Board Rulemaking

BOARD RULE 1-19. (AS ADOPTED ON JUNE 21, 2022) An employee may voluntarily and knowingly waive, in writing, all rights under the state personnel system, except where prohibited by state or federal law. By law, the State Personnel Board has exclusive jurisdiction over claims regarding, but not limited to, the following matters: 1) Disciplinary Actions as defined by Board Rule 6-12; 2) Actions that adversely affect an employee’s pay, status, or tenure as identified by C.R.S. § 24-50-125(5); and 3) Claims under the State Employee Protection Act (a/k/a Whistleblower Act) by a classified state employee. Employees who pursue these claims must do so before the State Personnel Board. In circumstances where an employee or an applicant may waive their rights under the state personnel system, the waiver must: 1) Be made in writing; 2) Be signed by the employee or applicant; 3) Indicate it is knowing and voluntary; 4) Advise employees and applicants of their rights under the Colorado Constitution at Article XII, Section 13 and under the State Personnel System Act, including rights to appeal to the Board; and 5) Notify an employee or applicant that they may obtain information regarding the State Personnel Board on the Board’s website (spb.colorado/gov).

BOARD RULE 1-19. (AS ADOPTED ON JUNE 21, 2022) An employee may voluntarily and knowingly waive, in writing, all rights under the state personnel system, except where prohibited by state or federal law. By law, the State Personnel Board has exclusive jurisdiction over claims regarding, but not limited to, the following matters: 1) Disciplinary Actions as defined by Board Rule 6-12; 2) Actions that adversely affect an employee’s pay, status, or tenure as identified by C.R.S. § 24-50-125(5); and 3) Claims under the State Employee Protection Act (a/k/a Whistleblower Act) by a classified state employee. Employees who pursue these claims must do so before the State Personnel Board. In circumstances where an employee or an applicant may waive their rights under the state personnel system, the waiver must: 1) Be made in writing; 2) Be signed by the employee or applicant; 3) Indicate it is knowing and voluntary; 4) Advise employees and applicants of their rights under the Colorado Constitution at Article XII, Section 13 and under the State Personnel System Act, including rights to appeal to the Board; and 5) Notify an employee or applicant that they may obtain information regarding the State Personnel Board on the Board’s website (spb.colorado/gov).

Not necessary. 

Not consistent with other rules in 4CCR 801-1.

BOARD RULE 1-71. Sexual Harassment. Quid pro quo sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of such conduct is used as the basis for an employment decision. Hostile work environment sexual harassment is any harassment or unequal treatment based on sex, even if not sexual in nature, which results in unreasonable interference with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.

BOARD RULE 1-___.  Harass or Harassment.  In determining whether harassment violates the Colorado Anti-Discrimination has occurred, “Harass” or “Harassment” means to engage in, or the act of engaging in, any unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed at an individual or group of individuals because of that individual’s or group’s membership in a protected class under the Colorado Anti-Discrimination Act, which conduct or communication is subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class.

Amendment to CADA in Senate Bill 23-172, "Protecting Opportunities and Workers' Rights Act" (POWR).  This definition mirrors the new definition set forth in CADA.

NOTE: first phrase is necessary because Rules use term “harassment” in different contexts in Board Rule 6-12(B)(7)(b) (relating to threats of violence) and 8-51(B)(2) (relating to award of attorney fees)

BOARD RULE 4-5.  All applicants shall meet minimum and special qualifications for the vacancy in order to be included in the comparative analysis process, referred for an interview or appointed to a position. Any required job qualifications shall be consistent with those minimum qualifications established by the State Personnel Director for classified positions within the state personnel system. (3/30/13)

BOARD RULE 4-5.  All job postings shall notify applicants of their appeal rights.  Such notice shall include the time frame to file an appeal, the email address and the street address for filing the appeal, and the availability of any template appeal form.

Board Rule 4-5 is duplicative of Board Rule 4-2.

Combined with Rule 4-10, the proposed text captures a prior iteration of 4-5 that was removed inadvertently in a prior edition of 4 CCR 801-1.

BOARD RULE 4-6.  Applicants directly affected by the selection and comparative analysis process may petition the Board for review when it appears that the decision of the appointing authority violates an employee’s rights under the federal or state constitution, part 4 of article 34 of title 24, or article 50.5 of title 24. (3/30/13)

BOARD RULE 4-6.  Applicants directly affected by the selection and comparative analysis process may petition the Board for review when it appears that the decision of the appointing authority violates an employee’s rights under the Colorado Anti-Discrimination Act (“CADA”), the State Employee Protection Act (commonly known as the Whistleblower Act), or as otherwise provided by law.  Any petitions to the Board relating to selection decisions shall be filed in accordance with Chapter 8, Resolution of Appeals and Disputes. federal or state constitution, part 4 of article 34 of title 24, or article 50.5 of title 24. (3/30/13)

(1) Clarify type of cognizable claims that might arise from the selection process; and (2) reference Chapter 8.

