Read 1st time January 11, 1996, and 1,000 copies ordered printed.

Read 2nd time January 24, 1996, and referred to the Committee on Financial and Governmental Operations.

Reported from the Committee February 13, 1996, with recommendation that the bill do pass.

Taken up for Perfection March 18, 1996. Bill declared Perfected and Ordered printed.

TERRY L. SPIELER, Secretary.

S2991.01P

To repeal sections 36.030, 36.031, 36.040, 36.050, 36.100, 36.110, 36.120, 36.140, 36.170, 36.180, 36.190, 36.210, 36.240, 36.250, 36.260, 36.280, 36.300, 36.320, 36.330, 36.360, 36.390 and 36.510, RSMo 1994, and section 36.020, RSMo Supp. 1995, relating to Missouri merit system and uniform classification and pay system, and to enact in lieu thereof twenty-three new sections relating to the same subject.

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A. Sections 36.030, 36.031, 36.040, 36.050, 36.100, 36.110, 36.120, 36.140, 36.170, 36.180, 36.190, 36.210, 36.240, 36.250, 36.260, 36.280, 36.300, 36.320, 36.330, 36.360, 36.390 and 36.510, RSMo 1994, and section 36.020, RSMo Supp. 1995, are repealed and twenty-three new sections enacted in lieu thereof, to be known as sections 36.020, 36.030, 36.031, 36.040, 36.050, 36.100, 36.110, 36.120, 36.140, 36.170, 36.180, 36.190, 36.210, 36.240, 36.250, 36.260, 36.280, 36.300, 36.320, 36.330, 36.360, 36.390 and 36.510, to read as follows:

36.020. Unless the context clearly requires otherwise, the following terms mean:

(1) Agency , state agency , or agency of the state , each department, board, commission or office of the state, except for offices of the elected officials, the general assembly, the judiciary, and academic institutions;

(2) Appointing authority , an officer or agency subject to this law having power to make appointments;

(3) Board , the personnel advisory board as established by section 36.050;

(4) Broad classification band , a grouping of positions with similar levels of responsibility or expertise;

[(2)] (5) Class or class of positions , a group of positions subject to this law sufficiently alike in duties, authority and responsibilities to justify the same qualifications and the same schedule of pay to all positions in the group;

(6) Director , the director of the division of personnel of the office of administration;

[(3)] (7) Disabled veteran , a veteran who has served on active duty in the armed forces at any time who receives compensation as a result of a service-connected disability claim allowed by the federal agency responsible for the administration of veteran s affairs, or who receives disability retirement or disability pension benefits from a federal agency as a result of such a disability or a national guard veteran who was permanently disabled as a result of active service to the state at the call of the governor;

[(4)] (8) Division of service or division , a state department or any division or branch thereof, or any agency of the state government, all the positions and employees in which are under the same appointing authority;

[(5)] (9) Eligible , a person whose name is on a register or who has been determined to meet the qualifications for a class or position;

[(6)] (10) Open competitive examination , a test for positions in a particular class, admission to which is not limited to persons employed in positions subject to this law;

[(7)] (11) Promotional examination , a test for positions in a particular class, admission to which is limited to employees with regular status in positions subject to this law;

[(8)] (12) Public hearing , a hearing held after public notice at which any person has a reasonable opportunity to be heard;

[(9)] (13) Register of eligibles , a list of persons who have been found qualified by an open competitive examination for appointment to a position [in a particular class];

[(10)] (14) Regular employee , an employee [appointed to a position in accordance with this law after successfully completing] who has successfully completed a probationary period as defined by this chapter;

[(11)] (15) Reinstatement register , a list of persons who have been regular employees in a particular class and who have been laid off in good standing due to lack of work or funds, or other similar cause, or who have been demoted in lieu of layoff;

[(12)] (16) Surviving spouse , the unmarried surviving spouse of a disabled veteran or any person who was killed while on active duty in the armed forces of the United States or an unmarried surviving spouse of a national guard veteran who was killed as a result of active service to the state at the call of the governor;

[(13)] (17) Veteran , any person who is a citizen of this state who has been separated under honorable conditions from the armed forces of the United States who served on active duty during peacetime or wartime for at least six consecutive months, unless released early as a result of a service-connected disability or a reduction in force at the convenience of the government, or any member of a reserve or national guard component who has satisfactorily completed at least six years of service or who was called or ordered to active duty by the President and participated in any campaign or expedition for which a campaign badge or service medal has been authorized.

36.030. 1. A system of personnel administration based on merit principles and designed to secure efficient administration is established for all offices, positions and employees, except attorneys, of the department of social services, the department of corrections, the department of health, the department of natural resources, the department of mental health, the [personnel] division of personnel and other divisions and units of the office of administration, the division of employment security, mine safety and on-site consultation sections of the division of labor standards, and administration operations of the department of labor and industrial relations, [the division of industrial inspection,] the divisions of tourism [commission, environmental improvement authority], job development and training, the Missouri housing development commission, and the office of public counsel of the department of economic development, the Missouri state water patrol, the Missouri veterans commission, capitol police, and state emergency management agency of the department of public safety, such other agencies as may be designated by law, and such other agencies as may be required to maintain personnel standards on a merit basis by federal law or regulations for grant-in-aid programs, except that the following offices and positions of these agencies are not subject to this law and may be filled without regard to its provisions:

(1) Other provisions of the law notwithstanding, members of boards and commissions, departmental directors, [three] five principal assistants designated by the departmental directors, division directors, [one assistant] and three principal assistants designated by each division director, [and one secretary for each such position,] except that these exemptions shall not apply to the [personnel] division of personnel;

(2) One [secretary] principal assistant for each board or commission, the members of which are appointed by the governor or by a director of the department;

