File No. 33610
This rule was published in the May 15, 2010, issue (Vol. 2010, No. 10) of the Utah State Bulletin.
Human Resource Management, Administration
Notice of Proposed Rule
DAR File No.: 33610
Filed: 04/30/2010 12:15:57 AM
Purpose of the rule or reason for the change:
Language is added to add more detail and clarification to causes for discipline and to establish the requirement for the Department of Human Resource Management (DHRM) to consult with the Attorney General's Office before imposing discipline, in accordance with provisions in H.B. 140 (2010 General Session). (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:
In Subsection R477-11-1(1), language is added to add more detail and clarification to causes for discipline. Subsection R477-11-1(2) is added requiring DHRM to consult with the Attorney General's Office before imposing grievable discipline.
State statutory or constitutional authorization for this rule:
- Section 67-19-6
- Section 67-19-18
- Section 63G-2-3
Anticipated cost or savings to:
the state budget:
These changes are administrative and do not directly impact state budgets.
This rule only affects the executive branch of state government and will have no impact on local governments.
This rule only affects the executive branch of state government and will have no impact on small businesses.
persons other than small businesses, businesses, or local governmental entities:
This rule only affects the executive branch of state government and will have no impact on other persons.
Compliance costs for affected persons:
This rule only affects agencies of the executive branch of state government.
Comments by the department head on the fiscal impact the rule may have on businesses:
Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. This act limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or savings on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business.
Jeff Herring, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Human Resource Management
450 N MAIN ST
SALT LAKE CITY, UT 84114-1201
Direct questions regarding this rule to:
- J.J. Acker at the above address, by phone at 801-537-9096, by FAX at 801-538-3081, 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:
Jeff Herring, Executive Director
R477. Human Resource Management, Administration.
R477-11-1. Disciplinary Action.
(1) Agency management may discipline any employee for any of the following causes or reasons:
(a) noncompliance with these rules, agency or other applicable policies, including but not limited to safety policies, agency professional standards, standards of conduct and workplace policies;
(b) work performance that is inefficient or incompetent;
(c) failure to maintain skills and adequate performance levels;
(d) insubordination or disloyalty to the orders of a superior;
(e) misfeasance, malfeasance,
or failure to advance the good of the public
(f) any incident involving intimidation, physical harm, or threats of physical harm against co-workers, management, or the public;
(g) no longer meets the requirements of
2]) All disciplinary actions of career service employees
shall be governed by principles of due process and Title 67,
Chapter 19a. The disciplinary process shall include all of the
following, except as provided under Subsection 67-19-18(4):
(a) The agency representative notifies the employee in writing of the proposed discipline and the underlying reasons supporting the intended action.
(b) The employee's reply [
must] be received within five working days in order to
have the agency representative consider the reply before discipline
(c) If an employee waives the right to respond or does not reply within the time frame established by the agency representative or within five days, whichever is longer, discipline may be imposed in accordance with these rules.
3]) After a career service employee has been informed of
the reasons for the proposed discipline and has been given an
opportunity to respond and be responded to, the agency
representative may discipline that employee, or any career service
exempt employee not subject to the same procedural rights, by
imposing one or more of the following:
(a) written reprimand;
(b) suspension without pay up to 30 calendar days per incident requiring discipline;
(c) demotion of any employee through one of the following actions:
(i) An employee may be moved from a position in one job to a position in another job having a lower maximum salary range and shall receive a reduction in the current actual wage.
(ii) An employee's current actual wage may be lowered within the current salary range, as determined by the agency head or designee.
An agency head shall dismiss or demote a career service employee only in accordance with Subsection 67-19-18(5) and Section R477-11-2.
4]) If agency management determines that a career service
employee endangers or threatens the peace and safety of others or
poses a grave threat to the public service or is charged with
aggravated or repeated misconduct, the agency may impose the
following actions, under Subsection 67-19-18(4), pending an
investigation and determination of facts:
(a) paid administrative leave; or
(b) temporary reassignment to another position or work location at the same current actual wage.
5]) At the time disciplinary action is imposed, the
employee shall be notified in writing of the discipline, the
reasons for the discipline, the effective date and length of the
6]) Disciplinary actions are subject to the grievance and
appeals procedure by law for career service employees only. The
employee and the agency representative may agree in writing to
waive or extend any grievance step, or the time limits specified
for any grievance step.
R477-11-2. Dismissal or Demotion.
An employee may be dismissed or demoted for cause under Subsection R477-10-2(3)(e) and Section R477-11-1, and through the process outlined in this rule.
(1) An agency head or appointing officer may dismiss or demote a probationary employee or career service exempt employee without right of appeal. Such dismissal or demotion may be for any reason or for no reason.
(2) No career service employee shall be dismissed or demoted from a career service position unless the agency head or designee has observed the Grievance Procedure Rules and law cited in Section R137-1-13 and Title 67, Chapter 19a, and the following procedures:
(a) The agency head or designee shall notify the employee in writing of the specific reasons for the proposed dismissal or demotion.
(b) The employee shall have up to five
working days to reply. The employee [
must] reply within five working days for the agency head
or designee to consider the reply before discipline is imposed.
(c) The employee shall have an opportunity to be heard by the agency head or designee. The hearing before the agency head or designee shall be strictly limited to the specific reasons raised in the notice of intent to demote or dismiss.
(i) At the hearing the employee may present, either in person, in writing, or with a representative, comments or reasons as to why the proposed disciplinary action should not be taken. The agency head or designee is not required to receive or allow other witnesses on behalf of the employee.
(ii) The employee may present documents, affidavits or other written materials at the hearing. However, the employee is not entitled to present or discover documents within the possession or control of the department or agency that are private, protected or controlled under Section 63G-2-3.
(d) Following the hearing, the employee may be dismissed or demoted if the agency head finds adequate cause or reason.
(e) The employee shall be notified in writing of the agency head's decision. Specific reasons shall be provided if the decision is a demotion or dismissal.
(3) Agency management may place an employee on paid administrative leave pending the administrative appeal to the agency head.
R477-11-3. Discretionary Factors.
(1) When deciding the specific type and severity of discipline, the agency head or representative may consider the following factors:
(a) consistent application of rules and standards;
(i) the agency head or representative need only consider those cases decided under the administration of the current agency head. Decisions in cases prior to the administration of the current agency head are not binding upon the current agency head and are not relevant in determining consistent application of rules and standards.
(ii) In determining consistent application of rules and standards, the disciplinary actions imposed by one agency may not be binding upon any other agency and may not be used for comparison purposes in hearings wherein the consistent application of rules and standards is at issue.
(b) prior knowledge of rules and standards;
(c) the severity of the infraction;
(d) the repeated nature of violations;
(e) prior disciplinary/corrective actions;
(f) previous oral warnings, written warnings and discussions;
(g) the employee's past work record;
(h) the effect on agency operations;
(i) the potential of the violations for causing damage to persons or property.
KEY: discipline of employees, dismissal of employees, grievances, government hearings
Date of Enactment or Last Substantive Amendment: [
July 1, 2009]
Notice of Continuation: June 9, 2007
Authorizing, and Implemented or Interpreted Law: 67-19-6; 67-19-18; 63G-2-3
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.
Text to be deleted is struck through and surrounded by brackets (e.g., [
example]). Text to be added is underlined (e.g., ). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
For questions regarding the content or application of this rule, please contact J.J. Acker at the above address, by phone at 801-537-9096, by FAX at 801-538-3081, or by Internet E-mail at firstname.lastname@example.org.