NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[54 Pa.B. 6536]
[Saturday, October 12, 2024]

 Section 5(g) of the Regulatory Review Act (71 P.S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b).

 The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No.	Agency/Title	Close of the Public Comment Period	IRRC Comments Issued
99-13	Office of Administration Civil Service Reform 54 Pa.B. 4437 (August 3, 2024)	09/03/24	10/02/24

Office of Administration Regulation # 99-13
(IRRC # 3412)

Civil Service Reform

October 2, 2024

 We submit for your consideration the following comments on the proposed rulemaking published in the August 3, 2024 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the Office of Administration (OA) to respond to all comments received from us or any other source.

1.  Legislative Intent.

 Act 71 of 2018 (Act 71) authorized the OA to promulgate temporary regulations to facilitate the prompt implementation of legislation governing civil service reform in the Commonwealth. Those temporary provisions, effective March 28, 2019, lapsed on March 12, 2022. Thereafter, the OA promulgated new temporary regulations that took effect on March 12, 2022. The new temporary regulations will expire on March 12, 2025. We, therefore, urge the OA to expeditiously return a final-form rulemaking to ensure that its permanent regulations are in place in a manner that is both timely and consistent with the intent of the General Assembly in providing the OA with limited, temporary rulemaking authority.

2. Legislative Comments.

 Representative Brad Roae, Republican Chairman of the House State Government Committee (House Committee) expressed concern about the OA's timeline for promulgation of final-form regulations. These regulations, in their current temporary form, are set to expire in March 2025. In addition to concerns about the timeframe for finalization, Representative Roae submitted the following substantive questions:

 • Section 610.5(a)(5) allows the OA to limit the number of applicants for a particular vacancy. Does artificially capping the maximum number of applicants for a vacancy inherently affect the competitiveness of filling said vacancy?

 • Section 612.1(d) allows for a leave of absence for up to 12 years. The regulations define ''leave of absence'' in Section 608.3(a) as ''A temporary and limited separation. . .'' As 12 years seems rather long for a leave of absence, how did the OA determine this timeframe encompassed both a ''temporary'' and ''limited'' separation?

 • Section 612.7(c)(3) relates to a suspension under Section 2705(f) (relating to political activity) of Act 71 may not exceed 120 working days. Section 2705(f) of Act 71 states: ''An individual in the classified service who violates this section shall be removed from employment and money appropriated for the position from which the employee was removed may not be used to pay the employee or individual, provided the OA may impose a penalty of suspension without pay for not more than 120 working days if the OA finds that the violation does not warrant termination.'' However, the proposed regulations neither include provisions on termination due to violation, nor do they provide clarity on what process the OA must use to ''find that the violation does not warrant termination.'' How does the OA reconcile the potential conflict between these two provisions?

 Under the RRA, the comments, objections, or recommendations of a committee and written comments submitted by current members of the General Assembly are two of the criteria the Commission must consider when determining if a regulation is in the public interest. When this proposal is delivered as a final-form regulation to this Commission and the standing committees for consideration, we will review the OA's responses to the issues raised by Representative Roae in determining whether the rulemaking is in the public interest.

3. Regulatory Analysis Form (RAF).—Fiscal impacts; Implementation procedures.

 RAF Block # 20 directs the promulgating agency to provide a specific estimate of the costs and/or savings to the local governments associated with compliance. In response, the OA writes that: ''The proposed regulations will not have an impact on local governmental entities that do not utilize the Commonwealth's merit system of employment.'' To the extent that local governments are part of the regulated community, the OA ''does not anticipate that the proposed regulation will create additional costs on the regulated community, and costs associated with administration of the Classified Service should remain consistent with prior fiscal years.'' We ask the OA to include an updated RAF with the final rulemaking that directly discusses the costs and/or savings to local governments that utilize the Commonwealth's merit employment services.

 Additionally, we ask that the OA's response to RAF # 29C, regarding the schedule for the expected date of delivery of the final-form regulation, be updated.

