2.21.1423 APPLYING PREFERENCE
(1) As provided in 39-30-201, MCA, an applicant who is
eligible for preference under these rules shall be hired over any other
applicant with substantially equal qualifications who is not a
preference-eligible applicant, when:
(a) the applicant has claimed a preference as
required in ARM 2.21.1414, and
(b) the hiring is an initial hiring to employment
covered in ARM 2.21.1422.
(2) A preference-eligible applicant who is a
person with a disability shall be hired over any other preference-eligible
applicant with substantially equal qualifications when the applicant also
meets the requirements of this rule.
(3) As provided in 39-30-103, MCA, an initial hire
means "a personnel action for which applications are solicited from
outside the ranks of the current employee of:
(a) a department, as defined in 2-15-102, MCA, for
a position within the executive branch;
(b) a legislative agency for a position within the
(c) a judicial agency, such as the office of
supreme court administrator, office of supreme court clerk, state law library,
or similar office in a state district court for a position within the judicial
(d) a city or town for a municipal position,
including a city or municipal court position; and
(e) a county for a county position, including a
justice's court position.
(4) A personnel action limited to current
employees of a specific public entity identified in [this rule], current
employees in a reduction-in-force pool who have been laid off from a specific
public entity identified in [this rule], or current participants in a
federally-authorized employment program is not an initial hiring."
(5) A current employee of an agency who meets
eligibility requirements may claim and shall receive the persons with
disabilities preference when the employee is considered an applicant for a
position which is an initial hire as that term is defined in this policy,
whether or not the agency originally limited recruitment for the position to
(6) As provided in 39-30-103, MCA, substantially
equal qualifications means "the qualifications of two or more persons
among whom the public employer cannot make a reasonable determination that the
qualifications held by one person are significantly better suited for the
position than the qualifications held by the other persons."
(7) Substantially equal qualifications does not
mean a situation in which two or more applicants are exactly equally
qualified. It means a range within
which two applicants must be considered to be substantially equal in view of
the qualifications set for the job.
Qualifications shall include job-related competencies, which are
knowledge, skill, and behaviors.
(8) The public employer covered by the Persons
with Disabilities Employment Preference Act, 39-30-101 et seq., MCA,
has the burden of proving by a preponderance of the evidence that the employer
made a reasonable determination of the applicant's qualifications for the
position and that substantially equally qualified applicants were afforded
(9) The public employer shall retain a record of
the hiring decision for at least 90 calendar days after the notice of the
hiring decision. Depending on the
selection procedures used, the record may include, but is not limited to, the
(a) a copy of the vacancy announcement or external
(b) a record of the selection procedure used to
screen job applicants;
(c) a record of written and oral evaluations of
(d) a copy of applications that were considered
for the specific vacancy; and
(e) a record of the notice of the hiring decision,
the written request for an employer's explanation of the hiring decision by an
applicant, and the employer's written explanation.
History: 39-30-106, MCA; IMP, 39-30-101 et seq. , MCA; NEW, 1984 MAR p. 425, Eff. 3/16/84; AMD, 1990 MAR p. 485, Eff. 3/16/90; AMD, 1997 MAR p. 2277, Eff. 12/16/97; AMD, 2000 MAR p. 448, Eff. 2/11/00.