# COMAR Title 17 — Department of Budget and Management

## Subtitle 04 — Personnel Services and Benefits

### Chapter 03 — Recruitment, Examinations, Selections, and Employment

**Authority:** State Personnel and Pensions Article, §7-104 and Titles 4, 6, 11, and 13, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.21 adopted as an emergency provision effective February 12, 1997 (24:5 Md. R. 391); emergency status expired August 12, 1997; adopted permanently effective September 8, 1997 (24:18 Md. R. 1297)

**Administrative History:** For a history of State Personnel Regulations before February 12, 1997, see the prior version of COMAR Title 06 or contact the Maryland State Archives for assistance.

**Administrative History:** Regulation .17F amended effective September 15, 2003 (30:18 Md. R. 1260)

**Administrative History:** Chapter revised effective December 28, 2009 (36:26 Md. R. 1998)

**Administrative History:** Regulation .10C amended effective August 13, 2018 (45:16 Md. R. 775)

#### Regulation .01 General.

*COMAR 17.04.03.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Streamlined selection” means a selection made in accordance with State Personnel and Pensions Article, §7-201(a)(2), Annotated Code of Maryland, and Regulations .02 and .03 of this chapter.

  (2) “Structured selection” means a selection made from a list or registry of eligible candidates in accordance with State Personnel and Pensions Article, Title 7, Subtitle 2, Annotated Code of Maryland, and Regulations .02 and .03-1—.18 of this chapter.

#### Regulation .02 Preliminary Qualifications for Examinations.

*COMAR 17.04.03.02*

A. The minimum qualifications, as amended periodically, prescribed in classification specifications and in position selection plans are adopted as part of guidelines adopted by the Secretary.

B. An applicant shall furnish proof of minimum education and experience qualifications including licensure or other certifications required by law.

#### Regulation .03 Streamlined Selection.

*COMAR 17.04.03.03*

A. The Executive Director of the Office of Personnel Services and Benefits shall determine classifications and/or positions approved for streamlined selection in accordance with State Personnel and Pensions Article §7-201(a)(2), Annotated Code of Maryland.

B. If the appointing authority notifies the Department that a recruitment must occur in a timely manner, streamlined selection may be used for classifications or positions, or both:

  (1) With documented recruitment difficulties;

  (2) With special technical, educational, experience, licensure, or certification requirements; or

  (3) With other selective merit-based qualifications that limit the size of the potential applicant pool.

C. Streamlined selections shall be used for classifications or positions, or both, that were statutorily designated as special appointments on January 1, 2009, and converted to skilled or professional service upon vacancy in accordance with State Personnel and Pensions Article, §7-201(a)(2)(iii)2, Annotated Code of Maryland.

D. Vacancies for classifications or positions, or both, designated as eligible for streamlines selection shall be posted to allow for a competitive selection process.

E. The appointing authority shall determine the appropriate methodology for selections made through the streamlined selection process.

F. The selection shall be:

  (1) Job-related;

  (2) Merit-based; and

  (3) In accordance with all State and federal equal employment opportunity laws and policies.

G. The Secretary may issue policies and guidelines consistent with the provisions of State Personnel and Pensions Article, §7-201(a)(2), Annotated Code of Maryland.

#### Regulation .03-1 Filing Applications.

*COMAR 17.04.03.03-1*

Other than a special appointment position or a position covered by State Personnel and Pensions Article, §7-201(a)(2), Annotated Code of Maryland, an individual wishing to compete for appointment to a position in the skilled or professional service shall file an application in the manner required by the Secretary. The application shall be sent to the location specified in the position selection plan and job announcement. An application received or postmarked after the posted closing date may not be accepted.

#### Regulation .03-2 Rejection of Applications.

*COMAR 17.04.03.03-2*

A. An application may be rejected for cause before the date of establishment of the eligible list for the class or the position for which it is filed. The following are sufficient cause for rejecting an application though rejection may be for other causes permitted by law:

  (1) The applicant does not meet the minimum qualifications of the position or classification;

  (2) The applicant does not meet selective qualifications or limitations, or both, on selection as applicable; or

  (3) In the case of a promotional examination, the applicant is a temporary employee or a special appointment.