(3) [One secretary for each director, division head and each exempt principal assistant, deputy and institution head, and each member of boards and commissions the members of which devote their full time to the business of the board or commission and are appointed by the governor or by a director of a department of the executive branch of government, except the personnel director;

(4)] Chaplains and attorneys regularly employed or appointed in any department or division subject to this law, except as provided in section 36.031;

(4) Persons employed in [a professional or scientific capacity to make or conduct a temporary and special inquiry, investigation, or examination,] work assignments with a geographic location principally outside the state of Missouri and other persons whose employment is such that selection by competitive examination [is] and standard classification and compensation practices are not [practicable] practical under all the circumstances as determined by the board by rule;

(5) [Persons whose employment is incidental to the fulfillment of a formal contract entered into in behalf of the state by competent authority when the persons are in fact employees, agents or representatives of the contractor;

(6)] Patients or inmates in state charitable, penal and correctional institutions who may also be employees in the institutions;

[(7)] (6) Persons employed in an internship capacity in a state department or institution as a part of their formal training, at a college, university, business, trade or other technical school, except that by appropriate resolution of the governing authorities of any department or institution, the personnel division may be called upon to assist in selecting persons to be appointed to internship positions;

[(8)] (7) The [resident] administrative head of each state medical, penal and correctional institution, as warranted by the size and complexity of the organization and as approved by the [personnel] board;

[(9) A deputy or] (8) Deputies or other policymaking assistants to the exempt head of each division of service, as warranted by the size or complexity of the organization and in accordance with the rules promulgated by the personnel advisory board[, and one secretary for each deputy so exempted,];

(9) Special assistants as designated by an appointing authority, except that the number of such special assistants shall not exceed one percent of a department s total authorized full-time equivalent workforce;

(10) [but] Merit status will be retained by present incumbents of [these positions and all other] positions identified in this section which have previously been subject to this law.

2. All positions in the executive branch transferred to coverage under this chapter where incumbents of such positions have at least twelve months prior service on the effective date of such transfer shall have incumbency preference and shall be permitted to retain their positions, provided they meet qualification standards acceptable to the [personnel] division of personnel of the office of administration. An employee with less than twelve months of prior service on the effective date of such transfer or an employee who is appointed to such position after the effective date of such transfer and prior to the classification and allocation of the position by the [personnel] division of personnel shall be permitted to retain his or her position, provided he or she meets acceptable qualification standards and subject to successful completion of a working test period which shall not exceed twelve months of total service in the position. After the allocation of any position to an established classification, such position shall thereafter be filled only in accordance with all provisions of this chapter.

3. The system of personnel administration governs the appointment, promotion, transfer, layoff, removal and discipline of employees and officers and other incidents of employment in divisions of service subject hereto, and all appointments and promotions to positions subject to this law shall be made on the basis of merit and fitness.

4. To encourage all state employees to [submit suggestions that will reduce the costs, or improve the quality of state services] improve the quality of state services, increase the efficiency of state work operations, and reduce the costs of state programs, the director of the [personnel] division of personnel shall establish employee recognition programs, including a statewide employee suggestion system. The director shall determine reasonable rules and shall provide reasonable standards for determining the [amount] monetary awards, not to exceed five thousand dollars, [of any award that may be given for a suggestion] under the employee suggestion system. Awards shall be made from funds appropriated for this purpose.

5. At the request of the senate or the house of representatives, the commissioner of administration shall submit a report [to the president pro tem of the senate and the speaker of the house of representatives each year] on the employee suggestion award program described in subsection 4 of this section. [The report shall include information regarding:

(1) The number of suggestions made;

(2) The number of suggestions approved for implementation;

(3) The actual and estimated cost savings resulting from employee suggestions; and

(4) The amount of cash awards made to employees for adopted suggestions.]

36.031. Any provision of law to the contrary notwithstanding, except for the elective offices, institutions of higher learning, the department of highways and transportation, the department of conservation, those positions in the Missouri state highway patrol the compensation of which is established by [sections 43.070] subdivision (2) of subsection 2 of section 43.030 and section 43.080, RSMo, and those positions for which the constitution specifically provides the method of selection, classification, or compensation, and the positions specified in [subsection 1 of this section] subsection 1 of section 36.030, but including attorneys, those departments, agencies and positions of the executive branch of state government which have not been subject to these provisions of the state personnel law shall [after July 1, 1991,] be subject to the provisions of sections 36.100, 36.110, 36.120 and 36.130, and the regulations adopted under sections 36.100, 36.110, 36.120 and 36.130 which relate to the preparation, adoption and maintenance of a position classification plan, the establishment and allocation of positions within the classification plan and the use of appropriate class titles in official records, vouchers, payrolls and communications. Any provision of law which confers upon any official or agency subject to the provisions of this section the authority to appoint, classify or establish compensation for employees shall mean the exercise of such authority subject to the provisions of this section. This section shall not extend coverage of any section of chapter 36, except those specifically named in this section, to any agency or employee. In accordance with sections 36.100, 36.110, 36.120 and 36.130, and after consultation with appointing authorities, the director of the [personnel] division of personnel shall conduct such job studies and job reviews and establish such additional new and revised job classes as he or she finds necessary for appropriate classification of the positions involved. Such classifications and the allocation of positions to classes [shall be established as soon as practicable but not later than December 31, 1994, and] shall be maintained [thereafter] on a current basis by the [personnel] division of personnel. The director of the [personnel] division of personnel shall, at the same time, notify all affected agencies of the appropriate assignment of each job classification to one of the salary ranges within the pay plan then applicable to merit system agencies. [Not later than July 1, 1996, and] Thereafter, the affected agencies and employees in the classifications set under this section shall be subject to the pay plan and rates of compensation established and administered in accordance with the provisions of this section, and the regulations adopted under this section, on the same basis as for merit agency employees. In addition, any elected official, institution of higher learning, the department of highways and transportation, the department of conservation, the general assembly, or any judge who is the chief administrative officer of the judicial branch of state government may request the division of personnel to study salaries within the requestor s office, department or branch of state government for classification purposes.

