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478-1-.24 Rules for Classified Employees
(1) Working Test and Permanent Status. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2. The working test shall be an essential part of the examination process, and shall apply to promotion and interdepartmental transfer.
(a) Adverse Action Appeals. As part of a consent agreement to dispose of an adverse action appeal entered into in accordance with the provisions of 478-1-.24(9)(d)11 a classified employee may be placed on working test status. The length of the working test period and the consequences of failure to satisfactorily complete such working test shall be clearly indicated in the terms of the agreement.
(b) Length of Working Test. The Commissioner may fix the length of the working test period for any class at not less than six (6) nor more than eighteen (18) months. The working test period will be the first six months in a position unless the Commissioner designates a different length. Such working test period shall be exclusive of any time spent in non-pay status, on leave with pay under the provisions of 478-1-.16(8)(c) or 478-1-.16(8)(d) in an unclassified position; provided, however, that the length of the working test period shall apply to all positions in the class affected, but if the period is increased in duration, employees employed under the shorter period will acquire permanent status as if the length had not been increased, unless otherwise specified by the Commissioner.
1. The working test period shall begin with the first day on which the employee actually reports for work except in instances where the first day of the month is a regularly scheduled non-workday for the position. In such case, if the employee reports to work on the first workday of the month, the working test period shall be deemed to have begun on the first day of the month, although the employee cannot be placed in pay status until the employee actually reports for work.
(c) Granting Permanent Status. It shall be the responsibility of the appointing authority to determine whether a working test employee is to be granted permanent status. If it is determined that the employee is not to be granted permanent status, the appointing authority shall transfer, demote or separate the employee as provided in other provisions of these rules.
(d) Permanent Status. Permanent status of a classified employee completing a working test period shall be effective at the beginning of the date following completion of the working test period provided the employee is in work status on that date. Permanent status shall not be granted to a classified employee promoted prior to the acquisition and submission to the appointing authority of the required license or certificate. An employee who is not separated prior to eligibility for permanent status shall acquire permanent status as provided in 478-1-024(l)(d).
(2) Reserved.
(3) Inter-Agency Transfer. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2.
(a) Applicability. An employee may be transferred from a classified position in one department to a classified position in another department provided the appointing authority has determined that the employee meets the qualifications for the new position. The applicable provisions of this Rule shall apply.
(b) Working Test Requirement. A classified employee who accepts an interdepartmental transfer shall be required to serve a new working test period in the job in the new department; provided, however, the employee shall retain permanent status rights to the last job in which the employee held permanent status that is on a paygrade lower than the job in the new department; and further provided that the job on the lower paygrade is utilized by the new department.
(4) Reduction in Force. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2.
(a) Definition of Key Terms. For the purposes of this Section, the following terms and definitions apply in addition to those in Rule 478-1-02 (Terms and Definitions)
1. "Competitive Jobs" means those job titles/numbers to which the reduction in force is to apply.
(b) Applicability. A reduction in force is the separation from a job or the reduction in time-status of one or more employees as the result of a shortage of work or funds, a change in organization, or otherwise. Reduction in force shall not be used to circumvent the rules on dismissal. No employee will be laid off by reduction in force except in accordance with a plan previously approved by the Commissioner.
(c) Reduction in Force Plan. No employee will be laid off by reduction in force except in accordance with a plan previously approved by the Commissioner.
1. The reduction in force plan submitted to the Commissioner will contain:
(i) A brief statement of the circumstances requiring the reduction in force and the proposed effective date;
(ii) A definition of the competitive area;
(iii) A cutoff date after which performance evaluations will not be accepted;
(iv) A list of employees in each competitive job in order of retention credits on a form prescribed by or acceptable to the Commissioner, provided that retention credits need not be calculated or included on such list when any competitive job consists of only one employee or all incumbents of all jobs in the competitive area are to be separated effective the same date;
(v) Justification of any retentions under 478-1-.24(4)(l); and,
(vi)The manner by which the order of retention shall be determined when employees are tied in total retention credits.
2. The Commissioner will examine the proposed plan for conformity with the rules. If the plan is not acceptable, the Commissioner will notify the department of the changes necessary. When the plan is in accordance with the rules, the Commissioner will approve the plan and notify the department. The department, on notice that the plan is approved, may proceed with the reduction in force.
3. A copy of the approved reduction in force plan will be made available by the appointing authority for inspection by any employee or former employee who was directly affected as a result of the reduction in force.
(d) Notwithstanding other paragraphs of this rule, an appointing authority may file a plan with the Commissioner to place employees in non-pay status as provided in 478-1-.16(16)(d)1as a temporary reduction in force. As a part of the plan, the appointing authority shall define the method of determining the order employees are to be placed in non-pay status; provided, however, that any method used shall place all affected employees in the same class in non-pay status for the same amount of time. The plan will contain all other elements of a reduction in force plan except that retention credits and the order of layoff need not be considered if all employees holding positions of a particular class within the competitive group are to be placed in non-pay status for the same period of time. In a temporary layoff, employees in a higher class shall not be considered as competing with employees in a lower class even if the classes are in a related series.
1. Notwithstanding other paragraphs of this rule, an appointing authority may file a plan with the Commissioner to reduce the salary of employees as provided in 478-1-.12(5). Such reductions shall be made applicable to the competitive area defined in the plan and shall reduce the salary of all affected employees for the same amount of time. The plan will contain all other elements of a reduction in force plan except that retention credits need not be calculated.
(e) Employee Notice. Each employee separated or reduced in time-status by a reduction in force will be notified in writing at least thirty (30) calendar days prior to the action. Such notice shall contain at a minimum:
1. A statement of the nature of the proposed action to be taken with respect to the affected employee;
2. An explanation of the rights of the affected employee with respect to any right of appeal;
3. Any opportunities with respect to possible continued employment or opportunities to apply for employment with any public or private party assuming the functions of the employee or any other similar opportunities; and,
4. An explanation of any rights and options with respect to employment benefits, including, but not limited to, any right to continue participation in any retirement system or insurance plan.
(f) Legislative Notification. If a reduction in force would result in the elimination of twenty-five (25) or more classified positions or the termination of twenty-five (25) or more classified employees, the appointing authority shall, at least fifteen (15) days prior to notifying employees of the proposed action, notify the President of the Senate and the Speaker of the House of the proposed reduction. The notice shall:
1. Identify the facility (ies) and operation(s) to be affected and the estimated number of employees to be affected; and,
2. State the reasons for the proposed action.
(g) Reduction in Force due to unavailability of Funds. 478-1-.24(4)(f) and 478-1-24(4)(k) shall not apply to a reduction in force which must become effective immediately if the department or agency has insufficient funds available to pay the salaries of the affected employees.
1. Each employee separated or reduced in time-status by a reduction in force will be notified in writing prior to the action.
2. Each employee laid off or demoted in the reduction in force will be notified in writing prior to the action.
(h) Competitive Areas. The competitive area is defined by the appointing authority as any clearly identified organizational, budgetary, or geographic part of the department to which a reduction in force is to apply.
(i) Employee Competition. Competition shall be among all employees in a job in the competitive area except as provided in 478-1-.24(4)(l). Each job shall be treated separately and employees shall be reduced as provided in 478-1-.24(4)(f).
(j) Termination at Administrative Discretion. In the event of a reduction in force, employees in the competitive job in the competitive area who are on working test or contingent leave without pay shall be the first to be separated, except as provided in 478-1-.24(4)(l).
1. Employees on working test following a promotion shall revert to the job in which they hold permanent status and shall, if necessary, compete with other employees in that job, provided the job exists in the competitive area.
