Current through Register Vol. 50, No. 6, December 1, 2023
RELATES TO: KRS Chapter 13B, 151B.035, 151B.055, 151B.085,
344.030
NECESSITY, FUNCTION, AND CONFORMITY: KRS 151B.035(8) requires
the Executive Director of the Office of Career and Technical Education to
promulgate administrative regulations governing employee appeals. This
administrative regulation establishes the appeals and hearings requirements for
employees.
Section 1. Definitions.
(1) "Because of sex" or "on the basis of sex"
is defined by KRS 344.030(8).
(2)
"Qualified individual with a disability" is defined by KRS 344.030(1).
(3) "Reasonable
accommodation" is defined by KRS 344.030(6).
(4) "Religion" is defined by KRS 344.030(7).
(5) "Undue hardship" is
defined by KRS 344.030(9).
Section
2. An appeal of an action alleged to be based on discrimination
shall be based on the terms defined in Section 1 of this administrative
regulation.
Section 3. General
Provisions.
(1) To file an appeal, an employee
shall file a completed Appeal Form and, if applicable, other documents relating
to the appeal, with the Kentucky Technical Education Personnel Board through
the office of the ombudsman of the Office of Career and Technical
Education.
(2)
(a) An appeal or document relating to an
appeal shall be filed within thirty (30) calendar days after receiving
notification of the penalization or after becoming aware of the penalization
through the exercise of due diligence.
(b) If the 30th day of the filing period
falls on a day the Office of Career and Technical Education is closed during
normal working hours, the appeal may be filed on the next regular working
day.
(3)
(a) An appeal shall be heard in Frankfort,
Kentucky or in a location mutually acceptable to the hearing officer and the
employee.
(b) The hearing officer
shall make the final determination of the location of the hearing.
(4) If the appeal form indicates
that the employee has retained counsel upon filing an appeal, notice of the
scheduled hearing and all future notices, correspondence, or orders regarding
the appeal shall be transmitted to that attorney, and all filings or motions on
behalf of the employee shall be submitted by that attorney.
(5)
(a)
Unless otherwise directed by the board, the ombudsman of the Office of Career
and Technical Education shall assign a hearing officer or officers to an
appeal.
(b) If more than one (1)
hearing officer is assigned, one (1) shall be designated as chief.
(c) If the appeal is to be heard by the full
board, the chairman of the board shall serve as the chief hearing
officer.
(6) A state
employee shall not use state time, equipment, materials, or personnel in
pursuing an appeal.
Section
4. Continuances.
(1) Except as
provided by subsection (5) of this section, a party shall request a continuance
of a scheduled hearing for good cause by following the procedures established
in subsections (2) and (3) of this section.
(2) A request for continuance shall:
(a) Be written;
(b) State the reason for the
request;
(c) Include proposed dates
for rescheduling the hearing;
(d)
Be filed with the board; and
(e) Be
mailed to all parties at least ten (10) days prior to the scheduled
hearing.
(3) An
objection to a request for a continuance shall:
(a) Be written;
(b) State the reason for the objection to the
request for continuance;
(c) Be
filed with the board; and
(d) Be
mailed to all parties at least five (5) days prior to the scheduled
hearing.
(4) A
continuance may be granted in extraordinary circumstances by the hearing
officer.
(5) A request for a
continuance based on a personal emergency shall be granted upon appropriate
justification.
(6)
(a) At the direction of the hearing officer,
the ombudsman of the Office of Career and Technical Education shall execute and
transmit to all parties an interim order either granting or denying the
continuance.
(b) If the continuance
is granted, the interim order shall indicate the date on which the hearing has
been rescheduled or the hearing has been continued generally.
Section 5. Prehearing
Procedures.
(1) A motion, request, or filing
shall:
(a) Be in writing;
(b) Be filed with the board through the
office of the ombudsman of the Office of Career and Technical Education;
and
(c) Be served on all other
parties.
(2)
(a) An interim order by the hearing officer
shall be executed and transmitted by the board through the ombudsman of the
Office of Career and Technical Education to all parties.
(b) Unless an interim order provides for
review by the board prior to the conclusion of a hearing, the board shall
review an interim order simultaneously as it considers the recommended order,
record, or exceptions.
(3)
(a) If
an employee retains counsel subsequent to filing an appeal, the attorney shall
file a written entry of appearance.
(b) All future notices, correspondence, or
orders regarding the appeal shall be transmitted to that attorney, and all
future filings or motions on behalf of the employee shall be submitted by that
attorney.
(4) An
employee shall notify all parties and the board in writing of a change of
address or a change in counsel.
(5)
(a) A deposition may be taken only in an
extraordinary circumstance and upon authorization by the hearing
officer.
(b) A request to take a
deposition shall be filed at least seven (7) days prior to the scheduled
hearing.
(c) An objection to the
request shall be filed prior to the scheduled hearing.
(6)
(a) Upon
agreement of all parties and approval by the hearing officer, two (2) or more
appeals that involve the same or similar facts may be consolidated.
(b) Upon motion of a party or upon the
hearing officer's motion, the hearing officer may join other parties as
necessary to appropriately consider the matter.
(7) An agreed settlement shall be submitted
in writing for the full board's review and final action.
(8) The ombudsman of the Office of Career and
Technical Education, general counsel, and board staff may participate in ex
parte communication concerning pending and impending proceedings before the
board relating to:
(a) Procedural questions;
or
(b) Scheduling of
hearings.
Section
6. Conduct of Hearing.
(1) The
hearing shall be conducted pursuant to:
(a)
KRS Chapter 13B; and
(b) This
administrative regulation.
(2) Unless the appeal is heard by the full
board, the hearing officer assigned shall hear the appeal.
(3)
(a) A
party shall provide three (3) copies of an exhibit that is to be introduced as
evidence.
(b) Copies shall be
prepared prior to the hearing unless otherwise authorized by the hearing
officer.
Section
7. Board Review and Action.
(1) A
response to a written exception to a recommended order shall be filed in
accordance with KRS 13B.110(4). A response shall be:
(a) In writing; and
(b) Served on all parties.
(2) Exceptions and responses not
timely filed shall be noted and made a part of the record, but shall not be
considered by the board in making a final determination.
(3) At the request of a party or on its own
motion, the board may permit oral arguments before the full board. A request
for oral argument shall be:
(a) In
writing;
(b) Filed with the board
within fifteen (15) days of issuance of a recommended order; and
(c) Served on all parties.
(4) The board shall issue a final
order in accordance with KRS 13B.120.
(5)
(a)
Following consideration by the full board, a final order shall be entered
disposing of the appeal.
(b) The
order shall be prepared, executed, and entered at the direction of the board by
the ombudsman of the Office of Career and Technical Education.
Section 8.
Incorporation by Reference.
(1) "Appeal Form",
August 2006, is incorporated by reference.
(2) This material may be inspected, copied or
obtained, subject to applicable copyright law, at the Office of Career and
Technical Education, Capital Plaza Tower, 20th Floor, 500 Mero Street,
Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.
17 Ky.R. 746; eff.
10-14-1990; 1881; 2444; eff. 3-19-2001; 28 Ky.R. 1206; eff. 1-14-2002; 35 Ky.R.
1871; 2237; eff. 5-1-2009; Crt eff.
6-28-2019.
STATUTORY AUTHORITY: KRS 151B.035(8)