Citations Affected: IC 4-15; noncode.
Effective: July 1, 2011.
January 6, 2011, read first time and referred to Committee on Rules and Legislative
Procedure.
January 20, 2011, amended; reassigned to Committee on Pensions and Labor.
employee shall not strike. Provides that a person who knowingly or intentionally violates the provisions concerning employee organizations commits a Class A misdemeanor, and forfeits all rights, benefits, and privileges the person enjoys as a public employee or former public employee. Provides that a citizen of Indiana may institute a civil action for injunctive relief to enforce, prevent, or stop a violation of the provisions concerning employee organizations. Repeals provisions establishing the state personnel advisory board, the state personnel department, the state merit system, the career bipartisan personnel system, and the merit system for engineers. Repeals provisions concerning the removal of a public officer after a hearing. Repeals and replaces provisions concerning a government reorganization. Makes technical corrections.
A BILL FOR AN ACT to amend the Indiana Code concerning state
offices and administration.
assigned by the governor.
Sec. 16. The director shall appoint one (1) or more employees of
the department as the director's deputies.
Sec. 17. (a) The director may employ such expert or special
examiners as may be required for the conduct of tests for positions
in the state civil service.
(b) The director may select officers or employees in the state
civil service to act as examiners in the preparation and rating of
the tests described in subsection (a). An appointing authority may
excuse any employee in the appointing authority's division of the
service from the employee's regular duties for the time required to
work as an examiner.
(c) Officers and employees are not entitled to extra pay for their
service as examiners, but are entitled to reimbursement for
necessary traveling and other expenses.
Sec. 18. The department may do the following:
(1) Acquire, lease, own, or sell property in the name of the
state in order to carry out its responsibilities under this
chapter.
(2) Adopt a seal.
(3) Contract with persons outside the department to do those
things that in the director's opinion cannot be adequately or
efficiently handled by the department.
(4) Sue and be sued.
(5) Hire attorneys.
(7) Administer oaths.
(8) Take depositions.
(9) Issue subpoenas.
Sec. 19. The director may adopt rules under IC 4-22-2 that the
director considers necessary, appropriate, or desirable to carry out
the department's responsibilities under this chapter.
Sec. 20. The state civil service is divided into the following parts:
(1) The state classified service.
(2) The unclassified service.
Sec. 21. (a) Except as provided in subsection (b), the state
classified service consists of positions in programs that have a
federal statutory or regulatory requirement for the establishment
and maintenance of personnel standards on a merit basis, including
positions under the following:
(1) Employment Security (Unemployment Insurance and
Employment Services) (26 U.S.C. 3301 et seq., 29 U.S.C. 2801
et seq., 38 U.S.C. 2000 et seq., 42 U.S.C. 501 et seq., and 42
U.S.C. 1101 et seq.).
(2) Federal Payments for Foster Care and Adoption
Assistance (42 U.S.C. 673).
(3) Supplemental Nutrition Assistance Program (7 U.S.C.
2011 et seq.).
(4) Grants to States for Aid to the Blind (42 U.S.C. 1201 et
seq.).
(5) Medical Assistance (Medicaid) (42 U.S.C. 1396 et seq.).
(6) Occupational Safety and Health Act (29 U.S.C. 651 et
seq.).
(7) Occupational Safety and Health Grants to States (29
U.S.C. 673).
(8) Robert T. Stafford Disaster Assistance and Emergency
Relief Act (42 U.S.C. 5121 et seq.).
(9) Social Security Act (42 U.S.C. 301 et seq.).
(10) State and Community Programs on Aging and the Older
Americans Act (42 U.S.C. 3001 et seq.).
(11) Wagner-Peyser Act (29 U.S.C. 49 et seq.).
(b) The following positions are exempt from the state classified
service:
(1) An officer or employee appointed by the governor or
lieutenant governor.
(2) A deputy, an administrative assistant, a secretary, or
another position in a confidential relationship to an officer or
employee described in subdivision (1).
