Oklahoma Personnel Act
§74-840-6 through §74-840-6.9
Unofficial Compilation as of January 1, 2011
§74-840.6. Renumbered as § 840-1.6 of this title by Laws 1994, c. 242, § 54.
§74-840-6.1. Alternative Dispute Resolution Program.
A. The Oklahoma Merit Protection Commission shall establish and maintain a mandatory Alternative Dispute Resolution Program and shall adopt and promulgate such rules as may be necessary for the implementation and management of the program.
B. A purpose of the Alternative Dispute Resolution Program is to provide an economical means and access to effective alternative dispute resolution services to all state agencies and employees.
C. The Oklahoma Merit Protection Commission may require employees and agencies to utilize the Alternative Dispute Resolution Program to resolve disputes brought before the Commission pursuant to Sections 841.13 and 841.15 of Title 74 of the Oklahoma Statutes.
D. Alternative dispute resolution programs established and utilized by the Commission are not subject to Article II of the Administrative Procedures Act. The decision in such cases may be appealed by any party to the Oklahoma Merit Protection Commission and thereafter to district court.
Added by Laws 1992, c. 367, § 7, eff. July 1, 1992. Amended by Laws 1994, c. 242, § 36. Renumbered from § 841.13C of this title by Laws 1994, c. 242, § 54.
§74-840-6.2. Grievance procedure.
A. The Oklahoma Merit Protection Commission shall establish standard internal agency grievance resolution procedures for classified state employees. The procedures shall encourage prompt and equitable resolution of grievances at the lowest possible level within the employing agency. Each appointing authority shall either use the procedures established by the Commission or adopt other procedures which address the specific needs of their agencies. All procedures shall contain the minimum requirements established pursuant to this section.
B. The appointing authority of each agency shall furnish to each classified employee a copy of the internal agency grievance resolution procedure utilized by the agency.
C. No employee shall be disciplined or otherwise prejudiced in his or her employment for exercising his or her rights under the internal agency grievance resolution procedure.
D. Internal agency grievances may include, but are not limited to, any direct or indirect form of discipline, reduction-in-force, work assignments, withholding of work, classification, reclassification, promotion, leave, performance appraisal, length of service, overtime, compensatory time, transfers, or any alleged violation of the Oklahoma Personnel Act or merit rules.
E. The internal agency grievance resolution procedures established by the Oklahoma Merit Protection Commission shall contain the following minimum requirements:
1. Procedures encouraging resolution of disputes within the agency quickly, informally and at the lowest possible level;
2. Procedures requiring prompt resolution of the internal agency grievance within established time periods; and
3. Procedures guaranteeing the employee the right to be represented by a person of his own choosing at each step of the procedure, except the initial informal discussion with his immediate supervisor.
F. The Oklahoma Merit Protection Commission shall promulgate rules as necessary to implement the provisions of subsections A through I of this section to establish internal agency grievance resolution procedures, provided that such rules previously promulgated by the Administrator of the Office of Personnel Management shall be transferred to the Oklahoma Merit Protection Commission and shall remain in effect until duly modified by the Commission.
G. The appointing authority of each classified agency shall designate employees of the agency to receive and process internal agency grievances. Within six (6) months after designation to serve in this capacity, these employees shall complete the training programs established by the Commission. Upon successful completion, such employees shall be certified to perform the duties associated with receiving and processing internal agency grievances.
H. The appointing authority of each classified agency shall ensure that employees designated to receive and process internal agency grievances are scheduled to attend and notified of the required training and shall make time available for employees to complete the training.
I. Each agency shall maintain records of each grievance filed as well as summary information about the number, nature and outcome of all grievances filed. Agencies shall keep records of grievances separate and apart from other individual employee personnel files. Agencies shall annually report grievance information and related statistical data to the Oklahoma Merit Protection Commission pursuant to rules adopted by the Commission. An employee or former employee shall have a right of access to the grievance record of grievances he or she filed after the grievance procedure has been completed.
J. Employees may only appeal a reduction-in-force action to the Oklahoma Merit Protection Commission on the basis of procedural errors in the application of the reduction-in-force plan of the employing agency, board, or commission.
