W. Va. Code R. § 143-6-4 - Challenging a Suitability Determination

4.1. If a subject individual wishes to challenge an adverse suitability determination he or she may appeal the determination by requesting an administrative review. The appointing authority shall not fill the vacant position for which the subject individual applied until completion of the appeal process.

a. In order to request an administrative review, the subject individual or the subject individual's representative must complete and sign the Administrative Review Request, Form PRIA-1, (provided as Attachment A).

b. The subject individual must file the completed and signed PRIA-1 form with the Director not later than fifteen (15) calendar days after the notice of suitability determination has been received. The Director may extend the time to appeal if the Director determines the delay was caused by factors beyond the reasonable control of the subject individual.

4.2. When adverse action is taken against a subject individual by an appointing authority and the subject individual requests an administrative review, the Director shall conduct the review with the Authorized Designee who made the suitability determination. If, in the opinion of the Director, an administrative hearing is necessary, the subject individual shall be notified by the Director in writing of the request for a hearing. Procedural rules set forth in West Virginia Code § 29A, State Administrative Procedures Act, shall apply.

a. The subject individual and, if applicable, the subject individual's representative must participate in the administrative review and/or hearing. If the subject individual fails to participate, the subject individual's right to an administrative review is terminated if, in the opinion of the Director, the subject individual lacks good cause for failure to participate.

b. The purpose of the administrative review determination or hearing is to:

1. Inform the subject individual of the rules, regulations, laws, etc., that serve as the basis for the denial,

2. Give the subject individual an opportunity to review the information that is the basis for the denial, except as prohibited by State or federal law,

3. Ensure the subject individual is provided a thorough explanation of the reason for the denial,

4. Give the Director and the subject individual the opportunity to correct any misunderstanding of the facts, and

5. Provide an opportunity for the Director and the subject individual to resolve the situation.

c. Upon completion of the administrative review, the subject individual and Authorized Designee are advised by the Director in writing of the decision within thirty (30) calendar days.

d. If the administrative review reverses the adverse action, the appointing authority shall consider the subject individual for the position and the Division of Personnel will permit the subject individual to participate in the competitive employment process and, if applicable, re-certify the subject individual. However, if the administrative review upholds the original suitability determination, the appointing authority shall not give consideration to the subject individual for the position in question. Further, the Division of Personnel may remove the subject individual from and/or bar the subject individual from certification to applicable civil service registers and/or shall find the subject individual ineligible for promotion into all applicable classifications.

e. The Director of Personnel may authorize employees of the Division of Personnel to act on her or his behalf during an administrative review and/or hearing. The Director retains the right to be represented by the Attorney General in administrative hearings in which the Director issued the initial suitability determination. Such hearings shall be conducted by either the Assistant Director of Staffing Services or the Assistant Director of Employee Relations.

f. Administrative hearings are not open to the public.

g. The subject individual may withdraw an administrative review request by notifying the Director orally or in writing at any time. The withdrawal is effective the date the Director receives notification, after which he or she will issue a dismissal order.

h. When an appeal is resolved, the Director will issue a final order.

i. The Director shall issue an order effective the date of the scheduled hearing dismissing the appeal if neither the subject individual nor the subject individual's representative appear at the time and place specified for the hearing. The Director will cancel the dismissal order on request of the subject individual or the subject individual's representative on a showing that the subject individual and the subject individual's representative were unable to attend the hearing and unable to request a postponement for reasons beyond their control.

Notes

W. Va. Code R. § 143-6-4