Per-A 100-200

The New Hampshire Personnel Appeals Board

State House Annex, Room 12

25 Capitol Street

Concord, New Hampshire 03301

Tel. (603) 271-3261

FAX (603) 271-1422

TDD Access: Relay NH 1-800-735-2964

CHAPTER Per-A 100 ORGANIZATION

REVISION NOTE:

Document #7377, effective 10-23-00 adopted Per-A 100 after the former rules in Per-A 100 had expired.

The prior filings affecting the former rules in Per-A 100 included the following documents:

#4148, eff 10-7-86

#4391, eff 3-25-88

The rules in Per-A 100 had expired 10-7-92, except for those provisions included in Document #4391, which expired 3-25-94.

PART Per-A 101 PURPOSE, SCOPE AND APPLICABILITY

Per-A 101.01 Purpose. The purpose of these rules is to provide standards of practice and procedure for proceedings conducted by the personnel appeals board.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00; ss by #9203, eff 10-23-08

Per-A 101.02 Applicability. These rules shall apply to all matters within the board's jurisdiction as described by RSA 21-I:46, RSA 21-I:52, RSA 21-I:57 and RSA 21-I:58.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 101.03 Proceedings Included. Pursuant to RSA 21-I: 46, the personnel appeals board shall hear and decide appeals as provided by RSA 21-I: 57 and 21-I: 58, appeals of decisions arising out of application of the rules adopted by the director of personnel, and appeals as specified in RSA 21-I: 52 arising out of an alleged conflict of interest.

Source. #9203, eff 10-23-08

Per-A 101.04 Proceedings Excluded. In accordance with RSA 21-I: 46, I, the jurisdiction of the board shall not extend to appeals by any person or party of the following matters:

(a) Performance evaluations of classified employees provided, however, that an employee who is disciplined or who suffers other adverse action 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;

(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.

Source. #9203, eff 10-23-08

PART Per-A 102 DEFINITIONS

Per-A 102.01 "Allocation" means the assignment, by the director of personnel, of a position to a salary grade and class within the classification plan.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00; ss by #9203, eff 10-23-08

Per-A 102.02 “Appeal” means the formal process authorized by RSA 21-I:46, RSA 21-I:52, RSA 21-I:57 or RSA 21-I:58 whereby a party can request that the personnel appeals board order modification or reversal of a decision of an appointing authority or of the director of personnel.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.03 “Appellant” means the party seeking modification or reversal of a decision of the appointing authority or of the director of personnel.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.04 “Appellee” means the party who made the decision under appeal.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.05 “Board” means the personnel appeals board established by RSA 21-I: 45.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00; ss by #9203, eff 10-23-08

Per-A 102.06 “Classification” means the determination by the director of personnel of a position’s appropriate placement within the classification plan based upon the basic purpose, characteristic duties, distinguishing factors and minimum qualifications required for that position.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.07 “Competent evidence” means documents or testimony illustrating what a witness knew, heard, or saw.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.08 “Declaratory ruling” means a decision by the board "as to the specific applicability of any statutory provision or of any rule or order" of the board in accordance with RSA 541-A:1, V.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.09 "Discovery" means the process whereby a party to an appeal can obtain through informal discussion, or by order of the board in response to a properly filed motion, information that is necessary in a party’s preparation or presentation of evidence in an appeal.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00; ss by #9203, eff 10-23-08

Per-A 102.10 “Employee” means a person in the state classified service whose appointment to work has been approved by the appointing authority and the director.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.11 “Evidentiary hearing” means an adjudicative proceeding in which the parties to an appeal can present evidence, arguments and offers of proof to the board with respect to the facts of a matter under appeal.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.12 “Offer of proof” means a representation by a party, whether orally or in writing, as to the testimony a witness would give to the board under oath with respect to the particular facts if the witness were to testify live.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.13 “Permanent employee” means a full-time employee who has satisfactorily completed a probationary period.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.14 “Preponderance of the evidence” means admissible evidence that demonstrates that a fact

is more probable than not.

Source. #9203, eff 10-23-08

Per-A 102.15 “Reallocation” means a determination by the director of personnel that because of a change in the duties and responsibilities of a class of positions, those positions should be assigned to a salary grade other than the one to which they were assigned previously.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 102.16 “Reclassification” means a determination by the director of personnel that because of a change in the duties and responsibilities of a position, that position should be assigned to a different classification than the one to which it was assigned previously.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

PART Per-A 103 DESCRIPTION OF THE AGENCY

Per-A 103.01 Composition of the Board.

(a) The personnel appeals board consists of 3 members and 2 alternates appointed by the governor with the consent of council pursuant to RSA 21-I:45.

(b) Not more than 2 of the 3 members shall be from the same political party.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 103.02 Quorum. Any 2 members or alternates appointed under the authority of RSA 21-I: 45 shall constitute a quorum of the board.

Source. #9203, eff 10-23-08

Per-A 103.03 Qualification of Members.

(a) Pursuant to RSA 21-I:45, members of the board shall meet the following qualifications:

(1) At least 2 members of the board shall have been gainfully employed as a labor relations or personnel professional for a minimum of 5 years.

(2) At least one member shall have been employed within the public personnel field of employment for a minimum of 3 years.

(b) No member of the board shall be a member of any state or national committee of a political party, nor an officer or member of a committee in any partisan political club or organization.

(c) No member shall hold, or be a candidate for, any remunerative elective public office during his/her term of office and shall not be otherwise employed in any of the agencies of the state government.

(d) The governor shall designate one member as chair of the board.

(e) The board shall elect one member to serve as vice chair.

(f) Either the chair or vice chair shall be a member of the New Hampshire bar.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 103.04 Term of Appointment.

(a) Each member and alternate shall be appointed for a term of 3 years.

(b) A person appointed to fill a vacancy shall be appointed for the unexpired term.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

Per-A 103.05 Board Staff and Support Services.

(a) In accordance with RSA 21-I:47, I, support services shall be provided to the board by an employee of the division of personnel who has been assigned by the director of personnel, with the board's approval, to serve as executive secretary to the board.

(b) In accordance with RSA 21-I:47, I, neither the director of personnel nor any bureau administrator within the division of personnel shall be appointed to this position.

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00

PART Per-A 104 PUBLIC ACCESS TO INFORMATION

Per-A 104.01 Public Access to Records.

(a) The board maintains its records in the division of personnel offices in the State House Annex. Those records shall be open for inspection, in accordance with RSA 91-A, on weekdays during regular business hours.

(b) Interested persons may obtain a free copy of the board's procedural rules or may obtain copies of decisions for a fee of $.20 per page of copy.

(c) Interested persons may, in accordance with RSA 91-A, obtain a copy of an audiotape recording of a hearing on the merits for a charge based on the actual cost of producing the copy.

(d) The board’s office location, mailing address and contact numbers are:

The New Hampshire Personnel Appeals Board

State House Annex, Room 12

25 Capitol St., Concord, NH 03301

Tel. (603) 271-3261

TDD Access: Relay NH 1-800-735-2964

FAX: (603) 271-1422

Source. (See Revision Note at chapter heading for Per-A 100) #7377, eff 10-23-00; amd by #9203, eff 10-23-08

CHAPTER Per-A 200 PROCEDURAL RULES

REVISION NOTE:

Document #7378, effective 10-23-00 adopted Per-A 200 after the former rules in Per-A 200 had expired.