(3) An employee who holds an executive level position:
(A) who is the head of a division or major unit within a
state agency;
(B) who is a regional director or manager for a state
agency, regardless of the title of the position; or
(C) who, as a substantial part of the position's duties,
provides meaningful input on:
(i) the development of policy goals; or
(ii) the implementation of policy.
(4) The superintendent or director of a state institution.
(5) The highest ranking employee of a state agency who:
(A) holds an executive level position; and
(B) has primary responsibility for one (1) or more of the
following functions:
(i) Public information.
(ii) Legal matters.
(iii) Fiscal matters.
(iv) Security or internal affairs.
(v) Human resources.
(c) This section may not be construed to include in the state
classified service a position in a governmental entity listed in
section 1(b) of this chapter unless the chief executive officer of the
governmental entity makes the election described in section 1(c) of
this chapter to have all or a part of the governmental entity's
employees participate in the state civil service.
Sec. 22. (a) The unclassified service consists of all offices and
positions in the state civil service other than those in the state
classified service.
(b) The unclassified service is separate from the state classified
service.
(c) Except as expressly provided in this chapter, the human
resource management systems applicable to the state classified
service do not apply to the unclassified service.
Sec. 23. (a) An employee in the state classified service who has
successfully completed a working test period may be dismissed,
demoted, or suspended only for just cause, including cause under
section 49 of this chapter.
(b) A classified employee is entitled to appeal a dismissal,
demotion, or suspension as provided in section 42 of this chapter.
Sec. 24. (a) An employee in the unclassified service is an
employee at will and serves at the pleasure of the employee's
appointing authority.
(b) An employee in the unclassified service may be dismissed,
demoted, disciplined, or transferred for any reason that does not
contravene public policy.
Sec. 25. Whenever a state agency or state institution is added to
the classified part of the state civil service established by this
chapter, an employee of the state agency or state institution who is
in a position that is not subject to the classified provisions of this
chapter is entitled to continue in that position until the employee
has an opportunity to acquire classified employee status.
Sec. 26. (a) The director, after consulting with appointing
authorities and other qualified authorities, shall determine, or
cause to be determined, the authority, duties, and responsibilities
of all positions in the state civil service.
(b) The director shall prepare a classification plan that groups
all positions in the state civil service in classes, based on the
authority, duties, and responsibilities of each position. The
classification plan must set forth, for each class of positions, the
class title and a statement of the authority, duties, and
responsibilities of the class. Each class of positions may be
subdivided, and classes may be grouped and ranked in such
manner as the director considers appropriate.
(c) New, reclassified, or reallocated positions must be classified,
reclassified, or reallocated in the same manner as positions were
initially classified or allocated.
(d) The director periodically shall:
(1) review the positions in state civil service; and
(2) reallocate the positions to the proper classes based on the
duties and responsibilities of the positions at the time of the
review under subdivision (1).
Sec. 27. (a) After consultation with the budget agency, the
director shall prepare and recommend to the governor a pay plan
for all employees holding positions for which compensation is not
fixed by law.
(b) The pay plan shall provide, for each class of positions, a
minimum and maximum rate of pay as well as any intermediate
rates of pay that the director considers necessary or equitable. In
establishing the rates, the director shall consider the following
factors:
(1) The experience in recruiting for positions in the state civil
service.
(2) The prevailing rates of pay for the service performed and
for comparable services in public and private employment.
(3) The cost of living.
(4) Benefits, other than the rate of pay, available to or
received by employees.
(5) The state's financial condition and policies.
(c) The pay plan takes effect after the plan is approved by the
budget agency and accepted by the governor.
Sec. 28. (a) Classification titles or corresponding code numbers
must be used to designate positions in all personnel, accounting,
budget, appropriation, and financial records and communications
of all state departments, institutions, and agencies.
(b) A person may not be appointed to or employed in a position
in the state civil service unless the director has approved the class
title of the position as appropriate to the duties to be performed.
Sec. 29. Vacancies in the state classified service may be filled
only by a process approved by the director in accordance with the
merit principles set forth in section 12 of this chapter.
