchase copies of the record directly with the reporting service. The Office of Administration's copy of records may be reviewed at the Office of Administration's office in Harrisburg. Arrangements for this review service may be made by contacting the Office of Administration.
§ 607.10. Evidence.
A hearing before the Office of Administration shall be formal but need not adhere to the technical rules of evidence or procedure. In cases involving issues of fact, oral testimony shall be under oath or affirmation.
§ 607.11. Subpoenas.
(a) Procedure for requesting subpoenas.
(1) A subpoena for the attendance of witnesses or for the production of documents will be issued only upon written application to the presiding officer, with a copy to the non-requesting interested individual or appointing authority. Notwithstanding the forgoing, the presiding officer may, by motion, issue a subpoena for the attendance of witnesses or the production of documents.
(2) A written application shall specify the relevance of the testimony or documentary evidence sought. For documentary evidence, the request must specify, to the extent possible, the documents desired and the facts to be proved thereby.
(3) A subpoena for new or additional witnesses will not be issued after a hearing has been commenced and continued unless orally requested on the record at the hearing and approved by the presiding officer; except that subpoenas issued prior to the commencement and continuance of the hearing may be reissued upon written request.
(4) Failure to adhere to the requirements of this subsection may result in the refusal to issue the requested subpoena.
(b) Service of subpoenas.
(1) A subpoena for the attendance of a witness must be personally served at least 48 hours prior to the hearing, unless the witness agrees to waive the 48-hour requirement.
(2) A subpoena for the production of documents may be served personally, by mail, by facsimile machine, or by other electronic means upon the individual in possession of the documents, the legal counsel for the appointing authority, or the agency head, who may designate a knowledgeable alternate as custodian of the documents. A subpoena for the production of documents shall be served no later than 5 business days prior to hearing.
(3) Failure to adhere to the requirements of this subsection may result in a ruling by the presiding officer denying the enforceability of the subpoena.
§ 607.12. Post-hearing briefs.
The parties will be notified of the procedure and schedule for the submission of briefs. Parties submitting briefs shall submit the original and an electronic copy to the presiding officer. Briefs filed outside of the time period or sequence specified will be considered only at the discretion of the presiding officer.
§ 607.13. Final disposition.
After the closing of the record, the Secretary of Administration will issue a final disposition of the matter. Where the presiding officer is not the Secretary of Administration, the presiding officer will draft a proposed final disposition, which the Secretary of Administration may adopt in whole, or in part, as the final disposition of the matter.
[Pa.B. Doc. No. 19-414. Filed for public inspection March 15, 2019, 9:00 a.m.]
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