SB 75-FN - AS INTRODUCED
2023 SESSION
23-0968
06/08
SENATE BILL 75-FN
AN ACT relative to the division of personnel in the department of administrative services.
SPONSORS: Sen. Carson, Dist 14
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill creates a new chapter for the personnel appeals board.
This bill repeals 6 statutes related to the department of administrative services division.
This bill is a request from the department of administrative services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
23-0968
06/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT relative to the division of personnel in the department of administrative services.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Personnel Appeals Board. Amend RSA by inserting after chapter 273-C the following new chapter:
CHAPTER 273-D
PERSONNEL APPEALS BOARD
273-D:1 The Board.
I. There is hereby established a personnel appeals board consisting of 5 members, not more than 3 of whom shall be from the same political party. At least 2 members of the board shall have been employed as labor relations or personnel professionals for at least 5 years. One member shall have been employed within a public personnel field of employment for at least 3 years. At least 2 members shall be attorneys licensed to practice in the state of New Hampshire and experienced in the conduct of adjudicative hearings and decision writing.
II. Each member shall be appointed by the governor with the consent of the council for a term of 3 years and a person appointed to fill a vacancy shall be appointed for the unexpired term. Each member of the board shall hold office until a successor is appointed and qualified. The governor shall designate one member as chairperson of the board. The board shall elect one member to serve as vice-chairperson. Both the chairperson and the vice-chairperson shall be attorneys and members in good standing of the New Hampshire Bar Association. No member of the board shall be employed full time in any agency of state government.
III. Three members shall constitute a quorum to conduct hearings, deliberative sessions, and business meetings. Any board member who was not part of the quorum of the board for an entire hearing shall refrain from taking part in the deliberative session for that hearing.
IV. The board shall meet as often as necessary to conduct its business, provided that they meet on a monthly basis whenever there is any appeal pending before the board, unless the parties to any pending appeal in a given month assent to the board not holding a hearing that month.
V. Members of the board shall convene in person to conduct appeal hearings to deliberate on concluded cases and pending motions, and to conduct periodic business meetings associated with their duties. For each appeal before the board, a member of the board shall be designated as the presiding officer, who shall preside over any matters associated with the appeal for which he or she has been designated as the presiding officer.
VI. Members of the board shall designate one or more members to participate in legislative and regulatory matters that pertain to the board.
VII. Subject to availability of funds, the board may hire an executive secretary and such other staff, as it deems necessary to carry out the business and functions of the board. All staff working on behalf of the board shall be classified employees.
VIII. Members of the board shall read appeal records, motions, court decisions, and other evidentiary materials outside of scheduled hearings and meetings and in preparation for them. The members shall therefore be paid a stipend of $200 in each biweekly state payroll cycle for the work performed outside of scheduled sessions. Members of the board shall also be paid $400 for each day devoted to the work of the board and shall be reimbursed for travel, professional development, and other business-related expenses.
IX. No board member shall participate in any case or issue before the board in which he has a potential conflict of interest. A conflict of interest shall include any case or action in which a member has a personal or professional interest and any case or action in which a member is personally or professionally associated with any of the parties involved.
X. Members of the board shall be removed only as provided in RSA 4:1.
273-D:2 Powers and Duties.
I. The board shall hear and decide appeals as provided by RSA 273-D:3 and appeals of decisions arising out of application of the rules adopted by the director of personnel except those related to:
(a) Performance evaluations of classified employees; provided, however, that an employee who is disciplined or has other adverse action taken against him as the result of an evaluation may appeal that action.
(b) The refusal of an appointing authority to grant a leave of absence without pay.
(c) Classification decisions of the director of personnel when the reasons for appeal are based on any of the following:
(1) The personal qualifications of an employee exceed the minimum requirements for the position in question.
(2) The employee has held the position for a long period of time.
(3) Any positions previously held by the employee or any examinations passed by the employee which are not required for the position in question.
(4) The employee has reached the maximum of the assigned salary grade.
(5) The cost of living or related economic factors.
II. The board shall have the authority to subpoena witnesses, and administer oaths in any proceeding before it, and to compel the production of any books, papers or other memoranda or documents relevant to the proceeding before it by subpoena duces tecum.
III. The board shall by September 1 of each year submit an annual report to the governor. This report shall include a narrative summary of the work of the board during the previous fiscal year.
IV. The board shall adopt rules under RSA 541-A regarding procedures for the conduct of its business.
V. The board shall have its own budget, independent of any agency, and shall be responsible for operating within its budget.
VI. The board shall issue final decisions on all appeals within 60 days of the date of hearing or upon the receipt of relevant evidence requested by the board as a result of such hearing, whichever is later. If the board determines that it requires additional time for the proper investigation or determination of the facts or issues involved, it shall notify the employee or employees making the appeal in writing of the reasons for the delay and provide an estimate to such employee or employees of the additional time required.
273-D:3 Reviews and Appeals.