2. Employees on working test following interdepartmental transfer who have more than five (5) years continuous classified service shall revert to the last lower job, if any, in which they held permanent status. Such employees shall compete, if necessary, with other employees in the lower job, provided the job exists in the competitive area.
(k) Sequence for Reduction of Permanent Employees. Within a competitive area the order of reduction in force of employees in each job shall be:
1. First, in ascending order of retention credits, employees who are not honorably discharged veterans of a period of armed conflict and whose average summary performance evaluation rating is lower than one (1);
2. Second, in ascending order of retention credits, employees who are honorably discharged veterans of a period of armed conflict and whose average summary performance evaluation rating is lower than one (1);
3.Third, in ascending order of retention credits, employees who are not honorably discharged veterans of a period of armed conflict and whose average summary performance evaluation rating is one (1) or higher; and,
4. Fourth, in ascending order of retention credits, employees who are honorably discharged veterans of a period of armed conflict and whose average summary performance evaluation rating is one (1) or higher.
5. Within the above described groups the sequence for reduction of permanent employees shall be in ascending order of the total number of retention credits. If two or more employees are tied in the total number of retention credits and one or more but not all employees so tied are to be reached for reduction, the appointing authority shall determine the manner in which the order of retention shall be determined.
(l) Retention Credits. Retention credits shall be based upon the average summary rating of performance evaluations and length of service.
1. Summary ratings of Responsibilities. Summary ratings of Responsibilities on performance evaluations shall be assigned the following numerical values for the purpose of computing retention credits:
(i) One (1) for a summary rating of "Meets Expectations";
(ii) Two (2) for a summary rating of "Exceeds Expectations"; and,
(iii) Three (3) for a summary rating of "Far Exceeds Expectations".
2. The average summary rating shall be derived by adding the numerical values assigned to the summary ratings of all performance evaluations issued in the two years immediately prior to the performance evaluation cutoff date and dividing the sum thereof by the number of ratings, rounded to the nearest half of a point. If no performance evaluation was issued during the two-year period, an employee will be assigned a presumptive average summary rating of one (1).
3. If a summary rating from a performance appraisal issued prior to February 1, 1996 must be used in computing the average rating of the performance appraisals, each such summary rating shall be assigned a numerical value as follows:
(i) One (1) for an appraisal rating of 3.0 through 3.9;
(ii) Two (2) for an appraisal rating of 4.0 through 4.5; and,
(iii) Three (3) for an appraisal rating of 4.6 through 5.0.
4. The average summary performance evaluation rating which results from the computation of ratings on performance evaluations shall be assigned the following numerical values for the purpose of computing retention credits:
(i) 76 for an average rating of 1.0;
(ii) 84 for an average rating of 1.5;
(iii) 92 for an average rating of 2.0;
(iv)100 for an average rating of 2.5; and,
(v) 108 for an average rating of 3.0.
5. To the numerical value shall be added one point for each full year or major fraction thereof of continuous service under the Merit System including any period of leave which has been allowed in accordance with these rules. One-half year or more will be considered as one year; less than one-half year will be disregarded. No numerical value shall be given for an average summary performance appraisal rating of less than one (1), but retention credits for length of service shall be given. The sum of the numerical valueassigned for performance and the credits for length of continuous service will constitute the total number of retention credits for an employee.
6. For the purpose of determining years of continuous service as provided in this section, service shall be computed up to the effective date of the reduction in force.
(m) Exceptions in Special Cases. No employee shall be retained in preference to another employee in the competitive area and job who is higher in the order of reduction in force, except under the following conditions: If the position of an employee is not to be abolished and its duties cannot be satisfactorily performed, after a reasonable training period, by an employee higher in the order of selection whose position is to be abolished, the employee may be retained in preference to other employees higher in the order of retention. In such case, a statement of the facts must be made in the plan of reduction of force.
(n) Reinstatement. An employee who has been laid off or demoted as a result of an approved reduction-in-force plan, and who meets all the qualifications (including any licensure and certification requirements and special qualifications), shall retain status in and right to reinstatement to a classified position in the job in the competitive area from which the employee was separated for a period of one year from the date of separation or demotion and shall be reinstated in inverse order to the order of layoff or demotion. A refusal by the employee of reinstatement upon reasonable notice by the appointing authority nullifies the right to reinstatement.
(o) Report of Reduction in Force. When a reduction in force has been completed, the appointing authority shall certify to the Commissioner that such was accomplished in accordance with the plan approved by the Commissioner.
(5) Classified Employee Grievance Procedure. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2.
(a) For the purposes of this Section, the following terms and definitions apply in addition to those in Rule 478-1-02 (Terms and Definitions)
1. "Grievance" means a claim by an eligible employee that the employee's personal employment has been affected by unfavorable employment decisions or conditions due to unfair treatment.
2. "Filing" means the act of an employee submitting a state grievance form to the appropriate agency personnel office.
3. "Certified Grievance Hearing Officer" means an individual who has successfully completed certification requirements established by the Commissioner which may include training or experiential requirements.
4. "Certified Grievance Hearing Officer Pool" or "Pool" means a list of those employees who are Certified Grievance Hearing Officers and who are available for hearing grievances.
5. "State Grievance Form" means a form approved by the Commissioner for the filing of employee grievances.
6. "Receipt" means the date and time at which a document is delivered to the addressee by U.S. Postal Service, facsimile or personal delivery.
7. "Workday" means a Monday through Friday business day exclusive of state holidays.
(b) Applicability. The following rules on the administration of the Uniform Employee Grievance Procedures shall be applicable to employees in the classified service. Unclassified Employees should refer to 478-1-.20.
(c) Improper Use of the Grievance Process. Any state officer, supervisor, management representative or employee who knowingly supplies false or misleading information in a grievance, or who attempts to harass, intimidate, or retaliate against any employee, state officer, supervisor, or management representative as a result of filing a grievance, or providing testimony or evidence regarding a grievance, shall be subject to disciplinary action up to and including dismissal from employment.
(d) Notification. The appointing authority shall post, in prominent locations, a notice to employees stating the eligibility to file a grievance. Such notice shall include a telephone contact for securing information and assistance regarding the grievance process and where the employee may review the departmental grievance procedure. The appointing authority shall make reasonable effort to provide local and/or toll-free access available for such assistance.
(e) Eligibility. A classified employee who has attained permanent status during the current period of continuous service and whose employment averages twenty (20) or more hours per week shall be eligible to file a grievance. Any other employee, in the sole discretion of the appointing authority, may be included in the grievance process. An otherwise eligible employee who has been notified of termination shall not be eligible to file a grievance.
(f) GRIEVABILITY.
1. Grievable issues. The following shall be considered "grievable Issues":
(i) Allegations of unlawful discrimination because of race, color, sex, national origin, disability, age or religious or political opinions or affiliations;
(ii) Allegations of sexual harassment;
(iii) Harassment, retaliation or intimidation for exercising any right provided under the Rules of the State Personnel Board or policies of the appointing authority;
(iv) Retaliation for using the grievance procedure;
(v) Erroneous, arbitrary or capricious interpretation or application of personnel policies, procedures, rules, regulations, ordinances and statutes;
(vi) Unsafe or unhealthful working conditions; and,
(vii)G. Any matter specifically included as grievable by departmental policy or procedure.