CHAPTER 608. GENERAL PROVISIONS
GENERAL PROVISIONS

4. Section 608.1. Short title.—Clarity.

 The State Civil Service Commission (SCSC) has noted two issues related to this section. The SCSC asserts that the proposed short title is not distinct enough to avoid possible confusion with the short title for the SCSC regulations (Rules of the Civil Service Commission). Additionally, the SCSC believes the title could be misleading because the phrase ''Civil Service Reform'' encompasses functions performed separately by the SCSC and the OA. The SCSC suggests that the OA utilize a short title that focuses on the employment function performed by the OA. We encourage the OA to consult with the Legislative Reference Bureau in determining an appropriate short title for this regulation.

5. Section 608.3. Definitions.—Clarity.

Merit-related factors, merit-related criteria, merit-related reason and merit principles

 These terms appear in numerous sections throughout the body of the regulation. We believe that defining these terms would improve the clarity of the regulation. We ask the OA to define these terms in the final version of the regulation or explain why it is unnecessary to do so.

Provisional employee

 A Provisional employee is defined as an individual who was appointed to a position through an accelerated entrance examination program and who is serving a 6-month working test period prior to the required probationary period. (Emphasis added). The term ''accelerated entrance examination program'' is not defined nor does the Annex describe what it entails. The final-form regulation should define the term and provide specifics about the program in the regulatory language.

Rule of three

 The last sentence in the definition of Rule of three is a substantive provision. Under Section 2.11(e) of the Pennsylvania Code and Bulletin Style Manual, substantive provisions may not be in a definition section. The last sentence in this definition should be deleted and relocated to Section 610.24 (relating to Rule of three and alternate rule).

6. Section 608.7. Service to departments, boards and commissions, agencies and political subdivisions; reimbursement for services.—Clarity; and Implementation procedures.

 Proposed Section 608.7 establishes the process for acquiring services from the OA. Subsection (b) provides that reimbursement for services provided by the OA shall be done in accordance with Section 2901 of Act 71 (relating to service and cooperation). The SCSC seeks clarification on whether this section requires existing contracts with counties and other political subdivisions to be renegotiated. We will review the OA's response to this request for clarification in our determination of whether the rulemaking is in the public interest.

CHAPTER 609. CLASSIFICATION SYSTEM
CLASSIFICATION SYSTEM

7. Section 609.5. Unclassified service.—Clarity; and Implementation procedures.

 Proposed Section 609.5 establishes the procedure by which appointing authorities may request exemptions from the classified service. Positions that may be exempted from the classified service are listed under the definition of ''unclassified service'' in Section 2103 of Act 71. Three of the listed positions—members of boards or commissions, unskilled workers, and attorney positions—are not mentioned in proposed Section 609.5. The SCSC suggests that if the OA does not intend for approval to be required for these positions, then it should add a subsection indicating this.

 In addition, the SCSC contends, according to Paragraph 11 of an Interagency Agreement between the SCSC and the OA, that this proposed section does not mention the final step in the approval process: for the OA to submit certain exemption requests to the SCSC. Therefore, the SCSC suggests that the OA consider adding a section incorporating the scope of review set forth in Paragraph 11. We will review the OA's response to both aforementioned suggestions in our review of the final-form regulation.

CHAPTER 610. APPOINTMENTS AND PROMOTIONS IN THE CLASSIFIED SERVICE

8. Section 610.6. Evaluation of applications.—Clarity; and Implementation procedures.

 Proposed Section 610.6 provides for a process by which employment applications are evaluated and in which applicants may seek reconsideration. The SCSC has expressed concerns about the OA's previously implemented limited approach to reconsideration reviews and its impact on applicants, such as veterans. The SCSC has similar concerns regarding this approach under proposed Section 610.13. Given these concerns expressed by the SCSC, we ask that the OA explain how it will apply its reconsideration process under this proposed section and proposed Section 610.13. We will review the OA's response to these concerns in our review of the final-form regulation.