B. An applicant whose application is rejected shall be notified of that action.

#### Regulation .03-3 Parts of Examinations.

*COMAR 17.04.03.03-3*

Examinations shall only evaluate job-related knowledge, skills, and abilities.

#### Regulation .04 Possession of Minimum Qualifications for Examinations.

*COMAR 17.04.03.04*

A. Open and promotional competitors who will possess the minimum education, license, or certificate qualifications within 6 months after the examination date may participate in the examination if the duration of the list exceeds 6 months. These competitors are not eligible for selection until they meet the education, license, or certificate qualifications.

B. Promotional employees who will possess the minimum experience qualifications within 6 months after the examination date may participate in the examination if the duration of the list exceeds 6 months. These promotional employees are not eligible for selection until they meet the experience qualifications.

#### Regulation .05 Conduct of Examinations.

*COMAR 17.04.03.05*

A. An examination shall be conducted as provided in State Personnel and Pensions Article, Title 7, Annotated Code of Maryland.

B. A report shall be prepared detailing the conduct of the examination and the results as required by the Secretary.

C. The integrity of the examination and the confidentiality of the examination materials and results shall be maintained. If an audit reveals breaches in security or other irregularities, appropriate remedial action may be ordered by the Secretary.

#### Regulation .06 Veterans, Seniority, and Resident Points.

*COMAR 17.04.03.06*

Veterans, promotional candidates, and State residents are entitled to additional points as provided in State Personnel and Pensions Article, §7-207, Annotated Code of Maryland.

#### Regulation .07 Revision of Lists of Eligibles.

*COMAR 17.04.03.07*

A list of eligibles may not be revised without written approval by the Executive Director of the Office of Personnel Services and Benefits. The Office of Personnel Services and Benefits shall be notified whenever an error is committed in computing examination scores. A qualified individual whose name has previously been certified from the list and employed may not be displaced because of the correction of clerical errors.

#### Regulation .08 Removal of Names from Eligible List.

*COMAR 17.04.03.08*

A. The name of an individual may be deleted from an eligible list in accordance with State Personnel and Pensions Article, §7-206, Annotated Code of Maryland.

B. An individual whose name is to be deleted from an eligible list in accordance with §A of this regulation shall be notified and shall be given the opportunity to respond as stated in State Personnel and Pensions Article, §7-210, Annotated Code of Maryland.

#### Regulation .09 Duration, Extension, Combination, and Cancellation of Lists of Eligibles.

*COMAR 17.04.03.09*

A. A list of eligibles shall continue in force for the time period specified in the position selection plan. A list may be extended.

B. When a list of eligibles for a class exists and the same examination for the class is given again, the names of the qualified successful competitors shall be placed on the list. Each competitor shall appear on the list only once with the competitor's most recent result.

C. Lists resulting from examinations with different content shall be maintained separately.

#### Regulation .10 Selection and Appointment of Eligibles and Notification to Secretary.

*COMAR 17.04.03.10*

A. The appointing authority shall select, as provided in State Personnel and Pensions Article, §7-209, Annotated Code of Maryland, the individual or individuals to be appointed from a list of eligible candidates.

B. Promotion.

  (1) An appointing authority may fill a vacancy by selection of promotional candidates from any certified list of eligible candidates in accordance with State Personnel and Pensions Article, Title 7, Subtitle 2, Annotated Code of Maryland.

  (2) An appointing authority may select from:

    (a) Employees of the appointing authority;

    (b) Other employees within the same principal department as the appointing authority; or

    (c) All other employees certified as promotional.

C. Background Investigations.

  (1) The appointing authority shall determine the necessity of investigating the background of an eligible individual for purposes of verification of suitability for employment. When appropriate and job-related, areas of investigation may include but are not limited to employment history, academic credentials, military records, criminal conviction records, and personal references.

  (2) An individual who is a prospective or current employee for a position for which the job duties include access to federal tax information may be deemed to have failed a background investigation or criminal history records check if that individual’s background investigation or criminal history records check  reveals a record of conviction for crimes of fraud, theft, or any other conviction that the appointing authority has reason to believe makes the individual unfit or otherwise unqualified to have access to federal tax information.