2. Non-Grievable issues. The following issues shall be considered "Non-grievable Issues":v
(i) Issues which are pending or have been concluded by direct appeal to the State Personnel Board, the Georgia Commission on Equal Opportunity or through other administrative or judicial procedures;
(ii) Issues which are subject to appeal, review or relief through other provisions of the rules;
(iii) Performance responsibilities, expectations or evaluations;
(iv) Relocation of employees, except where the costs of relocation qualify for reimbursement under regulations promulgated by the Office of Planning and Budget;
(v) Temporary work assignments which do not exceed ninety (90) calendar days;
(vi) Permanent changes in work hours or duties and responsibilities unless such changes are manifestly unsafe, illegal, or can be shown to adversely affect an employee's personal employment as defined in this section;
(vii) Budget and organizational structure, including the number or assignment of positions in any organizational unit;
(viii) Internal security practices established by the appointing authority;
(ix) The selection of an individual to fill a position unless it is alleged that the selection is in violation of a written agency policy or Board rules on filling vacancies;
(x) Demotion of an employee on working test as defined in this Rule;
(xi) Termination, demotion, reassignment, furlough, layoff from duties because of lack of work, or other actions resulting from a reduction in the work force or job abolition;
(xii) Any matter which is not within the jurisdiction or control of the appointing authority.
(h) Issues involving Written and Oral Reprimands. Each appointing authority shall provide in its departmental grievance procedure that issues involving written reprimands or written confirmation of oral reprimands shall, upon request of an affected employee, be considered by a designated agency official(s). A designated official shall not be the immediate supervisor of the employee and shall have the authority to order such documents modified or removed from the employee's records. A written response shall be provided to the employee within five (5) workdays of receipt by the designated official.
(i) General Provisions. Each agency head shall establish a departmental procedure to effectuate the Employee Grievance Procedure for employees in the classified service and shall file a copy of such procedure with the Commissioner for approval.
1. The departmental procedure shall specify: (i) Where and with whom grievances are to be filed; and,
(ii) Which departmental staff shall be available to assist employees in filing grievances.
(iii) The location of official personnel files.
(k) Mediation. At any step in the procedure, a grievance may be referred to mediation by the personnel office when deemed appropriate to the issue of the grievance. Additionally, any party to a grievance may request that the grievance be referred to mediation; provided, however, that the personnel office shall make the final determination regarding the appropriateness of mediation referral for the grievance.
(l) Failure to Adhere to Time Limits. A grievant may file a complaint with the Commissioner if, at any step in this procedure, the personnel office, Certified Grievance Hearing Officer or appointing authority fails to adhere to specified time limits. The Commissioner shall review the complaint and take such action as is deemed appropriate.
(m) Withdrawal of Grievance. At the sole discretion of a grievant, a grievance may be voluntarily withdrawn at any point in the procedure. The grievance shall be considered terminated and may not be refiled.
(n) Third Party Representation. Employees may represent themselves or be represented by a third party of their own choosing. The appointing authority shall, by written policy, define which employees may serve as third party representatives and the amount of duty time permitted to assist a grievant. Non-employee third party representation shall not be permitted unless required by law or rule.
(o) Assistance in Processing. Each appointing authority shall designate staff to be available to assist employees with filing grievances. In no case shall the staff assigned to assist an employee be a party or respondent to the employee's grievance.
(p) Preparation Time. A grievant shall be allowed up to four (4) hours of duty time, as approved by the supervisor, to prepare a grievance or to prepare for a hearing or mediation session. Such time shall be during regular work hours, without loss of pay or leave credits. Preparation time shall include such activities as meeting with witnesses and reviewing the grievant's personnel file. Under no circumstances shall any employee be granted more than twelve (12) hours per calendar year for such purposes. The personnel office shall have the authority to resolve any dispute regarding the determination of reasonable and necessary time for processing a grievance.
(q) Group Grievances. Employees having a common grievance may sign and submit one group grievance, indicating not more than two (2) grievants as selected spokespersons. Group grievances shall eliminate the right of the grievants to pursue that grievance on an individual basis through this procedure.
(r) Management Right to Consolidate. The personnel office may consolidate grievances as follows:
1. Multiple grievances filed by an employee may be consolidated into a single grievance, or;
2. Separate grievances filed by two (2) or more employees regarding the same issue(s) may be consolidated into a group grievance.
(s) Grievances Alleging Unlawful Discrimination. Upon receipt of a grievance alleging unlawful discrimination based on race, color, sex or sexual harassment, national origin, disability, age, religious or political opinions or affiliation, the personnel office shall review and process the grievance in one of the following ways:
1. Allow the grievance to proceed through the grievance procedure as set out in this rule;
2. Investigate the grievance pursuant to a departmental procedure designed specifically for unlawful discrimination complaints, in which case the time limitations specified in other provisions of this rule may be extended by thirty (30) calendar days; or,
3. Advise the grievant, in writing, that the agency has concluded processing of the grievance and that the grievant may present the matter to the Georgia Commission on Equal Opportunity or the U. S. Equal Employment Opportunity Commission.
(t) Certified Grievance Hearing Officer Pool.
1. Establishment of the Pool. The Commissioner shall establish procedures for the creation of a Certified Grievance Hearing Officer Pool. Such procedures shall, to the extent feasible, include provisions for:
(i) The nomination and self-nomination of employees;
(ii) A geographic and cultural balance reflective of workforce diversity; and,
(iii) A balance of nonmanagement and management employees.
(iv) The Commissioner shall provide for a course of instruction to train selected employees as grievance hearing officers. An employee who satisfactorily completes the required course of instruction and meets any other criteria deemed appropriate by the Commissioner, shall be designated as a Certified Grievance Hearing Officer. The Commissioner shall maintain a pool capable of accommodating all requests for usage in a timely and expeditious manner.
2. Use of the Pool. Upon request of a personnel office, the Commissioner shall provide a Certified Grievance Hearing Officer selected from the Pool. Assignment of Certified Grievance Hearing Officers may be limited to employees of the requesting agency; provided, however, the Certified Grievance Hearing Officer shall not be an employee in the direct vertical managerial hierarchy of the grievant; shall not have any familial relationship to any of the parties to the grievance; and, shall not have any foreknowledge of the issues being grieved.
(i) A Certified Grievance Hearing Officer shall be assigned within the same geographic region as the Certified Grievance Hearing Officer's work location unless the Commissioner determines that such assignment is not feasible.
(ii) The grievant or the personnel office may object to the selection by stating the reasons for the objection. The Commissioner shall consider the reasons for the objection and shall uphold the original selection or provide an alternative Certified Grievance Hearing Officer. If the Commissioner removes a hearing officer, the Commissioner shall, in writing, notify the grievant and the personnel office of the basis for the decision. The decision of the Commissioner shall be final.
(iii)The grievant or the personnel office may object to the selection by stating the reasons for the objection. The Commissioner shall consider the reasons for the objection and shall uphold the original selection or provide an alternative Certified Grievance Hearing Officer. The decision of the Commissioner shall be final.
3. Travel Expense for Certified Grievance Hearing Officers. Transportation and subsistence expenses incurred by a Certified Grievance Hearing Officer in the course of all official duties related to the conduct of a hearing shall be the responsibility of the requesting department. Payments shall be made according to official statewide travel guidelines promulgated jointly by the State Department of Audits and the Office of Planning and Budget. Further, the Commissioner may establish administrative guidelines for Pool administration which shall be followed by the requesting department in reimbursing the Certified Grievance Hearing Officer's department for any additional miscellaneous expenses incurred during the discharge of hearing and post-hearing responsibilities.
(u)Grievance Procedure.
1. Filing Requirements. A classified employee may initiate a grievance by filing a State Grievance Form with the departmental/institutional personnel office. A grievance must be filed within ten (10) workdays of the occurrence upon which the grievance is founded, or within ten (10) workdays of the date the employee became aware, or should have become aware, of the problem through the exercise of reasonable diligence. The appointing authority, in its discretion, may grant a waiver or extension of the filing deadline.
