37-19.1 Veterans' Preferences - North Dakota Statutes

Download pdf

Loading PDF...

CHAPTER 37-19.1VETERANS' PREFERENCES37-19.1-01. Definitions. As used in this chapter:1."Agency" or "governmental agency" means all political subdivisions and any state
agency, board, bureau, commission, department, officer, and any state institution or
enterprise authorized to employ individuals either temporarily or permanently.2."Chief deputy" means the individual who is appointed by an elected or appointed
official under express statutory authority to hire a chief deputy and who is authorized
to act on behalf of that official. The term does not include an individual appointed to
a position that must be filled under a personnel system.3."Disabled veteran" means a veteran who is found to be entitled to a
service-connected disability rating as determined by the United States veterans'
administration.4."Justifiable cause" means grounds for action that are in accord with sufficient reason
that can be justified or defended as correct. Justifiable cause not to hire a veteran
must be something specific to that individual which renders the individual unsuitable
for the position.5."Personnel system" means a system that rates applicants for a position using an
objective set of skills, knowledge, abilities, behaviors, or other characteristics
required for the position.6."Politicalsubdivision"meanscounties,cities,townships,andanyothergovernmental entity created by state law which employs individuals either
temporarily or permanently.7."Private secretary" means the individual who is appointed by an elected or appointed
official under express legal authority to hire a private secretary or administrative
assistant and who is authorized to handle correspondence, keep files, schedule
appointments, and do other clerical work of a more personal and confidential nature
for that official, but does not include an individual appointed to a position that must
be filled under a personnel system.8."Veteran" means a North Dakota resident who is a wartime veteran as defined in
subsection 2 of section 37-01-40.37-19.1-02. Public employment preference to veterans - Residency requirements.1.Veterans are entitled to preference, over all other applicants, in appointment or
employment by governmental agencies, provided that such veteran is a United
States citizen at the time of application for employment.Veterans qualified forpreference may not be disqualified from holding any position with an agency
because of physical or mental disability, unless the disability renders them unable to
properly perform the duties of the position applied for.2.When a veteran applies for appointment or employment under subsection 1, the
officer, board, or person whose duty it is to appoint or employ an individual to fill the
available position shall, except where the veteran has been qualified for the position
applied for under a personnel system, investigate the qualifications of the veteran. If
the veteran is found to possess the qualifications required for the position applied
for, whether educational or by way of prior experience, and is physically and
mentally able to perform the duties of the position applied for, the officer, board, or
person shall appoint or employ the veteran.Page No. 13.A disabled veteran is entitled to a preference superior to that given other veterans
under this section, which preference must be accorded in the manner provided in
this section.4.Notwithstanding the preference provisions in subsections 1, 2, and 3, public
employment preference for veterans by agencies filling positions through a
personnel system are governed by the following:a.No distinction or discrimination may be made in the administration of the
examination because the applicant may be a veteran.b.Upon completion of the examination with a passing grade, the applicant must
be informed of a veteran's rights to employment preference as hereinafter
provided.c.The applicant must be required to furnish proof of the applicant's status as a
veteran and, if disabled, proof of the applicant's disability, as defined herein.d.Upon receipt of proof required in subdivision c, on a one hundred point scale,
the examiner shall add five points for a nondisabled veteran and ten points for a
disabled veteran to the examination grade of the applicant. The total is the
veteran's examination score.e.Upon request for the prescribed number of eligible individuals from the eligibility
registry, the number of eligible individuals must be certified from the top
number of eligible individuals and with the certified list of eligible individuals
there must also be submitted a statement as to which of those so certified are
veterans, disabled veterans, or nonveterans.f.If the certified list of eligible individuals includes either veterans or disabled
veterans, the appointing or employing authority of that particular agency or
governmental agency shall make a selection for the available position as
follows:(1)A disabled veteran, without regard to the disabled veteran's examination
grade, is first entitled to the position and, in the absence of justifiable
cause, documented in writing, for not making that selection, must be so
appointed or employed.If the list includes two or more disabledveterans, then the one with the highest examination grade is first entitled
to the position and, in the absence of justifiable cause, documented in
writing, for not making that selection, must be so appointed or employed.(2)If the certified list of eligible individuals does not include one or more
disabled veterans and consists only of veterans, then the one with the
highest examination grade is first entitled to the position and, in the
absence of justifiable cause, documented in writing, must be appointed
or employed.(3)If the certified list of eligible individuals includes nonveterans and
veterans, but not disabled veterans, then the one with the highest
examination grade, whether a nonveteran or a veteran, is first entitled to
the position and, in the absence of justifiable cause, must be so
appointed or employed; and if the one with the highest examination
grade is a veteran and is not appointed or employed, there must be
justifiable cause documented in writing for not making that appointment