The prior filings affecting the former rules in Per-A 200 included the following documents:

#4148, eff 10-7-86

#4391, eff 3-25-88

The rules in Per-A 200 had expired 10-7-92, except for those provisions included in Document #4391, which expired 3-25-94.

PART Per-A 201 RULEMAKING, EXPLANATIONS OF ADOPTED RULES AND DECLARATORY RULINGS

Per-A 201.01 Petitions for Rulemaking.

(a) Any person may petition the board to adopt, amend, or repeal a rule by submitting a filing in accordance with this section and Per-A 204.02 (a) through (f).

(b) Each petition to adopt, amend, or repeal a rule shall be made in writing and shall be addressed to the personnel appeals board at the address listed in Per-A 104.01(d).

(1) Identify the person proposing the adoption of the proposed rule;

(2) Contain a draft of the proposed rule to be adopted;

(3) State generally the nature and effect of the proposed rule; and

(4) State in detail the reason(s) why adoption of the proposed rule will improve the efficiency, efficacy or equity of the appeals process.

(d) Each petition to amend a rule shall:

(1) Identify the person proposing the amendment of a rule;

(2) Identify specifically the rule to be amended;

(3) Contain a draft of the proposed amendment; and

(4) State in detail the reason(s) why the amendment will improve the efficiency, efficacy or equity of the appeals process.

(e) Each petition to repeal a rule shall:

(1) Identify the person proposing the repeal of a rule;

(2) Identify specifically the rule to be repealed; and

(3) State in detail the reason(s) why the repeal of the rule will improve the efficiency, efficacy or equity of the appeals process.

(f) Within 30 days of receipt of the petition, the board shall:

(1) Deny the petition unless it concludes that:

a. The petition meets the requirements of paragraphs (a) and (b) and either paragraph (c), (d) or (e) above;

b. The requested action is within the jurisdiction of the board;

c. The requested action is consistent with statutory or case law;

d. The requested action would not result in a rule that is incapable of practical application or enforcement due to the absence of sufficient staff, funding or mechanisms of enforcement; and

e. The requested action would likely improve the efficiency, efficacy or equity of the appeals process; or

(2) Initiate rulemaking proceedings in accordance with RSA 541-A.

(g) If the board denies the petition for failure to comply with the requirements of Per-A 201.01 (a) and (b) and either Per-A 201.01 (c), (d) or (e) above, the board shall so notify the petitioner so that the petitioner may file a corrected petition.

(h) The denial of a petition for rulemaking shall not entitle the petitioner to a hearing.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 201.02 Requests for Explanations of Rules as Adopted.

(a) Pursuant to RSA 541-A: 11, VII, any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the board in accordance with this section and Per-A 204.02 (a) through (f) which contains:

(1) The name and address of the person making the request; or

(2) If the request is that of an organization or other entity, the name and address of such organization or entity and the name and address of the representative authorized by the organization or entity to make the request.

(b) The board shall, within 120 days of receiving a request in accordance with (a) above, provide a written response which:

(1) Concisely states the meaning of the rule adopted;

(2) Concisely states the principal reasons for and against the adoption of the rule in its final form; and

(3) States, if applicable, why the board did not accept arguments and considerations presented against the rule.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9204, eff 10-23-08

Per-A 201.03 Declaratory Rulings.

(a) Any person may petition the board in writing for a declaratory ruling concerning the applicability of a rule or statute within the board's jurisdiction, or an order of the board, to a specific set of circumstances by filing an original and 5 additional hard copies of the petition in accordance with this section and Per-A 204.02 (a) through (f).

(b) Such petition shall:

(1) Be in legible written form;

(2) Be addressed to the board at the address set forth in Per-A 104.01 (d);

(3) State the name and address of the individual petitioner and his or her representative, if any, or, if the request is that of an organization or other entity, the identity of such organization or entity and the name and address of the representative authorized by the organization or entity to file the petition;

(4) Cite the particular statute, rule or order at issue;

(5) Describe the specific facts regarding which a request for declaratory ruling is requested;

(6) Contain the specific question presented, stated in terms of whether or not a particular rule, order or statutory provision would apply to the circumstances stated;

(7) Explain why the language of the statute, rule or order makes its applicability unclear as applied to the facts presented, including in such explanation reference to any statutes, rules, orders or other legal authority which are alleged to support the petitioner’s position and any legal memoranda, affidavits, tables, exhibits and other relevant documentation that the petitioner contends supports the requested ruling;

(8) Not relate to a matter that is currently subject to an appeal, which is currently subject to a determination by an appointing authority or the director of personnel, or which is the topic of a current dispute involving an appointing authority or the director of personnel;

(9) Relate only to rules or orders of the board, or statutes pertaining to the board, and not to rules or orders of other entities, or statutes pertaining to other entities, including the division of personnel; and

(10) Be dated and contain the following declaration signed by the individual making the petition:

“I declare that I have examined this petition for declaratory ruling, including the accompanying documents, and state that, to the best of my knowledge and belief, the request meets the requirements of Per-A 201.03 and the facts presented in support of the petition are true, correct and complete.”

(c) In accordance with RSA 541-A: 29, I, the board shall examine the petition within 60 days of receipt and notify the petitioner if the petition is incomplete or if the board requires additional information or material in order to issue its ruling.

(d) If, within 30 days of the issuance of a notification under (c) above, the petitioner does not submit the information or material requested, the board shall, within 120 days of the date of the initial submission, deny the petition.

(e) Within 120 days of receiving a fully completed petition containing all information or material, if any, requested under (c) above, the board shall either deny the petition or issue a declaratory ruling.

(f) The board shall deny the petition if it concludes that the petition:

(1) Relates to a matter that is currently subject to an appeal, currently subject to a determination by an appointing authority or the director of personnel, or is the topic of a current dispute involving an appointing authority or the director of personnel;

(2) Relates to a rule or order of an entity other than the board, or to a statute pertaining to an entity other than the board, including the division of personnel; or

(3) Presents a question other than whether or not a particular rule, order or statutory provision applies to particular circumstances stated; or

(4) Fails to comply with paragraphs (a) and (b) above.

(g) If the petition is not denied, the board shall issue a declaratory ruling stating whether the particular rule or order of the board, or the particular statute relating to matters within the jurisdiction of the board, applies to the specific set of circumstances presented.

(h) A declaratory ruling issued by the board shall:

(1) Apply only to the person requesting it;

(2) Be confined to the facts and information contained in the filing or other submissions made to the board in conjunction with the petition;

(3) Not constitute a finding that the particular facts presented in the petition have or have not occurred as stated; and

(4) Be subject to re-examination and revision if presented in the context of a particular case pending before the board.

(i) Pursuant to RSA 541-A:16, II (b), declaratory rulings shall be filed with the director of legislative services.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 201.04 Public Comment Hearings for Rulemaking.

