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18A.095 Rights of executive branch employees.
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A classified employee with status shall not be dismissed, demoted, suspended,
or otherwise penalized except for cause.
Prior to dismissal, a classified employee with status shall be notified in writing
of the intent to dismiss him. The notice shall also state:
(a) The specific reasons for dismissal including:
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The statutory or regulatory violation;
2.
The specific action or activity on which the intent to dismiss is
based;
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The date, time, and place of such action or activity; and
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The name of the parties involved;
(b) That the employee has the right to appear personally, or with counsel if
he has retained counsel, to reply to the head of the cabinet or agency or
his designee; and
(c) Whether the employee is placed on administrative leave by the
appointing authority with pay upon receiving the intent to dismiss letter
prior to the agency's final action.
The Personnel Cabinet shall prescribe and distribute a form to be completed
and forwarded by an employee who wishes to appear before the head of the
cabinet or agency or his designee, to each appointing authority. The form shall
be attached to every notice of intent to dismiss and shall contain written
instructions explaining:
(a) The right granted an employee under the provisions of this section
relating to pretermination hearings; and
(b) The time limits and procedures to be followed by all parties in
pretermination hearings.
No later than five (5) working days after receipt of the notice of intent to
dismiss, excluding the day he receives the notice, the employee may request
to appear, personally or with counsel if he has retained counsel, to reply to the
head of the cabinet or agency or his designee.
Unless waived by the employee, the appearance shall be scheduled within six
(6) working days after receipt of an employee's request to appear before the
head of the cabinet or agency or his designee, excluding the day his request is
received.
No later than five (5) working days after the employee appears before the head
of the cabinet or agency or his designee, excluding the day of the appearance,
the cabinet head or agency or his designee shall:
(a) Determine whether to dismiss the employee or to alter, modify, or rescind
the intent to dismiss; and
(b) Notify the employee in writing of the decision.
If the cabinet or agency head or his designee determines that the employee
shall be dismissed or otherwise penalized, the employee shall be notified in
writing of:
(a) The effective date of his dismissal or other penalization;
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The specific reason for this action, including:
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The statutory or regulatory violation;
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The specific action or activity on which the dismissal or other
penalization is based;
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The date, time, and place of the action or activity; and
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The name of the parties involved; and
(c) That he may appeal the dismissal or other penalization to the board
within sixty (60) days after receipt of this notification, excluding the day he
receives notice.
(8) A classified employee with status who is demoted, suspended, or otherwise
penalized shall be notified in writing of:
(a) The demotion, suspension, or other penalization;
(b) The effective date of the demotion, suspension, or other penalization;
(c) The specific reason for the action including:
1.
The statutory or regulatory violation;
2.
The specific action or activity on which the demotion, suspension, or
other penalization is based;
3.
The date, time, and place of the action or activity; and
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The name of the parties involved; and
(d) That he or she has the right to appeal to the board within sixty (60) days,
excluding the day that he or she received notification of the personnel
action.
(9) Any unclassified employee who is dismissed, demoted, suspended, or
otherwise penalized for cause may, within thirty (30) days after the dismissal,
demotion, suspension, or other form of penalization, appeal to the board for
review thereof.
(10) (a) An employee whose position is reallocated shall be notified in writing by
the appointing authority of:
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The reallocation; and
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His right to request reconsideration by the secretary within ten (10)
working days of receipt of the notice, excluding the day he receives
notification.
(b) He shall be provided with a form prescribed by the secretary on which to
request reconsideration.
(c) The employee shall file a written request for reconsideration of the
reallocation of his position with the secretary in a manner and form
prescribed by the secretary and shall be given a reasonable opportunity
to be heard thereon by the secretary. The secretary shall make a
determination within sixty (60) days after the request has been filed by an
employee. After reconsideration of the request by the secretary, the
employee may appeal to the board.
(11) Any state employee, applicant for employment, or eligible on a register may
appeal to the board on the grounds that his right to inspect or copy records,
including preliminary and other supporting documentation, relating to him has
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been denied, abridged, or impeded by a public agency. The board shall
conduct a hearing to determine whether the records related to the employee,
applicant, or eligible, and whether his right to inspect or copy these records
was denied, abridged, or impeded. If the board determines that the records
related to the employee and that the right to inspect or copy these records has
been denied, abridged, or impeded, the board shall order the public agency to
make them available for inspection and copying and shall charge the cost of
the hearing to the public agency. A state employee, an applicant for
employment, and an eligible on a register shall not have the right to inspect or
to copy any examination materials.