Sec. 30. An application for employment may be rejected if the
department determines that the applicant:
(1) lacks any of the required qualifications;
(2) is incapable of performing the essential functions of the
position that the applicant is seeking;
(3) has been convicted of a crime;
(4) has been dismissed from the public service;
(5) has made a false statement of a material fact; or
(6) committed or attempted to commit a fraud or deception in
connection with submitting an application or attempting to
secure an appointment to the state civil service.
Sec. 31. (a) The director shall inform prospective applicants for
state employment of the process for obtaining state employment.
(b) The director may advertise or employ any other methods of
publicizing opportunities for employment in state civil service.
Sec. 32. (a) Former members of the armed forces of the United
States who meet both of the following requirements shall receive
a preference for appointment or reemployment in the state
classified service:
(1) The veteran served on active duty in any branch of the
armed forces.
(2) The veteran was not discharged or separated from the
armed forces under other than honorable conditions, unless
the veteran presents appropriate records from:
(A) the United States Department of Defense; or
(B) the appropriate branch of the armed forces;
showing a correction of a separation or discharge to
"honorable".
(b) When:
(1) preemployment interviews of external candidates are
conducted; and
(2) the qualified applicant pool includes veterans;
veterans must be included in the group offered interviews.
(c) In computing seniority for purposes of a personnel reduction
in state civil service, the computation must include the length of
time the employee spent on active duty in the armed forces of the
United States.
Sec. 33. (a) As used in this section, "individual with a disability"
means an individual:
(1) with a physical or mental impairment that substantially
limits one (1) or more of the major life activities of the
individual; or
(2) who:
initial classification in the state classified service to which the
employee is appointed.
(f) The removal of an employee in the classified service from a
working test for a promotion from one (1) classification to another
classification is not appealable, unless the removal results in the
employee's dismissal or layoff.
Sec. 35. (a) An appointing authority may at any time reassign an
employee from one position to another position in the same class or
rank in the division of the service. The appointing authority shall,
immediately after making the reassignment, give notice of the
reassignment to the director.
(b) The transfer of a classified employee from a position in a
division of the service to a position of the same class or rank in
another division of the service requires the approval of:
(1) the appointing authorities of both divisions of the service;
and
(2) the director.
(c) A classified employee must be appointed, rather than
transferred, to a position:
(1) in another class of a higher rank; or
(2) for which the requirements for appointment are
substantially dissimilar to the requirements for the position
the employee currently holds.
(d) The reassignment of a classified employee to a position in a
class of a lower rank is a demotion. Unless the employee consents
to the demotion in writing, the appointing authority must comply
with section 23 of this chapter in making the demotion. A classified
employee is entitled to appeal the demotion in accordance with
section 42 of this chapter.
(e) This section may not be construed to prohibit an appointing
authority from temporarily substituting duties unrelated to an
employee's position classification for the employee's usual duties.
(f) This section may not be construed to impair the director's
authority to reclassify or reorganize positions in the state civil
service as long as the reclassification or reorganization is not based
on a classified employee's misconduct or poor performance. The
just cause standard described in section 23 of this chapter does not
apply to such a reclassification or reorganization.
Sec. 36. (a) In cooperation with appointing authorities, the
director shall establish, and may periodically amend:
(1) the standards of performance for employees;
(2) the expected outcomes for employees; and
given to the following relevant factors:
(1) Disciplinary record.
(2) Knowledge, skill, and ability.
(3) Seniority.
Sec. 41. (a) As used in this section, "state seniority" means the
length of an employee's unbroken, continuous state employment.
(b) A former employee in the state civil service system has a
right of recall to the classification from which the employee was
laid off. Recall rights under this section are to positions under the
same appointing authority and in the same county from which a
former employee was laid off.
(c) A former employee must assert in a timely manner the claim
of entitlement to recall in response to the official posting of a
vacancy.
(d) A recall under this section is contingent upon the former
employee having the knowledge, skill, and ability to perform the
duties of the position for which the former employee is applying.
(e) The appointing authority shall recall former employees in
the order of the employees' service ratings. In the event of a tie in
service ratings, the right to recall is determined by state seniority.