Added by Laws 1982, c. 338, § 30, eff. July 1, 1982. Amended by Laws 1983, c. 274, § 6, operative July 1, 1983; Laws 1986, c. 158, § 15, operative July 1, 1986; Laws 1989, c. 353, § 10, emerg. eff. June 3, 1989; Laws 1992, c. 367, § 17, eff. July 1, 1992; Laws 1994, c. 242, § 33. Renumbered from § 841.9 of this title by Laws 1994, c. 242, § 54. Amended by Laws 1998, c. 364, § 33, emerg. eff. June 8, 1998.
NOTE: Laws 1986, c. 84, § 5 repealed by Laws 1989, c. 353, § 14, emerg. eff. June 3, 1989.
§74-840-6.3. Progressive discipline.
A. Each appointing authority shall establish written policies and procedures for progressive discipline of employees according to the rules established by the Oklahoma Merit Protection Commission.
B. Progressive discipline is a system designed to ensure not only the consistency, impartiality and predictability of discipline, but also the flexibility to vary penalties if justified by aggravating or mitigating conditions. Typically, penalties range from verbal warning to discharge, with intermediate levels of a written warning, suspension or demotion. Absent mitigating circumstances, repetition of an offense is accompanied by a generally automatic progression to the next higher level of discipline.
C. Each supervisor shall be responsible for applying discipline when necessary that is progressive in nature, appropriate for the offense, and equitable. Each supervisor shall consider aggravating or mitigating circumstances when determining the proper disciplinary action. Each supervisor shall use prompt, positive action to avoid more serious disciplinary actions. The Oklahoma Merit Protection Commission shall promulgate rules to establish the requirements and guidelines for discipline.
D. The rules shall prohibit supervisors from considering incidents that occurred longer than four (4) years prior to an offense in order to move to a higher level of discipline. The prohibition shall not apply to incidents involving the following types of conduct:
1. Criminal activity;
2. Sexual misconduct and/or harassment;
3. Racially discriminatory behavior and/or harassment;
4. Threats or acts of violence against employees in the workplace; and
5. Drug and/or alcohol use or abuse on the job.
Added by Laws 1994, c. 242, § 34. Amended by Laws 2003, c. 7, § 1, emerg. eff. March 31, 2003.
§74-840-6.4. Pretermination hearing - Violation of procedures - Penalties.
A. A pretermination hearing shall be held before the appointing authority or its designee for any permanent classified state employee, as defined in Section 840.3 of this title, before such employee shall be terminated from state service unless the termination is part of a reduction-in-force as provided in Section 841.14 of this title.
B. The procedures for a pretermination hearing shall be:
1. Notice of a pretermination hearing shall be served by actual delivery or by certified or registered mail service at least seven (7) calendar days prior to the scheduled pretermination hearing;
2. Said notice of the pretermination hearing shall state all grounds for termination and shall include a general summary of evidence or physical evidence to support each of the stated grounds for termination;
3. The appointing authority shall file in the employee's official personnel file at least seventy-two (72) hours before each pretermination hearing, a certificate to be included in the record stating what disciplinary actions have been taken to comply with progressive disciplines prior to the pretermination hearing and proposed termination and further certifying that all mandatory progressive discipline actions as required by statute or rule have been taken before pretermination hearing; provided, said certificate shall not be required where grounds for proposed termination are for commission of a criminal offense and/or acts involving moral turpitude;
4. The employee shall be advised of his or her rights of representation by legal counsel or a representative of choice;
5. Any pretermination hearing shall be recorded in its entirety by an audible electronic tape recording, and a copy of the tape shall be provided to the employee at no cost if the employee appeals to the Oklahoma Merit Protection Commission;
6. The pretermination hearing need not be a full evidentiary hearing. Formal rules of evidence shall not apply. The hearing shall be conducted so as to provide the appointing authority with information from which it may determine whether reasonable grounds exist to believe that the charges against the employee are true, and whether the grounds support the proposed action.
