Montana Administrative Register Notice 2-21-465 No. 19   10/13/2011    
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In the matter of the repeal of ARM 2.21.6401, 2.21.6403, and 2.21.6422 pertaining to performance management and evaluation







TO:  All Concerned Persons


1.  On November 3, 2011, at 3:00 p.m., the Department of Administration will hold a public hearing in Room 136 of the Mitchell Building, at 125 N. Roberts, Helena, Montana, to consider the proposed repeal of 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 of Administration no later than 5:00 p.m. on October 28, 2011, to advise us of the nature of the accommodation needed.  Please contact Marjorie Thomas, Department of Administration, P.O. Box 200127, 125 N. Roberts, Helena, Montana 59620; telephone (406) 444-3982; fax (406) 444-0703; Montana Relay Service/TDD 711; or e-mail mthomas2@mt.gov.


3.  The department proposes to repeal the following rules:


2.21.6401  SHORT TITLE found at page 2-1461 of the Administrative Rules of Montana (ARM).


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


2.21.6403  POLICY AND OBJECTIVES found at ARM page 2-1461.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


2.21.6422  CLOSING found at ARM page 2-1462.


AUTH:  2-18-102, MCA

IMP:  2-18-102, MCA


STATEMENT OF REASONABLE NECESSITY:  Montana law requires that the department (1) develop and issue personnel policies and (2) adopt rules to implement the state's personnel administration statutes.  2-18-102 et seq., MCA.  The definition of "rule" in 2-4-102(11)(a) and (b), MCA, excludes "statements concerning only the internal management of an agency or state government and not affecting private rights or procedures available to the public."  This language was enacted by the 2003 Legislature, and, since June 2004, the State Human Resources Division has been removing its internal administrative policies from the Administrative Rules of Montana as part of its policy review process while retaining those rules in ARM that affect the public.


This proposed repeal addresses the performance management and evaluation rules. 

The performance management and evaluation rules address the internal management of state government employees.  These rules will be rewritten in a new performance management and evaluation policy.  If adopted, the new policy will become effective on the same date as the repeal of these rules and will be included in the Montana Operations Manual (MOM), a document that addresses the internal management of state government.  MOM human resources policies may be found at http://hr.mt.gov/hrpp/policies.mcpx.


Employees may comment on the proposed performance management and evaluation policy when it is posted on or about October 13, 2011, at http://hr.mt.gov/hrpp/policyproposals.mcpx.  A notice of the new policy will also be posted on the MINE web page, an internal site for state employees.  Employees may also offer their comments on the policy at the November 3, 2011, public hearing.


The department has taken the repeal approach because the department believes the alternatives to repeal lack merit.  The alternative is to leave these rules in the ARM.  The department, however, believes that since these rules address the internal management of state government, they are not "rules" as defined in statute and, therefore, do not belong in the ARM.


It is important to reiterate that the department is required by law to adopt personnel policies that agencies are expected to follow.  Moving a statement from rule to policy does not mean that the agencies may ignore the policy.


4.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to Marjorie Thomas, Department of Administration, P.O. Box 200127, 125 N. Roberts, Helena, Montana 59620; telephone (406) 444-3982; fax (406) 444-0703; or e-mail mthomas2@mt.gov, and must be received no later than 5:00 p.m., November 10, 2011.


5.  Marjorie Thomas, an attorney with the Department of Administration, has been designated to preside over and conduct this hearing.


6.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the mailing list shall make a written request which includes the name and mailing address or e-mail address of the person to receive notices and specifies that the person wishes to receive notices regarding State Human Resources Division rulemaking actions.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.


7.  An electronic copy of this proposal notice is available through the department's web site at http://doa.mt.gov/administrativerules.mcpx.  The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that if a discrepancy exists between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


8.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


By:   /s/ Janet R. Kelly                                        By:   /s/ Michael P. Manion              

         Janet R. Kelly, Director                                      Michael P. Manion, Rule Reviewer

         Department of Administration                          Department of Administration



Certified to the Secretary of State October 3, 2011.


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