BEFORE THE DEPARTMENT OF ADMINISTRATION

OF THE STATE OF MONTANA

TO: All Concerned Persons

1. On April 13, 2007, the Department of Administration proposes to amend the above-stated rules.

2. The Department of Administration will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m. on March 7, 2007, to advise us of the nature of the accommodation that you need. Please contact State Personnel Division, Department of Administration, P.O. Box 200127, Helena, MT 59620-0127; telephone (406) 444-3749; Montana Relay Service 711; FAX (406) 444-0703; or e-mail cstapley2@mt.gov.

3. The department proposes to amend the rules as follows, new matter underlined, stricken matter interlined:

2.21.6606 POLICY AND OBJECTIVES (1) It is the policy of the state of Montana to:

(a) collect and maintain employee personnel records while protecting an employee's right of privacy pursuant to Article II, section 10 of the Constitution of the State of Montana; and

(a) (b) to insure ensure employee awareness of records held;, provide employees access to their personnel records, and to allow employees to correct their personnel correction of records; and

(b) (c) restrict access to confidential employee personnel records to: only those with a job-related purpose for viewing or using the records. Others may have access to confidential records only with the informed and voluntary consent of the employee or with a valid legal order.

(i) the employee;

(ii) those persons with a job-related purpose for viewing or using the records;

(iii) persons whom the employee has granted written permission to view or use; or

(iv) pursuant to a valid court order.

(2) remains the same.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

2.21.6608 DEFINITIONS As used in this subchapter the following definitions apply:

(1) "Access" means permission to view and use records viewing or using records.

(2) "Confidential records" means records concerning an employee to which there is restricted access which, by law, are not public records.

(3) remains the same.

(4) "Employee personnel record" means information relating to an employee's employment with the state of Montana. or a department of the state and is appropriate for preservation as evidence of employment policies, practices and decisions. An employee personnel record may be a paper document or it may be information maintained in an information system such as the payroll/personnel/position control system (P/P/P system) Statewide Accounting Budgeting and Human Resource (SABHRS) system. Other programs including, but not limited to, Public Employees Retirement System (PERS) Montana Public Employee Retirement Administration (MPERA), worker's' compensation, or unemployment insurance, develop records relating to an employee which are not an employee personnel record as defined in this policy.

(5) "Payroll/Personnel/Position control system (P/P/P) "Statewide Accounting Budgeting and Human Resource (SABHRS) system" means the automated system established by the state of Montana to maintain some types of personnel records for state employees.

(6) remains the same.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

2.21.6610 ADOPTION OF DEPARTMENT POLICY (1) A department All departments must adopt a procedure which is consistent with this subchapter and which contains, at a minimum, the following provisions:

(a) a list of the types of records which are maintained, pursuant to records management procedures found in Chapter 800, Montana Operations Manual, Volume I; the general records retention schedules published by the Montana Secretary of State’s office, Records Management Bureau;

(b) and (c) remain the same.

(d) the acceptable location of records in the department; and,

(e) remains the same.

(2) The policy must be adopted and approved by the department of administration, as provided in ARM 2.21.1203, no later than 90 days after the effective date of this policy.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

2.21.6611 ACCESS TO EMPLOYEE PERSONNEL RECORDS (1) All employee personnel records are confidential and access is restricted, except an employee's position title, dates and duration of employment and, salary, and claims for vacation, holiday, or sick leave pay, which are public information and must be released on request. A department may not require justification for the request. A department may require that the request be in writing. A department may not require justification for the request.

(2) remains the same.

(3) In addition to access provided in this chapter and a department procedure, the following provisions will apply to employee personnel records:

(a) The employee has access to all of his or her employee personnel records. An employee may file a written response to information contained in employee personnel records which becomes a permanent part of the record. The response must be filed within 10 ten working days of the date on which an employee is made aware of the information by the department.

(b) Information collected regarding medical examinations or inquiries must be treated as confidential medical records in compliance with the Americans with Disabilities Act (ADA) and collected and maintained on separate forms in separate files from employee personnel records. As provided in the ADA, access is restricted to:

(i) supervisors and managers when identifying restrictions on the employee's work or duties or identifying necessary accommodations;

(ii) first aid and safety personnel, when appropriate, if the disability might require emergency treatment,; and

(iii) on request from government officials investigating compliance with the ADA.

(c) through (g) remain the same.

(h) Some governmental entities have authority under federal or state laws to access information in employee records. Others may obtain access to employee personnel records only with the employee’s informed and written permission or with a valid legal order. The department will inform the employee when a valid legal order has been received requiring access to an employee’s personnel records. Some governmental entities have authority pursuant to state or federal law to access an employee’s personnel record. Others may access an employee’s personnel record only with the employee’s written permission or with a valid court order. A department will inform an employee when a valid court order has been received directing access be provided to an employee’s personnel record.

(i) remains the same.

AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA

4. REASON: In part, the department is amending the rules to incorporate the Attorney General Opinion No. 32, dated 5/1/1992, that states county time records which show an employee’s name, the department for which the employee works, and the hours worked, including claims for vacation, holiday, or sick leave pay, are subject to public disclosure. The department is also reviewing and revising rules to conform to 2-2-314(1), MCA, which directs departments to conduct a biennial review of their rules and modify or amend them if necessary. The department is proposing to make some amendments for clarity, organization, and writing style. In other amendments, the department proposes to delete unnecessary language.

5. Concerned persons may submit their data, views, or arguments in writing to Christy Stapley, State Personnel Division, Department of Administration, P.O. Box 200127, Helena, MT 59620-0127; or e-mail cstapley2@mt.gov. Comments must be received no later than 5:00 p.m., March 12, 2007.

6. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Christy Stapley, State Personnel Division, Department of Administration, P.O. Box 200127, Helena, MT 59620-0127; or e-mail cstapley2@mt.gov to be received no later than 5:00 p.m., March 12, 2007.

7. If the Department of Administration receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected is greater than 25 based on the number of state employees.

8. The Department of Administration maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by the department. Persons who wish to have their name added to the list shall make a written request that includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding personnel rules. Such written request may be mailed or delivered to Christy Stapley, Department of Administration, State Personnel Division, P.O. Box 200127, Helena, MT 59620-0127; e-mailed to cstapley2@mt.gov or made by completing a request form at any rules hearing held by the Department of Administration.

9. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.

     BY: /s/ Janet Kelly                                                     BY: /s/ Dal Smilie

     Janet R. Kelly, Director                                             Dal Smilie, Rule Reviewer

     Department of Administration                                  Department of Administration 

Certified to the Secretary of State January 29, 2007