7. Following the pretermination hearing, if recommendation for termination is made, recordings of the pretermination hearing and all evidence in support thereof, shall be reviewed for legal sufficiency by the appointing agency director or his or her designee before termination is final;
8. Following review by said director the appointing authority shall notify the terminated employee of the final decision in the manner aforesaid within ten (10) working days after the pretermination hearing;
9. Such notice shall state all grounds for termination;
10. In any subsequent proceedings before the Oklahoma Merit Protection Commission or district court, no grounds for termination other than those stated in the aforementioned notices shall be considered.
C. Any individual who willfully and knowingly violates these provisions shall be guilty of a misdemeanor and will be subject to appropriate disciplinary action which may include termination from state service.
Added by Laws 1990, c. 279, § 1, emerg. eff. May 25, 1990. Renumbered from § 841.13B of this title by Laws 1994, c. 242, § 54.
§74-840-6.5. Demotion, suspension or discharge of classified employee - Notice - Appeal - Hearing - Findings.
A. It is the purpose of this section to provide a system for the prompt, fair, and equitable disposition of appeals by permanent classified employees who have been demoted, suspended, or discharged. Further, it is the intent of this section that all decisions rendered as a result of this procedure shall be confined to the issues submitted for decision and consistent with the applicable laws and rules.
B. If an employee in the classified service is demoted as a result of a position audit or reclassification, the agency shall provide notice of such demotion to the Office of Personnel Management, which shall review the findings of the agency prior to such demotion occurring, to ensure compliance with the law. The Office of Personnel Management shall complete the review and respond within ten (10) business days of receipt of notice. The provisions of this subsection shall not apply to demotions that are a result of a position audit or reclassification performed by the Office of Personnel Management.
C. Any employee in the classified service may be discharged, suspended without pay for not to exceed sixty (60) calendar days, or demoted by the agency, department, institution, or officer by whom employed, for misconduct, insubordination, inefficiency, habitual drunkenness, inability to perform the duties of the position in which employed, willful violation of the Oklahoma Personnel Act or of the rules prescribed by the Office of Personnel Management or by the Oklahoma Merit Protection Commission, conduct unbecoming a public employee, conviction of a crime involving moral turpitude, or any other just cause. Employees in the classified service, upon final conviction of, or pleading guilty or nolo contendere to, a felony shall be discharged if the felony is job-related pursuant to Section 24.1 of Title 51 of the Oklahoma Statutes. Before any such action is taken against a permanent classified employee, the employing agency, department, institution or officer shall provide the employee with a written statement of the specific acts or omissions that are causes or reasons for the proposed action, an explanation of the agency's evidence, and an opportunity to present reasons why the proposed action is improper.
Within ten (10) business days after such discharge, suspension, or demotion, the appointing authority shall notify the employee by certified mail or personal service of the action taken and the specific cause for which said appointing authority has so acted. Within twenty (20) calendar days after receiving the written notification provided for in this section, the employee may file a written request for appeal with the Oklahoma Merit Protection Commission. The Executive Director shall determine if the jurisdictional requirements provided for in this section have been met. If the jurisdictional requirements are not met, the Executive Director shall notify both the employee and the agency within five (5) calendar days after the receipt of a written appeal request. Such notice shall specifically describe the requirements that were not met. If said requirements have been met, the Executive Director shall refer the appeal request to an administrative hearing officer for a hearing on said discharge, suspension, or demotion, or refer the appeal request to the Alternative Dispute Resolution Program.
If the case is not referred to the Alternative Dispute Resolution Program, then within five (5) calendar days after receipt of said properly executed appeal request, the Executive Director shall provide said employee and the appointing authority with a written notice of (1) a prehearing conference to be held at least five (5) working days, but not more than ten (10) working days, before the date of the hearing; and (2) the appeal hearing date which shall be no later than thirty-five (35) calendar days after the receipt of the appeal request, unless continued for good cause. Any continuances shall not exceed a combined total of sixty (60) calendar days except for good cause shown. Both the prehearing conference and the hearing shall be conducted in accordance with the provisions of Section 840-6.7 of this title. The notice shall be in the following form:
Notice of Hearing
Oklahoma Merit Protection Commission to __________. You are hereby notified that pursuant to your request an appeal hearing on your (discharge), (suspension), (demotion), from the position of _________ has been set for the ________ day of _________ at ________M. at ________ in __________, a copy of said cause for your (discharge), (suspension), (demotion), being hereto attached.
