File No. 33592
This rule was published in the May 15, 2010, issue (Vol. 2010, No. 10) of the Utah State Bulletin.
Career Service Review Board, Administration
Grievance Procedure Rules
Notice of Proposed Rule
DAR File No.: 33592
Filed: 04/29/2010 03:03:07 PM
Purpose of the rule or reason for the change:
The changes are in response to the changes in the statute from H.B. 140 governing employee grievances. (DAR NOTE: H.B. 140 (2010) is found at Chapter 249, Laws of Utah 2010, and will be effective 07/01/2010.)
Summary of the rule or change:
These rule changes eliminate references to the former Career Service Review Board and replaces them with Career Service Review Office. The changes also expedite the employee grievance process by limiting the number of steps available in that process as required by the statute changes. They also amend what issues may be heard at the Career Service Review Office, again in accordance with statute.
State statutory or constitutional authorization for this rule:
- Section 67-19-16
- Section 34A-5-106
- Section 67-19-31
- Section 67-19-30
- Section 63G-4-101 et seq.
- Section 67-19a-101 et seq.
Anticipated cost or savings to:
the state budget:
While these amendments will have no impact on the Agency budget, the elimination of grievance steps and reduction of issues that can be grieved may reduce overall litigation cost to the State.
This agency does not deal with local government, therefore, there is no cost or savings to local government.
This agency does not deal with small businesses, therefore, there is no cost or savings to small businesses.
persons other than small businesses, businesses, or local governmental entities:
This agency only deals with State agencies and State Schedule B employees.
Compliance costs for affected persons:
This agency only deals with State agencies and State Schedule B employees.
Comments by the department head on the fiscal impact the rule may have on businesses:
There will be no fiscal impact on businesses.
Robert W. Thompson, Administrator
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Career Service Review Board
450 N MAIN ST
SALT LAKE CITY, UT 84114-1201
Direct questions regarding this rule to:
- Robert Thompson at the above address, by phone at 801-538-3047, by FAX at 801-538-3139, or by Internet E-mail at email@example.com
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
This rule may become effective on:
Robert Thompson, Administrator
R137. Career Service Review [
R137-1. Grievance Procedure Rules.
R137-1-1. Authority and Purpose of Rule for Grievance Procedures.
(1) The authority for the rule on these grievance procedures is found at Section 67-19a-203.
(2) This rule establishes official procedures and standardized practices for administering these grievance procedures.
Terms defined in Section 63G-4-103 of the Utah Administrative Procedures Act (UAPA) are incorporated by reference within this rule. In addition, other terms which are used in this rule are defined below:
"Abandonment of Grievance" means either the voluntary withdrawal of a grievance or the failure by an employee to properly pursue a grievance through these grievance procedures.
"Administrative Review of the
File" means an informal adjudicative proceeding according to
"Administrator" means the
incumbent in the position defined at [
"Affidavit" means a signed and sworn statement offered for consideration in connection with a grievance proceeding.
"Appeal" means a formal request to a higher level of review of an unacceptable lower level decision.
"Appellant" means the party that is advancing an
evidentiary level grievance decision to the appellate level before
the board at Step 6.
]"Appointing Authority" means the officer, board, commission, person or group of persons authorized to make appointments on personnel/human resource management matters in their respective agency.
"Board" means the entity defined at Section
67-19a-101(2), and refers to the five-member,
gubernatorial-appointed entity at Sections 67-19a-201 and
]"Burden of Moving Forward" means a party's obligation to present evidence on a particular issue at a particular time. The burden of moving forward may shift back and forth between the parties based on certain legal principles.
"Burden of Proof" means the obligation to prove affirmatively a fact or set of facts at issue between two parties. If proven, the opposing party then has a burden of proving any affirmative defense.
"CSRB" and "CSRB Office" mean] the agency of state government that
statutorily administers these grievance procedures according to
Sections 67-19a-101 through 67-19a-[ 408].
Statement]" means a party's final summation of
evidence and argument, which is presented at the conclusion of the
"Consolidation" means the combining of two or more grievances involving the same controversy for purposes of holding a joint hearing, proceeding, or administrative review.
"Continuance" means an authorized postponement or adjournment of a hearing until a later date, whether the date is specified or not.
"Declaratory Order" means a ruling that is explanatory in purpose; it is designed to clarify what before was uncertain or doubtful. A declaratory order constitutes a declaration of rights between parties to a dispute and is binding as to both present and future rights. It is an administrative interpretation or explanation of a right, statute, order or other legal matter under a statute, rule, or an order.
"Default" means an omission of or untimely failure to take or perform a required act in the processing of a grievance. It is the failure to discharge an obligation which results in a forfeiture.
"Deposition" means a form of discovery in which testimony of a witness is given under oath, subject to cross-examination, and recorded in writing, prior to the hearing.
"Discovery" means the prehearing process whereby one party may obtain from the opposing party, or from other individuals or entities, information regarding the witnesses to be called, the documents and exhibits to be used at the hearing, and the facts and information about the case.
"Evidentiary Hearing" means a
proceeding of relative formality, though much less formal than a
trial, in which witnesses [
are] heard and evidence is presented and considered.
Specific issues of fact and of law are tried. Afterwards, ultimate
conclusions of fact and of law are set forth in a written decision
"Excusable Neglect" means the exercise of due diligence by a reasonably prudent person and constitutes a failure to take proper steps at the proper time, not in consequence of the person's own carelessness, inattention, or willful disregard in the processing of a grievance, but in consequence of some unexpected or unavoidable hindrance or accident.
"File" means to submit a
document, grievance, petition, or other paper to the [
CSRB Office] as prescribed by these rules. The term
"file" includes faxing and E-mailing.
"Filing Date" means the day that
a document, grievance, petition, or other paper is recorded as
having been received by the [
"Grievance Procedures" mean the
grievance and appeal procedures codified at Sections 67-19a-101
408] and promulgated through this rule.
"Grievant" means the person or
party advancing one or more issues as a petitioner through these
grievance procedures to the evidentiary/step [
However, at the appellate/step 6 level one party is designated
as the appellant, the other as respondent.]
"Group Grievance" means a grievance submitted and signed by two or more aggrieved employees. The term does not include "class action."
"Hearing" means the opportunity to be heard in an administrative proceeding.
"Hearing Officer" means an
impartial trier of facts appointed by the [
CSRB] administrator and assigned to [ hear] a particular grievance case at the
evidentiary/step [ 5] level.
"Hearsay Evidence" means evidence not based upon a witness's personal knowledge as a direct observer of an event. Rather, hearsay evidence stems from the repetition of what a witness heard another person say. Hearsay's value rests upon the credibility of the declarant. Hearsay is a statement made outside of the hearing that is offered as evidence of the truth of matters asserted in the hearing.
