H 4520 Session 111 (1995-1996)
H 4520 General Bill, By H. Brown
Similar(S 1079)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
8-17-345 so as to provide for binding arbitration as an alternative dispute
resolution for specific grievances appealed under the State Employee Grievance
Procedure; 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 provided in existing law.
01/31/96 House Introduced and read first time HJ-8
01/31/96 House Referred to Committee on Judiciary HJ-9
04/03/96 House Committee report: Favorable with amendment
Judiciary HJ-9
04/10/96 House Amended HJ-22
04/10/96 House Read second time HJ-24
04/11/96 House Read third time and sent to Senate HJ-13
04/16/96 Senate Introduced and read first time SJ-11
04/16/96 Senate Referred to Committee on Finance SJ-11
Indicates Matter Stricken
Indicates New Matter
AMENDED
April 10, 1996
H. 4520
Introduced by REP. H. Brown
S. Printed 4/10/96--H.
Read the first time January 31, 1996.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 8-17-345 SO AS TO PROVIDE
FOR BINDING ARBITRATION AS AN ALTERNATIVE
DISPUTE RESOLUTION FOR SPECIFIC GRIEVANCES
APPEALED UNDER THE STATE EMPLOYEE GRIEVANCE
PROCEDURE; 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.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
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 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."
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 of the 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 of 1982', is enacted."
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, the following words or
phrases shall mean:
(1) `Agency' means any a department,
institution of higher learning, board, commission,
council, division, bureau, center, or school,
hospital or other facility that is a governmental unit of the State
of South Carolina. Public schools, Special purpose districts,
political subdivisions, and other units of local government
are excluded from this definition.
(2) "Board" means the State Budget and
Control Board.
(3) "Calendar days" means the sequential days of a
year. The time shall be computed by excluding the first day and
including the last. If the last day falls on a Saturday, Sunday, or an
official agency holiday, it shall be excluded.
(4) "Committee" means the State Employee
Grievance Committee.
(5) "Demotion" means the assignment of an
employee by the appointing authority from one established position
to a different established position having a lower rate of pay.
Reclassifications shall not ordinarily be deemed grievable as a
demotion. However, if an allegation is made that a reclassification
was punitive and the state personnel director determines that there is
any material issue of fact or conclusion to be drawn from the facts
of the allegation then the reclassification shall be deemed grievable.
(6) "Discrimination" means differential treatment
based upon race, religion, sex, national origin, color, age, and
handicap as found in the Equal Protection Clause of the 14th
Amendment of the United States Constitution, Title VII of the 1964
Civil Rights Act, Age Discrimination in Employment Act of 1967,
Vocational Rehabilitation Act of 1973, and the South Carolina
Human Affairs Law.
(7) "Dismissal" means the action taken against an
employee by the appointing authority to separate the employee from
employment, whether by way of termination, nonrenewal of
contract, or reduction in force.
(8) "Instructional personnel" means employees of
state agencies that have primarily an educational mission, excluding
the state technical colleges and excluding those employees exempted
in item (10) of Section 8-17-370 who work an academic year.
(9) "Involuntary reassignment" means the
movement of an employee's principal place of employment in
excess of fifteen miles from the prior work station at the initiative
of the agency. The transfer of an employee by an agency in excess
of fifteen miles from the prior work station to the nearest facility
with an available position of comparable status for which he is
qualified shall not be considered involuntary reassignment.
(10) "Permanent employee" means a full-time or
part-time employee occupying an established permanent position
whose permanent retention has been approved at the completion of
the probationary period as determined by a satisfactory or higher
performance appraisal and who has appeal rights. However,
instructional personnel shall become permanent employees upon
satisfactory completion of one academic year. If an employee does
not receive an appraisal on or prior to the official appraisal date, the
employee shall be considered to have performed in a satisfactory
manner and to have grievance rights.
