Separation, Suspension, and Demotion

PURPOSE: This rule establishes conditions and procedures to govern various types of separations from the classified service and personnel transactions, such as suspension and demotion. (1) Layoffs in the classified service shall be administered by each respective appointing authority based on the needs of the service. This section does not prevent an employing agency from bargaining over a layoff procedure based on seniority, so long as no terms affect the employing agency’s right to terminate at will non-regular employees. (2) Causes for Suspension, Demotion, and Dismissal. The following are declared to be causes for suspension, demotion, or dismissal of any regular employee in the classified service, depending upon the seriousness of the cause; however, those actions may be based upon causes other than those enumerated below: (A) The employee has willfully violated any of the provisions of the State Merit System Law or of the rules of the Personnel Advisory Board; (B) The employee is incompetent, inadequate, careless, or inefficient in the performance of the duties of his/her position (specific instances to be charged) or has failed to meet established minimum standards in the performance of those duties; (C) The employee has been wantonly careless or negligent in the care of the property of the state; (D) The employee has engaged in abusive or improper treatment toward an inmate or patient of any state institution or to a person in custody; provided the acts committed were not necessarily or lawfully committed in self-defense, to protect the lives of others, or to prevent the escape of anyone lawfully in custody; (E) The employee is unable, with or without a reasonable accommodation, to perform the essential functions of his or her job; (F) The employee has been habitually tardy in reporting for duty or has absented him/herself frequently from duty during the course of regular working hours; or has been completely absent from duty without prior or subsequent authorization for that absence; (G) The employee has been convicted of, or pled guilty to, a felony or of a misdemeanor involving moral turpitude; (H) The employee has engaged in scandalous and disgraceful conduct while on or off duty where this conduct tends to bring the state service into public disrepute or has exhibited behavior which adversely affects the employee’s job performance, the employing agency, or both; (I) The employee has engaged in abusive or improper treatment of guests or clients while on duty at any state facility or on any state land normally open to the public; (J) The employee has submitted a false statement of a material fact or has practiced or attempted to practice any fraud or deception in an application or examination or in otherwise attempting to secure employment subject to the provisions of these rules; (K) The employee has engaged in insubordination or has failed to respond in a reasonable manner to his/her lawful orders or instructions of persons with duly delegated authority over the employee; (L) The employee has willfully violated the lawful regulations or policies of the agency by which employed after having been made aware of the regulations and policies; (M) The employee has been abusive or physically violent toward other employees while on duty or in the duty area or has willfully exhibited behavior which is disruptive of the working activities of other employees; (N) The employee has been intoxicated or under the influence of a controlled substance while on duty, except as may have been required by a licensed medical physician; or (O) The employee has practiced or attempted to practice fraud or deception in securing or attempting to secure benefits or grants from a state agency either for him/herself or for another applicant. (3) Suspension. An appointing authority, for disciplinary purposes, may suspend, without pay, any employee in his/her division. A suspension may be made for a length of time as s/he considers appropriate, not exceeding twenty (20) working days in any twelve- (12-) month period except that this limitation shall not apply in the event of a terminal suspension given in conjunction with a dismissal or discharge; a suspension given in connection with a criminal offense involving the use of a controlled substance; or, with the approval of the director, a suspension made pending the investigation or trial of any charges against the employee (see section 36.370, RSMo). Employees enumerated in 1 CSR 20-5.010(1)(C) and (D) and designated as exempt from the overtime requirements of the Fair Labor Standards Act shall not be suspended from duty without pay for disciplinary purposes unless the said suspension is for one (1) or more full workdays. (A) Any employee covered under section 36.030.1(2), RSMo being suspended shall be furnished with a statement in writing specifically setting forth the reasons for the suspension. A copy of the statement shall be furnished to the director. No suspension of a regular employee for a period longer than five (5) workdays shall take effect unless, prior to the effective date, the appointing authority gives to the employee a written statement setting forth in substance the reason, informs the employee of appeal rights, provides the employee with a copy of the form for appeal to the administrative hearing commission, and provides the employee with an opportunity to respond to the reason prior to the effective date. Any regular employee who is suspended for more than five (5) workdays may appeal in writing to the administrative hearing commission within thirty (30) days after the effective date thereof setting forth in substance reasons for claiming the suspension was for political, religious, or racial reasons or not for the good of the service. For the purpose of