(i) The grievance shall contain a statement of the issue involved; how the grievant's employment has been unfavorably affected; the relief sought; and, the date(s), if known, that the incident(s) or violation(s) occurred. If the grievance involves interpretation or application of rule or policy, the grievance shall identify the rule or policy at issue.
2. Extension of Time Limits. Upon the agreement of all parties to a grievance, any time limit specified in this rule may be extended. The personnel office or the Certified Grievance Hearing Officer may extend any time limit specified in this rule due to emergency, medical disability or legally mandated absence on the part of the grievant, third party or departmental representative, a witness or the Certified Grievance Hearing Officer. The grievant shall be immediately notified of the period of extension and the reasons therefore.
3. Informal Resolution. An appointing authority may, by written policy, require the State Grievance Form to be filed with the employee's immediate supervisor in order to attempt to informally resolve the issues. Such policy shall, at a minimum, specify:
(i) The supervisor shall file a copy of the Form with the departmental/institutional personnel office;
(ii) The levels of supervision that may be involved in the process;
(iii) The informal process may not exceed fifteen (15) calendar days; and,
(iv) If the employee has not received a satisfactory resolution of the issues by the end of the informal process, the employee may, within five (5) workdays, direct the personnel office to proceed with the grievance.
4. Review and Determination Requirements. Within ten (10) workdays of receipt of a grievance, the personnel office shall review the grievance to determine the grievability of the issue(s) and shall notify, in writing and including specific reasons for the determination, the parties to the grievance that:
(i) The grievance alleges unlawful discrimination and shall be processed in accordance with the provisions of 478-1-.24(f)(1)(s),
(ii) The issue is nongrievable, and that the process is being terminated; or,
(iii) The issue is grievable.
I. If the issue is determined to be grievable, the notice shall specify the manner in which the grievance is to be processed. The notice shall also be provided to the first level of supervision having the authority to grant the requested relief.
5. Resolution Process. Within twenty-one (21) calendar days of issuing a notice that an issue is grievable, the personnel office shall:
(i) Attempt to resolve the issues by facilitating an exchange of information between the parties, clarifying and/or interpreting rules or policies, or exploring alternative resolutions;
(ii) Refer the parties to the Dispute Resolution Service. or,
(iii) Request the Commissioner assign a Certified Grievance Hearing Officer.
I. The total time permitted to complete the steps specified in 478-1-.24(u) shall not exceed thirty-five (35) calendar days. If the personnel office is unable to resolve the issues or a satisfactory resolution does not result from the Dispute Resolution Service, the grievant shall be notified that the services of a Certified Grievance Hearing Officer have been requested and the grievance shall proceed to a hearing.
6. Commissioner's Responsibilities. Within five (5) workdays of receipt of a request for a Certified Grievance Hearing Officer, the Commissioner shall assign a Certified Grievance Hearing Officer to conduct a hearing on the issues.
7. Certified Grievance Hearing Officer Responsibilities. The Certified Grievance Hearing Officer shall, within fifteen (15) calendar days of assignment, conduct a grievance hearing and shall, barring agreement of the parties, render a written recommendation for resolution. The recommendation shall be presented to the agency head within fifteen (15) workdays of the date of the hearing.
8. Agency Head Responsibilities. The agency head shall review the findings and recommendation(s) of the Certified Grievance Hearing Officer and shall issue a final decision within ten (10) workdays of receipt of the recommendation(s).
9. Grievances Regarding Hazardous Chemicals. Grievances alleging occupational exposure to hazardous chemicals shall be processed by the appointing authority in the same manner as all other grievances. Upon conclusion of the agency grievance process, if the employee is not satisfied with the decision of the appointing authority, the employee may file a grievance with the Commissioner of Labor.
10. Right of Appeal to State Personnel Board. Upon receipt of a final determination of a grievance, if the grievant believes that the appointing authority has violated any provision(s) of these rules, the grievant may file an appeal in writing to the Office of State Administrative Hearings. The appeal must be filed in accordance with the provisions of 478-1-.24(6)(a)(3)(v) and within ten (10) calendar days of receipt of the final determination. The appeal must include the specific provision(s) of the rule alleged to have been violated and any documentation that would support the allegation.
11. Maintenance and Audit of Records. Each agency shall maintain a record of each grievance filed, as well as the nature and disposition of all grievances filed. These records shall be subject to audit by the Commissioner. Each agency shall, upon the request of the Commissioner, file a report reflecting the number, nature, and disposition of grievances filed. The Commissioner must collaborate with the agencies in determining the categorization and the reporting format.
(i) The Commissioner shall submit to the Board, annual summaries of the issues raised through the grievance procedure. The summaries shall, at a minimum, contain information reported by each agency indicating the number of grievances, a categorization of the issues, and the timeliness of processing the grievances.
(v) Emergency Provisions.
1. Suspension of Grievance Procedure. In the event of an emergency situation, the appointing authority may, upon written notice to the Commissioner stating the reasons therefore, suspend the right of grievance under this rule for all or part of the agency for a period not to exceed thirty (30) calendar days; provided, however, that on written request of the appointing authority, stating the reasons therefore, the suspension may be extended as approved by the Commissioner.
2. A suspension of the eligibility to file a grievance as provided in this Section may delay but shall not otherwise prejudice any grievance filed before the effective date of the suspension, nor shall the period of suspension be construed as cause to deny or otherwise limit any grievance filed within fifteen (15) calendar days after the period of suspension has expired.
3. If, in the opinion of the Commissioner, the reasons for suspension of the eligibility to file grievance are specious, without merit or insufficient, the Commissioner may, upon written notice to the appointing authority, revoke the suspension and direct that grievances be processed as provided in this rule. The appointing authority shall comply promptly with such order of the Commissioner.
(6) Appeals and Hearings. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2.
(a) General Provisions. All appeals shall be filed in writing with the Office of State Administrative Hearings in accordance with the procedures which the Board may from time to time establish. Unless a different time period is specifically provided, appeals must be filed and/or postmarked within ten (10) calendar days after:
(1) the employee receives written notice of the action or decision; or (2) the effective date of the action or decision, whichever is later. Any filing shall be considered timely if postmarked within the time allowed for an appeal but shall not be considered filed until actually received by the Office of State Administrative Hearings.
1. The Board may, in its discretion, authorize administrative law judges from the Office of State Administrative Hearings to hold hearing and otherwise assist in the resolution of appeals. Such administrative law judges shall compile evidence, prepare findings of fact, conclusions of law, issue initial decisions and certify records to the Board for its determination and make investigations of matters under the Board's jurisdiction where the Board deems a review appropriate.
2. Appeal hearings shall be before an administrative law judge unless otherwise specified by the Board.
(b) Upon receipt of an appeal the Office of State Administrative Hearings shall assign the appeal to an administrative law judge unless otherwise directed by the Board.
(c) Upon the motion of either party or upon its own motion, the Board or the administrative law judge may dismiss any appeal if the appeal is clearly moot, is without merit, was not properly filed with the Office of State Administrative Hearings or is not within the scope of the Board's authority.
(d) Waiver of Appeal Rights. An employee who fails to file an appeal in a timely manner shall be deemed to have waived any right of appeal to the Board.
(e) Appeals under the provisions of 478-1-.24(6)(a)(3)(o), 478-1-.24(6)(a)(3)(p), 478-1-.24(6)(a)(3)(q), 478-1-.24(6)(a)(3)(r), and 478-1-.24(6)(a)(3)(w), shall be entitled to a hearing which shall be conducted by an administrative law judge unless the Board, in its discretion, elects to grant a hearing before the Board; provided, with the consent of all parties and approval by the administrative law judge, a hearing may be waived and the appeal considered on the written record. All other appeals shall be considered on the written record unless otherwise specified by the Board or the administrative law judge.