Dated this _______ day of ______ City of _______ By ____________ Special Counsel of the Oklahoma Merit Protection Commission.
In appeals from demotion, suspension, or discharge, the burden of proof shall rest with the appointing authority, and decisions shall be made based on the rule of preponderance of evidence. The employee shall be sustained or not sustained. If the employee is not sustained in the appeal, the employee shall be discharged, or suspended without pay for not to exceed sixty (60) calendar days, or demoted. If sustained in the appeal, in whole or in part, the presiding official may either adjudge a forfeiture of pay not in excess of sixty (60) calendar days without loss of other rights and benefits or order reinstatement of appellant to the class previously held with full rights and without loss of pay or other benefits; provided that the decision will not result in an employee working out of proper classification as determined by the Office of Personnel Management.
The findings of the presiding officials shall be final and conclusive upon all questions within their jurisdiction between the parties except as provided for in Sections 317 and 318 of Title 75 of the Oklahoma Statutes. Upon the timely filing of a petition to rehear, reopen, or reconsider, the Oklahoma Merit Protection Commission shall schedule the matter for consideration by the Commissioners on the earliest possible date. The Commission shall rule on petitions by a majority vote of a quorum of the Commissioners. Based on the Commission review of the petition, the Commission shall issue a Final Petition Decision within thirty (30) days after the petition is heard. The Final Petition Decision shall address the issues which are within the jurisdiction of the Commission raised in the petition, and the Decision shall be written in clear and concise language. Final Petition Decisions are subject to judicial review if appealed to the district court within thirty (30) calendar days. The State of Oklahoma or any agency of the state shall not be allowed to appeal to the district court unless the employee is continued on full pay in the same status of employment existing prior to suspension or discharge.
Added by Laws 1982, c. 338, § 34, eff. July 1, 1982. Amended by Laws 1983, c. 52, § 1, eff. Nov. 1, 1983; Laws 1984, c. 242, § 3, operative July 1, 1984; Laws 1986, c. 84, § 6, eff. Nov. 1, 1986; Laws 1986, c. 158, § 19, operative July 1, 1986; Laws 1992, c. 367, § 6, eff. July 1, 1992. Renumbered from § 841.13 of this title by Laws 1994, c. 242, § 54. Amended by Laws 1995, c. 310, § 17, emerg. eff. June 5, 1995; Laws 1998, c. 235, § 9, eff. July 1, 1998; Laws 2003, c. 353, § 5, emerg. eff. June 3, 2003; Laws 2005, c. 453, § 3, eff. July 1, 2005.
§74-840-6.6. Violation of employee rights - Appeals - Investigations - Reports - Hearings - Alternative Dispute Resolution - Closing of record.
A. Any person who believes that his or her rights under the Oklahoma Personnel Act, Section 840-1.1 et seq. of this title, have been violated may appeal to the Oklahoma Merit Protection Commission for corrective action.
B. Excluding the procedures set forth in Section 840-6.5 of this title, the Executive Director shall conduct preliminary investigations of possible violations of the Oklahoma Personnel Act. The Executive Director shall prepare a report of each such investigation stating the issues and findings of fact. If it is the determination of the Executive Director that a violation of the Oklahoma Personnel Act or the Merit System of Personnel Administration Rules may have occurred, the Executive Director shall, within ten (10) calendar days after the date of the report, appoint an administrative hearing officer to hear the case or refer the case to the Alternative Dispute Resolution Program, as appropriate and provided for by law. If the appeal is to be heard by an administrative hearing officer, the Executive Director shall notify the appellant and the appointing authority of the date, time, and place of the hearing in accordance with the provisions of Section 840-6.7 of this title. Such hearing shall be conducted within thirty-five (35) calendar days of the date of the investigative report unless continued for good cause. Any continuances shall not exceed a combined total of sixty (60) calendar days except for good cause shown.
