S*1079 Session 111 (1995-1996)
S*1079(Rat #0310, Act #0284 of 1996) General Bill, By Drummond
Similar(H 4520)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
8-17-345 so as to provide for arbitration as an alternative dispute resolution
for specific grievances appealed under the State Employee Grievance Procedure
and to provide for appeals in these cases; to amend Section 8-17-310, relating
to legislative findings with respect to the grievance procedure, so as to
provide for recognition by the General Assembly that grievance resolution is
best accomplished at the lowest level and to encourage agencies to use
alternative dispute resolution methods; to amend Section 8-17-320, as amended,
relating to definitions applicable to the State Employee Grievance Procedure
Act, so as to add, revise, and delete definitions in conformity to the
amendments made in this Act; to amend Section 8-17-330, as amended, relating
to agency employee grievances and appeals, so as to reduce the time for filing
a grievance and revise actions which qualify as grievances; to amend Section
8-17-340, as amended, relating to the State Employee Grievance Committee, so
as to specify what appeals it hears, to authorize the appointment of
additional members, and to provide for the operation of and representation
before the committee; to amend Section 8-17-350, relating to appeals, so as to
conform the Section to the revised procedures provided in this Act and to
provide for legal advice to the State Human Resources Director; to amend
Section 8-17-360, relating to mediation and procedures, so as to conform it to
the alternative dispute resolution provisions added by this Act and the method
of handling appeals by a mediator; and to amend Section 8-17-370, as amended,
relating to officers and employees exempt from coverage under the State
Employee Grievance Procedures Act, so as to update these exemptions to conform
with exemptions provided in existing law.-amended title
01/31/96 Senate Introduced and read first time SJ-2
01/31/96 Senate Referred to Committee on Judiciary SJ-2
04/03/96 Senate Committee report: Favorable with amendment
Judiciary SJ-8
04/04/96 Senate Amended SJ-59
04/04/96 Senate Read second time SJ-59
04/09/96 Senate Read third time and sent to House SJ-12
04/10/96 House Introduced and read first time HJ-16
04/10/96 House Referred to Committee on Judiciary HJ-17
04/11/96 House Recalled from Committee on Judiciary HJ-48
04/17/96 House Read second time HJ-54
04/18/96 House Read third time and enrolled HJ-20
04/30/96 Ratified R 310
05/06/96 Signed By Governor
05/06/96 Effective date 10/01/96
05/16/96 Copies available
05/16/96 Act No. 284
(A284, R310, S1079)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTION 8-17-345 SO AS TO
PROVIDE FOR ARBITRATION AS AN ALTERNATIVE DISPUTE
RESOLUTION FOR SPECIFIC GRIEVANCES APPEALED UNDER
THE STATE EMPLOYEE GRIEVANCE PROCEDURE AND TO
PROVIDE FOR APPEALS IN THESE CASES; TO AMEND SECTION
8-17-310, RELATING TO LEGISLATIVE FINDINGS WITH RESPECT
TO THE GRIEVANCE PROCEDURE, SO AS TO PROVIDE FOR
RECOGNITION BY THE GENERAL ASSEMBLY THAT
GRIEVANCE RESOLUTION IS BEST ACCOMPLISHED AT THE
LOWEST LEVEL AND TO ENCOURAGE AGENCIES TO USE
ALTERNATIVE DISPUTE RESOLUTION METHODS; TO AMEND
SECTION 8-17-320, AS AMENDED, RELATING TO DEFINITIONS
APPLICABLE TO THE STATE EMPLOYEE GRIEVANCE
PROCEDURE ACT, SO AS TO ADD, REVISE, AND DELETE
DEFINITIONS IN CONFORMITY TO THE AMENDMENTS MADE
IN THIS ACT; TO AMEND SECTION 8-17-330, AS AMENDED,
RELATING TO AGENCY EMPLOYEE GRIEVANCES AND
APPEALS, SO AS TO REDUCE THE TIME FOR FILING A
GRIEVANCE AND REVISE ACTIONS WHICH QUALIFY AS
GRIEVANCES; TO AMEND SECTION 8-17-340, AS AMENDED,
RELATING TO THE STATE EMPLOYEE GRIEVANCE
COMMITTEE, SO AS TO SPECIFY WHAT APPEALS IT HEARS, TO
AUTHORIZE THE APPOINTMENT OF ADDITIONAL MEMBERS,
AND TO PROVIDE FOR THE OPERATION OF AND
REPRESENTATION BEFORE THE COMMITTEE; TO AMEND
SECTION 8-17-350, RELATING TO APPEALS, SO AS TO
CONFORM THE SECTION TO THE REVISED PROCEDURES
PROVIDED IN THIS ACT AND TO PROVIDE FOR LEGAL ADVICE
TO THE STATE HUMAN RESOURCES DIRECTOR; TO AMEND
SECTION 8-17-360, RELATING TO MEDIATION AND
PROCEDURES, SO AS TO CONFORM IT TO THE ALTERNATIVE
DISPUTE RESOLUTION PROVISIONS ADDED BY THIS ACT AND
THE METHOD OF HANDLING APPEALS BY A MEDIATOR; AND
TO AMEND SECTION 8-17-370, AS AMENDED, RELATING TO
OFFICERS AND EMPLOYEES EXEMPT FROM COVERAGE
UNDER THE STATE EMPLOYEE GRIEVANCE PROCEDURES ACT,
SO AS TO UPDATE THESE EXEMPTIONS TO CONFORM WITH