36.040. The [personnel] division of personnel of the office of administration, the administrative head of which is the personnel director, shall administer this law and render the services to the departments and divisions subject to the law that are necessary and desirable to assist the officials in discharging their responsibility for maintaining and increasing the effectiveness of personnel administration. The division will provide consultation and expertise in personnel management to all agencies to assist in the accomplishment of the missions of those agencies.

36.050. 1. The personnel advisory board [of three members] and its functions, duties and powers prescribed in chapter 36 is transferred by type III transfer to the office of administration [effective July 1, 1980. Members of the board in office on September 28, 1979, shall continue in their positions until the expiration of their terms].

2. The personnel advisory board shall consist of seven members. Five members of the board shall be public members, citizens of the state who are not state employees or officials, of good character and reputation, who are known to be in sympathy with the application of merit principles to public employment. Two members shall be employees of state agencies covered by section 36.030 or section 36.031, one a member of executive management, and one a nonmanagement employee. Members who are employees shall not participate in disciplinary appeal decisions from their agencies. No member of the board, during his or her term of office, or for at least one year prior thereto, shall be a member of any local, state or national committee of a political party or an officer or member of a committee in any partisan political club or organization, or hold, or be a candidate for, a partisan public office. An employee member who leaves state employment or otherwise fails to further qualify for the appointment shall vacate the position.

[2.] 3. The members of the board shall be appointed by the governor by and with the advice and consent of the senate. [Beginning with 1960 a member shall be appointed every two years for a term of six years to take the place of the member appointed under section 5 of Laws of 1945, page 1157, whose term expires that year.] The three current members of the board serving terms which expire July 31, 1998, July 31, 2000, and July 31, 2002, shall continue to serve for the terms for which they were previously appointed. One new public member shall be appointed for a term ending July 31, 1998, one new public member shall be appointed for a term ending July 31, 2000, and the two employee members shall be appointed for terms ending July 31, 2002. The subsequent appointments of all members shall be for terms of six years. Any vacancy shall be filled by an appointment for the unexpired term. Each member of the board holds office until his or her successor is appointed and qualified.

[3.] 4. A member of the board is removable by the governor only for just cause, after being given a written notice setting forth in substantial detail the charges against him and an opportunity to be heard publicly on the charges before the governor. A copy of the charges and a transcript of the record of the hearing shall be filed with the secretary of state.

[4.] 5. Each public member of the board shall be paid an amount for each day devoted to the work of the board which shall be determined by the commissioner of administration and filed with the reorganization plan of the office of administration; provided, however, that such amount shall not exceed that paid to members of boards and commissions with comparable responsibilities. All board members are entitled to reim- bursement for necessary travel and other expenses pertaining to the duties of the board. Duties performed for the board by any employee member of the board shall be considered duties in connection with the appointment of the individual, and he or she shall suffer no loss of regular compensation by reason of performance of such duties.

[5.] 6. The board shall elect [one of its members chairman] from among its membership a chairman and vice chairman, who shall act as chairman in his or her absence. It shall meet at the times and places specified by call of the chairman, the governor, or the director. At least one meeting shall be held every three months. All regular meetings are open to the public. Notice of each meeting shall be given in writing to each member by the director. Two members shall constitute a quorum until January 1, 1997, thereafter, four members shall constitute a quorum for the transaction of official business.

[6.] 7. To assist in the performance of its duties the board may employ [an administrative assistant and a secretary] staff from funds appropriated for this purpose; provided, however, that this provision shall not be interpreted to limit the ability of the personnel director to provide assistance to the board.

36.100. 1. The director shall ascertain the duties, authority and responsibilities of all positions subject to this law. After consultation with the appointing authorities, he or she shall prepare and recommend to the board, and maintain on a continuing basis, a position classification plan, which shall group all positions in the classified service in classes, based on their duties, authority and responsibilities. Except as provided in subsection 2 of this section, the position classification plan shall set forth, for each class of positions, a class title and a statement of the duties, authority and responsibilities thereof, and the qualifications that are necessary or desirable for the satisfactory performance of the duties of the class; provided, that no plan shall be adopted which prohibits the substitution of experience for education for each class of positions, [excepting such class of positions as may be designated by the appointing authorities as required to be filled on the basis of education qualifications in order to comply with federal law or regulations] except that the board may determine that there is no equivalent substitution in particular cases. Classifications should be sufficiently broad in scope to include as many comparable positions as possible both on an intra- and inter-departmental basis, including both merit and nonmerit agencies.

2. The classification plan may group management positions with similar levels of responsibility or expertise into broad classification bands.

3. The director shall require an initial and ongoing review of the number of classifications in each division of service and shall, in consultation with the agencies, eliminate and combine classes when [he finds that this is] possible, taking into consideration the recruitment, examination, selection and compensation of personnel in the various classes. [Beginning on July 1, 1980, and annually thereafter, the director shall report to the general assembly the total number of classes in effect, the number added and deleted during the year, and identify all new classes in terms of the agency or agencies in which they are used. On or before July 1, 1981, the number of classes in the plan relating to divisions of service and positions subject to the merit system on September 28, 1979, shall not exceed eleven hundred.]

