WHEREAS, the County of Albemarle Personnel Policy Manual sets forth the grievance procedure for County employees; and
WHEREAS, the 2006 General Assembly granted Albemarle County enabling authority to establish an administrative hearing officer format for grievance hearings; and
WHEREAS, the Board desires to implement the hearing officer format and make other appropriate updates and modifications.
NOW, THEREFORE, BE IT RESOLVED THAT the Board of Supervisors of Albemarle County, Virginia, hereby adopts Personnel Policy P-03, Employee Grievance Procedure, of the County of Albemarle Personnel Policy Manual, as attached hereto and incorporated herein, effective January 3, 2007.
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ALBEMARLE COUNTY PERSONNEL POLICY
Employee Grievance Procedure Policy
The purpose of the Albemarle County Grievance Procedure is to afford an immediate and impartial method for the resolution of disputes that may arise between the County government and employees in County service.
II. Coverage of Grievance Procedure
A. This procedure applies to all non-probationary employees in regular full-time and regular part-time positions in:
1. Albemarle County Local Government;
2. The Department of Social Services of Albemarle County, in accordance with Virginia Code § 15.2-1507(A)(4);
3. The Charlottesville-Albemarle-University of Virginia Emergency Communications Center; and
4. The Commission on Children and Families.
B. This procedure shall not apply to the following employees:
1. Appointees of the Board of Supervisors;
2. Officials and employees who by law serve at the will or pleasure of the Board of Supervisors or the County Executive;
3. Deputies and Assistants to the County Executive;
4. Department and agency heads;
5. Employees whose terms of employment are limited by law;
6. Employees in temporary, on-call or seasonal positions;
7. Probationary employees;
8. Any law enforcement officer whose grievance is subject to the provisions of the Law Enforcement Officers Procedural Guarantee Act, Virginia Code § 9.1-500 et seq., and who has elected to proceed pursuant to such provisions in the resolution of his of her grievance; or
9. Any other employee who elects to proceed pursuant to any other existing
procedure in the resolution of his of her grievance.
C. The County Executive or his designee shall determine the officers and employees excluded from the grievance procedure, pursuant to section II(B) above, and shall be responsible for maintaining an up-to-date list of the affected positions (See Appendix to the Grievance Procedure, Positions Not Covered by the Grievance Procedure).
County Attorney shall mean either the County Attorney or his designee.
County Executive shall mean either the County Executive or his designee.
Grievance shall mean a complaint or dispute by an employee eligible to use this procedure relating to his or her employment, including but not limited to:
(a) disciplinary actions, including dismissals, demotions and suspensions, provided that dismissals shall be grievable whenever resulting from formal discipline or unsatisfactory job performance;
(b) the application of personnel policies, procedures, rules and regulations;
(c) acts of retaliation as the result of using the grievance procedure or of participation in the grievance of another Albemarle County employee;
(d) acts of retaliation because the employee has complied with any law of the United States or of the Commonwealth, has reported any violation of such law to a governmental authority, has sought any change in law before the Congress of the United States or the General Assembly, or has reported an incidence of fraud, abuse, or gross mismanagement; and
(e) complaints of discrimination on the basis of race, gender, religion, political affiliation, age, disability or national origin.
Grievant shall mean an eligible employee who has filed a complaint under this procedure.
Human Resources Director shall mean either the Human Resources Director or his designee.
Management shall mean the Board of Supervisors and its designees who establish policy for Albemarle County.
IV. Management Responsibilities
Management retains the exclusive right to manage the affairs and operations of County government. Accordingly, the following complaints are nongrievable:
(a) establishment and revision of wages or salaries, position classification or general benefits;
(b) work activity accepted by the employee as a condition of employment or work activity which may reasonably be expected to be a part of the job content;
(c) the contents of ordinances, statutes or established personnel policies, procedures, rules and regulations;
(d) failure to promote except where the employee can show that established promotional policies or procedures were not followed or applied fairly;
(e) the methods, means and personnel by which or by whom work activities are to be carried out;
(f) termination, layoff, demotion or suspension from duties because of lack of work, reduction in work force, or job abolition, except where such action affects an employee who has been reinstated within the previous six months as the result of the final
determination of a grievance;
(g) the hiring, promotion, transfer, assignment and retention of employees within the County; and
(h) the relief of employees from duties of the County in emergencies.