EXEMPTIONS PROVIDED IN EXISTING LAW.
Be it enacted by the General Assembly of the State of South
Carolina:
Arbitration
SECTION 1. Article 5, Chapter 17, Title 8 of the 1976 Code is amended
by adding:
"Section 8-17-345. The State Human Resources Director shall
forward to a mediator-arbitrator all appeals which meet jurisdictional
requirements and relate to the appeal of the following adverse
employment actions: lack of promotional consideration and punitive
reclassifications when the State Human Resources Director determines
there is a material issue of fact regarding these issues, suspensions for ten
days or fewer, and involuntary reassignments. In these cases, the
arbitration decision is final. The provisions of the State Administrative
Procedures Act do not apply to the mediation-arbitration proceedings.
The mediator-arbitrator must be assigned by the State Human
Resources Director and shall serve as an impartial third party to hold
conferences to mediate the appeal and if the appeal is not mediated,
determine whether the covered employee substantiates that the agency's
decision was not reasonable. The mediator-arbitrator shall review the
documents which have been submitted by each party and shall schedule a
time to meet with both parties, jointly or independently. Failure of the
covered employee or the employee's representative to attend a conference
without reasonable justification constitutes a waiver of the employee's
rights to pursue the appeal further. The State Human Resources Director
shall determine whether or not reasonable justification exists based on
documents submitted by the parties.
The conferences with the parties are confidential and limited to the
parties and their representatives, but other persons may attend with the
permission of the parties and the mediator-arbitrator. The parties or their
representatives attending a conference must have full authority to
negotiate and recommend settlement. The mediator-arbitrator may not be
compelled by subpoena or otherwise to divulge any records or
discussions or to testify in regard to the mediation-arbitration in any
adversary proceeding or judicial forum. All records, reports, documents,
discussions, and other information received by the mediator-arbitrator
while serving in that capacity are confidential, except the documents
which have been submitted by each party shall be the record during
judicial review.
If an agreement by the two parties is not reached, the
mediator-arbitrator shall transmit to both parties a final written decision
based on the information presented during the process concerning the
appeal within forty-five calendar days after the mediator-arbitrator
conducts a conference with either or both parties. This forty-five-day
period may be extended by the State Human Resources Director under
extenuating circumstances. The mediator-arbitrator shall request
assistance from the attorney for the Office of Human Resources in the
preparation of the final written decision. As a result of this decision,
either the covered employee or the agency may request a reconsideration
within thirty calendar days from receipt of the decision. The
mediator-arbitrator shall request assistance from the attorney for the
Office of Human Resources in the preparation of the written response to
the request for reconsideration. Petition for judicial review of the final
decision may be made by the covered employee to the court of common
pleas of the county in which the covered employee's place of
employment is located. Only after an agency submits a written request to
the Office of Human Resources seeking approval of the board may the
agency initiate a petition for judicial review to the court of common pleas
of the county in which the covered employee's place of employment is
located. However, the agency may perfect the petition for judicial review
only upon approval of the board. The record for judicial review shall be
limited to the documents which have been submitted by each party and
the final written decision of the mediator-arbitrator. Neither the board
nor the Office of Human Resources nor the State Human Resources
Director nor the mediator-arbitrator may be named in this petition for
judicial review. However, any of these entities are entitled to make a
motion in the court of common pleas to be allowed to intervene to
participate in the petition for judicial review for appropriate reasons
including their interest in defending their policies."
