At its meeting on March 20, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 92-024 containing the proposed complete set of the rules of the Director of the Division of Personnel (Director). The Director responded to the preliminary objection by letter dated March 26, 1992.

At its meeting on June 19, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-024. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:3-e, VI:

The final objection was made to selected rules on the bases summarized below, as well on the annotations made to the rules by Committee staff that specifically relate to the discussions below. The annotations made to the rules by Committee staff that do not relate to the discussions below are not part of the final objection. Copies of the Division's rules with the annotations made by Committee Staff can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at the normal copying rate of $0.20 per page.

1. Per 1001.03(a), Per 1001.04(a), Per 1001.05(a) and Per 1001.07(a)

The Committee objected that Per 1001.03(a), Per 1001.04(a), Per 1001.05(a), and Per 1001.07(a) violate Committee Rules 403.01(d), 403.02(c), 402.02(a) and 402.02(b)(2), as they are contrary to the public interest by not being clear and understandable and by not being capable of uniform enforcement, and contrary to legislative intent by conflicting with RSA 541-A:3. The objection was based upon the discussion below and the annotations made to the rules by Committee staff.

Per 1001.03(a) governs written warnings. Paragraph (a) provides a partial list of infractions that are grounds for the issuance of a written warning. The list is introduced with language that makes it clear that the list is not exhaustive. The Committee determined that such non-exhaustive lists are permissible in rules, provided that the last such item is a statement as to what common characteristic all the items share so as to put the regulated community on notice as to whether items not listed are of the same general type. The Committee concluded that failure to do so in this case may leave employees and employers in a quandary as to whether behavior is of a type that will warrant a letter of warning or not.

Per 1001.03(a) also contains a number of terms that the Committee determined may not be understood by all to mean the same thing. The Committee believes that these terms will have great significance to the employer in deciding whether a letter of warning should be issued, and the employee in determining whether there is a proper basis for challenging the issuance of the letter. Identical problems are found in Per 1001.04(a), Per 1001.05(a), and Per 1001.07(a). The terms include:

excessive

obscene

uncooperative

disruptive

sexual harassment

abusive behavior

dependability

2. Per 1001.04(b)

The Committee objected that Per 1001.04(b) violates Committee Rules 403.01(d), 403.02(c), 402.02(a) and 402.02(b)(2), as it is contrary to the public interest by not being clear and understandable and by not being capable of uniform enforcement, and contrary to legislative intent by conflicting with RSA 541-A:3. The objection was based upon the discussion below and the annotations made to the rule by Committee staff.

This section governs the withholding of an annual increment as a form of discipline. Paragraph (b) states that "the withholding of an employee's salary increment shall serve as a written warning." Paragraph (c) provides what steps must be taken by the employer prior to the withholding, and the steps appear to the Committee to be the same as is required for a written warning. Thus, the Committee determined that it would be reasonable for employers and employees to conclude that the steps that must be taken prior to the withholding constitute one written warning, and that the withholding itself constitutes a second written warning. The Committee decided that it is unclear if this is what was intended by the Division, and could lead to non-uniform application of the rule.

3. Per 1001.05(b)(2)

The Committee objected that Per 1001.04(b) violates Committee Rules 403.01(d), 403.02(c), 402.02(a) and 402.02(b)(2), as it is contrary to the public interest by not being clear and understandable and by not being capable of uniform enforcement, and contrary to legislative intent by conflicting with RSA 541-A:3. The objection was based upon the discussion below and the annotations made to the rule by Committee staff.

Per 1001.05 governs suspensions without pay. Paragraph (b) provides that an employee can be suspended if he has received at least one prior warning for the same offense within two years. However, subparagraph (2) states that "the appointing authority, with the approval of the director, may suspend an employee indefinitely pending the outcome of an investigation of alleged criminal wrongdoing which is in conflict with the assigned duties of the employee's position."

The Committee determined that it was unclear what criteria and procedure would be used by the Director in determining whether or not to approve such a suspension. The Committee also concluded that it was unclear what is meant by the phrase "criminal wrongdoing which is in conflict with the assigned duties of the employee's position." In the Committee's view this phrase could refer to virtually anything, and the lack of clarity could lead to non-uniform enforcement.

4. Per 1100

The Committee objected that Per 1100 violates Committee Rules 403.02(d), 403.01(f), and 401.01(c), as the chapter is contrary to the public interest by not treating like entities (employees similarly situated) in a similar manner, by being designed to benefit the administrative convenience of the Division to the detriment of the public, and are beyond the authority of the Director. The objection was based upon the discussion below and the annotations made to the rule by Committee staff.

These rules govern layoffs. Per 1101.02(b) provides in pertinent part that "each employee in an affected class shall be considered with other employees in the same class within a division of an agency in accordance with their seniority." The previous version of this rule, which expired on March 29, 1991, provided that consideration of an affected class would be department-wide, not just division-wide. The Committee determined that the new provision appears to have the effect of penalizing or discriminating against those who work in smaller agencies or small divisions within a department by limiting the availability of bumping for such employees. In other words, employees are not similarly treated in practice.

Moreover, Per 1102.02(h) provides in pertinent part that "an employee with ten or more years of continuous full-time service may bump another employee within the same division of the agency." As discussed above, the Committee determined that the rule has the effect of penalizing employees for working in small divisions. Per 1102.02(h) has doubled the amount of time in state service an employee must have before they are eligible for bumping. The previous rule required only five years. The Committee concluded that the increased time requirement and limiting bumping to within a division only is for the administrative convenience of the Division and to the detriment of the public.

The Committee determined that a basis for objection to Per 1102.02(h) as being beyond the agency's authority exists relative to employees who had more than five years of state service and had bumping "rights" under the old rules, but who have lost them as a result of the adoption and filing of the rules. Since the right to bump was created by the rules, the Committee determined that it is within the authority of the Director to modify the right prospectively by increasing the minimum time in state service for those who did not yet have bumping rights as of the date the proposed rules become effective. However, for those employees who did enjoy such rights, elimination of such rights appeared to be beyond the authority of the Director because a right, similar to a property right, will be taken away without compensation. The Committee concluded that such employees would have to be "grandfathered" in any rule which increases the minimum period to acquire bumping rights. The Committee also determined that, although the old rules expired on March 29, 1991 and these rules did not become effective until April 27, 1992, "rights" still existed because the Division and the agencies continued to recognize other expired personnel rules as valid for personnel transactions occurring in that time period.