the appeal process, the effective date of a suspension will be the first day the employee is suspended without pay. There is no appeal from a suspension of five (5) working days or less. Employees not covered under section 36.030.1(2), RSMo do not have the right to notice or an opportunity to be heard on such suspension. (B) Any employee covered under section 36.030.1(2), RSMo, being suspended for a period of five (5) workdays or less shall be given a statement in writing specifically setting forth the reasons for the suspension. A copy of that statement shall be furnished to the director. No suspension of a regular employee for a period of five (5) days or less shall take effect unless, prior to the effective date, the appointing authority gives to the employee a written statement setting forth in substance the reason and gives the employee an opportunity to respond to the reason. Employees not covered under section 36.030.1(2), RSMo, do not have the right to notice, opportunity to be heard, or appeal from a suspension. This section does not prevent an employing agency from bargaining over for-cause protections for suspensions, so long as no terms affect the employing agency’s right to terminate at will non-regular employees. (C) An employee who has been convicted of, pleads guilty to, or pleads nolo contendere for the first time to any criminal offense involving the use of a controlled substance, and who fails to satisfactorily meet the requirements of education and treatment as defined in section 105.1105, RSMo, shall be suspended for a period of no more than three (3) months. In the case of a suspension under this section of the law, the appointing authority must provide the director and the employee with a statement in writing specifically setting forth the case for suspension and the conditions the employee must meet in order to be returned from suspension. (D) In the event that an employee’s conduct or performance is such that change is required as a condition of employment, an appointing authority may issue to the employee a statement describing the necessity for change, including what needs to be changed and in what time period. A permanent record of the conditional employment period may be established in the employee’s service history by notifying the personnel director in a manner prescribed by the director. This action must contain a time period that may not exceed three (3) months. (E) In the event of an instance of unacceptable conduct by an employee that in the judgment of the appointing authority does not warrant immediate suspension, dismissal or discharge, or demotion, but which requires a permanent record, the appointing authority may record such conduct in the employee’s service history by notifying the personnel director in a manner prescribed by the director. Employees do not have the right to notice, opportunity to be heard, or appeal from an unacceptable conduct record. (4) Demotions. An appointing authority may demote an employee in accordance with the following: (A) No demotion for cause of a regular employee shall take effect unless, prior to the effective date, the appointing authority gives to the employee a written statement setting forth in substance the reason, informs the employee of appeal rights, provides the employee with a copy of the form for appeal to the administrative hearing commission, provides the employee with an opportunity to respond to the reason prior to the effective date, and files a copy of the statement of the reason with the director. Any regular employee who is involuntarily demoted for cause may appeal in writing to the administrative hearing commission within thirty (30) days after the effective date thereof setting forth in substance reasons for claiming that the demotion was for political, religious, or racial reasons or not for the good of the service. Employees not covered under section 36.030.1(2), RSMo, do not have the right to notice, opportunity to be heard, or appeal from a demotion and may be demoted for no reason or any reason not prohibited by law. This section does not prevent an employing agency from bargaining over for-cause protections for demotions, so long as no terms affect the employing agency’s right to terminate at will non-regular employees; and (B) No demotions for cause shall be made unless the employee to be demoted meets the minimum qualifications for the lower class and shall not be made if any regular employee in the lower class would be laid off by reason of the action. (5) Dismissals or Discharges. (A) No dismissal of a regular employee shall take effect unless, prior to the effective date, the appointing authority gives to the regular employee a written statement setting forth, in substance, the reason, informs the regular employee of appeal rights, provides the regular employee with a copy of the form for appeal to the Administrative Hearing Commission, and provides the regular employee with an opportunity to respond to the reason prior to the effective date. (B) Employees not covered under section 36.030.1(2), RSMo, do not have the right to notice, opportunity to be heard, or appeal from a discharge and may be discharged for no reason or any reason not prohibited by law. (6) Resignations from the classified service shall be governed by the following provisions: (A) Method of Resignation. To resign in good standing, an employee must give the appointing authority at least fourteen (14) calendar days prior notice unless the appointing authority, because of extenuating circumstances, agrees to permit a shorter period of notice. A written resignation shall be supplied by the employee to the appointing authority; (B) An employee who applies and is approved by the applicable state benefit system for long-term disability or retirement status shall be deemed to have