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H.B. 316
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EXPANSION OF CAREER SERVICE TO THE
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OFFICE OF ATTORNEY GENERAL
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2007 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Rebecca D. Lockhart
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Senate Sponsor:
Curtis S. Bramble
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LONG TITLE
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General Description:
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This bill modifies Title 67, State Officers and Employees, to move employees of the
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Office of the Attorney General from career service and classified service provisions
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under the Department of Human Resource Management to their own career service
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system.
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Highlighted Provisions:
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This bill:
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. expands the career service system now applicable to attorneys employed by the
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Office of the Attorney General to include all employees employed by the Office of
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the Attorney General;
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. expands the exemption from classified service provisions under the Department of
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Human Resource Management from attorneys employed in the Office of the
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Attorney General to include all employees employed by the Office of the Attorney
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General;
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. expands the exemption from career service provisions under the Department of
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Human Resource Management to all employees in the Office of the Attorney
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General; and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill takes effect on July 15, 2007.
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Utah Code Sections Affected:
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AMENDS:
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67-5-7, as last amended by Chapter 139, Laws of Utah 2006
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67-5-8, as last amended by Chapter 203, Laws of Utah 1985
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67-5-9, as last amended by Chapter 139, Laws of Utah 2006
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67-5-11, as last amended by Chapter 92, Laws of Utah 1987
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67-5-12, as last amended by Chapter 139, Laws of Utah 2006
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67-5-13, as last amended by Chapter 203, Laws of Utah 1985
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67-19-12, as last amended by Chapter 139, Laws of Utah 2006
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67-19-15, as last amended by Chapter 139, Laws of Utah 2006
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
67-5-7
is amended to read:
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67-5-7. Establishment of career service system.
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(1) The purpose of this chapter is to establish a career service system for [attorneys
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employed by] employees of the Office of the Attorney General that will attract and retain
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[attorneys] employees of proven ability and experience who will devote their full time to the
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service of the state.
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(2) The Office of the Attorney General may adopt [rules] policies necessary to
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implement this chapter, including personnel and work [rules] policies different from those
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[promulgated] made by the Department of Human Resource Management.
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Section 2.
Section
67-5-8
is amended to read:
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67-5-8. Eligibility for career service status.
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(1) (a) The attorney general has sole authority to determine who may be employed with
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the [attorney general's office. No attorney employed by] Office of the Attorney General.
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(b) An employee of the state or any of its departments or agencies has [any] no claim
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or right to a position in the attorney general's office by virtue of that employment.
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(2) (a) An [attorney employed by] employee of the [attorney general's office] Office of
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the Attorney General shall be placed in a career service status if:
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[(a)] (i) for an employee who is an attorney, the attorney is a member in good standing
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of the Utah State Bar Association; and
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[(b)] (ii) except as provided in Subsection (3), the [attorney] employee has been
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employed by the [attorney general's office] Office of the Attorney General as [an attorney for] a
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probationary employee for a period of:
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(A) at least one year but no more than [one year except as provided in Subsection (3),
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but in no event less than six months. No attorney] 18 months; or
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(B) in the case of investigators, at least 18 months, but no more than two years.
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(b) An employee now employed by the attorney general's office in career service may
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not be terminated under this chapter except for cause.
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(3) (a) The attorney general shall determine whether an [attorney] employee should be
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granted career service status.
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(b) If, at the end of the probationary period established under Subsection (2), the
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attorney general determines that an [attorney] employee should be granted career service status,
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the attorney general shall notify the [attorney] employee in writing of that decision and place a
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copy of the notification in the [attorney's] employee's personnel file.
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(c) If the attorney general determines that career service status should not be granted,
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the attorney general may either terminate the [attorney] employee or extend the probationary
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period for a period not to exceed one year.
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(d) The attorney general shall notify the [attorney] employee in writing of that decision
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and place a copy of the notification in the [attorney's] employee's personnel file.
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(e) An [attorney] employee terminated under this section has no appeal rights under
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this chapter.
