TITLE 90

MARIANAS VISITORS AUTHORITY

 

Chapter 90-10            Commonwealth Film, Video and Media Office

Chapter 90-20            Procurement Rules and Regulations

Chapter 90-30            Vendor Site Regulations

Chapter 90-40            Marianas Visitors Authority Personnel Regulations

 

CHAPTER 90-10        

COMMONWEALTH FILM, VIDEO AND MEDIA OFFICE

 

Chapter Authority: 4 CMC §§ 2151-2156.

 

Chapter History:

 

Commission Comment: PL 11-15 (effective June 17, 1998), the “Marianas Visitors Authority Act of 1998,” codified as amended at 4 CMC §§ 2101-2145, created the Marianas Visitors Authority (MVA) as the successor to the Marianas Visitors Bureau. The Marianas Visitors Bureau had existed in accordance with title 4, div. 2, ch. 1 of the Commonwealth Code since February 11, 1976. PL 11-15 § 23 repealed title 4, div. 2, ch. 1 and enacted new statutory provisions creating the Marianas Visitors Authority and charging MVA with promoting tourism in the Commonwealth. See 4 CMC §§ 2102 and 2103; see also the commission comment to 4 CMC § 2101.

 

PL 11-15 § 22 also vacated Executive Order 94-3 § 302(b). Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. Executive Order 94-3 § 302(b) allocated the Marianas Visitors Bureau to the Department of Commerce for purposes of administration and made changes to the structure of the Bureau’s Board of Directors. The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 11-15 §§ 17-21, 4 CMC §§ 2141-2145, provide for the transition of property, personnel and authority from the Marianas Visitors Bureau to the MVA. PL 11-15 § 15, 4 CMC § 2128, authorizes MVA to adopt rules and regulations necessary to implement the provisions of the act.

 

PL 13-29 (effective Nov. 14, 2002), codified at 4 CMC §§ 2151-2156, establishes a Commonwealth Film, Video and Media Office within the Marianas Visitors Authority. The office is charged with encouraging the film and media industries in the Commonwealth and issuing permits for all film, video and media-related projects. 4 CMC § 2151. 4 CMC § 2155 authorizes MVA to issue regulations to carry out the provisions of the act.

 

PL 17-54 (Sept. 26, 2011) changed the composition of the Marianas Visitors Authority’s board of directors.

 

[Reserved for future regulations of the Commonwealth Film, Video and Media Office.]

 


CHAPTER 90-20        

PROCUREMENT RULES AND REGULATIONS

 


Part 001          General Provisions

§ 90-20-001     Authority

§ 90-20-005     Purposes

§ 90-20-010     Requirement of Good Faith

§ 90-20-015     Application of Regulations

§ 90-20-020     Severability

§ 90-20-025     Validity of Contract

§ 90-20-030     Remedy Against Employee

§ 90-20-035     Definitions

§ 90-20-040     Public Access to Procurement Information

 

Part 100          Procurement Organization

§ 90-20-101     Managing Director

§ 90-20-105     Duties of the Contracting Officer

§ 90-20-110     Contract Oversight

§ 90-20-115     Acceptance of Gratuities

§ 90-20-120     Right to Audit

 

Part 200          Source Selection and Contract Formation

§ 90-20-201     Methods of Source Selection

§ 90-20-205     Competitive Sealed Bidding; Invitation for Bid

§ 90-20-210     Small Purchases

§ 90-20-215     Sole Source Procurement

§ 90-20-220     Emergency Procurement

§ 90-20-225     Competitive Sealed Proposals; Request for Proposals

§ 90-20-230     Competitive Selection Procedures for Professional, Advisory, or Technical Services

§ 90-20-235     Selection Procedures for Marketing Proposals

 

Part 300          Cancellation of Invitation for Bids or Requests for Proposals

§ 90-20-301     Cancellation

 

Part 400          Qualification and Duties

§ 90-20-401     Responsibility of Bidders and Offerors

§ 90-20-405     Pre-qualification of Contractors

 

Part 500          Types of Contracts

§ 90-20-501     Types of Contracts

 

Part 600          Inspection and Audit

§ 90-20-601     Right to Inspect Place of Business

§ 90-20-605     Right to Audit Records

§ 90-20-610     Split Contract

 

Part 700          Reports and Records

§ 90-20-701     Retention of Procurement Records

 

Part 800          Procurement of Construction Services

§ 90-20-801     Construction Procurement

 

Part 900          Protests and Disputes

§ 90-20-901     Protests to the Managing Director

§ 90-20-905     Appeals of Managing Director’s Decision to the Board

§ 90-20-910     Remedies

§ 90-20-915     Effective Date

§ 90-20-920     Disputes

 

Part 1000        Ethics in Contracting

§ 90-20-1001   Definition of Terms

§ 90-20-1005   Policy

§ 90-20-1010   General Standards

§ 90-20-1015   No Financial Interests

§ 90-20-1020   Gratuities and Kickbacks

§ 90-20-1025   Prohibition Against Contingent Fees

§ 90-20-1030   Contract Clauses

§ 90-20-1035   Restrictions on Employment of Present and Former Board Members or Employees

§ 90-20-1040   Use of Confidential Information

§ 90-20-1045   Collusion by Bidders

§ 90-20-1050   Authority to Debar or Suspend

§ 90-20-1055   Civil and Administrative Remedies


 

Chapter Authority: 4 CMC § 2106 (repealed by PL 11-15); 4 CMC § 2128.

 

Chapter History: Amdts Adopted 38 Com. Reg. 39038 (Dec. 28, 2016); Amdts Proposed 38 Com. Reg. 38598 (Sept. 28, 2016); Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: PL 11-15 (effective June 17, 1998), the “Marianas Visitors Authority Act of 1998,” codified as amended at 4 CMC §§ 2101-2145, created the Marianas Visitors Authority (MVA) as the successor to the Marianas Visitors Bureau. The Marianas Visitors Bureau had existed in accordance with title 4, div. 2, ch. 1 of the Commonwealth Code since February 11, 1976. PL 11-15 § 23 repealed title 4, div. 2, ch. 1 and enacted new statutory provisions creating the Marianas Visitors Authority and charging MVA with promoting tourism in the Commonwealth. See 4 CMC §§ 2102 and 2103; see also the commission comment to 4 CMC § 2101.

 

PL 11-15 § 22 also vacated Executive Order 94-3 § 302(b). Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. Executive Order 94-3 § 302(b) allocated the Marianas Visitors Bureau to the Department of Commerce for purposes of administration and made changes to the structure of the Bureau’s Board of Directors. The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 11-15 §§ 17-21, 4 CMC §§ 2141-2145, provide for the transition of property, personnel and authority from the Marianas Visitors Bureau to the MVA.

 

PL 11-15 § 15, 4 CMC § 2128, authorizes MVA to adopt rules and regulations necessary to implement the provisions of the act. 4 CMC § 2124(d) specifically authorizes MVA to adopt its own procurement and supply regulations consistent with those of the CNMI government.

 

PL 17-54 (Sept. 26, 2011) changed the composition of the Marianas Visitors Authority’s board of directors.

 

The Marianas Visitors Bureau promulgated the Procurement Rules and Regulations codified in this chapter pursuant to the authority of former 4 CMC § 2106.

 

Part 001 -       General Provisions

 

§ 90-20-001     Authority

 

The regulations in this chapter are promulgated under the authority of 4 CMC § 2106(q) for the use of the Marianas Visitors Bureau.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-005     Purposes

 

The underlying purposes and policies of the regulations in this chapter are:

 

(a)        To provide a procedure to obtain supplies and services for the Bureau;

 

(b)        To provide for increased public confidence in the procedures followed in the Bureau’s procurement;

 

(c)        To insure the fair and equitable treatment of all persons who deal with the procurement system of the Bureau;

 

(d)       To provide increased economy in the Bureau’s procurement activities and to maximize to the fullest extent practicable to the purchasing value of Bureau funds;

 

(e)        To foster effective broad-based competition within the free enterprise system; and

 

(f)        To provide safeguards for the maintenance of a procurement system of quality and integrity.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-010     Requirement of Good Faith

 

The regulations in this chapter require all parties involved in the negotiation, bidding, performance or administration of Bureau contracts to act in good faith.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-015     Application of Regulations

 

(a)        The regulations in this chapter apply to every expenditure of Bureau funds. These regulations do not apply to contracts between the Bureau and the government or its political subdivisions or other governments. Nothing in these regulations shall be construed to prevent the Bureau from complying with the terms and conditions of any grant, cooperative agreement or memorandum of understanding.

 

(b)        These regulations do not apply to employment contracts.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-020     Severability

 

If any provision of the regulations in this chapter or any application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of these regulations, which can be given effect without the invalid provision or application, and to this end, the provision of these regulations are declared to be severable.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

§ 90-20-025     Validity of Contract

 

No Bureau contract covered by the regulations in this chapter shall be valid unless it complies with these regulations.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-030     Remedy Against Employee

 

Any procurement action of an employee of the Bureau in violation of this chapter is an action outside the scope of his or her employment. The Bureau will seek to have any liability asserted against it by a contractor which directly results from these improper acts to be determined judicially to be the individual liability of the employee who committed the wrongful act.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-035     Definitions

 

As used in this chapter unless the context otherwise requires, the following meanings apply:

 

(a)        “Appeal committee” means the special committee of the Board authorized to hear appeals.

 

(b)        “Attorney” means the legal counsel of the Bureau.

 

(c)        “Bureau” means the Marianas Visitors Bureau.

 

(d)       “Board” means the Board of Directors of the Bureau.

 

(e)        “Construction” means the process of building, altering, repairing, improving or demolishing of a public structure or building or public improvements commonly known as “capital improvements.” It does not include the routine maintenance of existing structures, buildings, or public real property.

 

(f)        “Contract” means all types of agreements, regardless of what they may be called for the procurement of supplies, services or construction.

 

(g)        “Contracting officer” means the Managing Director, or any other individual authorized by the Board to execute contracts.

 

(h)        “Cost-reimbursement contract” means a contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with the contract terms and the regulations in this chapter, and a fee, if any.

 

(i)         “Dispute” means a disagreement concerning the legal fights and obligations of contracting parties, which, if not settled by mutual agreement, must be referred to a neutral third party for resolution.

 

(j)         “Employee” means an individual receiving a full time salary from the Bureau. Consultants, independent contractors and part-time workers shall not be considered employees.

 

(k)        “Managing Director” means the Managing Director of the Bureau or his designee.

 

(l)         “Goods” means all property, including but not limited to equipment, materials, supplies, and other tangible personal property of any kind or nature.

 

(m)       “Government” means the Commonwealth of the Northern Mariana Islands government which includes the executive, legislative, and judicial branches.

 

(n)        “Invitation for bids” means a solicitation by the Bureau to the public to make an offer to enter into a contract in which the contract will be awarded to the lowest responsive bid by a responsible bidder.

 

(o)        “Person” means an individual, sole proprietorship, partnership, joint venture, corporation, other unincorporated association, or a private legal entity.

 

(p)        “Procurement” means buying, purchasing, renting, leasing or acquiring construction, goods, or services. It also includes all functions that pertain to the obtaining of construction, goods, or services including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.

 

(q)        “Purchase description” means the words used in a solicitation to describe the goods, services, or construction to be purchased and includes specifications attached to, or made part of, the solicitation.

 

(r)        “Request for proposal” means a solicitation by the Bureau to the public to make a proposal to enter into a contract.

 

(s)        “Responsible” in reference to a bidder, means a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.

 

(t)        “Responsive” in reference to a bidder, means a person who has submitted a bid which conforms in all material respects to the invitation for bids.

 

(u)        “Service” means the furnishing of time, labor or effort by a person, other than an employee, and not involving the delivery of a specific end product other than reports, plans and incidental documents. It does not include professional, advisory, or technical services.

 

Modified, 1 CMC § 3806(d), (f), (g).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: In the opening paragraph, the Commission changed “meaning” to “meanings,” and in subsection (e), the Commission changed “at” to “as” to correct manifest errors. The Commission inserted commas after the words “association” in subsection (o), “goods” in subsection (p), and “services” in subsection (q) pursuant to 1 CMC § 3806(g).

 

With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-040     Public Access to Procurement Information

 

Procurement information shall be a matter of public record and shall be available for public inspection. Procurement information may be kept confidential when necessary to insure proper bidding procedures. This decision shall be made only by the Managing Director.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Part 100 -       Procurement Organization

 

§ 90-20-101     Managing Director

 

The Managing Director shall enforce the regulations in this chapter.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

§ 90-20-105     Duties of the Contracting Officer

 

The duties and responsibilities of the contracting officer include, but are not limited to, the following:

 

(a)        Oversee that the regulations in this chapter are observed in all Bureau procurement;

 

(b)        Conduct bidding, procurement, negotiation or administration of Bureau contracts;

 

(c)        Provide advanced planning for the centralized purchase of Bureau supplies;

 

(d)       Exercise general supervision and control over all inventories of supplies belonging to the Bureau;

 

(e)        Establish and maintain programs for the inspection, testing and acceptance of supplies; and

 

(f)        Receive protests from aggrieved parties in connection with the solicitation or award of a contract and to decide the merits of the protest.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-110     Contract Oversight

 

(a)        The contracting officer shall review all contracts for construction, the procurement of goods, leases, the sale of goods and for services by an independent contractor to insure compliance with the regulations in this chapter, that the contract is for a Bureau purpose, and does not constitute a waste or abuse of Bureau funds.

 

(b)        The attorney shall certify the form and legality of every applicable contract.

 

(c)        Upon approval as to form and legal sufficiency by the attorney, the contracting officer shall execute the contract.

 

(d)       It is the responsibility of the contracting officer to ensure that the contractor does not sign the contract or incur any expenses under it until all necessary signatures have been obtained. The supervision and inspection of a project is the primary responsibility of the contracting officer.

 

(e)        No contract is effective against the Bureau until all of the officials whose signatures are required on the contract form have signed the contract.

 

(f)        Nothing in this chapter shall be construed to limit or prevent the Bureau’s duty and power to enter into agreements with the government, its departments and agencies for the rendering and purchase of services.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-115     Acceptance of Gratuities

 

The members of the Board or employees of the Bureau cannot accept from any person any gift of value given to them with the intent to influence their business judgment.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-120     Right to Audit

 

A contract shall contain a right to audit records clause.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Part 200 -       Source Selection and Contract Formation

 

§ 90-20-201     Methods of Source Selection

 

All Bureau contracts shall be awarded by competitive sealed bidding, except as provided in:

 

(a)        § 90-20-210 (Small Purchases);

 

(b)        § 90-20-215 (Sole Source Procurement);

 

(c)        § 90-20-220 (Emergency Procurement);

 

(d)       § 90-20-225 (Competitive Sealed Proposals);

 

(e)        § 90-20-230 (Professional, Advisory, or Technical Services); and

 

(f)        § 90-20-235 (Marketing Proposals).

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-205     Competitive Sealed Bidding; Invitation for Bid

 

(a)        The purchase of all supplies and materials and all construction works when the expenditure exceeds $25,000 shall be by contract let to the lowest responsible bidder.

 

(b)        Invitation for Bids. An invitation for bids shall be issued and shall include at the minimum:

(1)        An invitation for bids number;

(2)        Date of issuance;

(3)        Name, address, and location of issuing office;

(4)        Specific location where bids must be submitted;

(5)        Date, hour, and place of bid opening;

(6)        A purchase description in sufficient detail to permit full and open competition and allow bidders to respond properly.

(7)        Quantity to be furnished;

(8)        Time, place, and method of delivery or performance requirements;

(9)        Essential contractual terms and conditions; and

(10)      Any bonding requirements.

 

(c)        Public Notice. Adequate public notice of the invitation for bids shall be given a reasonable time prior to the date set forth for the opening of bids. Publication of notice in a newspaper of general circulation in the Commonwealth once in each week over a period of thirty calendar days shall be deemed to be adequate notice. For those islands within the Commonwealth where there are no newspapers of general circulation, the posting of invitations to bid and requests for proposals in public places designated by the contracting officer shall be deemed adequate notice. A bidding time of at least thirty calendar days shall be provided, unless the contracting officer determines a shorter period is reasonable and necessary.

 

(d)       Bid Receipt. All bids shall be submitted to the main office of the Bureau at the Saipan International Airport. Bids shall be received prior to the time set for opening and shall be maintained sealed in a locked receptacle at the office. Bids submitted from vendors outside the Commonwealth must be postmarked by the date set in the invitation for bids and must be received within seven working days of that date. Bidders outside the Commonwealth must notify the contracting officer in writing of their intent to bid in order to receive this additional seven days for receipt of the actual documents. This notice of intent to bid may be made by any mode of written communication including telex, facsimile or other electronic transmission.

 

(e)        Bid Opening. The bid opening shall be conducted by the contracting officer at the main office of the Bureau at the Saipan International Airport. Bids shall be opened publicly at the time and place designated in the invitation for bids. The amount of each bid; together with the name of each bidder, shall be recorded; the record and each bid shall be open to public inspection. The contracting officer shall prepare a written summary of the bid opening.

 

(f)        Bid Acceptance and Bid Evaluation. Bids shall be unconditionally accepted without alteration or correction, except as authorized in the regulations in this chapter. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria as is necessary to reasonably permit a determination as to the acceptability of the bid for the particular purpose intended.

 

(g)        Bid Rejection. A bid may be rejected for any of the following reasons:

(1)        Failure to conform to essential requirements of the invitation for bids, such as specifications or time of delivery;

(2)        Imposition of conditions or restrictions in the bid which modify requirements of the invitation or limit the bidder’s liability to the Bureau;

(3)        Unreasonableness as to price; or

(4)        A bid from a non-responsible bidder.

 

(h)        Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous bids, before or after award, or cancellation of awards or contracts based on bid mistakes must be approved by the contracting officer in writing. After the bid opening, no changes in bid price or other provisions of bids prejudicial to the interest of the Bureau or fair competition shall be allowed. Whenever a bid mistake is suspected, the Bureau shall request confirmation of the bid prior to award. In such an instance, if the bidder alleges an error, the Bureau shall only permit correction of the bid or withdrawal of the bid in accordance with subsections (h)(1) or (h)(2) or* this section.

(1)        Correction of Bids. Correction of bids shall only be permitted when:

(i)         An obvious clerical mistake is clearly evident from examining the bid document. Examples of such mistakes are errors on addition or the obvious misplacement of a decimal point; or

(ii)        The otherwise low bidder alleges a mistake and the intended bid is evident from the bid document or is otherwise supported by clear and convincing evidence as to the bid intended and the corrected bid remains the low bid. A low bidder may not be permitted to correct a bid mistake resulting from an error in judgment.

(2)        Withdrawal of Bids. Withdrawal of a bid shall only be permitted where the otherwise low bidder alleges a mistake and there is clear and convincing evidence as to the existence of a mistake.

(3)        Cancellation of Awards. Cancellation of awards or contracts shall only be permitted when:

(i)         Evidence as to the existence of the mistake is not discovered until after the award;

(ii)        There exists no clear and convincing evidence to support the bid intended; and

(iii)       Performance of the contract at the award price would be unconscionable.

 

*So in original; probably should be “of.”

 

(i)         Award.

(1)        The contract must be awarded with reasonable promptness by written notice to the lowest responsive bid by a responsible bidder whose bid fully meets the requirements of the invitation for bids and the regulations in this chapter. Unsuccessful bidders shall also be promptly notified.

(2)        Notice of an award shall only be made by the presentation of a contract with all of the required signatures to the bidder. No other notice of an award shall be made. No acceptance of an offer shall occur nor shall any contract be formed until a Bureau contract is written and has been approved by the officials required by law and regulation. Bureau contracts shall contain a clause which states that the signature of the private contractor shall be the last in time to be affixed to a contract and that no contract can be formed prior to the approval of all required Bureau officials.

 

(j)         Re-advertise. The Board may reject any and all bids and re-advertise at its discretion. If, after rejecting bids for materials and supplies, the Board determines that, in its opinion, the materials supplies may be purchased at a lower price in the open market, the Board may authorize such purchases without further observance of the provisions requiring contracts, bids or notices.

 

Modified, 1 CMC § 3806(c), (d), (e), (f).

 

History: Amdts Adopted 38 Com. Reg. 39038 (Dec. 28, 2016); Amdts Proposed 38 Com. Reg. 38598 (Sept. 28, 2016); Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter. The Commission inserted commas after the words “address” in subsection (b)(3), “hour” in subsection (b)(5), and “place” in subsection (b)(8) pursuant to 1 CMC § 3806(g).

 

§ 90-20-210     Small Purchases

 

(a)        Any procurement not exceeding $25,000 may be made in accordance with this section. Procurement requirements shall not be artificially divided as to constitute a small purchase.

 

(b)        Small Purchases of $5,000 or Less.

(1)        The Chair of the MVA Board delegates the expenditure authority for purchases of $5,000 or less to the Managing Director.

(2)        The Managing Director may make small purchases of $5,000 or less by any commercially reasonable method and shall exercise best efforts to ensure responsible expenditure of MVA funds. Purchase orders may be used for such transactions. Procurement requirements shall not be artificially divided so as to constitute a small purchase of $5,000 or less.

(3)        The Managing Director shall maintain a small purchase log. For each small purchase, the log shall contain:

(i)         The date of the purchase;

(ii)        The name of the vendor;

(iii)       The goods or services purchased; and

(iv)       The purpose of the purchase.

(4)        The Managing Director shall provide the small purchase log to any board member upon request.

 

(c)        Small Purchases between $5,000.01 and $25,000.

(1)        The Chair of the MVA Board is the expenditure authority for small purchases between $5,000.01 and $25,000.

(2)        Insofar as it is practical for small purchases of goods or services between $5,000.01 and $25,000, no less than three businesses shall be solicited to submit written, electronic, or oral quotations that are recorded and placed in the procurement file. If fewer than three businesses submit quotations, the Managing Director shall certify, in writing, that there are fewer than three vendors available. Award shall be made to the business offering the lowest acceptable quotation.

(3)        The names of the businesses solicited to submit quotations, the names of the businesses submitting quotations, and the date and amount of each quotation shall be recorded and maintained as a public record.

(4)        Purchase orders may be used for procurement under this section.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 39038 (Dec. 28, 2016); Amdts Proposed 38 Com. Reg. 38598 (Sept. 28, 2016); Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

§ 90-20-215     Sole Source Procurement

 

(a)        A contract may be awarded for a supply, service, or construction item without competition when the contracting officer determines in writing that there is only one source for the required supply, service, or construction item.

 

(b)        A contract may be awarded when the supplies or services to be rendered are unique and the Managing Director determines it is in the best interest of the Bureau to procure the supplies or services without competitive bidding. A written justification for the sole source procurement shall be prepared by the contracting officer and the written determination shall state the unique capabilities required and why they should be procured without competition bidding.

 

(c)        The Board shall approve all sole source procurement.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter. The Commission inserted a comma after the word “service” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 90-20-220     Emergency Procurement

 

In case of any major public calamity, or whenever it is in the interest of tourist safety, or necessary to keep the designated tourist sites operable by the Bureau, the Managing Director may determine that the public interest and necessity demand the immediate expenditure of funds to keep the Northern Marianas open to tourists or in a safe condition, and thereupon authorize the expenditure of such sums as may be needed without the observation of the provision requiting contracts, bids or notices. The Board may issue continuing authorizations for the expenditure of funds described in this section, placing therein the conditions which will give rise to such special expenditures.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-225     Competitive Sealed Proposals; Request for Proposals

 

(a)        Conditions for Use. When the contracting officer determines in writing that the use of a competitive sealed bidding is either not practical or not advantageous to the Bureau, a contract may be entered by competitive sealed proposals.

 

(b)        Requests for Proposals. Proposals shall be solicited though a request for proposals.

 

(c)        Public Notice. Adequate public notice of the request for proposals shall be given in the same manner as provided for in competitive sealed bids.

 

(d)       Receipt of Proposals. Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. A register of proposals shall be prepared and opened for public inspection after contract award.

 

(e)        Evaluation Factors. The request for proposals shall state the relative importance of price and other evaluation factors.

 

(f)        Discussion with Responsible Offerors and Revisions to Proposals. As provided in the request for proposals, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification and to insure* full understanding of, and responsiveness to, solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals and such revisions may be permitted after submission and prior to award for the purpose of obtaining the best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.

 

(g)        Award. Award shall be made to the responsible offeror whose proposal is determined in writing to be most advantageous to the Bureau taking into consideration price and the evaluation factors set forth in the request for proposals. The contract file shall contain the basis on which the award is made.

 

* So in original.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-230     Competitive Selection Procedures for Professional, Advisory, or Technical Services

 

(a)        Procurement Method. The services of accountants, physicians, or lawyers shall be procured as provided in this section except when authorized as a small purchase, emergency procurement, expedited procurement, or sole-source procurement.

 

(b)        Policy. It is the policy to publicly announce all requirements for professional services and negotiate contracts on the basis of demonstrated competence and qualifications at a fair and reasonable price. The Managing Director shall maintain files of current statements of qualifications of professional advisory, and technical firms. Persons engaged in providing professional advisory or technical services may submit statements of qualifications and expressions of interest providing such types of services. Persons may amend these statements at any time by filing a new statement.

 

(c)        Public Announcement and Form of Request for Proposals. Adequate notice of the need for such services shall be given by the contracting officer through a request for proposals. The request for proposals shall describe the services required, list the type of information and date required of each offeror and state the relative importance of particular qualifications.

 

(d)       Discussions. The contracting officer may conduct discussions with any offeror who has submitted a proposal to determine such offerors qualification for further consideration. Discussions shall not disclose any information derived from proposals submitted by other offerors.

 

(e)        Award. Award shall be made to the offeror determined in writing by the contracting officer to be the best qualified based on the evaluation factors set forth in the request for proposals, and negotiation of compensation determined to be fair and reasonable. If compensation cannot be agreed upon with the best qualified offeror then negotiations will be formally terminated with the selection offeror. If proposals were submitted by one or more other offerors determined to be qualified, negotiations may be conducted with such other offeror or offerors, in the order of the respective qualification ranking, and the contract may be awarded to the offeror then ranked as best qualified if the amount of compensation is determined to be fair and reasonable.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: In subsection (e), the Commission changed “a” after “ranked” to “as” to correct a manifest error.

 

§ 90-20-235     Selection Procedures for Marketing Proposals

 

(a)        Proposal for Joint Participation. Any proposal made to the Bureau to promote an activity to foster tourism in the CNMI that seeks joint participation with the Bureau may be accepted by the Managing Director if it is in the best interests of the Bureau to participate in the activity.

 

(b)        Sanction by A & P Committee. Any participation by the Bureau in a joint marketing activity entered into by the Managing Director shall require the approval of the Advertising and Promotions Committee.

 

(c)        Advertising Proposals. Any proposal made to MVB by advertising agencies or publishers of tourist industry pamphlets, magazines, or newspapers shall be evaluated and selected by the Managing Director.

 

(d)       Report to A & P Committee. Any advertising to foster tourism in the CNMI shall be reported to the Advertising and Promotions Committee.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

Part 300 -       Cancellation of Invitation for Bids or Requests for Proposals

 

§ 90-20-301     Cancellation

 

(a)        An invitation for bids or request for proposals may be cancelled, and any and all bids or proposals may be rejected, when such action is determined by the contracting officer including, but not limited to, the following:

(1)        Inadequate or ambiguous specifications contained in the solicitation;

(2)        Specifications which have been revised;

(3)        Goods or services being procured which are no longer required;

(4)        Inadequate consideration given to all factors of costs to the Bureau in the solicitation;

(5)        Bids or proposals received indicate that the needs of the Bureau can be satisfied by a less expensive good or service.

(6)        All offers with acceptable bids or proposals received are at unreasonable prices;

(7)        Bids were collusive;

(8)        Non-responsive bids or proposals were submitted; or

(9)        Cancellation is determined to be in the best interest of the Bureau.

 

(b)        The contracting officer shall have the right to cancel an award without liability to the bidder or offeror, except the return of any deposit, guarantee or other security, at any time before a contract had been fully executed by all parties.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b).

 

Part 400 -       Qualification and Duties

 

§ 90-20-401     Responsibility of Bidders and Offerors

 

(a)(1)   Awards shall be made to responsible contractors. To be determined responsible, a prospective contractor must:

(i)         Have adequate financial resources to perform the contract, or the ability to obtain them;

(ii)        Be able to comply with the required delivery or performance schedule;

(iii)       Have a satisfactory performance record;

(iv)       Have a satisfactory record of integrity and business ethics;

(v)        Have the necessary organization, experience, and skills, for* the ability to obtain them, required to perform successfully the contract;

(vi)       Have the necessary production, construction and technical equipment facilities, or the ability to obtain them;

(vii)      Have an office in the island where the construction work is to be performed; and

(viii)     Be otherwise qualified and eligible to receive an award under applicable laws and rules.

(2)        The above factors are not to be deemed exclusive.

 

(b)        Obtaining Information. Prior to award, the Bureau shall obtain information from the bidder or offeror necessary to make a determination of responsibility using the factors in subsection (a) above. The unreasonable failure of the bidder or offeror promptly to supply information in connection with an inquiry with respect to responsibility may be grounds for determination of non-responsibility with respect to that bidder or offeror.

 

(c)        Right of Non-disclosure. Information furnished by a bidder or offeror pursuant to subsection (b) may not be disclosed outside of the office of the Bureau without prior consent by the bidder or offeror.

 

(d)       Non-responsibility Determination. When a bid or proposal on which a contract award would otherwise be made is rejected because the prospective contractor is found to be non-responsible, a written determination shall be signed by the contracting officer stating the basis for the determination and this shall be placed in the contract file.

 

(e)        Preference for MVB Members. Whenever possible, preference in awarding contracts shall be to a member of MVB as long as the member complies with the criteria of this subsection and it is determined that such award is in the best interest of MVB.

 

* So in original.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: The original paragraphs of subsection (a) were not designated. The Commission designated subsections (a)(1) and (a)(2). The Commission corrected the spelling of “offerors” in the section title pursuant to 1 CMC § 3806(g). The Commission inserted a comma after the word “experience” in subsection (a)(1)(v) pursuant to 1 CMC § 3806(g).

 

With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-405     Pre-qualification of Contractors

 

Prospective suppliers of goods or services maybe pre-qualified for particular types of construction, goods and services when determined necessary by the Bureau. Opportunity for qualification before solicitation shall be afforded to all suppliers. Solicitation mailing lists of potential contractors shall include, but shall not be limited to, pre-qualified suppliers. In no event will bidders be allowed to qualify after the bid opening.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

Part 500 -       Types of Contracts

 

§ 90-20-501     Types of Contracts

 

(a)        Use of a cost-plus-a-percentage-of-cost and percentage of construction cost methods of contracting are prohibited.

 

(b)        Bureau contracts shall utilize a firm fixed price unless use of a cost-reimbursement contract is justified under subsection (c).

 

(c)        A cost-reimbursement contract may be used when the contracting officer determines in writing which is attached to the contract that:

(1)        Uncertainties in the work to be performed make the cost performance too difficult to estimate with the degree of accuracy required for a firm fixed price contract;

(2)        Use of a firm fixed price contract could seriously affect the contractor’s financial stability or result in payment by the Bureau for contingencies that never occur; or

(3)        Use of a cost-reimbursement contract is likely to be less costly to the Bureau than any other type due to the nature of the work to be performed under the contract.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

Part 600 -       Inspection and Audit

 

§ 90-20-601     Right to Inspect Place of Business

 

The Bureau may, at reasonable times, inspect the place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the Bureau.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-605     Right to Audit Records

 

As required by 1 CMC § 7845, the contractor and subcontractor or grantee and subgrantee at all levels shall provide the Public Auditor of the Commonwealth with access to and the right to examine and copy any records, data or papers relevant to a Bureau contract or grant for a period of three years after the final payment under the contract or grant. All Bureau contracts and awards shall include a clause giving the Public Auditor the right and access to all contract records.

 

Modified, 1 CMC § 3806(e).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-610     Split Contract

 

If the contracting officer, Managing Director, and/or Board determines that a contract has been split into subcontracts for the purpose of avoiding bidding or if a change order or modification is unreasonably being made in a contract to increase the contract price where a contract has been bid and awarded to the lowest responsible and responsive bidder, then they may require the contract or the modification to be competitively bid. An unreasonable modification or change order would be, for example, one which would have been reasonably foreseeable at the time of the formation of the contract.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: The Commission corrected the spelling of “competitively.”

 

Part 700 -       Reports and Records

 

§ 90-20-701     Retention of Procurement Records

 

(a)        All procurement records shall be retained by the Bureau for at least three years after the final payment under a contract or grant.

 

(b)        The Managing Director shall maintain a record listing all contracts made under sole source procurement, emergency procurement, or professional, advisory, or technical services for a minimum of six years. The record shall contain:

(1)        Each contractor’s name;

(2)        The amount and type of each contract; and

(3)        A listing of the supplies, services, or construction procured under each contract.

 

(c)        All procurement records, except those designated herein as not subject to disclosure, shall be available to public inspection.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter. The Commission inserted a comma after the word “services” in subsection (b)(3) pursuant to 1 CMC § 3806(g).

 

Part 800 -       Procurement of Construction Services

 

§ 90-20-801     Construction Procurement

 

(a)        Invitation for Bids.

(1)        Deposit. The contracting officer shall determine the amount of deposit required for potential bidders to obtain the invitation for bids.

(2)        Contents. The invitation for bids shall be prepared in accordance with § 90-20-205(b). In addition, the following items shall be included in the invitation for bids;

(i)         Notice to Bidders. General information regarding project;

(ii)        Instruction to Bidders. Information on the preparation of bids, bid security requirements and forms, and certifications that must be submitted with the bid;

(iii)       General Conditions. Standard contract clauses governing the performance of work;

(iv)       Special Conditions. Special contract clauses depending on the nature and dollar amount of the work to be performed; and

(v)        Technical Specifications. Specifications governing the technical aspects of the work to be performed.

 

(b)        Bid Security.

(1)        Requirement. Bid security shall be required for all competitive sealed bidding construction contracts where the price is estimated by the contracting officer to exceed $25,000.00 or when the contracting officer determines it is in the interest of the Bureau. Bid security shall be on a bid bond, in cash, by certified check, cashier’s check or other form acceptable to the Bureau.

(2)        Amount. Bid security shall be an amount equal to at least ten percent of the amount of the bid or other amount as specified in the invitation for bids.

(3)        Rejection of Bids. Failure to furnish bid security, when required by the invitation, shall result in rejection of the bid as non-responsive.

 

(c)        Contract Performance and Payment Bonds.

When a construction contract is awarded in excess of $25,000.00, the following bonds or security shall be delivered to the Bureau and shall become binding on the parties upon the execution of the contract:

(1)        A performance bond satisfactory to the Bureau, executed by a surety company authorized to do business in the Commonwealth or otherwise secured in a manner satisfactory to the Bureau, in an amount equal to one hundred percent of the price specified in the contract; and

(2)        A payment bond satisfactory to the Bureau, executed by a surety company authorized to do business in the Commonwealth or otherwise secured in a manner satisfactory to the Bureau, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the contract. The bond shall be in an amount equal to one hundred percent of the price specified in the contract.

