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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.
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