"Issuance" means the date on which a decision, order or ruling is signed and dated; it is not the date of mailing, or the date of the mailing certificate, nor the postal date. Date of issuance is the date specified according to Subsection 63G-4-401, of the UAPA.
"Joint Hearing" means the uniting of two or more grievances involving the same, similar, or related circumstances or issues to conduct a single hearing; also see "Consolidation."
"Jurisdiction" means the legal right and authority to hear and decide issues and controversies.
"Jurisdictional Hearing" means a hearing conducted
by the administrator (or hearing officer who sits by designation to
represent the administrator in these hearings) to determine
timeliness, standing, jurisdiction, direct harm, and eligibility to
advance a grievance issue to the evidentiary/step 5
]"Management Representative" means a person of managerial or supervisory status who is not subject to exclusion. Legal counsel is not included within the meaning of the term.
"Motion" means a request offered verbally or in writing for a ruling or to take some action.
"Notice" and "Notification" mean a proper written notice to the parties involved in a grievance procedural hearing or conference, setting forth date, time, location, and the issue to be considered.
"Pleadings" mean the formal written allegations of the parties that set forth their respective claims and defenses.
"Pro Se" means in one's own behalf. A person is represented pro se in an administrative proceeding when acting without legal counsel or other representation.
"Quash" means to cancel, annul, or vacate a subpoena.
"Relevant" means directly applying to the matter in question; pertinent, germane. It is evidence that tends to make the existence of any facts more probable or certain than they would be without the evidence; and tending to prove the precise fact at issue.
"Remand" means to send back, as
for further deliberation and judgment, to the presiding official or
other tribunal from which a [
case] was appealed.
"Respondent" means the party against whom an appeal
is made at the appellate/step 6 level.
]"Standard of Proof" means the
evidentiary standard, which in [
CSRB] adjudications is the substantial evidence
"Stay" means a temporary suspension of a case or of some designated proceeding within the case .
"Submit" means to commit to the discretion of another; to present for determination.
"Subpoena" means a formal legal document issued under authority to compel the appearance of a witness at an administrative proceeding, the disobedience of which may be punishable as a contempt of court.
"Subpoena Duces Tecum" means a formal legal document issued under authority to compel specific documents, books, writings, papers, or other items.
"Substantial Evidence" means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which issues tendered can be reasonable resolved. It is evidence that a reasonable mind might accept as adequate to support a conclusion, but is less than a preponderance.
"Summary Judgment" means a
ruling made upon motion by a party or the presiding [
official] when there is no dispute as to either
material fact or inferences to be drawn from undisputed facts, or
if only a question of law is involved. The motion may be directed
toward all or part of a claim or defense.
"Transcript" means an official verbatim written record of an adjudicative proceeding or any part thereof, which has been recorded and subsequently transcribed by a certified court reporter.
"UAPA" means the Utah Administrative Procedures Act found at Sections 63G-4-102 through 63G-4-601.
"Withdraw" means to recall or retract a grievance from further consideration under these grievance procedures.
"Witness Fee" means an appearance fee and may also include a mileage rate established by statutory provision pursuant to Section 78B-1-119.
"Working Days" means for purposes of the time periods for filing a grievance, advancing an appeal or responding to an employee's grievance or appeal, all days except Fridays, Saturdays, Sundays and recognized State holidays.
R137-1-3. Classification Jurisdiction.
CSRB] and the [ CSRB] hearing officers have no jurisdiction over
classification and reclassification grievances, appeals, and
complaints nor over position schedule assignments, according to
Section 67-19-31 and Subsections 67-19a-202(1)(a) and
67-19a-302(1), and Section R477-3-5.
R137-1-4. Complaints From Applicants.
(1) A public applicant for a position with the state's work force has no standing to submit a grievance and is precluded from using these grievance procedures, according to Subsection 67-19-16(6).
(2) A public applicant who alleges a violation of a legally prohibited practice based upon race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, age, if the individual is 40 years of age or older, religion, national origin, or disability, is directed to Section R137-1-5 of these grievance procedures.
R137-1-5. Discrimination: Legally Prohibited Practices.
(1) Discrimination Claims. Claims alleged
to be based upon a legally prohibited practice as set forth in
Section 34A-5-106, including employment discrimination on the basis
of race, color, sex, pregnancy, childbirth, or pregnancy-related
conditions, age, if the individual is 40 years of age or older,
religion, national origin, or disability, are not admissible under
these grievance procedures. The [
CSRB] and [ CSRB] hearing officers have no jurisdiction over the
(2) Processing Discrimination Complaints. A public applicant, a probationary employee, a career service employee, or an exempt employee who alleges a violation of a legally prohibited practice pursuant to Section 34A-5-106, may file a timely complaint with the individual's respective department head. If the individual is not satisfied with the department head's decision, or if the decision is not rendered within ten working days after submission of the complaint, the individual may then file a complaint with the Utah Anti-discrimination Division pursuant to Section 67-19-32.
(3) Filing Discrimination Complaints. Employees and applicants desiring to file a legally prohibited discrimination complaint may contact the Utah Anti-Discrimination Division.
R137-1-6. Filing Procedure.
The submission of correspondence, pleadings, grievance materials, and legal documents is subject to the following provisions:
(1) Filing/Receipt. Papers to be filed
with the [
CSRB Office] or the administrator are deemed filed on the date
actually received, and are so date-stamped. The date on which
papers are received and date-stamped is regarded as the date of
(2) Time Periods. All papers, memoranda,
petitions, grievances, pleadings, briefs, exhibits, and written
motions to be filed with the administrator must be filed in the [
CSRB Office], 1120 State Office
Building, Capitol Hill, Salt Lake City, Utah 84114, within the time
limits prescribed either by law, by these rules, or by order of the
administrator[ ,] by the designated [ CSRB] hearing officer[ , or the board's chair or vice-chair].
(a) All filing dates are based upon the [
CSRB Office]'s working days.
(b) Papers must be signed by the person filing the paper or by the person's authorized representative.
(c) Documents being submitted are to contain the name, business address, and telephone number of the representative, if a party or person is being represented.
(d) Copies of all filed papers shall be served upon the appropriate opposing party or person to grievance proceedings, with notice of service given to the administrator.
(e) Notice to a designated representative constitutes notice to the representative's client.
(f) Notice to an employee who is not represented shall be served at the address specified on the employee's statement of grievance or correspondence, or in the absence of such specification, at the last mailing address shown in the employing agency's personnel file.
Subsection 63G-4-205(2) of the UAPA is incorporated by reference.
(1) Subpoena Power. Pursuant to Subsection 67-19a-204(2)(a)(ii), the administrator may issue subpoenas to witnesses and may obtain documents or other evidence in conjunction with any inquiry, investigation, hearing, or other proceedings.