  (3) In conducting the background investigation, the appointing authority shall:

    (a) Provide written notification to the eligible individual that:

      (i) A background investigation may be conducted, and

      (ii) Consequences for fraudulent or false information may include but are not limited to nonselection, decertification, termination of employment in situations where employment has begun, notification to the Secretary, and criminal prosecution;

    (b) Obtain a release of information form signed by the eligible individual;

    (c) Take any other appropriate action.

  (4) If the Secretary or the appointing authority discovers that the individual provided fraudulent information in taking an examination or in any part of the appointment process, the Secretary or appointing authority may take any of the following actions:

    (a) Revoke the person's eligibility;

    (b) Withdraw the offer; or

    (c) Take any other action the Secretary deems appropriate.

D. The appointing authority shall report to the Secretary the appointment of each selected eligible, together with the required supporting documents, in a timely manner.

#### Regulation .11 Overlap Appointments.

*COMAR 17.04.03.11*

A. Two nontemporary employees may occupy the same budgeted position for a transitional period not to exceed 6 months time for reasons relevant to the efficient and effective operation of a department or an agency. This situation is known as an overlap appointment.

B. The appointing authority shall immediately report to the Secretary each overlap appointment including start and ending date in the manner required by the Secretary.

#### Regulation .12 Temporary, Noncontractual Appointment.

*COMAR 17.04.03.12*

A. An appointing authority may appoint any qualified individual as a temporary, noncontractual employee for reasons relevant to the efficient and effective operation of a department.

B. The appointing authority shall immediately report to the Secretary a temporary, noncontractual appointment in the manner required by the Secretary.

C. A temporary, noncontractual appointment may not continue for more than 6 months and may not be renewed.

#### Regulation .13 Contractual Employment.

*COMAR 17.04.03.13*

A. Definitions. In this regulation, the following terms have the meanings indicated:

  (1) “Contract” means a personal service agreement between the State and an individual.

  (2) “Contractual employee” means an individual providing personal services to the State for remuneration if all of the following conditions exist:

    (a) The services and remuneration are specified in a written agreement;

    (b) There is an employer-employee relationship;

    (c) The individual is not employed in a budgeted position, unless approved as secondary employment; and

    (d) Except as provided by law, fringe benefits are not provided.

  (3) “Employer-employee relationship” means that all of the following conditions of employment exist:

    (a) The State has the right to control and direct the performance of services not only as to results but also as to details and means;

    (b) The State has the right to discharge the employee; and

    (c) The State furnishes necessary tools and a place to work.

B. Certification. With the exception of exemptions listed under §C of this regulation, all contracts shall be submitted for review and certification by the Secretary under the provisions of State Personnel and Pensions Article, §13-202, Annotated Code of Maryland, before the principal unit authorizes payment.

C. The Secretary may exempt specific types of contracts pursuant to State Personnel and Pensions Article, §13-201, Annotated Code of Maryland, and guidelines published by the Secretary.

D. Payment and Funds.

  (1) A contractual employee shall be paid through the Special Payments Payroll.

  (2) Funds shall be identified and available in order for the State agency to authorize the Central Payroll Bureau to make payment through the Special Payments Payroll. The initial contractual employment authorization shall include a statement by the appointing authority certifying availability of funds and identifying the source of those funds in the agency budget.

  (3) If funds are not identified and available for a particular contract, the State agency shall obtain written approval from the Secretary before execution of the contract.

  (4) A contract shall be terminated if funds become unavailable.

E. Only one person may be employed under a contract.

F. An appointing authority shall maintain a current contract for each contractual employee.

G. The form of each contract shall be approved by the Office of the Attorney General, or, if authorized by law, independent counsel.

H. Transfer of a contractual employee to a budgeted position is governed by State Personnel and Pensions Article, Title 13, Subtitle 3, Annotated Code of Maryland.

#### Regulation .14 Part-Time Employment.

*COMAR 17.04.03.14*

A. Part-time employment is governed by State Personnel and Pensions Article, §7-701, Annotated Code of Maryland.

B. An individual employed less than 50 percent of the workweek is not a part-time employee and is not entitled to receive any of the employment rights, privileges, or benefits that are normally available to a full-time or part-time employee in a similar position with a similar grade and length of service.