Findings
SECTION 2. Section 8-17-310 of the 1976 Code is amended to read:
"Section 8-17-310. The General Assembly finds that
harmonious relations between public employers and public employees are
a necessary and most important factor in the effective and efficient
operation of government, and that a proper forum for the understanding
and resolution of employee grievances will contribute to the
establishment and maintenance of harmony, good faith, and the quality of
public service. The General Assembly also recognizes that the most
effective and cost efficient means of resolving grievances occurs at the
lowest level, and state agencies are encouraged to use methods of
alternative dispute resolution to avoid a grievance hearing and further
litigation. It is for the protection and in the interests of both the
employee and the agency via a neutral method of dispute resolution and
fair administrative review, that this act, which may be cited as the `State
Employee Grievance Procedure Act', is enacted."
Definitions
SECTION 3. Section 8-17-320 of the 1976 Code, as last amended by
Act 407 of 1994, is further amended to read:
"Section 8-17-320. As used in this article, unless the context
clearly indicates otherwise:
(1) `Agency' means a department, institution of higher learning,
board, commission, or school that is a governmental unit of the State of
South Carolina. Special purpose districts, political subdivisions, and
other units of local government are excluded from this definition.
(2) `Appeal' means the request by a covered employee to the State
Human Resources Director for review of an agency's final decision
concerning a grievance.
(3) `Board' means the State Budget and Control Board.
(4) `Calendar days' means the sequential days of a year. The time
must be computed by excluding the first day and including the last. If
the last day falls on a Saturday, Sunday, or legal holiday, it must be
excluded.
(5) `Class' means a group of positions sufficiently similar in the
duties performed, degree of supervision exercised or received, minimum
requirements of education, experience or skill, and the other
characteristics that the same state class title and the same state salary
range are applied to each position in the group by the Office of Human
Resources.
(6) `Committee' means the State Employee Grievance
Committee.
(7) `Covered employee' means a full-time or part-time employee
occupying a part or all of an established full-time equivalent (FTE)
position who has completed the probationary period and has a `meets' or
higher overall rating on the employee's performance evaluation and who
has grievance rights. Instructional personnel are covered upon the
completion of one academic year except for faculty at state technical
colleges of not more than two full academic years' duration. If an
employee does not receive an evaluation before the official review date,
the employee must be considered to have performed in a satisfactory
manner and be a covered employee. This definition does not include
employees in positions such as temporary, temporary grant, or
time-limited employees who do not have grievance rights.
(8) `Demotion' means the assignment of an employee by the
appointing authority from one established position to a different
established position having a lower state salary range.
(9) `Deputy director' means an employee who has been appointed
under the provisions of Section 1-30-10(E), oversees a division, and
reports directly to the agency head.
(10) `Full-time equivalent' or `FTE' means a value expressing a
percentage of time in hours and of funds related to a particular position
authorized by appropriations acts enacted by the General Assembly.
(11) `Grievance' means a complaint filed by a covered employee or
the employee's representative regarding an adverse employment action
designated in Section 8-17-330 taken by an agency.
(12) `Instructional personnel' means employees of an agency that has
primarily an educational mission, excluding the state technical colleges
and excluding those employees exempted in Section 8-17-370(10) who
work an academic year.
(13) `Involuntary reassignment' means the movement of an
employee's principal place of employment in excess of thirty miles from
the prior work station at the initiative of the agency. The reassignment
of an employee by an agency in excess of thirty miles from the prior
work station to the nearest facility with an available position having the
same state salary range for which the employee is qualified is not
considered involuntary reassignment.