(a) The aggrieved employee has the right
to require the production of books, papers, records,
and other items pertinent to the facts at
issue that are within the control of the agency against which the
grievance is lodged, and which are not held to be protected or
privileged by law. Affidavits and ex parte statements offered
during a hearing may be received and considered by the [
CSRB] hearing officer.
(b) A person receiving a subpoena issued
by the [
CSRB] will find the title of the proceeding posted
thereon, and the person to whom it is directed shall be compelled
to attend and give testimony. A subpoena duces tecum may be used to
produce designated books, or other items at a specified time and
place when these items are under an agency's or a person's
(c) A request by counsel or a party's
representative to issue a subpoena must be reasonable and timely.
At least [
two] full working days' notice prior to a scheduled
hearing must be given to the administrator, not counting
preparation and delivery time. The requesting party shall
simultaneously notify the opposing party of the request.
(d) The original of each subpoena is to be presented to the person named therein, and a copy shall be issued to the counsel or representative of each party.
(2) Service of Subpoenas. Service of
subpoenas shall be made by the requesting party delivering the
subpoena to the person named, unless the [
CSRB Office] is requested to deposit the subpoena properly
addressed and postage prepaid, with the U.S. Postal Service, or to
send it by State Mail
Services, or to send it by E-mail, or
to send it by facsimile transmission, or in any combination.
(3) Proof of Service. If service has not been acknowledged by the witness, the server may make an affidavit of service. Failure to make proof of service does not affect the validity of the service.
(4) Quashing. Subsection 67-19a-204(2)(a)(iii) governs the quashing of subpoenas by the administrator.
R137-1-8. Notice, Service, Issuance and Distribution.
(1) Service by the Parties. The parties to a proceeding shall serve upon each other one copy of all pleadings filed with the administrator. Service of a pleading may be made by any of the following: personal delivery, U.S. Postal Service, postage prepaid, State Mail Services, facsimile, or E-mail.
(a) Pleadings must be accompanied by a certificate of service or an affidavit of mailing, indicating how, where, when and to whom service is being made.
(b) It is the duty of a party or person or their representative to notify the administrator and the opposing party or representative in writing of any changes in names, addresses, or telephone numbers.
(2) Service of Subpoena. Service of subpoenas shall be executed in accordance with Section R137-1-7(2) above.
(3) Issuance of Decisions and Orders. A [
CSRB] decision, order, ruling or other document shall be
considered issued on the date that it is signed by its [ CSRB] originator, rather than on other dates such as the
date it is mailed, postmarked, received or distributed.
(a) All notices, decisions, orders and
rulings by the administrator
by a [
CSRB] hearing officer[ , or by the board's chair or vice-chair] are to be
distributed to the counsel or representatives of record and upon
any person appearing pro se.
(b) The [
CSRB Office] will retain the original notice, decision, order or
ruling with the record of the proceedings. Distribution of a [ CSRB] notice, decision, order or ruling is accomplished
when any of the following occurs:
(i) deposit postage prepaid with the U.S. Postal Service,
(ii) deposit with State Mail Services,
(iii) personal delivery,
(iv) facsimile transmission, or
(v) E-mail transmission.
(c) A mailing certificate must be attached to the notice, decision, order or ruling bearing the date of mailing and the names and addresses of those persons to whom the notice, decision, order or ruling is originally distributed.
Timely, Written Requests. Upon receipt of a notice of hearing, or as soon thereafter as circumstances necessitating a continuance
come to a party's knowledge, a party desiring to postpone the proceeding or filing of a pleading to a later date shall file a
written request for continuance with the administrator. (1) Every petition for a continuance shall specify the reason for the requested delay. (2) In considering a request for continuance, the administrator, the appointed CSRB hearing officer, or the board shall take into account: (a) whether the request was promptly and timely made, in writing; and (b) whether the request is for good cause. (3) A continuance may not be granted for insufficient cause nor as an excuse for lack of preparation. (4) Parties must not anticipate that a given number of continuances are granted to each party, nor that a series of
continuances is permitted.]
R137-1-10. Eligibility to Grieve.
(1) Standing. Only executive branch career service employees may use these grievance procedures.
(a) Pursuant to Subsection 67-19-16-(6)
and Section 67-19a-301, the [
board] has no jurisdiction over grievance petitions filed
by probationary employees, public applicants, exempt employees,
noncareer service employees, public employees of the state's
political subdivisions, public employees covered by other grievance
systems, or employees of state institutions of higher
(2) Questionable Standing. Where a question or dispute exists whether an employee qualifies to use these grievance procedures, such controversies must be resolved through application of R137-1-17 by the administrator. The administrator's determination shall be final and subject to review only in the Utah Court of Appeals for formal adjudications and in the district court for informal adjudications according to Subsections 67-19a-301(2) and 67-19a-403(2), and Sections 63G-4-402 and 63G-4-403 of the UAPA.
(3) Class Action. Pursuant to Subsection
(7)(c)], class action grievances will not be admissible for
consideration by the [ board] under these grievance procedures.
(4) Group Grievance. A group grievance is
admissible provided that each aggrieved employee signs the
grievance, according to Subsections 67-19a-401([
7])(a) and (b).
R137-1-11. Issues Appealable to the Evidentiary/Step [
5 and Appellate/Step 6 Levels].
All grievances shall be reviewed [
for jurisdictional considerations ]to determine:
If the CSRB hearing officers and the board lack jurisdiction to hear matters which are not included within the scope of]Subsection[ s] 67-19a-202(1)(a)[ and 67-19a-302(1)], or
If issues or components of a grievance are deemed to be satisfactorily resolved they may not qualify to be advanced further under these grievance procedures according to Section R137-1-17(2), and the board may refuse to hear or take action.]
R137-1-12. Employees' Rights.
(1) Representation. The state does not provide legal counsel or representation to aggrieved employees nor pay the fees for an employee's representation. Also, Subsection 67-19a-406(4)(a) precludes the awarding of fees or costs to an employee's attorney or representative.
(2) Pro Se Status. A party or person to a grievance proceeding may be represented pro se. When a party or person is represented pro se, the party or person is entitled to request the issuance of subpoenas, directly examine and cross-examine witnesses, make opening and closing statements, submit documentary evidence, summarize testimony, and in all respects fully present one's own case.
(3) No Reprisal. Pursuant to Subsection 67-19a-303(3), no appointing authority, director, manager, or supervisor may take action to retaliate against a grievant, a representative, or a witness who participates in or is scheduled to participate in a grievance proceeding.
R137-1-13. Automatic Processing, Waiver, Excusable Neglect, Abandonment of Grievance, Default, Transfer and Stay.