 

(d)       Suits on Payment Bonds; Right to Institute. Every person who has furnished labor or material to the contractor or its subcontractors for the work provided in the contract, in respect of which a payment bond is furnished under this section, and who has not been paid in full therefore before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by such person or material was furnished or supplied by such person for which such claim is made, shall have the right to sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action for the sum or sums justly due such person; provided, however, that any person having a direct contractual relationship with a subcontractor of the contractor, but not contractual relationship express or implied with the contractor furnishing said payment bond, shall have a right of action upon the payment bond upon giving written notice to the contractor within days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material upon which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be personally served or served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place the contractor maintains an office or conducts its business.

 

(e)        Suits on Payment Bonds; Where and When Brought. Every suit instituted upon a payment bond shall be brought in a court of competent jurisdiction for the Commonwealth, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by the person bringing suit. The obligee named in the bond need not be joined as a party in any such suit.

 

(f)        Fiscal Responsibility. Every contract modification, change order, or contract price adjustment under a construction contract shall be subject to prior approval by the Board; provided, however, that with respect to the validity, as to the contractor, of any executed contract modification, change order or adjustment in contract price which the contractor has reasonably relied upon, it shall be presumed that there has been compliance with the provisions of this subsection.

 

Modified, 1 CMC § 3806(c), (e), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter. The Commission inserted an apostrophe in the phrase “cashier’s check” in subsection (b)(1) pursuant to 1 CMC § 3806(g).

 

Part 900 -       Protests and Disputes

 

§ 90-20-901     Protests to the Managing Director

 

(a)        General

(1)        Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the Managing Director. The protest shall be received by the Managing Director in writing within ten days after such aggrieved person who knows or should have known of the facts giving rise thereto. Managing Director shall consider all protests or objections to the award of a contract, whether submitted before or after award. The written protest shall state fully the factual and legal grounds for the protests;

(2)        Other persons, including bidders, involved in or affected by the protest shall be given notice of the protest and its basis in appropriate cases. These persons shall also be advised that they may submit their views and relevant information to the Managing Director within a specified period of time. Normally, the time specified will be one week;

(3)        The Managing Director shall decide the protest within fifteen calendar days after all interested parties have submitted their views unless he or she certifies that the complexity of the matter requires a longer time, in which event he or she shall specify the appropriate longer time;

(4)        When a protest, before or after award, has been appealed to the appeal committee, as provided in these procedures, and the Managing Director is requested to submit a report, the Managing Director should include with his report a copy of:

(i)         The protest;

(ii)        The bid submitted by the protesting bidder and a copy of the bid of the bidder who is being considered for award, or whose bid is being protested;

(iii)       The solicitation, including the specifications on portions relevant to the protest;

(iv)       The abstract of offers or relevant portions;

(v)        The Managing Director’s signed statement setting forth findings, actions, and recommendations and any additional evidence or information deemed necessary in determining the validity of the protest. The statement shall be fully responsive to the allegation of the protest. If the award was made after receipt of the protest, the Managing Director’s report will include the determination prescribed in subsection (b)(3) below.

(5)        Since timely action on protests is essential, they should be handled on a priority basis. Upon receipt of notice that an appeal from the Managing Director’s decision has been taken to the appeal committee, the Managing Director shall immediately begin compiling the information necessary for a report as provided in subsection (a)(4) above.

 

(b)        Protests Before Award

(1)        When a proper protest against the making of an award is received, the award will be withheld pending disposition of the protest. The bidders whose bids might become eligible for award shall be informed of the protest. In addition, those bidders shall be requested, before expiration of the time for acceptance of their bids, to extend the time for acceptance to avoid the need for re-advertisement. In the event of failure to obtain such extensions of bids, consideration shall be given to proceeding with an award under subsection (b)(2) below.

(2)        When a written protest is received, award shall not be made until the matter is resolved, unless the contracting officer determines that:

(i)         The materials and services to be contracted for are urgently required;

(ii)        Delivery or performance will be unduly delayed by failure to make award promptly; or

(iii)       A prompt award will be advantageous to the Bureau.

(3)        If award is made under subsection (b)(2) above, the contracting officer shall document the file to explain the need for an immediate award. The contracting officer also shall give written notice to the protestor and others concerned of the decision to proceed with the award.

 

(c)        Protests After Award

Although persons involved in or affected by the filing of a protest after award may be limited, in addition to the Managing Director at least the contractor shall be furnished the notice of protest and its basis in accordance with subsection (a)(2) above. When it appears likely that an award may be invalidated and a delay in receiving the supplies or services is not prejudicial to the Bureau’s interest, the contracting officer should consider seeking mutual agreement with the contractor to suspend performance on a no-cost basis.

 

(d)       Computation of Time

(1)        Except as otherwise specified, all “days” referred to in this part are deemed to be working days of the Bureau. The term “file” or “submit” except as otherwise provided refers to the date of transmission.

(2)        In computing any period of time prescribed or allowed by these procedures, the day of the act or event from which the designated period of time begins to run shall be not included.

 

Modified, 1 CMC § 3806(c), (e), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-905     Appeals of Managing Director’s Decision to the Board

 

(a)        Jurisdiction; Exhaustion of Remedies. A written appeal to the appeal committee from a decision by the Managing Director may be taken provided that the party taking the appeal has first submitted a written protest to the Managing Director as provided in § 90-20-901 of this chapter, and the Managing Director has denied the protest or has failed to act on the protest within the time provided for in § 90-20-901(a)(3) above.

 

(b)        Form of Appeal. No particular form of pleading is required for filing an appeal to the appeal committee. The appeal shall, however;

(1)        Include the name and address of the appellant;

(2)        Identify the name and number of the solicitation of contract;

(3)        Contain a concise, logically arranged, and direct statement of the grounds for appeal; and

(4)        Specifically request a ruling by the appeal committee.

 

(c)        Time for Filing Appeal. An appeal from the Managing Director’s decision must be received by the appeal committee not later than ten days after the appellant receives the decision of the Managing Director, or, in the event that the Managing Director has not decided the protest within ten days from the date that he should have decided the protest pursuant to § 90-20-901(a)(3) above. Any appeal received after these time limits shall not be considered by the appeal committee unless good cause is shown or unless the appeal committee determines that the appeal presents issues significant to procurement practices that are not outweighed by the detriment to the Bureau should the appeal be considered.

 

(d)       Notice of Protest, Submission of Managing Director’s Report, and Time for Filing of Comments on Report.

(1)        The appeal committee shall notify the Managing Director in writing within one day of the receipt of an appeal, requesting the Managing Director to give notice of the appeal to the contractor if award has been made or, if no award has been made, to all bidders or proposers who appear to have a substantial and reasonable prospect of receiving an award if the appeal is denied. The Managing Director shall be requested to furnish, in accordance with § 90-20-901(a)(2) of this chapter, copies of the protest and appeal documents to such parties with instructions to communicate further directly with the appeal committee.

(2)        The appeal committee shall request the Managing Director to submit a complete report on the appeal to the appeal committee as expeditiously as possible (generally within 25 working days) in accordance with § 90-20-901(a)(4) of this chapter and to furnish a copy of the report to the appellant and other interested parties as defined in § 90-20-901(a)(2).

(3)        Comments on the Managing Director’s report shall be filed with the appeal committee within ten days after the appeal committee receipt of the report, with a copy of other interested parties. Any rebuttal an appellant or interested party may care to make shall be filed with the appeal committee within five days after receipt of the comments to which rebuttal is directed, with a copy to the appellant, and interested parties, as the case may be.

(4)        The failure of an appellant or any interest party to comply with the time limits stated in this section may result in resolution of the appeal without consideration of the comments untimely filed.

 

(e)        Withholding of Award. When an appeal has been filed before award, the contracting officer will not make an award prior to resolution of the protest except as provided in this section. In the event the contracting officer determines that award is to be made during the pendency of an appeal, the contracting officer will notify the appeal committee.

 

(f)        Furnishing of Information on Protests. The appeal committee shall, upon request, make available to any interested party information bearing the substance of the appeal which has been submitted by interested parties, except to the extent that withholding of information is permitted or required by law or regulation. Any comments thereon shall be submitted within a maximum of ten days.

 

(g)        Time for Submission of Additional Information. Any additional information requested by the appeal committee from the appellant or interested parties shall be submitted no later than five days after the receipt of such request. If it is necessary to obtain additional information from the Managing Director, the appeal committee will request that such information be furnished as expeditiously as possible.

 

(h)        Conference.

(1)        A conference on the merits of the appeal with the appeal committee may be held at the request of the appellant, any other interested party, or the Managing Director. Request for a conference should be made prior to the expiration of the time period allowed for filing comments on the agency report. Except in unusual circumstances, requests for a conference received after such time will not be honored. The appeal committee will determine whether a conference is necessary for resolution of the appeal.

(2)        Conference normally will be held prior to expiration of the period allowed for filing comments on the agency report. All interested parties shall be invited to attend the conference. Ordinarily, only one conference will be held on an appeal.

(3)        Any written comments to be submitted and as deemed appropriated by the appeal committee as a result of the conference must be received by the appeal committee within five days of the date on which the conference was held.

 

(i)         Time for Decision; Notice of Decision. The appeal committee shall, if possible, issue a decision on the appeal within twenty-five days after all information necessary for the resolution of the appeal has been received. A copy of the decision shall immediately be mailed or otherwise transmitted to the appellant, other participating parties, and the Managing Director.

 

(j)         Request for Reconsideration.

(1)        Reconsideration of a decision of the appeal committee may be requested by the appellant, any interested party who submitted comments during consideration of the protest, and the Managing Director. The request for reconsideration shall contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.

(2)        Request for reconsideration of a decision for the appeal committee shall be filed not later than ten days after the decision. The term “filed” as used in this section means receipt by the appeal committee.

(3)        A request for reconsideration shall be subject to these bid protest procedures consistent with the need for prompt resolution of the matter.

 

Modified, 1 CMC § 3806(c), (d), (e), (f), (g).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: The Commission inserted a comma after the word “report” in subsection (d) pursuant to 1 CMC § 3806 (g). In subsection (f), the Commission corrected the spelling of “ten.” In subsection (g), the Commission changed “an” to “any” to correct a manifest error.

 

§ 90-20-910     Remedies

 

(a)        Remedies Prior to Award. If prior to award the Managing Director or the appeal committee determines that a solicitation or proposed award of a contract is in violation of law or regulation, then the solicitation or proposed, award shall be:

(1)        Cancelled; or

(2)        Revised to comply with law or regulation.

 

(b)        Remedies After an Award. If after an award the Managing Director or the appeal committee determines that a solicitation or award of a contract is in violation of law or regulation, then:

(1)        If the person awarded the contract has not acted fraudulently or in bad faith:

(i)         The contract may be ratified and affirmed, provided it is determined that doing so is in the best interests of the Bureau, or

(ii)        The contract may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to termination.

(2)        If the person awarded the contract has acted fraudulently or in bad faith:

(i)         The contract may be declared null and void; or

(ii)        The contract may be ratified and affirmed if such action is in the best interests of the Bureau, without prejudice to the Bureau’s rights to such damages as may be appropriate.

 

(c)        Finality of Findings of Fact by the Appeal Committee. A determination of an issue of fact by the appeal committee under this chapter shall be final and conclusive unless arbitrary, capricious, fraudulent, or clearly erroneous.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-915     Effective Date

 

All protests as to the manner of bidding, the failure to properly award a bid, the failure of Bureau to contract with a business after bidding, or the cancellation of bids which may or may not be the subject of lawsuit but have not reached final judgment as of the effective date of the regulations in this chapter shall be heard in accordance with this part upon the request of the actual or prospective bidder, offeror, or contractor who is aggrieved.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-920     Disputes

 

(a)        Any dispute between the Bureau and a contractor relating to the performance, interpretation of a compensation due under a contract, which is the subject of the regulations in this chapter, must be filed in writing with the Managing Director within ten calendar days after knowledge of the facts surrounding the dispute.

 

(b)        When a claim by or against a contractor cannot be satisfied or settled by mutual agreement and a decision on the dispute is necessary, the Managing Director shall review the facts pertinent to the dispute, secure necessary legal assistance and prepare a written description that shall include:

(1)        Description of the dispute;

(2)        Reference to pertinent contract terms;

(3)        Statement of the factual areas of disagreement or agreement; and

(4)        Statement of the decision as to the factual areas of disagreement and conclusion of the dispute with any supporting rationale.

 

(c)        Appeals. The appeal committee shall review and render a decision on an appeal from an adverse decision timely taken by a contractor. The appeal committee may require a hearing or that information be submitted on the record, in his discretion. The appeal committee may affirm, reverse or modify the decision or remand it for further consideration.

 

(d)       Duty to Continue Performance. A contractor that has a dispute pending before the Managing Director or an appeal before the appeal committee must continue to perform according to the terms of the contract and failure to so continue shall be deemed to be a material breach of the contract unless he obtains a waiver of this provision by the appeal committee.

 

Modified, 1 CMC § 3806(d), (e), (f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

Part 1000 -     Ethics in Contracting

 

§ 90-20-1001   Definition of Terms

 

(a)        “Confidential information” means any information which is available to an employee only because of the employee’s status as an employee of the Bureau and is not a matter of public knowledge or available to the public on request.

 

(b)        “Conspicuously” means written in such special or distinctive form, print, or manner that a reasonable person against whom it is to operate ought to have noticed it.

 

(c)        “Direct or indirect participation” means involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standards, rendering of advice, investigation, auditing or in any other advisory capacity.

 

(d)       “Financial interest” means:

(1)        Ownership of any interest or involvement in any relationship from which or as a result of which, a person within the past year has received or is presently or in the future entitled to receive compensation; or

(2)        Holding a position in a business such as an officer, director, trustee, partner, employee or the like or holding any position of management.

 

(e)        “Gratuity” means a payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or proposed, unless consideration of substantially equal or greater value is received.

 

(f)        “Immediate family” means spouse, children, parents, brothers, and sisters.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter. The Commission inserted a comma after the word “print” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-20-1005   Policy

 

The employees of the Bureau shall discharge their duties impartially so as to:

 

(a)        Insure* fair competitive access to Bureau procurement by reasonable contractors; and

 

(b)        Conduct themselves in a manner as to foster public confidence in the integrity of the Bureau.

 

* So in original.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-1010   General Standards

 

(a)        Board Members and Employees. Any attempt to realize personal gain by conduct inconsistent with the proper discharge of the Board members or employee’s duties is a breach of a public trust. In order to fulfill this ethical standard, Board members and employees must meet the requirements of the regulations in this chapter.

 

(b)        Contractors. Any effort to influence any Bureau Board member or employee to breach the standards of ethical conduct set forth in the regulations in this chapter is also a breach of ethical standards.

 

Modified, 1 CMC § 3806(d), (g).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: In subsection (b), the Commission inserted the final period.

 

With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-1015   No Financial Interests

 

(a)        All Board members and employees shall disclose to the Board any financial interest, direct or indirect, in any company which has submitted a proposal or bid being considered for award by the Board.

 

(b)        No Board member shall vote for the award of any contract in which the member has an ownership interest in the company to which the contract may be awarded.

 

(c)        No employee of the Bureau shall participate in the negotiations for sale, purchase, contract, transaction entered into by the Bureau if the employee may receive a direct benefit therefrom.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-1020   Gratuities and Kickbacks

 

(a)        Gratuities. It shall be a breach of ethical standards for any person to offer, give or agree to give any Board member or employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining, to any program requirement or a contract or subcontract or to any solicitation or proposal therefor.

 

(b)        Kickbacks. It shall be a breach of ethical standards for any payment, gratuity or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith as an inducement for the award of a subcontractor or order.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment:  The Commission inserted a comma after the word “accept” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 90-20-1025   Prohibition Against Contingent Fees

 

(a)        Contingent Fees. It shall be a breach of ethical standards for a person to be retained or to retain a person to solicit or secure Bureau contracts upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business.

 

(b)        Representation of Contractor. Every person, before being awarded a Bureau contract, shall represent, in writing that such person has not retained anyone in violation of this section. Failure to do so constitutes a breach of ethical standards.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the reference to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-1030   Contract Clauses

 

The prohibitions against gratuities, kickbacks and against contingent fees shall be conspicuously set forth in every contract and solicitation therefor.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

§ 90-20-1035   Restrictions on Employment of Present and Former Board Members or Employees

 

(a)        Present Board Members or Employees. It shall be a breach of ethical standards for any Board member or employee to participate in the decision to award a contract to a person and be the employee or agent of that person seeking to contract with the Bureau.

 

(b)        Restrictions on Former Board Members or Employees in Matters Connected with their Former Duties.

It shall be a breach of ethical standards for any former Board member or employee knowingly to act as a principal or as an agent for anyone other than the Bureau, in connection with any:

(1)        Judicial or other proceeding, application, request for a ruling or other determination.

(2)        Contract;

(3)        Claim; or

(4)        Charge or controversy in which the Board member or employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, investigation or otherwise while a Board member or employee, where the Bureau is a party or has a direct or substantial interest.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-1040   Use of Confidential Information

 

It shall be a breach of ethical standards for any Board member or employee or former Board member or employee to knowingly use confidential information for actual or anticipated personal gain, or the actual or anticipated personal gain of any other person.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

§ 90-20-1045   Collusion by Bidders

 

Collusion or secret agreements between bidders for the purpose of securing an advantage to the bidders against the Bureau in the awarding of contracts is prohibited. The Board may declare the contract void if it finds sufficient evidence after a contract has been let that the contract was obtained by a bidder or bidders by reason of collusive or secret agreement among the bidders to the disadvantage of the Bureau.

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: With respect to the references to the Marianas Visitors Bureau, see the general comment to this chapter.

 

§ 90-20-1050   Authority to Debar or Suspend

 

(a)        Bureau. After reasonable notice to the person involved and reasonable opportunity for the person to be heard under part 900 of this chapter the Managing Director after consultation with the Board and the attorney, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than three years. The Managing Director, after consultation with the Board and the attorney, shall have authority to suspend a person from consideration for award of contracts if there is cause for suspension. The suspension shall not be for a period exceeding three months.

 

(b)        Causes for Debarment or Suspension. The causes for debarment or suspension include the following:

(1)        Conviction for commission of a criminal offense in an incident to obtain or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(2)        Conviction under Commonwealth or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, violation of the Consumer Protection Act (4 CMC §§ 5101, et seq.), violation of any unfair business practices as prescribed by 4 CMC § 5202, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects its responsibility as a government contractor;

(3)        Violation of contract provisions, as set forth below, of a character which is regarded by the Managing Director to be so serious as to justify debarment action:

(i)         Deliberate failure without good cause to perform in accordance with the specifications within the time limits provided in the contract; or

(ii)        A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered a basis for debarment.

(4)        Any other cause that the Managing Director determines to be so serious and compelling as to affect responsibility as Bureau contractor, including debarment by any other governmental entity; and

(5)        For violation of any of the ethical standards set forth in part 1000.

 

(c)        Decision. The Managing Director shall issue a written decision to debar or suspend. The decision shall state the reasons for the action taken.

 

(d)       Notice of Decision. A copy of the decision shall be mailed or otherwise furnished immediately to the debarred or suspended person.

 

Modified, 1 CMC § 3806(c), (d), (e), (f), (g).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: The Commission inserted a comma after the word “seriously” in subsection (b)(2) pursuant to 1 CMC § 3806(g). In subsection (b)(4), the Commission changed the final colon to a semi-colon for consistency in the section.

 

§ 90-20-1055   Civil and Administrative Remedies

 

In addition to existing remedies provided by law, any person who violates any of the provisions of the regulations in this chapter may be subject to one or more of the following:

 

(a)        Board members and employees.

(1)        A Board member or an employee who violates the provisions of the rules and regulations in this chapter is subject to adverse action as may be appropriate in his or her particular circumstances.

(2)        This action includes but is not limited to reprimand, suspension without pay, termination of employment, civil injunction, civil suit for damages or return of government money, or criminal prosecution.

 

(b)        Contractors. A contractor who violates a provision of the rules and regulations in this chapter shall be subject to a written warning or reprimand, the termination of the contract or suspension from being a contractor or subcontractor under a Bureau contract in addition to other penalties prescribed by law.

 

(c)        All proceedings under this section must be in accordance with due process requirements.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14082 (Apr. 15, 1996); Proposed 16 Com. Reg. 12616 (Dec. 15, 1994).

 

Commission Comment: The original paragraphs of subsection (a) were not designated. The Commission designated subsections (a)(1) and (a)(2).

 


CHAPTER 90-30

VENDOR SITE REGULATIONS

 


Part 001          General Provisions

§ 90-30-001     Purposes

§ 90-30-005     Authority and Effect

§ 90-30-010     Severability

§ 90-30-015     Definitions

 

Part 100          Designated Vendor Sites

§ 90-30-101     Vendor Sites

 

Part 200          Permits

§ 90-30-201     Permit Required

§ 90-30-205     Application Forms

§ 90-30-210     Fees

§ 90-30-215     Accompanying Documents and Information

§ 90-30-220     Designation of Vendor Sites

§ 90-30-225     Permit Categories

§ 90-30-230     Permit Decision

 

Part 300          Miscellaneous

§ 90-30-301     Structures

§ 90-30-305     Display of Permit

§ 90-30-310     Occupation of Area

§ 90-30-315     Sign

§ 90-30-320     Solicitation

§ 90-30-325     Cleanliness and Orderliness

§ 90-30-330     Vendor Employees

§ 90-30-335     Destruction of Trees and Improvements

§ 90-30-340     Parking

§ 90-30-345     Other Laws

§ 90-30-350     Amplified Sound

§ 90-30-355     Permit Requirements

 

Part 400          Penalties

§ 90-30-401     Suspension; Conditions of Reinstatement

§ 90-30-405     Hearings and Appeals

 

Appendix A   Saipan

Appendix B    Tinian

Appendix C   Rota


 

Chapter Authority: 4 CMC § 2128.

 

Chapter History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21** Com. Reg. 16461 (Feb. 18, 1999); Amdts Proposed 18 Com. Reg. 14819 (Dec. 15, 1996);* Amdts Emergency 18 Com. Reg. 14147 (June 15, 1996) (effective for 120 days from June 6, 1996); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

*A notice of adoption for the 1996 proposed amendments was never published.

**Commonwealth Register volume 21, number 2, pages 16459-16571 are mislabeled volume 20.

 

Commission Comment: PL 11-15 (effective June 17, 1998), the “Marianas Visitors Authority Act of 1998,” codified as amended at 4 CMC §§ 2101-2145, created the Marianas Visitors Authority (MVA) as the successor to the Marianas Visitors Bureau. The Marianas Visitors Bureau had existed in accordance with title 4, div. 2, ch. 1 of the Commonwealth Code since February 11, 1976. PL 11-15 § 23 repealed title 4, div. 2, ch. 1 and enacted new statutory provisions creating the Marianas Visitors Authority and charging MVA with promoting tourism in the Commonwealth. See 4 CMC §§ 2102 and 2103; see also the commission comment to 4 CMC § 2101.

 

PL 11-15 § 22 also vacated Executive Order 94-3 § 302(b). Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. Executive Order 94-3 § 302(b) allocated the Marianas Visitors Bureau to the Department of Commerce for purposes of administration and made changes to the structure of the Bureau’s Board of Directors. The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 11-15 §§ 17-21, 4 CMC §§ 2141-2145, provide for the transition of property, personnel and authority from the Marianas Visitors Bureau to the MVA. PL 11-15 § 15 authorizes MVA to adopt rules and regulations necessary to implement the provisions of the act. See 4 CMC § 2128.

 

MVA promulgated the 1999 Vender Site Regulations codified in this chapter. Prior to 1999, the Marianas Visitors Bureau administered the 1986 Designated Tourist Site Regulations, as amended by the 1990 Revised Designated Tourist Site Regulations, pursuant to the authority of former 4 CMC §§ 2101, et seq. These precursor regulations are cited in the history sections of this chapter where applicable.

 

PL 17-54 (Sept. 26, 2011) changed the composition of the Marianas Visitors Authority’s board of directors.

 

Part 001 -       General Provisions

 

§ 90-30-001     Purposes

 

(a)        The Marianas Visitors Authority (MVA) has adopted the Vendor Site Regulations codified in this chapter so that a uniform policy can be implemented and maintained for all vendor permits issued by MVA in the Commonwealth of the Northern Mariana Islands.

(b)        Purposes and Policies. The underlying purposes and policies of these regulations are:

(1)        To maintain the natural beauty and preserve the historical and cultural importance of attraction sites in the CNMI, as well as provide for safe and enjoyable recreational activities;

(2)        To promote the manufacture of indigenous handicrafts and products;

(3)        To collect funds so that the maintenance of designated vendor sites may be self-sustaining;

(4)        To ensure that designated vendor sites are kept in a safe, clean and sanitary condition for the betterment of the tourist industry and the people of the Northern Mariana Islands.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1999 regulations amended subsections (a), (b)(3) and (b)(4).

 

§ 90-30-005     Authority and Effect

 

The regulations in this chapter are promulgated under the following authority: Public Law 11-15 [4 CMC §§ 2101-2145] gives MVA the authority to encourage, authorize, license, regulate, and control commercial uses on or near tourist sites. Tourist sites under MVA’s jurisdiction are attached hereto as Saipan (appendix A) Tinian (appendix B) Rota (appendix C).

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-010     Severability

 

If any provision of the regulations in this chapter or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of these regulations which can be given effect consistent with the purposes and policies of these regulations without the invalid provision of the application, and to this end, the provisions of this regulation are severable.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-015     Definitions

 

As used in this chapter the following definitions apply:

 

(a)        “Indigenous handicrafts” shall mean: Craft items created and made in the Commonwealth which are traditional in their type or style or which in some way depict the culture or history of the Mariana Islands.

 

(b)        “Vendor site” shall mean: A physical site set forth in the appendices of this chapter over which MVA has the authority to encourage, authorize, license, regulate, and control commercial uses.

 

(c)        “Vendor stand” shall mean: A specific area within a vendor site within which an individual vendor’s operation must be confined.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1990 amendments amended subsection (a). The 1999 regulations deleted former subsections (a) and (c), re-designated the remaining subsections and amended subsections (b) and (c). The Commission inserted a comma after the word “regulate” in subsection (b) pursuant to 1 CMC § 3806(g).

 

Part 100 -       Designated Vendor Sites

 

§ 90-30-101     Vendor Sites

 

The following places in the Northern Mariana Islands are governed by the regulations in this chapter: MVA:

 

(a)        Saipan (appendix A)

 

(b)        Tinian (appendix B)

 

(c)        Rota (appendix C)

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1999 regulations amended the opening paragraph.

 

Part 200 -       Permits

 

§ 90-30-201     Permit Required

 

Any person who intends to sell, lease, or otherwise transfer for gain or profit, any merchandise or service specified in § 90-30-301 of this chapter within a designated vendor site as specified in part 100 shall first obtain a permit from MVA. All vendor permits issued by MVA must include a permit from CRM if the site is within 150 feet of the high water mark. All vendor permit holders must secure and maintain a valid business license from the Department of Commerce. All permits issued by MVA are non-transferable unless by prior written authorization by MVA.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-205     Application Forms

 

Applications for permits will be accepted only on forms approved by CRM and MVA.

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-210     Fees

 

A fee of $200.00 shall accompany an application under § 90-30-205. In the event the application is not approved, the fee shall be refunded.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-215     Accompanying Documents and Information

 

In addition to the fee specified in § 90-30-210, an application must be accompanied by the following:

 

(a)        If applying to sell food, or beverages, a valid health certificate issued by the Department of Public Health;

 

(b)        Proof of adequate insurance according to type of operation being permitted;

 

(c)        Any other permits or certificates required by law to operate the vendor’s business at that location;

 

(d)       A mailing address where notices may be mailed;

 

(e)        Any other information MVA may require for consideration of the application.

 

(f)        For motorized and non-motorized sporting rentals permit applications only: Each motorized and non- motorized sporting rentals permit application must include an applicant’s sealed bid for a one year permit.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1990 amendments deleted former subsection (a), re-designated accordingly and amended the opening paragraph. The 1992 amendments added new subsection (d) and re-designated the then-existing subsections. The 1999 regulations added new subsection (f) and amended subsection (e). The Commission inserted an apostrophe in the word “applicant’s” in subsection (f) pursuant to 1 CMC § 3806(g).

 

§ 90-30-220     Designation of Vendor Sites

 

(a)        MVA may designate one or more vendor stand locations within each vendor site under its jurisdiction. For each designated vendor site MVA shall determine which, if any, category or categories of operation, as specified in § 90-30-301 may be conducted at a vendor site under its jurisdiction. Not more that* one permit for each category of operation will be granted for each vendor site.

 

(b)        MVA may designate new vendor sites and new categories of operation for existing vendor sites, if the designations do not violate existing laws.

 

* So in original.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1990 amendments amended subsection (a). The 1999 regulations amended subsections (a) and (b).

 

§ 90-30-225     Permit Categories

 

A permit under part 200 shall issue only to the following categories of operation:

 

(a)        Food and beverages;

 

(b)        Locally grown and processed foods, such as papayas, bananas, and coconuts;

 

(c)        Motorized and non-motorized sporting rentals;

 

(d)       Indigenous handicrafts (souvenirs, mwarmwars, etc.)

 

(e)        Sundries such as cigarettes, films, and photo supplies.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1990 amendments amended the opening paragraph. The 1992 amendments amended subsection (c). The 1999 regulations moved this section from former Article IV § 1 with numerous amendments. See 8 Com. Reg. at 4548 (Sept. 15, 1986). The Commission inserted a comma after the word “films” in subsection (e) pursuant to 1 CMC § 3806(g).

 

§ 90-30-230     Permit Decision

 

(a)        For all permit categories except motorized and non-motorized sporting rentals:

(1)        At least one month prior to the end of the permit year, MVA shall publish notices specifying a period of time in which persons may apply for available vendor permits. MVA shall receive all permit applications for which the fee has been paid, and shall consider the applications in the following manner:

(i)         A determination shall be made as to whether the applicant has sufficient experience, resources, and background to conduct the vending operation in a safe, healthy, and successful manner.

(ii)        Qualified applicants for each vendor site shall be separated according to category of operation.

(iii)       If for any vendor site there are more qualified applicants for a given category of operation than vendor sites which allow that category of operation, MVA shall give preference to qualified businesses owned by local residents. As between two or more qualified businesses owned by local residents, MVA shall draw lots to determine which vendor shall receive the permit.

(iv)       At a vendor site where there is only one vendor stand, MVA shall have the discretion to issue a vendor permit for the vendor stand based on its determination of the best proposal for the site, regardless of the number of applicants.

(2)        Each permit shall be granted for a maximum period of one year. All permits for a given vendor site shall expire on the last day of each calendar year regardless of when the decision on the application for a particular vendor site is made. A permit shall automatically expire 30 days after its effective date if the vendor has not commenced operations within that 30-day period.

 

(b)        Permits for motorized and non-motorized sporting rentals:

(1)        At least one month prior to the end of the permit year, MVA shall publish notices specifying a period of time in which persons may apply for available motorized and non-motorized sporting rentals vendor permits. MVA shall receive all permit applications for which the fee has been paid, and shall consider the applications in the following manner:

(i)         A determination shall be made as to whether the applicant has sufficient experience, resources and background to conduct the motorized and non-motorized sporting rentals vending operation in a safe, healthy, and successful manner.

(ii)        Each motorized and non-motorized sporting rentals permit will be awarded to an applicant deemed qualified by MVA to operate a motorized and non-motorized sporting rentals vendor site, and who submits the highest bid for the yearly permit for a specified vendor site. Payments will be calculated on a monthly basis and will be due on the first day of each month.

(2)        Each permit shall be granted for a maximum period of one year. All permits for a given vendor site shall expire on the last day of each calendar year regardless of when the decision on the application for a particular vendor site is made. A permit shall automatically expire 30 days after its effective date if the vendor has not commenced operations within that 30-day period.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1990 amendments amended subsections (a)(1)(iii) and (a)(2). The 1992 amendments amended subsections (a)(1) and (a)(2). The 1999 regulations amended subsection (a)(1) and (a)(2) and added new subsection (b).

 

The 1990 amendments deleted article III § 8, entitled “Annual Renewal.” See 8 Com. Reg. 4547 (Sept. 15, 1986). The 1999 regulations deleted former Article III § 7, entitled “Existing Vendor Operations.” See 12 Com. Reg. at 6880 (Apr. 15, 1990).

 

The Commission inserted commas after the words “resources” and “healthy” in subsection (a)(1)(i) and “healthy” in subsection (b)(1)(i) pursuant to 1 CMC § 3806(g).

 

Part 300 -       Miscellaneous

 

§ 90-30-301     Structures

 

All structures, carts or booths, shall be:

 

(a)        Of a type and size approved by MVA and other required governmental agencies;

 

(b)        Erected only in the vendor site assigned to the permit;

 

(c)        Removed by the end of each day unless otherwise stated in the permit granted.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The 1999 regulations amended subsections (a) and (c).

 

§ 90-30-305     Display of Permit

 

A vendor shall at all times conspicuously display the permit issued under the regulations in this chapter.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-310     Occupation of Area

 

A vendor shall occupy only the area specifically assigned by MVA within the designated vendor site.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-315     Sign

 

Each vendor shall display a sign no larger that* 2 ft. by 4 ft. indicating the business’s name, the products or merchandise being sold or rented and their values. The sign shall be attached to the vendor’s structure.

 

* So in original.

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-320     Solicitation

 

No vendor shall solicit, advertise, or sell any of his/her product or merchandise outside his/her vendor site. This prohibition does not include advertisement in the newspaper, radios, or cable TV.

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment:  The Commission inserted commas after the words “advertise” and “radios” pursuant to 1 CMC § 3806(g).

 

§ 90-30-325     Cleanliness and Orderliness

 

Vendors shall maintain their vendor site in a clean and orderly fashion. Vendors shall remove all trash, refuse, and other materials from the vendor sites at the end of each day and shall not use the MVA trash containers.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-330     Vendor Employees

 

Vendors shall limit the number of employees at the vendor site to three persons. Vendors shall be responsible for ensuring that people who are not employees or customers of the vendor’s operation do not loiter and disturb other vendors and tourists, and shall further be responsible for ensuring that employees wear some kind of visible emblem of identification. In addition, vendors shall provide MVA and CRM with a current list of employees and shall not employ any person with a record of conviction for a felony, or who is on probation or parole for a felony adjudication.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999).

 

§ 90-30-335     Destruction of Trees and Improvements

 

No sign or other items may be attached to trees, shrubs, or park improvements.

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment:  The Commission inserted a comma after the word “shrubs” pursuant to 1 CMC § 3806(g).

 

§ 90-30-340     Parking

 

All vehicles must be parked within the area designated by MVA as parking areas. Under no circumstances is parking allowed on any beach within MVA’s jurisdiction.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The Commission corrected the spelling of “jurisdiction.”