36.110. [As promptly as practicable and within not more than six months after the adoption of the classification plan, and] After consultation with appointing authorities, the director shall allocate each position in the classified service to the appropriate class therein on the basis of its duties, authority and responsibilities. The director may delegate allocation authority to the appointing authorities for positions in classes in their divisions of service within standards and limits which have been developed in consultation with and agreed to by the appointing authorities. Any employee affected by the allocation of a position to a class, whether by the director or by the appointing authority, shall, after filing with the director a written statement setting forth reasons for requesting a consideration thereof, be given a reasonable opportunity to be heard thereon by the director.

36.120. 1. Before establishing a new position in divisions of the service subject to this law, or before making any permanent and substantial change of the duties, authority or responsibilities of a position subject to this law, an appointing authority shall notify the director in writing of his or her intention to do so, except where the positions may be allocated by the appointing authority.

2. The director may at any time allocate any new position to a class, or change the allocation of any position to a class, or recommend to the board changes in the classification plan. Any change in the classification plan recommended by the director shall take effect when approved by the board, or on the ninetieth day after it is recommended to the board if prior thereto the board shall not have disapproved it. In case of necessity requiring the immediate establishment of a new class, the director may establish such a class on an interim basis pending approval of the class by the board as recommended by the director.

3. When the allocation of a position to a class is changed, the director shall notify the appointing authority. If allocation authority is delegated, the appointing authority shall notify the director of any changes in the allocation. If the position is filled at the time of reallocation to a class, the appointing authority shall immediately notify the incumbent of the position regarding the allocation change. If the incumbent does not agree with the new allocation, he or she may, under conditions specified in the rules, submit to the director a request for a review of the allocation of the position.

4. If any change is made in the classification plan by which a class of positions is divided, altered, or abolished, or classes are combined, the director shall forthwith reallocate the positions affected to their appropriate classes in the amended classification plan. [A regular] An employee who is occupying a position reallocated to a different class shall, subject to the regulations, be given the same status in the new class as [a regular employee] previously held in the class [to] from which his or her position is reallocated. The director may require that the employee achieve a satisfactory grade on a noncompetitive test of fitness for the class to which his or her position has been reallocated.

5. After a class of positions has been approved by the board, the director is authorized to make such changes in the class title or in the statement of duties and [required] qualifications for the class as [he] the director finds necessary for current maintenance of the classification plan; provided, however, that changes which materially affect the nature and level of a class or which involve a change in salary range for the class shall be approved by the board.

36.140. 1. After consultation with appointing authorities and the state fiscal officers, and after a public hearing, the director shall prepare and recommend to the board a pay plan for all classes subject to this law. The pay plan shall include, for each class of positions, a minimum and a maximum rate, and such provision for intermediate rates as the director considers necessary or equitable. The pay plan may include provision for grouping of management positions with similar levels of responsibility or expertise into broad classification bands for purposes of determining compensation and for such salary differentials and other pay structures as the director considers necessary or equitable. In establishing the rates, the director shall give consideration to the experience in recruiting for positions in the state service, the rates of pay prevailing in the state for the services performed, and for comparable services in public and private employment, living costs, maintenance, or other benefits received by employees, and the financial condition and policies of the state. These considerations shall be made on a statewide basis and shall not make any distinction based on geographical areas or urban and rural conditions. The pay plan shall take effect when approved by the board and the governor, and each employee appointed to a position subject hereto after the adoption of the pay plan shall be paid [at one of the rates set forth in] according to the provisions of the pay plan for the [class of positions] position in which he or she is employed; provided, that the commissioner of administration certifies that there are funds appropriated and available to pay the adopted pay plan. The pay plan shall also be used as the basis for preparing budget estimates for submission to the legislature insofar as such budget estimates concern payment for services performed in positions subject hereto. Amendments to the pay plan may be recommended by the director from time to time as circumstances require and such amendments shall take effect when approved as provided by this section. The conditions under which employees may be appointed at a rate above the minimum provided for the class, or advance from one rate to another within the rates applicable to their positions, shall be determined by the regulations.

2. [Upon September 28, 1973, the minimum and maximum rate for each class of positions shall be made uniform throughout the state and shall be set at the highest minimum and maximum rate then in effect in this state for that class of positions.] Any [subsequent] change in [rates] the pay plan shall be made on a uniform statewide basis. No [merit system] employee in a position subject to this law shall receive more or less compensation than another [merit system] employee in a position subject to this law solely because of the geographical area in which he or she lives or works.

[3. No merit system employee shall receive any decrease in compensation due to the provisions of this section.]

36.170. 1. The director shall from time to time conduct such open competitive and promotional examinations as he considers necessary. The examinations shall be of such character as to determine the relative qualifications, fitness and ability of the persons tested to perform the duties of the class for which a register is to be established. No question shall be so framed as to elicit information concerning the political or religious opinions or affiliations of an applicant.

2. Agencies may request authority from the director to administer examinations for all positions [except those involving substantial administrative or supervisory responsibility,] in accordance with rules adopted by the board. When such a request is approved, the director, in accordance with rules established by the board, shall establish standards and guidelines to be followed. [Only examinations prepared and validated by the personnel division will be used. The division shall at least annually audit these examination programs.]

3. [All examinations for positions involving substantial administrative or supervisory responsibility shall be open, competitive examinations.

4.] Under rules promulgated by the board, appointing authorities may request that the [personnel] division of personnel administer promotional examinations limited to those already employed by the state or within the department or division of service involved.

[5.] 4. All examinations conducted by the director shall be conducted in a location which is fully accessible to [the handicapped] persons with disabilities or if such a facility is not available in a given location for such regular examinations, a special examination will be arranged upon request of [a handicapped] an applicant with a disability in a facility which is fully accessible.

36.180. 1. The standards of education or experience in the classification plan for each class shall be established on the basis of specified knowledge, skills and abilities. Admission to examinations shall be open to all persons who possess the [required] qualifications and who may be lawfully appointed to a position in the class for which a register is to be established. The regulations may also require that applicants achieve at least a satisfactory grade in each progressive part of the examination in order to be admitted to subsequent parts of the examination or to receive a final passing score.