9. Section 610.9. Development of examinations.—Clarity.

 Section 610.9(d) permits the OA to collaborate with representatives of appointing authorities, qualified testing organizations and other qualified individuals regarding the content of examinations. The final version of this rulemaking should define ''qualified testing organization'' or explain why it is unnecessary to define the term.

10. Section 610.10. Administration of examinations.—Clarity; and Implementation procedures.

Subsection (b)

 Under this subsection, the OA publishes notices of examinations which announce the method of examination and, if applicable, the date, time and location that the examination will be held. Notices of examinations will be accessible through the OA's web site and shall be published for a minimum of 2 weeks. (Emphasis added.) We suggest that this subsection be revised for clarity and consistency with the statute, by inserting after ''weeks'' the following phrase ''in advance of the final date for filing applications.'' 71 Pa.C.S. § 2304.

Subsection (e)

 The SCSC has expressed concerns about the ambiguous use of the following terms and phrases in Sections 610.10(e)(3) and 610.10(e)(4): ''false statement,'' ''fraud,'' ''deception,'' and ''lack of professionalism, honesty, trustworthiness or dependability.'' The SCSC contends that it is unclear about which definition the OA intends to use or how the OA will determine when an applicant has made a false statement or engaged in fraud. The SCSC further argues that no standards have been established for determining when an applicant lacks professionalism, honesty, trustworthiness, or dependability. We will evaluate the OA's response to these concerns in our determination of whether the rulemaking is in the public interest. This comment also applies to Sections 610.23(a)(3), 610.23(a)(4), and 613.4(d).

11. Section 610.26. Removal of eligible from eligible list.—Clarity; Implementation Procedures; and Timetables.

 This section addresses the removal of an eligible's name from an established or certified eligible list (list), including requirements for an appointing authority's request to the OA and the process for an eligible to respond to such a request.

 The SCSC contends that this proposed section does not adequately specify a timeframe for list removals. Specifically, the SCSC argues that the time period is open-ended and left to the discretion of the OA which could cause confusion and uncertainty for civil service employees and job seekers. These arguments put forth by the SCSC also apply to proposed Section 613.4.

 Under Section 610.26(b), an eligible may, within 10 calendar days from the mailing date of the appointing authority's request for removal from a list, submit a written response to the OA. Copies of the eligible's response are sent to the OA and the appointing authority on the same day. Section 610.26(c) sets forth the OA's authority to grant or deny an appointing authority's list removal request. If a request for removal of an eligible's name from a list is granted by the OA, the eligible's name will be removed from the list for a period of time as determined by the OA, and the appointing authority will not be required to consider the eligible for appointment or promotion. This subsection does not address whether the eligible is notified of the OA's decision to grant or deny an appointing authority's request. The final-form regulation should provide notice to the eligible regarding the outcome of an appointing authority's request for removal from the eligible list, including stipulating the length of time, as determined by the OA, in which the eligible will not be considered for an appointment or promotion. Otherwise, we ask the OA to explain how not providing notification under this section is in the public interest.

CHAPTER 611. EMPLOYEES IN THE CLASSIFIED SERVICE

12. Section 611.2. Duration and extension of probationary periods.—Clarity; and Implementation procedures.

 This section addresses the duration and extension of probationary periods. Subsection (b) relating to the extension of a probationary period states that if the appointing authority extends an employee's probationary period, it must notify the employee in writing at least 1 workday prior to the effective date of the extension. At the discretion of the appointing authority, a probationary period may be extended up to a maximum of 18 months. Does the notice specify the length of time that the probationary period has been extended? If so, the regulation should be revised to include this information in the notice. If not, the OA should explain why it is not needed. This comment also applies to notice of extension of probationary period for a trainee in Section 611.7(c).