(f) Review of Initial Decisions. Initial decisions of the administrative law judge shall become the decision of the Board; provided, however, a party adversely affected by a decision regarding dismissal, demotion, suspension without pay or salary reduction may file an application for review by the Board. Application for review by the Board must be in writing and filed with the Executive Secretary within thirty (30) calendar days of the date the initial decision was issued. Both parties shall have the right to present oral arguments to the Board.
3. The Board on its own motion may issue an order for review within thirty (30) calendar days of the date of the initial decision.
(g) Decisions of the Board are final and shall not be reconsidered except for specific correction of a manifest error or to comply with an order of a court of competent jurisdiction.
(h) No person shall attempt by improper means to influence the proceeding or decisions in an appeal hearing authorized by these rules and regulations.
(i) Oral arguments or the filing of written memoranda may be required of both parties at the discretion of the Board or an administrative law judge.
(j) Notwithstanding any other provision of these rules to the contrary, no employee governed by these rules may file an appeal or otherwise seek a hearing before the State Personnel Board on any charge of unlawful employment discrimination if remedy is available through the Georgia Commission on Equal Opportunity under Georgia law; provided, however, that such prohibition does not prohibit state agencies from processing internal grievances or otherwise investigating such charges of unlawful discrimination nor does such prohibition apply to appeals from adverse actions.
(k) Notwithstanding any other provision of these rules to the contrary, if an employee charges in an adverse action appeal that the adverse action was based on an unlawfully discriminatory purpose as defined under these rules, then the employee shall be advised of the right, if available, to file a charge with the Georgia Commission on Equal Opportunity. The employee shall further be advised by the State Personnel Board, an administrative law judge or other agent that the employee has the option of either proceeding with a State Personnel Board appeal or with a charge before the Georgia Commission on Equal Opportunity. If the employee elects to proceed with a charge before the Georgia Commission on Equal Opportunity, then the proceeding before the State Personnel Board shall be stayed until the completion of the action before the Georgia Commission on Equal Opportunity or a special master. Following the completion of the action before the Georgia Commission on Equal Opportunity or a special master, if the employee wishes to proceed with their appeal to the State Personnel Board, then the employee must file a request to lift the stay with the Office of State Administrative Hearings. This request shall be filed in writing within ninety calendar days following the date of issuance of the Georgia Commission on Equal Opportunity's final decision. This request shall be considered timely if postmarked within the time allowed under this rule but shall not be considered filed until actually received by the Office of State Administrative Hearings. A final decision on the merits of the charge by a special master shall preclude the Board or an administrative law judge from reconsidering the same factual issues between the parties but shall not preclude the Board from acting on any other issues that have not been resolved by the special master's decision nor preclude the Board from applying the rules and the Merit System law to the facts as determined in the special master's decision.
(l) Notwithstanding any other provision of these rules to the contrary, no employee may file or continue an appeal if the employee is alleging reprisal for having made a complaint or disclosing information relating to fraud, waste, or abuse in state programs or operations as specified in 478-1-.24(6)(a)(3)(n), and the employee has instituted, or institutes, proceedings in superior court. The employee shall be notified by the Executive Secretary that any such appeal shall be stayed until the resolution of the court proceedings. A final resolution of the court proceedings shall not preclude the Board from acting on any issues that have not been resolved by the court proceedings nor preclude the Board from applying the rules and the Merit System law to the facts as determined in the court proceedings.
(m) No action against any employee shall be taken or threatened by an appointing authority as a reprisal for making a complaint or disclosing information to the appointing authority unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.
(n) Reasons for which appeals may be filed. Unlawful Discrimination Against an employee. Unless prohibited by the provisions of 478-1-.24(6)(a)(3)(l), an employee who has been unlawfully discriminated against in employment because of political or religious opinions or affiliations, race, color, creed, sex, national origin, age between 40 and 70 years or disability may appeal to the Board as provided in 478-1-.24(6)(a)(3)(a); provided, however, there shall be no right of appeal or hearing from mandatory retirement at an age lower than age 70 if the lower age is prescribed by statute, rule, regulation or formal department policy; provided, further that if administrative remedy for the alleged discrimination is available through the departmental grievance procedure as outlined in this Rule, the employee shall first seek such remedy and may appeal to the Board only at the conclusion of the procedure.
(o) Dismissal of a Permanent Employee. A permanent employee who is dismissed may appeal the dismissal to the Board as provided in 478-1-.24(6)(a)(3)(a). A permanent employee who is dismissed while serving a working test period following a promotion in the same department may appeal the dismissal to the Board as provided in 478-1-.24(6)(a)(3)(a). If the appeal is upheld by the Board, relief shall be limited to reinstatement to a position in the class in which the employee last held permanent status, or to a position to which the employee could have been transferred from the position in which the employee last held permanent status.
(p) Suspension of a Permanent Employee. A permanent employee who is suspended without pay may appeal the suspension to the Board as provided in Section24.601.
(q) Demotion of a Permanent Employee. A permanent employee who is demoted may appeal the demotion to the Board as provided in 478-1-.24(6)(a)(3)(a). A permanent employee serving a working test period following a promotion in the same department who is demoted to a class lower than the class in which the employee last held permanent status may appeal the demotion to the Board as provided in 478-1-.24(6)(a)(3)(a). If the appeal is upheld by the Board relief shall be limited to reinstatement to a position in the class in which the employee last held permanent status, or to a position to which the employee could have been transferred from the position in which the employee last held permanent status.
(r) Disciplinary Salary Reduction. A permanent employee who is subjected to a disciplinary salary reduction may appeal the reduction to the Board as provided in 478-1-.24(6)(a)(6)(i).
(s) Relocation. Unless prohibited by the Provisions of 478-1-.24(6)(a)(3)(l), a permanent employee who is subjected to involuntary relocation under the provisions of this Rule may appeal the relocation to the Board as provided in 478-1-.24(6)(a)(3)(o); provided, however, that if administrative remedy for the relocation is available through the departmental grievance procedure as outlined in this Rule, the employee shall first seek such remedy and may appeal to the Board only at the conclusion of the procedure.
(t) Reduction in Force Procedure. A permanent employee who has been laid-off, furloughed or reduced in salary as a result of a reduction in force may appeal to the Board as provided in 478-1-.24(6)(a)(3)(a) if the reduction in force as implemented by the appointing authority is not in accordance with the plan of reduction as approved by the Commissioner. Such right of appeal shall not be construed to limit the ability of an appointing authority to adjust the number of employees to be retained.
(u) Unjust Coercion or Reprisal. Unless prohibited by the provisions of 478-1-.24(6)(a)(3)(l), an employee who is subjected to unjust coercion or reprisal because of participation in an appeal or grievance proceeding authorized by these rules and regulations may appeal for relief to the Board as provided in 478-1-.24(6)(a)(3)(a); provided, however, that if administrative remedy for the coercion or reprisal is available through the departmental grievance procedure as outlined in this Rule, the employee shall first seek such remedy and may appeal to the Board only at the conclusion of the procedure.
(v) Other Purported Violations of the Rules of the Board. Unless prohibited by the provisions of 478-1-.24(6)(a)(3)(l), a classified employee who feels that there has been a violation of the rules or the Merit System law which adversely affects the employee's rights may appeal for relief under this provision if the appeal right is not covered elsewhere in these rules. The appeal must be filed and/or postmarked within ten (10) calendar days after the occurrence of the alleged violation.
(w) Forfeiture of Employment. Unless prohibited by the provisions of 478-1-.24(6)(a)(3)(l), a permanent employee who has forfeited employment as provided in 478-1-.24(10)(b) may appeal as provided in 478-1-.24(6)(a)(3)(l).