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(4) (a) [Attorneys] An attorney in career service status under this chapter shall retire
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upon attaining the age of 70 years. [Attorneys]
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(b) Subject to the provisions of Section
49-11-504
, an attorney required to retire under
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this section may be employed by the attorney general, after retirement, as a special assistant
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[attorneys] attorney general. [Any]
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(c) An attorney employed in [this] the capacity or a special assistant under Subsection
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(4)(b) is not in career service status and is subject to termination [as any other attorney
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employed by the attorney general who is not in a career service status] in accordance with
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Section
67-5-12
.
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Section 3.
Section
67-5-9
is amended to read:
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67-5-9. Reassignment of career status attorneys -- Additional compensation for
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managerial assignments -- Employment of special assistant attorneys general --
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Termination of attorneys -- Salary increases.
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This chapter does not affect the authority of the attorney general to:
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(1) assign and reassign [attorneys] employees in a career status to different positions on
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his staff. The salary of an [attorney] employee reassigned to a different position shall not be
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decreased by reason of reassignment; except that if the [attorney] employee reassigned
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occupies the position of chief deputy attorney general, the salary may be reduced by not more
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than 15% upon the assignment to a different position;
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(2) develop[, with the assistance of the Department of Human Resource Management,]
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a plan for additional compensation for career status [attorneys] employees who accept
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managerial assignments within the office. The provisions of Subsection (1) notwithstanding,
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the attorney general may discontinue any additional compensation if the [attorney] employee
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no longer holds a managerial assignment. Additional compensation provided under this
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section shall be determined by the attorney general pursuant to the plan developed by the
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Office of the Attorney General. [At such time as] If the [attorney] employee no longer holds a
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managerial assignment, and the attorney general decides to discontinue any additional
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compensation, the reduction may not place the [attorney] employee at a salary below where the
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[attorney] employee would be through normal salary increases if the [attorney] employee had
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not been in a managerial position;
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(3) employ special assistant attorneys general, who shall not be subject to this chapter,
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to represent the state in particular lawsuits or to handle particular legal matters for the state;
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(4) terminate the employment of any [attorney employed by] employee of the Office of
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the Attorney General who is not in a career service status; or
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(5) establish the salary or determine salary increases of any [attorney] employee under
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this chapter.
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Section 4.
Section
67-5-11
is amended to read:
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67-5-11. Employee accepting appointment to state position exempt from merit
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provisions -- Reinstatement in career status.
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(1) An [attorney] employee in a career status accepting appointment to a position in
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state government which is exempt from the merit provisions of Title 67, Chapter 19, Utah State
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Personnel Management Act, shall notify the attorney general in writing. Upon termination of
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the appointment, unless discharged for cause, the [attorney] employee, through written request
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of reinstatement made to the attorney general within 30 days from the effective date of
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termination from the appointment, shall be reinstated in a career status in the attorney general's
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office at a salary not less than that which he was receiving at the time of his appointment, and
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the time spent in the other position shall be credited toward seniority in the career service.
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Reinstatement shall be made no later than 60 days after the written notification required by this
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Subsection (1) or 60 days after the effective date of termination from the [attorney's]
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employee's appointive position, whichever is later. The position and assignment to which the
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[attorney] employee shall return shall be determined by the attorney general.
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(2) (a) The Office of the Attorney General shall establish and maintain a separate
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seniority list for each employee category which categories may include attorneys, investigators,
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paralegals, secretaries, and others.
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[(2)] (b) [Every attorney employed by] An employee of the [attorney general's office]
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Office of the Attorney General with less seniority than an [attorney] employee in the same
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category entitled to be reinstated under this section holds his position subject to any
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reinstatement provided by Subsection (1).
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Section 5.
Section
67-5-12
is amended to read:
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67-5-12. Dismissal of career status employees -- Causes -- Procedure -- Retention
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roster -- Reappointment register.
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(1) (a) [Attorneys] Employees in a career status may be dismissed only:
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(i) to advance the good of public service;
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(ii) where funds have expired or work no longer exists; or
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[(iii) for causes such as dishonesty, inefficiency, insubordination, disloyalty to the
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orders of a superior, misfeasance, malfeasance, or nonfeasance in office.]