(1) Automatic Processing. An agency's
failure to reply in writing to an aggrieved employee's
grievance within the prescribed time period automatically grants
the aggrieved employee the right to advance the grievance to the
next step of these grievance procedures listed in Section 14
(below). However, pursuant to Subsection 67-19a-401(2), the parties
may mutually agree to waive steps 2, 3[
or 4] or extend the statutory time period for those steps. Waivers of the statutory time periods by agency management and the aggrieved employee must be [ placed ]in writing[ and signed].
(2) Waiver. When the administrator finds that a grievance is one that an agency cannot resolve because of the nature of the grievance, the matter may be waived in writing to a higher level. Steps [
2, 3, or 4] may be waived, but not step[ s 5 or 6]. Any waiver agreed to between the parties must be in writing, dated[ , and signed by the parties or the parties'
representatives] according to
(3) Excusable Neglect. The standard of excusable neglect may be offered as a defense to lack of timeliness in processing a grievance or for not appearing at a scheduled proceeding.
(a) The administrator or appointed [
CSRB] hearing officer shall determine the applicability
of the excusable neglect standard [ on the basis of good cause].
(b) All questions are to be resolved at the original level of occurrence.
(4) Abandonment of Grievance. In the event the administrator determines that a grievance claim has been withdrawn, abandoned, or otherwise neglected beyond either the established time lines or a reasonable period, the matter no longer qualifies for further processing through these grievance procedures. When withdrawal is intended, it should be accomplished in writing.
(5) Default. An employee who defaults in processing a grievance forfeits further rights granted by these rules and under Section 63G-4-209 of the UAPA, which is incorporated by reference.
(6) Transfer. The administrator may administratively transfer a grievance case from the aggrieved employee's department to another, more appropriate department to respond as necessary to serve the ends of justice and fairness.
Stay. Upon written request, the administrator, the board, or
the CSRB hearing officer may grant a stay of a decision, order,
ruling, remedy, or proceeding, when based upon good
cause. (a) The administrator, the board, or the CSRB hearing
officer may grant a stay for a specific period of time or may
grant an indefinite stay of an evidentiary/step 5 or
appellate/step 6 proceeding.
(b) In considering a request for a stay of proceedings, the
administrator, the board, or the CSRB hearing officer may take into
consideration whether the request is unopposed or not. If the
request for a stay is unopposed, the request may be granted if
based upon good cause. If the request is opposed, the request shall
be considered on its merits and ruled upon accordingly.]
R137-1-14. Grievance Procedure Steps.
Persons acting on grievances pursuant to Section 667-19a-402, and in accordance with these rules, shall conduct their filings through the following steps, or levels, of increasing accountability:
Step 1; A verbal discussion shall be held with the immediate
supervisor. In this informal action, the employee is required to
fully describe the grievance for possible resolution. Step 2; A written form of the grievance shall be submitted
to the immediate supervisor. Thus distinguished from a verbal
gripe/complaint, it then becomes a formal complaint requiring a
written response. Steps 2, 3 and 4 require a written response
within time periods outlined in Section 67-19a-402, and are to be
conducted by only one supervisor, director, etc.
Step 3; A review of the grievance is to then be conducted by
the agency or division director;
Step 4; A review of the grievance is then conducted by the
department head, executive director, or commissioner (or the
Step 5; An evidentiary de novo hearing is conducted before
the CSRB hearing officer.
An appellate review is conducted before the CSRB board
The purpose for the above steps, or levels, is to curtail employees from having to submit their grievances to persons in agency management not specified in the above steps or levels. Only the above-listed persons (or their designated representatives) in agency management are authorized to respond to state employees' grievances.
R137-1-15. Procedure for [
Disciplinary Action Imposed by Department Head.
(1) An aggrieved employee who has been [
issued a written reprimand, suspension] without pay, [ demotion, or dismissal, imposed] by [ the] respective department head (i.e., executive
director or commissioner) may appeal [ that] action directly to the [ evidentiary/step 5 level].
(a) An appeal from discipline is distinguishable from a grievance.
(b) A grievance is filed at [
steps 1 and 2, and proceeds through steps 3 and 4].
(c) When an appeal from discipline imposed
by a department head [
(or designated representative)] occurs at the step [ 4] level, it may be appealed directly to the [ CSRB] at the evidentiary/step [ 5] level.
(2) When appealed to the [
CSRB Office], the appeal must be filed within 20 working days
from the date an aggrieved employee receives written notification
from the department head who imposed the disciplinary action.
R137-1-16. Procedure for [
Reduction in Force
An aggrieved employee may appeal [
from ]a reduction in force
according to the
(1) Upon receiving the department
head's final, written decision, the employee may appeal from a
reduction in force by filing a written appeal within 20 working
with the [
A jurisdictional hearing is a formal adjudication conducted
according to Subsection 67-19a-403(2)(b)(i) with Section 63G-4-206
of the UAPA incorporated by reference. An administrative review of
the file is an informal adjudication according to Subsection
67-19a-403(2)(b)(ii) with Section 63G-4-202 of the UAPA
incorporated by reference.]
(1) Procedural Issues. The administrator
determine] the following: timeliness,[ standing, ]direct harm, jurisdiction,
[ and] eligibility of the issues to be advanced, and any
other procedural matters or jurisdictional controversies according
to Sections 67-19a-403 and 67-19a-404.
(2) Determination. The administrator [
shall] determine which types of grievances may
be heard at the evidentiary/step [ 5] level. Those types of grievances found to have been
resolved at a lower level or those that do not qualify for
advancement to the evidentiary/step [ 5] level are precluded from further consideration in any
grievance submitted for [ CSRB] consideration.
(3) Preclusion. Those types of actions not
listed in Subsection[
s] 67-19a-202(1)(a) and
67-19a-302(1) are precluded
from advancement to the evidentiary/step [ 5] level. When the grievance is precluded from the
evidentiary/step [ 5] level, the matter under dispute shall be deemed as
final at the level of the department head/step [ 4 written reply] according to Subsection 67-19a-302(2).
(4) Reconsideration. A written request for
reconsideration may be filed with the administrator. It must be
filed within 20 days from the date [
that a jurisdictional hearing decision or an administrative
review of the file decision is issued with]
Section 63G-4-302 of the UAPA incorporated by reference. The
written reconsideration request must contain specific reasons why a
reconsideration is warranted with respect to the factual findings
and legal conclusions of the [ jurisdictional ]hearing decision or administrative
review of the file decision. New or additional evidence may not be
(5) Judicial Review.
(a) The aggrieved employee or the
responding agency may appeal the administrator's [
formal] adjudicative [ jurisdictional ]hearing decision and final agency action
to the Utah Court of Appeals within 30 calendar days from the date
of issuance according to Subsection 63G-4-401(3)(a) and Section
63G-4-403 of the UAPA which are incorporated by reference.