(x) Voluntary Separations. Unless prohibited by the provisions of 478-1-.24(6)(a)(3)(l), a permanent employee who has been separated under the provisions of 478-1-.24(10) may appeal by filing an appeal with the Office of State Administrative Hearings. The appeal must be filed in writing within ten (10) calendar days of the separation or notification of such, whichever is later. The appeal must include any evidence that would support the employee's belief that the separation was improper. Unless the administrative law judge specifies otherwise, the appeal will be considered on the basis of the written record. A finding that the separation was improper shall permit, but not require, the administrative law judge to reverse the separation.
(y) Position Level Reduction. When an appointing authority, in accordance with 478-1-.24(10)(9), determines that the responsibilities of a position have been reduced to the extent that the position would be more appropriately assigned to a job on a lower paygrade, the department head shall reallocate the position to the appropriate job. Such reallocation shall not be appealable to the Board, but the incumbent may request a review of the position level reduction as specified in this Rule.
(7) Adverse Actions and Intra-Agency Appeals. Adverse action is defined as a disciplinary action taken by an appointing authority which results in the suspension without pay, demotion, reduction in salary, or dismissal of a permanent employee. It does not include action resulting from reduction in force, insufficient funds, decrease in funds, or change in departmental needs.
(a) Except as provided in 478-1-.15(9), an employee against whom an adverse action is proposed shall be provided;
1. At least fifteen (15) calendar days advance written notice of the proposed action stating the specific charges or reasons for which the action is to be taken;
2. A reasonable time in which to refute such charges; and
3. Written determination of the final action.
(b) Types of Adverse Actions.
1. Suspension Without Pay.The appointing authority may suspend an employee without pay for disciplinary purposes or for pending criminal court action when such pending criminal court action may deter the employee's effectiveness in employment.
(i). A suspension without pay for disciplinary purposes should be proportional to the offense and shall not exceed thirty (30) calendar days for any one offense, or for multiple offenses arising out of the same incident. The appointing authority may suspend an employee for disciplinary purposes because of: negligence or inefficiency in performing assigned duties; inability or unfitness to perform assigned duties; insubordination; misconduct; conduct reflecting discredit on the department; commission of a felony or other crime involving moral turpitude; chronic tardiness or absenteeism; failure to report for or remain at work without justifiable cause; failure to process performance appraisals in a timely manner; or political activity in violation of 478-1-.8.
(ii). A suspension for pending criminal court action shall not exceed the period of time necessary for the disposition of the action.
(iii). At the end of a period of suspension without pay for pending criminal action the employee shall be returned to duty or terminated in accordance with other sections of these rules. If the disposition of the criminal action does not include any penalty to the employee, the employee shall be reinstated in accordance with the provisions of 478-1-.24(9)(f).
2. Disciplinary Salary Reduction. The appointing authority may reduce an employee's salary for disciplinary purposes because of: negligence or inefficiency in performing assigned duties; inability or unfitness to perform assigned duties; insubordination; misconduct; conduct reflecting discredit on the department; chronic tardiness or absenteeism; commission of a felony or other crime involving moral turpitude; failure to report for or remain at work without justifiable cause; failure to process performance appraisals in a timely manner; or political activity in violation of Rule 478-0-.8.
3. Demotion. The appointing authority may demote an employee because of: negligence or inefficiency in performing assigned duties; inability or unfitness to perform assigned duties; insubordination; misconduct; conduct reflecting discredit on the department; commission of a felony or other crime involving moral turpitude; chronic tardiness or absenteeism; failure to report for or remain at work without justifiable cause; failure to process performance appraisals in a timely manner; or political activity in violation of 478-1-.8.
4. Dismissal. The appointing authority may dismiss an employee because of: negligence or inefficiency in performing assigned duties; inability or unfitness to perform assigned duties; insubordination; misconduct; conduct reflecting discredit on the department; commission of a felony or other crime involving moral turpitude; chronic tardiness or absenteeism; failure to report for or remain at work without justifiable cause; failure to process performance appraisals in a timely manner; or political activity in violation of 478-1-.8.
(c) Notice of proposed Adverse Action. The appointing authority must give a classified employee who has obtained permanent status a written notice of any proposed adverse action at least fifteen (15) calendar days prior to the effective date of the adverse action except for an emergency situation as set forth in 478-1-.24(7)(f)(5)(h). The notice of proposed adverse action must include the following:
1. The effective date of the adverse action which must be at least fifteen (15) calendar days after the date notice of the proposed action is presented to or received by the employee, or properly delivered to the employee's last known address;
2. The specific charges or reasons for the adverse action;
3. A statement advising that the employee has a right to respond to the charges or reasons in writing, or appear before a named official of the department at an agreed time during regular business hours within the response period specified in 478-1-.24(7)(c)(5)(d);
4. A statement advising the employee that a failure to respond to the charges during the response period will result in the action being effective on the date specified without further notice; and,
5. A warning that failure to respond by the date set forth in the notice will result in a waiver of all further appeal rights including any appeal to the State Personnel Board under 478-1-.24(6).
(d) Employee Response Procedure. The employee response procedure is created to protect the employee from erroneous or arbitrary adverse action. It is also created to afford the agency an opportunity to re-evaluate its position on proposed adverse actions or forfeiture of position and to affirm or correct if necessary. The procedure does not require a full evidentiary hearing prior to the action. It requires only that the employee be given an opportunity to respond to the charges before a responsible official of the department. The procedure must meet the following minimum requirements.
1. The person to whom the response is to be made must be someone who has authority to countermand or delay the proposed action;
2. The employee must respond within ten (10) calendar days from the date the notice of proposed action is received. If there is no response by the employee by the date required in the notice of proposed action, the employee waives all further appeal rights. There can be no further appeal, including any appeal to the State Personnel Board;
3. The response may be made in writing, or in person, or both;
4. The employee may submit affidavits to support the response; and,
(e) Extension or Change in the Charges or the Adverse Action. If the official to whom the response is made determines that more than three (3) calendar days are needed to consider the employee's response to the proposed action, said official may extend the period of consideration for a reasonable number of days by notifying the employee as to the length of the extension. The extension notice shall also state that the effective date of the proposed action shall be delayed the same number of days as the length of the period of extension for consideration.
1. If the official to whom the response is made determines that charges in addition to, or substantially different from, those enumerated in the Notice of Proposed Adverse Action should be made, or that the adverse action should be more severe than the action specified in the Notice of Proposed Adverse Action or Forfeiture of Position, said official shall revoke the Notice by written notification to the employee. A new action, or other appropriate action, may then be instituted against the employee in accordance with these rules.
(f) Determination of Final Action. The official to whom the response is made shall issue a notice of determination of final action not later than three (3) calendar days after the date of response except as provided in 478-1-.24(7)(e). The notice shall include:
1. The final action, i.e., dismissal, forfeiture of position, suspension, demotion, disciplinary reduction in salary or no action (employee's position upheld). The final adverse action may be different from, but not more severe than, the proposed action
2. The specific charges for which the final action is taken;
3. The effective date of the final action (This date may not be any earlier than the effective date in the notice of proposed action.); and,
4. A statement advising that the employee may appeal this determination to the State Personnel Board pursuant to 478-1-.24(6) by filing an appeal in writing with the Office of State Administrative Hearings within ten (10) calendar days from the date the employee receives written notice of the final action or decision; or the effective date of the action or decision, whichever is later.
5. A statement reminding the employee that the ten (10) calendar day appeal period includes Saturdays, Sundays, and Holidays.