In any grievance brought under the exception to Section IV(f) above, the County’s action shall be upheld upon a showing by the County that: (i) there was a valid business reason for the action, and (ii) the employee was notified of the reason in writing prior to the effective date of the action.
V. Human Resources Department Responsibilities
The County Human Resources Department (“Human Resources”) shall serve as an impartial administrator of this process. Upon the filing of a grievance, Human Resources shall do the following:
(a) open a file and assign a number to the grievance;
(b) ensure that all parties are aware of the process;
(c) provide access to and copies of grievance forms;
(d) monitor procedures and time frames;
(e) notify either party of noncompliance;
(f) be informed of the status of the grievance by both parties at each step;
(g) maintain appropriate documentation; and
(h) perform all other responsibilities as specified in this Procedure.
VI. Grievance Procedure Generally
A. For purposes of this procedure, “days” shall be defined as calendar days and time periods shall begin to run on the day following that on which any action is taken or report rendered, without regard to weekends or County-observed holidays. If a time
period specified in this procedure ends on a weekend or holiday, the last day of the time period shall be the end of the first business day following the weekend or holiday. For example, a written grievance under Step 1 must be presented to the grievant’s
immediate supervisor within five (5) days of the supervisor’s verbal reply to the informal grievance. The five (5) days shall begin to run on the day after receipt of the supervisor’s verbal reply and shall terminate on the fifth day following. If the fifth day is a weekend or holiday, the time period shall terminate at the end of the next full business day.
B. Time limits established under this procedure are intended to be strictly construed and enforced. However, in the interests of fairness, such time limits may be extended if both parties agree to such extensions in writing.
C. All stages of this procedure beyond Step 1 shall be reduced to writing on forms supplied by Human Resources. At Step 3 and above, the grievant may, at his option, choose to have a representative of his choice, including legal counsel. If the grievant is represented by legal counsel or other person(s), the County likewise has the option of being represented by legal counsel, provided that a person may not serve as both a witness and a representative at any Step under this procedure.
D. The grievant shall bear any and all costs involved in employing representation and preparing his case at all steps of this procedure, including but not limited to attorneys’ fees and expenses and any costs of judicial filings or appeals.
E. After the initial filing of a written grievance, failure of either party to comply with all substantial procedural requirements of this procedure, without just cause, shall result in a decision in favor of the other party on any grievable issue, provided that the
noncomplying party fails to correct the noncompliance within five (5) days of receipt of written notification by the other party of the compliance violation. However, the right of the grievant to correct compliance violations shall not apply to any determinations under Steps 1 through 3, or to grievability determinations, provided that the grievant has previously received written notice of the applicable deadlines for appealing such determinations at the time the determination was rendered but has failed to respond in a timely fashion.
F. The County Executive may require a clear written explanation of the basis for any requests for just cause extensions or exceptions, and shall determine all compliance issues. Such determinations by the County Executive are subject to appeal by the
grievant by filing a petition with the Circuit Court of Albemarle County within thirty (30) days of the compliance determination. The grievant shall be solely responsible for filing such petition.
A. The County Executive retains sole authority to render decisions regarding grievability, including the question of access to this procedure. In the event that a question regarding grievability arises at any stage of this procedure, the County Executive shall be notified by Human Resources so that a proper decision regarding grievability can be made. A copy of the County Executive’s decision concerning grievability shall be sent to the grievant, to the department head and/or immediate supervisor and to Human Resources.
B. Decisions by the County Executive that an issue or complaint is not grievable may be appealed by the grievant to the Circuit Court of Albemarle County for a hearing de novo on the issue of grievability as provided in Virginia Code § 15.2-1507(A)(9).
Proceedings for the review of the County Executive’s decision regarding grievability shall be instituted by filing a notice of appeal with the County Executive within ten (10) days from the date of receipt of the decision and giving a copy thereof to all other
parties. Within ten (10) days thereafter, the County Executive shall transmit to the Clerk of the Circuit Court of Albemarle County a copy of his decision, a copy of the notice of appeal, and any exhibits that may have been provided in connection with the
resolution of the issue of grievability. A list of the evidence furnished to the court shall also be furnished to the grievant.
