Chapter 124-3 Section 124.34 Orders
(A) "Section 124.34 orders" and orders of involuntary disability separation may be affirmed only if each of the following criteria are satisfied:
(1) The copy of the order served on the employee shall bear the original signature of the appointing authority and the date of signature. If an appointing authority is a public body, the order must contain the signatures of a majority of the members, or in the alternative, a certified copy of the resolution adopting the order shall be attached to each copy of the order; and
(2) The employer shall serve the employee with a copy of the order on or before the effective date of the action; and
(3) The order shows, on its face, a list of particulars which form the basis for the order; and
(4) The appointing authority can, if challenged, demonstrate both the authority of the signer and the authenticity of the signature on a "section 124.34 order" or an order of involuntary disability separation.
(B) Disaffirmance of an order under this rule shall not be a bar to filing another "section 124.34 order" or an order of involuntary disability separation based upon the same allegations.
119.032 review dates:
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.34
Prior Effective Dates: 7/7/79, 3/3/86, 3/1/93, 3/28/98, 5/18/00, 5/17/01
(A) A "section 124.34 order" or an order of involuntary disability separation is served on an employee when:
(1) It is personally served upon the employee; or
(2) It is received by the employee at the employee's last known address, by certified mail, return receipt requested; or
(3) It is left at the usual place of residence, or last known address of the affected employee, with an adult residing therein.
(B) If the service by certified mail under paragraph (A)(2) of this rule is returned with an endorsement showing the service was refused or unclaimed, then the "section 124.34 order" or the order of involuntary disability separation may be sent by ordinary mail, evidenced by a certificate of mailing. A "section 124.34 order" or an order of involuntary disability separation issued to an employee under the provisions of this subsection shall be deemed served on the third calendar day after the order is mailed.
(C) Employees shall notify the appointing authority, in writing, of any changes of address throughout their employment. A "section 124.34 order" or an order of involuntary disability separation will not be disaffirmed based upon an appointing authority's failure to serve the employee with a copy of the order where the employee has failed to notify the appointing authority of a change of address and the appointing authority has attempted to serve a copy of the order to the employee's last known address. The burden is on the employee to prove the appointing authority was notified of a change in the employee's address.
(A) An appointing authority may, at any time prior to the first record hearing, delete material contained in a "section 124.34 order. " After the first record hearing has begun, the board may permit the deletion of material from a "section 124.34 order."
(B) Material not originally present in a "section 124.34 order" may not be added to the order after it is furnished to the employee or filed with the state personnel board of review, whichever is earlier.
(1) Such material, if not barred by rule 124-3-04 of the Administrative Code, may be made the basis of a subsequent order.
(2) An appointing authority may correct errors at any time as long as the substance of an allegation is not changed.
(C) Upon written notice to the employee, an appointing authority may rescind a "section 124.34 order" or an order of involuntary disability separation. Rescission of a "section 124.34 order" or an order of involuntary disability separation under this rule shall not be a bar to filing another order based upon the same allegations.
(A) Employees shall not be disciplined for acts which have been known or should have been known to the appointing authority more than two years prior to the issuance of a "section 124.34 order."
(1) Whether an appointing authority knew or should have known of the occurrence of events giving rise to disciplinary action is a question of fact to be determined by the board.
(2) The length of time between the occurrence of the action, the appointing authority's knowledge of the incident, and the imposition of discipline will be factors in the board's determination of the appropriateness of the disciplinary action.
(B) This rule does not bar discipline based upon a criminal conviction, less than two years old, although the incidents giving rise to such conviction occurred more than two years prior to the imposition of discipline.
(A) All incidents which occurred prior to the incident for which a non-oral disciplinary action is being imposed, of which an appointing authority has knowledge and for which an employee could be disciplined, are merged into the non-oral discipline imposed by the appointing authority. Incidents occurring after the incident for which a non-oral disciplinary action is being imposed, but prior to the issuance of the non-oral disciplinary order, are not merged and may form the basis for subsequent discipline.
(1) For purposes of this rule, knowledge of an appointing authority will include knowledge of those persons with authority to impose non-oral discipline for the appointing authority.
(2) For purposes of this rule, non-oral discipline includes written reprimands and suspension orders. It does not include a written memorandum of oral counseling or written warnings.
(B) Except as provided in rules 124-3-01 and 124-9-04 of the Administrative Code, once discipline is imposed for a particular incident, that incident shall not be used as the basis for subsequent discipline.
(C) Upon written notice to the employee, an appointing authority may rescind non-oral discipline. Rescission of non-oral discipline under this rule shall not be a bar to issuing another non-oral discipline based upon the same allegations.
The appointing authority shall prove, by a preponderance of the evidence, the factual allegations in a disciplinary order. Failure to prove all of the allegations contained in an order does not, as a matter of law, require disaffirmance of an order.