(g) Notice Period. During a notice period of adverse action or forfeiture of position, an employee is expected to perform assigned duties without disrupting fellow employees or the agency's activities. Any action by the employee to the contrary will be considered an emergency situation as defined in 478-1-.24(7)(f)(5)(h).
(h) Emergency Situations. The appointing authority may take immediate adverse action against any employee in any of the following circumstances if:
1. It is likely that the employee has committed a felony or other crime involving moral turpitude; or,
2. The retention of the employee in active duty status may result in damage to property or may be disruptive, detrimental or injurious to the employee, fellow workers, persons under the employee's charge or the general public.
(I). The notice of adverse action under this section is the final determination of adverse action and must include the same items required in 478-1-.24(7)(f). It must also include a statement explaining the emergency situation that caused this section to be invoked.
(j) If on appeal to the State Personnel Board it is determined that the adverse action was correct but there was no emergency situation, the Board may take appropriate steps necessary to remedy the situation. In the case of a dismissal, this may include back pay for the normal notice period.
(k) This Rule may be invoked only with the approval of the appointing authority.
(l) The provisions of this section must not be used to circumvent the notice requirement of this rule. If an agency is found to have abused this section, the Board may suspend future application of this section by the offending agency.
(8) Hearing Procedures. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2. The purpose of this rule is to establish uniform procedures for the conduct of hearings by the Board or administrative law judges from the Office of State Administrative Hearings.
(a) General Provisions. After an appeal has been properly filed with the Executive Secretary to the Board, the appeal shall be forwarded to the Office of State Administrative Hearings for assignment to an administrative law judge.
1. Notice of the Hearing. Within seven (7) days from the filing of an appeal in accordance with Rule 24.600, the administrative law judge or the Board shall designate an appropriate time and place to conduct the hearing and shall so notify all parties in writing; provided, however, any hearing on a dismissal must be held in the county in which the employee was employed unless all parties agree to another location. Such notification shall be mailed or served at least ten (10) calendar days in advance of the date set for the hearing. Where practical, the hearing will be held within thirty (30) calendar days after receipt of the appeal by the Administrative law judge. Any administrative law judge or the Board shall have the authority to postpone or to continue a hearing upon its own motion or upon the motion of either party.
2. Opportunity shall be afforded both parties to represent themselves or to be represented by legal counsel. All arrangements for providing legal counsel shall be the responsibility of the party desiring such representation.
(b) Pre-Hearing Conference. The administrative law judge or the Board may arrange a pre-hearing conference for the purpose of reviewing the matter being appealed and establishing stipulations to expedite the hearing.
(c) Witnesses.
1. The appellant or the agency may request the attendance of employees or other persons as witnesses when their testimony will aid in establishing the facts in the case. Employees appearing as witnesses shall be released from duty without loss of pay or time and without effect on their service rating. No person shall directly or indirectly use, or threaten to use, any official authority or other influence which would tend to discourage any other person from testifying.
2, The appellant or the agency may request the Board or the administrative law judge to issue subpoenas for witnesses for hearings. The cost of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court.
(d) Issuance of Subpoenas.
1. Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the hearing is being held for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court.
2. Once issued, a subpoena may be quashed or limited by the Board or the administrative law judge upon the motion of the Board, the administrative law judge, or any party, or at the request of any witness if it appears that the subpoena was used primarily as a means of harassment, that the testimony or documents sought are cumulative, that the testimony or documents sought are not relevant or material, that to respond to the subpoena would be unduly burdensome, or that for other good reasons basic fairness dictates that the subpoena not be enforced.
(e) Record of a Hearing Before an Administrative Law Judge.
1. A recording shall be made of all hearings; however, such recording will not be transcribed unless the initial decision is appealed to the Board; or a transcript is requested by the administrative law judge or either party to the hearing. If the transcription is made pursuant to a request by either party to the hearing, the cost thereof, as determined by the Office of State Administrative Hearings will be borne by the party making such request.
2. In addition to the recording of the hearing, or a transcription thereof, all documents entered into the record during the hearing shall be made part of the official record of the hearing.
(f) Record of Oral Argument Before the Board. The Board may, but is not required to, make a recording of any oral argument before the Board on an appeal from an initial decision.
(g) Commissioner's Opportunity to be Heard. At the Commissioner's discretion or at the invitation of the administrative law judge or the Board, the Commissioner shall be entitled to be heard and to submit evidence in any appeal in which the interpretation of a State Personnel Board rule, regulation, policy or Merit System practice is at issue.
(9) Hearing Process. Rules under this provision are applicable only to employees in the classified service as defined in 478-1-2.
(a) Role of the Board or Administrative Law Judge. The State Personnel Board, any member of the Board, or any duly assigned administrative law judge shall have the authority to do the following in connection with any hearing:
1. To administer oaths and affirmations;
2. Sign and issue subpoenas;
3. Rule upon offers of proof;
4. Regulate the course of the hearing;
5. Set the time and place for continued hearings and pre-hearing conference;
6. Fix the time for filing briefs;
7. Dispose of motions to dismiss for lack of the Board's jurisdiction over the subject matter or parties or for any other grounds;
8. Dispose of motions to amend or to intervene;
9. Provide for the taking of testimony by deposition or interrogatory;
10. Reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the Board or the administrative law judge; and,
11. To make informal disposition of any case by stipulation, agreed settlement, consent order or default, unless such disposition is precluded by law.
(b) Attendance at the Hearing. Any hearing at which the Board or an administrative law judge receives evidence or hears arguments on appeals of disciplinary actions, dismissals, or other purported violations of the rules shall be open to the public. Witnesses may, however, be sequestered at the discretion of the Board or the administrative law judge.
(c) Evidence. With respect to all hearings before the Board or an administrative law judge.
1. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. The rules of evidence as applied to the trial of civil nonjury cases in the superior courts of Georgia shall be followed. Evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The Board shall give effect to the rule of privilege recognized by law.
2. Objections to evidentiary offers may be made and shall be noted in the record.
3. When a hearing will be expedited and the interest of the parties will not be prejudiced substantially, any part of the evidence may be received in written form including, but not limited to, the use of depositions or interrogatories.
4. Documentary evidence may be received in the form of copies of excerpts if the original is not readily available. Upon request, and at the discretion of the administrative law judge or Board, parties shall be given an opportunity to compare the copy with the original.)
(d) Conduct of Hearings. In the hearing of an appeal, the proceeding shall be informal but orderly. The following procedures shall prevail:
1. The presiding officer shall open the hearing by explaining the procedure to be followed in the hearing. At the discretion of the Board or administrative law judge, any or all witnesses may be sequestered;
2. The presiding officer shall read or cause to be read the charges and specifications as filed with the Executive Secretary to the Board. The presiding officer shall then read or cause to be read the letter of appeal as filed with the Executive Secretary. By agreement these documents may be inserted in the record without reading;
3. The facts not in dispute may be stipulated;
4. Each party shall be given an opportunity to make a brief opening statement identifying the issues and indicating what is to be proven;
5. All witnesses shall testify under oath or affirmation;
6. Each party may conduct such cross examination as shall be required for a full and true disclosure of the facts. In addition, the administrative law judge may examine the witnesses;
7. Official notice may be taken of judicially recognizable facts. In addition, official notice may be taken of technical facts within the specialized knowledge of the Board or the administrative law judge. Parties shall be notified either before or during the hearing, by reference in preliminary reports or otherwise, of the material officially noted, including any staff memoranda or data, and they shall be afforded an opportunity to contest the materials so noticed;
8. The Board's or administrative law judge's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence;
9. Before closing the hearing, the presiding officer may allow both parties the opportunity to make brief oral or written closing statements.