I. The employee or the department head, or both, affected by the allocation of a position in a classification plan shall have an opportunity to request a review of that allocation in accordance with rules adopted by the director under RSA 541-A, provided such request is made within 15 days of the allocation. If a review is requested by an employee, the director shall contact the employee's department head to determine how the employee's responsibilities and duties relate to the responsibilities and duties of similar positions throughout the state. The employee or department head, or both, shall have the right to appeal the director's decision to the board in accordance with rules adopted by the board under RSA 541-A.
II. In appeals of a position reclassification or reallocation, the board shall determine if the appellant proves by a preponderance of the evidence that:
(a) The duties of the position have changed sufficiently to warrant reclassification or reallocation; or
(b) The position was improperly allocated or classified in accordance with the director's rules or the classification plan.
III. If the board determines that an individual is not properly classified in accordance with the classification plan or the director's rules, it shall issue an order requiring the director to make a correction. The board shall be limited to existing job titles within the classification plan when rendering decisions regarding appeals of denial of reclassification. The board is explicitly prohibited from creating new job classifications or job titles.
IV. In appeals involving an alleged conflict of interest, the board shall determine if the appointing authority proves by a preponderance of the evidence that allowing the appellant to hold a remunerative elective public office, or to have other employment creates an actual, direct and substantial conflict of interest with the appellant's employment in the state classified service which cannot be alleviated by the appellant's abstaining from actions directly affecting such employment in the classified service.
V. Any permanent employee who is affected by any application of the personnel rules, except for those rules enumerated in RSA 273-D:2, I, and the application of rules in classification decisions appealable under paragraph I of this section, may appeal to the board within 15 calendar days of the action giving rise to the appeal. The appeal shall be heard in accordance with the procedures provided for adjudicative proceedings in RSA 541-A.
VI. In appeals arising out of an application of rules adopted by the director of personnel, the board shall determine if the appellant proves by a preponderance of the evidence that:
(a) The rule was incorrectly interpreted and applied;
(b) The rule was invalid; or
(c) The appointing authority's or the personnel director's application of the rule was unlawful.
VII. If the board finds that the action complained of was taken by the appointing authority for any reason related to politics, religion, age, sex, gender identity, race, color, ethnic background, marital status, or disabling condition, or on account of the person's sexual orientation, or was taken in violation of a statute or of rules adopted by the director, the employee shall be reinstated to the employee's former position or a position of like seniority, status, and pay. The employee shall be reinstated without loss of pay, provided that the sum shall be equal to the salary loss suffered during the period of denied compensation less any amount of compensation earned or benefits received from any other source during the period. "Any other source" shall not include compensation earned from continued casual employment during the period if the employee held the position of casual employment prior to the period, except to the extent that the number of hours worked in such casual employment increases during the period. In all cases, the personnel appeals board may reinstate an employee or otherwise change or modify any order of the appointing authority, or make such other order as it may deem just.
VIII. In probationary termination appeals, the board shall determine if the appellant proves by a preponderance of the evidence that the termination was arbitrary, illegal, capricious or made in bad faith. Allegations that the appellant does not know the reason(s) for the dismissal, or evidence that the appointing authority took no formal disciplinary action to correct the employee's unsatisfactory performance or failure to meet the work standard prior to dismissing the employee, shall not be deemed sufficient to warrant the appellant's reinstatement.
IX. In disciplinary appeals, including termination, disciplinary demotion, suspension without pay, withholding of an employee's annual increment or issuance of a written warning, the board shall determine if the appellant proves by a preponderance of the evidence that: (1) The disciplinary action was unlawful; (2) The appointing authority violated the rules of the division of personnel by imposing the disciplinary action under appeal; or (3) The disciplinary action was unwarranted by the alleged conduct or failure to meet the work standard in light of the facts in evidence;
X. Any action or decision taken or made under this section shall be subject to rehearing and appeal as provided in RSA 541.
XI. In the event of an appeal from a decision of the personnel appeals board in accordance with the provisions of RSA 541, the fee for the copy of the record and such testimony and exhibits as shall be transferred, and the fee for manifold copies shall be established by the governor and council and collected by the director of personnel from the party making the appeal. Any fees collected by the director of personnel under the provisions of this section shall be credited to the appropriation for the division of personnel. The appeals board shall not be required to certify the record upon any such appeal, nor shall the appeal be considered until the fees for the copies have been paid.