#### Regulation .15 Secondary Employment.

*COMAR 17.04.03.15*

A. An individual may be employed in two separate capacities in State government only with the agreement, before the second employment begins, of the appointing authorities of the units that will employ the individual.

B. For purposes of this regulation, employment with an agency of the State includes employment in any personnel system in any branch of government in any capacity and for any numbers of hours worked. Elected officials, constitutional officers, and officials appointed by the Governor are not subject to this regulation.

#### Regulation .16 Medical Examination and Employee Medical Evaluation.

*COMAR 17.04.03.16*

A. The Secretary shall designate a State Medical Director who shall exercise all authority vested in the Secretary with respect to medical examinations and investigations relating to employment with the State.

B. The State Medical Director:

  (1) May delegate in part or in whole any of the authority granted by this regulation;

  (2) Shall conduct medical examinations of applicants and current employees as provided in State Personnel and Pensions Article, §§2-302(b)(1)(vi) and 2-303, Annotated Code of Maryland;

  (3) Shall conduct any other medical examinations or studies concerning the medical fitness of employees or candidates; and

  (4) May not provide second or third opinions when prohibited by the federal Family and Medical Leave Act (FMLA).

C. The determination of the Medical Director in examinations of applicants conducted under §B(2) of this regulation is final and is not subject to review by the Office of Administrative Hearings.

D. Before an applicant is denied employment, or an employee is involuntarily demoted or separated for medical reasons, an appointing authority shall prepare an appropriate task analysis sheet and request that an examining physician complete and return it. Before an applicant is denied employment or an employee separated for medical reasons, the appointing authority shall document in writing:

  (1) That, under relevant provisions of federal and State law and regulations, reasonable accommodations for the employee's or applicant's disabling condition were considered;

  (2) The specific accommodations that were considered, offered, or rejected; and

  (3) The reasons that the accommodations were rejected.

E. If an employee is approved for disability retirement by the State Retirement Agency, unless the employee resigns or is removed earlier, the employee shall be considered resigned from State service as of the 120th day after the approval.

#### Regulation .17 Probation.

*COMAR 17.04.03.17*

A. Individuals subject to probation are specified in State Personnel and Pensions Article, §7-401, Annotated Code of Maryland.

B. Individuals Not Subject to Probation.

  (1) An employee who is reinstated within 1 year after separation to a classification in which the employee previously completed a probationary period does not serve a probationary period. If the employee did not complete probation before separation, the employee shall serve a new probationary period.

  (2) A contractual employee who transfers to a budgeted position in accordance with State Personnel and Pensions Article, Title 13, Subtitle 3, Annotated Code of Maryland, does not serve a probationary period upon transfer.

  (3) A temporary employee does not serve a probationary period.

C. Length of Probation. The length of a probationary period is specified in State Personnel and Pensions Article, §7-402, Annotated Code of Maryland.

D. Extension of Probation. An appointing authority may extend the period of probation for the length of time and for the reasons specified in State Personnel and Pensions Article, §7-403, Annotated Code of Maryland.

E. Requirements for Supervisors. Each appointing authority shall require the immediate supervisor of each probationary employee to:

  (1) Provide an orientation to familiarize each probationary employee with the operations, practices, and procedures of the unit;

  (2) Review with each probationary employee the most current written position description and have the employee certify receipt of a copy;

  (3) Confer with the employee about the employee's performance as required by State Personnel and Pensions Article, §7-404, Annotated Code of Maryland; and

  (4) Maintain accurate records and documentation of the above actions.

F. Discipline of Probationary Employees.

  (1) Initial appointment.

    (a) Following initial appointment to the State Personnel Management System, the provisions of §F(1)(b)—(f) of this regulation apply.

    (b) The provisions of this regulation apply to probationary employees in the skilled and professional services pursuant to State Personnel and Pensions Article, §§7-401 and 7-402, Annotated Code of Maryland.

    (c) The provisions of State Personnel and Pensions Article, §11-106, Annotated Code of Maryland, control the discipline of a probationary employee for misconduct.

