36.390. Right of appeal, procedure, regulation--nonmerit agencies may adopt--dismissal appeal procedure--nonmerit agencies, not adopting, to establish similar system, exceptions.
Right of appeal, procedure, regulation--nonmerit agencies mayadopt--dismissal appeal procedure--nonmerit agencies, notadopting, to establish similar system, exceptions.
36.390. 1. An applicant whose request for admission to anyexamination has been rejected by the director may appeal to the board inwriting within fifteen days of the mailing of the notice of rejection bythe director, and in any event before the holding of the examination. Theboard's decision on all matters of fact shall be final.
2. Applicants may be admitted to an examination pending aconsideration of the appeal, but such admission shall not constitute theassurance of a passing grade in education and experience.
3. Any applicant who has taken an examination and who feels that heor she has not been dealt with fairly in any phase of the examinationprocess may request that the director review his or her case. Such requestfor review of any examination shall be filed in writing with the directorwithin thirty days after the date on which notification of the results ofthe examination was mailed to the applicant. A candidate may appeal thedecision of the director in writing to the board. This appeal shall befiled with the board within thirty days after date on which notification ofthe decision of the director was mailed to the applicant. The board'sdecision with respect to any changes shall be final, and shall be enteredin the minutes. A correction in the rating shall not affect acertification or appointment which may have already been made from theregister.
4. An eligible whose name has been removed from a register for any ofthe reasons specified in section 36.180 or in section 36.240 may appeal tothe board for reconsideration. Such appeal shall be filed in writing atthe office of the director within thirty days after the date on whichnotification was mailed to the board. The board, after investigation,shall make its decision which shall be recorded in the minutes and theeligible shall be notified accordingly by the director.
5. Any regular employee who is dismissed or involuntarily demoted forcause or suspended for more than five working days may appeal in writing tothe board within thirty days after the effective date thereof, settingforth in substance the employee's reasons for claiming that the dismissal,suspension or demotion was for political, religious, or racial reasons, ornot for the good of the service. Upon such appeal, both the appealingemployee and the appointing authority whose action is reviewed shall havethe right to be heard and to present evidence at a hearing which, at therequest of the appealing employee, shall be public. At the hearing of suchappeals, technical rules of evidence shall not apply. After the hearingand consideration of the evidence for and against a suspension, demotion,or dismissal, the board shall approve or disapprove such action and maymake any one of the following appropriate orders:
(1) Order the reinstatement of the employee to the employee's formerposition;
(2) Sustain the dismissal of such employee;
(3) Except as provided in subdivisions (1) and (2) of thissubsection, the board may sustain the dismissal, but may order the directorto recognize reemployment rights for the dismissed employee pursuant tosection 36.240, in an appropriate class or classes, or may take steps toeffect the transfer of such employee to an appropriate position in the sameor another division of service.
6. Any order by the board under subsection 5 of this section shall bea final decision on the merits and may be appealed as provided in chapter536, RSMo.
7. After an order of reinstatement has been issued and all partieshave let the time for appeal lapse or have filed an appeal and that appealprocess has become final and the order of reinstatement has been affirmed,the board shall commence a separate action to determine the date ofreinstatement and the amount of back pay owed to the employee. This actionmay be done by hearing, or by affidavit, depositions, or stipulations, orby agreement on the amount of back pay owed. If the parties cannot reachan agreement as to how the parties shall be heard on this separate action,then the board shall decide on the method through its hearing officer. Nohearing will be public unless requested to be public by the employee.
8. The board shall establish such rules as may be necessary to giveeffect to the provisions of this section. The rules may provide that theboard or the chairman of the board may delegate responsibility for theconduct of investigations and the hearing of appeals provided pursuant toany section of this chapter to a member of the board or to a hearingofficer designated by the board. Such hearing officer shall have the powerto administer oaths, subpoena witnesses, compel the production of recordspertinent to any hearing, and take any action in connection with suchhearing which the board itself is authorized to take by law other thanmaking the final decision and appropriate order. When the hearing has beencompleted, the individual board member or the hearing officer who conductedthe hearing shall prepare a summary thereof and recommend a findings offact, conclusions of law, decision and appropriate order for approval ofthe board. The board may adopt such recommendations in whole or in part,require the production of additional testimony, reassign the case forrehearing, or may itself conduct such new or additional hearing as isdeemed necessary prior to rendering a final decision. The board may alsoestablish rules which provide for alternative means of resolving one ormore of the types of appeals outlined in this section.
9. The provisions for appeals provided in subsection 5 of thissection for dismissals of regular merit employees may be adopted bynonmerit agencies of the state for any or all employees of such agencies.
10. Agencies not adopting the provisions for appeals provided insubsection 5 of this section shall adopt dismissal procedures substantiallysimilar to those provided for merit employees. However, these proceduresneed not apply to employees in policy-making positions, or to members ofmilitary or law enforcement agencies.
11. Hearings under this section shall be deemed to be a contestedcase and the procedures applicable to the processing of such hearings anddeterminations shall be those established by chapter 536, RSMo. Decisionsof the personnel advisory board shall be final and binding subject toappeal by either party. Final decisions of the personnel advisory boardpursuant to this subsection shall be subject to review on the record by thecircuit court pursuant to chapter 536, RSMo.
(L. 1945 p. 1157 § 38, A.L. 1973 1st Ex. Sess. H.B. 8, A.L. 1977 S.B. 98, A.L. 1979 H.B. 673, A.L. 1996 H.B. 1146, A.L. 2005 S.B. 149)