If there is a tie in state seniority, the former employee with the
highest number comprised of the last four (4) digits of the
employee's Social Security number is the employee recalled.
(f) The right to recall under this section expires on the earlier of:
(1) one (1) year after date the employee is laid off; or
(2) the date the employee is reemployed in a permanent
position.
(g) For state seniority purposes, an employee who becomes
reemployed within one (1) year after the date the employee is laid
off is considered to have unbroken, continuous state employment,
except that the time that the employee spent in out-of-pay status as
a result of the layoff must be deducted from the employee's total
seniority.
Sec 42. (a) An employee in the state civil service system may file
a complaint concerning the application of a law, rule, or policy to
the complainant. However, a gubernatorial appointee does not
have standing to file a complaint under this section.
(b) A complaint filed under this section must identify the law,
rule, or policy that was allegedly violated.
(c) An employee who files a complaint under this section must
initiate the complaint procedure as soon as possible after the
occurrence of the act or condition complained of, and not later
than thirty (30) calendar days after the date the employee became
aware, or by the exercise of reasonable diligence should have been
aware, of the occurrence giving rise to the complaint. An employee
who does not initiate the complaint procedure within the thirty (30)
day period waives the right to file that complaint.
(d) A remedy granted under this section may not extend back
more than thirty (30) calendar days before the complaint was
initiated.
(e) The following complaint procedure is established:
Step I: The complainant shall reduce the complaint to writing
and present the complaint to the appointing authority or the
appointing authority's designated representative. The
appointing authority or designee shall conduct any
investigation considered necessary and issue a decision, in
writing, not later than fifteen (15) calendar days after the date
the appointing authority receives the complaint.
Step II: If the appointing authority or the appointing
authority's designated representative does not find in favor of
the complainant, the complainant may submit the complaint
to the director not later than fifteen (15) calendar days after
the date of the appointing authority's finding. The director or
the director's designee shall review the complaint and issue a
decision not later than thirty (30) calendar days after the date
the complaint is submitted to the director.
Step III: If the employee is not satisfied with the director's
decision, the employee may submit an appeal in writing to the
commission not later than fifteen (15) calendar days after the
date the employee receives notice of the action taken by the
director or the director's designee. The commission shall
determine whether all previous steps were completed
properly and in a timely manner, and, subject to subsection
(f), whether the employee and subject of the complaint meet
the jurisdictional requirements. If a procedural or
jurisdictional requirement is not met, the commission shall
dismiss the appeal. If the procedural and jurisdictional
requirements have been met, the commission shall conduct
proceedings in accordance with IC 4-21.5-3.
(f) An unclassified employee must establish that the commission
has subject matter jurisdiction to hear the employee's wrongful
discharge claim by establishing that a public policy exception to the
employment at will doctrine was the reason for the employee's
discharge. The former employee has the burden of proof on this
issue.
(g) In a disciplinary case involving a classified employee, the
commission shall defer to the appointing authority's choice as to
the discipline imposed, if the appointing authority establishes that
there was just cause for the imposition of the discipline. The
appointing authority has the burden of proof on this issue.
(h) Decisions of the commission are subject to judicial review in
accordance with IC 4-21.5-3.
(i) An employee who is suspended or terminated after a hearing
held by the state ethics commission is not entitled to use the
procedure set forth in this section. An employee who seeks further
review of a suspension or termination imposed by the state ethics
commission must seek judicial review of the state ethics
commission's decision in accordance with IC 4-21.5-3.
Sec. 43. (a) An employee covered by this chapter:
(1) is eligible for;
(2) must participate in; and
(3) receives the benefits of;
the public employees' retirement fund under IC 5-10.2 and
IC 5-10.3.
(b) An employee holding an hourly, temporary, and intermittent
appointment:
(1) is not eligible to become a member of the public
employees' retirement fund; and
(2) does not earn creditable service for purposes of the public
employees' retirement fund for service in those positions.
(c) Notwithstanding any contrary provision, an employee who
served in an intermittent form of temporary employment after
June 30, 1986, and before July 1, 2003, shall receive creditable
service for the period of intermittent employment.