(a) The purpose of this section is to provide procedures for the conduct of public comment hearings held pursuant to RSA 541-A: 11, I - V.

(b) Public comment hearings shall be presided over by a designee of the board who is knowledgeable in the subject area of the proposed rules.

(d) Persons who wish to testify at a public comment hearing shall be asked to write on the speaker's list:

(1) Their full names and addresses; and

(2) The names and addresses of organizations, entities or other persons whom they represent, if any.

(e) Written or electronic comments, which may be submitted in lieu of or in addition to oral testimony, shall be accepted for 10 days after the adjournment of a hearing or after the adjournment of a postponed or continued hearing.

(f) Public comment hearings shall be open to the public and members of the public shall be allowed to testify, subject to the limitations of paragraph (g) below.

(g) The person designated by the board to preside over a public comment hearing shall refuse to recognize for speaking, or revoke the recognition of, any person who:

(1) Speaks or acts in an abusive or disruptive manner;

(2) Fails to keep comments relevant to the proposed rules that are the subject matter of the hearing; or

(3) Restates more than once what the person, or the organization or entity upon whose behalf the person is speaking, has already stated.

Source. #9205, eff 10-23-08

PART Per-A 202 TIME PERIODS

Per-A 202.01 Computation of Time.

(a) Unless otherwise specified, all time periods referenced in this chapter shall be in calendar days.

(b) Computation of any period of time referenced in these rules shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

(c) If the last day of the period so computed falls on a Saturday, Sunday, or legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday, or legal holiday.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

PART Per-A 203 INTERVENTION, ADHERENCE TO RULES, WAIVER OF RULES, PRESIDING OFFICERS, WITHDRAWAL OF BOARD MEMBERS AND ROLE OF AGENCY STAFF.

Per-A 203.01 Intervention.

(a) Petitions for intervention shall:

(1) Describe the petitioner's interest in the subject matter of the proceedings;

(2) Be submitted to the board in writing;

(3) Be submitted in accordance with this section and Per-A 204.02; and

(4) Not be submitted by those entities or individuals described in paragraph (d) below.

(b) A petition for intervention shall be granted by the board if:

(1) The petitioner complied with paragraph (a) above;

(2) The petitioner submitted the petition to the board at least 3 days before the hearing; and

(3) In accordance with RSA 541-A: 32, the board determines that:

a. The petition states facts demonstrating that the petitioner's rights, duties, privileges, immunities or other substantial interests might be affected by the proceedings or the petitioner qualifies as an intervenor under law; and

b. The intervention sought would not impair the interests of justice and the orderly and prompt conduct of the proceedings.

(1) The petitioner complied with paragraph (a) above; and

(2) The board determines that the intervention sought would be in the interests of justice and would not impair the orderly and prompt conduct of the proceedings.

(d) The board shall not grant a petition to intervene by any agency or employee who was entitled to be a party under the provisions of RSA 21-I: 52, 57, or 58, but who failed to file a timely appeal in accordance with Per-A 206.01(b).

(e) Approval of intervention by the board shall apply only to the proceeding in which the petition for intervention was granted.

(f) Notwithstanding the provisions of this chapter, if intervention is granted, the intervenor shall, in accordance with RSA 541-A: 32, III -V, have a right to participate in an adjudicative proceeding only to the extent allowed by the board and shall be subject to such limitations or conditions imposed by the board.

(g) An intervenor shall take the proceedings as he or she finds them and no portion of the proceeding shall be repeated based solely upon the fact that an intervention has occurred.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 203.02 Waiver or Suspension of Rules. The board, upon its own initiative or upon the motion of any party, shall suspend or waive any requirement or limitation imposed by this chapter upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate and efficient resolution of issues pending before the board than would adherence to a particular rule or procedure.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 203.03 Adherence to Rules.

(a) Unless the board concludes that alternative action is warranted under (c) below, the board shall dismiss or refuse to hear an appeal if the board determines that a violation of these rules or its orders was either:

(1) Intentional; or

(2) Prejudicial to the rights of a party to the appeal.

(b) Unless the board concludes that alternative action is warranted under (c) below, the board shall refuse to allow the participation of a representative for the party or intervenor if the board determines that such participation will prejudice the rights of either party to the appeal.

(1) Is not disproportionate to the magnitude of the act or omission at issue;

(2) Equitably addresses the particular violation; and

(3) Is not prohibited by law.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 203.04 Presiding Officer.

(a) Hearings on the merits shall be before a quorum of the board, which shall designate a member to serve as the presiding officer.

(b) The presiding officer shall, as necessary:

(1) Regulate and control the course of the hearing;

(2) Pursuant to RSA 541-A: 31, V. (a) and RSA 541-A: 38, facilitate settlement of the dispute that is the subject of the hearing;

(3) Administer oaths and affirmations;

(4) Receive relevant evidence and exclude irrelevant, immaterial, unduly repetitious or otherwise inadmissible evidence;

(5) Issue the board’s rulings on procedural matters;

(6) Question anyone who testifies or presents argument to the extent required to make a full and fair record;

(7) Arrange for recording the hearing as specified in RSA 541-A: 31, VII;

(8) Arrange for the scheduling and structuring of such conferences and hearings as may be necessary to advance the proceeding or resolve matters or issues related to the proceeding;

(9) In accordance with RSA 541-A: 33, V, and to the extent necessary, take official notice of facts that are common knowledge; and

(10) Take any other action consistent with applicable statutes, rules and case law that is necessary to conduct the hearing, advance the proceeding, resolve matters or issues related to the proceeding and complete the record in a fair and timely manner.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 203.05 Withdrawal of Board Members.

(a) A board member, including any presiding officer, shall withdraw from any adjudicative proceeding for good cause.

(b) Good cause shall exist if:

(1) The board member believes that he or she has a direct interest in the outcome of the matter, including but not limited to a financial or family relationship with any party or intervenor;

(2) The board member believes that he or she cannot fairly or accurately judge the facts of the case; or

(3) The board concludes that the member’s involvement in the matter would, under all of the circumstances, create an impression of bias.

(c) Mere knowledge of the issues involved in the matter, acquaintance with any party, intervenor, witness or representative shall not constitute good cause for withdrawal.

Source. #9205, eff 10-23-08

Per-A 203.06 Role of Agency Staff. The role of agency staff in an adjudicatory proceeding shall be to render clerical, administrative or other support to the board in connection with the proceeding.

Source. #9205, eff 10-23-08

PART Per-A 204 COMMUNICATION

Per-A 204.01 Communication with the Board. Except at proceedings convened by the board, no party, party's representative, intervenor or intervenor’s representative shall communicate with any member of the board, either directly or indirectly, on any issue that is or will likely be before the board.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 204.02 Filing and Service.

(a) Hard-copy papers required or permitted to be filed with the board shall be upon good quality, non-clinging paper 8 1/2 inches by 11 inches in size.

(b) Except as otherwise provided by this chapter, filing with the board may be accomplished either by personal service to the executive secretary of the board or by any of the following methods addressed to the executive secretary of the board:

(1) First class mail, certified mail, registered mail, express mail or other form of specialized priority postal delivery;

(2) Messenger mail; or

(3) Facsimile or electronic submission.