or employment.5.This section does not apply when the position to be filled is that of a superintendent
of schools, teacher, or the chief deputy or private secretary of an elected orPage No. 2appointed official, the chancellor and vice chancellors of the board of higher
education, presidents or executive deans, vice presidents, assistant to the president,
provosts, and instructors of board institutions. Temporary committees and individual
or group appointments made by the governor or legislative assembly are also
excepted from the provisions of this section.37-19.1-03. Preferences to be granted veterans' spouses.1.The unremarried spouse of a veteran who died while in service, or later died from a
service-connected cause or causes, is entitled, if the person is otherwise qualified, to
the appointment or employment preference given to a veteran under section
37-19.1-02 in the manner provided therein.2.The spouse of a disabled veteran, who is disabled due to a service-connected cause
or causes, is, if the disabled veteran is unable to exercise the veteran's right to a
veteran's employment preference due to the veteran's disability, entitled, if the
person is otherwise qualified, to the appointment or employment preference given to
a veteran under section 37-19.1-02 in the manner provided therein.37-19.1-04. Refusal to give preference - Retaliatory action or removal - Remedies -Procedures.1.If a veteran, or a qualified veteran's spouse, hereafter known as the applicant, is not
given the preference provided in section 37-19.1-02 or 37-19.1-03, the applicant,
within fifteen days after notification by certified mail that employment has been
refused, may request a hearing as provided in subsection 3. The notification from
the employer must include the reasons for nonselection, inform the applicant of the
right to an appeal hearing, inform the applicant of the requirement that the request
for a hearing must be filed by certified mail within fifteen days after the notification,
inform the applicant that a request for an appeal hearing must be made to the
commissioner of veterans' affairs at the included commissioner's mailing address,
and inform the applicant that if the applicant requests an appeal, the applicant must
mail a copy of the request for an appeal hearing to the employer or employing
agency. The applicant's request for a hearing must be in writing, must include a
copy of the employer's notification that employment has been refused, and must be
delivered to the commissioner of veterans' affairs by certified mail. A copy of the
written request must be mailed to the employer or employing agency. The applicant
is entitled to immediate employment in the position for which application was
originally made, or an equivalent position, together with backpay and benefits from
the date the appointment should have been made less amounts otherwise earnable
through due diligence, if the hearing officer finds in favor of the applicant.2.Any person who has exercised the right to an employment preference under this
chapter, and who, within one year after exercise of that right:a.Is discharged;b.Has had compensation reduced; orc.Is otherwise subject to action by the employing agency designed to cause the
veteran or qualified veteran's spouse to resign or quit employment, is entitled to
a hearing if the person believes that the employing agency took any of the
above-described action due to the exercise of employment preference. The
hearing must be held before a hearing officer as provided in subsection 3. If
the hearing officer finds that the employing agency took any of the actions
described in subdivision a, b, or c due to the person's exercise of the right to an
employment preference, the hearing officer shall order the employing agency to
cease and desist from such action or to reinstate the veteran or qualified
veteran's spouse. The request for a hearing under this subsection must be inPage No. 3writing addressed to the commissioner of veterans' affairs. The request for a
hearing must identify the employer or employing agency that took any action
described in subdivision a, b, or c and describe the action taken. A copy of the
written request must be mailed to the employer or employing agency. The
request, addressed to the commissioner of veterans' affairs, must be made by
certified mail within fifteen days after any action described in subdivision a, b, or
c is taken by the employing agency.3.Within fifteen days after receiving a request from an applicant or person under
subsection 1 or 2, the commissioner of veterans' affairs may request the director of
the office of administrative hearings to designate a hearing officer to hear the
grievance arising under subsection 1 or 2.The commissioner shall notify theemployer or employing agency that a request for a hearing has been made. The
office of administrative hearings is entitled to be reimbursed by the employer or
employing agency for all hearing officer services rendered and expenses incurred in
performing these duties. The hearing officer shall hold the hearing within thirty days
after the hearing officer request is received by the director of the office of
administrative hearings. Notwithstanding the time limitation, the hearing officer may
postpone or continue the hearing for good cause, at the request of a party. At the
hearing, both parties may be represented by counsel. If the hearing is requested
pursuant to subsection 1, the employing agency has the burden of proving that the
veteran or the qualified veteran's spouse did not possess the qualifications required
for the position. If the hearing is requested pursuant to subsection 2, the employing
agency has the burden of proving that any action which was taken was not taken
because of exercise of the right to an employment preference. The hearing officer
shall issue findings of fact, conclusions of law, and an order within fifteen days after
the hearing is concluded, briefs filed, and arguments closed. The order is binding on
both parties, subject to appeal.4.Any party aggrieved by the findings of fact, conclusions of law, and order of the
hearing officer may appeal in the manner provided for in chapter 28-32, except that
the appellant need not execute an undertaking.Page No. 4Document Outlinechapter 37-19.1 veterans' preferences