10. With respect to hearings at which the Board did not preside at the reception of the evidence, the administrative law judge who presided shall issue an initial decision within thirty (30) days from the close of the evidence or, if necessary, a longer period of time as ordered by the Board or administrative law judge. The initial decision may modify the action of the appointing authority but may not increase the severity of such action on the employee. The initial decision shall be transmitted to the Board with copies mailed to the parties or their representatives.
11. A party adversely affected by a decision of an administrative law judge regarding dismissal, demotion, suspension without pay or salary reduction may, within thirty (30) calendar days from the date the initial decision was issued, apply to the Board for review of the decision. Any application shall be considered timely if postmarked or received within the time allowed. In the absence of an application for review, or an order by the Board within such time for review on its own motion, the initial decision shall, without further proceedings or notice, become the final decision of the Board and any right of additional appeals shall be extinguished.
(e) Board Review of Administrative Law Judge's Initial Decision.
1. Upon receipt by the Executive Secretary of an application for Board review, or on the Board's own motion, the Executive Secretary shall transmit the entire record to the Board for review and final decision.
2. Both parties in an appeal to Board shall have the right to present oral arguments to the Board. This shall not pre-clude the Board from requesting argument, either oral or written, upon request of any member of the Board.
3. On review of the entire record, the Board shall have all the powers it would have had in presiding at the reception of the evidence, including the review of any motions granted or denied by the administrative law judge and including the review of any action taken by the administrative law judge. In its discretion, the Board may take additional testimony or evidence or remand the matter to the Office of State Administrative Hearings for such purpose.
4. Any hearing to receive additional evidence or hear oral argument shall be open to the public. Deliberations by the Board, which may include a review of the record, may be held in closed session.
(f) Decision of the Board.
1. Upon receipt of an application for review of an administrative law judge's initial decision regarding a dismissal, demotion, suspension without pay or salary reduction, the Board shall normally render its decision at the first regular monthly meeting after the entire record is made available to it. When an appeal is heard by the Board, it may render its decision immediately thereafter, or at the regular meeting held in the month following the month in which the appeal was heard, or at the first regular meeting after the complete certified record including transcript is made available to it, unless otherwise extended.
2. As a part of the initial decision or final decision of the Board or order subsequent to any hearing, the administrative law judge or the Board shall include findings of fact and conclusions of law, separately stated and the effective date of the decision or order. The initial decision of the administrative law judge shall include the reasons for the decision. The Board, when requested to review the record of an appeal, shall make its own findings of fact and conclusions of law which may be by adopting the findings, conclusions and decision of the administrative law judge. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Copies of the decision or order shall be mailed to all parties of record by the Executive Secretary.
3. The decision of the Board as to whether an adverse action was in accordance with the rules shall be binding upon both parties. The Board's decision may modify the action of the appointing authority but may not increase the severity of such action on the employee. Such appointing authority shall promptly comply with such order as may be issued as a result of the appeal.
4. If the decision of the Board is in favor of the appellant on appeals of dismissal, demotion, suspension without pay or salary reduction the employee shall be reinstated in accordance with the decision of the Board to the position from which the employee was removed except as provided in 478-1-.24(6)(a)(3)(o) and 478-1-.24(6)(a)(3)(q). The effective date for the reinstatement shall be the date immediately following the effective date of the appealed action as though there had been no break in service, unless otherwise specified in the order. The employee shall be entitled to the same salary in the position or salary which would have automatically been received had the employee remained in actual service. The employee shall receive payment as though there had been no break in service, minus any amount earned by or paid to the employee from other employment and wage substitutes (including but not limited to unemployment compensation) during the period off the job and minus any amount paid for annual leave. The employee's sick and annual leave shall be restored in the same amount as existed at the time of the appealed action, plus sick and annual leave that would have been earned for the period as though the employee had actually been in service. However, any period of postponement or continuance of the hearing for the convenience of the appellant will be excluded from any payments of benefits due, and this period of time will be considered as though the appellant had been on leave without pay. Prior to any payment, the employee shall be required to certify under oath the amount of income from other employment and wage substitutes during the period off the job.
5. In any case in which an appeal is disposed of by stipulation, agreed settlement or consent order, any compensation and leave due the employee shall be calculated in accordance with 478-1-.24(9)(f)(4).
(g) Judicial Review. A decision of the Board or an administrative law judge's decision not subject to review by the Board, shall not limit the rights of either party to judicial review and such decision shall be stayed by the filing of a petition for review. Any party, including the State or any state board, bureau, commission or department, who has exhausted all administrative remedies available before the Board and who is aggrieved by a final decision or order of the Board on any hearing may seek judicial review of the final decision or order of the Board in the superior court of the county of the place of employment of the employee.
(10) Voluntary Separations.
(a) Resignation. RESERVED
(b) Presumptive Resignation. Any employee who is absent from duty for five (5) consecutive workdays or equivalent, without proper authorization thereof, within the discretion of the appointing authority, may be deemed to have resigned voluntarily from employment. The employee shall be notified of the separation in writing. The notice shall include a statement advising that the employee may appeal the separation within the response period specified in 478-1.24(3)(x).
(c) Failure to Return from Leave of Absence. Any employee who fails to return to duty at the expiration of a leave of absence may, in the discretion of the appointing authority, be deemed to have resigned voluntarily from employment. The employee shall be notified of the separation in writing. The notice shall include a statement advising that the employee may appeal the separation within the response period specified in 478-1.24(3)(x)
(d) Suitable Vacancy Not Available. If a suitable vacancy is not available at the expiration of a Contingent Leave of Absence, the appointing authority shall release the employee from employment. Such release shall be deemed a voluntary separation.
(e) Forfeiture of Position.
1. Any permanent status employee who fails to secure or maintain a license, certificate, or registration required by law or appropriate regulatory authority for the performance of the employee's duties shall, upon termination of employment therefore in accordance with 478-1-.24(10)(f), be deemed to have voluntarily forfeited employment.
2. Any permanent status employee who engages in political activity or conflicting employment in violation of 478-1-.7 shall, upon termination of employment therefore in accordance with 478-1-.24(10)(f), be deemed to have voluntarily forfeited employment.
3. Any permanent status employee who has made a false statement of material fact on an application for examination or employment shall, upon termination of employment therefore in accordance with 478-1-.24(10)(f), be deemed to have voluntarily forfeited employment.
(f) Effectuation of Forfeiture of Employment. To effectuate forfeiture of employment, the appointing authority shall comply with the provisions of 478-1-.24(7)(c). The employee response procedure shall be as specified in 478-1-.24(7)(d).
1. The appointing authority may effectuate immediate forfeiture of employment of any employee if retention of the employee to perform the employee's normal duties would violate any state or federal law, or regulations which have the force and effect of law. The notice of forfeiture of employment under this paragraph is the final action and must include the same items required under 478-1-.24(7)(f). It must also include a statement explaining why this paragraph was invoked.
(g) Release from Employment. An employee who is absent from duty for five (5) consecutive workdays or equivalent after all sick and annual leave is used may, in the discretion of the appointing authority, be released from employment. Such release shall be deemed a voluntary separation.
(h) Involuntary Separations.
1. Separation of Working Test Employees. Except as provided in 478-1-.24(1)(b), an employee serving a working test period following interdepartmental transfer may be separated from the employment by the appointing authority at any time during the working test period. The employee shall be notified in writing of the separation but the separation cannot be appealed except as otherwise provided in these rules. The notice of separation shall be provided to the employee no later than the calendar day prior to the effective date of separation.
2. An employee serving a working test period as a result of a promotion in the same department may be dismissed as provided in 478-1-.24(7).
(i) Dismissal of a Permanent Employee. A permanent employee may be dismissed as provided in 478-1-.24(7).