(1) In the case of a filing made solely by way of first class mail, certified mail, registered mail, express mail or other form of specialized priority postal delivery, all material is received by the executive secretary of the board within the time fixed by rule or law; or

(2) In the case of an electronic or facsimile submission, the executive secretary of the board receives the electronic or facsimile version of all materials within the time fixed by rule or law.

(d) If a filing is made by means of facsimile or electronic submission, the person making the filing shall, at or before the time that the facsimile or electronic submission is made to the executive secretary of the board, and within the time fixed by rule or law:

(1) Forward all materials so submitted to all other parties in the matter or their representatives by electronic or facsimile transmission, whichever method was used, if the e-mail address or facsimile number of the party or representative is known; and

(2) Forward the required number of hard copies to the board and to the other parties in the matter or their representatives.

(e) In the case of parties or representatives who do not have the capability to receive an electronic or facsimile submission, or for whom no e-mail address or fax number is known, electronic or facsimile submissions made to the board shall be forwarded to the party or representative by one of the methods specified in (b) (1) through (3) above, at or before the time of filing with the board and within the time fixed by rule or law.

(f) Parties and other persons making a filing with the board shall file an original and 5 additional hard copies of any motion, pleading or document associated with an appeal or other request directed to the board, regardless of whether an electronic or facsimile version of the motion, pleading or document is also submitted.

(g) At or before the time of filing, one copy of all papers filed by any party to an appeal shall be served by the party or that party’s representative on all other parties to the appeal. Service on a party represented by another shall be made on such representative.

(h) Except as otherwise provided in this chapter, service on a party may be personal, or by any form of service allowed under (b) (1) through (3) above. For the purposes of this rule:

(1) Personal service on a party shall include delivery of the copy to the secretary or other responsible person at the office of an entity’s representative;

(2) Service on a party by first class mail, registered mail, certified mail, express mail, other form of specialized priority postal delivery or messenger mail shall be deemed complete on mailing as demonstrated by postmark or certificate of service;

(3) Service on a party by way of electronic or facsimile submission shall be deemed complete upon receipt of the electronic or facsimile version of all materials at a party’s e-mail address or fax number, whichever is used;

(4) Service on a representative of a party shall be deemed service on the individual or entity represented.

(i) In the case of electronic or facsimile service on another party or its representative, the person making the service shall, at or before the time that the electronic or facsimile service is made and prior to any time fixed by rule or law:

(1) Electronically forward, or forward by facsimile transmission, whichever method was used, all materials so served to all other parties in the matter or their representatives; and

(2) Forward a hard copy of all materials to all other parties to the matter or their representatives.

(j) In the case of parties or representatives who do not have the capability of receiving an electronic or facsimile submission, or for whom no e-mail address or fax number is known, service shall be by one of the methods specified in (b) (1) through (3) above, within the time fixed by rule or law.

(k) Delivery of all documents relating to a proceeding shall be made to the last address given by that party or intervenor to the board.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 204.03 Notification of Changes in Name, Address, Telephone Number, Fax Number and E-mail Address. Parties, intervenors and their representatives shall notify the board of any change in their name, address, telephone number, fax number or e-mail address.

Source. #9205, eff 10-23-08

PART Per-A 205 PUBLIC ACCESS

Per-A 205.01 Right to a Public Hearing. Parties to an appeal shall have the right to be heard publicly in accordance with these rules and the procedures provided for in RSA 541-A:31-36 and RSA 91-A.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 205.02 Presumption. All tapes, transcripts, exhibits, decisions, motions and other portions of the record of any appeal shall be available for examination by the public unless the board determines that some or all of that material is exempt from disclosure under RSA 91-A: 5 or applicable case law.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

PART Per-A 206 PROCEDURES FOR APPEALS, PREHEARINGS, MOTIONS, APPEARANCES, DOCUMENT EXCHANGE AND SCHEDULING

Per-A 206.01 Filing an Appeal.

(a) Parties shall file any notice of appeal in writing, by one of the methods specified in Per-A 204.02 (b) (1) through (3).

(b) In order to be timely, parties shall file such notice of appeal with the board within 15 calendar days of the date of the action giving rise to the appeal.

(c) If the notice of appeal is submitted electronically or by facsimile transmission, the appellant shall nonetheless file with the board an original and 5 additional hard copies on clean, 8 1/2 inch by 11 inch paper and otherwise comply with the provisions of Per-A 204.02.

(d) A party filing an appeal shall supply the following information on the notice of appeal:

(1) The name, address, telephone number, fax number and e-mail address, if any, of the party making the appeal;

(2) The name, address, telephone number, fax number and e-mail address, if any, of any person representing the party making the appeal;

(3) The name and address of the party whose decision is being appealed;

(4) A copy of the decision or order giving rise to the appeal;

(5) The date of the action under appeal;

(6) A statement identifying the rule(s) that the party believes were improperly applied in effecting the action under appeal;

(7) The specific reason(s) that the party believes that the action taken was inappropriate;

(8) A detailed statement of facts supporting the party's assertion that the action taken was inappropriate;

(9) A signed statement attesting to the truthfulness of the statement(s) or representation(s) made in the appeal; and

(10) A signed statement certifying that a copy of the appeal and any documents submitted in support of that appeal have been served on every other party to the appeal, together with a statement of:

a. The date of service;

b. The address to which service was made; and

c. The manner or method of service.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.02 Response to Allegations.

(a) An appellee may file a response to any allegations contained in the notice of appeal no later than 15 days from the appellee’s receipt of the appeal.

(b) For the purposes of this section, receipt of an appeal shall be the date that the service is complete under Per-A 204.02 (h).

(1) The name and address of the appellee;

(2) The name, address, telephone number, fax number and e-mail address of the appellee’s representative, if any;

(3) Such response as the appellee wishes to provide; and

(4) A signed statement certifying that a copy of the response and any documents submitted in support of that response have been served on every other party to the appeal, together with a statement of:

a. The date of service;

b. The address to which service was made; and

c. The manner or method of service.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.03 Prehearing Conferences.

(a) Upon its own motion, or if it agrees with the motion of a party, the board shall convene one or more pre-hearing conferences before one or more of its members or alternates to facilitate the scheduling and hearing of an appeal.

(b) Pursuant to RSA 541-A: 31, V, prehearing conferences shall be convened to narrow the factual issues or to consider matters including, but not limited to, one or more of the following:

(1) Offers of settlement;

(2) Simplification of the issues;

(3) Stipulations or admissions as to issues of fact or proof by consent of the parties;

(4) Limitations on the number of witnesses;

(5) Changes to standard procedures desired during the hearing by consent of the parties;

(6) Consolidation of examination of witnesses; or

(7) Any other matters which aid in the disposition of the proceeding.

(c) If neither the appellant nor the appellant’s representative appears at a prehearing conference from which he or she has not been excused, the board shall order the appellant to show good cause, as set forth in Per-A 207.03 (c), why the appeal should not be dismissed for lack of prosecution.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.04 Proposed Prehearing Orders.

(a) At or before a scheduled prehearing conference, either party may file a proposed prehearing order.