(14) `Mediation' means an alternative dispute resolution process
whereby a mediator who is an impartial third party acts to encourage and
facilitate the resolution of a dispute without prescribing what it should
be. The process is informal and nonadversarial with the objective of
helping the disputing parties reach a mutually acceptable agreement.
(15) `Mediation-arbitration' means an alternative dispute resolution
process that provides for the submission of an appeal to a
mediator-arbitrator, an impartial third party who conducts conferences to
attempt to resolve the grievance by mediation and render a decision that
is final and binding on the parties if the appeal is not mediated.
(16) `Probationary employee' means a full-time or part-time
employee occupying a part or all of an established FTE position in the
initial working test period of employment with the State of twelve
months' duration for noninstructional personnel, of the academic year
duration for instructional personnel except for those at state technical
colleges, or of not more than two full academic years' duration for
faculty at state technical colleges. An employee who receives an
unsatisfactory performance appraisal during the probationary period must
be terminated before becoming a covered employee.
(17) `Promotion' means an employee's change from a position in one
class to a position in another class having a higher state salary range.
Failure to be selected for a promotion is not an adverse employment
action that can be considered as a grievance or appeal.
(18) `Punitive reclassification' means the assignment of a position in
one class to a different lower class with the sole purpose to penalize the
covered employee.
(19) `Reassignment' means the movement within an agency of an
employee from one position to another position having the same state
salary range, or the movement of a position within an agency which does
not require reclassification.
(20) `Reclassification' means the assignment of a position in one
class to another class which is the result of a natural or an organizational
change in duties or responsibilities of the position.
(21) `Reduction in force' means a determination made by an agency
head to eliminate one or more filled positions in one or more
organizational units within the agency due to budgetary limitations,
shortage of work, or organizational changes.
(22) `Salary decrease based on performance' means the reduction of a
covered employee's compensation based on the results of an Employee
Performance Management System (EPMS) evaluation.
(23) `State Human Resources Director' means the head of the Office
of Human Resources of the State Budget and Control Board, or his
designee.
(24) `Suspension' means an enforced leave of absence without pay
pending investigation of charges against an employee or for disciplinary
purposes.
(25) `Temporary employee' means a full-time or part-time employee
who does not occupy an FTE position, whose employment is not to
exceed one year, and who is not a covered employee.
(26) `Termination' means the action taken by an agency against an
employee to separate the employee involuntarily from employment.
(27) `Transfer' means the movement to a different agency of an
employee from one position to another position having the same state
salary range, or the movement of a position from one agency to another
agency which does not require reclassification."
Agency grievance procedure
SECTION 4. Section 8-17-330 of the 1976 Code, as last amended by
Act 178 of 1993, is further amended to read:
"Section 8-17-330. Each agency shall establish an agency
employee grievance procedure that must be reduced to writing and
submitted for approval to the Office of Human Resources. A copy of the
approved agency grievance procedure must be made available to covered
employees of the agency. The provisions of the State Administrative
Procedures Act apply in proceedings before the State Employee
Grievance Committee. At other levels the State Administrative
Procedures Act does not apply, but the covered employee has the right to
a representative, including counsel. When a final decision is rendered, it
must be given to the covered employee or the employee's representative
in writing. If the covered employee chooses to exercise the right to
counsel, the employee does so at his own expense.
The procedure must provide that all grievances of agency actions
affecting a covered employee must be initiated internally by such
employee within fourteen calendar days of the effective date of the action
and that the agency shall make a final decision on a grievance within
forty-five calendar days of the filing of the grievance by the covered
employee. Failure by the agency to make a final decision on the
grievance within forty-five calendar days after the filing of the grievance
is considered an adverse decision, and the covered employee may appeal
thereafter to the State Human Resources Director. The internal time
periods of the agency grievance procedure may be waived upon the
mutual written agreement of both parties. The forty-five-calendar-day
period for action by the agency may not be waived except by mutual
written agreement of both parties. The time periods for appeal to the
State Human Resources Director may not be waived.
A covered employee who wishes to appeal the decision of the agency
grievance procedure to the State Human Resources Director shall file an
appeal within ten calendar days of receipt of the decision from the
agency head or his designee or within fifty-five calendar days after the
employee files the grievance with the agency, whichever occurs later.
