16. Administrative Review

16.1. Administrative Review covers complaints, problems, and/or disputes with another employee, the nature of which cause an adverse effect on the employee. Administrative Reviews may cover, but are not limited to:

..........16.1.a. working conditions;

..........16.1.b. perceptions of unfair treatment;

..........16.1.c. certain levels of disciplinary actions;

..........16.1.d. compensation issues;

..........16.1.e. job classification;

..........16.1.f. any form of alleged discrimination or harassment;

..........16.1.g. application of policies, practices, rules, regulations and procedures believed to be to the detriment of an employee;

..........16.1.h. improper administration of benefits or compensation, however Administrative Review of PEIA and PERS issues may be limited to established appeal mechanisms already used by these agencies; and

..........16.1.i. appeals from disciplinary actions issued pursuant to Section 15 of this policy.

16.2. The goal of this policy is to assist employees in arriving at a satisfactory resolution to differences involving work-related matters. The emphasis of the process should be positive and it should reflect good communication between the people involved, resulting in a fair and effective resolution.

16.3. Only full-time employees of the Department shall be eligible to participate in the Administrative Review process.

16.4. Administrative Reviews for Division Directors and Executive staff will be conducted by the Commissioner, who may elect to use any of the procedures designated in this policy.

16.5. Employees of the West Virginia Department of Agriculture are not eligible to participate in the West Virginia State Employee Grievance Board.

16.6. Employees with questions about the process are encouraged to contact the Personnel Director.

16.7. Procedures

..........16.7.a. Step One: Informal Resolution of Problem

....................16.7.a.A. An employee with a complaint should discuss the problem with the immediate supervisor in an attempt to resolve the matter informally.

....................16.7.a.B. This informal attempt at problem solving should take place within five (5) working days after the disagreement or incident occurs and/or the employee becomes aware of the incident.

....................16.7.a.C. In the event an employee and the immediate supervisor are unable to resolve the problem, the next level of review may be requested. Only in the most severe cases will a Step Two review be considered without an acknowledged attempt to resolve the issue with the immediate supervisor.

....................16.7.a.D. The parties involved in the Step One process may inform the Personnel Director if they choose to do so.

..........16.7.b. Step Two: Request for Administrative Review to Supervisor

....................16.7.b.A. Should the Step One process fail to resolve the issue, the employee should submit a written Request for Administrative Review (Step Two) to their the immediate supervisor within five (5) working days of their original (Step One) discussion.

....................16.7.b.B. The written request should:

.................................16.7.b.B.(a). specifically state that it is a request for Administrative Review;

.................................16.7.b.B.(b). describe the issue summarizing relevant points from the initial discussion (dates, times, locations, other specific information);

.................................16.7.b.B.(c). request copies of relevant letters or documents needed from the employee's file;

.................................16.7.b.B.(d). submit written signed statements by any relevant witnesses; and

.................................16.7.b.B.(e). state what redress or relief is sought. In other words, state what action is needed to remedy the situation. The relief sought must be within the capability of the Department to grant. The redress options may include reimbursement for costs incurred by the employee in filing for Administrative Review (such as copying of materials or travel costs).

....................16.7.b.C. The immediate supervisor must respond to the employee in writing within five (5) working days after receiving the employee's written request for Administrative Review.

.................................16.7.b.C.(a). The immediate supervisor's response must explain in reasonable detail the reasons for, or policies used, in reaching a decision on the matter. The supervisor must retain a copy of the response for their records.

....................16.7.b.D. If the employee does not feel the Administrative Review has been answered satisfactorily in Step Two, he/she may choose to proceed to Step Three.

....................16.7.b.E. The parties involved in the Step Two process may inform the Personnel Director if they choose to do so.

..........16.7.c. Step Three: Request for Administrative Review to the Supervisor's Supervisor

....................16.7.c.A. The employee must present the written Step Three request for Administrative Review to the person occupying the position one level above the immediate supervisor in the organizational structure. If the person occupying the position one level above the immediate supervisor is a member of the Executive Staff, the employee should skip the Step Three process and proceed directly to the Step Four process. The written request for Administrative Review shall state the reason for the disagreement and synopsis of the issues.

....................16.7.c.B. The employee must present the Step Three written request for Administrative Review within five (5) working days following the completion of the Step Two process.

....................16.7.c.C. The person requesting the Step Three review must provide a copy of the request for review for the Personnel Director.

....................16.7.c.D. The person to whom the written request for Administrative Review is submitted must respond in writing to the employee within five (5) working days of receipt of the employee's written request.

....................16.7.c.E. If the employee does not feel the issue has been resolved with the Step Three process he/she may choose to proceed to Step Four level.

..........16.7.d. Step Four: Hearing

....................16.7.d.A. All Appeals of disciplinary action issued pursuant to Section 15 of this policy shall commence at Step Four.

....................16.7.d.B. The person seeking a Step Four Administrative Review must notify the Personnel Director in writing within ten (10) working days after receiving a response in the Step Three process.