2. To insure competitive equality between the hearing impaired or the blind and persons not so [handicapped] disabled, the applicant may request from the director the furnishing of a certified interpreter for the hearing impaired or an amanuensis or a reader for the blind when necessary, and the furnishing of a place to take such examination, or such other similar prerequisites to insure equality in such examination.

3. The director may reject the application of any person for admission to an examination, strike the name of any person from the register, refuse to certify the name of any person, or withdraw the certification of a person if he or she finds that the person lacks any of the [required] qualifications, has been convicted of a crime which raises questions about his or her qualifications, has been dismissed from the public service for delinquency, has made a false statement of a material fact or practiced or attempted to practice any fraud or deception, in his or her application or examination or in attempting to secure appointment.

4. The director may take such action as is authorized in subsection 3 of this section if he finds the person has a health condition or disability which would clearly prohibit the person from performing the duties required for the position for which the applicant has applied.

36.190. 1. The director shall give public notice of each open competitive and promotional examination sufficiently in advance of such examination and sufficiently widespread in scope to afford persons who are interested in participating in the examination a reasonable opportunity to apply. [The time elapsing between the official announcement of an examination and the holding of such examination shall be not less than two calendar weeks, except that a lesser period of advance notice may be permissible under the regulations when the examination is conducted under the provisions of subsection 3 of section 36.320.]

2. Each official notice of an examination shall state the title, duties, [and] pay and qualifications of positions [in the class] for which the examination is to be held[,]; the [necessary or desirable qualifications required therefor, the] time, place and manner of making application for admission to such examination[,]; and any other information which the director considers pertinent and useful.

3. The director shall insure that the official announcement of an examination is given the widest distribution necessary to inform qualified persons that the examination is being given. The director may use any means that he or she considers necessary to inform qualified persons about the examination. These include, but are not limited to, paid advertisements in newspapers, periodicals, electronic media and announcements to educational institutions. The director may also publish a periodic bulletin containing information about examinations to be sent to subscribers at a price approximating the cost of publication.

36.210. Other provision of the law to the contrary notwithstanding, special procedures for the examination and selection of personnel are authorized as follows:

(1) For positions involving unskilled or semiskilled labor, or domestic, attendant, custodial or comparable work, when the character or place of the work makes it impracticable to supply the needs of the service by appointments made in accordance with the procedure prescribed in other provisions of this chapter, the director, in accordance with the regulations, shall authorize the use of such other procedures as he determines to be appropriate in order to meet the needs of the service, while assuring the selection of such employees on the basis of merit and fitness. Such procedures, subject to the regulations, may include the testing of applicants and maintenance of registers of eligibles by localities; the testing of applicants, singly or in groups, at periodic intervals, at the place of employment or elsewhere, after such notice as the director considers adequate; the registration of applicants who pass a noncompetitive examination or submit satisfactory evidence of their qualifications, and appointment of registered applicants; or any variation or combination of the foregoing or other suitable methods. When the director finds noncompetitive registration and selection procedures to be appropriate, he is hereby authorized to delegate to each appointing authority the responsibility for such registration and for selection and appointment of registered applicants. When such delegation is made, the director shall establish the necessary guidelines and standards for appointing authorities and shall require such reports and perform such audits as he deems necessary to insure compliance with these guidelines and standards.

(2) The regulations may prescribe the conditions under which interns, trainees, and participants in special state or federal training, rehabilitation, and employment programs who successfully complete a period of internship or training may be appointed to a permanent position subject hereto after passing a noncompetitive qualifying examination.

(3) The [director shall] board may, in accordance with the regulations, waive competitive examinations [for professional positions which require a state license or certificate for the practice of the profession, providing that the director determines that competitive examinations are not practicable or] for a class or position if it finds that the supply of qualified applicants is generally insufficient to justify competitive examinations and provide meaningful competition in the selection of employees. A request that competitive examination be waived for a particular class or position under this provision may be made to the board by the director or an appointing authority. The board shall review determinations under this provision at least annually. Upon waiving such examinations, the [director] regulations of the board shall provide for the registration and appointment of applicants who present satisfactory evidence of their [professional] qualifications.

(4) Upon the approval of the director in accordance with the regulations of the board, appointing authorities may promote employees[, to other than positions with substantial administrative or supervisory responsibility,] on the basis of a qualifying noncompetitive examination[; provided, however, that this provision shall not apply to persons who have entered the service in their current position on other than an open competitive basis]. Such noncompetitive promotions may be approved in, but are not necessarily limited to, situations in which the promotion represents a normal progression to the next higher level within an established occupational job series, or where the director determines that an employee has been an assistant, understudy or trainee for the position involved or otherwise has had such specific experience or training that a noncompetitive promotion to the position in question is to the best interests of the state service.

(5) Appointing authorities may request, under regulations established by the board, to conduct alternative promotional procedures for positions and classes in their divisions of service. The board shall approve such alternative procedures which it finds to be in keeping with merit principles and the best interests of the state service. Upon approval, the appointing authority shall be responsible to conduct promotional procedures in accordance with the board s approval and without favoritism, prejudice or discrimination. The board may withdraw approval under this provision if it finds that this responsibility has not been met.

(6) Where appropriate, the director may establish registers by locality for selected classes.

36.240. 1. Whenever an appointing authority proposes to fill one or more vacancies in a class of positions subject hereto, he shall submit to the director, as far in advance of the desired appointment date as possible, a requisition for the certification of eligible persons from an appropriate register. The requisition shall contain information as required by the director. The appointing authority, subject to conditions specified in the regulations, may also designate special requirements of domicile or the possession of special skills. If the director finds that such requirements would contribute substantially to effective performance of the duties involved, certification may be limited to persons on the register who meet such requirements.