 

§ 90-30-345     Other Laws

 

All vendors shall comply with other applicable laws in the Northern Mariana Islands, including but not limited to zoning, coastal protection, parks and recreation, and Coastal Resources Management and Boating Safety rules and regulations [NMIAC, title 15, chapter 10, and title 150, chapter 20].

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The Commission changed “regulation” to “regulations” to correct a manifest error.

 

§ 90-30-350     Amplified Sound

 

No vendor shall use amplified sound to advertise his/her product or merchandise at the vendor site. No vendor shall use amplified sound for any purpose including pleasure listening at levels which may disturb other vendors or tourists.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

§ 90-30-355     Permit Requirements

 

Vendors shall notify MVA of any changes regarding insurance, certificates, or permits required as part of the application process under § 90-30-215 of this chapter. Vendors shall be responsible for maintaining required insurance, certificates, or permits as a condition of a permit issued under this chapter.

 

Modified, 1 CMC § 3806(c), (d).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992).

 

Part 400 -       Penalties

 

§ 90-30-401     Suspension; Conditions of Reinstatement

 

All vendors shall comply with the provisions of the regulations in this chapter. In the case of a suspension, MVA shall have authority to impose additional requirements on the vendor as a condition of reinstatement, including a monetary payment up to $200.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Adopted 14 Com. Reg. 10363 (Dec. 15, 1992); Amdts Proposed 14 Com. Reg. 9974 (Oct. 15, 1992); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).

 

Commission Comment: The Commission created the section titles in part 400.

 

§ 90-30-405     Hearings and Appeals

 

Any suspension, revocation, hearing, or appeal shall be conducted in accordance with the CNMI Administrative Procedure Act, 1 CMC §§ 9101, et seq.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999).

 

Commission Comment: The Commission changed “Administration” to “Administrative” to correct a manifest error. The Commission inserted a comma after the word “hearing” pursuant to 1 CMC § 3806(g).

 

In 1996, the Marianas Visitors Bureau promulgated emergency amendments and proposed to add a permanent amendment to the 1990 Revised Designated Tourist Site Regulations. The amendments proposed a new article VII, entitled “Beach Concessionaire Permits.” See 18 Com. Reg. 14819 (Dec. 15, 1996); 18 Com. Reg. 14147 (June 15, 1996) (effective for 120 days from June 6, 1996). A notice of adoption for the proposed amendments was never published and the Marianas Visitors Authority did not incorporate article VII into the 1999 Vendor Site Regulations.

 


 

Appendix A

 

Saipan

1. Laderan Banadero (Suicide Cliff)

2. Puntan Sabaneta (Banzai Cliff)

3. Banadero (Last Command Post)

4. Grotto

5. Bird Island Look-out

6. Japanese Government Memorial Park

7. Korean Peace Memorial

8. Okinawa Peace Memorial

9. Yamatomi Resthouse

10. 3 Memorial Triangles

11. Old Japanese Jail

12. Japanese Hospital

13. Sugar King Park

14. Tank Display (Beach Road)

15. Japanese Peace Memorial (Susupe)

16. 89ers Memorial (Airport)

17. Ladder Beach

18. Obyan Beach

19. 73rd Bomb Wing

 

Beach Areas Fronting:

20. Saipan Grand Hotel,

21. Saipan Diamond Hotel,

22. Saipan Beach Hotel,

23. Hyatt Regency Saipan,

24. Hotel Nikko Saipan,

25. Coral Ocean Point Resort Club,

26. Pacific Islands Club,

27. Pacific Gardenia Hotel, and

28. Chalan Kanoa Beach Club.

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).


 

 

 

Appendix B

 

Tinian

1. Tachonga Beach

2. Kammer Beach

3. Taga House

4. Suicide Cliff Memorial

5. Korean Peace Memorial

6. Taga Beach

7. Chulu Beach

8. Taga Well

9. Japanese Peace Memorial

10. Atomic Bomb Pit

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).


 

 

Appendix C

 

 Rota

1. Village Entrance

2. Japanese Gun

3. Japanese Train and Sugar Mill

4. Tatgua Beach

5. Taga Stone Quarry

6. Tonga Cave

7. Japanese Cannon

8. Tweksberry Beach

9. Swimming Hole

10. Sabana Peace Memorial

11. Tatachug Beach

12. Guata Beach

 

History: Adopted 21 Com. Reg. 16799 (May 19, 1999); Proposed 21 Com. Reg. 16461 (Feb. 18, 1999); Amdts Certified 14 Com. Reg. 8655 (Jan. 15, 1992); Amdts Adopted 12 Com. Reg. 7146 (June 15, 1990); Amdts Proposed 12 Com. Reg. 6874 (Apr. 15, 1990); Amdts Emergency 11 Com. Reg. 6693 (Dec. 15, 1989) (effective for 120 days from Dec. 1, 1989); Adopted 8 Com. Reg. 4542 (Sept. 15, 1986); Proposed 8 Com. Reg. 4181 (Jan. 17, 1986).


 

CHAPTER 90-40

MARIANAS VISITORS AUTHORITY PERSONNEL REGULATIONS

 


Part 001          Introduction

Subpart A        Purpose and Scope

§ 90-40-001     Purpose

§ 90-40-005     MVA Mission Statement

§ 90-40-010     Policy

§ 90-40-015     Coverage

§ 90-40-020     Scope

§ 90-40-025     Eligibility for Employment

Subpart B        MVA Personnel Management Responsibilities

§ 90-40-030     Personnel Management

§ 90-40-035     The Managing Director

§ 90-40-040     The MVA Administrative Officer

§ 90-40-045     The MVA Personnel Committee

 

Part 100          Staffing

Subpart A        Application and Selection Processes

§ 90-40-101     Introduction

§ 90-40-102     Order of Priority for Filling a Job Vacancy

§ 90-40-103     Selected Announcement and Internal Posting of Job Vacancy

§ 90-40-104     Competitive Hiring

§ 90-40-105     Non-competitive Hiring

§ 90-40-106     Vacancy Announcements

§ 90-40-107     Publicity

§ 90-40-108     Applications for Vacancies

§ 90-40-109     Disqualification of Applicants

§ 90-40-110     Establishment of List of Eligible Applicants

§ 90-40-111     Removal of Names from Lists of Eligible Applicants

§ 90-40-112     Selection from Eligible Applicant Lists

§ 90-40-113     Duration of Lists of Eligible Applicants

§ 90-40-114     Reemployment Priority List

Subpart B        Positions and Appointments

§ 90-40-120     Types of Positions

§ 90-40-121     Permanent Positions

§ 90-40-122     Temporary Position

§ 90-40-123     Types of Appointments

§ 90-40-124     Pre-employment Condition Standards

§ 90-40-125     Administration of Medical Examinations

§ 90-40-126     Prohibited Actions

§ 90-40-127     Reemployment

§ 90-40-128     Orientation

Subpart C        Merit Promotion Program

§ 90-40-140     Policy

§ 90-40-141     Definitions

§ 90-40-142     Scope and Coverage

§ 90-40-143     Areas of Consideration

§ 90-40-144     Methods of Locating Candidates

§ 90-40-145     Transfers

§ 90-40-146     Qualification Standards

§ 90-40-147     Conditions of Employment

§ 90-40-148     Evaluation Process

§ 90-40-149     Evaluation Measures

§ 90-40-150     Selection Procedure

§ 90-40-151     Information to Employees

§ 90-40-152     Employee Questions and Complaints

§ 90-40-153     Review of Promotion Program

Subpart D        Separations, Suspensions, and Demotions

§ 90-40-160     General

§ 90-40-161     Separations Not Involving Personal Cause

§ 90-40-162     Disciplinary Actions for Reasons of Personal Cause (Adverse Actions)

§ 90-40-163     Non-Adverse Action Disciplinary Measures

§ 90-40-164     Adverse Action Disciplinary Measures

§ 90-40-165     Procedure for Taking Adverse Actions

§ 90-40-166     Summary of Steps for Taking Adverse Actions

Subpart E        Reduction-in-Force (RIF)

§ 90-40-170     General

§ 90-40-171     Policy

§ 90-40-172     Coverage

§ 90-40-173     Reduction-in-Force Planning

§ 90-40-174     Competitive Processes

§ 90-40-175     Limitations on Competition

§ 90-40-176     Furlough and Separation

§ 90-40-177     Vacant Positions

§ 90-40-178     Assignment Rights (Bumping)

§ 90-40-179     Elimination of Function

 

Part 200          Employment Processes

Subpart A        Employee Grievances

§ 90-40-201     Policy

§ 90-40-205     Coverage

§ 90-40-210     Matters Not Covered

§ 90-40-215     Freedom from Restraint

§ 90-40-220     Employee’s Right to Representation

§ 90-40-225     Role of the Personnel Committee

§ 90-40-230     Employee’s Right to Seek Advice

§ 90-40-235     Informal Grievance Procedure

§ 90-40-240     Formal Grievance Procedure

Subpart B        Employee Appeals

§ 90-40-245     General

§ 90-40-250     Rights of the Parties

 

Part 300          Position Classification and Compensation

Subpart A        Position Classification

§ 90-40-301     General

§ 90-40-302     Definitions

§ 90-40-304     Principles and Policy

§ 90-40-306     Responsibilities

§ 90-40-308     Position Planning

Subpart B        Compensation

§ 90-40-310     General

§ 90-40-312     Compensation Plan

§ 90-40-314     Periodic Review of Compensation Plan

§ 90-40-316     Establishing Salary upon Appointment

§ 90-40-318     Promotions

§ 90-40-320     Temporary Promotions

§ 90-40-322     “Acting” Assignment

§ 90-40-324     Demotion

§ 90-40-326     Transfer

§ 90-40-328     Effect on Service Anniversary Date

§90-40-330      Reallocation/Reclassification of Position to Higher Pay

§ 90-40-332     Effective Date of Position Changes

§ 90-40-334     Within-grade Increases

§ 90-40-336     Workshops

§ 90-40-338     Overtime Compensation

§ 90-40-340     Standard Work Week

§ 90-40-342     Use of Non-standard Work Week

§ 90-40-344     Holidays

§ 90-40-346     Merit Increase

§ 90-40-348     Premium Pay

§ 90-40-350     Approval of Premium Pay or Differentials

§ 90-40-352     Bar to Dual Compensation or Dual Employment

§ 90-40-354     Severance Pay

§ 90-40-356     Timekeepers

 

Part 400          Employee Management Processes

Subpart A        Communications

§ 90-40-401     General

§ 90-40-402     Role of the Managing Director

Subpart B        Emotional and Mental Health

§ 90-40-404     General

§ 90-40-406     Policy on Emotional and Mental Health

§ 90-40-408     Action by Supervisors and Managers

§ 90-40-410     Action by the Managing Director

§ 90-40-412     Further Actions

Subpart C        Alcohol and Drug-Free Workplace

§ 90-40-414     General Policy

§ 90-40-416     Procedure

§ 90-40-418     Testing Occasions

§ 90-40-420     Collection and Testing Procedures

§ 90-40-422     Employee Awareness and Rehabilitation

§ 90-40-424     Prohibited Conduct

§ 90-40-426     Refusal to be Tested

§ 90-40-428     Other Actions Violating this Regulation

§ 90-40-430     Refusal to be Tested; Penalties and Consequences

§ 90-40-432     Return to Duty Procedures

§ 90-40-434     Return to Duty Contract

§ 90-40-436     Administrative Considerations

Subpart D        Employee and Management Responsibilities

§ 90-40-438     Code of Ethics for MVA Personnel Service

§ 90-40-440     Policy on Employee Conduct

§ 90-40-442     Subordination to Authority

§ 90-40-444     Management Responsibility

§ 90-40-446     Employee Responsibility

§ 90-40-448     Disciplinary and Other Remedial Action

§ 90-40-450     Conflict of Interest

§ 90-40-452     Ethical and Other Conduct and Responsibilities of Employees

§ 90-40-454     Outside Work and Interests

§ 90-40-456     Financial Interests

§ 90-40-458     MVA Property

§ 90-40-460     Information

§ 90-40-462     Gambling, Betting, and Lotteries

§ 90-40-464     Other Types of Conduct

§ 90-40-466     Community and Professional Activities

Subpart E        Political Activity

§ 90-40-468     Political Activities

§ 90-40-470     Rights of Employees

§ 90-40-472     Prohibited Activities

§ 90-40-474     Public Office

§ 90-40-476     Penalty

 

Part 500          Fair Treatment in the Workplace

§ 90-40-501     Equal Employment Opportunity Policy

§ 90-40-505     Prohibition of Harassment

§ 90-40-510     Prohibition of Sexual Harassment

§ 90-40-515     Expectation of Non-Discriminatory and Non-Harassing Behavior

§ 90-40-520     Complaint Process

§ 90-40-525     Retaliation

§ 90-40-530     Equal Employment Opportunity Officer and Representative

§ 90-40-535     Nepotism

§ 90-40-540     Political Affiliation

§ 90-40-545     Coercion

 

Part 600          Employee Benefits and Services

§ 90-40-601     Policy

Subpart A        Leaves of Absence

§ 90-40-605     Purpose

§ 90-40-610     Types of Government Service that Qualify for Leave Accrual Purposes

§ 90-40-615     Kinds of Leaves

§ 90-40-620     Leaves with Pay

§ 90-40-625     Leaves without Pay

§ 90-40-630     Basis for Accrual

§ 90-40-635     Unauthorized Leave

§ 90-40-640     Disposition of Leave upon Separation

§ 90-40-645     Administration of the System

Subpart B        Insurance

§ 90-40-650     General

§ 90-40-655     Nature of Coverage

Subpart C        Retirement

§ 90-40-660     Retirement Program

 

Part 700          Performance Evaluation

§ 90-40-701     Employee Performance Evaluation Process

§ 90-40-705     Policy

§ 90-40-710     Responsibilities

§ 90-40-715     Relationship to Other Personnel Management Activities

§ 90-40-720     Performance Rating

§ 90-40-725     Rating Probationary Employees

§ 90-40-730     Appeals

 

Part 800          Training and Employee Development

§ 90-40-801     Policy

§ 90-40-805     Responsibilities

§ 90-40-810     Coverage

§ 90-40-815     External Training Sources

§ 90-40-820     Training Costs Defined

§ 90-40-825     Support for Training

§ 90-40-830     Evaluation of Training

§ 90-40-835     Unsponsored Training Activities

§ 90-40-840     Workshops

 

Part 900          Performance Management Evaluation

§ 90-40-901     Purpose

§ 90-40-905     MVA Mission Statement

§ 90-40-910     MVA Strategic Goals

§ 90-40-915     Objectives of the MVA Performance Management Evaluation Program

§ 90-40-920     Responsibilities

§ 90-40-925     Annual Report

§ 90-40-930     Action

 

Part 1000        Records and Reports

§ 90-40-1001   Purpose

§ 90-40-1005   Policy

§ 90-40-1010   Records Required

§ 90-40-1015   Disposition of Records

§ 90-40-1020   Access to Official Personnel Folder

§ 90-40-1025   Information Available to the Public

§ 90-40-1030   Reports

§ 90-40-1035   Timekeeping Records

 

Part 1100        Special Provisions

§ 90-40-1101   Financial Austerity Measures


 

Chapter Authority: 4 CMC §§ 2151-2156.

 

Chapter History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: PL 11-15 (effective June 17, 1998), the “Marianas Visitors Authority Act of 1998,” codified as amended at 4 CMC §§ 2101-2145, created the Marianas Visitors Authority (MVA) as the successor to the Marianas Visitors Bureau. The Marianas Visitors Bureau had existed in accordance with title 4, div. 2, ch. 1 of the Commonwealth Code since February 11, 1976. PL 11-15 § 23 repealed title 4, div. 2, ch. 1 and enacted new statutory provisions creating the Marianas Visitors Authority and charging MVA with promoting tourism in the Commonwealth. See 4 CMC §§ 2102 and 2103; see also the commission comment to 4 CMC § 2101.

 

PL 11-15 § 22 also vacated Executive Order 94-3 § 302(b). Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. Executive Order 94-3 § 302(b) allocated the Marianas Visitors Bureau to the Department of Commerce for purposes of administration and made changes to the structure of the Bureau’s Board of Directors. The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 11-15 §§ 17-21, 4 CMC §§ 2141-2145, provide for the transition of property, personnel and authority from the Marianas Visitors Bureau to the MVA. PL 11-15 § 15, 4 CMC § 2128, authorizes MVA to adopt rules and regulations necessary to implement the provisions of the act.

 

PL 17-54 (Sept. 26, 2011) changed the composition of the Marianas Visitors Authority’s board of directors.

 

Part 001 -       Introduction

 

Subpart A -    Purpose and Scope

 

§ 90-40-001     Purpose

 

These regulations implement Section 14 of Public Law 11-15 and subsequent amendments thereto, which authorize the Marianas Visitors Authority (MVA) to establish rules and regulations governing the personnel policies and processes of the Authority that will establish a positive and fair work environment to further the accomplishment of the MVA mission.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “mission” pursuant to 1 CMC § 3806(f).

 

 

§ 90-40-005     MVA Mission Statement

 

The MVA has established the following mission statement to guide it in its efforts on behalf of the Commonwealth: To promote and develop the Northern Mariana Islands as the premiere destination of choice for visitors from throughout the world while providing a maximum quality of life for our people. We nurture and encourage cultural interchange and environmental sensitivity for visitor’s enjoyment and for our children’s children.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “mission statement” pursuant to 1 CMC § 3806(f).

 

§ 90-40-010     Policy

 

(a)        It is hereby declared to be the policy of these regulations to establish a system of personnel administration within the MVA that is based on merit principles and generally accepted management methods to govern the employment actions and processes for the employees of the MVA.

 

(b)        It is also declared to be the purpose of these regulations to develop a personnel system which will attract, select, and retain the best-qualified employees on merit, who shall hold their positions free from coercion, discrimination, reprisal, or political influences, with incentives in the form of genuine opportunities for promotion within the MVA, and to provide competent and loyal personnel to render impartial service to the public at all times according to the dictates of ethics and morality.

 

(c)        In order to achieve this purpose, it is declared to be the policy of the Marianas Visitors Authority that the personnel system hereby established be applied and administered in accordance with the following merit principles:

(1)        Equal opportunity for all, regardless of race, creed, color, ancestry, membership in a labor organization, political affiliation, place of origin, disability, sex, religion, age, sexual orientation, veterans status or similar matters not related to individual merit and fitness;

(2)        Impartial selection of the most able person for government service by means of selection processes which are fair, objective, and practical;

(3)        Just opportunity for competent employees to be promoted within the MVA;

(4)        Reasonable job security for the competent employee;

(5)        Systematic classification of all positions and personnel through adequate job descriptions and periodic performance evaluations;

(6)        Fair and practical grievance and complaint procedures for all employees; and

(7)        Flexibility in employer-employee relations to achieve and maintain a well-trained, productive and happy work force.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The initial paragraph of this section was undesignated in the original regulation. The Commission designated it as paragraph (a) and re-designated the remaining paragraphs pursuant to 1 CMC § 3806(a).

 

§ 90-40-015     Coverage

 

(a)        These regulations apply to all employees and positions now or hereafter established in the Marianas Visitors Authority of the Commonwealth government and all personnel services performed for the MVA.

 

(b)        Some provisions·of these regulations will vary for employees in the following employment status:

(1)        Key positions filled by appointment or contract;

(2)        Persons or organizations retained by contract where the managing director has certified that the service to be performed is special or unique and nonpermanent, is essential to the MVA’s interest, and that because of the degree of expertise or special knowledge required and the nature of the services to be performed, it would not be practical to obtain personnel to perform such services through normal public service recruitment procedures;

(3)        Positions of a temporary nature needed by the MVA, where certified by the managing director and when the need for the same does not exceed ninety days;

(4)        Any position involving intermittent performance which does not require more than forty hours in any one month;

(5)        Positions of part-time nature requiring the services of four hours or less per day but not exceeding one year in duration;

(6)        Positions of temporary nature which involve special projects having specific completion dates which shall not exceed one year.

 

(c)        The managing director shall determine the applicability of this section to specific positions not expressly covered by this section.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “government” in subsection (a), “regulations” in subsection (b), “appointment” and “contract” in subsection (b)(1), “managing director” in subsections (b)(2), (b)(3), and (c), and “section” in subsection (c) pursuant to 1 CMC § 3806(f). The Commission struck the figures “90” from subsection (b)(3), “40” and “1” from subsection (b)(4), “4” and “1” from subsection (b)(5), and “1” from subsection (b)(6) pursuant to 1 CMC § 3806(e).

 

§ 90-40-020     Scope

 

These regulations cover nearly all aspects of personnel management and administration, and include but are not limited to development and promulgation of personnel policy, staffing, position classification, employee relations, employee development and training, employee benefits and services, incentives and awards, performance evaluation, employee health service, employee safety and accident prevention, labor-management relations, personnel management program evaluation, and records and reports. Each of the foregoing elements is presented in detail in subsequent parts of these regulations.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “regulations” pursuant to 1 CMC § 3806(f).

 

 

§ 90-40-025     Eligibility for Employment

 

It is the policy of the MVA that the personnel system shall be applied and administered according to the principle of equal opportunity for all persons regardless of race, creed, color, ancestry, membership in a labor organization, political affiliation, place of origin, disability, sex, religion, age, sexual orientation, veterans status and similar matters not related to individual merit and fitness.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Subpart B -    MVA Personnel Management Responsibilities

 

§ 90-40-030     Personnel Management

 

(a)        Personnel management is the responsibility of all MVA executives, managers, and supervisors who direct the work of others.

 

(b)        The managing director, with the assistance of the MVA administrative officer, has the specific responsibility to plan, develop, and implement programs and procedures which give effect and meaning to the laws of the Commonwealth, vis-a-vis the MVA workforce, giving due consideration to the changing needs of the MVA’s programs and personnel needs.

 

(c)        It is the policy of the MVA to continuously promote improved management-employee relations, human relations and communications, and satisfying work conditions in order to provide all employees the opportunity to satisfy their needs for recognition, a sense of personal worth, and personal achievement.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The initial paragraph of this section was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining subsections pursuant to 1 CMC § 3806(a). The Commission corrected the capitalization of the words “managing director” and “administrative officer” in subsection (b) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “managers” in subsection (a) and “develop” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-035     The Managing Director

 

The provisions of this regulation shall govern the administration of the MVA personnel management system. Subject to this regulation and both federal and Commonwealth employment-related laws, the managing director shall:

 

(a)        Be appointed by and serve at the pleasure of the MVA Board of Directors;

 

(b)        Receive such salary and benefits as approved by the MVA Board of Directors and otherwise authorized by statute;

 

(c)        Direct and supervise all administrative and technical personnel activities of the MVA;

 

(d)       Oversee the administration of the system of personnel administration for the MVA;

 

(e)        Act for the MVA Board of Directors in the exercise of its appointing authority under Public Law 11-15;

 

(f)        Advise the MVA Board of Directors on all matters concerning personnel management and administration, and employee training;

 

(g)        Formulate and recommend to the MVA Personnel Committee policies and regulations needed to carry out the MVA’s personnel management responsibilities;

 

(h)        Encourage and exercise leadership in the development of effective personnel administration practices within the MVA;

 

(i)         Perform other tasks and duties required by the position or as assigned by the MVA Board of Directors.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in the initial paragraph pursuant to 1 CMC § 3806(f).

 

§ 90-40-040     The MVA Administrative Officer

 

The MVA administrative officer will provide the administrative and personnel support to management staff and employees of the MVA. The administrative officer will:

 

(a)        Foster and develop, in cooperation with management officials, programs to promote effective personnel management, improve employee efficiency, and increase employee productivity;

 

(b)        Develop and maintain an adequate position classification and compensation plan;

 

(c)        Administer recruitment and selection programs and determine when employees meet specific job qualification requirements;

 

(d)       Provide advice and assistance to management on matters of employee discipline and grievance and appeal procedures;

 

(e)        Assist employees and management in the resolution of employee-management problems;

 

(f)        Develop or arrange training programs to elevate employee skills and increase employee productivity;

 

(g)        Establish and maintain records of all MVA personnel, maintaining archived records for former personnel;

 

(h)        Interpret and administer this regulation; and

 

(i)         Perform any other activities deemed necessary to assure effective implementation of the MVA personnel management system.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in the initial paragraph pursuant to 1 CMC § 3806(f).

 

§ 90-40-045     The MVA Personnel Committee

 

The MVA Personnel Committee represents the fair and objective interests of both the MVA and its employees in matters concerning the MVA personnel management system. Subject to the provisions of this regulation and applicable federal and Commonwealth employment laws, the Committee shall:

 

(a)        Ensure the establishment and maintenance of a comprehensive personnel management plan and personnel regulations for the smooth and effective operation of the MVA;

 

(b)        Provide advice and assistance on personnel management issues referred by the Managing Director:

 

(c)        Hold hearings and decide appeals of employees for disciplinary actions, for suspensions of more than three working days, demotions and dismissals from the MVA. The Committee may utilize the services of qualified hearing officers or other professionals where such services are deemed essential by the Committee. Hearings shall be public except when the appealing employee requests a closed hearing;

 

(d)       Require the presence of witnesses and/or documents in any matter pending before the Committee; and

 

(e)        Perform any other lawful act(s) required by law or this regulation, or deemed by the Committee to be necessary to carry out its duties.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (b) pursuant to 1 CMC § 3806(f).

 

Part 100 -       Staffing

 

Subpart A -    Application and Selection Processes

 

§ 90-40-101     Introduction

 

This part covers the staffing elements necessary to acquire, maintain, reassign, promote, and release employees of the MVA. The subparts treat specifically and in detail the regulations which govern in the execution of the respective functions. Merit principles, open competition and, in specific application, employee seniority, shall underlie all considerations in implementing these staffing functions.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “promote” pursuant to 1 CMC § 3806(g).

 

§ 90-40-102     Order of Priority for Filling a Job Vacancy

 

The following order shall be followed in the filling of job vacancies:

 

(a)        Former MVA employees on current and valid reemployment priority lists;

 

(b)        Internal promotion or transfer of current MVA employees;

 

(c)        Applicants obtained through open competitive job vacancy announcements.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “reemployment priority” in subsection (a) pursuant to 1 CMC § 3806(f). The Commission inserted semicolons at the ends of subsection (a) and (b) and a period at the end of subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-103     Selected Announcement and Internal Posting of Job Vacancy

 

All vacant positions will be filled through transfer or promotion of internal MVA applicants or persons on any current MVA reemployment priority list before opening a vacancy announcement.

 

(a)        Former MVA employees on current and valid reemployment priority lists will be contact and advised of the job vacancy.

 

(b)        If there are no priority reemployment lists or no interested, qualified, or suitable reemployment applicants, the vacancy will be announced internally for five working days.

 

(c)        All reemployment or internal applicants must meet the qualifications for the vacant position and meet standards of suitability that may be established by the managing director.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “reemployment priority” in subsection (a), “priority reemployment” in subsection (b), and “internal” and “managing director” in subsection (c) pursuant to 1 CMC § 3806(f). The Commission inserted a period at the end of subsection (a) and a comma after the word “qualified” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-104     Competitive Hiring

 

All hiring shall be competitive and open to the public, except where specifically exempted. Candidates responding to a vacancy announcement will submit to MVA, by the designated time, their records of education, training, experience and such other information as requested in the announcement, to be evaluated and rated by the MVA administrative officer or other designated evaluator. The vacancy announcement shall stipulate the dates of opening and closing of the vacancy competition, the forms to be used for filing, and the address to which the forms and associated information shall be sent.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “experience” pursuant to 1 CMC § 3806(g).

 

§ 90-40-105     Non-competitive Hiring

 

Non-competitive hiring may occur when, in the judgment of the managing director, one of the following conditions or circumstances occur:

 

(a)        The position to be filled requires rare or special qualifications or training which do not permit competition;

 

(b)        There are a lesser number of qualified applicants than there are positions to be filled;

 

(c)        There is a need to place a former employee with reinstatement eligibility.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in the initial paragraph pursuant to 1 CMC § 3806(f).

 

§ 90-40-106     Vacancy Announcements

 

Vacancy announcements shall contain, as a minimum, the following information:

 

(a)        Class title, pay and pay level of the position;

 

(b)        Brief description of the duties and responsibilities;

 

(c)        Geographical and organizational location of the position;

 

(d)       Minimum bona fide occupational qualifications for the position to include general experience, specialized experience, and such qualitative evaluation elements as may be deemed appropriate and necessary;

 

(e)        Instructions on how to apply for the vacancy, including place or mailing address to apply, form of application required, and documentary support required; and

 

(f)        Period of the announcement. All announcements shall initially be for fifteen calendar days. This period may be extended by the managing director, if the response has been inadequate, by re-announcing the vacancy in the same manner as the original announcement.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “experience” in subsection (d) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “managing director” in subsection (f) pursuant to 1 CMC § 3806(f).

 

§ 90-40-107     Publicity

 

Optimum publicity shall be given to vacancy announcements through posting in the MVA office, on the MVA website, the CNMI Department of Labor job vacancy website, and at such other places as may be selected by the administrative officer (e.g., official bulletin boards in offices or work places, or public announcements through the news media).

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “office” and “administrative officer” pursuant to 1 CMC § 3806(f).

 

§ 90-40-108     Applications for Vacancies

 

(a)        Applications for vacancies shall be made on forms prescribed by the MVA. Proper completion of applications and submission of supplemental information shall be accomplished in accordance with the instructions on the vacancy announcement and established procedures.

 

(b)        Applications shall be signed and such signature shall certify to the truth of all statements contained therein. A knowingly false answer or statement shall be grounds for denying consideration or for disciplinary action if the applicant is a current MVA employee.

 

(c)        Applications for specific positions shall be accepted only during the period specified on the examination announcement. Applications submitted by mail shall be postmarked no later than the announced closing date. Late applications will not be accepted unless approved by the Managing Director because of unusual circumstances.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (c) pursuant to 1 CMC § 3806(f). The Commission inserted a period at the end of subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-109     Disqualification of Applicants

 

The administrative officer may deny consideration of an applicant for failure to meet the requirements for the position. Applicants who do not meet the minimum qualifications shall be notified as soon as practical. If an applicant is disqualified following initial designation as eligible, the applicant’s name shall be removed from the list of eligible applicants.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” pursuant to 1 CMC § 3806(f).

 

§ 90-40-110     Establishment of List of Eligible Applicants

 

(a)        Following the ending of a vacancy announcement, the administrative officer shall review all applicants based upon their qualifications relative to the requirements of the announced position. Those applicants who meet the minimum qualifications for the position shall be rated based upon their qualifications and ranked according to their relative standing.

 

(b)        In the event a list of eligibles for any position contains less than five names and the managing director deems the range of choice to be inadequate, the administrative officer shall announce a new examination.

 

(c)        An open competitive list of eligible applicants shall be created only after it has been determined that no qualified and suitable internal or reemployment candidate is available.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsection (a) and (b) and “managing director” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-111     Removal of Names from Lists of Eligible Applicants

 

The administrative officer may remove the name of any person who has been disqualified under any provision of part 100. The name of any person may also be removed if:

 

(a)        The eligible applicant fails to respond within ten calendar days from the mailing or e-mailing date of an inquiry as to availability for employment, or from the date of actual personal contact, provided that the name may be restored for reasons deemed sufficient by the managing director.

 

(b)        The eligible applicant voluntarily withdraws.

 

(c)        There is evidence of physical or mental inability to perform the duties of the position, as indicated by appropriate medical examination.

 

(d)       The eligible applicant is found to be no longer qualified to perform the duties required of the class of position.

 

(e)        Intentional false statements, deception, or fraud is determined to have occurred in the application or in the interview process by the applicant or any other person involved in the application or selection process.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d). The Commission corrected the capitalization of the words “administrative officer” in the initial paragraph and “managing director” in subsection (a) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “deception” in subsection (e) pursuant to 1 CMC § 3806(g).

 

§ 90-40-112     Selection from Eligible Applicant Lists

 

(a)        Appointments and promotions in the MVA shall be made from certified eligible lists resulting from open competitive vacancy announcement, except as otherwise provided by part 100. The list of certified eligible candidates will be prepared for the managing director by the administrative officer from among the highest rated applicants in precise numerical order, highest rate first. Where the number of eligible applicants exceeds five names, only the top five names shall be certified. The managing director shall be provided a certified list of the top five eligible applicants for each vacancy. However, when less than five persons comprise a list of eligible applicants, the appointing authority may accept such lesser number or request the vacancy be re-announced in order to obtain at least five eligible applicants. If more than one position of the same classification must be filled, the number of certified applicants on the list shall be increased by one eligible for each additional position to be filled, where possible.

 

(b)        Where the position has a special requirement which is not a general qualification requirement for that class of position, the administrative officer will certify only those eligible applicants who meet that specific requirement.

 

(c)        Only the top five certified applicants will be eligible for job interviews, except in those cases where additional applicants are added to the list of certified eligible applicants.

 

(d)       The managing director shall justify, in writing, for the MVA’s administrative records, the non-selection of any eligible with a higher rating than the candidate selected. Such requirement creates no special standing for the applicant(s) with a higher rating.

 

(e)        If no applicant on the list of certified eligible applicants is determined by the managing director to be suitable for the position, a second listing of the next five highest ranked applicants will be provided for job interviews. The managing director will justify the non-selection as provided in subsection (c). If necessary, the vacancy will be re-announced.

 

(f)        The selected applicant will be notified in writing of his or her selection and when to report for work. All employment will be contingent upon the receipt of a negative result of a pre-employment drug screening that will be arranged for the employee by the administrative officer.

 

(g)        No person shall report to work or receive a salary unless an appropriate personnel action has been approved by the managing director.

 

(h)        The job offer will be withdrawn if the selected applicant fails to report for duty within the time prescribed by the managing director.

 

(i)         All non-selected applicants, whether on the certified listing of applicants or not, will be notified of their non-selection.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsection (a), (b), and (f), and “managing director” in subsections (a), (d), (e), (g), and (h) pursuant to 1 CMC § 3806(f).

 

§ 90-40-113     Duration of Lists of Eligible Applicants

 

(a)        The validity of a certified list of eligible applicants expires upon the hiring of the selected applicant. All applications and supporting documents will be maintained for one year from that date. This retention is required by various federal laws. Any original documents provided by the applicant may be returned upon request with a copy retained.

 

(b)        The MVA has no obligation to place any applicant on any subsequent list of eligible applicants without the applicant reapplying and meeting all requirements for application.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-114     Reemployment Priority List

 

Any person who has held a permanent position in the MVA and has been demoted or terminated through reduction-in-force shall be permitted to have his/her name placed on a reemployment priority list (provided such person so requests in writing to the managing director). The name of such person shall be placed on the reemployment priority list for the same or related class of position as last held under a permanent appointment. Names shall be arranged on the reemployment priority list in the chronological order of their separation from their respective competitive levels. Names shall be removed from the reemployment priority list at the expiration of three years from the date of separation or demotion, or sooner if such person is reemployed in a position at the same or higher pay level as formerly held in the MVA. The individual may be removed from the list if such person refuses a reasonable offer of employment. A reasonable offer is of the same position or one equivalent to that last held in the MVA. Reemployment priority only applies to former MVA employees who held a permanent classification and does not apply to former contracted or appointed employees.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” and “priority” pursuant to 1 CMC § 3806(f).