C. The failure of the County Executive to transmit the record shall not prejudice the rights of the grievant. If the County Executive fails to transmit the record within the time required, the Circuit Court, on motion of the grievant, may issue a writ of certiorari
requiring the County Executive to transmit the record on or before a certain date.
D. Within thirty (30) days of receipt of such records by the clerk, the Circuit Court, sitting without a jury, shall hear the appeal on the record transmitted by the County Executive and such additional evidence as may be necessary to resolve any controversy as
to the correctness of the record. The Court, in its discretion, may receive such other evidence as the ends of justice require. The Court may affirm, reverse or modify the decision of the County Executive. The decision of the Court shall be rendered no later than the fifteenth (15th) day from the date of the conclusion of the hearing. The decision of the Court is final and is not appealable.
E. The issue of grievability may be raised at any step of the Grievance Procedure prior to the hearing officer hearing provided in Section XII of this procedure, or it shall be deemed waived by all parties. Once raised, the issue shall be resolved before further
processing of the complaint. A request that grievability be determined shall toll the time limits under this procedure. Time limits shall begin to run again the day after the decision on grievability is made by the County Executive or the Circuit Court.
F. The classification of a complaint as nongrievable by either the County Executive or the Circuit Court of Albemarle County shall not be construed to restrict any employee’s right to seek, or management’s right to provide, customary administrative review of complaints outside the scope of the Grievance Procedure.
VIII. Consolidation of Grievances
If more than one grievance is filed arising from the same factual circumstances, the County Executive may, at any time prior to a hearing officer hearing, consolidate those grievances for joint processing, including grievability determinations. If consolidation occurs, all time limits set forth in this procedure shall thereafter be calculated from the date of the last filed grievance. Once consolidated, the grievances shall all be processed as a single matter pursuant to this procedure.
IX. Step 1 Procedure: Immediate Supervisor Level
A. No later than twenty (20) days after the occurrence or condition giving rise to the grievance, the employee affected shall identify the grievance verbally to his immediate supervisor. Within five (5) days of such identification, the immediate supervisor shall give his response to the employee with respect to the particular grievance. The failure of an employee to identify the grievance within the time specified above shall constitute a forfeiture and a waiver of any rights to proceed further and shall terminate the grievance.
B. If a satisfactory resolution is not reached by this informal process, the grievant shall notify Human Resources of the intent to file a grievance and shall obtain a copy of Grievance Form A from Human Resources. The grievant shall reduce the grievance to writing on Grievance Form A, identifying specifically and in detail the nature of the grievance and the requested remedy. Such written grievance shall be presented to the immediate supervisor within five (5) days of the supervisor’s verbal reply to the oral grievance. The supervisor shall promptly notify and supply a copy of the written grievance to Human Resources. The supervisor shall reply to the employee in writing in response to the written grievance within five (5) days of receiving it.
C. If the grievant’s supervisor is also his department/agency head, or if the department/agency head decided the matter that is the subject of the grievance, the grievant shall pass by Step 2 of this procedure and proceed immediately to Step 3. If the grievant’s supervisor is the County Executive, he shall pass by Step 3 and proceed immediately to Step 4.
X. Step 2 Procedure: Department/Agency Head
If a satisfactory resolution is not reached at the conclusion of Step 1 as outlined above in Section IX, the grievant shall have the right to appeal as follows. Within five (5) days following receipt of the Step 1(B) written reply, the grievant shall notify his department/ agency head and the Human Resources Department in writing on Grievance Form A that resolution has not occurred and shall supply the reasons why the grievant believes that resolution has not occurred. The department/agency head shall schedule and hold a meeting with the grievant to review the grievance within five (5) days of receipt of such submission, or on such other date as the parties may mutually agree. The only persons who may be present at this meeting are the grievant and the department/agency head. The meeting may be adjourned to another time or place by agreement of the parties. A written reply to the grievance shall be provided to the grievant (with a copy to Human Resources) within five (5) days after the meeting.