Any classified employee may appeal to the board an action alleged to be
based on discrimination due to race, color, religion, national origin, sex,
disability, or age forty (40) and above. Nothing in this section shall be
construed to preclude any classified or unclassified employee from filing with
the Kentucky Commission on Human Rights a complaint alleging discrimination
on the basis of race, color, religion, national origin, sex, disability, or age in
accordance with KRS Chapter 344.
When an eligible's name is removed from a register, the secretary shall notify
the eligible of his action and the reasons therefor, together with his right of
appeal. An eligible's name shall be restored to the register upon presentation of
reasons satisfactory to the secretary or in accordance with the decision of the
board.
(a) Any employee, applicant for employment, or eligible on a register, who
believes that he has been discriminated against, may appeal to the board.
(b) Any applicant whose application for admission to an open-competitive
examination has been rejected shall be notified of this rejection and the
reasons therefor and may appeal to the board for reconsideration of his
qualifications and for admission to the examination. Applicants may be
conditionally admitted to an examination by the secretary pending
reconsideration by the board.
(c) Any applicant who has taken an examination may appeal to the board for
a review of his rating in any part of the examination to assure that uniform
rating procedures have been applied equally and fairly.
(d) An appeal to the board by applicants or eligibles under subsections (11)
and (13) of this section and under this subsection shall be filed in writing
with the executive director not later than thirty (30) calendar days after the
notification of the action in question was mailed.
An evaluation may be appealed to the board if an employee has complied with
the review procedure established in KRS 18A.110(7)(j).
(a) Appeals to the board shall be in writing on an appeal form prescribed by
the board. Appeal forms shall be available at the employee's place of
work. The Personnel Cabinet shall be responsible for the distribution of
these forms.
(b) The appeal form shall be attached to any notice, or copy of any notice, of
dismissal, demotion, suspension, fine, involuntary transfer, or other
penalization, reallocation, or notice of any other action an employee may
appeal under the provisions of this section. The appeal form shall instruct
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the employee to state whether he is a classified or unclassified employee,
his full name, his appointing authority, work station address and
telephone number, and, if he has retained counsel at the time he files an
appeal, the name, address, and telephone number of his attorney.
(c) The form shall also instruct a classified employee to state the action he is
appealing in a short, plain, concise statement of the facts. The form shall
instruct an unclassified employee to make a short, plain, concise
statement of the reason for the appeal and the cause given for his
dismissal.
(d) Upon receipt of the appeal by the board, the appointing authority and the
Personnel Cabinet shall be notified and the board shall schedule a
hearing.
All administrative hearings conducted by the board shall be conducted in
accordance with KRS Chapter 13B.
(a) The board may deny a hearing to an employee who has failed to file an
appeal within the time prescribed by this section; and to an unclassified
employee who has failed to state the reasons for the appeal and the
cause for which he has been dismissed. The board may deny any appeal
after a preliminary hearing if it lacks jurisdiction to grant relief. The board
shall notify the employee of its denial in writing and shall inform the
employee of his right to appeal the denial under the provisions of KRS
18A.100.
(b) Any investigation by the board of any matter related to an appeal filed by
an employee shall be conducted only upon notice to the employee, the
employee's counsel, and the appointing authority. All parties to the appeal
shall have access to information produced by the investigations and the
information shall be presented at the hearing.
Each appeal shall be decided individually, unless otherwise agreed by the
parties and the board. The board shall not:
(a) Employ class action procedures; or
(b) Conduct test representative cases.
Board members shall abstain from public comment about a pending or
impending proceeding before the board. This shall not prohibit board members
from making public statements in the course of their official duties or from
explaining for public information the procedures of the board.
An appeal to the board may be heard by the full board or one (1) or more of the
following: Its executive director, its general counsel, any nonelected member of
the board, or any hearing officer secured by the board pursuant to KRS
13B.030.
(a) If the board finds that the action complained of was taken by the
appointing authority in violation of laws prohibiting favor for, or
discrimination against, or bias with respect to, his political or religious
opinions or affiliations or ethnic origin, or in violation of laws prohibiting
discrimination because of such individual's sex or age or disability, the
appointing authority shall immediately reinstate the employee to his
former position or a position of like status and pay, without loss of pay for
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the period of his penalization, or otherwise make the employee whole
unless the order is stayed by the board or the court on appeal.