2 Classified Employees; Prohibitions; Penalty. Amend RSA 21-I:52, I to read as follows:
I. No person shall be appointed or promoted to, or demoted or dismissed from, any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified service because of the person's political opinions, religion, religious beliefs or affiliations, age, sex, gender identity, sexual orientation, national origin, or race. Additionally, except as provided in paragraph I-a, there shall be no preferential treatment or discrimination in recruiting, hiring, or promotion based on race, sex, gender identity, sexual orientation, national origin, religion, or religious beliefs. Nothing in this section shall require the appointment or prevent the dismissal of any person who advocates the overthrow of the government by unconstitutional and violent means. No person shall use, or promise to use directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for any consideration. No employee in the state classified service shall hold any remunerative elective public office, or have other employment, either of which creates an actual, direct and substantial conflict of interest with the employee's employment, which conflict cannot be alleviated by said employee abstaining from actions directly affecting such classified employment. [Determination of such conflict shall be made by the personnel appeals board after the parties are afforded rights to a hearing pursuant to RSA 21-I:58.] The burden of proof in establishing such a conflict shall be upon the party alleging it. No action affecting said employee shall be taken by the appointing authority because of such public office or other employment until after a full hearing before and approval of such action by the personnel appeals board. If an actual, direct and substantial conflict of interest, which cannot be alleviated by abstention by the employee, is found by the personnel appeals board, the board must approve any action proposed by the appointing authority; and the employee shall be given a reasonable amount of time to leave the employee's public office or other employment or otherwise end the conflict before the appointing authority initiates that action.
3 Repeal. The following are repealed:
I. RSA 21-I:42, IX, relative to department of administrative services division of personnel.
II. RSA 21-I:45, relative to department of administrative services composition of board, compensation, and removal.
III. RSA 21-I:46, relative to department of administrative services power and duties of the board.
IV. RSA 21-I:47, relative to department of administrative services personnel appeals board and executive secretary to the board.
V. RSA 21-I:57, relative to department of administrative services, classified employees and allocation reviews.
VI. RSA 21-I:58, relative to department of administrative services, classified employees appeals.
4 Effective Date. This act shall take effect 60 days after its passage.
23-0968
Revised 2/28/23
SB 75-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to the division of personnel in the department of administrative services.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2023 | FY 2024 | FY 2025 | FY 2026 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | $230,040 | $217,290 | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
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METHODOLOGY:
This bill removes the administratively attached Personnel Appeals Board from the Department of Administrative Services and creates the Personnel Appeals Board as an independent entity from other State Agencies.
The Department of Administrative Services (DAS) assumes the Personnel Appeals Board, as an independent entity, will need staffing, office space, IT support and other associated infrastructure costs to become operational. The DAS has prepared the estimated costs to operationalize the Personnel Appeals Board below. The costs would increase State expenditures starting in FY 2024 and forward.
Rents/ Utilities /Offices Supplies and Furniture assumptions:
DoIT Services, Computer Hardware and Software, Telecommunications assumptions:
HR Support and Janitorial Services assumptions:
Personnel Costs assumptions:
Expenditures | FY 2024 | FY 2025 |
Rents / Utilities / Offices Supplies and Furniture | $105,450 | $98,200 |
DoIT Services, Computer Hardware and Software, Telecommunications | $29,400 | $22,300 |
HR Support and Janitorial Services | $6,512 | $6,572 |
Personnel Costs | $88,678 | $90,218 |
Total Expenditures per Fiscal Year | $230,040 | $217,290 |
The fiscal impact to FY 2026 is an indeterminable increase to State General Fund expenditures, however, it is expected to be similar to FY 2025, but will be based on the FY 2026 efficiency budget produced at the end of FY 2025.
It is assumed any fiscal impact would occur after FY 2023.
AGENCIES CONTACTED:
Department of Administrative Services
| Date | Body | Type |
|---|---|---|
| Jan. 25, 2023 | Senate | Hearing |
| Feb. 1, 2023 | Senate | Hearing |
| Jan. 25, 2023 | Senate | Hearing |
| Feb. 1, 2023 | Senate | Hearing |
Jan. 3, 2024: Refer to Interim Study, MA, VV; 01/03/2024; SJ 1
Dec. 19, 2023: Committee Report: Referred to Interim Study, 01/03/2024, Vote 5-0; SC 49
Dec. 18, 2023: Committee Report: Referred to Interim Study, 01/03/2024, Vote 5-0; SC 49
Dec. 12, 2023: Committee Report: Referred to Interim Study, Vote 5-0
Feb. 22, 2023: Rereferred to Committee, MA, VV; 02/22/2023; SJ 8
Feb. 16, 2023: Committee Report: Rereferred to Committee, 02/22/2023; Vote 5-0; CC; SC 11
Jan. 26, 2023: ==RECONVENE== Hearing: 02/01/2023, Room 103, SH, 09:00 am; SC 8
Jan. 26, 2023: ==RECESSED== Hearing: 01/25/2023, Room 103, SH, 09:45 am; SC 8
Jan. 26, 2023: Hearing: 02/01/2023, Room 103, SH, 09:00 am; SC 8
Jan. 19, 2023: ==RECESSED== Hearing: 01/25/2023, Room 103, SH, 09:45 am; SC 7
Jan. 18, 2023: Introduced 01/05/2023 and Referred to Executive Departments and Administration; SJ 4