 

Subpart B -    Positions and Appointments

 

§ 90-40-120     Types of Positions

 

All positions within MVA shall be identified by one of the following designations and as defined herein.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-121     Permanent Position

 

A permanent position is a full-time or part-time position which is established based upon the continuing need of the MVA and which is authorized to continue longer than one year.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-122     Temporary Position

 

A temporary position is a full-time or part-time position which is established based upon a short term program or project need of the MVA which is authorized to continue less than one year.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-123     Types of Appointments

 

Appointments are categories of employment in the classes defined in the following that will fill established permanent or temporary positions:

 

(a)        MVA Board of Directors Appointment. The managing director of the MVA will be appointed by and serve at the pleasure of the MVA Board of Directors. Benefits and conditions of employment will be as approved by the MVA Board of Directors and as otherwise authorized or limited by statute. The policies, processes, and protections afforded by these regulations do not apply to a MVA Board of Directors appointed position.

 

(b)        Contracted Appointment. Key positions within the MVA, to include the deputy managing director, the special assistant to the managing director, section managers and the roads and grounds maintenance managers will be employed on contracts, not exceed* two years in duration. Benefits and conditions of employment will be as provided in the contracted terms and conditions of employment and as otherwise authorized or limited by statute. The policies, processes, and protections afforded by these regulations do not apply to contracted appointees except as included in the contracted terms and conditions of employment.

 

* So in original.

 

(c)        Probationary Appointment. This is an appointment in which the appointee is selected from a list of eligible applicants resulting from an open vacancy announcement to fill a permanent position. The appointee shall serve a period of not less than six and not more than twelve months from the beginning of the probationary appointment and shall demonstrate a minimum of 26 consecutive weeks of satisfactory performance before being eligible for conversion to a permanent appointment. Separations during a probationary appointment do not require adverse action procedures and have no reduction-in-force (RIF) protection.

 

(d)       Permanent Appointment. An employee who has been appointed to a permanent position and who has satisfactorily completed a probationary period is entitled to the full benefits of this regulation. Permanent appointments may be made to less than full-time positions with defined regular work schedules.

 

(e)        Limited-term Appointment. A limited-term appointment is one in which the appointee is appointed to a temporary position for a period of not more than one year. An employee serving a limited-term may serve in either a full-time or part-time position. Any person given a limited-term appointment must meet the minimum qualifications for the class of position to which appointed and hired through the selection process established in this regulation. If job circumstances require the continuation of a temporary appointment, the managing director shall justify, in writing, to the Personnel Committee, the need for a second continuing limited-term appointment following the expiration of a one year appointment. A limited-term appointment may not be extended more than one time, but may be converted to a permanent appointment at the end of one year or later, if a permanent need has been determined for the position. To retain the incumbent employee, the employee must have demonstrated 52 consecutive weeks of satisfactory performance.

 

(f)        Provisional Appointment. A provisional appointment is usually limited to ninety days and is used to fill an immediate need in a permanent position in the absence of an appropriate listing of eligible applicants. The managing director may authorize extension of a provisional appointment beyond ninety days for a maximum of one hundred eighty days when the job vacancy announcement fails to make available an adequate number of qualified candidates. Any person given a provisional appointment must meet the minimum qualifications for the class of position to which appointed.

 

(g)        “Acting” Appointment.

(1)        An “acting” appointment is the official written designation that an employee will act for a period of up to thirty days in place of a higher-level position. When the absence exceeds the initial thirty day period, a new designation shall be made for an additional thirty days. The thirty day renewal of an “acting” assignment may be repeated until the incumbent returns to the position.

(2)        Whenever the “acting” assignment exceeds ninety days, the employee shall be temporarily promoted/ appointed to the position if the employee meets the qualifications standards of the position. See section 90-40-330.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d). The Commission corrected the designation of subsections (d) through (g) pursuant to 1 CMC § 3806(a). The Commission corrected the capitalization of the words “managing director” in subsections (a), (b), (e), and (f), and “deputy,” “special assistant,” “section managers,” “roads and grounds maintenance managers,” “contracts,” and “contracted appointees” in subsection (b) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the word “process” in subsection (a) and (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-124     Pre-employment Condition Standards

 

(a)        All persons appointed to positions in the MVA must be mentally and physically capable of performing the duties of the position. Medical examinations or disability-related questions such as a medical questionnaire cannot be utilized until after a conditional job offer has been made to an applicant. A medical exam is defined as a procedure or test that seeks information about an individual’s physical or mental impairments or health. Employment can be conditioned on the results of post-offer medical exams or disability-related questions if the criteria examined relate directly to the employee’s capability of performing the essential functions of the position. If medical exams or disability-related questions are required, they must be required of all entering employees in the same job class. Exams cannot be required, or medical-related inquiries made, of some applicants and not others.

 

(b)        Persons offered positions within the MVA must submit to a pre-employment urine test for the presence of drugs. Pre-employment drug tests are not considered to be medical examinations as defined in this section.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-125     Administration of Medical Examinations

 

Medical examinations and pre-employment drug testing shall be administered by medical personnel authorized by the MVA to conduct such examinations for employment purposes, and shall be recorded on forms prescribed by the MVA. Urine tests for candidates shall be conducted in accordance with established Commonwealth government procedures.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “government” pursuant to 1 CMC § 3806(f).

 

§ 90-40-126     Prohibited Actions

 

(a)        Employment of any person without an approved personnel action is prohibited. Supervisors or management officials who permit an employee to report to work without an appropriate and formally approved personnel action shall be held personally liable for any claim for compensation resulting from such improper appointment.

 

(b)        Retroactive personnel actions shall not be made unless approved by the Personnel Committee prior to commencement of such action.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-127     Reemployment

 

(a)        An employee who has successfully completed a probationary period with the MVA and subsequently left the employ of the MVA for any reason other than cause shall be granted reemployment eligibility for a period following the separation equal to the employee’s total full years of creditable service with the MVA. This means that the former employee may be reappointed noncompetitively to the former position, if vacant, in the MVA at the same pay level and step that the employee held upon separation. If re-appointed to a higher class the employee shall be allowed to retain the former pay rate; if to a lower class, the employee shall be allowed to retain the former step in the new pay level.

 

(b)        The possession of reemployment eligibility does not provide the person with any mandatory reemployment rights. This means that the individual may be considered for employment only after persons with higher rating on the reemployment priority list have been considered. If it is in the MVA’s interest and the position is vacant, such person may be reemployed, provided such person meets the non-competitive qualifications for the position to be filled.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-128     Orientation

 

New employees shall receive a standardized orientation to the MVA as soon as is practical after being appointed, and at least within one week of appointment.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Subpart C -    Merit Promotion Program

 

§ 90-40-140     Policy

 

To the maximum extent possible, the MVA Merit Promotion Program (MPP) provides for filling vacancies above the entry level by promotion of highly qualified existing MVA employees. This policy does not restrict the right of MVA to fill vacancies by transfer or other means when to do so is in the best interest of the government. In such cases the MPP mandates the meritorious selection of the best qualified candidate.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-141     Definitions

 

(a)        “Position Change”: A promotion, transfer or demotion during an employee’s continuous service.

 

(b)        “Promotion”: The change of an employee to a higher position class and pay level.

 

(c)        “Career-ladder Position”: One of a group of positions in which an employee may be given successive promotions until the employee reaches the full performance level. All employees in positions in a career ladder must be given grade-building experience and training and may be promoted to the next higher level as they demonstrate ability to perform in a wholly adequate manner at the next higher level. Minimum time-in-grade requirements, where established, must be observed in making career ladder promotions.

 

(d)       “Promotion Competitive”: Those eligible candidates whose experience, training, and potential substantially exceed the qualification standard for the position to a degree that they are likely to perform in a superior manner.

 

(e)        “Best Qualified Candidates”: Those eligible candidates who rank at the top when compared with the other eligible candidates for a promotion within a general group, i.e., qualified or highly qualified.

 

(f)        “Position with Known Promotion Potential”: A position which is to be filled below the specified performance level for the position. These may be trainee and understudy positions, career ladder positions, and positions filled one or more levels below the established level.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted quotation marks around terms defined. The Commission inserted commas after the words “training” in subsection (d) and “positions” in subsection (f) pursuant to 1 CMC § 3806(g).

 

§ 90-40-142     Scope and Coverage

 

Competitive promotion procedures apply to:

 

(a)        All competitive positions in the MVA when filled by promotion.

 

(b)        Any position which will be filled by a candidate at a basic pay level higher than the candidate’s last position; and

(1)        The position is filled by transfer;

(2)        The position is filled by selection of a permanent MVA employee from an eligible list following an open competitive examination;

 

(c)        Any position with known promotion potential which is filled by transfer or selection from the reemployment priority list.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-143     Areas of Consideration

 

MVA’s areas of consideration for the Merit Promotion Program will be limited to MVA staff from any of its three locations. For positions opened to general consideration of non-MVA staff, candidates from all islands will be considered unless reasons exist in the MVA’s interest to limit the consideration to a certain area.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-144     Methods of Locating Candidates

 

When the MVA processes an open promotion request, it selects the appropriate method or combination of methods for locating. The following methods are generally used, singly or in combination, depending upon the nature of the position and availability of candidates.

 

(a)        Promotional Opportunity Announcement. A published announcement for posting and distribution and given maximum publicity within the area of consideration. The promotional opportunity announcement specifies:

(1)        Title, pay level and location of position(s);

(2)        Opening and closing dates (not less than fifteen calendar days);

(3)        Area of consideration;

(4)        Duties of the position, briefed;

(5)        Conditions of employment, e.g., night work, hazards, standby, etc.;

(6)        Qualification requirements, including selective placement factors, if any;

(7)        How and where to apply;

(8)        Non-discrimination statement; and

(9)        Known promotional potential, if any.

 

(b)        Restricted Area of Consideration. When positions are being filled from within a “restricted area of consideration,” all eligible persons within that area must be considered.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-145     Transfers

 

An employee may be transferred, without change in pay level, either voluntarily or involuntarily, in order to meet changing MVA program needs, to promote career development, to provide diversity of experience, or for other reasons. Transfers under this regulation are not subject to the promotion program unless the position to which transferred has known promotion potential. Transfers are made, wherever possible, from among employees who have requested such transfers. However, management may direct lateral transfers when required by the needs of MVA and in accordance with these regulations.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-146     Qualification Standards

 

(a)        The minimum qualification standards prescribed by the MVA are used for promotion and recruitment purposes. Selective placement factors also may be used, but only when they are essential to successful performance in the position to be filled. When selective placement factors are used, they become part of the minimum qualifications for the position.

 

(b)        Qualification standards (including any selective placement factors used) must be established and made a matter of record prior to the start of the promotion process for any specific position. All employees who meet the minimum qualification standards (including selective placement factors) have basic eligibility for promotion. The standards must be applied fairly and consistently to all employees being considered.

 

(c)        For supervisory positions, supervisory qualifications are prescribed by the MVA. They may be supplemented by specific subject matter (non-supervisory) qualification standards for the classification series of the position.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-147     Conditions of Employment

 

(a)        There are conditions of employment which are considered implicit to successful performance in certain positions. These conditions may relate to hours of work, physical or medical standards, maintenance of a license, maintenance of a health standard, availability during off-hours, frequent need to travel and so on. Such conditions should be made part of the promotion record, the promotion opportunity announcement and the classification standard or, as a minimum, the position description.

 

(b)        Candidates selected for the position must be advised of the conditions and acknowledge those conditions in writing. However, with respect to physical or medical standards, if a candidate claims a disability under the federal Americans with Disabilities Act (ADA), the provisions of that act shall be followed, as applicable.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-148     Evaluation Process

 

(a)        Since the Merit Promotion Policy requires that the selection be made from among the best qualified candidates, the evaluation process must go beyond basic eligibility to rank the candidates in meaningful array. When·properly used, the evaluation process should:

(1)        Provide a sound basis for comparing and judging candidates in relation to the knowledge, skills, abilities, and personal characteristics that contribute to successful performance of the position.

(2)        Identify those qualities which demonstrate a candidate’s potential for future promotion, when the job being filled leads to further advancement.

(3)        Distinguish between the knowledge and skills that an employee must have at the time of promotion and those the employee can acquire quickly after the promotion, through experience and training.

 

(b)        In selecting the proper method of evaluating candidates, recognition should be given to the future staffing needs of the organization as well as the current requirements of the positions to be filled.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “abilities” in subsection (a)(1) pursuant to 1 CMC § 3806(g).

 

§ 90-40-149     Evaluation Measures

 

The various measures for evaluating candidates are:

 

(a)        Written Tests. Written tests may be used in the evaluation process, but may not be the sole means of evaluation. Written tests must be approved by the Managing Director.

 

(b)        Appraisal of Performance. A supervisory appraisal must be obtained for every employee who is qualified.

 

(c)        Experience. In evaluating experience the objective is to determine how closely the experience relates to the new position or level of work. Length of service is a factor only when there is a clear and positive relationship with quality of performance.

 

(d)       Awards. In considering awards received by the candidates, the weight assigned must be based on those elements necessary to successful performance for the position to be filled.

 

(e)        Training. An appropriate weight is given for pertinent training, self-development, and outside activities which would increase the employee’s potential or effective performance in the position to be filled.

 

(f)        Education. Education may be considered only if it is clearly job-related or if it provides a measure of the learning ability essential for genuine trainee positions.

 

(g)        Qualifications Investigation. A qualification investigation may be used to assist in determining experience, training, degree of responsibility exercised and effectiveness. Inquiries may be made to assist in judging how well a candidate is likely to perform at a higher level or in a different kind of work.

 

(h)        Oral Interview. Individual or group interviews may be held. Oral questions may relate either to subject matter knowledge or to other matters pertinent to the position or the candidate. If oral questions are in the nature of a test, the same questions and sequence must be asked of each candidate and a record of their answers made part of the promotion record.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (a) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “self-development” in subsection (e) pursuant to 1 CMC § 3806(g).

 

§ 90-40-150     Selection Procedure

 

(a)        Selection is based on the selecting individual’s judgment of how well the candidate will perform in the position to be filled and the candidate’s potential for advancement. When there are less than five names available, the selecting manager is not required to select someone from the merit promotion certificate. However, if returning the certificate, the selecting authority must state how the position will be filled.

 

(b)        If the selecting manager disagrees with the merit promotion certificate, objections must be stated in writing with a request for the managing director to review rankings.

 

(c)        The selecting manager notes the name of the person selected on the merit promotion certificate. Reasons for selection do not have to be cited. The administrative officer notifies all eligible candidates of the selection, including the person selected.

 

(d)       When a first-line supervisory position is filled, a determination is made as to the amount of supervisory training needed to meet the standard. The selecting manager and the managing director will determine and, where necessary, schedule the training needed to meet the standard.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “manager” in subsections (a) through (d), “managing director” in subsections (b) and (d), and “administrative officer” in subsection (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-151     Information to Employees

 

(a)        Employees’ acceptance and support of the MVA promotion program depends to a large extent on how well they understand its purpose and operation and are aware of its effect on them individually. The program does not guarantee a promotion to every employee, but it does give every employee an opportunity for fair consideration.

 

(b)        New employees will receive promotion program information as part of their orientation. All employees will receive this information again from time to time in meetings and written form.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-152     Employee Questions and Complaints

 

(a)        Employee Questions. Any employee who has filed in response to a promotional opportunity announcement or who has been considered for promotion may present questions to the MVA administrative officer, within seven calendar days after receipt of notification of selection. Questions may be submitted in person, in writing, or through a representative. Among other considerations, an employee is entitled to know:

(1)        The level of eligibility for a specific promotion;

(2)        If considered for specific promotion and, if so, whether found eligible;

(3)        If in the group from which selection was made; and

(4)        Who was selected for the promotion.

 

(b)        Employee Complaints. If the employee is dissatisfied and the matter cannot be resolved on an informal basis, the employee may have recourse to the grievance procedure. Mere failure to be selected for promotion when proper promotion and selection procedures were used is not a basis for a formal complaint.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-153     Review of Promotion Program

 

The Personnel Committee appraises the operation of the Merit Promotion Program at least once a year as part of the personnel management evaluation process to assure:

 

(a)        Promotion guidelines and plans are as effective as possible;

 

(b)        The promotion program is useful to management;

 

(c)        Promotion actions are taken promptly and in conformance with the plan;

 

(d)       Employee complaints are handled promptly and properly;

 

(e)        Promotion actions are used effectively to encourage competent employees, to open expanded careers to them, and to make the best use of their skills; and

 

(f)        Employees, supervisors, and managers have a full understanding of the promotion program process.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “supervisors” in subsection (f) pursuant to 1 CMC § 3806(g).

 

Subpart D -    Separations, Suspensions, and Demotions

 

§ 90-40-160     General

 

This subpart applies to separations, suspensions, furloughs, and demotions not resulting from reduction-in-force (RIF).

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “furloughs” pursuant to 1 CMC § 3806(g).

 

§ 90-40-161     Separations Not Involving Personal Cause

 

(a)        Resignation.

(1)        Resignations shall be in writing and shall be submitted to their managers at least fourteen calendar days in advance of the effective date. Management employees should provide a minimum of thirty days notice.

(2)        The manager shall submit a copy of the written resignation to the administrative officer for processing of the action.

(3)        Withdrawal of a resignation may be permitted provided:

(i)         The employee’s wishes are made known, in writing, prior to the effective date; and

(ii)        The managing director agrees to the proposed withdrawal.

 

(b)        Retirement, Voluntary. An employee may be separated for the purpose of voluntary retirement, provided the employee meets the eligibility standards for age and service covered under the Northern Mariana Islands Retirement Program. A voluntary retirement shall follow the same notification process as a resignation.

 

(c)        Exit Interview. An exit interview shall be scheduled and conducted during working hours by the managing director or his/her designee for employees upon notice of resignation or retirement. Such interview shall include questions on the reasons for separation and counseling on benefits. The administrative officer shall not process exit documents until the interview is completed. If circumstances make such interview impractical, an employee may ask the managing director to waive this requirement.

 

(d)       Termination for Medical Reasons.

(1)        When an employee becomes mentally incapacitated or permanently physically disabled and is unable to satisfactorily perform the essential duties of the position to which assigned, the managing director may terminate the employment, provided:

(i)         No suitable reassignment can be made within the MVA to which the employee is assigned;

(ii)        Medical examination fitness-for-duty procedures have been conducted; and

(iii)       All adverse action procedures have been followed.

(2)        In all cases of termination for reasons of mental incapacity or physical disability, all provisions of the Americans with Disabilities Act (ADA) will be followed.

(3)        An employee whose services are terminated under this part may be eligible for disability retirement under the NMI retirement program. The responsibility for applying for disability retirement rests with the employee, although it is the responsibility of the administrative officer to ensure that the employee is aware of such an opportunity.

 

(e)        Voluntary Demotion. An employee may volunteer for demotion to a lower class of position at a lower pay level. The approval of such a request by the Managing Director must be contingent upon the following factors:

(1)        A vacant position in the class and pay level must be available within MVA.

(2)        The employee must meet the qualifications for the position at the level sought and be capable of fulfilling the duties required of the position.

(3)        No additional cost shall accrue to the MVA as a result of or incident to the demotion action.

(4)        The salary of the demoted employee in the lower level position shall be set at the same numerical step in the lower level position as the employee received in the higher position.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsections (a)(2), (c), and (d)(3), and “managing director” in subsections (a)(3)(ii), (c), (d)(1), and (e) pursuant to 1 CMC § 3806(f). The Commission inserted a period at the end of subsection (e)(1) pursuant to 1 CMC § 3806(g).

 

§ 90-40-162     Disciplinary Actions for Reasons of Personal Cause (Adverse Actions)

 

The MVA will utilize management measures to prevent ethical misbehavior and misconduct. Employees, at all levels, will be held accountable for their actions, and disciplinary actions will be used as deterrent and corrective measures to assist in attainment and maintenance of the high standards of ethical and conduct behavior set by the MVA. Disciplinary actions will be categorized as adverse action, where a tangible change to employment status occurs, and non-adverse action, where no tangible change occurs.

 

(a)        Authority to Take Adverse Action Disciplinary Measures. Unless specified by law, the authority to hire is followed by the authority to effect adverse actions. For this purpose, the designated official will be the managing director.

 

(b)        Authority to Take Disciplinary Measures. Unless otherwise restricted by the managing director, managers and supervisors are authorized to affect* non-adverse action disciplinary measures and to recommend adverse action disciplinary actions. Managers and supervisors will keep the managing director advised of performance and conduct problems.

 

* So in original.

 

(c)        Employee Coverage. This part applies to all permanent employees of the MVA but does not apply to Board-appointed, contracted, or probationary employees, except where stated elsewhere in this regulation.

 

(d)       Merit of Disciplinary Action. An action against an employee should only be taken under this part for “such cause as will promote the efficiency and the mandates of the MVA.”

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “adverse action” and “non-adverse action” in the introductory paragraph and subsection (b), “managing director” in subsections (a) and (b), and “managers” and “supervisors” in subsection (b) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “contracted” in subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-163     Non-Adverse Action Disciplinary Measures

 

(a)        Verbal Admonishment. A verbal admonishment, in the form of a counseling or warning, is an informal disciplinary measure. A manager or supervisor may discuss at any time minor deficiencies in performance or conduct with the objective of improving an employee’s effectiveness. Verbal admonishments shall not be made a matter of record in the employee’s official personnel file (OPF).

 

(b)        Written Admonishment. A written admonishment, in the form of a counseling or warning, is also an informal disciplinary measure that normally occurs when minor deficiencies in performance or conduct reoccur after a Verbal admonishment or for a more serious deficiency or incident. Written admonishments will be maintained as a matter of record in the employee’s OPF.

 

(c)        Reprimand. A reprimand is a formal means of calling to an employee’s attention minor deficiencies in performance or conduct which, if continued, may result in further disciplinary measures. It is the first formal step in the disciplinary process. Reprimands are always in writing and should contain specific references to performance deficiencies, citations of instances of misconduct, and a warning that more stern disciplinary measures may be taken if the employee’s performance or conduct is not improved. A copy of the reprimand becomes a part of the employee’s OPF as a matter of record. There is no recourse to formal appeal processes as a result of a reprimand; however, an employee who feels a reprimand is not justified may resort to the grievance procedure.

 

(d)       Suspension Not to Exceed Three Working Days.

(1)        A suspension is an action placing an employee in a non-duty and non-pay status for disciplinary reasons for a period not to exceed three working days. There is no formal appeal from such a suspension, although the employee may resort to the grievance procedure if the employee feels the suspension is improper or not justified.

(2)        A suspension without pay for periods less than five working days shall only be imposed in respect to an employee who is covered by the overtime provisions of the Fair Labor Standards Act (FLSA). An employee who is exempt from the overtime provisions of the Fair Labor Standard Act (FLSA) must receive suspensions without pay in periods of a full five working days, except in situations of misconduct, defined by the FLSA as serious safety or work rule infractions, where a lesser period may be permitted by the FLSA. The period of suspension for an exempt employee for attendance or performance matters shall be served in five working day periods on consecutive days and for entire workweeks.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “admonishment” in subsection (a) and (b), “official personnel file” in subsection (a), and “admonishments” in subsection (b) pursuant to 1 CMC § 3806(f). The paragraphs of subsection (d) were undesignated in the original regulation. The Commission designated them as subsections (d)(1) and (d)(2) pursuant to 1 CMC § 3806(a).

 

§ 90-40-164     Adverse Action Disciplinary Measures

 

Adverse action disciplinary measures require the use of the adverse action notification and resolution procedure.

 

(a)        Furlough. A furlough is an action placing an employee in a non-duty and non-pay status because of lack of work or funds. It is an adverse action if for a period of thirty calendar days or less. Furloughs of more than thirty calendar days are reduction-in-force actions and shall be accomplished using reduction-in-force procedures.

 

(b)        Suspension for More than Three Working Days. A suspension is an action placing an employee in a non-duty and non-pay status for disciplinary reasons. The managing director may suspend an employee for such cause as will promote the efficiency of the government service, provided all adverse action procedures are followed.

 

(c)        Removals. Appointing authorities may take removal action against an employee for just cause provided all adverse action procedures are followed.

 

(d)       Removal for Abandonment of Job.

(1)        An employee absent without leave (AWOL) without valid reason, for a combined total of ten working days in any twelve month period may be terminated from employment for job abandonment, provided all adverse action procedures are followed.

(2)        An employee absent without leave (AWOL) without valid reason, for ten consecutive working days may be considered, in effect, a resignation. Adverse action procedures will not be required. The managing director may elect not to effect such termination, however, if it is determined that circumstances warrant such cancellation. Nothing in this section shall preclude the Managing Director from taking other disciplinary action against an employee for absence without leave.

 

(e)        Demotion/Reduction in Rank or Pay. Appointing authorities may take action to reduce an employee in rank or pay for cause.

(1)        “Reduction in rank” means a reduction in status of more than one numerical grade or pay level under the classification system. Basically, it means lowering an employee’s relative standing in the organizational structure as determined by the employee's official position description. An employee’s position assignment may be changed only by an official personnel action. When an employee is made the subject of an official personnel action which results in lowering the employee’s relative standing in the organizational structure, a reduction in rank has occurred even though there has not been a reduction in class or pay level. Such actions may be taken only under adverse action procedures.

(2)        “Reduction in pay” means reduction in basic class and pay level of an employee. The base pay is fixed by law or administrative action. Base pay does not ordinarily encompass extra or additional payment for special conditions or duties which are generally regarded as premium pay or allowances. To reduce class and pay level for disciplinary reasons, such actions must follow adverse action procedures.

 

(f)        Separation during Probation

(1)        If it becomes evident during the probationary period that the employee lacks the ability, attitude, or desire to become an efficient and productive employee in the position to which appointed, or there is lack of funds or work to be done, that employee shall be separated from the service. However, if the probationary employee claims that the apparent lack of ability, attitude, or desire is due to a disability under the Americans with Disabilities Act (ADA), the provisions of that act shall be followed, as applicable.

(2)        The managing director shall provide the employee with not less than fourteen calendar days’ notice, in writing, specifying the reasons for the separation.

(3)        Grievance, adverse action, or reduction-in-force procedures do not apply to separations during probation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “adverse action” in the introductory paragraph and subsection (d)(2) and “managing director” in the introductory paragraph and subsections (d)(2) and (f)(2) pursuant to 1 CMC § 3806(f). The Commission inserted a period at the end of subsection (d)(2) pursuant to 1 CMC § 3806(g). The Commission inserted commas after the words “attitude” in subsection (f)(1) and “action” in subsection (f)(3) pursuant to 1 CMC § 3806(g).

 

§ 90-40-165     Procedure for Taking Adverse Actions

 

The managing director must observe certain procedural requirements when processing adverse actions covered in this subpart. Procedures for removal, suspension for more than three working days, furlough without pay and reduction in rank or pay are as follow:

 

(a)        The managing director must give the employee at least thirty days’ advance written notice of the proposed action. In the event that criminal charges are filed against an employee, the employee may be immediately suspended without pay, reassigned, allowed to take annual leave, or be subject to such other action as management may deem necessary. In the event the charges are dismissed or the employee is found not guilty, the employee may be reinstated with benefits and pay but will not receive retroactive payment or reimbursement for any leave taken.

 

(b)        The notice must state any and all reasons for the proposed action specifically and in detail.

 

(c)        The employee has the right to answer personally and/or in writing. The employee shall be allowed not more than twenty days to answer the notice of proposed action. Three work days within the allowed twenty days shall be official time in which to secure affidavits and prepare an answer.

 

(d)       If the employee answers, the managing director must consider that answer.

 

(e)        If at all practicable, the employee must be kept on active duty in the regular position during the notice period. Based upon the circumstances, however, the employee may be suspended during the advance notice period and placed on leave without pay (LWOP) or, with the employee’s consent, carried on annual leave. An employee whose adverse action is drug-related as prohibited by part 400, subpart C, of this chapter will

not be permitted to perform any safety-sensitive functions during the notice period.

 

(f)        Management must give the employee a written decision before the adverse action is effected. The decision must state which of the reasons in the advance notice have been found sustained and which have been found not sustained.

 

(g)        The decision must tell the employee of appeal rights.

 

(h)        Advance written notice and opportunity to answer are not necessary if the employee is furloughed due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or emergencies requiring curtailment of activities.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d). The Commission corrected the capitalization of the words “managing director” in the introductory paragraph and subsections (a) and (d) and “three” in subsection (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-166     Summary of Steps for Taking Adverse Actions

 

(a)        Misconduct triggering use of the adverse action procedural system

 

(b)        Managing director’s letter of proposed adverse action

 

(c)        Employee’s answer and/or presentation of evidence

 

(d)       Managing director’s letter of decision

 

(e)        Employee’s written appeal to Personnel Service Committee

 

(f)        Personnel Service Committee hearing (if requested)

 

(g)        Personnel Service Committee decision (administrative remedies exhausted at this point)

 

(h)        Legal recourses

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsections (b) and (d) pursuant to 1 CMC § 3806(f).

 

Subpart E -    Reduction-in-Force (RIF)

 

§ 90-40-170     General

 

A reduction-in-force, defined as the separation, furlough or reduction in class, pay level or hours of work of employees due to lack of work or funds, or other management requirements, but not for disciplinary reasons. The managing director will exhaust all administrative alternatives to resolve the necessitating cause before reduction-in-force procedures are instituted. Adverse action procedures must be used to place an employee in furlough status for thirty days or less.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “reduction-in-force” and “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-171     Policy

 

The MVA, within its available resources, will provide job security to every permanent employee. When it becomes necessary to reduce the work force, every effort will be made to insure that the reduction is accomplished with a minimum disruption in operations and a minimum negative impact on each employee affected.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-172     Coverage

 

This subpart applies to all permanent employees of the MVA, as defined in this chapter. Appointed and contracted employees are not covered by this policy.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 90-40-173     Reduction-in-Force Planning

 

When it becomes evident that a reduction-in-force (RIF) must be implemented, the managing director concerned shall notify the Board of Directors and the Governor of the necessity and provide all employees with written notice of MVA’s intention to take RIF action at least sixty days in advance. The appointing authority shall then institute administrative procedures to assure that all legitimate possibilities for reassignment elsewhere in the government have been exhausted and that formal reduction-in-force is the only remaining alternative.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-174     Competitive Processes

 

Detailed competitive processes shall be established by the managing director to assure equitable competition, recognition of seniority and tenure and protection of the public interest. For administrative purposes, competition shall be limited by the establishment of competitive areas and recognition of competitive levels.

 

(a)        Competitive Areas. For all positions:

(1)        Area 1. Saipan

(2)        Area 2. Rota

(3)        Area 3. Tinian

 

(b)        Competitive Levels. Competitive levels are comprised of all positions within a competitive area which consist of the same or closely related duties, have essentially the same qualifications, and are in the same class and pay level.

 

(c)        Tenure Groups. For the purposes of reduction-in-force, MVA employees shall be classed in tenure groups as follows:

(1)        Tenure Group I - All permanent employees.

(2)        Tenure Group II - Employees serving in a probationary appointment.

(3)        Tenure Group III - Employees serving in limited term or provisional appointments.

 

(d)       Competition within a Competitive Level.

(1)        When a position is abolished within a competitive level, the incumbent shall displace the employee with the lowest retention standing in that competitive level. Employees in tenure groups III and II in any competitive level will be separated from employment in that order before the separation of any permanent employee in tenure group I.

(2)        If an employee whose position is abolished does not have sufficient retention standing to displace another employee, that employee shall be allowed to exercise retreat rights.

 

(e)        Retreat Rights. When an employee has insufficient retention standing to compete within that employee’s competitive level, the employee shall compete down the line of promotion. This is known as the exercise of retreat rights. An employee may displace the employee with the lowest retention standing below that of the released employee in the highest competitive level from which promoted. The employee shall continue to compete at successively lower levels along the line of promotion until placed or, if placement cannot be made, separated by reduction-in-force.

 

(f)        Creditable Service for Reduction-in-Force. Only the period of service worked with MVA will count as creditable service in the calculation of the retention standing.

 

(g)        Retention Standing. Retention standing is derived by allotting one point for each year of creditable service, and an additional two points for each exceptional overall rating of 4.2 or better. Missing performance evaluations cannot be made up. In competing with other employees for retention in a competitive level, the individual with lowest retention standing shall be released first.

 

(h)        Reemployment Priority Lists. Employees serving under permanent appointments who are separated by reduction-in-force shall be placed on a reemployment priority list for three years or until returned to duty in a permanent position with MVA at any level.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in the introductory paragraph, “tenure group,” “competitive level,” and “tenure groups” in subsection (d)(1), and “Reduction-in-Force” in subsection (f) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “qualification” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-175     Limitations on Competition

 

Employees who are absent on military leave shall not be placed in RIF competition until they have returned to duty. Similarly, the employee’s positions shall not be abolished until the employee returns to duty in that position. The administrative officer will keep a record that will assure recognition and protection of the position and its incumbent.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” pursuant to 1 CMC § 3806(f).

 

§ 90-40-176     Furlough and Separation

 

(a)        The managing director may use furloughs for more than thirty days if there is reasonable assurance that the employees furloughed will be returned to duty within the next twelve months. If there is reasonable doubt regarding the return to duty of furloughed employees, then the appointing authorities concerned must separate the employees found to be in excess of management’s needs and proceed according to reduction-in-force procedures.

 

(b)        A combination of furlough and separation may be used to clear the rolls of excess employees, provided no employee is separated while furloughed employees with lower retention standing are kept in furlough status.

 

(c)        Furlough for thirty days or less may be used for clearing the rolls temporarily, not to exceed thirty days when there is positive assurance that employees so furloughed can return to duty within the 30-day period.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (a) pursuant to 1 CMC § 3806(f).

 

§ 90-40-177     Vacant Positions

 

During reduction-in-force situations, management has no obligation to fill vacant positions by placement of employees whose positions have been abolished or who have been released from their competitive level.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-178     Assignment Rights (Bumping)

 

(a)        Due to the specific nature of the MVA sections, retreat rights are limited to within the employee’s section. Assignment rights (bumping) will not be authorized between sections.

 

(b)        Reduction-in-force activities within MVA will affect MVA employees only. Service within MVA will not provide a separated employee with bumping rights elsewhere in the government. Similarly, MVA will not recognize bumping rights from separated employees who worked outside of MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “Reduction-in-force” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-179     Elimination of Function

 

(a)        Function defined. For the purpose of this subchapter function means all, or a clearly identifiable segment, of an entity’s mission and the integral parts of that mission, regardless of how performed.

 

(b)        Reduction-in-Force. The elimination of a function is a reduction-in-force action based upon the work no longer being required. The reduction-in-force procedures and protections in this section* of the regulation apply.

 

* So in original.

 

(c)        Employees with retreat rights may exercise those rights.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “regulation” in subsection (b) pursuant to 1 CMC § 3806(f).