The Board can review selection decisions in limited circumstances.  See § 24-50-112.5(4)(c-d).  The Board does not have constitutional or statutory authority to review whether a selection decision violated constitutional rights.  Nothing in the Colorado Constitution or the State Personnel System Act authorizes the Board to review whether a constitutional violation occurred in the selection process.  See, e.g., Maryland Casualty Co. v. Indus. Comm’n, 178 P.2d 426, 427 (Colo. 1947) ("an administrative agency of the state, created by statute, and its jurisdiction, powers, duties and authority are fixed and limited by the creative statute and amendments thereto.  It cannot exercise any jurisdiction, exert any powers, perform any duties, or assume any authority unless the right so to do is given it by statute.”)

BOARD RULE 7-1.  The appointing authority shall communicate, or make a reasonable effort to communicate, with an employee before conducting any involuntary separation. The communication may be verbal or written, and shall provide an opportunity for the appointing authority and employee to exchange information about the separation. If the involuntary separation is an administrative discharge, the appointing authority shall comply with the rules in Chapter 5, Time Off. If the involuntary separation is a disciplinary action, the appointing authority shall comply with the rules in Chapter 6, Performance.

BOARD RULE 7-1.  The appointing authority shall communicate, or make a reasonable effort to communicate, with a certified employee before conducting any involuntary separation. The communication may be verbal or written, and shall provide an opportunity for the appointing authority and employee to exchange information about the separation. If the involuntary separation is an administrative discharge, the appointing authority shall comply with the rules in Chapter 5, Time Off. If the involuntary separation is a disciplinary action, the appointing authority shall comply with the rules in Chapter 6, Performance.

Clarify that the pre-separation meeting is only required with certified state employees.

BOARD RULE 8-6(C)(5).  Upon its receipt of a filing via email, the Board will send the filing party an email stating “Received.”  That email will be the proof of filing.

BOARD RULE 8-6(C)(5).  Upon its receipt of a filing via email, the Board will send the filing party an email stating “Received.”  If disputed, that email may be used by a party as will be the proof of filing.  The email will not be part of the record.

Provide clarity that emails are not included in the record.

Reduce administrative burden when records are created.

BOARD RULE 8-20(A)(5).  Absent an extension of time, the Board will issue a Notice of Preliminary Review or hearing after two hundred and seventy (270) days from the date the Board referred the matter to the CCRD even if the CCRD investigation is not completed.

BOARD RULE 8-20(A)(5).  Absent an extension of time, The Board will issue a Notice of Preliminary Review or hearing after four two hundred and fifty seventy (450 270) days from the date the Board referred the matter to the CCRD even if the CCRD investigation is not completed.

Amendment to C.R.S. § 24-34-306(11)(a)(I).  (The prior deadline was 270 days with the possibility of an extension.  The new deadline is 450 days and no longer includes the possibility of an extension of time.)

BOARD RULE 8-20(B)(6)(a)(i). For the Board to adopt the CCRD’s opinion, the CCRD’s findings must demonstrate that Complainant is unable to establish a prima facie case of discrimination as set forth in Bodaghi & State Personnel Board v. Department of Natural Resources, 995 P.2d 288 (Colo.2000).

BOARD RULE 8-20(B)(6)(a)(i). For the Board to adopt the CCRD’s opinion, the CCRD’s findings must demonstrate that Complainant is unable to establish a prima facie case of discrimination as set forth in Bodaghi & State Personnel Board v. Department of Natural Resources, 995 P.2d 288 (Colo. 2000).

(1) Italicize party names; (2) italicize “prima facie,” and (3) space in citation of Bodaghi parenthetical between “Colo.” and “2000.”

BOARD RULE 8-33(A)(1). Complainant shall produce all documents and recordings in Complainant's possession that are relevant to the factual allegations or claims at issue in the appeal. If the Complainant is appealing a termination, the Complainant shall also produce all: a. Documents relevant to calculation of lost pay and benefits including: i. Income and benefits of subsequent employment, including the last three (3) months of pay stubs.  (a) Respondent shall not contact a prospective or current employer to discover information about Complainant without providing Complainant ten (10) days notice so Complainant has an opportunity to file a motion for protective order or a motion to quash. If Complainant files such a motion, Respondent shall not initiate contact until the motion is ruled upon. ii. Unemployment benefit documents that are relevant to any calculation of damages. b. Any witnesses that the Complainant knows that may have information relevant to the factual allegations or claims, and a brief description of the information believed to be known by that witness.