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(iii) for any of the following causes or reasons:
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(A) noncompliance with provisions in the Office of Attorney General policy manual, or
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division policies, and, for attorneys, noncompliance with the Rules of Professional Conduct;
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(B) work performance that is inefficient or incompetent;
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(C) failure to maintain skills and adequate performance levels;
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(D) insubordination or disloyalty to the orders of a superior;
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(E) misfeasance, malfeasance, or nonfeasance;
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(F) failure to advance the good of the public service, including conduct on or off duty
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which demeans or harms the effectiveness or ability of the office to fulfill its mission or legal
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obligations:
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(G) conduct on or off duty which creates a conflict of interest with the employee's
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public responsibilities or impact that employee's ability to perform his or her job assignments;
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(H) any incident involving intimidation, physical harm, threats of physical harm
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against coworkers, management, or the public;
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(I) failure to meet the requirements of the position;
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(J) dishonesty; or
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(K) misconduct.
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(b) [Attorneys] Employees in career status may not be dismissed for reasons of race,
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national origin, religion, or political affiliation.
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(2) Except in aggravated cases of misconduct, [no attorney] an employee in a career
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status may not be suspended, demoted, or dismissed without the following procedures:
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(a) The attorney general or a designated representative shall notify the [attorney]
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employee of the reasons for suspension, demotion, or dismissal.
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(b) The [attorney] employee shall have an opportunity to reply and have the reply
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considered by the attorney general or a designated representative.
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(c) The [attorney] employee shall have an opportunity to be heard by the attorney
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general or [his designated representatives] a designated representative.
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(d) Following a hearing, an [attorney] employee may be suspended, demoted, or
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dismissed if the attorney general or a designated representative finds adequate reason.
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(e) If the attorney general or a designated representative finds that retention of an
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[attorney] employee would endanger the peace and safety of others or pose a grave threat to the
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public interest, the [attorney] employee may be summarily suspended pending administrative
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hearings and a review by the Career Service Review Board.
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(3) (a) An [attorney] employee in a career status who is aggrieved by a decision of the
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attorney general [to either dismiss or demote] or a designated representative to suspend,
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demote, or dismiss the employee may appeal the decision to the Career Service Review Board
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or its hearing officers by following the procedures in Title 67, Chapter 19a, Grievance and
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Appeal Procedures.
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(b) Matters other than dismissal or demotion may be appealed to and reviewed by the
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attorney general or a designated representative whose decision is final with no right of appeal
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to the Career Service Review Board or its hearing officers.
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(4) Disciplinary actions shall be supported by credible evidence, but the normal rules
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of evidence in courts of law do not apply in hearings before the attorney general or a designated
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representative or the Career Service Review Board or its hearing officers.
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(5) (a) Reductions in force required by reinstatement of an [attorney] employee under
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Section
67-5-11
, inadequate funds, change of workload, or lack of work shall be governed by a
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retention roster to be maintained by the [executive director of the Department of Human
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Resource Management] Office of the Attorney General and the requirements of this Subsection
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(5).
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(b) [Attorneys] Except attorney general executive or administrative appointees,
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employees not in a career status shall be separated before any [attorney] employee in a career
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status.
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(c) Retention points for each [attorney] employee in a career status shall be based on
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the [attorney's] employee's seniority in service [as an attorney] within each employee category
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in the Office of the Attorney General, including any military service fulfilled subsequent to the
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[attorney's] employee's original appointment.
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(d) [Attorneys] Employees in career status shall be separated in the order of their
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retention points, the [attorney] employee with the lowest points to be discharged first.
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(e) Those [attorneys] employees who are serving in other positions under Section
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67-5-11
shall:
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(i) have retention points determined as if they were working for the office; and
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(ii) be separated in the order of the retention points as if they were working in the
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Office of the Attorney General.
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(f) An [attorney] employee in a career status who is separated by reason of a reduction
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in force shall be:
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(i) placed on a reappointment register kept by the [executive director of the Department
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of Human Resource Management] Office of the Attorney General for one year; and
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(ii) offered reappointment to a position in the same category in the Office of the
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Attorney General before any [attorney] employee not having a career status is appointed.
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Section 6.
Section
67-5-13
is amended to read:
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67-5-13. Limitations on political activities by career status attorneys.