 

Part 300 -       Employment Processes

 

Subpart A -    Employee Grievances

 

§ 90-40-201     Policy

 

The MVA, in accordance with the principles of good management, recognizes the importance of settling employee-management disagreements and misunderstandings promptly, fairly, and in ways that will resolve the issue and maintain the self-respect of both the employee and the management staff. To accomplish this, every effort will be made to settle grievances expeditiously and at the lowest possible level of supervision.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “fairly” pursuant to 1 CMC § 3806(g).

 

§ 90-40-205     Coverage

 

This policy will apply to all MVA employees expressing their concern or dissatisfaction with work-related issues that are not otherwise excluded by this chapter.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted the word “chapter” for “regulation” pursuant to 1 CMC § 3806(d).

 

§ 90-40-210     Matters Not Covered

 

The grievance system will not cover the following:

 

(a)        An adverse action separately appealed;

 

(b)        A fitness-for-duty examination;

 

(c)        The content of published MVA or other government policy;

 

(d)       Non-selection for appointment, promotion, or transfer from a group of properly ranked and certified candidates;

 

(e)        Non-recommendation or disapproval of a merit increase, performance award, or other kind of honorary discretionary award; and

 

(f)        An employee who is serving on probationary status.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-215     Freedom from Restraint

 

Employees seeking adjudication of their grievances in a reasonable manner and in accordance with this regulation will be unimpeded and free from restraint, interference, coercion, discrimination, or retaliation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “discrimination” pursuant to 1 CMC § 3806(g).

 

§ 90-40-220     Employee’s Right to Representation

 

The MVA recognizes that grievances are personal in nature and that aggrieved employees or groups of employees must have the right in presenting their grievances to be accompanied, represented, and advised by representatives of their own choosing. Therefore, in the formal grievance process, as hereinafter defined, the employee or group of employees have the right to be represented by counsel or other representative of their own choosing at their own discretion. If the employee or group of employees chooses to serve as their own representative or to designate a member of the aggrieved group as spokes-person, they may do so.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “represented” pursuant to 1 CMC § 3806(g).

 

§ 90-40-225     Role of the Personnel Committee

 

The MVA Personnel Committee serves as the ultimate appellate level for grievances of employees or groups of employees. It shall consider only those formal grievances which cannot be settled to the satisfaction of all concerned in accordance with the formal procedure defined in part 200.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted “in part 200” for “this Part of the regulation” pursuant to 1 CMC § 3806(d).

 

§ 90-40-230     Employee’s Right to Seek Advice

 

Sometimes an employee has a valid reason for not taking a grievance to the immediate supervisor. The grievance system, therefore, provides opportunity for an employee to communicate informally with and seek advice from the administrative officer and/or a supervisory or management official of higher rank than the employee’s immediate supervisor.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” pursuant to 1 CMC § 3806(f).

 

§ 90-40-235     Informal Grievance Procedure

 

(a)        The grievance action shall first be initiated by the aggrieved employee who will discuss the problem informally with the supervisor, of if the employee feels the relationship with the immediate supervisor is such that the matter cannot be reasonably discussed, the employee may discuss it with the next level of supervision.

 

(b)        A grievance concerning a particular act or occurrence must be presented within ten calendar days of the date of the act or occurrence or the date the aggrieved employee became aware of the act or occurrence.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-240     Formal Grievance Procedure

 

(a)        If the grievance is not settled within five calendar days, or if the employee is not satisfied with the decision of the immediate supervisor, the employee or representative may, within the next ten calendar days, put the grievance in writing and submit it to the managing director as a formal grievance. The written representation must contain the following information:

(1)        The name of the aggrieved employee and the employee's work section;

(2)        The details of the grievance;

(3)        The corrective action desired; and

(4)        The name of the employee’s representative, if any.

 

(b)        The managing director will examine the grievance, discuss it with the grievant or representative, and render a decision, in writing, within fourteen calendar days after receiving the grievance. The managing director may have the employee’s immediate supervisor present, if he or she deems it appropriate to the resolution of the grievance.

 

(c)        If the managing director is not successful in settling the grievance to the employee’s satisfaction within fourteen calendar days after the grievance was presented to managing director in writing, the employee may, within fifteen calendar days after receiving written notification of the decision or the failure of the managing director to provide a decision, resubmit the grievance to the MVA Personnel Committee.

 

(d)       If the grievance is against the managing director, the employee may, after attempting to informally resolve the issue with the managing director, formally submit the grievance to the Personnel Committee.

 

(e)        The MVA Personnel Committee shall set a time for its review of the case within a reasonable time after receiving a grievance. If the MVA Personnel Committee desires to have the grievance heard by a hearing officer, it must inform the aggrieved employee and representative as soon as possible.

 

(f)        In hearings before the MVA Personnel Committee or a hearing officer, the aggrieved employee and/or representative shall be allowed to appear and present the case. An appropriate management representative shall also be allowed to appear before the Committee. Both sides shall have the right to call witnesses in support of their positions and to cross-examine witnesses for the other side. The Committee or the hearing officer shall prepare a summary of the hearing. If both parties desire a formal, written record prepared by a recorder, the cost of such services shall be shared equally. If only one side desires a formal written record of the proceedings, that side shall bear the cost.

 

(g)        The MVA Personnel Committee shall reach a decision and present it formally to the aggrieved employee and the managing director within fifteen working days following the close of the formal hearing. Decision by the MVA Personnel Committee shall be made by a majority vote of the entire Committee and shall be final.

 

(h)        If the aggrieved employee is dissatisfied with the decision after having exhausted all administrative appeal levels, the employee has recourse to the courts.

 

(i)         The administrative officer shall be kept informed as to the progress of a formal grievance and is responsible for assuring that the time limits established in this procedure are met. The administrative officer is also responsible to assure that the formal record of the grievance is assembled into one place, stored, and safeguarded.

 

(j)         The administrative officer shall be the final custodian of all records of a grievance and is responsible for their proper storage and security.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsections (a), (b), (c), (d), and (g), and “administrative officer” in subsections (i) and (j) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “representative” in subsection (b) and “stored” in subsection (i) pursuant to 1 CMC § 3806(g).

 

Subpart B -    Employee Appeals

 

§ 90-40-245     General

 

This subpart establishes the MVA appeal process. Any employee of MVA may appeal, personally and/or in writing, a decision by MVA to take adverse action resulting from the disciplinary process, reduction-in-force procedures, or an “unsatisfactory” evaluation of performance.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “appeal” pursuant to 1 CMC § 3806(f).

 

§ 90-40-250     Rights of the Parties

 

In any appeal the appealing employee and MVA have certain rights. These include:

 

(a)        Right to a Hearing.

(1)        If an appeal is filed by an employee, both MVA and the employee will be entitled to a full and fair hearing before the Personnel Committee or a hearing officer designated by the Committee, to present evidence, and to be represented by counsel. At the hearing, although technical rules of evidence shall not apply, the testimony may be recorded, but will not be transcribed. Hearing minutes will be prepared and maintained. The Committee shall present its findings of fact and final decision in writing to all parties.

(2)        Only one hearing will be held, unless the Committee determines that unusual circumstances require a second hearing. Any evidence presented at the hearing must bear on the issue of whether the adverse action taken was justified and proper.

(3)        The Personnel Committee will decide whether or not a hearing is required for an appealed performance rating based upon the written appeal of the employee. Subsection (b) does not apply to performance rating appeals.

 

(b)        Denial of a Hearing.

(1)        The Committee may make the determination to deny a hearing on the appeal when a hearing is impractical by reason of extraordinary circumstance. In such cases the Committee will notify both parties in writing of the reason(s) for denying a hearing.

(2)        If the Committee determines that no hearing is reasonably possible, MVA and the employee will be notified to submit, in writing, any additional evidence they desire to present on the issues so that a decision can be made on the record presented.

 

(c)        Freedom from Reprisal or Interference.

(1)        The employee and the employee’s representative will be free to use the Appeal Process without restraint, interference, coercion, discrimination, or reprisal.

(2)        No employee, whether acting in an official capacity for the MVA or on any other basis, will be allowed to interfere with, or attempt to interfere with, another employee’s exercise of rights under this subpart. The spirit as well as the letter of the requirement must be enforced. In addition to abstaining from overt acts or interference, the official is prohibited from making any statement or taking any action that has the appearance of a threat, interference, or intimidation.

 

(d)       Employee Representation. Employees have the right to present an appeal without representation or to be accompanied, represented, and advised by a representative of their choice. Employees may change their representative, but must notify the Committee of the change, in writing. Employees may select other government employees as their representative, provided that such employees are willing to represent them and are not disqualified because of conflict of position or unavailability to serve in that capacity because of priority needs of, or unreasonable cost to, their employee agency, as determined by the desired representative’s appointing authority or management official. Employees are free to select their representative from outside the government service, but entirely at their own expense.

 

(e)        MVA Representation. MVA’s representative at a hearing will be the Managing Director or his or her designee, if the employee does not have an attorney-representative. MVA’s legal counsel or the Attorney General’s designee will represent MVA if the employee does have legal representation.

 

(f)        The Personnel Committee may retain an attorney or other professional to assist with legal, human resource management, or other necessary expertise.

 

(g)        Employee Entitled to Official Time to Prepare an Appeal.

(1)        An employees will be entitled to one day of official time-off as administrative leave to prepare the appeal, if the employee is otherwise in an active duty status. The employee’s work on the appeal will take place outside the MVA work premises.

(2)        If the employee’s representative is an employee of MVA, the representative will also be entitled to one day of official time to help prepare the appeal if otherwise in an active duty status.

(3)        Both the employee who is appealing and the employee who is acting as representative shall make arrangements with the administrative officer for the use of official time. Leave forms will be utilized.

(4)        If the representative is a government employee from another agency, it is the employee’s responsibility to determine if that agency will allow them time off to assist with the appeal.

(5)        If preparation requires more than one day off from work, the employee must request annual leave or unpaid time. If the appeal involves complicate issues that require extensive preparation time, the employee may request additional time, up to three additional days, from the Personnel Committee.

(6)        The employee may view and request copies of any documents being used to support the adverse action being appealed. These copies will be provided at the employee’s expense.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d). The Commission corrected the capitalization of the words “managing director” in subsection (e), “legal counsel” in subsection (e), and “administrative officer” in subsection (g)(3) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “evidence” in subsection (a)(1), “discrimination” in subsection (c)(1), “interference” in subsection (c)(2), “represented” in subsection (d), and “management” in subsection (f) pursuant to 1 CMC § 3806(g). The Commission corrected a comma at the end of subsection (g)(1) to a period pursuant to 1 CMC § 3806(g).

 

Part 300 -       Position Classification and Compensation

 

Subpart A -    Position Classification

 

§ 90-40-301     General

 

All positions subject to the provisions of the MVA Personnel Management System shall be classified in accordance with the approved MVA Position Classification Plan.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-302     Definitions

 

(a)        “Position Classification”: the process by which employment positions in an organization are identified, described and defined according to their duties and responsibilities, with like positions segregated into groups called “classes.” A systematic record is made of the classes found and a listing is made of the particular positions found to be of each class.

 

(b)        “Class”.

(1)        “Class” means one position or a group of positions sufficiently similar in respect to their duties, responsibilities, and authority that the same title may be used with clarity to designate each position allocated to the said class. The same standard qualifications may be required of all incumbents, the same test of fitness may be used to choose qualified employees, and the same schedule of compensation may be applied with equity under the same or substantially the same employment conditions of a given class; although sufficiently dissimilar from any position or any other group of positions to warrant exclusion from those groups of positions.

(2)        The class title assigned to a position in accordance with the Position Classification Plan shall be the official title and will be used for all personnel, budgetary, and financial purposes, and should be used for all position organization charts.

 

(c)        “Position”: the work, consisting of duties and responsibilities assigned by competent authority for performance by an employee.

 

(d)       “Position Classification Plan”: classes of positions arranged in a systematic order to reflect all of the kinds and levels of work utilized in the MVA Personnel Management System.

 

(e)        “Allocation”: the assignment of a position to its appropriate class on the basis of analysis of the duties and responsibilities of the position.

 

(f)        “Reallocation”: a position change resulting from a change of duties and responsibilities over a period of time, not a result of planned management decision and action.

 

(g)        “Reclassification”: change of a position or group of positions to a different class as a result of a change in assigned duties and responsibilities, classification standards, or as a result of correcting a classification error.

 

(h)        “Class Specification”: an official position classification plan document description of the general characteristics of a class, and includes the official class title, a detailed description of the scope of duties and responsibilities of the class, specific examples of work or typical duties performed, and a statement of the qualifications required to perform the work of the class.

 

(i)         “Occupational Group”: a major subdivision of a position classification plan, generally embracing several series of classes of positions in associated or related work specialties, professions or related activities. (For example, “Clerical and Machine Operation” and “Administrative, Management, and Allied” are occupational groups.)

 

(j)         “Series of Classes”: classes closely related as to occupational specialty but differing in level of difficulty, responsibility, and qualifications required. (For example, the three classes of Marketing Specialist I, Marketing Specialist II, and Marketing Specialist III taken together make up a series of classes.)

 

(k)        “Position Description”: a formal, official written statement by management which documents the description, assignment, or arrangement of the duties and responsibilities of a position.

 

(l)         “Desk Audit”: a formal review of a position to determine if the duties being performed are consistent with the job description and grade level assigned.

 

(m)       “Position Description”: document defining the duties, knowledge, skills, abilities, education, and experience requirements of the position.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “responsibilities” in subsection (b)(1), “budgetary” in subsection (b)(2), “performed” in subsection (b), “responsibility” and “Marketing Specialist II” in subsection (j), and “assignment” in subsection (k) pursuant to 1 CMC § 3806(g).

 

§ 90-40-304     Principles and Policy

 

(a)        The basic principles underlying the position classification system are:

(1)        Equal pay for equal level of responsibilities, qualification requirements, and difficulty in differing position’s assigned duties; and

(2)        Variations in pay in proportion to differences in difficulty, responsibility, and qualification requirements of the work.

 

(b)        The MVA Personnel Management System’s position classification program applies these principles in response to management’s expressed needs and in support of mission accomplishments. Changes in classification shall not be made for the purpose of raising or reducing pay, but only to reflect clear and significant changes in duties and responsibilities. Supervisors and managers are expected to organize the work of their organizations and structure the positions so that vacancies can be filled at the lowest level at which qualified applicants can be obtained.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “requirements” in subsection (a)(1) and “responsibility” in subsection (a)(2) pursuant to 1 CMC § 3806(g).

 

§ 90-40-306     Responsibilities

 

(a)        The Managing Director

(1)        Ensures the development of a classification program which supports management’s objectives, meets legal and regulatory requirements, and promotes participation by operating officials in the classification process.

(2)        Provides advice and assistance to management on the classification aspects of position structure needed to carry out the MVA mission.

(3)        Ensures the conduct of periodic reviews to evaluate the effectiveness of the classification program and directs corrective action where appropriate.

(4)        Approves new classification standards, revises existing standards as needed, seeks the advice and counsel of an experienced desk auditor, as needed.

(5)        Groups positions into classes on the basis of their similarities in duties, responsibilities, and other significant factors.

(6)        Assigns a title to each class which shall apply to all positions in the class; prescribes the characteristics of each class; and sets the standards for employment in any position in the class subsequent to consultation with the personnel committee and the appropriate management officials.

(7)        Changes a position from one class to another where substantial changes have occurred in the duties and responsibilities.

(8)        Determines the status of occupants of positions which have been changed from one class to another.

(9)        Delegates authority to the degree the managing director deems appropriate, including to the MVA administrative officer and other MVA management staff, to review and modify position descriptions which have been approved and allocated within the classification plan.

 

(b)        Managers and Supervisors

(1)        Plan, organize, develop, and assign duties and responsibilities to positions, whether occupied or vacant;

(2)        Consider the mission of the organization and structure positions for accomplishment of requirements in the most effective and economical manner possible;

(3)        Ensure that assigned duties and responsibilities do not duplicate or overlap those of other positions;

(4)        Assure that duties and responsibilities assigned to positions are completely and accurately described in position descriptions in full and sufficient detail for position classification and all related purposes;

(5)        Assist employees to accomplish the foregoing.

 

(c)        The Administrative Officer

(1)        Develops, prepares, maintains, and submits to the Managing Director, as required, factual and up-to-date functional statements and organizational position charts which clearly depict such information as assigned organizational and/or supervisory responsibility, organizational segment identification,

(2)        Develops and maintains listings of positions, employee names with official class titles and pay levels for the positions to which assigned, the title and pay levels of vacant positions which are funded and approved, and other similar essential details.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “responsibilities” in subsection (a)(5), “develop” in subsection (b)(1), and “maintains” in subsection (c)(1) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “managing director” and “administrative officer” in subsection (a)(9) pursuant to 1 CMC § 3806(f).

 

§ 90-40-308     Position Planning

 

Managers and supervisors are responsible for position planning. The supervisor analyzes the work to be accomplished, decides on work or production methods, and determines the requirements for supervision, special technical support, qualitative and quantitative controls, and review and evaluation. A well defined position has clearly defined operation, tasks, duties, authorities, responsibilities, and supervisory relationships.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “responsibilities” pursuant to 1 CMC § 3806(g).

 

Subpart B -    Compensation

 

§ 90-40-310     General

 

All employees of the MVA shall be compensated in accordance with Commonwealth laws. Classified employees shall be assigned salaries commensurate with similarly graded positions in the executive branch classification system and the provisions of this chapter. The MVA compensation plan shall follow the base salary schedule utilized by the executive branch of the Commonwealth government unless the MVA develops as* separate salary schedule, which is submitted to and approved by the Commonwealth legislature.

 

* So in original.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission changed the phrase “this regulation” to “this chapter” pursuant to 1 CMC § 3806(d). The Commission corrected the capitalization of the words “employees,” “executive branch,” “government,” and “legislature” pursuant to 1 CMC § 3806(f).

 

§ 90-40-312     Compensation Plan

 

The classes in the position classification plan, when assigned to appropriate pay levels of the base salary schedule as established, shall constitute the basic compensation plan. The managing director shall assign all classes in the position classification plan to appropriate pay levels in the base salary schedule in accordance with the following:

 

(a)        Kind and level of work;

 

(b)        Degree of difficulty and responsibility;

 

(c)        Kind, quality, and level of qualification requirements;

 

(d)       Relationship to other classes in its occupational group and of its occupational group to other occupational groups.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “quality” in subsection (c) pursuant to 1 CMC § 3806(g).

 

 

§ 90-40-314     Periodic Review of Compensation Plan

 

The managing director shall periodically ensure the conduct of necessary and appropriate studies of rates of compensation and compensation practices in the Commonwealth and recommend to the Personnel Committee any recommended changes to the MVA Compensation Plan. Following such review, the Committee shall make recommendations to the Board of Directors for any possible changes to the MVA compensation plan.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” and “compensation plan” pursuant to 1 CMC § 3806(f). The Commission corrected the spelling of the word “Directors” pursuant to 1 CMC § 3806(g).

 

§ 90-40-316     Establishing Salary upon Appointment

 

(a)        Salary shall be fixed at the first step of the appropriate pay level upon initial appointment. Should a higher rate be deemed necessary to recruit, and is appropriate to the qualifications of the applicant, the salary may be fixed at any succeeding step not to exceed step 8. An initial salary above step 1 of the pay level must be approved by the managing director. An initial salary above step 8 of the pay level must be approved by the Personnel Committee with the recommendation of the managing director.

 

(b)        When a person is reemployed after a break in service of one or more days into a position in a class and pay level lower than the highest class and pay level previously held, the salary may be set in the lower grade at the highest previous step held.

 

(c)        When a person is reemployed after a break in service of one or more days into a position in a class and pay level higher than the highest class and pay level previously held, the salary may be set in the higher grade at a step-level equivalent to two steps higher than the highest previous step held.

 

(d)       All initial salaries are contingent upon budgeted and available funding and may be limited accordingly, notwithstanding (b) and (c) above.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (a) pursuant to 1 CMC § 3806(f).

 

§ 90-40-318     Promotions

 

An employee who is promoted from a position in one class to an existing position in a higher class shall be compensated at the lowest step in the new pay level which at least equals the amount of a two-step increase in the old pay level. The rate of compensation must not exceed the rate of the maximum step in the higher pay level. The effective date of the promotion shall be the new service anniversary date for the promoted employee. Retroactive promotions shall not be made except when directed by a decision of the Personnel Committee pursuant to an employee’s appeal.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-320     Temporary Promotions

 

A temporary promotion is utilized when it is anticipated that an employee will temporarily occupy a position for a period in excess of 90 calendar days. An employee can be temporarily promoted only if such employee meets the qualifications standards of the new position. The employee temporarily promoted shall be compensated at the step in the new pay level which is at least equal to an increase of two steps at the current pay level. The employee must be informed in advance and agree, in writing, that at the expiration of the temporary promotion, the employee will be returned to the former salary (level and step) that s/he would be receiving had the employee remained in the former position. No temporary promotion shall exceed a period of one year.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-322     “Acting” Assignment

 

(a)        An “acting” assignment is the designation, in writing, that an employee will act for a period of up to thirty calendar days in place of a supervisor. When the supervisor’s absence exceeds the initial thirty-day period, a new designation shall be made for an additional thirty days. This thirty-day renewal of the acting assignment is repeated until the supervisor returns to the position. Whenever the acting assignment exceeds ninety days, the employee shall be temporarily promoted if the employee meets the qualifications standards of the position. If the acting assignment exceeds ninety days and the employee does not meet the qualifications standards of the position, the employee shall be compensated with two steps in the current pay level, but may not exceed the maximum step.

 

(b)        When an employee in the classified service is designated for an acting assignment to a contracted position, the employee shall be required to resign from the classified service in order to accept the said acting assignment. While in the acting assignment, the employee shall be entitled to receive a salary equivalent to the salary received by the previous incumbent of the position if the employee meets the qualifications for the contracted position, or a two-step temporary increase if the employee does not.

 

(c)        Upon expiration of the acting assignment, the employee will be reinstated to the former position and salary (level and step) that the employee would be receiving had the employee remained in the former position.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-324     Demotion

 

(a)        An employee demoted because of abolishment of position or reallocation of position to a lower pay level, except at the employee’s own request, shall be compensated at the salary rate which does not exceed the employee’s current pay rate. Where the employee’s current rate exceeds the rate of the maximum step of the lower pay level, the employee shall be compensated at such maximum step. An employee demoted as a disciplinary measure shall have his/her compensation reduced to the corresponding step of the lower pay level.

 

(b)        An employee demoted at his/her own request shall have pay set at the step in the lower pay level which corresponds to the step held in the higher level.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-326     Transfer

 

An employee who is transferred to a different position within the MVA at the same pay level shall receive no change in compensation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-328     Effect on Service Anniversary Date

 

An employee’s service anniversary date will not be affected by a transfer, acting assignment, or temporary promotion.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-330     Reallocation/Reclassification of Position to Higher Pay

 

An employee whose position is reallocated/reclassified to a higher class shall be compensated at the lowest step in the higher pay level which at least equals the amount of a two-step increase in the lower pay level. The rate of compensation cannot exceed the rate of the maximum step in the higher pay level. The anniversary date of the new reallocation/reclassification shall become the employee’s new anniversary date for within-grade increases and other purposes.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-332     Effective Date of Position Changes

 

The effective date of all position changes shall be the beginning of the first pay period immediately following the approval of the action by the managing director. Exceptions to this rule may be made by the managing director only for such reasons as will expedite MVA’s business and not result in an inequitable situation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-334     Within-grade Increases

 

(a)        Within-grade increases may be granted to permanent employees upon completion of fifty-two consecutive calendar weeks of satisfactory performance.

 

(b)        Permanent employees who are assigned to work part-time will be eligible for a within-grade increase only at such time as the cumulative total of all hours worked equates to a standard work year of 2,080 hours and such work has been satisfactory. Employees who are employed on an intermittent basis are not eligible to receive within-grade increases.

 

(c)        The effective date of a within-grade step increase shall be the first day of the first pay period following completion of the required waiting period.

 

(d)       For all positions, approved leave in a non-pay status (LWOP) and/or unapproved leave (AWOL) not to exceed eighty hours, is creditable toward the waiting period for a within-grade increase. Unapproved leave (AWOL) and leave without pay (LWOP) of more than eighty hours will extend the waiting period by at least one pay period or by the amount of time such AWOL or LWOP exceeds the eighty hours, whichever is greater.

 

(e)        A former employee reemployed with a break in service begins a new waiting period for a within-grade increase from the date of rehire.

 

(f)        Time served during temporary, limited term, or provisional status shall not be counted toward the required waiting period in receiving a within-grade step increase, except that employees holding temporary promotions will be eligible for any within-grade increase due to their permanent position, and the temporary salary may be adjusted accordingly.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “term” pursuant to 1 CMC § 3806(g).

 

§ 90-40-336     Workshops

 

An employee occupying a permanent position who successfully completes 120 hours of training workshops that are supervised, sponsored and/or approved by the MVA may be given a salary increase equivalent to one step.

 

(a)        No employee may receive more than one step increase under this subpart in any one calendar year regardless of the number of training workshops that are successfully completed. Employees who are employed on an intermittent basis are not eligible to receive this increase.

 

(b)        Upon determination of the administrative officer that such employee is eligible to receive a salary increase as provided for in this subpart, the administrative officer shall prepare, sign and submit a request for personnel action to the managing director for final approval.

 

(c)        The effective date of a training workshop salary increase shall be the beginning of the pay period immediately following the approval of the managing director.

 

(d)       This increase shall not affect the anniversary date of the employee.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsection (b) and “managing director” in subsections (b) and (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-338     Overtime Compensation

 

(a)        Compensatory Time and Control. Any employee who exceeds forty hours actually worked in an established one-week pay period shall be compensated for the hours in excess of forty at the rate of one and one-half times the regular rate of pay, except as provided below.

 

(b)        Exceptions. Bona fide executive, administrative, and professional employees are exempt from payment for overtime. These terms shall have the meanings given them in the federal Fair Labor Standards Act of 1938, as amended (FLSA).

(1)        Every personnel action or request therefore to appoint, promote, or transfer an individual to a position shall be endorsed by the administrative officer as either “FLSA covered” or “FLSA exempt,” and the latter term shall only apply to bona fide executive, administrative, or professional employees. The criteria used in justifying such exemptions must be documented in the employees’ job descriptions. Every examination announcement, promotional opportunity announcement, or other vacancy announcement for a position that is FLSA exempt shall indicate that the holder of that position is not eligible for payment for overtime. If changes in a job description effectively change an employee’s coverage or exemption under the FLSA, a special personnel action shall be prepared to document such change.

(2)        In addition to the above exceptions, no employee shall be eligible to receive overtime pay for any hour for which the typhoon emergency differential is paid.

 

(c)        Hours Actually Worked. Overtime compensation will only be paid for hours actually worked in excess of forty hours a week. Paid leave, annual or sick, or holidays shall not be included in the computation of hours actually worked, except for administrative leave allowed to serve on government boards and commissions. Time during which an employee is required to remain at a prescribed workplace shall be included in the hours actually worked, even if no work is performed.

 

(d)       Payments Included in Determining Regular Rate of Pay. The regular rate of pay shall include consideration of the following compensation for employment:

(1)        Basic pay (one-eightieth of biweekly salary) for the first forty hours actually worked in the workweek, including work on a holiday (but not the amount also paid for holiday leave), and including basic pay for work during a typhoon emergency (but not the amount also paid for administrative leave), regardless of whether actual compensation during such emergency is higher because any such work was performed outside of regular duty hours; and

(2)        Any hazardous work differential earned during the workweek; and

(3)        Any night work differential (which can only be earned during regular scheduled shifts and duty hours); and

(4)        Any premium earned for remaining on call for duty during a regularly scheduled period in excess of a forty hour week; and

(5)        Payment for housing or transportation to and from work that is paid to the employee or the fair value of those benefits, if they are provided directly by the government, pro-rated to determine the amount for that workweek. The fair value shall be the amount specified for tax purposes.

 

(e)        Compensatory Time-Off. If funds are not available for overtime compensation, compensatory time-off may be granted at the rate of one and one-half hours for each hour actually worked of overtime, provided that:

(1)        The employee signs a statement agreeing to compensatory time-off in place of overtime; and

(2)        The maximum authorized accumulation of compensatory time-off is 240 hours (160 hours of work time at one and one-half times). When an employee has accumulated 240 hours of compensatory time off, all overtime must be paid in cash; and

(3)        An employee’s request to use compensatory time-off must be granted within a reasonable time unless the responsible official determines that time off would be unduly disruptive to operation of the activity; and

(4)        Accrued balances of compensatory time-off at the termination of employment must be paid at the average basic pay of the employee over the last three years of employment or the final basic pay, whichever is higher.

(5)        Compensatory time-off cannot be carried “off the books” through any in-house agreement or arrangement. All time work shall be officially recorded.

 

(f)        Reduction and Control of Overtime. Intelligent and responsible control of overtime is a continuing management function and certain steps are to be taken by all appointing authorities and supervisors to reduce overtime. Overtime work should be directed to a specific objective or goal, and should not be work that can be completed during the regular workday, or postponed to the following day or days. Avoid use of compensatory time-off. Excessive use of compensatory time-off will take employees away from the workplace in the future and create a need for more overtime.

 

(g)        Approval of Overtime. Overtime must be approved, in advance, by the Management* Director on forms prescribed by the MVA.

(1)        An employee who is suffered or permitted to work overtime without authorization shall be paid, because the time represents an obligation of the MVA.

(2)        The responsible management official has an obligation to discourage overtime which is not approved, and must take disciplinary action, when appropriate, against an employee who works overtime without authorization.

(3)        As a general policy, an employee who has taken annual or sick leave or who plans to take annual or sick leave within the same work week will not be scheduled to work overtime.

 

* So in original.

 

(h)        Supervisors Working Overtime. As a general policy, management officials should refrain from directing supervisory personnel to work overtime.

 

(i)         Supervision of Overtime Work. In the event three or more employees are directed to work overtime, a supervisor must be present to ensure proper utilization of the overtime period.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The initial paragraph was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining paragraphs pursuant to 1 CMC § 3806(a). The Commission inserted commas after the words “administrative” in subsection (b) and “promote” in subsection (b)(1) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “administrative officer” in subsection (b)(1) pursuant to 1 CMC § 3806(f).

 

§ 90-40-340     Standard Work Week

 

The standard work week commences on Monday at 8:00 a.m. and ends on the following Friday at 5:00 p.m. of each week. For FLSA purposes, including the computation of overtime pay, the workweek is the 168-hour period beginning at 12:01 a.m. on Sunday, unless a different FLSA workweek is specified for a particular position.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-342     Use of Non-standard Work Week

 

Non-standard work weeks may be used to provide continuity of service, flexibility of work scheduling, or to fulfill other needs in MVA’s interest. Schedules for non-standard work weeks shall be devised, in advance, by the managing director, not to exceed forty hours per week. When it becomes necessary to change an employee from a standard work week to a non-standard work week, every effort will be made to give the employee notice ten working days in advance of the effective date of the change.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “scheduling” pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-344     Holidays

 

All MVA employees shall receive leave with pay on each legal holiday.

 

(a)        Payment for Work on Holidays: An employee required to work on a legal holiday shall be compensated at the base salary rate or the adjusted base salary rate for the hours actually worked, and shall also be paid for the holiday leave with pay.

 

(b)        Holiday Pay in a Non-standard Work Week. When holidays fall on a regular non-work day for employees whose basic work week is other than the standard work week, the work day immediately preceding or succeeding the holiday shall be designated (as determined by the employee’s manager) as the holiday in lieu of such holiday which occurs on the employee’s scheduled non-work day:

(1)        Such employees who have designated holidays in lieu of the official holiday shall, if possible, be excused from duty on the designated holiday.

(2)        Such employees who are required to work on their designated holiday shall receive the basic salary rate for work performed on that day, and shall also receive holiday leave with pay.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the spelling of the word “employee’s” in subsection (b) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the word “manager” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-346     Merit Increase

 

(a)        An employee with an overall exceptional performance rating may additionally be granted a merit increase not to exceed one step increase in the base salary upon completion of fifty-two consecutive calendar weeks of sustained superior work performance. Such additional merit increase shall not alter the waiting period required for qualifying for the next within-grade step increase. No employee shall be compensated above the maximum step prescribed for the employee’s pay level except where the employee was receiving such compensation pursuant to law.

 

(b)        A recommendation for a merit increase is prepared and signed by the manager, and then forwarded to the managing director for review and final approval.

 

(c)        The effective date of all merit increases shall be the beginning of the pay period immediately following the final approval of the managing director. Exceptions to this rule may be made by the managing director only for such reasons as might expedite MVA’s business and not result in an inequitable situation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “manager” in subsection (b) and “managing director” in subsections (b) and (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-348     Premium Pay

 

(a)        On-call. Employees who are required to remain on-call to duty outside of their regular working hours shall be fit to report for duty while on call and shall be paid a premium of one dollar and fifty cents per hour they are scheduled to be on-call, provided that:

(1)        Employees shall be compensated for hours actually worked instead of receiving an on-call premium for all hours in which they are required to be at a prescribed work place; and

(2)        Hours of on-call duty must be for a regularly scheduled period of time in excess of the regular forty hour work week. On-call schedules must be submitted to the timekeeper before the beginning of the work week involved; and

(3)        There is a bona fide reason for the employee to be on call; and

(4)        Eligibility to be placed on-call is for a period of one year, and may be renewed for additional one year periods.

 

(b)        Typhoon Emergency. Employees who are required by the MVA to work in a location and during a period of time in which a typhoon or tropical storm emergency has been declared by the Governor shall be compensated as follows:

(1)        For the employee’s regularly scheduled work hours during which other MVA employees are released from work as a result of the emergency, the employee shall receive pay for administrative leave, and shall also receive pay for the actual hours worked; and

(2)        For all other hours such employees are required to work while such declaration of emergency shall remain in force, compensation shall be at the rate of two and one-half times the base salary rate. Employees being paid typhoon emergency differential are not eligible to receive any other premium pay or overtime pay for the same time period.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-350     Approval of Premium Pay or Differentials

 

Proposals to either begin or discontinue premium pay differentials shall be submitted on a request for personnel action to the managing director for review and approval. The request must be accompanied by a letter of justification addressing each of the criteria required to support the particular differential. Discontinuance of differentials does not constitute a “reduction in pay” and does not require a formal adverse action.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-352     Bar to Dual Compensation or Dual Employment

 

(a)        No employee shall receive compensation for two positions or two appointments in the CNMI government service. When an employee is engaged in government work other than in the employee’s regular position with MVA, such employee shall be

(1)        Placed in LWOP from the regular position, or

(2)        Continue the MVA salary and reject the salary for the second position, whichever is to the employee’s personal advantage.