BOARD RULE 8-33(A)(1). Complainant shall produce all documents and recordings in Complainant's possession that are relevant to the factual allegations or claims at issue in the appeal. Complainant shall also produce any witnesses that Complainant knows that may have information relevant to the factual allegations or claims, and a brief description of the information believed to be known by that witness.  If the Complainant is appealing a termination, the Complainant shall also produce all: a. Documents relevant to calculation of lost pay and benefits including: i. Income and benefits of subsequent employment, including the last three (3) months of pay stubs.  (a) Respondent shall not contact a prospective or current employer to discover information about Complainant without providing Complainant ten (10) days notice so Complainant has an opportunity to file a motion for protective order or a motion to quash. If Complainant files such a motion, Respondent shall not initiate contact until the motion is ruled upon. ii. Unemployment benefit documents that are relevant to any calculation of damages. b. Any witnesses that the Complainant knows that may have information relevant to the factual allegations or claims, and a brief description of the information believed to be known by that witness.

Clarify that a Complainant shall disclose witnesses with information relevant to the factual allegations or claims.

The current version might confuse self-represented Complainants into thinking they do not need to disclose witnesses unless they have been terminated.

BOARD RULE 8-37.  Evidentiary Hearings. A. Any stipulated exhibits and facts will be admitted into evidence. B. The party with the burden of proof proceeds first and may call witnesses and seek the admission of evidence. The opposing party proceeds second and may call witnesses and seek the admission of additional evidence. In cases with mixed burdens of proof, the Administrative Law Judge shall determine the order of presentation on a case-by-case basis. Regardless of who has the burden, witnesses may be called out of order at the discretion of the Administrative Law Judge. C. At the sole discretion of the Administrative Law Judge, a party may present rebuttal evidence. D. Each party is responsible for deciding the witnesses to call at the hearing. Testimony is given under oath or affirmation. Each party may cross-examine the other party’s witnesses. E. Each party is responsible for deciding the exhibits to use and to offer for admission into evidence. F. The Administrative Law Judge may call a witness and may also examine any witness called by a party. G. The Administrative Law Judge will record the proceedings by an electronic recording device.

BOARD RULE 8-37.  Evidentiary Hearings. A. Any stipulated exhibits and facts will be admitted into evidence. B. The party with the burden of proof proceeds first and may call witnesses and seek the admission of evidence. The opposing party proceeds second and may call witnesses and seek the admission of additional evidence. In cases with mixed burdens of proof, the Administrative Law Judge shall determine the order of presentation on a case-by-case basis. Regardless of who has the burden, witnesses may be called out of order at the discretion of the Administrative Law Judge. C. At the sole discretion of the Administrative Law Judge, a party may present rebuttal evidence. D. Each party is responsible for deciding the witnesses to call at the hearing. Testimony is given under oath or affirmation. Each party may cross-examine the other party’s witnesses. E. Each party is responsible for deciding the exhibits to use and to offer for admission into evidence. F. The Administrative Law Judge may call a witness and may also examine any witness called by a party. G. The Administrative Law Judge will record the proceedings by an electronic recording device.  H.  The Administrative Law Judge may issue orders to promote expeditious and efficient hearings, including limiting the time each side has to present its evidence.

Explicitly allow the ALJ discretion to impose time limits.  This will promote better case preparation by the parties, encourage more stipulations as to facts and exhibits, and limit needless presentation of repetitive or irrelevant evidence.

See Colo. Const. Art. 12 § 14(3); C.R.S. § 24-4-105(4)(a) and (7); C.R.S. § 24-50-101(3)(b).

BOARD RULE 8-51(E). Any party seeking sanctions or attorney fees shall file and serve a motion within ten (10) days of: 1. The alleged failure to comply with the provisions in this Chapter 8, Resolution of Appeals and Disputes, Part A; 2. When the party knows or reasonably should have known of the alleged abuse giving rise to the request for fees; CODE OF COLORADO REGULATIONS 4 CCR 801-1 State Personnel Board and State Personnel Director 90 3. A final order of an Administrative Law Judge, including an order of dismissal; or 4. An Initial Decision.

BOARD RULE 8-51(E). Any party seeking sanctions or attorney fees shall file and serve a motion within ten (10) days of: 1. The alleged failure to comply with the provisions in this Chapter 8, Resolution of Appeals and Disputes, Part A; 2. When the party knows or reasonably should have known of the alleged abuse giving rise to the request for fees; CODE OF COLORADO REGULATIONS 4 CCR 801-1 State Personnel Board and State Personnel Director 90 3. A final order of an Administrative Law Judge, including an order of dismissal; or 4. An Initial Decision;  or 5. A final order of the Board relating to action taken during a public Board Meeting.

Align rule with deadline in C.R.S. § 24-50-125.5(1) (“Upon final resolution of any proceeding related to the provisions of this article . . .”)