Arkansas Administrative Code › Agency 006 - Department of Finance and Administration › Division 24 - Office of Personnel › Rule 006.24.14-001 - State Employee Dispute Resolution Appeal Rules and Procedures

Current through Register Vol. 49, No. 6, June, 2024
I.
PURPOSE
The purpose of these rules and procedures is to establish an appeal
	 process pursuant to Arkansas Code Annotated §§
									21-1-701
el seq..
for the prompt review, impartial consideration. and
	 equitable disposition of Arkansas state employee grievances.
These rules and procedures also encourage alternative resolution among
	 supervisory employees and their employees.
II.
DEFINITIONS
Administrative Record
- The case tile specific
	 to each grievance assembled according to the Office of Personnel Management
	 ("OPM") Administrative Record Rules.
Administrative Review Hearing
- An internal
	 fact-finding hearing before a Hearing Officer(s).
Adverse action
- To discharge, threaten, or
	 otherwise discriminate or retaliate against a public employee in any manner
	 that affects the employee's employment, including compensation, job location,
	 rights, immunities, promotions, or privileges.
Appeal
- A written request by an employee for
	 nonbinding mediation or a review by the State Employee Grievance Appeal Panel
	 of a final decision from the stale agency
	 Director/Chairperson/Commissioner.
Appropriate authority
- A state government
	 department, state agency, or organization having jurisdiction over criminal law
	 enforcement, regulatory violations, professional conduct or ethics, or waste;
	 or a member, officer, state agency, investigator, auditor, representative or
	 supervisory employee of the body, slate agency, or organization.
Communicating in good faith
- Making a verbal
	 or written report at a time and in a manner that gives a stale agency
	 reasonable notice of the need to correct a waste or violation.
Disciplinary action
- Termination, suspension,
	 involuntary demotion, written reprimands, and non-new-hire probation.
Dispute resolution
- A procedure that allows
	 parties to constructively manage conflicts through grievances or
	 mediation.
Employee
- A person regularly appointed or
	 employed in a position of state service by the state agency for which he or she
	 is compensated on a full-time basis or on a pro rata basis for whom a class
	 title and pay grade are established in the appropriation act for the state
	 agency in accordance with the Uniform Classification and Compensation Act. An
	 employee on initial new-hire probationary status is not an employee for
	 purposes of these rules and procedures. An employee does not include a
	 supervisory employee.
Grievance
- A complaint by an employee
	 regarding a disciplinary action, discrimination, harassment, or the
	 approval/denial of compensatory time made by the supervisory employee, but not
	 including compensation and conditions which are beyond the control of the stale
	 agency or are mandated by law.
Grievance Officer
- The person designated by
	 the state agency as having the responsibility for acting as the liaison between
	 the employee and the stale agency.
Hearing Officer(s)
- An impartial person/panel
	 of persons appointed to review the facts of the grievance and make a
	 recommendation for resolution to the state agency
	 Dircctor/Chairperson/Commissioner.
Mediation
- A collaborative problem-solving
	 and joint decision-making process between the employee and supervisory
	 employee, through utilization of a third-party neutral (mediator).
Party
- The employee affected by a stale
	 agency decision or the state agency that made the decision at issue in the
	 grievance.
Stale agency
- An agency, board, commission,
	 department, division, or office of state government within the executive
	 branch.
State Employee Grievance Appeal Panel
	 ("Panel")
- An impartial appeal panel established to review the
	 facts of the grievance and issue a binding decision.
Supervisory employee
- An individual having
	 authority in the interest of a state agency to hire, transfer, suspend, lay
	 off. recall, promote, discharge, assign, reward, or discipline other employees
	 of the state agency: or if his or her exercise of authority requires the use of
	 independent judgment and is not of a merely routine or clerical nature, the
	 responsibility to direct other employees of the state agency by which he or she
	 is employed.
Violation
- An infraction or a breach which is
	 not of a merely technical or minimal nature of a state statute or regulation,
	 of a political subdivision ordinance or regulation, or of a code of conduct or
	 code of ethics designed to protect the interest of the public or a public
	 employer.
Waste
- A public employer's conduct or
	 omissions which result in substantial abuse, misuse, destruction, or loss of
	 public funds, property, or manpower belonging to or derived from state or local
	 political subdivision resources.
III.