(b) The aggrieved employee or the responding agency may appeal the administrator's informal adjudicative decision and final agency action of an administrative review of the file to the district court according to Sections 63G-4-402 and 63G-4-404 of the UAPA which are incorporated by reference.
(6) Summary Judgment. The administrator may, pursuant to an administrative review of the procedural facts and circumstances of a grievance case, summarily dispose of a case on the ground that:
(a) the matter is untimely;
(b) the grievant has failed to appear at the properly scheduled date, time, and place pursuant to written notice;
(c) the grievant lacks standing;
(d) the grievant has withdrawn or otherwise abandoned the grievance;
(e) the grievant has not been directly harmed;
(f) the issue grieved does not qualify to
be advanced beyond step [
(g) the requested remedy or relief exceeds the scope of these grievance procedures.
(7) Transcription and Transcript Fees. If
a party appeals [
a jurisdictional] hearing
decision to the Utah Court of Appeals or to the district court, the
appealing party is responsible for paying all transcription costs
and any transcript fees. The [ CSRB] does not participate in the payment of these fees
when appeals are taken to the appellate or trial court. See Utah
Rules of Appellate Procedure, Rule 11, and Section 63G-4-403(3),
regarding transcript costs from formal adjudications under the
R137-1-18. Procedural Matters.
The provisions under this section pertain
jurisdictional] and evidentiary/step [ 5] proceedings [ of] the [ CSRB][ , but not to appellate/step 6 proceedings unless specifically
(1) Purpose. A formal adjudicative
proceeding provides a fair and impartial opportunity for the
parties to be heard and to present their evidence. The adjudicative
process allows the [
CSRB] administrator or the [ CSRB] hearing officer to be completely informed about the
case. After having considered the parties' evidence, the [ CSRB] administrator or the [ CSRB] hearing officer may then render a proper
determination based upon all of the facts, circumstances, and
applicable laws, rules and policies.
(2) Types of Adjudications. For purposes of Section 63G-4-202 of the UAPA:
(a) All [
CSRB jurisdictional, evidentiary/step 5 and appellate/step 6
adjudications] are formal adjudicative proceedings. Sections
63G-4-205 through 63G-4-209, 63G-4-401 and 63G-4-403 through
63G-4-405 of the UAPA are incorporated by reference within this
rule and are applicable to these adjudicative proceedings.
(b) An administrative review of the file
pursuant to Subsection 67-19a-403(2)[
(b)(ii)] is an informal adjudicative proceeding with
Sections 63G-4-203, 63G-4-402, and 63G-4-404 of the UAPA
incorporated by reference.
(3) Rules of Evidence/Procedure Inapplicable. The technical rules of evidence and the formal rules of civil procedure as observed in the courts of law are inapplicable to grievance procedure proceedings, except for the rules of privilege as recognized by law and those specific references to the rules of evidence and procedure as set forth in the UAPA.
(4) Expelling. The [
CSRB] hearing officer may clear the proceeding
of witnesses not under examination and may exclude any unruly or
(5) Presentation of Case. Each party's
representative is given the opportunity to make an opening
statement. At the appropriate time, each party's representative
is given the opportunity to present evidence. After each
party's representative has presented its respective case, the
moving party, followed by the responding party, may offer a closing
statement]. The moving party may offer one rebuttal.
Continuous rebuttal is not permissible.
(a) When an objection is made as to the
admissibility of evidence, the [
CSRB] hearing officer shall note the objection
for the record. A ruling is then made by the [ CSRB] hearing officer, or the objection may be
taken under advisement to be ruled upon later.
(b) The [
CSRB] hearing officer has discretion to exclude
inadmissible evidence and to order that cumulative or repetitive
evidence be discontinued.
(c) A party objecting to the introduction of evidence must state the precise grounds of the objection at the time such evidence is offered.
(7) Marking Exhibits. All exhibits shall be numerically marked and labeled in the order received into evidence, unless previously marked and labeled.
(8) Motion to Dismiss. The
CSRB] hearing officer may, upon a party's motion or
upon [ the CSRB hearing officer's] own motion, dismiss the grievance or appeal [ with due regard for the standard of excusable neglect
according to R137-1-13(3)].
(9) Consolidation of Grievances. Grievances of the same or of a sufficiently similar context may be consolidated by the administrator for purposes of conducting a single or joint hearing.
(10) Standard of Proof. In all [
CSRB] adjudicative proceedings, the standard of proof is
the substantial evidence standard according to Subsection
(11) Hearsay Evidence. Hearsay evidence is
admissible in [
CSRB] formal adjudicative proceedings as qualified by
Subsection 63G-4-208(3) of the UAPA which is incorporated by
(12) Discovery. The following rule
provisions satisfy [
Subs]ection 63G-4-205[ (1)]of the UAPA on discovery.
(a) Discovery shall be limited to that which is relevant and nonprivileged, and for which each party has a substantial, demonstrable need for supporting their respective claims or defenses.
(b) At the discretion and approval of the
CSRB] hearing officer, parties to a dispute may obtain
discovery. The [ CSRB] hearing officer has discretion to entertain motions
to conduct discovery on a case-by-case basis regarding the
(i) production of witnesses; (ii) production of documents, records and things;
(iii) issuance of subpoenas which are issued pursuant to
R137-1-6 and R137-1-8;
(iv) the taking of interrogatories;
(v) the taking of depositions, when a proposed witness is
not available for giving testimony at a scheduled hearing and
when a witness's testimony appears reasonably calculated to
lead to the discovery of admissible evidence;
(vi) requests for admissions; and
(vii) physical and mental examinations.]
(c)] Witness lists and copies of exhibits shall be
offered by each party to the opposing party and to the [ appointed CSRB] hearing officer during a
prehearing/scheduling conference, unless the exchange is scheduled
for a later date.
(i) Each party's list of witnesses shall contain a brief statement describing the nature of the proposed testimony to be offered by each witness.
(ii) A party may not surprise the opposing party with a witness or an exhibit at the hearing which was not made known at the prehearing/scheduling conference, or by a scheduled exchange date, unless the witness or exhibit is in direct rebuttal to admitted opposing evidence. Also refer to R137-1-7(1)(c).
(13) Page Limitation.
(a) Written motions, pleadings, briefs,
and memoranda for all [
CSRB] proceedings may not exceed 20 typed, double-spaced
8-1/2 x 11 inch pages, exclusive of any statement of facts. Reply
briefs may not exceed ten pages.
(b) An application for an exception to the
above-stated page limitation provisions must be timely filed in
writing, and not more than ten double-spaced 8-1/2 x 11 inch pages
in a 12-point font. The applicant party has the burden to offer
sufficient justification for requests more than 20 and 10 pages
respectively to the [
CSRB] for the granting of any exceptions to the page
(c) The [
CSRB] may weigh all requests to exceed the page
limitation provision based upon the reasonableness and necessity of
such requests in light of each case and its circumstances. The
board does not automatically grant exceptions simply on the basis
of a request.