 

(b)        Exception: When an employee is engaged as a classroom teacher outside the employee’s regular work day to teach adult basic education or classes for the Northern Marianas College, such employee shall be paid for work as a teacher at the prevailing rate. Other exceptions may be made upon proper justification with the specific written approval of the Managing Director.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-354     Severance Pay

 

(a)        Employees who are separated from employment with MVA by reduction-in-force (RIF) and are not eligible to receive immediate retirement pay, are entitled severance pay computed as follows:

(1)        For each full year of creditable service with the government (total employment with MVA and other agencies), the employee is entitled to one-half of the employee’s biweekly pay rate in effect upon separation by RIF.

(2)        For each full three months of service beyond the total full years of service, the employee is entitled to twenty-five percent of the pay for a biweekly period at the rate in effect upon separation by RIF. Not more than seventy-five percent of the pay for one biweekly period shall be paid under this part-year provision.

(3)        If the employee is reemployed by the MVA and is again separated by a RIF, this time will not be counted toward any future severance pay.

 

(b)        Severance pay is paid at the regular biweekly sequences until the entitlement is exhausted. If an employee separated by RIF is reemployed by the government in any capacity before the allowable severance pay liability is satisfied, the employee sacrifices the unpaid balance upon return to duty. If the employee’s total creditable service is less than one full year, there is·no entitlement to severance pay.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-356     Timekeepers

 

It is essential that the MVA have available accurate data concerning the time and attendance of employees. This information assists forecasting of future personnel needs and analysis of current practices. To provide the needed information, it is necessary that competent timekeepers be appointed and certified.

 

(a)        Appointment and Certification of Timekeeper. The managing director shall appoint not less than two timekeepers from among the MVA employees on Saipan and one each for Rota and Tinian. Upon the appointment, each timekeeper will undertake a course of instruction in timekeeping procedures as provided by the Executive Branch Office of Personnel Management. No person may perform the duties of timekeeper without certification.

 

(b)        Duty of the Timekeeper.

(1)        Each timekeeper will be responsible for recording and certifying time and attendance records of the assigned employees. Timekeeping duties shall be accomplished during regular working hours. Overtime shall not be authorized for timekeeping. The timekeeper will also record and certify leave time taken by any assigned employee. The method of recording and certifying time, attendance, and leave shall be as prescribed by the Office of Personnel Management training.

(2)        Time and attendance records, kept by the timekeeper, are subject to audit by the Managing Director or his designee at least once a year. Noncompliance to the timekeeping procedures taught in the certification training may subject the timekeeper to immediate decertification and appropriate disciplinary action(s).

(c)        Protection of Timekeeper. It is essential that timekeepers be able to fulfill their duties without harassment. No person may attempt to coerce, threaten, or otherwise attempt to hinder the timekeeper. Any person violating this provision shall be reported promptly by the timekeeper to the managing director. Any person violating this provision may be subject to disciplinary and/or criminal sanctions.

 

(d)       Employees’ Rights to Challenge Timekeeping Records. Any employee who wishes to challenge the accuracy of any timekeeper’s records may institute an employee appeal under the grievance procedure.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsections (a), (b)(2), and (c), and “grievance procedure” in subsection (d) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “attendance” in subsection (b)(1) and “threaten” in subsection (c) pursuant to 1 CMC § 3806(g).

 

Part 400 -       Employee Management Processes

 

Subpart A -    Communications

 

§ 90-40-401     General

 

The MVA is committed to the policy of participative management. This means that employee views and opinions shall be actively sought. Managers and supervisors shall not take any steps, either covertly or overtly, which will diminish participation by employees in the management process through communication of ideas, comments, and suggestions to their supervisors and superiors. To this end, supervisors and managers shall make positive and continuing efforts to communicate with the employees in the following ways:

 

(a)        Formally, through:

(1)        The annual employee review system and the performance evaluation process;

(2)        Staff meetings or other assemblies called for the purpose of informing subordinates concerning the status of work and programs and discussion of current matters of mutual interest;

(3)        Such other devices as may be initiated by managers and supervisors to enhance communications.

 

(b)        Informally, through:

(1)        Frequent contact with employees at their work site to exchange comments concerning progress of work;

(2)        Maintaining an “open door” policy which encourages employees to bring to the attention of supervisors and managers those problems of mutual concern;

(3)        Adopting a helpful and supportive attitude toward the incentive awards program, especially the beneficial suggestion program;

(4)        Passing along, promptly, to higher levels of management, complaints and concerns of employees which cannot be resolved or corrected at the lower levels of supervision;

(5)        Resolving promptly those matters which fall within the authority of the supervisor;

(6)        Encouraging morale and esprit de corps by:

(i)         Occasional brief group meetings to recognize events and communicate plans of mutual interest to the employees in that office; and

(ii)        Occasional social gatherings of employees and their families for picnics or holiday celebrations to promote better understanding and cooperation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “comments” in the introductory paragraph pursuant to 1 CMC § 3806(g).

 

§ 90-40-402     Role of the Managing Director

 

The Managing Director shall:

 

(a)        Monitor and guide managers and supervisors in the above listed actions to facilitate good intra-MVA communications;

 

(b)        Designate the MVA Administrative Officer to monitor employee relations through advising managers and supervisors in such areas as:

(1)        Advising supervisors and managers concerning effect and import of regulations concerning employees’ rights and privileges, management’s rights, employee conduct and performance appeals, grievances and communications;

(2)        Advising and counseling employees concerning benefits to include the group life insurance, the group health insurance, and the worker’s compensation;

(3)        Advising all employees on the impact of law and regulations concerning the personnel management function; and

(4)        Advising all employees concerning conflict of interest as denounced in this subchapter.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsection (b) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “insurance” in subsection (b)(2) pursuant to 1 CMC § 3806(g).

 

Subpart B -    Emotional and Mental Health

 

§ 90-40-404     General

 

(a)        This subpart deals with employee conduct and performance when outside influences, other than substance abuse, adversely affect employees’ effectiveness. These influences include, but are not limited to, the following:

Politics                                                Family problems

Employee-supervisor conflict             Divorce

Employee-employee conflict              Legal concerns

Perceived personal crisis                     Financial problems

Retirement crisis                                 Death in family

 

(b)        Early recognition of deteriorating performance or conduct is a vital first step in the MVA’s program to help troubled employees retain or resume their place as productive members of the work force. Early recognition is also an integral part of supervision. Because the immediate supervisor must assume such a key role in helping troubled employees, this subpart is prepared to help the supervisor:

(1)        Recognize early signs indicative of personal problems;

(2)        Deal in an appropriate manner with employees whose work is suffering because of personal problems; and

(3)        Make employees aware of sources of help within the organization and community.

 

(c)        This subpart does not deal with substance abuse. See subpart C, for the MVA’s policy on creating an alcohol and drug free workplace.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 90-40-406     Policy on Emotional and Mental Health

 

(a)        As employer, the MVA is concerned with any person or social situation which interferes with the individual employee’s mental and physical well-being, or interferes with the efficient and safe performance of assigned duties, reduces dependability, or reflects discredit on the MVA.

 

(b)        It is the MVA policy to offer assistance through confidential counseling and referral guidance when indicated. This assistance includes but is not limited to such areas as emotional problems, family and marital problems, indebtedness, interpersonal conflicts (employee-supervisor, employee-employee) and crisis situations, where it is determined by the employee or management that these problems adversely affect employee health and performance.

 

(c)        Supervisor must take care not to make decisions for employees or give guidance beyond their professional capabilities. For non-work-related situations, the supervisor should guide the employee to seek professional assistance.

 

(d)       Assistance available to employees voluntarily seeking help for substance abuse problems is described in subpart C. Sick leave, annual leave, or leave without pay may be granted for approved programs of treatment, counseling, or rehabilitation. The confidential nature of records in these cases will be maintained in the same manner as medical records.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “leave” and “counseling” in subsection (d) pursuant to 1 CMC § 3806(g).

 

§ 90-40-408     Action by Supervisors and Managers

 

(a)        Supervisors and managers must be alert to indications of deteriorating performance on the part of employees under their supervision. Some of the indications which may occur are:

(1)        A marked change in behavior. This may show up as emotional outbursts, chronic irritability, excessive fatigue, or rule violations.

(2)        Frequent short-term absences, notably the afternoon of pay day or the following Monday;

(3)        Repeated incidents leading to work-related accidents or damages;

(4)        Frequent complaints related to health;

(5)        Chronic inability to get along with fellow employees; or

(6)        Excessive problem drinking.

 

(b)        Upon identification of presumed problems, the supervisor should approach the employee to determine the cause of performance change. Should such an approach be rebuffed, which is likely, the supervisor should continue observation of the employee’s performance, recording occurrences which tend to support the supervisor’s feeling that the employee is troubled. If the conduct continues for a lengthy period, the supervisor must again counsel with the employee and, if the employee is unresponsive, refer the matter to the managing director.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-410 Action by the Managing Director

 

Upon referral of a case to the managing director by a supervisor, the managing director should contact the Community Guidance Center or other appropriate agency for assistance. Once arrangements for assistance have been made, the managing director should seek out the employee and counsel the employee to seek appropriate help. If the employee is agreeable, the managing director should notify the supervisor concerned so that arrangements can be made for the employee to seek help. If the employee is not agreeable, the managing director should advise the employee that he or she is responsible for the consequences of their actions and if the unsatisfactory performance continues, disciplinary action may result. Actions taken should be properly documented and maintained in the official personnel folder or the confidential medical file, as appropriate.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” and “official personnel folder” pursuant to 1 CMC § 3806(f).

 

§ 90-40-412     Further Actions

 

Should an employee’s conduct and performance continue to deteriorate and the supervisor is convinced beyond a reasonable doubt that the cause is other than alcohol abuse or drug dependence, the supervisor should consult again with the managing director. The managing director should then seek assistance from an appropriate practitioner at the Community Guidance Center, the Commonwealth Health Center or other appropriate agency.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: This paragraph was designated as subsection (a) in the original regulation. As there are no other subsections, the Commission removed the subsection designation pursuant to 1 CMC § 3806(a). The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

Subpart C -    Alcohol and Drug-Free Workplace

 

§ 90-40-414     General Policy

 

(a)        As an employer, the MVA recognizes it has a responsibility to its employees and the public it serves to take reasonable steps to assure safety in the workplace and in the community. Furthermore, the MVA is concerned about the adverse effect that alcohol and drug abuse have on safe and productive job performance. It also recognizes that any employee, whose ability to perform safely and productively is affected by the use of alcohol and other drugs, jeopardizes the integrity of the workplace and the achievement of the MVA’s mission. To the end of maintaining an alcohol and drug free workplace, employees shall not be under the influence of alcohol, illegal drugs, or controlled substances during business hours, whether or not consumed on MVA premises and whether or not consumed out of or during working hours.

 

(b)        The MVA realizes that alcoholism, problem drinking, and drug addiction are treatable illnesses. The MVA, therefore, encourages employees who have problems with drugs or alcohol to utilize all available resources to resolve their problems before those problems affect their job performance.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The paragraphs in the original regulation were undesignated. The Commission designated the paragraphs as subsections (a) and (b) pursuant to 1 CMC § 3806(a). The Commission inserted a comma after the word “drinking” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-416     Procedure

 

The MVA understands and accepts its obligation to maintain a workplace free of alcohol and illegal drugs. To ensure that the objectives of this policy are met, the MVA will actively implement and maintain a drug-free program. The program will have the following elements: collection and testing, education and guidance, referral and rehabilitation. The MVA has accepted the CNMI MVA’s Alcohol and Drug Free Workplace program and will utilize and work with this program in accordance with the guidance provided in the Civil Service’s Personnel Service System Rules and Regulations [NMIAC Title 10, Chapter 10] with the exception that any administrative or disciplinary hearings and decisions will be conducted by the MVA managing director and Personnel Committee as provided in this regulation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

 

§ 90-40-418     Testing Occasions

 

(a)        Pre-employment Testing

(1)        At the time of application, persons applying for any position with the MVA will be notified that any offer of employment is contingent upon a negative urine test. After receiving an offer of employment, the candidate shall be tested for the presence of cocaine, marijuana, opiates, amphetamines, phencyclidine in the urine, etc. The test shall be paid for by the candidate.

(2)        Also at the time of application, applicants who were previously employed by the MVA and applicants who have had an offer for MVA employment withdrawn due to a previous positive urine test result must provide a written release of drug testing history for the two years immediately preceding the application date.

(3)        No new MVA candidate may be assigned to work in any position until he or she presents the results of a urine test, taken after the offer for employment has been made, that shows a negative result for the presence of cocaine, marijuana, opiates, amphetamines, and phencyclidine.

(4)        If the candidate’s test result is positive for the presence of a tested drug, without a legitimate explanation, the offer of employment will be withdrawn.

(5)        If the candidate’s drug testing history shows a positive drug test within two years prior to the application date, the offer of employment will be withdrawn unless the candidate submits a statement of fitness for duty and agrees to execute an agreement similar to a return to duty contract described below [§ 90-40-434].

 

(b)        Reasonable Suspicion Testing

Where there is a reasonable suspicion that an employee is under the influence of alcohol or drugs while at work or about to begin work, he or she shall submit to a breath or urine test for the presence of alcohol, cocaine, marijuana, opiates, amphetamines, and phencyclidine, upon written notice from the employee’s supervisor. Except as otherwise provided, the MVA shall pay for the testing.

(1)        Testing Decision Authority. Only a manager or higher official is permitted to make reasonable suspicion testing decisions.

(2)        Objective inquiry. The supervisor or higher MVA official will observe the employee suspected of being under the influence of alcohol or illegal drugs. A decision to request testing shall be based on eye witness reports, facts of the event, and observed physical and behavioral characteristics of the employee.

(3)        Prior to making the decision to require testing, the management official will question the employee in a private area to ascertain whether there are any reasons other than alcohol or drug use for any behavior observed.

(4)        Transportation assistance. The employee shall be accompanied to the collection site by a supervisor, and shall be provided transportation home from the collection site. If the individual refuses and demands to drive his/her vehicle, the supervisor shall notify the Department of Public Safety.

(5)        Duty pending test results. Until the results of the drug and alcohol test are complete and verified, no employee tested based upon reasonable suspicion shall be allowed to perform or continue to perform a safety-sensitive duty.

(6)        Report. The manager ordering reasonable suspicion testing shall put in writing, in detail, the facts leading to the decision. This report shall be considered confidential and will be maintained in the employee’s medical file, which is confidential, until needed for a disciplinary action. Only at that time will the report be filed in the employee's personnel file.

 

(c)        Post-Accident Testing

As soon as practical after an accident any employee whose action or inaction may have contributed to the accident must submit to breath and urine tests for the presence of alcohol, cocaine, marijuana, opiates, amphetamines, phencyclidine, upon written notice from the employee’s supervisor. Except as otherwise provided, the MVA shall pay for the testing.

(1)        Objective inquiry. A department head or higher MVA official’s decision to request testing shall be based on eye witness reports, facts of the event, and observed physical and behavioral characteristics of the employee. Specifically, the department head or higher MVA official shall require the driver of any MVA vehicle or the operator of any MVA equipment involved in the accident to be tested.

(2)        Transportation assistance. The employee shall be accompanied to the collection site by a management official, and shall be provided transportation home from the collection site. If the individual refuses and demands to drive his/her vehicle, the management official shall notify the Department of Public Safety.

(3)        Duty pending test results. Until the results of the drug and alcohol test are complete and verified, no employee reasonably suspected of having been under the influence of alcohol or drugs at the time of the accident shall be allowed to perform or continue to perform a safety-sensitive duty.

(4)        Report. The supervisor or higher MVA official ordering post-accident testing shall put in writing, in detail, the facts leading to the decision. This report shall be considered confidential and will be maintained in the employee’s medical file, which is confidential, until needed for a disciplinary action. Only at that time will the report be filed in the employee’s personnel file.

 

(d)       Random Testing

Not less than every two years, randomly selected employees performing safety-sensitive functions will be required to submit to breath-tests for alcohol and urine tests for cocaine, marijuana, opiates, amphetamines, and phencyclidine. The testing will be done during on-duty time. Except as otherwise provided, the MVA shall pay for the testing.

(1)        Method of selection. Employees will be selected by a statistically valid method such as a random number table or computer-based random number generator that is matched with employee Social Security numbers, payroll identification numbers, or other comparable identifying numbers.

(2)        Number to be tested. No more than twenty-five percent of all employees performing safety-sensitive functions shall be required to submit to breath-alcohol testing and no more than fifty percent shall be required to submit to urine testing. The actual percentage will be determined at the beginning of each fiscal year by the managing director and the administrative officer after reviewing the MVA’s prior positive testing rates, reasonable suspicion and post accident events, and referrals for service.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission struck the figures “2” from subsections (a)(2) and (a)(5) and “25%” and “50%” from subsection (d)(2) pursuant to 1 CMC § 3806(e). The Commission corrected the capitalization of the words “statement of fitness for duty” and “return to duty contract” in subsection (a)(5), “supervisor” in subsections (b), (b)(2), (b)(4), (c), and (c)(4), “manager” in subsections (b)(1) and (b)(6), “department head” in subsection (c)(1), and “managing director” and “administrative officer” in subsection (d)(2) pursuant to 1 CMC § 3806(f).

 

§ 90-40-420     Collection and Testing Procedures

 

(a)        Collection

(1)        Breath and urine specimens shall be collected only at a site approved by the MVA or at the scene of an accident if proper equipment and personnel can be made immediately available.

(2)        Breath and urine specimens shall be collected only by a technician trained in the collection of specimens in accordance with standard collection protocols as specified in the U.S. Department of Transportation Regulation, 49 CFR, Part 40 (B and C) “Procedures for Transportation Workplace Drug Testing Programs,” except as otherwise provided in this section. However, a certified medical review officer (MRO) or a consulting physician, when requested, may assist in facilitating the collection for post-accident testing.

 

(b)        Confirming Tests

(1)        Alcohol Test. Breath specimens shall first be subjected to a screening test for alcohol. If that test indicates a probable breath alcohol concentration (B.A.C.) of 0.02 or greater, a second test, confirming the first and providing quantitative data of alcohol concentration, shall be performed. No alcohol test shall be considered positive unless both the screening test and the confirming test show a B.A.C. of 0.02 or greater.

(2)        Drug Test. The urine sample will be split into two specimens (primary and secondary). Both specimens will be shipped to the laboratory selected for performing tests for the MVA. Primary urine specimens shall first be subjected to a screening test. Only if the screening test shows positive for the presence of a prohibited drug, will a second test be conducted on the same urine specimen to identify the presence of a specific drug or metabolite, using a gas chromatography/mass spectrometry (GC/MS) test. No drug test shall be considered positive unless both the screening test and the confirming test show the presence of one or more of the drugs tested for.

 

(c)        Results

(1)        The breath test results shall be transmitted by the technician, in a manner to assure confidentiality, to the employee and to the MVA administrative officer.

(2)        The laboratory conducting the urine test shall give the results only to the M.R.O. The M.R.O. shall discuss the test result with the tested individual.

(3)        If the test shows positive for the presence of a specific drug or drugs, the employee may request that the M.R.O. have the secondary specimen tested at another laboratory certified by the United States Department of Health and Human Services, for the presence of the drug or drugs found in the primary specimen.

(i)         The employee must make the request in writing, within 72 hours of receiving notice of the result of the MVA’s test.

(ii)        The results of the second test shall be given to the M.R.O. who shall discuss the result with the employee.

(iii)       The employee shall pay for the cost of the second test.

(4)        Upon receiving a report of a positive test result, the M.R.O. shall determine if there is any alternative medical explanation for the result, including the use of prescribed medication by the employee. Such a determination shall be based on information received from the employee such as the tested individual’s medical history and records. If the M.R.O. determines it to be necessary he or she may request pertinent analytical records from the laboratory or require a re-analysis of the specimen.

(5)        The M.R.O. shall report the urine test result as negative and shall take no further action if he or she determines:

(i)         There is a legitimate medical explanation for a positive test result, other than the use of the specific drug; or

(ii)        Based on a review of laboratory inspection reports, quality assurance and quality control data, and other drug test results, the positive drug test result is scientifically insufficient for further action.

(6)        Employees receiving a positive test result will be subjected to disciplinary action up to termination of employment.

 

(d)       Report to MVA

The M.R.O. shall report all positive and negative urine drug test results, in a manner to assure confidentiality, to the MVA Managing Director. Other than as specified above, the M.R.O. shall not release the results of drug tests to any other individual without a written release from the tested employee.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “medical review officer” in subsection (a)(2), “technician” and “administrative officer” in subsection (c)(1), and “managing director” in subsection (d) pursuant to 1 CMC § 3806(f).

 

§ 90-40-422     Employee Awareness and Rehabilitation

 

(a)        Employee Awareness Training. All employees shall receive information concerning the effects and consequences of drug and alcohol use on personal health, safety, and the work environment; the manifestations and behavioral clues indicative of drug and alcohol use; and the resources available to the employee in evaluating and resolving problems associated with the use of illegal and legal drugs and alcohol.

 

(b)        Employees Seeking Voluntary Assistance. MVA employees shall be allowed to voluntarily seek assistance for alcohol or drug use at any time prior to being required to be tested under the reasonable suspicion, post-accident, or random testing procedures.

(1)        Referrals. Employees may request referral to a substance abuse professional (S.A.P.) for treatment, may self-refer, or may be referred by a manager as part of a performance counseling session. Such referrals shall only be made a part of the employee’s medical file and shall not be a part of the employee's personnel file. Referrals shall be kept confidential.

(2)        Voluntary referrals. Employees who voluntarily seek assistance in dealing with drug and alcohol problems or who accept referrals, before job performance is compromised, shall be provided the same leave benefits for recommended treatment as provided for any other health problem.

 

(c)        Accountability for job performance. Regardless of participation in or requests for referrals, employees shall be held accountable for acceptable job performance. In no case where job performance has been compromised will disciplinary action be waived for employees asking for assistance and referral. Such requests may be considered a mitigating factor in determining the appropriate form of discipline.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “post-accident” in subsection (b) and “substance abuse professional” and “manager” in subsection (b)(1) pursuant to 1 CMC § 3806(f).

 

§ 90-40-424     Prohibited Conduct

 

The following conduct or activity is prohibited by the MVA and employees violating this provision will be subject to disciplinary action:

 

(a)        Sale, Purchase, Possession with Intent to Deliver, or Transfer of Alcohol or Illegal Drugs. No employee shall sell, purchase, or transfer; attempt to sell, purchase, or transfer; or possess with the intent to deliver, any illegal drug while on MVA property, in any MVA vehicle or on any MVA business, except that alcohol may be purchased, transported, maintained, and consumed in reasonable quantities where social drinking is part of doing MVA-related business.

 

(b)        Possession of Illegal Drugs. No employee shall possess any illegal drug while on MVA property, in any MVA vehicle, or on any MVA-related business.

 

(c)        Possession of Open Containers of Alcohol. No employee shall possess an open container of alcohol in any vehicle while on MVA property, in any MVA vehicle, or on any MVA-related business.

 

(d)       Under the Influence of Alcohol or Illegal Drugs. No employee shall be under the influence of alcohol or any illegal drug when at work, or reporting to work with the intention of working. As used in this subsection, alcohol includes any alcohol found in any prescription or non-prescription drug such as cough syrup used other than as directed by the physician or normal usage per nonprescription directions. An employee is presumed to be under the influence of alcohol or an illegal drug if:

(1)        The employee has a B.A.C. of 0.02 or more;

(2)        The employee has a detectable amount of any illegal drug in his or her urine;

(3)        The employee uses alcohol or any illegal drug while on call when the employee knows he or she may be called upon to perform MVA-related functions; or

(4)        The employee uses alcohol or any illegal drug within four hours prior to reporting to work and expects to perform MVA-related functions.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission removed the numbers “(1),” “(2),” and “(3)” from subsection (a) as they did not designate subsections. The Commission corrected the capitalization of the word “Alcohol” in subsection (a) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “maintained” in subsection (a) and “vehicle” in subsections (b) and (c) pursuant to 1 CMC § 3806(g). The Commission struck the figure “4” from subsection (d)(4) pursuant to 1 CMC § 3806(e).

 

§ 90-40-426     Refusal to be Tested

 

No employee required to be tested for drugs or alcohol under any provision of this subpart shall refuse to be tested. The following conduct shall be considered a refusal to be tested:

 

(a)        Refusing in writing to submit to testing after receiving clear and specific written notice of the requirement to be tested;

 

(b)        Refusing verbally, in front of at least two witnesses, to submit to testing after receiving clear and specific written notice of the requirement to be tested;

 

(c)        Failing to timely provide an adequate specimen for testing, without a valid medical explanation, after receiving clear and specific written notice of the requirement to be tested. An M.R.O. or consulting physician shall determine if there is any medical reason for failure to provide an adequate urine sample (shy bladder) or an adequate breath sample (shy lung);

 

(d)       Engaging in conduct that clearly obstructs the specimen collection process;

 

(e)        Failing to remain available for post-accident testing, or leaving the scene of an accident before a testing decision is made. An employee may leave the scene of an accident only to obtain necessary medical care or assistance in responding to the accident. If the employee leaves the scene, the employee must notify his or her supervisor as soon as possible of his or her location and reason for leaving the scene;

 

(f)        Consuming alcohol or illegal drugs after an accident and before a testing decision is made;

 

(g)        Failing to report, during the work shift in which an accident occurred, an accident which could have resulted in a testing decision; or

 

(h)        Failing to report to the specimen collection site timely after being informed of the requirement to be tested.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the spelling of the word “subpart” in the introductory paragraph pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the word “supervisor” in subsection (e) pursuant to 1 CMC § 3806(f).

 

§ 90-40-428     Other Actions Violating this Regulation

 

(a)        Giving False Information. No employee shall give false information about a urine specimen or attempt to contaminate or alter the specimen.

 

(b)        Refusal to Comply with Treatment Recommendations. No employee shall fail to comply with recommendations for treatment or after-care made by an M.R.O. or S.A.P. as a consequence of a prior positive drug or alcohol test result.

 

(c)        Failure to Notify MVA of Conviction. No employee shall fail to notify the administrative officer of any criminal drug statute conviction, within five days of such conviction, if the violation of the criminal drug statute occurred while the employee was conducting MVA business, or while on or using MVA property.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsection (c) pursuant to 1 CMC § 3806(f). The Commission struck the figure “5” from subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-430     Refusal to be Tested; Penalties and Consequences

 

(a)        Disciplinary Action. An employee committing any act prohibited by this procedure shall be subject to an appropriate form of discipline, depending on the circumstances.

(1)        Generally. Where an employee commits any act prohibited by this procedure, without valid reason, the employee shall be disciplined up to and including removal. At a minimum, the employee shall receive a formal reprimand. If the prohibited act committed by the employee relates to the use or possession of alcohol or illegal drugs, the employee shall be referred to an S.A. P. for assessment and treatment.

(2)        Serious offenses. The following acts, even for a first offense, will result in an immediate disciplinary action for removal:

(i)         The sale, purchase, possession with intent to deliver, or transfer of illegal drugs, or the attempt to sell, purchase, or transfer illegal*;

(ii)        Being involved in an accident resulting in a fatality while under the influence of alcohol or illegal drugs;

(iii)       While performing and about to perform duties in a safety sensitive position, being under the influence of alcohol or illegal drugs;

(iv)       An unexcused refusal to be tested;

(v)        Giving false information, contaminating, or attempting to contaminate a urine sample;

(vi)       Failing to notify the proper authority of conviction for a drug;

(vii)      Testing positive for alcohol or illegal drugs within five years of a prior positive test; or

(viii)     Breaching any term of a return to duty contract executed under the provisions of this procedure.

 

* So in original.

 

(b)        Counseling Concerning Treatment Options. Those employees not removed from MVA service after committing any act prohibited by this procedure shall be informed of resources available for evaluating and resolving problems associated with the use of alcohol and illegal drugs. At a minimum, the supervisor or administrative officer shall give the names, addresses, and telephone numbers of local substance abuse professionals and substance abuse counseling or treatment programs. The employees will then be required to fulfill all the specified steps of treatment before being considered ready for return to duty.

 

(c)        Report to Department of Public Safety. An employee committing any act prohibited by law shall be reported, by the MVA, to the Department of Public Safety for possible criminal prosecution.

 

(d)       Duty/Pay Status Pending Disciplinary Action. Unless the employee was involved in an accident resulting in a fatality, an employee subject to a disciplinary action for committing any act prohibited by this procedure, shall be allowed to remain on the job pending resolution of any proposed disciplinary action but shall not be allowed to perform a safety-sensitive function, even if that means assigning the employee duties the employee would not otherwise be performing. An employee subject to a disciplinary action for committing any act that resulted in a fatal accident shall be placed on leave without pay pending resolution of the disciplinary action for removal.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “purchase” in subsection (a)(2)(i) and “contaminating” in subsection (a)(2)(v) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “return to duty contract” in subsection (a)(2)(viii) and “supervisor,” “administrative officer,” and “substance abuse professional” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-432     Return to Duty Procedures

 

Requirements. No employee who has tested positive for the presence of alcohol or illegal drugs shall be allowed to return to work until the employee has:

 

(a)        Complied with treatment recommendations of an M.R.O. or S.A.P. and been released for work by an S.A.P. in consultation, when appropriate, with the M.R.O. or a consulting physician;

 

(b)        Tested negative in a subsequent test paid for by the employee for the presence of alcohol, if the removal from duty was due to alcohol use; or cocaine, marijuana, opiates, amphetamines, and phencyclidine, if the removal from duty was due to drug use; and

 

(c)        Agreed to execute a return to duty contract.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “return to duty contract” in subsection (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-434     Return to Duty Contract

 

The return to duty contract shall include the following provisions:

 

(a)        Aftercare. An agreement to comply with aftercare and follow-up treatment recommendations for one to five years, as determined appropriate by the employee’s S.A.P;

 

(b)        Follow-up testing. An agreement to unannounced alcohol or drug testing, depending on the substance which resulted in the removal from duty, paid for by the employee, for one to five years, as determined appropriate by the employee’s S.A.P., but there shall be no fewer than six tests in the first year after the employee returns to work;

 

(c)        Compliance with Rules. An agreement to comply with MVA rules, policies, and procedures relating to employment;

 

(d)       Term. An agreement that the terms of the contract are effective for five years after the employee’s return to duty; and

 

(e)        Breach of Contract. An agreement that violation of the return to duty contract is grounds for termination.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “return to duty contract” in the introductory paragraph and subsection (e) pursuant to 1 CMC § 3806(f). The Commission struck the figures “1-5” from subsection (a) and “1,” “5,” and “6” from subsection (b) pursuant to 1 CMC § 3806(e).

 

 

§ 90-40-436     Administrative Considerations

 

(a)        Confidentiality. The MVA shall not knowingly disregard an employee’s right to confidentiality in matters relating to alcohol or drug testing or otherwise neglect his or her responsibilities under this procedure.

 

(b)        Job Security Maintained. Employees shall not have job security or promotional opportunities jeopardized solely because of a request for a drug or alcohol treatment referral.

 

(c)        Required Documentation. Although voluntary referrals or referrals made prior to testing are kept strictly confidential, documentation of poor performance or disciplinary actions taken due to drug or alcohol abuse shall be included in the employee’s personnel file.

 

(d)       Authority/Responsibility.

(1)        Management/supervisory employees at all levels are responsible for implementing program elements to ensure that the objectives of the program are communicated to all employees and that problems are handled in a confidential, timely, and professional manner.

(2)        The administrative officer will:

(i)         Ensure that all employees are given a copy of the MVA’s regulation and policy and procedures;

(ii)        Be responsible for establishing management and employee alcohol and drug free workplace training programs.

(iii)       Liaising with the Commonwealth government’s Alcohol and Drug Free Workplace Coordinator, testing facilities, and the medical review officer;

(iv)       Additionally, the Human Resource Office will be the central contact point for company interaction with the employee assistance programs and for maintaining documentation on rehabilitative actions.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “timely” in subsection (d)(1) and “facilities” in subsection (d)(2)(iii) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “administrative officer” in subsection (d)(2), “government’s” in subsection (d)(2)(iii), “medical review officer” in subsection (d)(2)(iii), and “employee assistance programs” in subsection (d)(2)(iv) pursuant to 1 CMC § 3806(f). The Commission inserted a period at the end of subsection (d)(2)(iv) pursuant to 1 CMC § 3806(g).

 

Subpart D -    Employee and Management Responsibilities

 

§ 90-40-438     Code of Ethics for MVA Personnel Service

 

(a)        All persons in MVA service should:

(1)        Put loyalty to the highest moral principles and the country above loyalty to persons, party, or government office.

(2)        Uphold the laws applicable in the Commonwealth and in all subdivisions thereof and never be a party to their evasion.

(3)        Give a full day’s labor for a full day’s pay; giving to the performance of duties earnest effort and best thought.

(4)        Seek to find and employ more efficient and economic ways of getting tasks accomplished.

(5)        Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or note; and never accept, for him/herself or his/her family, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of his/her governmental duties.

(6)        Make no private promises of any kind binding upon the duties of office, since a government employee has no private word which can be binding on public duty.

(7)        Engage in no business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of governmental duties.

(8)        Never use any information coming confidentially in the performance of governmental duties as a means for making private profit or benefitting others.

(9)        Expose corruption wherever discovered.

(10)      Uphold these principles, ever conscious that public office is a public trust.

 

(b)        In addition, custodians of federal funds shall maintain a written code or standards of conduct which shall govern the performance of their officers, employees, or agents engaged in the award and administration of contracts supported by federal funds. No employee, officer, or agent of the grantee shall participate in selection, or in the award or administration of a contract supported by federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when the employee, officer, or agent, or an organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. The grantee’s and contractor’s officers, employees, or agents shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, potential contractors, or parties to subagreements. To the extent permitted by law or regulations, such standards of conduct shall provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the grantee’s officers, employees, or agents, or by contractors or their agents.

 

(c)        The MVA expects its employees to be representatives of its legal self. Like any other employer, it has the right to expect the employees to foster its business and well-being. The government’s, inclusive of MVA, first business is the maintenance of law and order at all times (even after regularly scheduled working hours) because without law and order, the government’s goals and objectives cannot be realized. An illegal or dishonorable act of an agent or employee may degrade and embarrass the government and the MVA and lessen their effectiveness.

 

(d)       To protect its credibility and rapport in the community, the MVA has the right to take administrative action as necessary and justifiable against employees who violate its laws or detract from its policies. Such administrative action is aside from any court action which may ensue from a criminal act or omission.

 

(e)        It is a mistake for anyone to believe that good discipline is simply a matter of enforcement by those at the head of the administration. Good discipline requires employee leadership, not only enforcement procedures. Most of all, it involves the active support of the employees. The employees of MVA, as a group, have a greater stake in improving the quality of the MVA’s service than any other interested party. An organization can take genuine pride and provide an opportunity to find a meaningful outlet for abilities and an opportunity for advancement in accordance with employee contribution. Leadership which meets these needs of employees will have no difficulty getting employee support.

 

(f)        So that all employees will understand the standards of conduct that are expected of them, these principles are set forth in this subpart. Officials and employees of the MVA are reminded that they must not only avoid wrong-doing in the conduct of their official duty, but must, with equal care, also avoid the appearance of wrong-doing. Acts which have the appearance of wrong-doing are prohibited equally with actual acts of wrong-doing.