2. When vacancies to be filled are in a class from which employees have been laid off, or demoted in lieu of layoff, certification shall be limited to previous employees until all employees of a division of service on the appropriate reinstatement register have been reinstated in order of rank on the register. Thereafter, certification from reinstatement and other registers shall be in accordance with the provisions of this section and the regulations of the board.

3. Upon a request for certification, the director shall certify for selection the names of the top [ten] fifteen ranking available eligibles or the names of available eligibles comprising the top ranking fifteen percent of available eligibles, whichever is greater, plus such additional eligibles as have a final rating equal to that of the [tenth ranking] last certified eligible[; however, the director may continue to certify a lesser number until July 1, 1980, unless funding for implementation of this provision is provided prior thereto. If there are less than five available eligibles on the register, the appointing authority may fill the vacancy according to the provisions of section 36.260]. Upon request of the appointing authority, the director may also certify, for each additional vacancy to be filled from the same certification, the next five ranking available eligibles plus such additional eligibles as have a final rating equal to that of the last certified eligible.

4. If the director finds that the nature of the examination process and the type of positions involved justify alternative procedures for filling vacancies, the board may by rule prescribe such procedures which may include certification by broad category of examination rating or within a specified range of scores.

5. When a position in divisions of the service subject to this law is limited in duration, certification may be limited to the highest ranking eligible who will accept employment under such conditions. A person appointed to a position under such conditions shall retain his relative position on the register and shall be eligible for certification to a permanent position in the regular order until the register itself has expired. If a temporary position is limited to less than ninety calendar days duration, the appointing authority may fill the position by temporary appointment in the manner provided in section 36.270.

6. The rules shall prescribe the conditions under which the name of an eligible who has been certified to and considered for appointment by an appointing authority but has not been appointed may be withheld from further certification to such appointing authority. The eligible shall be entitled to retain his place on the eligible register during the life of the register, and shall be certified in the order of his rank to other vacancies in the class under other appointing authorities.

7. Eligibles who are not available for appointment when offered certification shall be granted a waiver of certification upon their request. Eligibles who do not respond within a reasonable period to a notice of certification may at the discretion of the director be dropped from the eligible register.

8. Any person who has obtained regular status in a class of positions subject [hereto] to subsection 1 of section 36.030 and who has resigned from state service in good standing or who has accepted demotion or transfer for personal reasons may be reemployed without competitive certification in the same or comparable class at the discretion of the appointing authority and under conditions specified in the regulations. Any person who has successfully served at least one year in a position not subject to subsection 1 of section 36.030, but which is subject to section 36.031, and who has resigned from state service in good standing or who has accepted demotion or transfer for personal reasons, may be reemployed without competitive certification in the same or comparable class at the discretion of the appointing authority and under conditions specified in the regulations, provided he or she possesses the qualifications and has successfully completed a noncompetitive examination for the class involved. No one shall be reemployed under this section until reinstatement has first been offered to all eligibles on the reinstatement register for the class and division of service involved.

9. Preference in certification and appointment from promotional registers or registers of eligibles [except for positions involving substantial supervisory or management responsibility may,] under conditions specified in the regulations, may be given to employees of the division of service in which the vacancy occurs.

36.250. 1. Every person appointed to a permanent position subject hereto shall be required to successfully complete a working test during a probationary period which shall be of sufficient length to enable the appointing authority to observe the employee s ability to perform the various duties pertaining to the position.

2. The board shall by regulation establish the standards governing normal length of the probationary period for different classes of positions. The regulations shall specify the criteria for reducing or lengthening the probationary period for individuals within the various classes. The minimum probationary period shall be three months. The maximum probationary period shall be eighteen months for top professional personnel and personnel with substantial supervisory or administrative responsibilities, and twelve months for all others. However, a probationary period shall not be required for an employee reinstated within two years after layoff or demotion in lieu of layoff by the same division of service.

3. [At least ten days] Prior to the expiration of an employee s probationary period, the appointing authority shall notify the director and the employee in writing whether the services of the employee have been satisfactory and whether he or she will continue the employee in his or her position. [A copy of the notice shall be given to the employee.] No employee shall be paid for work performed after the expiration of his or her probationary period unless[, prior to the performance of such work,] the appointing authority has notified the director and the employee that the employee will be [continued in his position] given a regular appointment or, if applicable, have the probationary period extended.

4. At any time during the probationary period the appointing authority may remove an employee if, in the opinion of the appointing authority, the working test indicates that the employee is unable or unwilling to perform the duties of the position satisfactorily. Upon removal, the appointing authority shall forthwith report to the director and to the employee removed, in writing, his action and the reason thereof. No more than three employees shall be removed successively from the same position during their probationary periods without the approval of the director. An employee who is found by the director to have been appointed through fraud shall be removed within ten days of notification of the appointing authority.

5. If an employee is removed from his position during, or at the end of, his probationary period, and the director determines that he is suitable for appointment to another position, his name shall be restored to the register from which it was certified. An employee appointed from a promotional register who does not successfully complete his probationary period shall, if otherwise eligible for retention in employment, be reinstated in a position in the class occupied by the employee immediately prior to his promotion or in a comparable class.

36.260. 1. When an appointing authority finds it essential to fill a vacancy in a position subject hereto, and, with at least thirty days notice of the vacancy, the director is unable to certify [eligibles for such vacancy because there is no existing appropriate register, or because there is not a sufficient number of persons on appropriate registers who are willing to accept appointment] the names of at least ten available eligibles, the director may authorize the appointing authority to fill the vacancy by means of a provisional appointment. The appointing authority shall forthwith submit a statement containing the name of a person nominated by the appointing authority for provisional appointment to the position, which statement shall contain a description of the qualifications of training and experience possessed by that person, and such other information as may be required by the regulations. If such nominee is found by the director to possess experience and training which [appear to qualify him] meet the qualifications for the position, [he] the director may approve the provisional appointment [for a temporary period].