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(1) [No attorney] An employee in a career status may not, while in a pay status, be a
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state or federal officer in any partisan political party organization or in any statewide partisan
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political campaign. The [attorney] employee, however, may be an officer or delegate in a
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partisan political party organization at a county or inferior level or a delegate at a state or
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national level.
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(2) [No attorney] An employee in career status [shall] may not be a candidate for any
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partisan political office, but upon application to the attorney general [he] the employee shall be
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granted a leave of absence without pay but without loss of existing seniority to participate in a
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partisan political campaign either as an officer or as a candidate. Time spent during the
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political leave shall not be counted for seniority purposes as being in service. For the purposes
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of this section, an [attorney] employee is not [deemed] considered to be a candidate until the
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primary elections have been held.
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(3) [No attorney] An employee in career status may not engage in political activity
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during the hours of employment, nor may any person solicit political contributions from any
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[attorney] employee in career status during hours of employment or through state facilities or in
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any manner impose assessments on them for political purposes; but nothing in this section shall
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preclude voluntary contributions to a candidate or a political party.
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(4) Partisan political activity shall not be a basis for employment, promotion,
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demotion, or dismissal. Any violation of this section may lead to disciplinary action against
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the [attorney] employee, which may consist of reprimand, suspension, demotion, or termination
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as determined by the attorney general.
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(5) This section shall not be construed to permit partisan political activity by any
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[attorney] employee in career status who is prevented or restricted from engaging in this
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political activity by the provisions of any federal act or the rules and regulations promulgated
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under it.
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Section 7.
Section
67-19-12
is amended to read:
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67-19-12. State pay plans -- Applicability of section -- Exemptions -- Duties of the
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executive director.
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(1) (a) This section, and the rules adopted by the department to implement this section,
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apply to each career and noncareer employee not specifically exempted under Subsection (2).
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(b) If not exempted under Subsection (2), an employee is considered to be in classified
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service.
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(2) The following employees are exempt from this section:
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(a) members of the Legislature and legislative employees;
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(b) members of the judiciary and judicial employees;
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(c) elected members of the executive branch and their direct staff who meet career
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service exempt criteria as defined in Subsection
67-19-15
(1)(k);
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(d) certificated employees of the State Board of Education;
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(e) officers, faculty, and other employees of state institutions of higher education;
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(f) employees in any position that is determined by statute to be exempt from this
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Subsection (2);
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(g) [attorneys] employees in the Office of the Attorney General;
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(h) department heads and other persons appointed by the governor pursuant to statute;
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(i) employees of the Department of Community and Culture whose positions are
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designated as executive/professional positions by the executive director of the Department of
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Community and Culture with the concurrence of the executive director;
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(j) employees of the Governor's Office of Economic Development whose positions are
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designated as executive/professional positions by the director of the office; and
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(k) employees of the Medical Education Council.
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(3) (a) The executive director shall prepare, maintain, and revise a position
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classification plan for each employee position not exempted under Subsection (2) to provide
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equal pay for equal work.
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(b) Classification of positions shall be based upon similarity of duties performed and
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responsibilities assumed, so that the same job requirements and the same salary range may be
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applied equitably to each position in the same class.
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(c) The executive director shall allocate or reallocate the position of each employee in
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classified service to one of the classes in the classification plan.
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(d) (i) The department shall conduct periodic studies and desk audits to provide that the
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classification plan remains reasonably current and reflects the duties and responsibilities
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assigned to and performed by employees.
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(ii) The executive director shall determine the schedule for studies and desk audits after
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considering factors such as changes in duties and responsibilities of positions or agency
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reorganizations.
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(4) (a) With the approval of the governor, the executive director shall develop and
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adopt pay plans for each position in classified service.
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(b) The executive director shall design each pay plan to achieve, to the degree that
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funds permit, comparability of state salary ranges to salary ranges used by private enterprise
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and other public employment for similar work.
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(c) The executive director shall adhere to the following in developing each pay plan:
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(i) Each pay plan shall consist of sufficient salary ranges to permit adequate salary
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differential among the various classes of positions in the classification plan.
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(ii) (A) The executive director shall assign each class of positions in the classification
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plan to a salary range and shall set the width of the salary range to reflect the normal growth
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and productivity potential of employees in that class.