POLICY
Employees shall be given the opportunity to resolve grievances they
	 believe adversely affect their employment or working conditions through these
	 established steps and procedures to ensure fair resolution of their grievance
	 within a reasonable period of time.
The state agency and the employee shall take all reasonable efforts to
	 settle a grievance as quickly as possible. Informal discussion between a
	 supervisory employee and employee is encouraged.
Participation in the dispute resolution process is voluntary. The
	 dispute resolution process may be terminated by the employee at any stage if an
	 agreement between the parlies is reached.
A party may be represented at each step of the appeal process; however,
	 attorney's fees shall not be awarded.
An employee shall not be subject to adverse action for utilizing the
	 dispute resolution procedures.
IV.
PROCEDURE
Section 1
- Exhaustion of
  remedies
Once an employee has exhausted all of the state agency dispute
	 resolution procedures and is not satisfied with the decision reached by the
	 state agency Director/Chairperson/Commissioner, he or she may appeal, using a
	 form provided by OPM. and request nonbinding mediation or an appeal hearing
	 before the State Employee Grievance Appeal Panel ("Panel").
Section 2
- Rights Not Waived
An employee who chooses nonbinding mediation as the first appeal step
	 does not waive his or her right to later request an appeal hearing before the
	 Panel.
Access to any of these procedures does not prohibit an employee from
	 filing a claim under the Arkansas Whislle-Blower Act.
Access to any of these procedures does not prohibit an employee from
	 utilizing remedies outside these procedures. An employee retains the right to
	 file a complaint with a federal entity or pursue the matter in court.
Section 3
- Time Limits to
  File an Appeal
A request for nonbinding mediation shall be filed with the state
	 agency's Grievance Officer no later than fifteen (15) business days of the
	 employee's receipt of the state agency Director's/Chairperson's/Commissioner's
	 decision.
A request for an appeal hearing before the Panel shall be filed with
	 the state agency's Grievance Officer no later than ten (10) business days of
	 the employee's receipt of the slate agency
	 Director's/Chairperson's/Commissioner's decision or no later than ten (10)
	 business days of the Non-settlement Agreement in mediation.
Section 4
- Appeal to OPM
(1)
Nonbinding Mediation
The state agency's Grievance Officer shall timely submit to OPM an
	 employee's request for mediation.
The nonbinding mediation shall be held within forty-five (45) business
	 days of the request to mediate.
a.
Mediators
OPM shall maintain a roster of mediators certified by the Arkansas
	 Alternative Dispute Resolution Commission from which a mediator shall be
	 selected.
A mediator shall not be employed by the stale agency that is a party to
	 the mediation.
b.
Representation
A party may be represented by an attorney or other representative at
	 the mediation. The attorney or representative may speak on behalf of a
	 party.
c.
Matters eligible for nonbinding mediation
(a) Termination;
(b) Demotion;
(c) Suspension for fourteen (14) or more
  days; or
(d) If the employee has
  been subject to adverse action by his or her slate agency for:
1. Communicating in good faith to an
  appropriate authority:
a. The existence of
  waste of public funds, property, or manpower, including federal funds,
  property, or manpower administered or controlled by a public employer:
  or
b. A violation or suspended
  violation of a law. rule, or regulation adopted under the laws of this state or
  a political subdivision of the state:
2. Participating or giving information in an
  investigation, hearing, court proceeding, legislative or other inquiry, or in
  any form of administrative review: or
3. Objecting or refusing to carry out a
  directive that the employee reasonably believes violates a law. rule, or
  regulation adopted under the authority of the laws of the state or a political
  subdivision of the state.
d.
Confidentiality
The mediation shall be confidential; however, any Settlement or
	 Non-settlement Agreement is subject to the Freedom of Information Act.
e.
Results
The results of the mediation, whether a Settlement Agreement or
	 Non-settlement Agreement is reached, shall be reported to OPM within one (1)
	 business day of the conclusion of the mediation.
f.
Settlement
  Agreement
If the parties reach a resolution in the nonbinding mediation. OPM
	 shall review the Settlement Agreement to ensure it complies with the Uniform
	 Classification and Compensation Act.
If any money is involved in the Settlement Agreement, the CFO of the
	 State shall review to ensure it complies with any state law or DFA
	 regulations.
After both OPM and the CFO of the State approve the Settlement
	 Agreement, the matter shall be considered resolved and final.