    (d) The appointing authority may discipline an employee on probation in accordance with State Personnel and Pensions Article, §§11-106, 11-109, 11-111, 11-303, and 11-306, Annotated Code of Maryland, as applicable.

    (e) An appointing authority who terminates an employee under this subsection shall do so in accordance with State Personnel and Pensions Article, §11-303, Annotated Code of Maryland. The appointing authority's notice to the employee shall be in writing with a copy to the Secretary. The appointing authority shall provide notice at least 10 days before the effective date of the termination. The notice shall state the reasons for the termination, the effective date, and the appropriate appeal route. If the termination is for a reason specified in State Personnel and Pensions Article, §11-105, Annotated Code of Maryland, the appointing authority may disregard the requirement for 10 days notice and immediately submit a written termination notice to the Secretary.

    (f) The disciplinary appeal procedures for an employee on probation in the skilled and professional services under this subsection are provided in State Personnel and Pensions Article, §11-109(b), Annotated Code of Maryland.

  (2) Competitive Promotion and Reinstatement.

    (a) Following competitive promotion and reinstatement, the provisions of §F(2)(b)—(f) of this regulation apply.

    (b) The provisions of this subsection apply to employees in the skilled or professional service but not to employees in the management service or to special appointees.

    (c) If, in the appointing authority's judgment, a probationary employee subject to this subsection is unable or unwilling to satisfactorily perform the duties and responsibilities of the position, the appointing authority shall follow the requirements specified in State Personnel and Pensions Article, §11-304, Annotated Code of Maryland.

    (d) This regulation does not preclude an appointing authority from imposing disciplinary action upon an employee on probation under this subsection in accordance with the provisions of State Personnel and Pensions Article, Title 11, Annotated Code of Maryland, and these regulations.

    (e) The appointing authority who wishes to terminate an employee on probation under this subsection shall notify the employee in writing at least 10 calendar days before the effective date of the termination, and shall assure that the 10-day period is included within the probationary period. The notice shall state the reasons for the termination, the effective date of the adverse action, and the appropriate appeal route. A copy of the termination form shall be sent to the Secretary.

    (f) The disciplinary appeal procedures for employees on probation under this subsection are specified in State Personnel and Pensions Article, §11-109, Annotated Code of Maryland.

#### Regulation .18 Demotion.

*COMAR 17.04.03.18*

A. Types. A demotion may be made:

  (1) Voluntarily;

  (2) As a form of discipline; or

  (3) Pursuant to State Personnel and Pensions Article, §11-304, Annotated Code of Maryland.

B. Appeals. An employee may appeal a demotion pursuant to State Personnel and Pensions Article, §11-109, 11-303, or 11-304, Annotated Code of Maryland.

#### Regulation .19 Reassignment.

*COMAR 17.04.03.19*

A. The appointing authority may reassign a qualified employee from a position to another position of equal grade and service under the provisions in State Personnel and Pensions Article, §7-602, Annotated Code of Maryland.

B. An involuntary reassignment that may necessitate a change of residence for more than 6 months may be made only upon the review and approval of the head of the principal unit. This is not applicable to classifications or positions requiring Statewide availability as a condition of employment.

#### Regulation .20 Transfer.

*COMAR 17.04.03.20*

A. The transfer of an employee in the skilled or professional service from one principal unit to another principal unit may be made only as follows:

  (1) An employee may apply for transfer to a vacant position of the same classification or another classification of the same grade for which the employee meets the minimum qualifications; or

  (2) An employee shall be considered among the eligible applicants for the vacancy if the employee complies with the provisions of §A(1) of this regulation, or when the employee qualifies as part of an approved Career Reinvestment Program as defined in COMAR 17.04.01.

B. An employee in the management and executive services and a special appointee may apply for transfer to other positions of the same grade in those service categories only.

#### Regulation .21 Performance Planning, Evaluation, and Development.

*COMAR 17.04.03.21*

The Secretary shall issue policies and guidelines in the area of performance planning, evaluation, and development consistent with the provisions of State Personnel and Pensions Article, Title 7, Subtitle 4, Annotated Code of Maryland.