XI. Step 3 Procedure: County Executive Level
A. If a satisfactory resolution is not reached at the termination of Step 2 as outlined above in Section X, the grievant shall notify Human Resources, indicate on Grievance Form A that resolution has not occurred and submit the grievance to the County Executive within five (5) days following receipt of the Step 2 reply. The County Executive shall schedule and hold a meeting with the grievant to review the grievance within ten (10) days of receipt of such submission, or on such other date as the parties may mutually agree.
B. The grievant may have legal representation or another representative present at the Step 3 meeting. If the grievant is represented by legal counsel or another representative, the County Executive may also have legal counsel or another representative present. The grievant shall inform the County in writing of the name of his legal counsel or other representative at least two (2) days prior to the Step 3 meeting. Either party may call appropriate witnesses, who shall be present only while actually providing testimony. The County Executive shall, in his sole discretion, determine whether the testimony of witnesses is relevant or, if witnesses have testified, whether additional testimony by other witnesses is necessary.
C. A written reply to the grievance shall be provided to the grievant (with a copy to Human Resources) within five (5) days after the Step 3 meeting, or on such other date as the parties may mutually agree.
XII. Step 4 Procedure: Grievance Hearing
A. If a satisfactory resolution is not reached at the termination of Step 3 as outlined above in Section XI, the grievant shall notify Human Resources, indicate on Grievance Form A that resolution has not occurred and request a hearing before an administrative hearing officer (“hearing officer”). The request shall be submitted to Human Resources within five (5) days following receipt of the Step 3 reply.
B. Upon receipt of the request for a grievance hearing, Human Resources shall contact the County Attorney and request that he initiate a request to the Supreme Court of Virginia for appointment of a hearing officer to hear and preside over the grievance hearing. The hearing officer shall be appointed by the Executive Secretary of the Supreme Court of Virginia. The appointment shall be made from the list of administrative hearing officers maintained by the Executive Secretary pursuant to the Code of Virginia. In the alternative, the County Attorney may request the appointment of a hearing officer from the Virginia Department of Employment Dispute Resolution. The County shall bear all expenses associated with the hearing officer's services.
C. Human Resources and/or the County Attorney shall provide the hearing officer prior to the hearing with a copy of the grievance record and all other documentation relied upon by the County in rendering the decision or action being grieved, and shall provide the grievant with a list of documents furnished to the hearing officer. At least ten (10) days prior to the hearing, the grievant and his attorney or other representative shall be allowed to inspect and copy all documentation supplied by the County to the hearing officer. At least five (5) days prior to the hearing, the grievant and the county shall exchange lists of witnesses and exhibits to be called or introduced at the proceeding. Witnesses or exhibits not disclosed in a timely manner as required by this section shall not be allowed or introduced at the hearing, unless the hearing officer finds good cause shown.
XIII. Conduct of Grievance Hearing
A. The role of the hearing officer is limited to a determination of whether a grievance filed by an employee is substantiated and what remedy, if any, should be provided. The hearing officer may not formulate or change county policy, rules or procedures. The hearing officer shall determine whether the grievant has demonstrated, by a preponderance of the evidence, that the action complained of was without cause, or done in violation of a law, rule, regulation or other policy. The hearing officer shall not otherwise substitute his or her judgment for that of management.
B. The hearing officer shall conduct the hearing as follows:
1. At the request of either party, the hearing shall be private and limited to the grievant, the hearing officer, the legal counsel or other representative of the grievant and the county, appropriate witnesses as they testify, and any court reporters or other official recorders of the hearing. At the request of either party, witnesses shall be separated from the hearing room and allowed to be
present only during the time that they actually testify.
2. The hearing officer shall consider the grievance without regard to any proposed disposition (including offers of settlement) by any lower authority, unless the grievant and the County Executive shall agree in writing that the issue(s) shall be so limited. In all other cases, the hearing officer shall consider the matter as if presented to it in the first instance.
3. The hearing officer may at any time ask the parties or their representatives for statements clarifying the issues involved in the grievance.
4. Exhibits, when offered by the grievant or the County, may be received as evidence by the hearing officer, and when so received shall be marked and made a part of the record.