The covered employee or the employee's representative shall file the
request in writing with the State Human Resources Director. Failure to
file an appeal with the State Human Resources Director within ten
calendar days of the agency's final decision or fifty-five calendar days
from the initial grievance, whichever occurs later, constitutes a waiver of
the right to appeal.
An employee must not be disciplined or otherwise prejudiced in
employment for exercising rights or testifying under these processes.
As used in this article, a covered employee may file a grievance or
appeal concerning the following adverse employment actions:
terminations, suspensions, involuntary reassignments, and demotions.
Reclassifications are considered a grievance only if an agency, or an
appeal if the State Human Resources Director, determines that there is a
material issue of fact that the action is a punitive reclassification.
However, reclassifications, reassignments, and transfers within the same
state salary range are not adverse employment actions which may be
considered grievances or appeals. Promotions are not adverse
employment actions which may be considered grievances or appeals
except in instances where the agency, or in the case of appeals, the State
Human Resources Director, determines that there is a material issue of
fact as to whether or not an agency has considered a qualified covered
employee for a position for which the employee formally applied or
would have applied if the employee had known of the promotional
opportunity. For purposes of this article, when an agency promotes an
employee one organizational level above the promoted employee's former
level, that action is not a grievance or appeal for any other qualified
covered employee. Salary decreases based on performance are adverse
employment actions that may be considered as grievances or appeals. A
reduction in force is an adverse employment action considered as a
grievance only if the agency, or as an appeal if the State Human
Resources Director, determines that there is a material issue of fact that
the agency inconsistently or improperly applied its reduction in force
policy or plan.
A covered employee has the right to appeal to the State Human
Resources Director an adverse employment action involving the issues
specified in this section after all administrative remedies to secure relief
within the agency have been exhausted."
State Employee Grievance Committee
SECTION 5. Section 8-17-340 of the 1976 Code, as last amended by
Act 110 of 1993, is further amended to read:
"Section 8-17-340. (A) There is created the State Employee
Grievance Committee constituted and appointed to serve as an
administrative hearing body for state employee appeals. The State
Human Resources Director shall forward to the committee for a hearing
all appeals which meet jurisdictional requirements and relate to the
following adverse employment actions: terminations, salary decreases
based on performance, demotions, suspensions for more than ten days,
and reductions in force when the State Human Resources Director
determines there is a material issue of fact regarding inconsistent or
improper application of the agency's reduction in force plan or policy.
The committee shall consist of at least eighteen and not more than
twenty-four members who must be appointed by the State Budget and
Control Board to serve for terms of three years and until their successors
are appointed and qualify. All members of the committee must be
selected on a broadly representative basis from among the personnel of
the various state agencies as recommended by the agency head.
The committee annually shall elect a chairman from among its
members to serve for a one-year term. In addition, the State Human
Resources Director may divide the committee into panels of five
members to sit at hearings and designate a member to serve as the
presiding officer and a member to serve as secretary at all panel hearings.
A quorum of a panel consists of at least three members.
Vacancies occurring for a reason other than expiration of a term must
be filled by the State Budget and Control Board in the same manner as
the original appointments. Members may be reappointed for succeeding
terms at the discretion of the State Budget and Control Board. The
committee and the State Human Resources Director may recommend to
the State Budget and Control Board that it promulgate regulations as
necessary to carry out the provisions of this article and the board is
authorized to promulgate these and other necessary regulations.
Committee members shall receive their normal pay for the time they
are required to be away from their regular assignments. They may be
reimbursed as provided by law from funds appropriated to the State
Budget and Control Board for expenses, such as meals, lodging, and
mileage, when using their personal automobiles, incurred in connection
with the performance of necessary committee business.
(B) Whenever an appeal before the committee is initiated by or
involves an employee of an agency of which a committee member also is
an employee or involves another impermissible conflict of interest, the
member is disqualified from participating in the hearing.