(1) Availability of State Employees to
Testify. An agency shall be responsible for making available any of
its employees who are [
requested] to testify in a hearing.
(a) Off Duty Employees. Agencies are not responsible for making available an employee who is: off duty; on sick, annual or other approved leave; or who, for any other reason, is not at work during the time the hearing is in progress.
(b) Nondisruption. The parties and their
representatives, the administrator and the [
CSRB] hearing officer shall make every effort to avoid
disruption to the operation of state government in the calling of
state employees to testify in hearings under these grievance
(c) Witness Failure. If a requested witness does not appear at the scheduled hearing, the witness's failure to appear may not necessitate the postponement of any proceedings.
(d) Excessive Witnesses. If the number of
witnesses requested by a party is excessive, the administrator or
CSRB] hearing officer may require the party to justify
the request or face denial of part or all of the request.
(e) Witness Fees and Mileage Fees. A
witness fee and a mileage fee are available to nonstate employees
and to state employees who use nonworking hours if their presence
is required in a grievance proceeding as a witness according to
Section 78B-1-119. The [
CSRB] reserves the right to determine on an individual
case basis whether it will authorize a travel fee, and to what
extent, for an out-of-state witness called by a party.
(2) Hostile Witnesses. When the [
CSRB] hearing officer determines that a witness
is uncooperative or even hostile, the witness may be examined by
the party calling that witness as if under cross-examination. The
party calling the witness may, upon showing that the witness was
called in good faith but that the testimony is a surprise, proceed
to impeach the witness by proof of prior inconsistent
(3) Exclusion/Sequestering of Witnesses.
(a) The [
CSRB] hearing officer may sequester witnesses
from the hearing until they are called to testify.
(b) Witnesses not presently testifying may be sequestered on motion by one or both parties.
(c) The [
CSRB] hearing officer will counsel the
witnesses not to discuss the case with those witnesses who have not
(4) Management Representative. Prior to
every hearing the [
agency's representative] may designate a person to serve as the
agency's management representative. The agency's management
representative is entitled to remain throughout the hearing to
represent the agency at any proceeding even if called to testify.
Neither the grievant nor the management representative may be
excluded from the hearing.
R137-1-20. Public Hearings.
CSRB] hearing is open to the public unless there are
reasonable grounds to justify an executive session for either part
or all of a hearing. This provision does not apply to witnesses who
are being called to testify according to R137-1-19.
(1) Closing Hearings. All grievance procedure hearings shall be open to the public except as follows:
(a) The administrator[
, the board,] or the [ CSRB] hearing officer may close either a portion or an
entire hearing based upon [ a compelling reason].
(b) An evidentiary/step [
5] hearing may be closed in part or in its entirety when
the proceeding involves discussion about a state employee's
character, professional competence, or physical or mental health
according to Subsection 52-4-205(1)(a) of the Open and Public
(2) Sealing Evidence. The administrator[
, the board,] or the [ CSRB] hearing officer may seal the record when
appropriate according to Subsection 67-19a-406(4)(c)[
(3) Media Presence. All hearings at the
,] evidentiary/step [ 5][ and appellate/step 6 levels] are open to the media,
unless closed pursuant to R137-1-20(1) above. However, television
cameras are not permitted at the evidentiary/step [ 5] proceeding.
(4) Distribution of Decisions.
T]he administrator may provide copies of legal decisions,
orders, and rulings to the public upon request. Portions of or
entire legal decisions and orders may be withheld if deemed to be
legally privileged or protected under the state's Government
Records Access and Management Act (GRAMA), or if the record is
sealed according to [ Subsection 67-19a-408(5)].
R137-1-21. The Evidentiary/Step [
(1) Authority of the [
CSRB] Hearing Officer/Presiding Officer. The [ CSRB] hearing officer/presiding officer is authorized
(a) serve as the presiding officer at
5] hearings as set forth at Subsection 63G-4-103(1)(h)(i)
of the UAPA;
(b) maintain order, ensure the development of a clear and complete record, rule upon offers of proof, receive relevant evidence, and assign the burden of proof according to Subsection 67-19a-406(2);
(c) set reasonable limits on repetitive and cumulative testimony and sequester any witness whose later testimony might be colored by the testimony of another witness or any person whose presence might have a chilling effect on another testifying witness;
(d) rule on motions, exhibit lists, witness lists and proposed findings;
(e) require the filing of memoranda of law and the presentation of oral argument with respect to any question of law;
(f) compel testimony and order the production of evidence and the appearance of witnesses;
(g) admit evidence that has reasonable and probative value; and
(h) reopen the evidentiary record.
(2) Conduct of Hearings. A hearing shall be confined to those issues related to the subject matter presented in the original grievance statement.
(a) An evidentiary proceeding may not be allowed to develop into a general inquiry into the policies and operations of an agency.
(b) An evidentiary proceeding is intended solely to receive evidence that either refutes or substantiates specific claims or charges. A proceeding may not be used as an occasion for irresponsible accusations, general attacks upon the character or conduct of the employing agency, agency management, or other employees. A hearing may not be used as a forum for making derogatory assertions having no bearing on the claims or specific matters under review.
(3) Evidentiary/Step [
5] Hearing. An evidentiary/step [ 5] hearing shall be a [ new ]hearing [ for] the record according to Subsections 67-19a-406(1) and
(2), held de novo, with both parties being granted full
administrative process as follows:
(a) The [
CSRB] hearing officer shall first make factual findings
based solely on the evidence presented at the hearing without
deference to any prior factual findings of the agency. The [ CSRB] hearing officer shall then determine whether:
(i) the factual findings made from the
5] hearing support with substantial evidence the
allegations made by the agency or the appointing authority, and
(ii) the agency has correctly applied relevant policies, rules, and statutes.
(b) When the [
CSRB] hearing officer determines in accordance with the
procedures set forth above that the evidentiary/step [ 5] factual findings support the allegations of the agency
or the appointing authority, then the [ CSRB] hearing officer must determine whether the
agency's decision, including any disciplinary sanctions
imposed, is excessive, disproportionate or otherwise constitutes an
abuse of discretion. In making this latter determination, the [ CSRB] hearing officer shall give deference to the
decision of the agency or the appointing authority[
agency's penalty is [ determined to be ]excessive, disproportionate or
constitutes an abuse of discretion[
in which instance the CSRB] hearing officer shall determine the
(4) Discretion. Upon commencement, the [
CSRB] hearing officer shall announce that the hearing is
convened and is being held on the record. The [ CSRB] hearing officer shall note appearances for the
record and [ shall determine which party has] the burden of moving forward
(5) Closing the Record. After all
testimony, documentary evidence, and arguments have been presented,
CSRB] hearing officer shall close the record and
terminate the proceeding, unless one or both parties agree to
submit a posthearing brief or memoranda of law within a specified
(6) Posthearing Briefs. When posthearing
briefs or memoranda of law are scheduled to be submitted, the
record shall remain open until the briefs or memoranda are
exchanged and received by the [
CSRB] hearing officer and incorporated into the record,
or until the time to receive these submissions has expired. After
receipt of posthearing documents, or upon the expiration of the
time to receive posthearing documents, the case is then taken under
advisement, and the [ tolling ]period commences for the issuance of the
(7) Findings of Fact, Conclusions of Law.