If OPM or the CFO does not approve the Settlement Agreement, the
	 Agreement shall be referred back to the parlies for a revised Settlement
	 Agreement.
g.
Non-settlement Agreement
If the parties are unable to reach a resolution in the nonbinding
	 mediation, the mediator shall report within ten (10) business days of the
	 nonbinding mediation his oilier suggested resolution to the Director of the
	 Department of Finance and Administration.
h.
Proposed
  Resolution
In determining the proposed resolution, the mediator shall
	 consider:
1. What action, if any. is
  in the best interests of the efficient administration of the state
  agency;
2. Whether the state
  agency's decision is supported by:
a.
  Substantial evidence, if the action was based on an employee's unacceptable
  performance: or
b. A preponderance
  of the evidence, if the action was based on factors other than an employee's
  unacceptable performance: and
3. Whether the employee shows:
a. Harmful error in the state agency's
  procedures in arriving at the decision:
b. That the decision was based on a
  prohibited practice; or
c. That
  the decision was not in accordance with law.
The proposed resolution shall not become a part of the Administrative
	 Record.
An employee may file a request for an appeal hearing with the state
	 agency's Grievance Officer no later than ten (10) business days of the
	 nonbinding mediation.
(2)
Appeal Hearing Before the
  Panel
The slate agency's Grievance Officer shall notify OPM of the employee's
	 request for an appeal hearing before the Panel.
a.
On the record
The employee may choose to have the matter decided on the
	 record.
If the employee chooses this option, and the state agency agrees, then
	 neither party shall be allowed to present any witness testimony or offer any
	 additional evidence.
If the slate agency or the Panel disagrees lo having the mailer decided
	 on the record. then an appeal hearing shall be conducted.
b.
Panel
OPM shall assign each case to three members of the Panel. One member of
	 the Panel shall be an attorney, licensed to practice law in this State, and who
	 shall be a current state employee having knowledge in the area of employment
	 law. The other two members shall be current state employees. No Panel member
	 shall be an employee of the stale agency that is a party lo the
	 grievance.
No member of the Panel may participate in any proceedings in which such
	 Panel member may have a conflict of interest. Should a Panel member be unable
	 to participate on an assigned case. OPM shall have the authority to assign a
	 substitute provided the substitute meets the same qualifications of the
	 originally assigned member.
c.
Submission of Administrative
  Record
The state agency's Grievance Officer shall provide OPM an electronic
	 copy of the Administrative Record within ten (10) business days of scheduling
	 the hearing. No paper copies shall be accepted, unless the document or any
	 attachments arc unable to be submitted electronically or a Grievance Officer
	 requests to submit paper copies, failure lo timely submit a complete
	 Administrative Record may result in an adverse decision against the state
	 agency.
d.
Appeal hearing
The hearing shall be conducted within forty-five (45) business days of
	 OPM's notification of the appeal. A hearing shall not be postponed or delayed
	 merely to accommodate a party, unless a party presents to OPM compelling
	 circumstances warranting a postponement or delay, The final decision to
	 postpone or delay shall be at the discretion of OPM.
e.
Default decision
The failure of a party to appear for an appeal hearing shall result in
	 a default decision in favor of the opposing party, provided that the party did
	 not give notice lo OPM within Ihree (3) business days of the appeal hearing of
	 his or her non-appearance.
f.
Time limit lor case
  presentation
Generally, each party shall be given one and a half (1 ½) hours
	 to present their case: however, the Panel has the discretion to allow each
	 party additional time during the hearing.
g.
Stipulations
The parties shall stipulate to all relevant facts which are not in
	 controversy. The stipulations shall be submitted in writing to OPM no later
	 than three (3) business days prior to the appeal hearing. Stipulations may be
	 submitted orally to the Panel at the start of the appeal hearing.
h.
Discovery
A party may obtain information regarding any matter, not privileged,
	 which is relevant to the issues in the grievance, whether it relates to the
	 claim or defense of the party or to the claim or defense of any other party. A
	 party shall make a request for such information to the appropriate
	 person.
i.
Rules of Evidence and Procedure
The Arkansas Rules of Evidence may be applied informally for the
	 purpose of efficiency of the hearing process. The Arkansas Rules of Evidence
	 may be considered by the Panel in determining the relevancy and proper weight
	 to apply to evidence. The Panel may request the filing of additional
	 information or documents from any party prior, during, or following the appeal
	 hearing.
j.