13. Section 611.7. Probationary period of trainees; and
Section 611.8. Probationary period of interns.—Clarity.

 In Sections 611.7(e) and 611.8(d), an appointing authority must immediately remove or, if appropriate, return a trainee or an intern who fails to successfully complete the designated probationary period or the internship in accordance with Section 611.12(d). (Emphasis added). We recommend that Sections 611.7(e) and 611.8(d) be amended to clarify what the trainee/intern is returning to (i.e. regular status, probationary status, a position, previously held position or employment).

CHAPTER 612. SEPARATION OF EMPLOYEES
FROM THE CLASSIFIED SERVICE

14. Section 612.1. Leaves of absence generally.—Reasonableness of requirements, implementation procedures and timetables for compliance.

 Section 612.1(d) provides the extension of leaves of absence. Upon the written request of the employee, a leave of absence may be extended at the discretion of the appointing authority in 2-year increments and for the maximum continuous duration of 12 years. We ask the OA to explain, in the Preamble to the final-form regulation, how it determined that the time period for an extension under Section 612.1(d) is appropriate and reasonable?

CHAPTER 614. PERSONNEL ACTIONS

15. Section 614.1. Personnel actions. Statutory authority; Intent; Possible Conflict with Existing Statute.

 The SCSC argues that the following language in proposed Section 614.1 exceeds the OA's authority because both the OA and the SCSC rely upon Act 71 in their daily operations:

 When used in the act [Act 71] or this subpart, the term personnel action shall be limited to the following [. . .].

 The SCSC suggests that the OA define ''personnel actions'' within its own subpart and delete the reference to Act 71 in proposed Section 614.1. In addition, the SCSC contends that the definition of ''personnel action'' in this proposed section is more restrictive than the categories of personnel actions listed in Section 2704 of Act 71 and is contrary to the open-ended language used in the catch-all provision found in Section 2704. We will review the OA's response to SCSC's concerns in our determination of whether the final rulemaking is in the public interest. We also encourage both the OA and the SCSC, as they formulate their respective rulemakings to implement Act 71, to consult with one another on such matters.

CHAPTER 615. PRACTICE AND PROCEEDINGS
BEFORE THE OFFICE OF ADMINISTRATION

16. Section 615.11. Notice of hearing.—Clarity; and Implementation procedures.

Subsection (a)

 Under this subsection, the OA provides parties with advance notice of a scheduled hearing. The notice contains a statement of the matters to be addressed at the hearing, as well as specific instructions regarding the date, time and place of hearing.

 Proposed Section 615.16 sets forth the protocol when a properly notified party fails to appear at hearing. Specifically, it provides that where a party fails to appear after proper notice, the presiding officer may still hold the hearing and render a decision. We ask the OA to consider amending Section 615.11(a) to include, either in the hearing notice or on OA's website, information about failure to appear at hearing.

17. Section 615.18. Record of proceedings; and
Section 615.28. Record of proceedings.—Clarity.

 These two provisions are identical. We ask the OA to distinguish the difference between the two provisions, in both title and content, in the final-form rulemaking or remove one. In addition, we recommend that the final regulatory language state that instructions to obtain a record of the proceedings will be available on the OA's website.

18. Miscellaneous—Clarity.

 • Section 608.2(b) duplicates, in part, language found in Section 608.2(a). We recommend deleting the unnecessary provision in the final-form regulation.

 • In Sections 610.29(c) and 610.30(b), we suggest removing the '','' after ''additional.''

 • In the first sentence of Section 610.6(f), add ''to'' after ''Administration.''

 • In Section 610.13(e), place '','' after ''score.''

 • Amend Sections 611.18(c), 611.19(c) and 612.5(h)(3), for consistency with similar provisions throughout the body of the regulation, by adding after ''principles'' the following phrase ''as set forth in the act and this subpart.''

 • In Section 612.3(c), insert ''A'' before ''substitute.''

 • Section 615.11(b) is missing the ending parenthesis after the word ''hearings.''

GEORGE D. BEDWICK, 
Chairperson

[Pa.B. Doc. No. 24-1478. Filed for public inspection October 11, 2024, 9:00 a.m.]

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