....................16.7.d.C. The final hearing at this level must be convened within fifteen (15) working days of the employee's submission of the request for review to the Personnel Director.

....................16.7.d.D. In the written request, the person seeking the review must specify which of the following options for review they are requesting:

.................................16.7.d.D.(a). a review before the Commissioner or the commissioner's designee;

.................................16.7.d.D.(b). a review before a three-person committee appointed by the Commissioner, where no more than one (1) member of the committee is from the employee's job classification; or

.................................16.7.d.D.(c). a review before a three (3) person committee, where one person is selected by the employee, one person is selected by the employee against whom the Administrative Review was filed, and one person will be selected by the two (2) panel members previously chosen, or if they cannot agree on a person, this person will be selected by the Commissioner. The person selected by the other two (2) panel members, or by the Commissioner, will Chair the Committee. No more than one (1) member of this committee can be from the employee's job classification.

....................16.7.d.E. Any proceedings, discussions, or deliberation will be conducted with fairness and professional behavior as the guiding principles.

....................16.7.d.F. Hearings held in the Step Four process are not intended to imitate a court of law. However, the general principles of due process, testimony, and evidence may be used to guide the proceedings.

....................16.7.d.G. Hearings shall be recorded on tape. A transcript shall be provided upon written request of, and at the expense of, the requesting party.

....................16.7.d.H. After the hearing, the Chair of the Committee will send a written recommendation with all supporting documents to the Commissioner within ten (10) working days.

....................16.7.d.I. The Commissioner will then render a written decision within ten (10) working days from the receipt of this recommendation.

....................16.7.d.J. A copy of the decision will be sent to both parties involved in the Administrative Review, and will be placed in the file of both parties.

....................16.7.d.K. This is the final step in the Administrative Review procedure.

16.8. The Personnel Director (unless he/she is an involved party, in which case the Commissioner will designate another employee for this purpose) or their designee will coordinate the Administrative Review procedures, to include arranging the tape recording of a Step Four hearing if necessary.

16.9. The period of time indicated within which an answer must be given does not commence until the first working day following the initiation of the previous step.

16.10. If time requirements are not met by the person who requests the review, the decision will be made against that person.

16.11. Extensions of time limits at each step may be granted if both parties concur in writing prior to the expiration of the established time limit; or if either party has a verifiable sickness, accident, or scheduled absence from work.

16.12. Representation

..........16.12.a. An employee may have another employee assist him/her in the Administrative Review procedure. The assisting employee should not be an attorney, or the Personnel Director.

..........16.12.b. The first step supervisor and the second step supervisor may have another employee assist him/her in the procedure. The assisting employee should not be an attorney or the Personnel Director.

..........16.12.c. The Personnel Director retains the right to monitor the review process to protect the interest of those involved, and to discuss issues to that end with all involved parties.

..........16.12.d. In any instance where a legal counsel who has been retained to represent a party in the process contacts personnel involved at any step in the Administrative Review procedure, that person should relay this information immediately to the Personnel Director.

..........16.12.e. Retention of legal counsel by an employee for the purpose of representation may be interpreted by the Department as the initiation of legal action.

..........16.12.f. Employees who take legal action against the Department without first using the Administrative Review procedures will forfeit their rights to Administrative Review.

16.13. Any costs (e.g., travel or material) associated with a review will be assumed by the parties preparing for Administrative Review.

..........16.13.a. Costs may be reimbursable if the employee requests reimbursement for specific costs that are within the capacity of the Department to pay and the Administrative Review request is successful. Reimbursement of costs is an issue that will be included in the Step Four recommendation to the Commissioner.

..........16.13.b. The Department will reimburse costs for employees only.

16.14. Requests for copies of material are to be made to the Personnel Director.

16.15. No reprisals of any kind shall be taken by the Department or any supervisor against any party, any representative, or any participant in the Administrative Review procedure because of such participation. This will include anyone in the Administrative Review procedure who may participate either as a witness or as a member of the hearing panel.

..........16.15.a. Conversely, the Administrative Review process represents a serious attempt to solve problems that arise in the workplace and should not be used flippantly or without consideration.

16.16. Work release time for the purpose of preparing and participating in the Step Three and Step Four process is paid time that is not charged to either sick leave or annual leave, and is not required to be made up or added into overtime calculations.

..........16.16.a. Work release time will be granted to the employee who filed the request, committee member, or to those employees who are called as participants to attend hearings on a particular Administrative Review.

..........16.16.b. Requests for work release time for the purpose of preparing for Administrative Review will be considered in light of the demands of the Department workload.

..........16.16.c. Requests for work release are to be made to the Personnel Director.

..........16.16.d. No more than one-half (½) day of work release will be granted for the Step Three process. No more than one-half (½) day of work release will be granted for the Step Four process. No work release is available for the Step One and Step Two process.

16.17. Administrative Review proceedings and information concerning any individual review are strictly confidential. If an employee breaches confidentiality, the Department has a right of response to any inquiry.

16.18. An Administrative Review may be resolved and ended at any level by the agreement of both parties.