5. Both parties shall have the right to make opening statements, starting with the grievant. After opening statements, the order of the hearing shall be as follows: the grievant shall proceed first, and shall bear the ultimate burden of persuasion. At the conclusion of the grievant’s evidence, the County shall have the opportunity to present its evidence. At the conclusion of the County’s presentation, the hearing officer shall specifically inquire of all parties whether they have any further evidence to offer or witnesses to be heard. Upon receiving a negative response, the hearing officer shall permit the parties to summarize their cases (beginning with the grievant) and shall then declare the hearing closed.
6. Both parties have the right to offer evidence and cross-examine witnesses, and shall produce such additional evidence as the hearing officer deems necessary for understanding and ruling upon the dispute. There shall be no formal rules of evidence at the hearing; however, the hearing officer shall have the right to determine the relevancy of any evidence offered. All evidence shall be taken in the presence of the hearing officer and the parties, except by mutual consent of the parties.
7. The hearing may be reopened by the hearing officer on his own motion or upon application of either party for good cause shown at any time before a final decision is made.
8. Upon the request of the hearing officer, the County or the grievant, the Human Resources Director shall insure that a verbatim record of the hearing is made and retained for not less than 12 months. The record may be in writing or by a taped recording. The party requesting the record shall bear the costs of preparation and transcription, including any costs associated with attendance of a court reporter. If both the grievant and the County request such a record, they shall share equally in all costs incurred.
9. The Human Resources Director or designee may be called upon by the hearing officer or either party as a witness at any time to provide specific policy interpretation or clarification of applicable County policy and these procedures.
10. In any matters not covered by this section, the hearing officer shall determine the applicable procedures to be followed.
XIV. Decision of Administrative Hearing Officer
A. The hearing officer shall provide a written decision to the County Executive and the grievant, with copies to Human Resources and the County Attorney, no later than twenty (20) calendar days after the completion of the hearing. The decision shall summarize the grievance and the evidence, shall make specific findings of fact, and shall state in full the reasons for the decision, and the remedy (if any) to be granted. The decision of the hearing officer shall be consistent with law and written policy, and as such shall be considered final and binding.
B. The question of whether the relief granted by the hearing officer is consistent with applicable law and written policy shall be determined by the County Executive, unless such person has a direct personal involvement with the event or events giving rise to the grievance, in which case the decision shall be made by the Commonwealth’s Attorney of Albemarle County. The County Executive or Commonwealth's Attorney shall request the hearing officer to reconsider any decision which in his judgment is inconsistent with the laws or written policy applicable to the specific grievance at issue.
C. If the hearing officer determines that the grievant prevails on any grievable complaint or dispute, he may remedy that complaint or dispute by ordering that the grievant be reinstated to a former position; awarding back pay; or ordering expungement of information contained in the grievant’s personnel file(s) maintained by Human Resources or individual department; or rendering opinions specifying the application or interpretation of County personnel policies and procedures as they may relate to the specific facts of the grievance. The grievant shall not, however, be entitled to any relief that he has not specifically requested in the original written grievance form, unless the parties have mutually agreed otherwise as to alternative relief.
D. If, in response to a grievable complaint or dispute, the hearing officer finds that a department head or other County official failed to follow established procedures governing promotion, demotion, transfer, hiring or layoff, the hearing officer shall remand the grievance back to the department head or official with instructions that the actions taken be rescinded, and proper procedures be followed for the matter at issue. In connection with such remand, the hearing officer may make appropriate provisional orders concerning the case.
XV. Implementation of Hearing Officer Decision
A. The County Executive shall implement any remedy that may be ordered by the hearing officer, provided that such remedy is consistent with applicable law and County personnel policies. If the County Executive determines that the hearing officer decision is not consistent with applicable law or County personnel policies, the following steps shall be taken:
1. The County Executive shall inform the hearing officer and the grievant of his determination within ten (10) days of his receipt of the hearing officer's written decision; and,
2. The County Executive shall not implement the decision of the hearing officer.
B. Either party may petition the Albemarle County Circuit Court for a decision regarding implementation of the hearing officer decision. The review of the Circuit Court shall be limited to the question of whether the hearing officer's decision is consistent with provisions of law and written County policy.
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