Sec. 44. (a) An officer or employee implementing or
administering this chapter may not consider the political, religious,
or racial characteristics of a classified employee.
(b) A classified employee may not be compelled to make political
contributions or participate in any form of political activity.
Sec. 45. (a) This section does not apply to precinct
committeemen, state or national party convention delegates, or
candidates for these party positions.
(b) A classified employee who is elected to a federal or state
public office is considered to have resigned from state service on
the date the person takes office.
Sec. 46. A person may not:
classified service to do any of the following is sufficient grounds for
the employee's dismissal by the appointing authority:
(1) The employee willfully refuses or fails to appear before:
(A) a court or judge;
(B) a legislative committee; or
(C) an officer, board, or body authorized to conduct a
hearing or inquiry.
(2) After making an appearance, the employee refuses to
testify or answer questions relating to:
(A) the affairs or government of the state; or
(B) the conduct of any officer or employee.
Sec. 50. The director may enter into an agreement with a
political subdivision (as defined in IC 36-1-2-13) to furnish services
related to or involving the administration of the political
subdivision's personnel system. The agreement must provide for
the reimbursement to the state of the reasonable cost, as
determined by the director, of the services and facilities furnished.
All political subdivisions are authorized to enter into such
agreements.
Sec. 51. This chapter may not be construed so as to result in the
delay or stoppage of grants-in-aid to the state by agencies of the
federal government.
Sec. 52. (a) Any reference or cross-reference to the state
personnel department in the Indiana Code shall be treated after
June 30, 2011, as a reference or cross-reference to the department.
(b) Any reference or cross-reference to IC 4-15-1.8 or IC 4-15-2
shall be treated after June 30, 2011, as a reference or
cross-reference to IC 4-15-2.2.
(c) The provisions of this chapter supersede any inconsistent or
conflicting provisions of the Indiana Code. Any inconsistency or
conflict between or among the provisions shall be resolved in favor
of the provisions of this chapter.
Sec. 53. The human resources management system established
by this chapter shall be known as the state civil service system.
organizations and strikes by state employees are illegal.
Sec. 3. The state, a state agency, or any other instrumentality of
state government shall not:
(1) recognize a union or any other employee organization as
a representative of the employees of the state, a state agency,
or any other instrumentality of state government;
(2) bargain collectively with an employee organization;
(3) enter into a collectively bargained agreement; or
(4) require an employee to join or financially support an
employee organization.
Sec. 4. An employee of the state, a state agency, or any other
instrumentality of state government is entitled to do any of the
following in a manner that does not interfere with the performance
of the duties of the employee or of another employee of the state, a
state agency, or any other instrumentality of state government or
adversely affect the conduct of state business:
(1) Be a member of or otherwise associate with an employee
organization.
(2) Consult with others for the common good of employees.
(3) Financially support an employee organization.
(4) Petition for the redress of grievances.
Sec. 5. Any contract, agreement, settlement, conditions of
cooperation, or any other device resulting from negotiations
between:
(1) the state, a state agency, or any other instrumentality of
state government; and
(2) an employee organization;
is contrary to public policy and is illegal, unlawful, unenforceable,
void, and of no effect.
Sec. 6. (a) As used in this section, "strike" means any of the
following:
(1) A work stoppage or partial cessation of work.
(2) The abstinence, in whole or in part, from the full, faithful,
and proper performance of the employee's duties of
employment.
(3) Any other interruption or interference with the activities
of the state, a state agency, or any other instrumentality of
state government.
(4) The threat or encouragement of the activities described in
subdivisions (1) through (3).
(b) An employee of the state, a state agency, or any other
instrumentality of state government shall not strike.
Register shall remove these rules from the Indiana Administrative
Code.
(c) On July 1, 2011, 31 IAC 4-8-2 and 31 IAC 4-8-3 are void. The
publisher of the Indiana Administrative Code and Indiana Register
shall remove these sections from the Indiana Administrative Code.
(d) This SECTION expires on July 2, 2011.