2. No provisional appointment shall be made without the [prior] approval of the director[, and no payment shall be made for services rendered by the appointee prior to such approval].

3. [A provisional appointment shall expire automatically four months from the date of such appointment, except that the director may approve the extension of a provisional appointment up to a maximum of eight additional months. Any provisional appointment shall be terminated automatically within two calendar weeks of the date on which the director notifies the appointing authority that he is able to certify eligibles from an appropriate register.] The duration of a provisional appointment shall be the same as the duration of the probationary period established for the position. A provisional appointee who successfully completes the working test of the probationary period may receive a regular appointment without examination.

[4. Successive provisional appointments of the same individual shall not be made.]

36.280. 1. An appointing authority may at any time assign an employee from one position to another position in the same class in his division except that transfers of employees made because of a layoff, or shortage of work or funds which might require a layoff, shall be governed by the regulations. Upon making such an assignment the appointing authority shall forthwith give written notice of his action to the director. A transfer of an employee from a position in one division to a position in the same class in another division may be made with the approval of the director and of the appointing authorities of both divisions. No employee shall be transferred from a position in one class to a position in another class of a higher rank or for which there are substantially dissimilar requirements for appointment unless he is appointed to such latter position after certification of his name from a register in accordance with the provisions of this chapter. Any change of an employee from a position in one class to a position in a class of lower rank shall be considered a demotion and shall be made only in accordance with the procedure prescribed by section 36.380 for cases of dismissal. An employee thus involuntarily demoted shall have the right to appeal to the board under section 36.390.

2. An employee who has successfully served at least one year in a position not subject to subsection 1 of section 36.030, but which is subject to section 36.031, may be transferred to a position subject to subsection 1 of section 36.030 in the same class with the approval of the director and of the appointing authorities of both divisions, provided he or she possesses the qualifications and has successfully completed a noncompetitive examination for the position involved.

36.300. [As soon thereafter as a register of eligibles can be established,] Vacancies in the divisions of the service subject thereto shall be filled only by:

(1) Appointment of an eligible certified by the director [from a register] under section 36.240; or

(2) Provisional appointment under section 36.260; or

(3) Emergency appointment under section 36.270; or

(4) Transfer or demotion of a regular employee under section 36.280; or

(5) Promotion under section 36.240 or section 36.210; or

(6) Reemployment as provided in section 36.240; or

(7) [Noncompetitive] Other appointment authorized in this chapter.

36.320. 1. The director shall establish and maintain such promotional registers and registers of eligibles for the various classes of positions subject hereto as he deems necessary or desirable to meet the needs of the service. On each promotional register and register of eligibles, the eligibles shall be ranked in the order of their ratings earned in a test given for the purpose of establishing or replenishing such a register.

2. The time during which a promotional register or register of eligibles remains in force shall be one year from the date on which it is officially established by the director, except that, before the expiration of a register, the director may by order extend the time during which such register remains in force when the needs of the service so require. In no event shall the total period during which a register is in force exceed three years from the date on which the register was originally established. [An order extending the period during which a register is in force shall contain a statement of the reasons for the extension, and the order shall be entered in the records of the personnel division.] The director may consolidate or cancel promotional registers and registers of eligibles as the needs of the service require, and as authorized by the regulations.

3. In circumstances where there is a continuous need for substantial numbers of eligibles for a certain class of positions, the director may, after first establishing such a register, replenish the register from time to time by inserting the names of additional eligibles who are found to be qualified on the basis of [tests of fitness substantially] determinations similar to [the test] those used as a basis for establishing the original register. The method for establishing, replenishing, and canceling such a register shall be determined by the regulations.

36.330. 1. No state disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal service to any person employed in a division of service subject hereto unless [prior to such payment the director or his authorized agent shall have certified that] such person [has been] is appointed and employed in accordance with the provisions of this chapter and the regulations adopted hereunder. Changes in employment conditions or status which are governed by this chapter and the regulations adopted hereunder shall be subject to the same [certification] conditions. The director shall establish the procedures necessary to secure compliance with this section.

2. Any sum paid contrary to any provision of this chapter or of any regulations adopted hereunder may be recovered for the state in an action maintained by any citizen of Missouri, from any officer who made, approved or authorized such payment or who signed or countersigned a voucher, payroll, check or warrant for such payment, or from the sureties on the official bond of any such officer. All moneys recovered in any such action shall be paid into the state treasury. Any citizen of Missouri may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this chapter, or of any regulations adopted hereunder.

3. If the director wrongfully withholds certification of any employee under this section, such employee may maintain a proceeding to compel the director to make the appropriate certification.

36.360. In accordance with the regulations, an appointing authority may lay off an employee in a position subject to this law whenever he or she deems it necessary by reason of shortage of work or funds, or the abolition of a position or other material change in duties or organization. No regular employee shall be laid off while a person is employed on a provisional or temporary basis in the same class in that division. The seniority and [service ratings] ability of employees to do the remaining work shall be considered, in such manner as the regulations shall provide, among the factors in determining the order of layoffs. The appointing authority shall give written notice to the director of every proposed layoff a reasonable time before the effective date thereof, and the director shall take such action relating thereto as he or she considers necessary to secure compliance with the regulations. The name of every regular employee so laid off shall be placed on the appropriate reinstatement register.

36.390. 1. An applicant whose request for admission to any examination has been rejected by the director may appeal to the board in writing within fifteen days of the mailing of the notice of rejection by the director, and in any event before the holding of the examination. The board s decision on all matters of fact shall be final.