Notwithstanding R137-1-21(1)(h) above, following the closing of the
record, the [
CSRB] hearing officer shall write a decision containing
findings of fact and conclusions of law according to Section
67-19a-406 and Section 63G-4-208 of the UAPA, which is incorporated
by reference. When the [ CSRB] hearing officer's decision and order is filed
with the administrator it then becomes the decision and order of
the evidentiary/step [ 5] hearing.
(8) Distribution of Decisions. The
administrator shall distribute copies of the evidentiary/step [
5] decision and order to the persons, parties and
representatives of record.
(9) Past Work Record. In those proceedings where a disciplinary penalty is at issue, the past employment record of the employee is relevant for purposes of either mitigating or sustaining the penalty when substantial evidence supports an agency's allegations.
(10) Compliance and Enforcement. State
agencies, department heads, division directors and officials are
expected to comply with decisions and orders issued by the [
CSRB] hearing officer[ , unless an appeal is taken to the appellate/step 6
level]. Enforcement measures available to the [ CSRB] include:
(a) petitioning the governor, who may remove his appointed state officers with or without cause, and with respect to those who can only be removed for cause, refusal to obey a lawful order may constitute sufficient cause for removal;
(b) a mandamus order to compel the official to obey the order;
(c) the charge of a Class A misdemeanor according to Section 67-19-29; and
(d) seeking enforcement of a legal decision, order or ruling through civil enforcement in the district court according to Subsection 63G-4-501(1) of the UAPA which is incorporated by reference.
(11) Rehearings. Rehearings are not permitted.
(a) Section 63G-4-302 of the UAPA is
incorporated by reference within this rule, and requests for
reconsideration of an evidentiary/step [
5] decision will be conducted in accordance with that
section, except for the time period which is stated below.
(b) The written reconsideration request
must contain specific reasons why a reconsideration is warranted
with respect to the factual findings and legal conclusions of the
5] decision. The same [ CSRB] hearing officer shall decide the propriety of a
reconsideration. A request for reconsideration is filed with the
administrator. To be timely the written request for reconsideration
shall be filed within ten working days upon receipt of the
evidentiary/step 5 decision according to the time period at
Subsection 67-19a-407(1)(a)(i), not Section 63G-4-302.
(c) An appeal to the appellate/step 6 level from a CSRB
hearing officer's reconsideration decision and order must be
filed within ten working days upon receipt of the reconsideration
or within ten working days after expiration of the time for receipt
of the reconsideration, whichever is first.
R137-1-22. The Board's Appellate/Step 6
Procedures. (1) Transcript Production. The party appealing the CSRB
hearing officer's evidentiary/step 5 decision to the board at
the appellate/step 6 level shall order transcription of the
evidentiary/step 5 hearing from the court reporting firm within
ten working days upon receipt of acknowledgment of the appeal
from the administrator.
(a) Appellants shall be responsible for all transcription
production costs. The CSRB Office receives the transcript
original; the appellant receives a transcript copy.
(b) The respondent may inquire of the CSRB Office about
obtaining a transcript copy, or may directly purchase a copy from
the court reporting firm.
(2) Briefs. An appeal hearing before the board at step 6 is
based upon the evidentiary record previously established by the
CSRB hearing officer during the evidentiary/step 5 hearing. No
additional or new evidence is permitted unless compelled by the
(a) The appellant in an appellate/step 6 proceeding must
obtain the transcript of the evidentiary/step 5 hearing. After
receipt of the transcript, the appellant has 30 calendar days to
file an original and six copies of a brief with the
administrator. Additionally, the respondent must be provided with
a copy of the appellant's brief.
(b) After receiving a copy of the appellant's brief, the
respondent then has 30 calendar days to file an original and six
copies of a brief with the administrator. The appellant may file
an original and six copies of a reply brief which addresses the
(c) After receiving both parties' briefs, the
administrator distributes the briefs and the CSRB hearing
officer's evidentiary/step 5 decision to the board
(d) Each party is responsible for filing its original and
six copies with the CSRB Office and for exchanging a copy with
the opposing party.
(e) Briefs shall be date-stamped upon their receipt in the
(f) The time frame for receiving briefs shall be modified or
waived only for good cause as determined by the CSRB chair or
vice-chair, or the administrator.
(3) Rules of Procedure. The following rules are applicable
to appeal hearings before the board at the appellate/step 6
(a) Dismissal of Appeal. Upon a motion by either party or
upon its own motion, the board may dismiss any appeal prior to
holding a formal appeal hearing if the appeal is clearly moot,
without merit, improperly filed, untimely filed, or outside the
scope of the board's authority.
(b) Notice. The board shall distribute written notice of the
date, time, place, and issues for hearing to the aggrieved
employee, to the employee's counsel or representative, to the
appropriate agency official, to the agency's counsel or
representative, and to the agency's management
representative, at least five working days before the date set
for the hearing.
(c) Compelling Evidence. The board may compel evidence in
the conduct of its appeal hearings, according to Subsection
(d) Oral Argument/Time Limitation. The board grants up to 20
to 25 minutes to each party for oral argument. The board may
grant additional time when deemed appropriate.
(e) Oral Argument Set Aside. If the board determines that
oral argument is unnecessary, the parties shall be notified.
However, the parties' representatives may be expected to
appear before the board at the date, time, and place noticed to
answer any questions raised by the board members.
(f) Argument or Memoranda. The board may require the parties
to offer oral argument or submit written memoranda of law.
(4) The Board's Standards of Review. The board's
standards of review based upon the following criteria:
(a) The board shall first make a determination of whether
the factual findings of the CSRB hearing officer are reasonable
and rational according to the substantial evidence standard. When
the board determines that the factual findings of the CSRB
hearing officer are not reasonable and rational based on the
evidentiary/step 5 record as a whole, then the board may, in its
discretion, correct the factual findings, and also make new or
additional factual findings.