(C) The committee chairman or a designee shall conduct the grievance
hearing in an equitable, orderly, and expeditious fashion. The committee
chairman or a designee is authorized to administer oaths; to issue
subpoenas for files, records, and papers; to call additional witnesses; and
to subpoena witnesses. The State Budget and Control Board is
authorized to request assignment by the Attorney General of one or more
of his staff attorneys admitted to practice law in South Carolina to serve
in the capacity of committee attorney. If the Attorney General is not
able to provide sufficient legal staff for this purpose due to an
impermissible conflict of interest, the State Budget and Control Board,
with the approval of the Attorney General, is authorized to secure other
qualified attorneys to serve as committee counsel. The committee
attorney shall determine the order and relevance of the testimony and the
appearance of witnesses, and shall rule on all motions, and all legal
issues. The parties are bound by the decisions of the committee
chairman or a designee or the committee attorney insofar as these
hearings are concerned.
(D) At these hearings the employee and the agency are allowed
representatives, including counsel. During the course of the hearing the
parties and witnesses also shall respond to questions asked by the
committee attorney or the committee members. The committee attorney
or the attorney for the Office of Human Resources may assist the
committee in the preparation of its findings of fact, statements of policy,
and conclusions of law. The committee attorney may be present during
the committee's deliberations on its decision only upon the request of the
presiding officer. Within twenty calendar days of the conclusion of the
hearing, the committee shall render its decision on the appeal. The
decision shall include the committee's findings of fact, statements of
policy, and conclusions of law.
(E) The committee may sustain, reject, or modify a grievance hearing
decision of an agency as follows:
(1) In cases involving actual or threatened abuse, neglect, or
exploitation, to include those terms as they may be defined in Section
43-35-10 or 20-7-490, of a patient, client, or inmate by an employee, the
agency's decision must be given greater deference and may not be altered
or overruled by the committee, unless the covered employee establishes
that:
(a) The agency's finding that the covered employee abused,
neglected, or exploited or threatened to abuse, neglect, or exploit a
patient, client, or inmate is clearly erroneous in view of reliable,
probative, and substantial evidence;
(b) The agency's disciplinary action was not within its established
personnel policies, procedures, and regulations; or
(c) The agency's action was arbitrary and capricious.
(2) In all other cases, the committee may not alter or overrule an
agency's decision, unless the covered employee establishes that the
agency's decision is one or more of the following and prejudices
substantial rights of the covered employee:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.
(F) The decision of the committee members must be transmitted in
writing to the employee and the employing agency and is final in terms
of administrative review. As a result of this decision, either the covered
employee or the agency may request a rehearing or reconsideration
within thirty calendar days from receipt of the decision. Petition for
judicial review of the final decision may be made by the covered
employee to the court of common pleas of the county in which the
covered employee's place of employment is located. Only after an
agency submits a written request to the Office of Human Resources
seeking approval of the board may the agency initiate a petition for
judicial review to the court of common pleas of the county in which the
covered employee's place of employment is located. However, the
agency may perfect the petition for judicial review only upon approval of
the board. The covered employee or the agency who initiates a petition
for judicial review is responsible for preparation of a transcript and
paying the costs of preparation of a transcript of the audio tapes of a
hearing required for certification of the record to the court of common
pleas. Neither the board nor the Office of Human Resources nor the
State Human Resources Director nor the committee may be named in this
petition for judicial review. However, any of these entities are entitled to
make a motion in the court of common pleas to be allowed to intervene
to participate in the petition for judicial review for appropriate reasons
including their interest in defending their policies."
Duties of Human Resources Director
SECTION 6. Section 8-17-350 of the 1976 Code is amended to read:
"Section 8-17-350. When an appeal is filed, the State Human
Resources Director shall assemble all records, reports, and documentation
of the earlier proceedings on the grievance and review the case to
ascertain that there has been full compliance with established grievance
policies, procedures, and regulations within the agency involved and shall
determine whether or not the action is grievable to the committee or a
mediator-arbitrator. The attorney for the Office of Human Resources or
a committee attorney shall provide the State Human Resources Director
legal advice requested to assist the State Human Resources Director in
complying with the provisions of this article. If the State Human
Resources Director determines that the action is grievable, he shall
forward the appeal and documents either (1) to the mediator-arbitrator for
mediation-arbitration or (2) after the mediation process has been
completed, to the designated committee panel and to the committee
attorney for a hearing, whichever is appropriate based on the type of
adverse employment action. The State Human Resources Director shall
notify committee members, the committee attorney, and the parties
concerned of the date, time, and place of hearings. The documents
transmitted by the State Human Resources Director to the designated
committee panel and committee attorney must be marked into evidence as
`Committee Exhibit I' during the committee chairman's opening
statement at the beginning of the hearing unless excluded by the
committee attorney based on a prior objection raised by either party.