2. Applicants may be admitted to an examination pending a consideration of the appeal, but such admission shall not constitute the assurance of a passing grade in education and experience.

3. Any applicant who has taken an examination and who feels that he or she has not been dealt with fairly in any phase of the examination process may request that the director review his or her case. Such request for review of any examination must be filed in writing with the director within thirty days after the date on which notification of the results of the examination was mailed to the applicant. A candidate may appeal the decision of the director in writing to the board. This appeal must be filed with the [director] board within thirty days after date on which notification of the decision of the director was mailed to the applicant. The board s decision with respect to any changes shall be final, and shall be entered in the minutes. A correction in the rating shall not affect a certification or appointment which may have already been made from the register.

4. An eligible whose name has been removed from a register for any of the reasons specified in section 36.180 or in section 36.240 may appeal to the board for reconsideration. Such appeal must be filed in writing at the office of the director within thirty days after the date on which notification was mailed to the board. The board, after investigation, shall make its decision which shall be recorded in the minutes and the eligible shall be notified accordingly by the director.

5. Any regular employee who is dismissed or involuntarily demoted for cause or suspended for more than five working days may appeal in writing to the board within thirty days after the effective date thereof, setting forth in substance his reasons for claiming that the dismissal, suspension or demotion was for political, religious, or racial reasons, or not for the good of the service. Upon such appeal, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard and to present evidence at a hearing which, at the request of the appealing employee, shall be public. At the hearing of such appeals, technical rules of evidence shall not apply. After the hearing and consideration of the evidence for and against a suspension or demotion, the board shall approve or disapprove such action and in the event of a disapproval the board shall order the reinstatement of the employee to his former position and the payment to the employee of such salary as he has lost by reason of such suspension or demotion. After the hearing and consideration of the evidence for and against a dismissal, the board shall approve or disapprove such action and may make any one of the following appropriate orders:

(1) Order the reinstatement of the employee to his former position and the payment to the employee of part or all of such salary as has been lost by reason of such dismissal;

(2) Sustain the dismissal of such employee, unless the board finds that the dismissal was based upon political, social, or religious reason, in which case it shall order the reinstatement of the employee to his former position and the payment to the employee of such salary as has been lost by reason of such dismissal;

(3) Except as provided above the board may sustain the dismissal, but may order the director to recognize reemployment rights for the dismissed employee under section 36.240, in an appropriate class or classes, or may take steps to effect the transfer of such employee to an appropriate position in the same or another division of service.

6. The board shall establish such rules as may be necessary to give effect to the provisions of this section. The rules may provide that the board or the chairman of the board may delegate responsibility for the conduct of investigations and the hearing of appeals provided under any section of this law to a member of the board or to a hearing officer designated by the board. Such hearing officer shall have the power to administer oaths, subpoena witnesses, compel the production of records pertinent to any hearing, and take any action in connection with such hearing which the board itself is authorized to take by law other than making the final decision and appropriate order. When the hearing has been completed, the individual board member or the hearing officer who conducted the hearing shall prepare a summary thereof and recommend a findings of fact, conclusions of law, decision and appropriate order for approval of the board. The board may adopt such recommendations in whole or in part, require the production of additional testimony, reassign the case for rehearing, or may itself conduct such new or additional hearing as is deemed necessary prior to rendering a final decision. The board may also establish rules which provide for alternative means of resolving one or more of the types of appeals outlined in this section.

7. The provisions for appeals provided in subsection 5 for dismissals of regular merit employees may be adopted by nonmerit agencies of the state for any or all employees of such agencies.

8. Agencies not adopting the provisions for appeals provided in subsection 5 shall adopt dismissal procedures substantially similar to those provided for merit employees. However, these procedures need not apply to employees in policymaking positions, or to members of military or law enforcement agencies[, or to employees of academic institutions].

9. The hearing shall be deemed to be a contested case and the procedures applicable to the processing of such hearings and determinations shall be those established by chapter 536, RSMo. Decisions of the personnel advisory board shall be final and binding subject to appeal by either party. Final decisions of the personnel advisory board under this subsection shall be subject to review on the record by [the administrative hearing commission or by] the circuit court pursuant to chapter 536, RSMo[, but not both, at the election of the appealing party].

36.510. 1. In addition to other duties specified elsewhere in this chapter, it will be the duty of the director to perform the following functions in all agencies of state government:

(1) Develop, initiate and implement a central training program for personnel in agencies of state government and encourage and assist in the development of such specialized training activities as can best be administered internally by these individual agencies;

(2) Establish a management trainee program and prescribe rules for the establishment of a career executive service for the state;

(3) Formulate for approval of the board regulations regarding mandatory training for persons employed in management positions in state agencies;

(4) Institute, coordinate and direct a statewide program for recruitment of personnel in cooperation with appointing authorities in state agencies;

(5) Assist all state departments in setting productivity goals and in implementing a standard system of performance appraisals;

(6) Establish and direct a central labor relations function for the state which shall coordinate labor relations activities in individual state agencies, including participation in negotiations and approval of agreements relating to uniform wages, benefits and those aspects of employment which have fiscal impact on the state; and

(7) Formulate rules for approval of the board and establish procedures and standards relating to position classification and compensation of employees which are designed to secure essential uniformity and comparability among state agencies. [This section shall become effective on July 1, 1980, and the director shall prior to that time initiate the required study and investigate to determine the resources needed for its implementation. The director shall submit a description of the proposed scope of programs to be implemented and a request for necessary funding to the governor and the general assembly.]

2. Any person who is employed in a position subject to merit system regulations and who engaged in a strike or labor stoppage shall be subject to the penalties provided by law.