(b) If a proposed order is filed, it shall address the following matters:

(1) Scope of the hearing;

(2) Outstanding discovery issues;

(3) Stipulations or admissions as to issues of fact or proof;

(4) Offers of settlement;

(5) Number of witnesses expected to testify in a hearing on the merits;

(6) Special scheduling;

(7) Amount of time required to hear the case;

(8) Pending motions, whether dispositive or non-dispositive; and

(9) Such additional matters, if any, identified by the board in a scheduling notice.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.05 Dispositive Motions and Determinations.

(a) Except when made orally at a hearing pursuant to paragraph (d) below, a motion for summary disposition of an appeal shall:

(1) Be submitted to the board in writing; and

(2) Be filed at least 30 days before a scheduled adjudicative proceeding.

(b) If the scheduling of an adjudicative proceeding takes place less than 30 days in advance of that proceeding, motions for summary disposition shall be filed and delivered to the other party no later than the date established for prehearing submissions under Per-A 206.13.

(1) If the motion is submitted under (a) above, be filed with the board in writing no more than 10 days after the filing of the motion; or

(2) If the motion is submitted under (b) above, be filed in writing on or before the date scheduled for the adjudicative proceeding.

(d) A motion for summary disposition may be made orally at a hearing if:

(1) The information giving rise to the motion was not known to the movant until after the dates established in (a) or (b) above; or

(2) It appears that there are no material facts in dispute and the movant is entitled to judgment as a matter of law.

(e) All motions for summary disposition shall state specifically the grounds upon which the movant asserts the right to have an order for summary disposition entered, and shall specify the disposition requested.

(f) If at any time, with or without a motion by a party, the board determines that there are no material facts in dispute, the board shall decide the appeal on the undisputed facts as presented by the parties.

(g) The board shall enter an order summarily dismissing a matter if, at any time, with or without a motion of a party, it concludes that:

(1) The appeal was not filed timely; or

(2) The board does not have jurisdiction over the appeal or the matters addressed therein.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.06 Appearances, Representation and Conduct Before Board.

(a) Any party to an appeal may appear with or without a representative.

(b) At least 5 working days before the date of any hearing or pre-hearing conference, a party or the party's representative shall file with the board and with the other party(s) to, or intervenor(s) in, the appeal, or with the party(s) or intervenor(s) representative(s), an appearance that includes the following information:

(1) A brief identification of the matter;

(2) A statement as to whether or not the representative is an attorney and if so, whether the attorney is licensed to practice in New Hampshire;

(3) The party or intervenor’s daytime address, telephone number, fax number and e-mail address, if any; and

(4) The daytime address, telephone number, fax number and e-mail address, if any, of the representative of the party or intervenor’s representative, if any.

(c) The board shall exclude a representative who refuses to file an appearance or whose behavior impedes the progress of the hearing.

(d) Parties, intervenors and representatives of parties or intervenors shall treat the process and all other participants, including members of the board, witnesses, parties, intervenors and representatives, with respect and fairness.

(e) Parties, intervenors and representatives shall not:

(1) Personally, or through another person, knowingly make a false or misleading statement of material fact or law;

(2) Personally, or through another, knowingly conceal, destroy or preclude or delay access to evidence which is relevant to the proceeding;

(3) Knowingly attempt to introduce evidence which is not relevant to, or admissible in, the proceeding;

(4) Attempt to influence the board or its members on an ex parte basis;

(5) Engage in disruptive behavior during the course of a proceeding, including but not limited to:

a. Making frivolous claims or motions;

b. Using tactics that have no purpose other than to embarrass, burden or offend any participant;

c. Speaking or acting in a manner that is abusive to other persons or disruptive to the proceeding; or

d. Attempting to delay the proceedings solely for the sake of delay.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.07 Exchange of Information Generally.

(a) To the extent possible, parties shall make complete and timely responses to the other party's request for information pertinent to the appeal.

(b) Where a dispute between the parties exists with respect to production of facts or documents pertinent to the appeal, either party may file with the board a motion for discovery.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.08 Exchange of Information in Classification Appeals Filed Pursuant to RSA 21-I: 57.

(a) Within 20 calendar days of filing the appeal, the appellant shall submit an original and 5 additional hard copies of the following documents to the board, with a copy to the director of personnel:

(1) Written arguments covering all aspects of the appeal;

(2) The appellant's current class specification;

(3) The appellant's proposed class specification; and

(4) Evidence supporting the proposed allocation of each of the class evaluation factors listed in the classification plan described by RSA 21-I: 42.

(b) Within 20 days of receipt of the appellant's submission under Per-A 206.08(a), the director of personnel shall submit an original and 5 additional hard copies, with a copy to the appellant, of any response to the appellant's evidence and argument. The director's response shall address any new issues not previously raised in the classification decision under appeal.

(c) The appellant shall have 10 days from receipt of the director's response in which to file an original and 5 additional hard copies with the board, and a copy with the director of personnel of a final reply or rebuttal. The appellant's reply or rebuttal shall not exceed 5 pages in length and shall be limited to any new issues raised by the director for the first time in the submission described by Per-A 206.08(b).

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.09 Motions for Discovery.

(a) Except as hereinafter provided, prehearing discovery shall be limited to the procedures set forth in Per-A 206.07 and Per-A 206.08.

(b) Either party may request that the board order formal discovery, including:

(1) Requests for admissions;

(2) Requests for production of documents;

(3) Interrogatories; and

(4) Depositions.

(c) The requesting party shall set forth in detail those factors that it believes support its request for additional discovery.

(d) The requesting party shall list, with specificity, those facts or documents it is seeking to discover.

(e) Discovery motions shall not be filed later than 10 days before a scheduled hearing.

(f) The board shall not grant requests for additional discovery under (b) above unless the board concludes that:

(1) The information requested is not privileged or prohibited from disclosure under statutory or case law; and

(2) The person making the request has established:

a. That he or she would be unable to sustain his or her burden under Per-A 207.01 or establish his or her specific defense to a relevant allegation without the additional formal discovery identified; and

b. That there exist exceptional circumstances beyond the control of the party, such as the unavailability of a witness.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.10 Subpoenas.

(a) Pursuant to RSA 21-I: 46, IV, the board shall subpoena witnesses and compel the production of any books, papers or other memoranda or documents by subpoena duces tecum when necessary for full and fair disclosure of the evidence.

(b) The board shall not issue a subpoena later than 72 hours before the scheduled start of a hearing.

(c) A party requesting a subpoena from the board shall be responsible for all costs of witness fees, mileage payments and allowable expenses.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.11 Notices and Continuances.

(a) Unless otherwise agreed by the parties, the board shall forward a notice to the parties of any scheduled hearing on the merits of an appeal at least 14 days prior to the hearing.

(b) A notice of a hearing shall contain the information required by RSA 541-A: 31, III, namely:

(1) A statement of the time, place and nature of the hearing and any prehearing conferences then scheduled;

(2) A statement of the legal authority under which a hearing is to be held;

(3) A reference to the particular statutes and rules involved including this chapter;

(4) A short and plain statement of the issues presented; and

(5) A statement that each party has the right to have an attorney represent them at their own expense.