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(B) The width of the ranges need not be uniform for all classes of positions in the plan,
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but each range shall contain merit steps in increments of 2.75% salary increases.
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(iii) (A) The executive director shall issue rules for the administration of pay plans.
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(B) The rules may provide for exceptional performance increases and for a program of
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incentive awards for cost-saving suggestions and other commendable acts of employees.
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(C) The executive director shall issue rules providing for salary adjustments.
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(iv) Merit step increases shall be granted, if funds are available, to employees who
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receive a rating of "successful" or higher in an annual evaluation of their productivity and
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performance.
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(v) By October 31 of each year, the executive director shall submit market
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comparability adjustments to the director of the Governor's Office of Planning and Budget for
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consideration to be included as part of the affected agency's base budgets.
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(vi) By October 31 of each year, the executive director shall recommend a
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compensation package to the governor.
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(vii) (A) Adjustments shall incorporate the results of a total compensation market
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survey of salary ranges and benefits of a reasonable cross section of comparable benchmark
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positions in private and public employment in the state.
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(B) The survey may also study comparable unusual positions requiring recruitment in
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other states.
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(C) The executive director may cooperate with other public and private employers in
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conducting the survey.
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(viii) (A) The executive director shall establish criteria to assure the adequacy and
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accuracy of the survey and shall use methods and techniques similar to and consistent with
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those used in private sector surveys.
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(B) Except as provided under Section
67-19-12.3
, the survey shall include a reasonable
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cross section of employers.
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(C) The executive director may cooperate with or participate in any survey conducted
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by other public and private employers.
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(D) The executive director shall obtain information for the purpose of constructing the
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survey from the Division of Workforce Information and Payment Services and shall include
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employer name, number of persons employed by the employer, employer contact information
325
and job titles, county code, and salary if available.
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(E) The department shall acquire and protect the needed records in compliance with the
327
provisions of Section
35A-4-312
.
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(ix) The establishing of a salary range is a nondelegable activity and is not appealable
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under the grievance procedures of Sections
67-19-30
through
67-19-32
, Title 67, Chapter 19a,
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Grievance and Appeal Procedures, or otherwise.
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(x) The governor shall:
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(A) consider salary adjustments recommended under Subsection (4)(c)(vi) in preparing
333
the executive budget and shall recommend the method of distributing the adjustments;
334
(B) submit compensation recommendations to the Legislature; and
335
(C) support the recommendation with schedules indicating the cost to individual
336
departments and the source of funds.
337
(xi) If funding is approved by the Legislature in a general appropriations act, the
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adjustments take effect on the July 1 following the enactment.
339
(5) (a) The executive director shall regularly evaluate the total compensation program
340
of state employees in the classified service.
341
(b) The department shall determine if employee benefits are comparable to those
342
offered by other private and public employers using information from:
343
(i) the most recent edition of the Employee Benefits Survey Data conducted by the U.S.
344
Chamber of Commerce Research Center; or
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(ii) the most recent edition of a nationally recognized benefits survey.
346
(6) (a) The executive director shall submit proposals for a state employee
347
compensation plan to the governor by October 31 of each year, setting forth findings and
348
recommendations affecting employee compensation.
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(b) The governor shall consider the executive director's proposals in preparing budget
350
recommendations for the Legislature.
351
(c) The governor's budget proposals to the Legislature shall include a specific
352
recommendation on employee compensation.
353
Section 8.
Section
67-19-15
is amended to read:
354
67-19-15. Career service -- Exempt positions -- Schedules for civil service
355
positions -- Coverage of career service provisions.