Witnesses
Each party shall be responsible for providing reasonable notice to the
	 Grievance Officer of his or her witness list. There is no limit to the number
	 of witnesses: however the parties are encouraged to cooperate to ensure that
	 only those witnesses necessary to the case are called to testify. The
	 appearance of any agency witness shall be the responsibility of the Grievance
	 Officer. The appearance of any non-agency witness shall be the responsibility
	 of the party requesting such person's appearance.
If a witness is not physically available on the date of the hearing,
	 his or her testimony may be taken via telephone or any other method that would
	 allow the parties the opportunity to question the witness.
In the event the state agency shall refuse an employee's request that a
	 specific witness be allowed time off work to attend the hearing, the employee
	 may notify OPM prior to the appeal hearing. OPM shall determine whether the
	 testimony of such prospective witness can be obtained via telephone or any
	 other method that would allow the parties the opportunity to question the
	 witness.
The state agency's Grievance Officer shall provide the witness list to
	 OPM no later than three (3) business days prior to the appeal hearing.
The Panel may request the presence of any state employee thought to
	 have information relevant to the case. A witness shall not be paid any witness
	 fees.
All witnesses shall give an affirmation of their testimony and shall
	 submit to questioning by the adversary party. Members of the Panel may question
	 any party or witness at any time during the proceedings.
k.
Burden of Proof
In all cases before the Panel, except discrimination and other
	 non-disciplinary actions, the state agency shall proceed first. The employee
	 shall then be given the opportunity to refute, contradict, or discredit the
	 state agency's case.
In cases of discrimination and other non-disciplinary actions, the
	 employee must prove that his or her grievance resulted from discrimination or
	 other motive rather than some valid reason. If the employee fails to provide
	 such evidence, the Panel shall rule in favor of the state agency. If the Panel
	 determines that the employee has produced such evidence, the state agency shall
	 articulate some legitimate nondiscriminatory reason for the action it took. If
	 the state agency meets this burden, the employee shall prove that the state
	 agency's proffered reason is pretextual.
l.
Standard of
  Review
The Panel's standard of review is whether the state agency's action is
	 supported by a preponderance of the evidence.
The Panel shall only consider the information contained in the record
	 and any additional evidence or testimony offered by the employee that could not
	 have reasonably been presented at the Administrative Review hearing. The state
	 agency may present additional witnesses or exhibits only as a rebuttal to the
	 employee's case presentation. The Panel may request additional information to
	 supplement the Administrative Record.
If a party presents new evidence that is accepted by the Panel, the
	 evidence shall become a part of the Administrative Record.
m.
Invoking the Rule
A party or the Panel may "Invoke the Rule", excluding all non-party
	 witnesses from the hearing room unless they are testifying.
n.
Public hearing
The hearing shall be open to the public and recorded. Any party
	 desiring a copy of the tapes of a hearing shall have the copy available at the
	 requesting party's expense. Any party desiring a certified transcript of the
	 hearing will have a transcript made at the requesting party's expense. Payment
	 shall be made in advance.
o.
Executive Session
At the conclusion of the hearing, the Panel shall consider the hearing
	 closed and adjourn into executive session. The Panel shall announce their
	 decision on the record the same day as the appeal hearing.
p.
Decision
The decision of the Panel is not required to be unanimous. The Panel
	 shall issue a written decision within seven (7) business days of the conclusion
	 of the hearing and forward the decision to OPM. The decision shall be binding
	 on the parties.
Section 5
- CFO Appeal
If a party is not satisfied with the decision reached by the Panel, he
	 or she may file an appeal to the Chief Fiscal Officer ("CFO") of the State
	 within five (5) business days of the party's receipt of the Panel's written
	 decision.
The state agency's Grievance Officer shall provide a copy of the appeal
	 to the other party. The non-appealing party may file a response to the appeal
	 within five (5) business days of receipt of the appeal.
All appeals to the CFO shall be determined solely on the Administrative
	 Record. The CFO shall review the Administrative Record, including the appeal
	 and any response to the appeal, and shall determine whether the Panel's
	 decision is clearly erroneous.
The CFO's decision shall be issued to both parlies and/or their
	 representatives within ten (10) business days of receipt of the appeal or
	 response to the appeal, whichever is later. The CFO's decision shall be binding
	 on both parties and the matter shall be considered final.
OPM shall maintain the Administrative Record of all
	 cases.