The State Human Resources Director is responsible for recording the
hearings, and shall provide to the committee from the resources of the
Office of Human Resources, the administrative and clerical services
required."
Appointment of mediator
SECTION 7. Section 8-17-360 of the 1976 Code is amended to read:
"Section 8-17-360. Once an appeal has been made to the State
Human Resources Director and has been determined to meet all
jurisdictional requirements, but before forwarding the appeal to the
committee, the State Human Resources Director shall appoint a mediator
to the appeal of the following adverse employment actions: terminations,
salary decreases based on performance, demotions, suspensions for more
than ten days, and reductions in force when the State Human Resources
Director determines there is a material issue of fact regarding inconsistent
or improper application of the agency's reduction in force plan or policy.
The mediator must be an impartial third party who shall act to encourage
and facilitate the resolution of the dispute through mediation. The
mediator shall review the documents which have been submitted by each
party and shall schedule a time to meet with both parties, jointly or
independently, to attempt to resolve the matter. Mediation conferences
are confidential and limited to the parties and their representatives. Other
persons may attend only with the permission of the parties and the
mediator. The parties or their representatives attending a mediation
conference must have full authority to negotiate and recommend
settlement. Failure of the covered employee or the employee's
representative to attend a mediation conference without reasonable
justification constitutes a waiver of the employee's rights to further
pursue the appeal. The State Human Resources Director shall determine
whether or not reasonable justification exists based on documents
submitted by the parties.
The mediator may not be compelled by subpoena or otherwise to
divulge records or discussions or to testify in regard to the mediation in
any adversary proceeding or judicial forum. All records, reports,
documents, discussions, and other information received by the mediator
while serving in that capacity are confidential."
Exclusions
SECTION 8. Section 8-17-370 of the 1976 Code, as last amended by
Act 452 of 1994, is amended to read:
"Section 8-17-370. The provisions of this article do not apply
to:
(1) members, officers, or employees of the General Assembly;
(2) employees within the Office of the Governor who work at the
mansion or in the State House or those employees appointed by the
Governor to serve at or above the organizational level of assistant
directors of the individual program components;
(3) elected public officials of this State or persons appointed to fill
vacancies in these offices;
(4) all judges, officers, and employees of the Judicial Department;
jurors; all employees of the Commission on Prosecution Coordination;
and the judges, officers, and employees of the Administrative Law Judge
Division;
(5) members of state boards, commissions, councils, advisory
councils, or committees compensated on a per diem basis;
(6) inmate help in a charitable, penal, or correctional institution,
residents of rehabilitation facilities, or students employed in institutions
of learning;
(7) part-time professional personnel engaged in consultant or
contractual services;
(8) an agency head who has the authority and responsibility for an
agency within state government including the divisions of the State
Budget and Control Board;
(9) employees of the Public Service Authority, State Ports
Authority, the Jobs-Economic Development Authority, or the Division of
Public Railways and the Division of Savannah Valley Development of
the Department of Commerce;
(10) teaching or research faculty, professional librarians, academic
administrators, or other persons holding faculty appointments at a
post-secondary educational institution, including branch campuses, if any,
as defined in Section 59-107-10, except the technical education colleges
and centers;
(11) athletic coaches and unclassified employees in the athletic
departments of post-secondary educational institutions as defined in
Section 59-107-10 except the technical education colleges and
centers;
(12) deputy directors as defined in Section 8-17-320; and
(13) regional and county directors of the Department of Social
Services as defined in Section 43-3-40(B)."
Staggered terms
SECTION 9. Any members of the State Employee Grievance Committee
added pursuant to the amendment to Section 8-17-340 of the 1976 Code
contained in this act must be appointed with staggered terms that must be
noted on the appointment.
Time effective
SECTION 10. This act takes effect October 1, 1996.
Approved the 6th day of May, 1996. |