(b) Once the board has either determined that the factual
findings of the CSRB hearing officer are reasonable and rational
or has corrected the factual findings based upon the
evidentiary/step 5 record as a whole, the board must then
determine whether the CSRB hearing officer has correctly applied
the relevant policies, rules, and statutes according to the
correctness standard, with no deference being granted to the
evidentiary/step 5 decision of the CSRB hearing officer.
(c) Finally, the board must determine whether the decision
of the CSRB hearing officer, including the totality of the
sanctions imposed by the agency, is reasonable and rational based
upon the ultimate factual findings and correct application of
relevant policies, rules, and statutes determined according to
the above provisions.
(5) Appeal Hearing Record. The proceeding before the board
shall be recorded by a certified court reporter, or in
exceptional circumstances by a recording machine.
(6) Appellate Review. Upon a party's application for
review of the CSRB hearing officer's evidentiary/step 5
decision, the board's appellate/step 6 decision is based upon
a review of the record, including briefs and oral arguments
presented at step 6, and no further evidentiary hearing will be
held unless otherwise ordered by the board. Section 63G-4-208 of
the UAPA is incorporated by reference.
(7) Remand. Until the board's decision is final, the
board may remand the case to the original CSRB hearing officer to
take additional evidence or to resolve any further evidentiary
issues of fact or law with instructions or may make any other
appropriate disposition of the appeal.
(8) Distribution of Appellate Decisions. The board's
decision and order is issued on the date that it is signed and
dated by the CSRB chair, vice-chair or another board member.
After the board's appellate/step 6 decision is issued, it is
distributed according to R137-1-8(3).
(a) The board's appellate decision shall be distributed
to the aggrieved employee, the employee's counsel or
representative, the appropriate agency official, the agency's
counsel or representative, and to the agency's management
representative. The board's appellate decision shall be final
in terms of administrative review under these grievance
procedures. The board may, at its discretion, release to the
parties its determination orally prior to issuance of its
official written decision.
(b) The board's appellate decision is binding on the
agency that is a party to the appeal unless its decision and
ruling is overturned, vacated, or modified resulting from an
appeal to the Utah Court of Appeals.
(c) The board may affirm, reverse, adopt, modify,
supplement, amend, or vacate the CSRB hearing officer's
decision, either in whole or in part.
(9) Rehearings. The board does not permit rehearings.
(a) Reconsideration requests of the board's
appellate/step 6 decisions will be conducted pursuant to the
provisions of Section 63G-4-302.
(b) Any request for reconsideration of a previously issued
decision by the board is subject to the following
(i) Reconsideration requests must contain specific reasons
why a reconsideration is warranted with respect to the
board's factual findings and legal conclusions.
(ii) The board has discretion to decide whether it may
reconsider any previously adjudicated matter.
(iii) The board only grants a reconsideration if appropriate
justification is offered.
(iv) When the board agrees to the petitioner's request,
the board's reconsideration response is in writing, with no
further hearing or proceeding on the record, unless the board
reopens the record or remands the case to the evidentiary/step 5
(v) Any appeal from a board-issued reconsideration to the
Utah Court of Appeals must be filed according to Section
63G-4-401(3)(a)of the UAPA.
(11) An Appeal to the Utah Court of Appeals.
To appeal to the Utah Court of Appeals, a party must file
with the court within 30 calendar days from the date of issuance
of the board's decision and final agency action according to
Sections 63G-4-401 and 63G-4-403 of the UAPA, which are
incorporated by reference. The dates of mailing, postmarking and
receipt are not applicable to filing with the court.
(12) Transcript Fee. The party petitioning the Utah Court of
Appeals for a review must bear all costs of transcript production
for the appellate/step 6 proceeding. The CSRB Office may not share
any cost for a transcript or transcription of the appeal hearing.
The petitioning party should provide a copy of the appeal
hearing's transcript to the responding party when an
appellate/step 6 proceeding is transcribed.]
. Declaratory Orders.
This rule provides a procedure for the
submission and review of requests for and disposition of
declaratory rulings pertaining to the applicability of statutes,
administrative rules, and orders either governing or issued by the
board] or a [ CSRB] hearing officer. Section 63G-4-503 of the UAPA is
incorporated by reference.
(1) Applicability. The applicability of a declaratory order refers to the determination of whether a statute, rule, or order should be applied, and if so, how the law should be applied to the facts.
(2) Petition Procedure. Any person or agency with proper standing may petition for a declaratory ruling.
(a) The petition must be addressed and
delivered to the [
CSRB Office or the administrator].
(b) The petition shall be date-stamped
upon receipt in the [
(3) Petition Form. The petition shall:
(a) be clearly designated as a request for a declaratory order;
(b) identify the statute, rule, decision or order to be reviewed;
(c) describe the circumstances in which applicability is to be reviewed;
(d) describe the reason or need for the applicability review;
(e) include an address and telephone number where the petitioner can be reached during regular work days; and
(f) be signed by the petitioner.
(4) Petition Review and Disposition. As
appropriate the administrator[
or the board]:
(a) shall review and consider the petition;
(b) shall prepare a declaratory ruling, stating:
(i) the applicability or nonapplicability of the statute, rule, or order at issue;
(ii) the reasons for the applicability or nonapplicability of the statute, rule, decision or order; and
(iii) any requirements imposed on a petitioning person or agency, or any other person according to the ruling; and
(i) interview the petitioner or the agency representative;
(ii) hold a public hearing on the petition;
(iii) consult with legal counsel or the Attorney General; or
(iv) take any action that the [
board, in its judgment,] deems necessary to provide the petition
with an adequate review and due consideration.
(5) Time Period and Issuance. The [
board or the ]administrator shall prepare the
declaratory ruling without unnecessary delay. The [ board] shall issue a copy of the ruling to the petitioner
by depositing it with the U.S. Postal Service, postage prepaid, or
by depositing it with State Mail
Services, by faxing it or E-mailing it,
as appropriate. In the event of a necessary delay, the [ board] must issue a notice of progress to the petitioner
within 30 days of receipt of the petition.
(6) Records. The [
CSRB Office] shall retain the petition and the original of the
declaratory ruling in its records.
(7) Statutory Construction. Questions requiring the construction of statutory provisions may be submitted to the Attorney General for a formal or informal letter opinion.
(8) Refusal. The [
board or the ]administrator may refuse to issue a
declaratory order if the question in issue is one that is being
contested in a case currently before the [ board].
KEY: grievance procedures
Date of Enactment or Last Substantive Amendment: [
May 6, 2009]
Notice of Continuation: August 4, 2006
Authorizing, and Implemented or Interpreted Law: 34A-5-106; 67-19-30; 67-19-31; 67-19-32; 67-19a et seq.; 63G-4 et seq.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2010/b20100515.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Robert Thompson at the above address, by phone at 801-538-3047, by FAX at 801-538-3139, or by Internet E-mail at firstname.lastname@example.org.