(b) If the board finds that the action complained of was taken without just
cause, the board shall order the immediate reinstatement of the employee
to his former position or a position of like status and pay, without loss of
pay for the period of his penalization, or otherwise make the employee
whole unless the order is stayed by the board or the court on appeal.
(c) If the board finds that the action taken by the appointing authority was
excessive or erroneous in view of all the surrounding circumstances, the
board shall direct the appointing authority to alter, modify, or rescind the
disciplinary action.
(d) In all other cases, the board shall direct the appointing authority to
rescind the action taken or otherwise grant specific relief or dismiss the
appeal.
If a final order of the board is appealed, a court shall award reasonable
attorney fees to an employee who prevails by a final adjudication on the merits
as provided by KRS 453.260. This award shall not include attorney fees
attributable to the hearing before the board.
When any employee is dismissed and not ordered reinstated after the appeal,
the board in its discretion may direct that his name be placed on an appropriate
reemployment list for employment in any similar position other than the one
from which he had been removed.
After a final decision has been rendered by the board or court, an employee
who prevails in his appeal shall be credited with the amount of leave time used
for time spent at his hearing before the board or court. Employees who had an
insufficient amount of leave time shall be credited with leave time equal to the
amount of time spent at their hearings before the board or court.
If the appointing authority appeals the final order of the board, unless the board
rules otherwise, the reinstated employee shall remain in his former position, or
a position of like status or pay, until the conclusion of the appeals process, at
which time the appointing authority shall take action in accordance with the
court order.
After a final decision in a contested case has been rendered by the last
administrative or judicial body to which the case has been appealed, the board
shall make the decision available to the public in electronic format on its Web
site and shall organize the decisions according to the statutory basis for which
the appeal was based.
For the purposes of subsections (2), (3), (4), (5), (6), and (7) of this section, the
word "agency" means any agency not assigned to a cabinet for organizational
purposes.
Notwithstanding any other prescribed limitation of action, an employee that has
been penalized, but has not received a written notice of his or her right to
appeal as provided in this section, shall file his or her appeal with the
Personnel Board within one (1) year from the date of the penalization or from
the date that the employee reasonably should have known of the penalization.
Effective:April 13, 2010
History: Amended 2010 Ky. Acts ch. 153, sec. 8, effective April 13, 2010. -Amended 2009 Ky. Acts ch. 75, sec. 15, effective June 25, 2009. -- Amended
2007 Ky. Acts ch. 85, sec. 104, effective June 26, 2007. -- Amended 2000 Ky.
Acts ch. 501, sec. 2, effective July 14, 2000. -- Amended 1998 Ky. Acts ch. 154,
sec. 23, effective July 15, 1998. and ch. 425, sec. 2, effective July 15, 1998. -Amended 1996 Ky. Acts ch. 318, sec. 22, effective July 15, 1996. -- Amended
1994 Ky. Acts ch. 317, sec. 1, effective July 15, 1994; ch. 405, sec. 4, effective
July 15, 1994; and ch. 475, sec. 1, effective July 15, 1994. Amended 1992 Ky.
Acts ch. 202, sec. 1, effective July 14, 1992. -- Amended 1988 Ky. Acts ch. 250,
sec. 1, effective July 15, 1988. -- Amended 1986 Ky. Acts ch. 494, sec. 16,
effective July 15, 1986. -- Repealed, reenacted, and amended as KRS 18A.095,
1982 Ky. Acts ch. 448, sec. 19, effective July 15, 1982. -- Amended 1978 Ky.
Acts ch. 269, sec. 6, effective June 17, 1978. -- Amended 1976 Ky. Acts ch. 86,
sec. 9, effective March 29, 1976. -- Amended 1972 Ky. Acts ch. 13, sec. 6. -Created 1960 Ky. Acts ch. 63, sec. 14.
2014-2016 Budget Reference. See State/Executive Branch Budget, 2014 Ky. Acts
ch. 117, Pt. I, C, 2, (2) at 628.
2014-2016 Budget Reference. See State/Executive Branch Budget, 2014 Ky. Acts
ch. 117, Pt. I, D, 10, (1) at 636.
Formerly codified as KRS 18.270.
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