The prehearing conference and hearing shall be conducted in accordance with the provisions of Section 840-6.7 of this title. If it is determined a violation has occurred, the Commission or presiding official shall:
1. Direct the appointing authority to take the necessary corrective action; or
2. Report the finding to the appropriate authorities for further action.
Corrective action shall be confined to issues submitted for decision and shall be consistent with applicable laws and rules and limited to actions specifically granted to the Oklahoma Merit Protection Commission and presiding official in the Oklahoma Personnel Act and shall not alter, reduce, or modify any existing right or authority as provided by statute or rule.
C. The following procedures shall pertain to the closing of a hearing or Alternative Dispute Resolution Program proceeding record:
1. When a hearing or Alternative Dispute Resolution Program proceeding is convened, the record will close at the conclusion of the hearing or Alternative Dispute Resolution Program proceeding unless otherwise specified by the presiding official;
2. When a hearing or Alternative Dispute Resolution Program proceeding is not convened, the record will close on the date set by the presiding official as the final date for the receipt of submissions of the parties; and
3. Once the record is closed, no additional evidence or argument shall be considered except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record.
Added by Laws 1982, c. 338, § 36, eff. July 1, 1982. Amended by Laws 1984, c. 242, § 5, operative July 1, 1984; Laws 1986, c. 84, § 8, eff. Nov. 1, 1986; Laws 1986, c. 158, § 21, operative July 1, 1986; Laws 1990, c. 279, § 2, emerg. eff. May 25, 1990; Laws 1992, c. 367, § 8, eff. July 1, 1992. Renumbered from § 841.15 of this title by Laws 1994, c. 242, § 54. Amended by Laws 1995, c. 310, § 18, emerg. eff. June 5, 1995.
§74-840-6.7. Hearing procedure.
All hearings held pursuant to the Oklahoma Personnel Act shall be conducted in accordance with the following provisions:
A. Prehearing Conferences
1. A prehearing conference may be held on all appeals set for hearing.
2. The prehearing conference may be conducted by the assigned administrative hearing officer, who may take an active part in the conference. The conference shall be informal, and shall not be open to the public. Each party may be represented by a designated individual who has knowledge of the case.
3. All discovery shall be completed at the prehearing conference. Thereafter, discovery may be conducted only where authorized by the administrative hearing officer where good cause is shown.
4. Copies of all documents or exhibits submitted to the administrative hearing officer must be submitted to the adverse party.
5. At the prehearing conference, the parties shall be required to:
a. identify which allegations are admitted and which are denied; and
b. submit a joint statement of the facts which are agreed and the issues to be decided; and
c. submit a list of their witnesses, exhibits, and documents to be offered into evidence; and
d. confer in regard to settlement; and
e. perform any other acts which will facilitate the prehearing conference or the hearing.
6. The administrative hearing officer shall:
a. determine the facts to which the parties agree and the issues to be decided; and
b. hear all pending motions; and
c. consider any other matters which will aid in the fair and prompt disposition of the appeal, including the possibility of settlement; and
d. prepare a prehearing conference order which shall record the actions taken, the agreements reached, and the issues to be decided. The order shall control the subsequent course of the hearing.
B. Hearings
All hearings shall be open to the public, and shall only be conducted by an administrative hearing officer appointed by the Executive Director. The hearing shall be conducted in accordance with the Administrative Procedures Act of the Oklahoma Statutes, except that if any party chooses to designate a representative, the representative shall not be required to be an attorney. All administrative hearing officers shall serve at the pleasure of the Executive Director for such compensation as may be provided.
Each party shall have the right to present witnesses in his behalf and evidence to support his position.
The appointing authority concerned, or a designee, shall appear in person and shall present the position of the agency in the personnel action. The administrative hearing officers shall rule upon the questions of admissibility of evidence, competency of witnesses, and any other question of law upon which they have jurisdiction as provided in the Oklahoma Personnel Act and the rules promulgated thereunder.
