New Changes at the Merit Protection Commission Examined

OPEA has explored the new electronic filing system at the Merit Protection Commission (MPC), and after careful review of the proposed emergency rule changes offered the following public comments at the Merit Protection Commission meeting, held November 29, 2007.

We oppose any changes which provide email as an official means of notification in adverse actions; as proposed in Rules 455-10-11-14, 15, & 16. While we may not object to a notice being sent by email in advance of the issuance of the formal notification in some cases; email does not ensure that process of service has occurred, as there is no consistent way to ensure privacy or that such notification is actually opened and received by the intended recipient employee.

In many 24 hour facilities, our members do not have access to computers, let alone email. Personnel service or certified or registered mail are still the state of the art means of ensuring communication for matters which involve calculating statutory deadlines for responses from the lay-person. This should not be changed, as the unintended results of such change and email notification will most certainly be due process violations.

OPEA objects to the proposed revocation of section 455-10-11-19, which requires that agencies keep statistical records of disciplinary actions. These particular records serve as a powerful incentive for Agencies to abide by the Merit Rules, and the record keeping requirement should not be removed. If Agencies are not required to keep such records, and Appellants are forced to request such information in the Discovery process, Agencies, will complain that it is too burdensome. While People Soft does track some of these statistics, it does not track reprimands. Additionally, it is not clear that People Soft data is “read only” and cannot be manipulated, nor is it available to everyone.

OPEA has concerns over the revocation of portions of 455-10-19-20, which would remove the requirement that agencies not using the MPC established grievance process file a copy of their particular adopted plans with the MPC. The intent of removing this section is to loosen up the requirements that a grievance be in a subscribed format, and to allow more flexibility in determining what constitutes a grievance. However, I can think of at least one instance where an agency rejected an employee’s grievance because it was not filed on the agency’s specific form, and had to be re-filed.

Unless all Agencies adopt the “universal” MPC process for grievances, which is currently contained in the rules and used by most agencies, a neutral clearinghouse where employees can obtain a copy of the agency specific plan, including copies of the required agency grievance forms, is needed. The Most natural and neutral avenue for an employee to obtain this information is from the MPC. An option might be that agencies that chose to use their own unique processes should be required to prominently display this information on their website for public access. Another alternative is that renegade grievance processes for classified employees be prohibited.

OPEA also requested that 455-19-35 remain intact or that other direct reference to the portions of law where bases of upon which a grievance may be appealed to the Commission be included. It’s just good information.

The emergency rules also contain a number of changes that OPEA is very happy to see. The removal of the cumbersome and convoluted Arbitration process is welcome, as the increase in ADR settlements has more than proven its worth as an effective tools for meeting the MPC’s goal of resolving employee disputes at the lowest and most flexible level, while still providing confidentiality.

Another very important proposed change would lengthen the grievance filing deadline from 20 days to 30. While some of the public comments expressed the sentiment that this will increase the number of grievances filed, OPEA does not think that statistical evidence will prove this. The additional time will allow aggrieved employee sufficient time to consider the options available, discuss their issues with their supervisor, and consult with the OPEA staff in order to try and find suitable resolutions, and may actually reduce the number of grievances filed by our members.

We commend the MPC staff for their hard work on the Emergency rules, and know that all of the public comments will be given thoughtful consideration.


(Public comments for these rules were held November 29. A vote was tabled until a future meeting)

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