356
(1) Except as otherwise provided by law or by rules and regulations established for
357
federally aided programs, the following positions are exempt from the career service provisions
358
of this chapter:
359
(a) the governor, members of the Legislature, and all other elected state officers,
360
designated as Schedule AA;
361
(b) the agency heads enumerated in Section
67-22-2
, and commissioners designated as
362
Schedule AB;
363
(c) all employees and officers in the office and at the residence of the governor,
364
designated as Schedule AC;
365
(d) employees who are in a confidential relationship to an agency head or
366
commissioner and who report directly to, and are supervised by, a department head,
367
commissioner, or deputy director of an agency or its equivalent, designated as Schedule AD;
368
(e) unskilled employees in positions requiring little or no specialized skill or training,
369
designated as Schedule AE;
370
(f) part-time professional noncareer persons who are paid for any form of medical and
371
other professional service and who are not engaged in the performance of administrative duties,
372
designated as Schedule AF;
373
(g) [attorneys] employees in the [attorney general's office] Office of the Attorney
374
General who are under their own career service pay plan under Sections
67-5-7
through
375
67-5-13
, designated as Schedule AG;
376
(h) teaching staff of all state institutions and patients and inmates employed in state
377
institutions, designated as Schedule AH;
378
(i) persons appointed to a position vacated by an employee who has a right to return
379
under federal or state law or policy, designated as Schedule AI;
380
(j) noncareer employees compensated for their services on a seasonal or contractual
381
basis who are hired for limited periods of less than nine consecutive months or who are
382
employed on less than 1/2 time basis, designated as Schedule AJ;
383
(k) those employees in a personal and confidential relationship to elected officials,
384
designated as Schedule AK;
385
(l) employees appointed to perform work of a limited duration not exceeding two years
386
or to perform work with time-limited funding, designated as Schedule AL;
387
(m) employees of the Department of Community and Culture whose positions are
388
designated as executive/professional positions by the executive director of the Department of
389
Community and Culture with the concurrence of the executive director, and employees of the
390
Governor's Office of Economic Development whose positions are designated as
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executive/professional positions by the director of the office, designated as Schedule AM;
392
(n) employees of the Legislature, designated as Schedule AN;
393
(o) employees of the judiciary, designated as Schedule AO;
394
(p) all judges in the judiciary, designated as Schedule AP;
395
(q) members of state and local boards and councils appointed by the governor and
396
governing bodies of agencies, other local officials serving in an ex officio capacity, officers,
397
faculty, and other employees of state universities and other state institutions of higher
398
education, designated as Schedule AQ;
399
(r) employees who make statewide policy, designated as Schedule AR;
400
(s) any other employee whose appointment is required by statute to be career service
401
exempt, designated as Schedule AS; and
402
(t) employees of the Department of Technology Services, designated as
403
executive/professional positions by the executive director of the Department of Technology
404
Services with the concurrence of the executive director, designated as Schedule AT.
405
(2) The civil service shall consist of two schedules as follows:
406
(a) (i) Schedule A is the schedule consisting of positions exempted by Subsection (1).
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(ii) Removal from any appointive position under Schedule A, unless otherwise
408
regulated by statute, is at the pleasure of the appointing officers without regard to tenure.
409
(b) Schedule B is the competitive career service schedule, consisting of all positions
410
filled through competitive selection procedures as defined by the executive director.
411
(3) (a) The executive director, after consultation with the heads of concerned executive
412
branch departments and agencies and with the approval of the governor, shall allocate positions
413
to the appropriate schedules under this section.
414
(b) Agency heads shall make requests and obtain approval from the executive director
415
before changing the schedule assignment and tenure rights of any position.
416
(c) Unless the executive director's decision is reversed by the governor, when the
417
executive director denies an agency's request, the executive director's decision is final.
418
(4) (a) Compensation for employees of the Legislature shall be established by the
419
directors of the legislative offices in accordance with Section
36-12-7
.
420
(b) Compensation for employees of the judiciary shall be established by the state court
421
administrator in accordance with Section
78-3-24
.
422
(c) Compensation for officers, faculty, and other employees of state universities and
423
institutions of higher education shall be established as provided in Title 53B, Chapters 1,
424
Governance, Powers, Rights, and Responsibilities, and 2, Institutions of Higher Education.
425
(d) Unless otherwise provided by law, compensation for all other Schedule A
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employees shall be established by their appointing authorities, within ranges approved by, and
427
after consultation with the executive director of the Department of Human Resource
428
Management.
429
(5) All employees of the Office of State Auditor, the Office of State Treasurer, [the
430
Office of the Attorney General, excluding attorneys who are under their own career service
431
system,] and employees who are not exempt under this section are covered by the career
432
service provisions of this chapter.
433
Section 9. Effective date.
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This bill takes effect on July 15, 2007.
Legislative Review Note
as of 1-19-07 11:40 AM