Within ten (10) calendar days after said hearing, the administrative hearing officer shall prepare findings of fact and conclusions of law. The Executive Director shall notify the appellant and the appointing authority of the decision of the administrative hearing officer by certified mail within five (5) calendar days of the receipt of the decision of the administrative hearing officer.
The findings of the administrative hearing officer shall be final regarding all questions of law within their jurisdiction except as provided in the Administrative Procedures Act. After exhausting all remedies under the Administrative Procedures Act, either party to an appeal of demotion, suspension, or discharge may appeal to district court within thirty (30) calendar days.
Added by Laws 1984, c. 242, § 4, operative July 1, 1984. Amended by Laws 1986, c. 158, § 20, operative July 1, 1986. Renumbered from § 841.13A of this title by Laws 1994, c. 242, § 54. Amended by Laws 1995, c. 310, § 19, emerg. eff. June 5, 1995.
§74-840-6.8. Attorney fees and costs - Motion - Supporting evidence - Review.
A. The presiding officer of any hearing or Alternative Dispute Resolution Program proceeding before the Oklahoma Merit Protection Commission may require payment of reasonable attorney fees and costs to the prevailing party if the position of the nonprevailing party was without reasonable basis or was frivolous.
B. Requests by prevailing parties for payment of attorney fees and costs shall be filed by motion with a copy served on other parties within ten (10) days of the date that the decision is issued. A responsive pleading may be filed within ten (10) days of the date the motion is filed with the Oklahoma Merit Protection Commission. The motion shall be filed at the office of the Oklahoma Merit Protection Commission to the attention of the presiding officer and the ruling on the motion shall be made in an addendum decision.
C. The motion for fees and costs shall state why the prevailing party believes he or she is entitled to an award under this statute and shall be supported by evidence substantiating the amount of the request. Such evidence shall include the following:
1. Accurate and current time records;
2. A copy of the terms of any fee agreement between the party and the attorney;
3. The attorney's customary billing rate for similar work, provided the attorney has a billing practice to report; and
4. Evidence of the prevailing community rate sufficient to establish a market value for the services rendered.
D. If the Oklahoma Merit Protection Commission determines that the appeal is frivolous, any party may be assessed attorney fees and costs of the action.
E. A petition for judicial review by the Oklahoma Merit Protection Commission of the addendum decision shall be filed in accordance with Article II of the Administrative Procedures Act, within ten (10) days of the issue date of said decision.
Added by Laws 1990, c. 279, § 3, emerg. eff. May 25, 1990. Renumbered from § 841.15A of this title by Laws 1994, c. 242, § 54. Amended by Laws 1995, c. 310, § 20, emerg. eff. June 5, 1995.
§74-840-6.9. Administrative fines - Forfeiture of position.
A. The Oklahoma Merit Protection Commission or the Administrator of the Office of Personnel Management may levy an administrative fine not to exceed Five Thousand Dollars ($5,000.00) against any person, whether subject to the provisions of the merit system or in unclassified service, who after proper notice fails or refuses, within a reasonable period of time, to implement a written order of the Oklahoma Merit Protection Commission or the Administrator of the Office of Personnel Management. Such fine shall be assessed against the person who violates the order and shall not be paid by any monies of the employing entity in which the person is employed or serves.
B. Any person against whom an administrative fine is levied who continues the violation for an unreasonable period of time, as determined by the Oklahoma Merit Protection Commission or Administrator of the Office of Personnel Management, shall forfeit his or her position and shall be ineligible for appointment to or employment in state government for a period of five (5) years.
C. Any fines collected pursuant to this section shall be deposited to the revolving fund of the respective entity which levies the fine.
Added by Laws 1982, c. 338, § 44, eff. July 1, 1982. Amended by Laws 1986, c. 84, § 12, eff. Nov. 1, 1986; Laws 1986, c. 158, § 24, operative July 1, 1986; Laws 1994, c. 242, § 40. Renumbered from § 841.23 of this title by Laws 1994, c. 242, § 54.