 

(g)        Each employee shall avoid situations in which his/her private interests conflict with or raise a reasonable question of conflict with his/her duties and responsibilities at work. An employee shall avoid any action, whether or not specifically prohibited, which might result in or create the appearance of using the government or MVA for private gain, giving preferential treatment to any person, impeding company efficiency or economy, making an MVA-related decision outside of official channels or by exceeding authority, or affecting adversely the confidence of the public in the integrity of the government or MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “party” in subsection (a)(1) and “employees,” “officer,” “favors,” and “contractors” in subsection (b) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “government,” “company,” and “public” in subsection (g) pursuant to 1 CMC § 3806(f).

 

§ 90-40-440     Policy on Employee Conduct

 

(a)        The maintenance of the highest standards of honesty, integrity, impartiality, and conduct by MVA employees is essential to assure the proper performance of MVA business and maintain the confidence of citizens in the MVA.

 

(b)        Employees of the MVA are expected to comply with all laws and regulations. Legal requirements are essentially concerned with official conduct, i.e., behavior of the employee in the course of or in relation to official duties. MVA employees are required to conduct themselves in such a manner that the work of the MVA is effectively accomplished and to observe the requirements of courtesy, consideration, and promptness in dealing with or serving the public or its business clientele.

 

(c)        Personal and private conduct of an employee (as opposed to official conduct), that reflects adversely upon the dignity and prestige of the MVA, is also a matter of concern to management. All employees are expected to cultivate those personal qualities which characterize a good civil servant-loyalty to the government and MVA, a deep sense of responsibility for the public trust, and a standard of personal deportment which will be a credit to the individual and the MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “impartiality” in subsection (a), “consideration” in subsection (b), and “trust” in subsection (c) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the word “government” in subsection (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-442     Subordination to Authority

 

An employee is required to carry out the announced policies and programs of the Commonwealth and the MVA. While policies related to work are under consideration, the employee may, and is expected to, express opinions and points of view; but once a decision has been rendered by those in authority, the employee will be expected unreservedly to assure the success of programs which it is the employee’s responsibility to effectuate. If the employee fails to carry or out any lawful regulation, order, or policy, or deliberately refuses to obey the proper requests of superiors having responsibility for the employee’s performance, the employee is subject to appropriate disciplinary action.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “order” pursuant to 1 CMC § 3806(g).

 

§ 90-40-444     Management Responsibility

 

The MVA shall establish and maintain internal procedures by means of which all employees are adequately and systematically informed of the content, meaning, and importance of the regulations in this subpart. Copies of the regulations in this subpart shall be given to each employee within ninety days from the effective date of these regulations and to new employees upon entrance to duty. The managing director shall remind his or her employees of the regulations in this subpart periodically, at least once annually, through a publication or memorandum issued to all employees.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “meaning” pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-446     Employee Responsibility

 

(a)        It is the responsibility of employees to familiarize themselves and to comply with the regulations in this subpart. Employees are expected to consult with their managers and the administrative officer on general questions they may have regarding the applicability of the regulations, both on specific ethical and conduct matters and for guidance on questions of conflict of interest.

 

(b)        Each employee represents the MVA to the community and is expected to conduct himself/herself at all times so that his/her actions will not bring discredit upon the MVA. Employees shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct or other conduct prejudicial to the MVA. Such conduct can adversely affect their continued employment with the MVA.

 

(c)        The employee shall at all times observe the local laws which govern the CNMI and shall also respect the culture and traditions of the Commonwealth and its peoples. The employee is responsible for his/her actions at all times, whether during or after working hours.

 

(d)       The MVA shall not be responsible for assisting the employee if he or she violates the local or federal laws, and neither shall it be held financially responsible for the negligent action of the employee other than as provided by law.

 

(e)        Discrimination and harassment will not be tolerated. Any employee of this company while in the performance of his or her duty who discriminates against or harasses any other employee, or allows such harassment or discrimination to take place, because of race, creed, color, ancestry, membership in a labor organization, political affiliation, place of origin, disability, sex, religion, age, sexual orientation, or veterans status, will be subject to disciplinary action in accordance with the provisions of this subpart.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” in subsection (a), “community” in subsection (b), and “company” in subsection (e) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “orientation” in subsection (e) pursuant to 1 CMC § 3806(g).

 

§ 90-40-448     Disciplinary and Other Remedial Action

 

(a)        Violations of the regulations in this subpart by an employee may be cause for appropriate disciplinary action which may be in addition to any penalty prescribed by law.

 

(b)        Every effort must be made to follow a program of progressive discipline, imposing disciplinary actions of increasing severity if continued disciplinary infractions occur. However, serious offences will be responded to with an appropriate disciplinary consequence.

 

(c)        The steps of the MVA’s progressive discipline program are provided in part 200, subpart D of this chapter.

 

(d)       The goal of progressive discipline must be to correct unacceptable behavior while being objective and fair in administering disciplinary actions. All actions should treat the offense and not the person.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted part numbers pursuant to 1 CMC § 3806(a). The Commission inserted a period at the end of subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-450     Conflict of Interest

 

(a)        The MVA expects that all employees will avoid activities that create a conflict of interest with their responsibilities to the MVA. Employees should use good judgment, professional commitment, and moral ethics to protect themselves and the MVA from potential conflicts. Employees have a duty and responsibility to conduct work-related matters solely for the benefit of the MVA.

 

(b)        Examples of conflict of interest include, but are not limited to:

(1)        Outside activities that have negative effect on an employee’s ability to perform the job requirement of his/her position at the MVA.

(2)        Outside jobs or business interests that are in competition with the company's business.

(3)        Outside activities that involve the use of confidential information learned directly or indirectly through employment at the MVA.

(4)        Use of MVA position to obtain private gain for the MVA employee or his or her immediate family member.

 

(c)        Failure to report a potential conflict of interest and/or refusal to resolve such conflict may result in disciplinary action, including discharge.

 

(d)       The MVA reserves the right to determine when an activity conflicts with the MVA’s interests and to take whatever remedial action is necessary to resolve the conflict. Such actions might include:

(1)        Changes in assigned duties;

(2)        Divestment by the employee of the conflicting interest;

(3)        Disciplinary action; and/or

(4)        Disqualification for a particular assignment.

 

(e)        Remedial action, whether disciplinary or otherwise, shall be effected in accordance with any applicable laws or regulations.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The initial paragraph of this section was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining subsections pursuant to 1 CMC § 3806(a). The Commission inserted a comma after the word “commitment” in subsection (a) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the word “company’s” in subsection (b)(2) pursuant to 1 CMC § 3806(f).

 

§ 90-40-452     Ethical and Other Conduct and Responsibilities of Employees

 

(a)        Gifts, Entertainment, and Favors.

(1)        Except as provided in subsections (b) and (c) of this section, an employee shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value, from a person who:

(i)         Has, or is seeking to obtain, contractual or other business or financial relations with the MVA;

(ii)        Conducts operations or activities that are regulated by the MVA; or

(iii)       Has interests that may be substantially affected by the employee’s performance of official duty.

(2)        Except as specifically authorized by law, employees are not authorized to accept on behalf of the MVA voluntary donations or cash contributions from private sources for travel expenses, or the furnishing of services in-kind, such as hotel accommodations, meals, and travel accommodations.

(3)        The prohibitions of subsection (a) do not apply in the context of obvious family, non-official, or personal relationships, such as those between the parents, children, or spouse of the employee, when the circumstances make it clear that it is those relationships, rather than the business of the persons concerned, which are the motivating factors.

(4)        An employee may accept food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon or dinner meeting or other meeting or on an inspection tour where an employee may properly be in attendance.

 

(b)        An employee may accept loans from banks or other financial institutions on customary terms to finance proper and usual activities, such as home mortgage loans.

 

(c)        An employee may accept unsolicited advertising or promotional material such as pens, pencils, note pads, calendars, and other items of nominal intrinsic value.

 

(d)       An employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of:

(1)        Using public office for private gain;

(2)        Giving preferential treatment to any person;

(3)        Impeding MVA efficiency or economy;

(4)        Losing independence or impartiality;

(5)        Making a MVA decision outside official channels; and/or

(6)        Affecting adversely the confidence of the public in the integrity of the MVA.

 

(e)        An employee shall not solicit a contribution from another employee for a gift to an official superior, or accept a gift from an employee receiving less pay. However, this subsection does not prohibit a voluntary gift of nominal values or donation in a nominal amount made on a special occasion such as marriage, illness, or retirement.

 

(f)        An employee shall not accept a gift, present, decoration, or other thing from a foreign government unless authorized by law or by the Constitution.

 

(g)        This section does not prohibit receipt of bona fide reimbursement, unless prohibited by law, for actual expenses for travel and such other necessary subsistence as is compatible with this part for which no MVA payment or reimbursement is made. However, an employee may not be reimbursed and payment may not be made on the employee’s behalf, for excessive personal living expenses, gifts or entertainment, nor does it allow an employee to be reimbursed by a person for travel on official business under MVA orders when reimbursement is prescribed by law.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “entertainment” in subsection (a), “meals” in subsection (a)(2), “non-official” and “children” in subsection (a)(3), “calendars” in subsection (c), “illness” in subsection (e), and “decoration” in subsection (f) pursuant to 1 CMC § 3806(g).

 

§ 90-40-454     Outside Work and Interests

 

(a)        Policy: Outside work is permitted to the extent that it does not prevent an employee from devoting the employee’s primary interests, talents, and energies to the accomplishment of work for the MVA or tend to create a conflict between the private interests of an employee and official responsibilities. The employee’s outside employment shall not reflect discredit on the MVA.

 

(b)        Definitions:

(1)        The term “outside work” means all gainful employment other than the performance of official duties. It includes, but is not limited to self-employment and working for another private business (including personally owned businesses, partnerships, corporations, and other business entities).

(2)        The term “active proprietary management” refers to a business affiliation in which substantial ownership is coupled with responsibility for day-to-day management efforts.

(3)        A “conflict of interest” is one in which an MVA employee’s private interests, usually of an economic nature, conflict or raise a reasonable question of conflict with the employee’s public duties and responsibilities. Potential conflict of interest is prohibited and is to be avoided whether it is real or only apparent.

 

(c)        Restrictions: An employee shall not engage in outside activity incompatible with the full and proper discharge of the duties and responsibilities of the employee’s MVA employment. Any activity involving an incompatibility of interest is prohibited. Any work assignment or employment affiliation which might encourage on the part of members of the general public a reasonable presumption of a conflict of interest falls in this category. Incompatible activities include but are not limited to:

(1)        Acceptance of a fee, compensation, gift, payment of expenses, or any other thing of monetary value in circumstances in which acceptance may result in, or create the appearance of conflicts of interest.

(2)        Outside employment which tends to impair an employee’s mental or physical capacity to perform MVA duties and responsibilities in an acceptable manner. An employee shall not receive any salary or anything of monetary value from a private source as compensation for services to the MVA.

 

(d)       Among other things, abuse of leave privileges to engage in outside work shall be treated as an interference with official performance. Active proprietary management of any except the smallest business is questionable because of the probability that such management responsibilities may interfere with the employee’s obligations to the employee’s primary employer, the MVA. Employees are especially urged to seek the advice of the administrative officer or managing director before committing themselves to such activities.

 

(e)        An employee shall not perform outside work:

(1)        Which is of such a nature that it may be reasonably construed by the public to be the official act of the MVA.

(2)        Which involves the use of MVA facilities, equipment, or supplies of whatever kind.

(3)        Which involves the use of official information not available to the public.

 

(f)        While an employee is not prohibited from performing outside work solely because the work is of the same general nature as the work the employee performs for the MVA, no employee may perform outside work:

(1)        If the work is such that the employee would be expected to do it as a part of regular duties.

(2)        If the work involves active proprietary management of a business closely related to the official work of the employee.

(3)        If the work for a private employer is of the same type or closely kin to that involved in the program responsibilities of the office in which the employee is employed.

(4)        If the work would tend to influence the exercise of impartial judgment on any matters coming before the employee in the course of official duties.

 

(g)        This section does not preclude an employee from:

(1)        Participation in the activities of political parties not prescribed by applicable law.

(2)        Participation in the affairs of, or acceptance of an award for, meritorious public contribution or achievement given by a charitable, religious, professional, social, fraternal, non-profit educational, recreational, public service, or civic organization.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “talents” in subsection (a), “corporations” in subsection (b)(1), and “equipment” in subsection (e)(2) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “administrative officer” and “managing director” in subsection (d) pursuant to 1 CMC § 3806(f).

 

§ 90-40-456     Financial Interests

 

(a)        An employee shall not:

(1)        Have a direct or indirect financial interest that conflicts with MVA duties and responsibilities.

(2)        Engage in directly or indirectly, a financial transaction as a result of, or primarily relying on, information obtained through MVA employment.

 

(b)        This section does not preclude an employee from having a financial interest or engaging in financial transactions to the same extent as a private citizen not employed by the MVA, so long as it is not prohibited by law, the Constitution, or the regulations in this part.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-458     MVA Property

 

General Responsibility. Employees shall be held accountable for MVA properties and money entrusted to their individual use in connection with their official duties. It is their responsibility to protect and conserve MVA property and to use it economically and for official purposes only.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-460     Information

 

It is the policy of the MVA to accord the public access to information about its activities and to make available to the public records of the MVA except in cases where the disclosure of the record is prohibited by statute or constitutes an invasion of privacy of any individual concerned, or the record is exempt from the disclosure requirements, and sound grounds exist which require application of an applicable exemption. An employee may not testify in any judicial or administrative proceedings concerning matters related to the business of the MVA without the permission of the managing director or the Board of Directors.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-462     Gambling, Betting, and Lotteries

 

While on MVA-owned or leased property or while on duty for the MVA, an employee shall not participate in any gambling activity including the operation of a gambling device, in conducting a lottery or pool, in a game for money or property, or in selling or purchasing a numbers slip or ticket, unless the activity has prior approval by the MVA Board of Directors and is a required MVA duty.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-464     Other Types of Conduct

 

(a)        Negotiations for Post-MVA Employment.

It is the policy of the MVA that employees shall not, without proper clearance, negotiate for future non-MVA employment with persons or organizations having business with the MVA and to which the employee is called upon officially to render advice or make judgments. In the event an employee desires to negotiate for such employment, the employee must inform the managing director of his/her intentions. If the managing director determines that the proposed negotiations will not adversely affect the MVA’s interests, the employee may be authorized to proceed.

 

(b)        Selling or Soliciting. Employees and other persons are prohibited from selling or soliciting for personal gain within any building occupied or used by the MVA without proper permission. This prohibition does not apply to:

(1)        Authorized and installed business activities.

(2)        Solicitation for health drives, the Red Cross, and other purposes approved under the government’s fund-raising policy.

(3)        Token solicitations for floral remembrances, retirement gifts, and similar purposes.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (a) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “Cross” in subsection (b)(2) and “gifts” in subsection (b)(3) pursuant to 1 CMC § 3806(g).

 

§ 90-40-466     Community and Professional Activities

 

Employees are encouraged to participate in the activities of professional societies and of civic organizations whose purposes and objectives are not inconsistent with those of the departments in which they are employed. Affiliation with such groups may be mutually beneficial to the employee and to the MVA; however, such participation must not affect adversely an employee’s performance of regularly assigned duties.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Subpart E -    Political Activity

 

§ 90-40-468     Political Activities

 

The political activities of persons in the MVA shall be subject to the restrictions of this subpart.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-470     Rights of Employees

 

All employees in the MVA shall have the following rights:

 

(a)        To vote for the candidates of their choice and to express their opinions on political matters.

 

(b)        To be active members of the political party or organization of their choosing.

 

(c)        To make voluntary contributions to a political party for its general expenditures.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-472     Prohibited Activities

 

Employees of the MVA shall not:

 

(a)        Use their office or official influence to interfere with an election or to affect the results of an election.

 

(b)        Use their official authority to coerce any person or political party in reference to any politically related activity.

 

(c)        Be obligated to contribute to any political fund or render service to any political activity.

 

(d)       Solicit or receive political contributions from anyone while on MVA time, on MVA property, or on MVA business.

 

(e)        Campaign for any candidate for public office during official working hours.

 

(f)        Promote or oppose legislation relating to programs of the MVA without the official sanction of the proper MVA authority. (It should be clearly understood, however, that nothing in this policy is to be considered as restricting or interfering with the obligation of employees to respond freely and candidly to any inquiries made of them in regard to appropriations or related matters.)

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “property” in subsection (d) pursuant to 1 CMC § 3806(g).

 

§ 90-40-474     Public Office

 

An employee who is an official candidate for public office, once certified by the Board of Elections, shall take annual leave or leave without pay.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-476     Penalty

 

An employee found guilty of a prohibited activity shall be subject to disciplinary action.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Part 500 -       Fair Treatment in the Workplace

 

§ 90-40-501     Equal Employment Opportunity Policy

 

(a)        It is the policy of the MVA that there shall be no discrimination based on such factors as race, creed, color, ancestry, membership in a labor organization, political affiliation, place of origin, disability, sex, religion, age, sexual orientation, veterans status, and similar matters not related to individual merit and fitness.

 

(b)        The MVA will establish and implement a system of personnel administration based on merit principles and generally-accepted methods governing the classification of positions and the employment, conduct, movement and separation of MVA employees. The MVA will contribute to the CNMI government’s efforts to build a career service which will attract, select, and retain the best-qualified employees, based on merit, who shall hold their positions free from coercion, discrimination, reprisal, or political influences and will render competent and effective service to the Community, according to the dictates of ethics and morality. In order to achieve these purposes, the MVA that the personnel system shall be applied and administered in accordance with the following merit principles:

(1)        Equal opportunity for all regardless of race, creed, color, ancestry, membership in a labor organization, political affiliation, place of origin, disability, sex, religion, age, sexual orientation, or veterans status;

(2)        Impartial selection of the ablest person for service with the MVA by means of selection tools which are fair, objective, and practical;

(3)        Just opportunity for competent employees to be promoted within the MVA;

(4)        Reasonable job security for the competent employee;

(5)        Systematic classification of all positions through adequate job evaluation;

(6)        Fair and reasonable grievance and complaint procedures for all employees on matters pertinent to conditions of employment and these regulations;

(7)        Proper employer-employee relations to achieve a well-trained, productive, and happy work force.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The paragraphs in the original regulation were undesignated. The Commission designated the paragraphs as subsections (a) and (b) pursuant to 1 CMC § 3806(a). The Commission inserted commas after the words “status” in subsection (a), “select” and “reprisal” in subsection (b), “objective” in subsection (b)(2), and “productive” in subsection (b)(7) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the word “government’s” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-505     Prohibition of Harassment

 

The MVA prohibits any form of unlawful harassment against its employees based upon any of the protected categories listed above. The prohibited conduct includes actions taken by or against employees by other employees, agents, contractors, vendors, or clients. Each employee is expected to assist the MVA in preventing or eliminating harassment by bringing incidents of perceived harassment or discrimination to the attention of management or the MVA’s administrative officer.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “vendors” pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “administrative officer” pursuant to 1 CMC § 3806(f).

 

§ 90-40-510     Prohibition of Sexual Harassment

 

(a)        Sexual harassment of employees by their supervisors, coworkers, vendors, or customers will not be tolerated and should be promptly. Employees at all levels are expected to conduct themselves in a courteous and professional manner at all times. Any behavior that is coercive, intimidating, harassing, or sexually offensive in nature is inappropriate and prohibited.

 

(b)        Based on guidelines developed by the U.S. Equal Employment Opportunity Commission, sexual harassment includes unwelcome sexual advances or requests for sexual favors, or other verbal or physical conduct based on gender when:

(1)        Submission to such conduct is an explicit or implicit term or condition of employment.

(2)        Submission to or rejection of the conduct is used as the basis for an employment decision.

(3)        The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

 

(c)        Inappropriate sexual conduct can take many forms and is not limited to physical assault, unwelcomed, or unwanted sexual requests or demands for sexual favors. Sexual harassing actions may include, but are not limited to, any of the following kinds of behavior: explicit sexual propositions, sexual innuendos, sexually suggestive comments, obscene or sexually suggestive pictures or drawings, obscene gestures or language, sexually oriented jokes and teasing, intimate touching or other unwanted physical contact, such as hugging, pinching, patting, or “accidental” brushing up against.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The initial paragraph was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining subsections pursuant to 1 CMC § 3806(a). The Commission inserted commas after the words “vendors” and “harassing” in subsection (a), “hostile” in subsection (b)(3), and “unwelcomed” and “patting” in subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-515     Expectation of Non-Discriminatory and Non-Harassing Behavior

 

All employees, and especially supervisors and managers, are expected to implement and enforce the equal employment opportunity policy at all times. Discrimination for or against any employee on the basis of any of the protected factors listed above, or any other basis prohibited by federal or Commonwealth law shall not be tolerated. The MVA shall maintain its workplace free from unlawful harassment, including sexual harassment. Any employee or official who engages in any act of discrimination or harassment on the basis of any of the above factors violates MVA and government policy, and such misconduct will subject an employee to corrective action ranging from counseling to adverse action up to and including termination. Such harassment by a non-employee (for example, a client or contractor) is also prohibited. Supervisors and management officials shall not tolerate any such outside harassment and shall take necessary action to prevent its continuation or recurrence.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-520     Complaint Process

 

(a)        Any employee who believes that he or she have been the subject of, or have witnessed, job-related harassment or discrimination (whether by an employee, agent, contractor, vendor, or client of the MVA, or others doing business with the MVA), promptly* report it to a supervisor or manager, or the administrative officer.

 

* So in original.

 

(b)        If any supervisor or manager is considered to be the discriminating or harassing agent, the employee may go directly to the administrative officer or the managing director. Confidentiality will be maintained to the extent permitted by the circumstances.

 

(c)        Complaints of discrimination, harassment and/or retaliation shall be accepted both in writing and orally. If any supervisor or manager becomes aware of a discriminatory or harassment situation, he or she must immediately report the situation to the Administrative Officer or the Managing Director, even if the employee does not wish to file a complaint.

 

(d)       A supervisor who receives a claim of discrimination or harassment in violation of this policy shall take such complaint seriously and immediately notify the managing director. A supervisor who does not take appropriate action also violates this policy and exposes the Commonwealth government to liability.

 

(e)        After a complaint is received, the MVA shall investigate the complaint or promptly forward the complaint to an assigned complaint investigator, who may be within or outside the MVA. The complaint investigator shall commence the investigation immediately upon receipt of the complaint from the contact person. The investigation shall not exceed 14 days unless a longer period is necessary to gather all material information relevant to the complaint. Any person accused of a violation shall be allowed the opportunity to rebut the charges.

 

(f)        After the investigation is completed, the MVA will take appropriate disciplinary action, if warranted. Discipline may include: EEO training, counseling, written warning, demotion, discharge, or any other action deemed appropriate. The MVA will also communicate with the complainant its decision on the results of the investigation and any corrective or remedial actions taken or proposed.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “vendor” in subsection (a) and “discharge” in subsection (f) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “administrative officer” in subsections (a) and (b), “managing director” in subsections (b) and (d), and “complaint investigator” in subsection (e) pursuant to 1 CMC § 3806(f).

 

§ 90-40-525     Retaliation

 

The MVA absolutely forbids retaliation of any kind against any employee who, in good faith, complains about harassment or assists or participates in any manner in the investigation. The MVA will take disciplinary action against anyone, fellow employee or management staff, who attempts to retaliate in any way.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-530     Equal Employment Opportunity Officer and Representative

 

The managing director of the MVA shall be the Equal Employment Opportunity Officer for the MVA with the responsibility for ensuring compliance with the MVA EEO program. The EEO Officer shall appoint and be assisted by the administrative officer, as the MVA’s EEO representative, who shall fulfill this role as part of that person’s regular duties. The administrative officer shall advise employees, including managers and other supervisors, regarding their rights and responsibilities under this policy and applicable federal and Commonwealth laws and shall be provided with appropriate training for such purpose. The administrative officer must be accessible to employees and capable of assisting them in the complaint process.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-535     Nepotism

 

(a)        For the purpose of this regulation, nepotism is defined as employment or employment benefit bestowed on the basis of family relationship and not in consideration of merit.

 

(b)        For the purpose of this regulation, an immediate relative is defined as a spouse, parent, sibling, or child related by blood, legal marriage, common-law marriage, legal adoption, or cultural adoption.

 

(c)        The basic criteria for the appointment and promotion of all MVA employees shall be appropriate qualifications and performance. There shall be no discrimination, for or against, based on relationship by family or marriage in any employment action.

 

(d)       Employment or employment benefit by reason of blood or marriage relationship rather than merit is prohibited.

 

(e)        No employee shall supervise an immediate family member except in emergency situations.

 

(f)        No applicant will be hired to a position with a direct reporting relationship to an immediate relative or where a relationship or association exists that creates a reasonable assumption that that person, as an employee, would be in a favored position in relationship to other employees.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-540     Political Affiliation

 

No person with authority to make or recommend a personnel action relative to a person in, or an applicant for, a position with the MVA, may make inquiry concerning political affiliation. All disclosures made by an employee or an applicant concerning political affiliation shall be ignored. Discrimination may not be exercised, threatened, or promised by any person in the MVA against or in favor of an employee in, or an applicant for, a position with the MVA because of political affiliation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “threatened” pursuant to 1 CMC § 3806(g).

 

§ 90-40-545     Coercion

 

An MVA employee shall not use MVA employment to coerce, or give the appearance of coercing, a person to provide financial benefit to self or another person, particularly one with whom the employee has family, business, or financial ties.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “business” pursuant to 1 CMC § 3806(g).

 

Part 600 -       Employee Benefits and Services

 

§ 90-40-601     Policy

 

The MVA will provide benefits and services to its employees in keeping with the general practices of the CNMI government and private enterprise and as limited or prescribed by law. This part delineates those benefits and services which include:

 

(a)        Leaves of absence; and*

 

* So in original.

 

(b)        Insurance, such as group life and health insurance, accident and health insurance, and worker’s compensation coverage.

 

(c)        Retirement

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “government” in the introductory paragraph pursuant to 1 CMC § 3806(f).

 

Subpart A -    Leaves of Absence

 

§ 90-40-605     Purpose

 

Leaves of absence from work are for the mutual benefit of the employee and employer. When leaves of absence are granted, they will be approved based upon legitimate* as presented by the employee for such times as will not be detrimental to the MVA and its responsibilities.

 

* So in original.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-610     Types of Government Service that Qualify for Leave Accrual Purposes

 

Prior service in the following government activities will count in the determination of the MVA leave accrual rate:

 

(a)        Employment within the departments of the executive branch.

 

(b)        Employment within the judicial branch.

 

(c)        Employment within the legislative branch.

 

(d)       Employment within government corporations, agencies, commissions, and instrumentalities.

 

(e)        Employment within the offices of the mayors and the municipal councils.

 

(f)        Prior service employment within the Trust Territories government, as defined and recognized by the Commonwealth government’s civil service regulations.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of names of government entities pursuant to 1 CMC § 3806(f). The Commission inserted periods at the ends of subsections (a) through (e) pursuant to 1 CMC § 3806(g). The Commission inserted a comma after the word “commissions” in subsection (d) pursuant to 1 CMC § 3806(g).

 

§ 90-40-615     Kinds of Leaves

 

Broadly characterized, leaves of absence are either with pay or without pay.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-620     Leaves with Pay

 

(a)        Annual Leave.

(1)        Annual leave, or vacation, shall be granted for the purpose of rest and relaxation. Annual leave requests must be made at least three work days in advance on a leave request form. All annual leave requests must be approved by the employee’s section manager and concurred by the managing director. A denial of request for annual leave is subject to employees’ grievance rights.

(2)        MVA employees who have less than three years of creditable service shall earn annual leave at the rate of four hours per pay period; except that newly appointed employees shall undergo a waiting period of ninety calendar days before being credited with annual leave. Employees with three but less than six years of creditable service shall earn annual leave at the rate of six hours per pay period. Employees who have six or more years of creditable service shall earn annual leave at the rate of eight hours per pay period.

(3)        Maximum Accumulation. The maximum accumulation of annual leave for MVA employees shall be three hundred sixty hours. Accrued annual leave in excess of 360 hours remaining at the end of each calendar leave year shall be converted to sick leave.

 

(b)        Sick Leave.

(1)        Sick leave shall be allowed whenever the employee is to be absent from duty because of illness or injury or because of medically required quarantine of the family and/or residence. Use of sick leave is appropriate for medical, dental, optometric or mental health counseling or other necessary treatment which the employee personally must undergo.

(2)        If an employee is absent because of illness, injury, or quarantine in excess of three days, the employee may be required to furnish a certification as to the incapacity from the attending physician. The managing director may require certification for such other period(s) of illness as is determined appropriate due to suspected abuse of the sick leave benefit.

(3)        If the required certification is not furnished, all absence which would have been covered by such certification shall be indicated on the time and attendance record and the payroll as absent without leave (AWOL).

(4)        Sick leave may be accumulated and carried over to succeeding leave years without limitation. A report showing the accrued sick leave balance will be provided the employee each pay period.

(5)        The generality of the foregoing is subject to the following special provisions:

(i)         Falsification of an illness report shall be considered sufficient cause for disciplinary action, including dismissal from employment.

(ii)        Sick leave with pay shall be allowed during leaves of absence or vacations; provided, however, that any sick leave taken by an employee while on vacation must be supported by a certified medical statement issued by the attending physician. No employee shall be allowed to undertake gainful employment while on sick leave status.

(iii)       Sick leave with pay may be granted in advance of earning sick leave as provided under subsection (d). If an employee is separated from the service without having earned all of the sick leave allowed and taken, there shall be deducted from any money due the employee at the time of separation an amount equal to salary for the period of unearned sick leave allowed and taken.

(6)        Sick leave accrued for service with the government in any branch or agency shall vest in the employee upon accrual and shall remain vested so long as the individual is employed by the government, provided that if such employee is separated from government service (other than through retirement) for a period longer than three years, the employee shall be divested of accumulated sick leave.

 

(c)        Family Sick Leave. It should be noted that this leave, while it may be counted as Family and Medical Leave Act (FMLA) leave is authorized by Commonwealth law and should not be confused with the federal FMLA.

(1)        An employee may apply for leave to attend to an immediate family member who is sick. For leave in excess of two consecutive days, such request shall be supported by a certified medical statement. Leave taken for this purpose shall be deducted from the employee’s earned sick leave.

(2)        Per Public Law No. 15-116 the following definitions apply for family sick leave:

(i)         “Certified medical statement” means a statement from an attending physician that a Commonwealth government employee is needed to care for an immediate family member;

(ii)        “Immediate family member” means a legal spouse; child, whether natural or adopted, or parent.

(3)        Employees are authorized to use up to 80 hours of earned sick leave hours per 12 month period. The managing director may approve an additional 80 hours in cases of severe illness or injury, or the need to accompany a qualified sick immediate family member for off-island treatment.

(4)        Only one family member, as designated in a medical referral statement, may use this benefit to accompany a qualified sick immediate family member for off-island treatment.

(5)        An employee may not utilize this benefit:

(i)         until all annual leave has been exhausted

(ii)        if it brings the employee’s sick leave balance to less than 40 hours.

 

(d)       Leave Advance.

(1)        Where, for good reason, an employee requires additional annual or sick leave in addition to the amounts accrued, the managing director, with recommendation of the employee’s section manager, may grant advance leave. For permanent employees the advance leave will be limited to a maximum of one-half of the total earnable leave credits for which the employee is eligible for one year from the date the application is received. In the case of limited term or probationary employees, advance leave can be approved up to a maximum of one-half of the total earnable leave credits for which the employee is eligible during the remainder of the employment term, whichever is shorter. Subsequent accrued leave earnings shall serve to replace the amount of advance leave granted and taken. Requests for leave advance must be in writing from the employee with a recommendation from the section manager.

(2)        Leave advance granted and taken:

(i)         Constitutes a legal contract between the employee and the MVA; and

(ii)        Must be repaid, even if the employee separates or transfers from the MVA. Recovery of advance leave that is unpaid may be through the MVA’s assumption of employee’s accrued unused leave, payroll deductions, matched reduction of service time, and/or recourse to the courts.

 

(e)        Compassionate Leave. Employees may be granted compassionate leave with pay of no more than five consecutive work days in cases of death in the immediate family of the employee. For the purpose of this subpart, the term “immediate family” shall be defined as an employee’s mother, father, brother, sister, spouse, immediate off-spring (natural and culturally or legally adopted), grandfather, grandmother, grandchild, mother-in-law, or father-in-law. Compassionate leave must be taken within eighteen days after the death of the immediate family member. The managing director will be responsible for approving compassionate leave requests.

 

(f)        Administrative Leaves. An absence from duty administratively authorized, without loss of pay and without charge to accrued leave, is administrative leave. The governor or the managing director may approve administrative leave requests. The following are the three general classes into which administrative leaves fall:

(1)        Administrative leave may be authorized under emergency conditions beyond the control of management, e.g., typhoons, or for participation in civic activities of interest to the government, or for such reasons as the Governor may determine (such as a shortened work day on Christmas Eve).

(2)        Administrative leaves may be authorized relative to disciplinary actions. The managing director may place an employee in non-working status with pay for up to three work days pending an investigation or preparation of a notice of proposed suspension for up to thirty calendar days or termination of employment.

(3)        Administrative leave may be granted to employees serving on government boards and commissions, provided such employees do not receive compensation from the boards and commissions.

 

(g)        Court Leave. The MVA encourages its employees to fulfill their obligations as citizens of the Commonwealth. Thus, employees who are called upon to serve as jurors may, at their option, be granted court leave for such period as the jury may be impaneled. Employees who are called to jury duty shall present their juror summons to their section manager together with a completed request for leave for the managing director’s approval. Employees who serve as jurors using court leave to cover the period of absence shall turn over to the Commonwealth Treasurer such jury fees (as distinct from expense allowances) as they receive from a Commonwealth court. Expense allowances paid the employee for whatever purpose may be retained by the employee to defray the expenses for which granted. The employee may retain any jury fee paid by the federal court. An employee subpoenaed as witness, except as a government witness, shall charge such absence to annual leave or leave without pay. Court leave shall be granted to an employee subpoenaed in litigation in which the government has no interest, to serve as a witness in the employee’s present or past official capacity as a government employee and who may be required to present government records in testimony. Such employee must inform the managing director of the required testimony as soon as possible after being subpoenaed.

 

(h)        Military Leave. Military leaves of absence with pay, not to exceed fifteen working days in any calendar year, regardless of the number of training periods in the year, may be granted by the managing director to employees who are members of the United States National Guard and reserve components of the United States Armed Forces, when directed under orders issued by proper military authority. Administrative leave will not be granted in order to extend leave time for any additional training days.

 

(i)         Maternity Leave. Maternity leave shall be granted to a female employee who is absent from work because of childbirth. The managing director shall have the responsibility for approving maternity leave requests. Such maternity leave shall not exceed fifteen work days, shall be in addition to any accumulated sick leave, and shall be any fifteen work days encompassing the date of childbirth. Any additional leave taken for such childbirth purposes shall be charged against accumulated sick leave. This benefit will not be granted in cases of adoption. All leave time related to the birth of a child will be counted as family and medical leave.