voluntarily resigned. (7) Absence Without Leave. The following provisions apply to regular employees who are absent from duty without appropriate authorization: (A) A regular employee who absents him/herself from duty without prior authorization and under conditions which are not subsequently found to justify the granting of leave under these rules, depending upon the reason for and length of the absence, may be subject to appropriate discipline as provided in these rules; (B) If a regular employee is dismissed for a continuing period of unauthorized absence, the circumstances of which indicate that the employee does not intend to return to duty, the notice of dismissal may allow the employee the option of submitting a resignation; and (C) If a regular employee requests a leave of absence without pay under these rules and the appointing authority does not find it practicable to grant leave under its normal policy in those cases, a continuing absence from duty without leave after the denial of this request will require the separation of the employee. If the employee, after being so notified, does not elect to submit a voluntary resignation, the appointing authority may separate the employee by dismissal as provided in these rules. (8) Furloughs of Employees in the Classified Service. An appointing authority, in accordance with these rules and procedures approved by the director and the board, may place an employee in a position subject to this law on a furlough without pay for a limited period of time whenever deemed necessary by reason of shortage of funds, or for other reasons which are outside the employee’s control and which do not reflect discredit on the service of the employee. When a furlough or furloughs become necessary, the appointing authority will present a plan to the director and to the board describing why a furlough of limited duration is necessary, the functional areas that are affected, the number of employees who will need to be furloughed, and a detailed plan indicating why specific employees have been designated for furlough. Furloughs need not be for a continuous period for all employees involved. The furlough plan shall be submitted to the board for approval. Whenever, in the opinion of the director, there is an urgent necessity for the immediate approval of a furlough plan, the director may approve a plan until the board has an opportunity to act on the plan. Upon approval of the plan, employees to be furloughed will be given at least five (5) working days notice. Once the furlough ends, employees will be given up to forty-eight (48) hours to report. If the appointing authority determines that it is necessary to lay the employee(s) off on a permanent basis, a layoff may be conducted by the appointing authority. AUTHORITY: sections 36.025 and 36.070, RSMo Supp. 2023.* Original rule filed July 9, 1947, effective July 19, 1947. Amended: Filed Sept. 20, 1947, effective Sept. 30, 1947. Amended: Filed Dec. 23, 1947, effective Jan. 2, 1948. Amended: Filed March 25, 1948, effective April 4, 1948. Amended: Filed Aug. 13, 1949, effective Aug. 23, 1949. Amended: Filed June 1, 1954, effective June 11, 1954. Amended: Filed April 23, 1974, effective May 2, 1974. Amended: Filed Dec. 8, 1975, effective Dec. 19, 1975. Amended: Filed March 14, 1978, effective June 11, 1978. Amended: Filed Dec. 13, 1978, effective April 12, 1979. Emergency amendment filed Sept. 13, 1979, effective Sept. 28, 1979, expired Jan. 25, 1980. Amended: Filed Oct. 12, 1979, effective Jan. 15, 1980. Emergency amendment filed Jan. 15, 1981, effective Jan. 25, 1981, expired May 25, 1981. Amended: Filed Jan. 7, 1981, effective April 12, 1981. Amended: Filed Jan. 11, 1982, effective April 11, 1982. Amended: Filed March 1, 1993, effective Oct. 10, 1993. Amended: Filed Nov. 16, 1993, effective July 30, 1994. Amended: Filed July 21, 1994, effective Feb. 26, 1995. Amended: Filed July 21, 1994, effective Feb. 26, 1995. Amended: Filed June 15, 1995, effective Jan. 30, 1996. Amended: Filed July 9, 1997, effective Jan. 30, 1998. Amended: Filed Sept. 15, 1998, effective March 30, 1999. Amended: Filed Aug. 15, 2003, effective Feb. 29, 2004. Amended: Filed Sept. 15, 2004, effective March 30, 2005. Amended: Filed Aug. 15, 2008, effective Feb. 28, 2009. Emergency amendment filed Aug. 27, 2010, effective Sept. 7, 2010, expired March 5, 2011. Amended: Filed Aug. 27, 2010, effective Feb. 28, 2011. Emergency amendment filed Aug. 17, 2018, effective Aug. 28, 2018, expired Feb. 28, 2019. Amended: Filed Aug. 31, 2018, effective Feb. 28, 2019. Amended: Filed Feb. 3, 2023, effective Sept. 30, 2023. *Original authority: 36.025, RSMo 2018, and 36.070, RSMo 1945, amended 1979, 1995, 2018, 2023. Anderson v. Personnel Advisory Board, 586 SW2d 738 (Mo. App. 1979). Transfer of the old Department of Corrections to the reorganized Department of Social Services does not render the director of the Department of Social Services the sole “appointing authority” for purposes of dismissal under the state merit system law. Mills v. Federal Soldiers Home, 549 SW2d 862 (Mo. banc 1977). Venue of action on appeal from administrative agency’s determination sustaining discharge from employment is governed by section 536.110, RSMo. This provision does not conflict with Supreme Court Rule 100.04. Because respondent failed to raise any issue with respect to the adequacy of notice before the Personnel Advisory Board, he cannot raise that point for the first time on judicial review in the circuit court. Holley v. Personnel Advisory Board, 536 SW2d 830 (Mo. App. 1976). The purpose of a rule of the Personnel Advisory Board requiring the substance of the reasons for dismissal be set forth in a written statement is so an appellant can protect him/herself under the state merit system by appeal to the board and the courts.