(c) Pursuant to Per-A 206.03 (a) and (b), the board shall convene pre-hearing conferences in addition to any conferences referenced in the notice if it concludes that to do so would facilitate the scheduling and hearing of an appeal, narrow the factual issues or better enable it to consider the matters noted in Per-A 206.03 (b).

(d) The board shall continue, reschedule, recess or adjourn any hearing if it concludes that to do so is necessary in order to address:

(1) A scheduling conflict;

(2) The unavoidable unavailability of a necessary witness;

(3) The unavailability of a member of the board who is scheduled to hear the case;

(4) A previously unascertained conflict of interest;

(5) Unanticipated circumstances that are beyond the control of the board, the parties or their representatives, which may adversely impact on the efficiency, efficacy, adequacy or equity of the hearing; or

(6) Any other matter that the board concludes adversely affects the progress of the hearing.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.12 Requests for Postponement, Rescheduling or Special Scheduling.

(a) Any party may request that the board postpone or reschedule a hearing, or specially schedule the hearing for a different date, time, duration or place, or in a different manner, than indicated in the board’s notice.

(b) A party requesting postponement or rescheduling of a hearing shall:

(1) Submit such request in writing to the board no later than10 days from the date of the notice of hearing; and

(2) Prior to submission of the request to the board, attempt to ascertain whether the other party agrees or disagrees with the request to reschedule or postpone the hearing.

(1) The reason or reasons that a postponement or rescheduling is believed necessary; and

(2) A statement whether the other party either agrees or disagrees with the request to reschedule or postpone the hearing, if known.

(d) The board shall not grant a request to postpone or reschedule a hearing unless it concludes that to do so is necessary to address:

(1) The unavailability of a party, material witness or his or her representative that is beyond the person’s control;

(2) The possibility that a hearing will not be necessary because the parties have reached a settlement; or

(3) Any circumstances that demonstrate that a postponement or rescheduling would assist in resolving the case fairly.

(e) In the case of a postponement ordered by the board during a hearing:

(1) If the later date, time and place are then known, the date, time and place shall be stated on the record; or

(2) If the later date, time and place are not then known, the board shall issue a written scheduling order stating the date, time and place of the postponed hearing.

(f) Except as hereinafter provided, the board shall allow one hour for each hearing on the merits, and each party shall be allowed 30 minutes in which to present its evidence.

(g) If a party believes that the hearing will take more than the allotted time, or that the hearing must be held only on certain dates, at certain times, in a certain place, or in a manner otherwise different than scheduled, the party shall:

(1) Submit a request to the board in writing, or orally at a scheduled prehearing conference; and

(2) Prior to submission of the request to the board, attempt to ascertain whether the other party agrees or disagrees with the request.

(h) A request under (g) above shall explain:

(1) Why the hearing can not be completed in the time allotted, must be held only on certain dates, at certain times, in certain places, or in a manner otherwise different than scheduled;

(2) How much time the party believes it will require to complete the hearing, or what other adjustments the party believes are necessary; and

(3) Whether or not the other party agrees with the request for special scheduling, if known.

(i) The board shall not grant a request for special scheduling under paragraph (g) above unless it concludes that to do so is necessary to assist in resolving the case fairly.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 206.13 Prehearing Submissions.

(a) Each party shall file with the board and serve on the other party, or on the party's representative of record, the following information that it intends to present in its direct case:

(1) The names and business addresses of all lay witnesses;

(2) The name and address of any expert witness, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion; and

(3) A list of all exhibits to be offered, including affidavits or other written statements.

(b) If an exhibit to be offered at a hearing is physical evidence capable of being copied, the party shall deliver a copy of the exhibit to other parties at least 5 working days before the date of a scheduled hearing.

(c) If materials are hand-delivered, delivery shall be completed at least 5 working days before the date of a scheduled hearing.

(d) Delivery shall be either personal or by first class mail, registered mail, certified mail, express mail, other form of specialized priority postal delivery, messenger mail, or electronic or facsimile submission.

(e) If materials are delivered by first class mail, registered mail, certified mail, express mail, other form of specialized priority postal delivery, or messenger mail, delivery shall be deemed complete upon mailing, provided that such mailing takes place at least 7 working days before a scheduled hearing.

(f) If materials are delivered by electronic or facsimile submission, delivery shall be deemed complete upon delivery of the electronic or facsimile version of the materials to the other party or party’s representative, provided that:

(1) The electronic or facsimile submission is sent at least 5 working days before a scheduled hearing; and

(2) At the time of the submission, and at least 5 working days before a scheduled hearing, the person making the submission hand delivers or forwards by first class mail, registered mail, certified mail, express mail, other form of specialized postal delivery, or messenger mail a hard copy of all materials submitted electronically or by facsimile transmission.

(g) If an exhibit to be offered at the hearing is physical evidence not capable of being copied, the party shall offer to allow the other party, or the party’s representative of record, to inspect that physical evidence at a time that is at least 5 working days before the hearing.

(h) Either party may move to exclude any witness or exhibit not timely disclosed.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

PART Per-A 207 HEARING PROCEDURES

Per-A 207.01 Burden of Proof and Production.

(a) In all cases except as otherwise provided in Per-A 207.12 (e) the burden of proof shall be upon the party making the appeal.

(b) In appeals involving disciplinary action, removal for non-disciplinary reasons, involuntary transfer, non-selection to a vacancy, or the interpretation and application of a rule adopted by the director of personnel, the appointing authority shall have the burden of producing evidence supporting the action under appeal.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.02 Types of Hearings.

(a) Except as allowed by (f) below, the board shall limit any hearings on motions to oral argument.

(b) Except as provided in (c) below, the board shall hear the following appeals on oral argument and offers of proof:

(1) Reclassification;

(2) Reallocation;

(3) Non-selection to a vacancy;

(4) Written warning;

(5) Withholding of an annual increment; or

(6) An application of a rule or rules adopted by the director of personnel.

(c) In cases under (b) above, the board shall hear the testimony of witnesses if it concludes that to do so is necessary in order to:

(1) Address a relevant matter involving the credibility of witnesses; or

(2) Understand or fairly assess the arguments at issue.

(d) Except as provided in (e) below, the board shall convene full evidentiary hearings, permitting live witness testimony, in the following appeals:

(1) Termination;

(2) Demotion;

(3) Suspension without pay; or

(4) Any other proceeding in which the board determines that testimony of a witness is necessary in order for the board to resolve the case fairly.

(e) In cases under (d) above, the board shall hear the case on the basis of oral argument and offers of proof if:

(1) The parties agree to do so and the board determines that the testimony of witnesses is not necessary to address a relevant matter involving the credibility of witnesses or to understand or fairly assess the arguments at issue; or

(2) The case does not involve disputed issues of material fact.

(f) In all cases, parties may offer documentary evidence and memoranda of law.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.03 Attendance by Parties at Hearings.

(a) Absent a showing of good cause as set forth below, failure of an appellant to appear for any scheduled hearing on the merits shall result in dismissal of the appeal.