 

(j)         Paternity Leave. Paternity leave shall be granted to a male employee on* who is absent from work because of his wife’s confinement for childbirth. Such paternity leave shall not exceed two work days encompassing the date of childbirth. The appointing authority shall have the responsibility for approving paternity leave requests.

 

* So in original.

 

(k)        Sick Leave Bank Leave.

(1)        All MVA employees are eligible to participate in and utilize the Commonwealth’s Sick Leave Bank established by Public Law No. 8-25, as amended by Public Law No. 15-69.

(2)        The Sick Leave Bank serves as a depository into which participating employees may donate accrued sick leave time for allocation to other Commonwealth employees who have personally suffered, or have an immediate family member who has suffered, a catastrophic illness or injury, and who have exhausted their compensatory time, sick leave, and annual leave balances.

(3)        Employees are eligible for up to 160 hours of Sick Leave Bank hours once during their employment, unless the loaned hours are repaid. The terms and conditions of this benefit are provided in the Sick Leave Bank Regulations [NMIAC, title 10, chapter 50].

(4)        The MVA Administrative Office will provide access to this regulation and will assist employees in submitting applications for this benefit.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsections (a), (b)(2), (c)(3), (d)(1), (e), (f), (f)(2), (g), (h), and (i), “family sick leave” in subsection (c)(2), “government” in subsection (c)(2)(i), “employee” in subsection (c)(5), “federal” in subsection (g), and “family medical leave” in subsection (i) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “injury” in subsection (b)(2), “time” in subsection (d)(2)(ii), and “mother-in-law” in subsection (e) pursuant to 1 CMC § 3806(g). The Commission struck the figure “2” from subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 90-40-625     Leaves without Pay

 

(a)        Leave Without Pay for Personal Reasons. An employee may be granted leave without pay not to exceed ninety consecutive work days if the managing director considers it justified. Leave without pay may be extended up to ninety additional consecutive work days only with the approval of the Board of Directors Personnel Committee, upon recommendation by the managing director. Such leave without pay may be granted to permit the employee to attend to important family affairs, or for justifiable personal or business reasons.

 

(b)        Leave Without Pay in Extension of Annual or Sick Leave. An employee may be granted leave without pay (LWOP) for the purpose of extending annual or sick leave. When sick leave is so extended, the attending physician must provide medical certification as to the necessity of the extension. The managing director is responsible for approving or disapproving requests for leave without pay, upon recommendation by the section manager.

 

(c)        Tardiness.

(1)        At the end of each pay period accumulated tardiness in excess of 15 minutes shall be charged to leave without pay (LWOP) or absence without leave (AWOL). In respect to each incident of tardiness,

(i)         If the period of lateness is less than one hour it will be charged to LWOP or annual leave at the employee’s election.

(ii)        If the period of lateness is more than one hour the managing director will review the justification for absence to determine whether annual leave can be used in lieu of leave without pay.

(2)        The period of tardiness shall be calculated in the same manner as hours worked are calculated for time keeping purposes.

 

(d)       Extended Military Leave. The federal Uniformed Services Employment and Reemployment Act (USERRA) generally requires the Commonwealth government to provide extended military leave for its career employees, regardless of whether the service is voluntary or involuntary. The cumulative length of all absences due to military leave and extended military leave shall not exceed five years, unless extended for good reason documented in writing by the managing director. The employee must give advance notice to the managing director, unless military necessity or circumstances make this impossible or unreasonable. In most cases, the employee is guaranteed reinstatement rights and certain seniority rights upon return from leave. The employee must also comply with requests for documentation and with the requirements of this subchapter regarding the timing of applications for reemployment. For details, employees and managers should contact the U.S. Department of Labor.

 

(e)        Family and Medical Leave Act (FMLA) Leave.

(1)        The federal Family and Medical Leave Act of 1993 (FMLA), as amended, entitles employees who have worked for the Commonwealth for at least one year and who worked at least 1,250 hours over the previous 12 months to take up to 12 weeks of LWOP for any of the following reasons:

(i)         To care for the employee’s child after birth or placement for adoption or foster care;

(ii)        To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or*

(iii)       For a serious health condition that makes the employee unable to perform the employee’s job.

(iv)       For specified situations relating to family members in military service.

(2)        Annual leave, sick leave, maternity leave, or paternity leave may be substituted for LWOP for FMLA purposes. All leave qualifying under the FMLA shall be documented as FMLA leave either before it is taken or promptly thereafter. The MVA can designate a leave as a FMLA leave.

(3)        In most cases, participation in the government group health insurance program shall continue during FMLA leave.

(4)        The definitions, benefit eligibility, and limits and notification procedures comply with the federal Family and Medical Leave Act (FMLA) of 1973 as amended in November 2008.

 

* So in original.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsections (a), (b), (c)(1)(ii), and (d) and “only” in subsection (a) pursuant to 1 CMC § 3806(f).

 

§ 90-40-630     Basis for Accrual

 

(a)        Employees shall accrue annual leave and sick leave for each biweekly pay period in which they are in pay status for the entire ten days. Pay status will include paid annual or sick leave, holidays, administrative leave, and overtime work hours. No annual leave will be earned if the pay period includes unpaid periods where the total time worked is less than 80 hours per pay period. If the work week is shortened due to the needs of the MVA, the shortened work week will then be the basis for leave accrual.

 

(b)        Provided, however, employees serving on government boards and commissions who elect to take leave without pay (LWOP) during such performance shall accrue leave for that service time.

 

(c)        Part-time employees with regular scheduled tours of duty of forty to seventy hours during a biweekly pay period will accrue annual and sick leave at one-half the rate of full-time employees and will be eligible for other paid leaves, as provided in § 620* at this rate.

 

* So in original. See Commission Comment.

 

(d)       Part-time employees with regular scheduled tours of duty of less that forty hours during a biweekly pay period will not accrue annual or sick leave benefits or be eligible for the other paid leave benefits. Part-time employees must be in a pay status for their full regular scheduled tour of duty for the entire ten days; otherwise there shall be no accrual for such period.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: Subsection (c) makes reference to “§ 620.” The original regulation did not contain a section 620, but section 705 of the original regulation, codified at § 90-40-620, contains paid leave regulations.

 

The Commission inserted a comma after the word “leave” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 90-40-635     Unauthorized Leave

 

Unauthorized leave (absent without leave, AWOL) is absence from duty without appropriate authorization. Employees who are absent from duty without prior approval, except in bona fide emergencies, shall be charged as being AWOL. Employees who are AWOL are subject to loss of pay and possible disciplinary action.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-640     Disposition of Leave upon Separation

 

(a)        Annual Leave.

(1)        An employee separated from the MVA for any reason shall receive a lump-sum payment for all annual leave accrued to the employee’s credit and remaining unused at the time of separation. If the employee returns to duty in any capacity with the government before the accumulated term of leave would have expired, had it been liquidated in the normal course of employment, the employee must return to the government the gross value of such unused leave and have those hours of leave re-credited to the employee’s annual leave account.

For example:

If an employee has 360 hours annual leave to his credit upon separation that represents 45 days of annual leave. If the employee returns to government employment before the passage of 45 work days, the employee is required to make a refund for the unexpired term of leave remaining. To calculate the amount of repayment, subtract the number of work days (exclusive of holidays or other paid days off) from the annual leave amount paid to the employee.

(2)        Repayment may be through lump-sum cash prior to resuming duty status, payroll deduction, or assigning to the government all annual leave accrued subsequent to returning to duty until the repayment is completed.

 

(b)        Sick Leave. An employee separated from the MVA for any reason shall have all sick leave accrued to the employee’s account held in the leave records for three years. Should the person be reemployed in any government agency at any time during that three year period, the sick leave balance shall be recredited to the employee’s sick leave account and available for use from the first day of reemployment. Provided, however, that an employee separated from the MVA for retirement purposes, and whose unused sick leave has been converted to service time to determine eligibility in the retirement program, shall not be recredited for such sick leave balance.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “deduction” in subsection (a)(2) pursuant to 1 CMC § 3806(g).

 

§ 90-40-645     Administration of the System

 

(a)        Leave Year. For administrative convenience, leave accumulations and usages are based upon the leave year. A “leave year” is that period of 52 consecutive weeks (26 pay periods) which begins on the first day of the first full pay period of the calendar year and ends on the last day of the last pay period which begins in that calendar year.

 

(b)        Employee’s Right to Annual Leave. Employees have a legal right to accumulate annual leave, but the right to use that leave is contingent upon management’s requirements. Thus, it is incumbent upon managers and employees to agree mutually as to the duration of annual leave and the period of taking. A manager is wholly within managerial rights to deny an employee’s request for annual leave if that denial is based upon demands of MVA. The manager is obligated, in event of a denial, to suggest to the employee a more appropriate time for taking annual leave.

 

(c)        Vacation Scheduling. The MVA urges and encourages employees to use annual leave for the purpose for which it is intended. That is for rest and relaxation. The MVA considers that a “vacation” of not less than two consecutive weeks of annual leave meets the basic intent of annual leave provisions. To avoid internal dissension, managers are urged to schedule vacation periods for their employees, bearing in mind employees’ preferences, needs, and desires, so that the MVA will not be unduly affected by employee absences.

 

(d)       Lump Sum Leave Payment upon Separation. When an employee is separated from the MVA, the employee is entitled to the payment of unused annual leave in a lump sum. However, lump-sum leave payment shall not be processed for an employee who has not completed the MVA’s separation requirements.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “needs” in subsection (c) pursuant to 1 CMC § 3806(g).

 

Subpart B -    Insurance

 

§ 90-40-650     General

 

It is the policy of the MVA to provide certain insurance benefits to all its employees, whatever their appointive status. These are defined in the section which follows.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-655     Nature of Coverage

 

(a)        In the event of an on-the-job work-related injury or illness, the employee may be entitled to benefits under the Commonwealth's Workers' Compensation Insurance program.

 

(b)        The MVA will pay part of the cost of group health and group life insurance coverage and the employee may pay his/her share through payroll. The MVA does not pay any share of the group dental insurance.

 

(c)        Employees have the option to waive dental, health/medical, and life insurance.

 

(d)       Managers and supervisors are responsible to know the provisions of the several plans for coverage of the employees under their supervision and the procedures necessary to present claims.

 

(e)        Employees are responsible to familiarize themselves with reporting procedures so that they may be assured of proper coverage in event of injury or illness.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “group health,” “group life insurance,” and “group dental” pursuant to 1 CMC § 3806(f).

 

Subpart C -    Retirement

 

§ 90-40-660     Retirement Program

 

1 CMC, Division 8, Part 3 of the CNMI Commonwealth Code requires participation in the Retirement Fund by all government employees including employees of the MVA. Rights and benefits of members will be governed by effective statutes and regulations.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Part 700 -       Performance Evaluation

 

§ 90-40-701     Employee Performance Evaluation Process

 

The MVA will establish and maintain an employee work performance review system which will recognize, evaluate and reward employees and their contributions toward increasing efficiency and economy within the MVA. An employee performance evaluation process is essential to:

 

(a)        Improve employee effectiveness by:

(1)        Providing a working atmosphere in which an employee may be motivated to achieve the highest performance potential; and

(2)        Identifying work performance standards agreed to by both management and employee.

 

(b)        Strengthen the employee-supervisory relationship by:

(1)        Establishing a framework for continuing employee-supervisor communications regarding performance standards and development of employee potential; and

(2)        Guaranteeing employees the opportunity to participate in the establishment of performance standards.

 

(c)        Provide management with an objective basis for relating employee work performance to a wide variety of pertinent personnel management activities.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-705     Policy

 

(a)        The managing director shall ensure that managers/supervisors in their respective jurisdictions reach and maintain a clear understanding with their subordinates of the standards of work performance which must be met in order to successfully accomplish assigned work. The supervisor and the employee, on a person-to-person basis, must understand and agree on the work objectives set, the manner in which they can be reached, and the way they will be evaluated. A review of the employee’s position description is necessary, therefore, to assure such understanding of the duties, performance standards, and work objectives established.

 

(b)        A written rating of performance shall be submitted by the employee’s manager/supervisor annually, commencing at the anniversary of the employee’s employment date, based upon the preceding twelve months performance record and other pertinent factors. The performance rating will be acknowledged by the employee and concurred by the managing director, on forms prescribed by the MVA Personnel Committee, for each permanent, probationary, and limited-term employee. The MVA administrative officer shall administer the performance rating report ensuring timely and justified implementation of the program and will alert the managing director to any problem or changes needed for improvement to the program.

 

(c)        Non-MVA employees shall not be delegated the authority to supervise or evaluate MVA employees.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsections (a) and (b) and “administrative officer” in subsection (b) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “standards” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 90-40-710     Responsibilities

 

(a)        The MVA Personnel Committee shall be responsible to:

(1)        Develop, evaluate, and improve the MVA’s annual employee review system and performance rating report; and

(2)        Provide advice, assistance, and supervision in the administration of the system.

 

(b)        The managing director shall be responsible to implement, administer, and obtain compliance with the purposes of the system, including:

(1)        Provide assistance to supervisors and employees, as needed, in preparing the annual performance rating;

(2)        Provide training to managers/supervisors so they can effectively evaluate employee performance; and

(3)        Assure that employees understand the provisions, procedures, and objectives of the performance evaluation plan.

 

(c)        Managers/supervisors are responsible to:

(1)        Ensure that position descriptions accurately reflect the duties and responsibilities assigned;

(2)        Determine jointly with each employee the performance standards to be met and keep each employee advised of strengths, weaknesses, and opportunities for improvement;

(3)        Provide periodic counseling to employees throughout the evaluation year and document significant incidents of good or poor performance;

(4)        Conduct the annual employee performance reviews; and

(5)        Initiate appropriate personnel actions in cases of continuing unsatisfactory performance.

 

(d)       The employee is responsible to:

(1)        Request clarification from the manager/supervisor of any performance ratings, work objectives, or duties which are not clearly understood;

(2)        Advise the manager/supervisor of any fact or circumstance which the employee believes should be considered during the review process;

(3)        Participate in performance appraisal discussions and in the development of performance standards, and make suggestions for improving performance; and

(4)        Acknowledge the performance ratings.

 

(e)        In the event the employee disagrees with any of the ratings, the employee must so indicate on the performance rating form and must submit a written statement to the managing director for review and inclusion in the employee’s official personnel folder along with the appraisal.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “evaluate” in subsection (a)(1), “assistance” in subsection (a)(2), “administer” in subsection (b), “procedures” in subsection (b)(3), “weaknesses” in subsection (c)(2), and “objectives” in subsection (d)(1) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “managing director” in subsections (b) and (e), “supervisors” in subsection (c), and “official personnel folder” in subsection (e) pursuant to 1 CMC § 3806(f).

 

§ 90-40-715     Relationship to Other Personnel Management Activities

 

(a)        By using the employee anniversary date system (as contrasted to a fixed due date), managers/supervisors will have a full year to better consider and evaluate each employee and coordinate the employee’s performance evaluation with the other factors which make up the totality of the employee review system.

 

(b)        Managers/supervisors do not have a right to retain an employee in a position in which the employee’s overall rating is “unsatisfactory.” To permit such a situation would not be in the best public interest and would not be consistent with good management principles. In such cases, the manager/supervisor must initiate the necessary personnel action to have such an employee reassigned, demoted, or separated from the position at the earliest possible date in accordance with the provisions of this regulation.

 

(c)        An employee with a current official rating of “outstanding/exceptional” will receive an additional two points of retention credit for reduction-in-force purposes.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “supervisors” in subsection (b) pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “demoted” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-720     Performance Rating

 

A completed performance rating must be submitted to the managing director by the responsible manager/supervisor for each employee on an annual basis at the employee’s anniversary date for appropriate action.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” pursuant to 1 CMC § 3806(f).

 

§ 90-40-725     Rating Probationary Employees

 

The final probationary performance rating shall be completed for probationary appointees prior to the completion of six months of employment with MVA. The rating will recommend conversion to a permanent appointment after six months or a continuation of probationary status until the end of one year of employment.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-730     Appeals

 

An employee may appeal an “unsatisfactory” appraisal as provided in part 200, subpart B, of this chapter.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted part numbers pursuant to 1 CMC § 3806(d).

 

Part 800 -       Training and Employee Development

 

§ 90-40-801     Policy

 

As appropriate training increases workers’ effectiveness in jobs, improves morale, decreases labor turnover, prepares new employees to do jobs for which they are not trained, provides an effective means of screening and placement, and prepares employees for filling responsible jobs and upward mobility, MVA acknowledges its commitment to train and develop a viable workforce within the MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-805     Responsibilities

 

(a)        The managing director, supported by the MVA administrative officer, shall:

(1)        Implement training programs at all levels within MVA to assure that training objectives are met;

(2)        Determine annual training objectives and implementation plans that reflect the immediate priorities within the MVA;

(3)        Budget funds to support the needed training programs;

(4)        Report to the MVA Board of Directors annually by September 30 of each year, the nature, content, and results attained by in-service training activities;

 

(b)        The MVA administrative officer will hold the secondary role of training officer for the MVA and shall work with managers/supervisors to:

(1)        Identify and define training needs for developing the MVA workforce;

(2)        Determine training goals to be met for each MVA job category;

(3)        Establish training and development goals to be met by MVA employees for promotion and career development;

(4)        Evaluate all training programs to ensure that manpower development programs accomplish their objectives;

(5)        Assure that training and education services in the Commonwealth are fully utilized before seeking outside sources; and

(6)        Develop a recommended training schedule to be submitted with the annual budget;

(7)        Provide advice and assistance to managers/supervisors as they conduct employee development activities;

(8)        Locate, evaluate, and determine the cost of training resources within and outside the Commonwealth, as needed;

(9)        Maintain current training records for all employees;

(10)      Improve quality of training through evaluation of course content and practical testing of skills and knowledge gained through training.

 

(c)        Supervisors/managers, in carrying out the training objectives in their respective program areas, shall:

(1)        Plan to release employees when needed for formal classroom instruction;

(2)        Inform trainees of the content of the training programs, the objectives and benefits, and the employees’ responsibility to absorb and use the instruction provided;

(3)        Encourage employees to engage in self-improvement activities which may lead to improved performance and possible promotion; and

(4)        Deliver or assist in the delivery of instruction within the limits of their individual capabilities.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (a), “administrative officer” in subsections (a) and (b), “training officer” in subsection (b), and “managers” in subsection (c) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “content” in subsection (a)(4) and “evaluate” in subsection (b)(8) pursuant to 1 CMC § 3806(g).

 

§ 90-40-810     Coverage

 

All training must be authorized by the managing director, will be work-related, and will be limited to the following categories:

 

(a)        Orientation: Within one week after an employee enters employment with MVA, the MVA administrative officer and the employee’s manager/supervisor will conduct an orientation for the new employee in the policies, procedures, rules, and regulations which are specific to the employee and to the performance of the employee’s job.

 

(b)        Job Skills: training to:

(1)        Improve an employee’s performance in the position currently occupied; and

(2)        Prepare an employee to move laterally in the same or closely related class of position.

 

(c)        Promotional: training which prepares an employee to perform with adequate efficiency the basic task of higher-level position for which the employee is being trained.

 

(d)       Developmental: training offered to broaden an employee’s knowledge and perspectives.

 

(e)        Supervisory, Managerial, and Executive Training:

(1)        Inasmuch as the work of the government is the best and most important training resource for potential managers, opportunity should be given to qualified employees to participate in progressively responsible work within the area(s) of intended succession.

(2)        Opportunities for supervisory, managerial, professional, and executive training will be offered to potential managers if value to MVA can be identified and if funding is available.

(3)        Employees entering a supervisory position must receive supervisory/management training not earlier than six months prior to such promotion and no later than six months after entry into such position.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in the introductory paragraph, “administrative officer” in subsection (a), and “supervisory, managerial, professional, and executive training” in subsection (e)(2) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “rules” in subsection (a), “managerial” in subsection (e), and “professional” in subsection (e)(2) pursuant to 1 CMC § 3806 (g). The Commission inserted a period at the end of subsection (d) pursuant to 1 CMC § 3806(g).

 

§ 90-40-815     External Training Sources

 

Training courses provided by sources outside the Commonwealth will be utilized as necessary and to the extent the budget will permit.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-820     Training Costs Defined

 

(a)        The term “all costs,” when used in this part to define the MVA’s intent to support an employee undergoing training, means:

(1)        Round trip transportation to the training site by the least expensive air routing;

(2)        Mileage allowance for on-island travel by private transportation;

(3)        Training leave with pay, i.e., the employee’s regular salary will be paid, as all training will be work-related and the employee will be in work status. If overtime work is required and performed, payment will be made in accordance with law.

(4)        Cost of tuition, books, and fees; and

(5)        Stipend. i.e., the regular per diem rate for the time authorized to be spent at the training site.

 

(b)        MVA will pay all pre-reviewed and approved necessary costs for training.

 

(c)        Unapproved costs incurred or caused by the employee will be the responsibility of the employee.

 

(d)       Unplanned and unavoidable expenses related to approved-training and not caused by the actions of the employee will be reviewed on a case-by-case basis by the managing director.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “books” in subsection (a)(4) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “managing director” in subsection (d) pursuant to 1 CMC § 3806(f).

 

§ 90-40-825     Support for Training

 

Managers/supervisors are encouraged to support positively MVA’s training efforts, as improved skills and more effective supervision at all levels will improve mission accomplishment.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “supervisors” pursuant to 1 CMC § 3806(f).

 

§ 90-40-830     Evaluation of Training

 

(a)        The MVA administrative officer shall develop and maintain a system which will provide information and analysis of the effectiveness of training received by MVA employees. Such analyses shall be used to determine the value of training received and programs utilized.

 

(b)        All personnel who attend and return from a training course outside the Commonwealth shall submit to the MVA administrative officer a written report including a summary of the course along with a judgment of the added value gained from the course.

 

(c)        Employees who received training may be required to provide a presentation to MVA managers/supervisors and/or staff, sharing the training received.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The introductory paragraph was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining paragraphs pursuant to 1 CMC § 3806(a). The Commission corrected the capitalization of the words “administrative officer” in subsections (a) and (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-835     Unsponsored Training Activities

 

(a)        Personal advancement training or academic training toward baccalaureate or higher degrees is highly encouraged. However, the MVA shall not sponsor or have any responsibility for any costs incurred for such training.

 

(b)        Personal advancement training or academic training taken at the election of the employee will utilize annual leave or leave without pay, as approved by the managing director.

 

(c)        Unsponsored training activities will comply with the leave policies established by this regulation.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-840     Workshops

 

An employee occupying a permanent position who successfully completes 120 hours of training workshops that are supervised, sponsored, and/or sanctioned by the MVA may be given a salary increase equivalent to one step in accordance with the provisions established in section 90-40-336.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d). The Commission inserted a comma after the word “sponsored” pursuant to 1 CMC § 3806(g).

 

Part 900 -       Performance Management Evaluation

 

§ 90-40-901     Purpose

 

Regularly and honestly evaluating the performance of the MVA is one of the most difficult, yet one of the most important requirements for MVA to be a successful organization. A meaningful performance management evaluation requires that the individuals conducting the evaluation not only to know and understand the mission, strategy, and goals established by the MVA for the period being evaluated, but also the projects and their measurable objectives for each MVA section and the duties and responsibilities for each employee. With this knowledge and the use of analytical evaluative methods the evaluator must determine how well each section has performed in their part of achieving the MVA mission and goals, and then, after full consideration of the findings, make an objective judgment of the overall degree of effectiveness that MVA has attained in relation to mission and goal accomplishment.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “strategy” pursuant to 1 CMC § 3806(g).

 

§ 90-40-905     MVA Mission Statement

 

The MVA mission statement was previously stated in section 90-40-005:

 

To promote and develop the Northern Mariana Islands as the premiere destination of choice for visitors from throughout the world while providing a maximum quality of life for our people. We nurture and encourage cultural interchange and environmental sensitivity for visitor’s enjoyment and for our children’s children.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission substituted section numbers pursuant to 1 CMC § 3806(d). The Commission corrected the capitalization of the words “mission statement” pursuant to 1 CMC § 3806(f).

 

§ 90-40-910     MVA Strategic Goals

 

The MVA’s long range plan and strategic goals will be set, reviewed, and modified, as required by changing circumstances, annually in conjunction with budget development at a strategic planning session held for that express purpose.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “long range plan,” “strategic goals,” and “strategic planning” pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “reviewed” pursuant to 1 CMC § 3806(g).

 

§ 90-40-915     Objectives of the MVA Performance Management Evaluation Program

 

The objectives of the MVA performance management evaluation program are to:

 

(a)        Provide a comprehensive basis for improvements in MVA’s management of its activities, programs, and employee performance;

 

(b)        Assure compliance with statutory requirements, regulations, and Board directives governing MVA’s programs and practices;

 

(c)        Evaluate the participation and effectiveness of managers and supervisors in their performance management and section goal attainment; and

 

(d)       Achieve the MVA goals and objectives established in the annual strategic planning session.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “performance management” pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “programs” in subsection (a) and “regulations” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 90-40-920     Responsibilities

 

(a)        Section managers are responsible for:

(1)        Establishing section objectives that contribute to the accomplishment of MVA’s strategic objectives;

(2)        Providing leadership, guidance, and supervision in the accomplishment of section objectives;

(3)        Keeping the managing director apprised of significant problems and achievements in carrying out their performance management responsibilities and accomplishing their assigned portion of the MVA’s strategic goals.

 

(b)        The managing director is responsible for:

(1)        Guiding senior MVA managers in an annual strategic planning session to establish, review, and modify strategic goals for the MVA;

(2)        Providing management, direction, and continued oversight in the accomplishment of the MVA’s established strategic goals;

(3)        Conducting, through a designated evaluation officer, an annual performance management evaluation to measure goal accomplishment;

(4)        Using evaluation results to work with the MVA management team and the Board of Directors to developing plans for improving MVA’s performance and goal accomplishment.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the word “managers” in subsection (a), “managing director” in subsections (a)(3) and (b), and “evaluation officer” in subsection (b)(3) pursuant to 1 CMC § 3806(f). The Commission inserted commas after the words “guidance” in subsection (a)(2), “review” in subsection (b)(1), and “direction” in subsection (b)(2) pursuant to 1 CMC § 3806(g).

 

§ 90-40-925     Annual Report

 

(a)        Report of the MVA performance management evaluation shall be made to the MVA Board in its annual report not later than November 30 of each year. The report shall be based upon:

(1)        the comprehensive MVA performance management evaluation report on the projects completed and the goal-related objectives reached for each section; and*

(2)        the overall successful goal achievement performance of the MVA.

(3)        the MVA’s financial status on the last day of the fiscal year.

 

* So in original.

 

(b)        The designated evaluating officer in consultation with the managing director shall develop the evaluation plan and the format for reporting.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “performance management evaluation” in subsection (a), “performance management” in subsection (a)(1), and “managing director” in subsection (b) pursuant to 1 CMC § 3806(f).

 

§ 90-40-930     Action

 

Using on-going observations and the findings in the annual comprehensive MVA performance management report, the managing director shall:

 

(a)        Direct and follow-up on corrective action to be taken with respect to any deficiencies noted in any of the reports.

 

(b)        Ensure that managers conduct or arrange training for those employees who appear to be deficient in the supervisory, technical, or other job-related performance aspects of meeting MVA’s mission, as indicated in the several evaluations.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “managing director” in the introductory paragraph pursuant to 1 CMC § 3806(f). The Commission inserted a comma after the word “technical” in subsection (b) pursuant to 1 CMC § 3806(g).

 

Part 1000 -     Records and Reports

 

§ 90-40-1001   Purpose

 

This subpart defines the minimum requirements for personnel records to be originated and maintained by the MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

§ 90-40-1005   Policy

 

MVA shall establish a system of records for all personnel presently or previously employed by the MVA. The records shall be separated so that those of active employees are filed separately from those of former employees. Other supporting records, as deemed appropriate by the Personnel Committee, may also be maintained. The administrative officer shall develop and maintain the personnel records for the MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer” pursuant to 1 CMC § 3806(f).

 

§ 90-40-1010   Records Required

 

(a)        Official Personnel Folder (OPF). For each employee an official personnel folder (or file) shall be maintained. The folder shall contain, as a minimum, the following elements of primary information covering the employee:

(1)        Formal application for employment.

(2)        Copy of the certificate of eligibles from which selected.

(3)        Form on which prior creditable service is listed and service computation date is derived.

(4)        Letter of original selection signed by an authorized selecting official.

(5)        Copy of each personnel action affecting the employee.

(6)        Copy of each form reflecting choice of health benefits or group life insurance coverage, designation of beneficiary, and other legal and binding assignments or designations.

(7)        Adverse action supporting material, if the action is consummated.

 

(b)        Secondary information, as contrasted to permanent-type information as delineated above, shall be kept in the OPF but filed on the left side of the folder. Examples of temporary material include:

(1)        Performance evaluation reports;

(2)        Annual employee review documentation sheets;

(3)        Descriptions of positions occupied by the employee;

(4)        Letters of reprimand (retained but usable as a past offense for two years only); and

(5)        Items of correspondence concerning the employee but which have no historical or permanent value, e.g., letters of commendation or congratulation.

 

(c)        Employee Record Card. This card record summarizes critical data concerning the identity, status, movement, and separation of an employee. Every personnel action taken will be recorded on the employee record card. Exceptional or less than satisfactory performance ratings shall be noted on the employee record card showing the rating and date thereof.

 

(d)       Medical Records.

(1)        Medical examination forms and drug and alcohol test result forms for each employee shall be maintained in a file separate from the OPF. This is essential to protect the privacy of the individual. The records shall be maintained in a locked filing cabinet or safe with access allowed only to personnel authorized by the managing director. Access must be restricted only to persons who have a “need to know” as determined and approved by the managing director.

(2)        Whenever access to a medical record is allowed, the administrative officer shall record on a log sheet maintained in the individual medical record:

(i)         Date of access;

(ii)        Name of person allowed such access; and

(iii)       Reason for access.

 

(e)        Records of EEO Cases, Disciplinary Investigations, and Official Inquiries. Any records of an EEO case, disciplinary investigation, or official inquiry concerning an employee shall be filed in a separate folder, clearly identified by the employee’s name, date of birth, and Social Security number. The material shall be kept in a locked filing cabinet or safe, with access allowed only on a “need to know” basis and upon approval by the managing director. The existence of any of these files shall be noted in the OPF, filed on top of the last entry therein.

 

(f)        Confidential medical and investigation records may be kept in the same filing cabinet or safe, but must be maintained in separate drawers or areas. Access to one individual file or set of files does not allow access to others without specific authorization.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted commas after the words “beneficiary” in subsection (a)(6), “movement” in subsection (c), and “Investigations,” “investigation,” and “birth” in subsection (e) pursuant to 1 CMC § 3806(g). The Commission corrected the capitalization of the words “left” in subsection (b), “managing director” in subsections (d)(1) and (e), “administrative officer” in subsection (d)(2), and “Social Security” in subsection (e) pursuant to 1 CMC § 3806(f).

 

§ 90-40-1015   Disposition of Records

 

(a)        Upon the separation of an employee for whatever reason, the employee’s official personnel folder shall be closed and removed to storage.

 

(b)        Prior to sending the file to storage, all secondary material filed on the left side of the folder shall be reviewed and duplicate information or documents considered unnecessary for permanent retention will be either given to the employee or destroyed.

 

(c)        Medical examination records and investigation file material shall be placed in the OPF for retention so that the record is accurate and complete.

 

(d)       Records of alcohol and drug test results shall be retained in the employee’s medical file until the time period for retention, established as one year for negative testing results, two years for testing program records, and five years for all positive testing results, has passed. At that time, the test records shall be destroyed.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The introductory paragraph was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining subsections pursuant to 1 CMC § 3806(a). The Commission inserted a comma after the word “records” in subsection (d) pursuant to 1 CMC § 3806(g).

 

§ 90-40-1020   Access to Official Personnel Folder

 

Employees may have access to their own official personnel folders at any time during regular working hours provided the administrative officer or another responsible employee assigned by the managing director watches as the employees’ reviews take place. Employees are entitled access to their medical records, but investigation reports are not available to the employees. If employees persist in their desire to see investigation reports, they should be referred to the agency which prepared the report or secure a court order authorizing the managing director to allow the employee access to the investigation report.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission corrected the capitalization of the words “administrative officer,” “managing director,” and “investigation” pursuant to 1 CMC § 3806(f).

 

§ 90-40-1025   Information Available to the Public

 

The names, present and past position titles, grades, salaries, and duty stations of a MVA employee is information available to the public; provided, however, such shall not be available when the release of the information is otherwise prohibited by law or when the information is sought for the purpose of commercial or other solicitation. To receive information an open-government request for the information must be submitted to MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The Commission inserted a comma after the word “salaries” pursuant to 1 CMC § 3806(g).

 

§ 90-40-1030   Reports

 

(a)        Accurate and timely reports are invaluable to the management of a workforce. They are important to the processes of budgeting, manpower planning, forecasting staffing needs and declines, and other management areas.

 

(b)        The MVA administrative officer is required to establish and maintain a roster of all persons in the MVA which shall include, as a minimum, for each person, the class of position held, the salary or pay, any changes that might occur in class, title, pay, or status and any other necessary data.

 

(c)        The managing director shall prescribe a system of reports and the format for reporting to provide, on a timely basis, the information required by law and for the efficient and effective operation of the MVA.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Commission Comment: The introductory paragraph was undesignated in the original regulation. The Commission designated it as subsection (a) and re-designated the remaining subsections pursuant to 1 CMC § 3806(a). The Commission corrected the capitalization of the words “administrative officer” in subsection (b) and “managing director” in subsection (c) pursuant to 1 CMC § 3806(f).

 

§ 90-40-1035   Timekeeping Records

 

An assigned and trained timekeeper shall be responsible for recording and certifying time and attendance reports of MVA employees. The timekeeper shall also record and certify leave time taken by any MVA employee. The method of recording and certifying time, attendance and leave shall be in compliance with Commonwealth and federal law and requirements established by the Director of Finance.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).

 

Part 1100 -     Special Provisions

 

§ 90-40-1101   Financial Austerity Measures

 

(a)        At any time the MVA Board of Directors, at the advice of the MVA Personnel Committee, declares by directive to all MVA staff the need for financial austerity measures that affect the MVA, all provisions in this regulation that require increases in employees’ salaries due to permanent or temporary promotions, acting or detail assignments, reallocation or reclassification of positions, and step increases of any type, will be suspended effective on the date set in the directive.

 

(b)        The suspension shall expire upon subsequent notice to all MVA staff of its expiry. Upon such expiration, all employees who qualified for the increases during the time of suspension shall receive the pay increases effective the date the suspension expired. The increases shall not be made retroactive to any earlier date.

 

History: Adopted 35 Com. Reg. 34362 (Oct. 28, 2013); Proposed 35 Com. Reg. 33935 (July 28, 2013).