(b) Absent a showing of good cause as set forth below, failure of an appellee to appear for any scheduled hearing on the merits shall result in a decision on the appeal based on the pleadings submitted and the evidence admitted as of the time of the hearing.

(c) Good cause shall include circumstances which are beyond the control of the party and prevent that party's appearance as scheduled, such as accident or illness.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.04 Evidence.

(a) Receipt of evidence shall be governed by the provisions of RSA 541-A: 33.

(b) The board shall give effect to the rules of privilege recognized by the laws of the state of New Hampshire, such as the lawyer-client privilege, husband-wife privilege, or doctor-patient privilege. However, a party who voluntarily discloses otherwise privileged information, or who has otherwise disclosed that information, shall be deemed to have waived that privilege.

(d) When parties are permitted to present live witness testimony, the board shall permit such direct and cross-examination as the board concludes is necessary for a full and fair disclosure of the facts.

(e) The parties may produce and submit agreed upon statements of fact at any time prior to the close of the record of a hearing.

(f) The board shall admit into the record all exhibits jointly filed, or offered without objection, where no disagreement exists between the parties with respect to the admissibility or authenticity of the exhibits being offered. Such exhibits shall be pre-marked and submitted in an original and 5 additional hard copies to the board's executive secretary prior to the hearing for inclusion in the record.

(g) A party who wishes to introduce document(s) into evidence shall present that evidence to the board in an original and 5 additional hard copies.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.05 Oaths or Affirmations.

(a) The presiding officer shall administer an oath or affirmation to a witness prior to receiving testimony.

(b) The presiding officer shall administer an oath or affirmation to any interpreters to accurately and completely translate all questions put and answers given, to the best of their ability.

(c) Once an oath or affirmation has been administered, it shall not be necessary to readminister the oath or affirmation for subsequent testimony on the same day in the same case.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.06 Limiting Witnesses.

(a) The board shall limit the number of witnesses, or the time for testimony upon a particular issue in the course of any hearing, when required to avoid irrelevant, immaterial or unduly repetitious evidence.

(b) When parties or intervenors are permitted to offer live witness testimony, the testimony of such witnesses shall be scheduled in such a manner so as not to interfere with State operations.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.07 Sequestering of Witnesses. Either party may move to have the witnesses sequestered. However, the appointing authority, the appointing authority's designee, and the employee and director of personnel, if a party to the appeal, shall not be sequestered even if they are expected to testify.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.08 Additional Evidence. If at any time before the close of the record the board determines that it has insufficient evidence to fairly decide the appeal, the board, upon its own motion or if the board agrees with the motion of a party or intervenor, shall vote to compel the production of additional evidence including the testimony of witnesses or additional witnesses.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.09 Opening and Closing Statements.

(a) If the board concludes that opening statements would be beneficial to its understanding of the case, the board shall permit each party to make a brief opening statement before presenting the evidence in its case in chief.

(b) If the board concludes that closing statements would be beneficial to its understanding of the case, the board shall permit each party to make a brief closing statement at the conclusion of the hearing.

(d) Neither party shall be required to present an opening statement or a closing statement unless the board requests that the party do so for the reasons set forth in (a) or (b) above.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.10 Order of Presentation.

(a) In disciplinary appeals, appeals of non-selection to a vacancy, and conflict of interest appeals the appointing authority shall present its evidence first. At the conclusion of the appointing authority's case in chief, the appellant shall present its evidence.

(b) In reclassification appeals, reallocation appeals, and appeals arising out of the application of rules adopted by the director of personnel, the appellant shall present its evidence first. At the conclusion of the appellant's case in chief, the other party shall present its evidence.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.11 Requests for Findings of Fact and Rulings of Law.

(a) By the close of a hearing, either party may submit requests for findings of fact and rulings of law.

(b) Submission by either party of requests for findings of fact or rulings of law shall not preclude the board from making findings independent of those requests.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 207.12 Review of Cases.

(a) 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.

(b) 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;

(3) The disciplinary action was unwarranted by the alleged conduct or failure to meet the work standard in light of the facts in evidence; or

(4) The disciplinary action was unjust in light of the facts in evidence.

(c) In appeals involving denial of promotion or selection to a vacancy, the board shall determine if the appellant proves by a preponderance of the evidence that the decision was unreasonable or unlawful because:

(1) The appellant met the minimum educational and work experience requirements for selection to the vacancy;

(2) The appellant possessed the personal and professional qualifications for selection to the vacancy; and

(3) The appointing authority abused its discretion by denying selection to the person best qualified for selection to the vacancy, or that the non-selection decision was unlawful.

(d) 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:

(1) The rule was incorrectly interpreted and applied;

(2) The rule was invalid; or

(3) The appointing authority's or the personnel director's application of the rule was unlawful.

(e) 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.

(f) In appeals of a position reclassification or reallocation, the board shall determine if the appellant proves by a preponderance of the evidence that:

(1) The duties of the position have changed sufficiently to warrant reclassification or reallocation; or

(2) The position was improperly allocated or classified in accordance with the director's rules or the classification plan.

(g) The board shall have no jurisdiction to hear reclassification or reallocation appeals if the reason(s) given for the appeal include any of the following:

(1) The position is improperly classified because the personal qualifications of the employee exceed the minimum qualifications for the position in question;

(2) The employee has held the position for a long period of time;

(3) The employee has reached the maximum of the assigned salary grade of the position;

(4) The employee has held other positions or passed examinations that are not required for the position in question; or

(5) The position classification does not address the cost of living or related economic factors.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

PART Per-A 208 POST-HEARING PROCEDURES

Per-A 208.01 Reopening the Record. At any time prior to the issuance of the decision on the merits, the board, on the board's own motion or on the motion of any party, shall reopen the record of the hearing to receive relevant, material and non-duplicative testimony, evidence or arguments not previously received, if the board determines that such testimony, evidence or arguments are necessary to a full and fair consideration of the issues to be decided.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 208.02 Decisions.

(a) The board shall issue final decisions on all appeals within 45 days of the close of evidence.

(b) If the board determines that it requires additional time for the proper consideration or determination of the facts or issues involved, it shall notify the parties to the appeal of the reasons for the delay and shall provide an estimate to the parties of the additional time required.

(d) In cases where the decision of the board is stated on the record, the board shall issue a written summary of the decision upon the request of either party.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 208.03 Rehearing.

(a) Pursuant to RSA 541:3, within 30 days after the date of notice of any decision or order of the board, any party to the action or proceeding before the board, or any person directly affected thereby, may apply for rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order.

(b) In order to be considered, such request shall be delivered to the executive secretary of the board within the 30 day period specified in (a) above.

(c) Such motion for rehearing shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable.

(d) The opposing party may file an objection within 5 days of the filing of the motion.

(e) The board shall not grant a motion for rehearing for 5 days after the motion is filed in order to permit the opposing party to respond. Thereafter the board shall, within 10 days of the filing of the motion, grant or deny the motion, whether or not it has received a response from the opposing party.

(f) A motion for rehearing in a case subject to appeal under RSA 541 shall be granted if it demonstrates that the board's decision is unlawful or unreasonable.

(g) Following the granting of a motion for rehearing, the board shall issue a notice as described in Per-A 206.11 (b).

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

Per-A 208.04 Retention of Records and Evidence.

(a) The official record of the board in a contested case shall be as specified in RSA 541-A: 31, VI.

(b) The board shall retain all evidence associated with a case until the expiration of the period provided by law for the appeal of decisions of the board.

(c) Unless otherwise provided according to procedures established under RSA 5: 40, within 30 days of the conclusion of the period described in Per-A 208.03 (a) a party or intervenor may request that the board make available for pickup by the party or intervenor any exhibit or other material submitted by that party or intervenor to the board in conjunction with a hearing.

(d) Unless otherwise provided according to procedures established under RSA 5: 40, exhibits or materials not claimed by a party or intervenor in accordance with (c) above shall be destroyed.

Source. (See Revision Note at chapter heading for Per-A 200) #7378, eff 10-23-00; ss by #9205, eff 10-23-08

APPENDIX

Rule	Statute

Per-A 101	RSA 541-A: 7
Per-A 101.03 – 101.04	RSA 541-A: 16, I (a); RSA 21-I: 46, 52, 57, 58
Per-A 102.01	RSA 541-A: 7
Per-A 102.05	RSA 541-A: 7
Per-A 102.09	RSA 541-A: 7
Per-A 102.14	RSA 541-A: 7
Per-A 103.02	RSA 541-A: 16, I (a); RSA 21-I: 45; RSA 21-I: 46, II; RSA 541-A: 7
Per-A 104	RSA 541-A:16, I(a), RSA 21-I:45
Per-A 104.01 (c)	RSA 541-A: 16, I (a); RSA 91-A: 4, IV
Per-A 104.01 (d)	RSA 541-A: 16, I (a)

Per-A 200 (Other specific statutes implemented by specific rules are listed below)	RSA 541-A:16, I(b)(2); RSA 541-A:30-a; RSA 541-A:31; RSA 541-A:33; RSA 541-A:35 RSA 541-A:36; RSA 21-I:46, I; RSA 21-I:52 RSA 21-I:57; RSA 21-I:58, I; RSA 91-A
Per-A 201.01	RSA 541-A: 30-a, III. (f); RSA 541-A: 16, IV.
Per-A 201.02	RSA 541-A: 11, VII
Per-A 201.03	RSA 541-A: 16, I. (d); RSA 541-A: 29
Per-A 202.01	RSA 541-A: 16, I. (b) (3); RSA 541-A: 11, I - V
Per-A 203.01	RSA 541-A: 16, I. (b); RSA 541-A: 32, I.; RSA 541-A: 30-a, III (a), (g); RSA 21-I: 52, 57, 58
Per-A 203.02	RSA 541-A: 30-a, III. (j); RSA 541-A: 22, IV
Per-A 203.03	RSA 21-I: 53; RSA 541-A: 16, I (b); RSA 541-A: 30-a, I, III (b)
Per-A 203.04	RSA 541-A: 16, I (b); RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, I; RSA 541-A: 31, IV, V, VI, VII; RSA 541-A: 38; RSA 541-A: 33, I, II
Per-A 203.05	RSA 541-A: 30-a, III. (k); RSA 541-A: 16, I. (b); RSA 541-A: 30-a, I.
Per-A 203.06	RSA 541-A: 30-a, I, III (g); RSA 541-A: 16, I (b) (2)
Per-A 204.01	RSA 541-A: 36
Per-A 204.02	RSA 541-A: 16, I. (b) RSA 541-A: 30-a, III. (a)
Per-A 204.03	RSA 541-A: 16, I (b)
Per-A 205.01	RSA 541-A: 16, I (b); RSA 541-A: 31 - 36; RSA 91-A
Per-A 205.02	RSA 541-A: 16, I (b); RSA 541-A: 31; RSA 91-A
Per-A 206.01, Per-A 206.02	RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (a), (b), (c); RSA 21-I: 52, 57, 58
Per-A 206.03	RSA 541-A: 16, I (b); RSA 541-A: 31, V (b), (c); RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, III (b)
Per-A 206.04	RSA 541-A: 16, I (b); RSA 541-A: 31, V (b)
Per-A 206.05	RSA 541-A: 16, I (b); RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, I; RSA 541-A: 33, II; RSA 21-I: 46, I; RSA 21-I: 57; RSA 21-I: 58, I
Per-A 206.06	RSA 541-A: 30-a, III (b); RSA 541-A: 16, I. (b); RSA 541-A: 30-a, I; RSA 311: 7
Per-A 206.07 – Per-A 206.08	RSA 541-A: 30-a, I, III (a), (c); RSA 541-A: 16, I (b)
Per-A 206.09	RSA 541-A: 16, I (b); RSA 541-A: 30-a, I, III (c), (d); RSA 541-A: 33, I - IV
Per-A 206.10	RSA 21-I: 46, IV; RSA 541-A: 30-a, III (c); RSA 541-A: 16, I (b)
Per-A 206.11	RSA 541-A: 31, III, V (b), (c); RSA 541-A: 16, I (b); RSA 541-A: 30-a, III (h)
Per-A 206.12	RSA 541-A: 30-a, I, III (h); RSA 541-A: 16, I (b)
Per-A 206.13	RSA 541-A: 30-a, I, III (a), (c); RSA 541-A: 16, I (b); RSA 541-A: 16, I (b) (2)
Per-A 207.01	RSA 541-A: 30-a, I, III (d); RSA 541-A: 16, I (b) (2)
Per-A 207.02	RSA 21-I: 46; RSA 21-I: 52; RSA 21-I: 57; RSA 21-I: 58; RSA 541-A: 16, I (b); RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, I; RSA 541-A: 33
Per-A 207.03	RSA 541-A: 16, I (b); RSA 541-A: 30-a, I, III (d)
Per-A 207.04	RSA 541-A: 33
Per-A 207.05 – 207.08	RSA 541-A: 16, I (b); RSA 541-A 16, I (b) (2); RSA 541-A: 33, I; RSA 21-I: 46, IV
Per-A 207.09	RSA 541-A: 16, I (b); RSA 541-A: 16, I (b), (2); RSA 541-A: 30-a, I; RSA 541-A: 31, IV; RSA 541-A: 33, II
Per-A 207.10	RSA 541-A: 16, I (b); RSA 541-A: 16, I (b), II; RSA 541-A: 30-a, I; RSA 21-I: 52; RSA 21-I: 57; RSA 21-I: 58
Per-A 207.11	RSA 541-A: 16, I (b); RSA 541-A: 31, IV
Per-A 207.12	RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, III (d), (e); RSA 21-I: 46, 52, 57, 58
Per-A 208.01	RSA 541-A: 16, I (b) (2); RSA 541-A: 30-a, III (i); RSA 541-A: 31, IV
Per-A 208.02	RSA 541-A: 35; RSA 21-I: 6, IX
Per-A 208.03	RSA 541: 3, 4, 5; RSA 21-I: 58, II; RSA 541-A: 31, IV; RSA 541-A: 31, III
Per-A 208.04	RSA 541-A: 30-a, III (l); RSA 5:40; RSA 541-A: 31, VI; RSA 541-A: 16, I (b)