(11) "Probationary employee" means a full-time or
part-time employee in the initial working test period of employment
with the State of not more than 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
shall be terminated prior to becoming a permanent employee. The
provisions of this item apply to employees hired before or after
June 30, 1993.
(12) "Reduction in force" means a determination
made by an agency head to eliminate one or more positions in one
or more organizational units within the agency due to budgetary
limitations or organizational changes.
(13) "Suspension" means an enforced leave of
absence without pay pending investigation of charges against an
employee or for disciplinary purposes.
(14) "Temporary employee" means a full-time or
part-time employee hired to fill a position for a period not to
exceed one year.
(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 a 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."
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 plan procedure that
shall must be reduced to writing and submitted
within ninety days of the effective date of this article for
approval by to the state personnel director
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 shall apply in proceedings
before the State Employee Grievance Committee. At other levels
the State Administrative Procedures Act shall does
not apply, but the grievant covered
employee shall have has the right to a
representative, including counsel, and. When a
final decision is rendered it shall must be given to
the grievant covered employee or the employee's
representative in writing. If the grievant covered
employee chooses to exercise the right to counsel, he shall
do the employee does so at his own expense. A
copy of the approved agency grievance plan shall be furnished to
each employee of the agency concerned.
The plan shall procedure must provide that all
administrative appeals grievances of agency
actions affecting an a covered employee must be
initiated internally by such employee within twenty-one
fourteen calendar days of the effective date of the
action and that the agency shall make a final decision on a
grievance appeal 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 appeal
grievance within forty-five calendar days after the filing of
the grievance will be is considered an adverse
decision, and the covered employee may thereafter
appeal thereafter to the State Employee Grievance
Committee Human Resources Director. The internal
time periods of the agency grievance plan procedure
may be waived upon the mutual written agreement of both
parties; provided, however,. The forty-five calendar
day period for action by the agency may not be waived except by
mutual written agreement if a court action is
pending of both parties. The time periods for
appeal to the State Human Resources Director may not be waived.
A state covered employee who wishes to
appeal the decision of the agency grievance procedure to the State
Employee Grievance Committee Human Resources
Director shall file a request for such 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 his the
employee's representative shall file the request in writing with
the State personnel Human Resources Director.
Failure to file an appeal with the State personnel Human
Resources Director within ten calendar days of the agency's
final decision or fifty-five calendar days from the initial
appeal grievance, whichever occurs later, constitutes
a waiver of the right to appeal.
No An employee shall must
not be disciplined or otherwise prejudiced in employment for
exercising rights or testifying under the plan, and agency heads
shall encourage the use of the plan in the resolution of grievances
arising in the course of public employment these
processes.
As used in this article, a covered employee may file a
grievances grievance or appeal concerning the following
adverse employment actions: shall include dismissals
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,
reclassification reclassifications, reassignments, and
transfers to within the same pay grade
state salary range are not adverse employment actions
which may be considered grievances or appeals.
Promotions shall are not adverse employment
actions which may be deemed 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. However, where an
allegation is made that the grievant was excluded from
consideration for promotion to a position greater than one
organizational level above his present level for which he was
qualified when the promotional opportunity occurred, and the
grievant applied or would have applied if he had known of the
promotion opportunity, and the state personnel director determines
that there is any material issue of fact or conclusion to be drawn
from the facts of the allegation, then the promotion shall be deemed
grievable.
Compensation shall not be deemed a proper subject for
consideration under the grievance plan except as it applies to
alleged inequities within a particular agency. Salary
decreases based on performance are adverse employment actions
that may be considered as grievances or appeals. A reduction
in force shall be appealable is an adverse employment
action considered as a grievance only if the agency, or as an
appeal by an affected employee under the grievance plan
only if the State Human Resources Director, determines that
there is a material issue of fact that the agency based on
inconsistently or improper improperly
application applied of a its
reduction in force policy, procedure, or plan.
A permanent state covered employee shall
have has the right to appeal to the State
personnel Human Resources Director any
grievance an adverse employment action involving the
issues specified in this section after all administrative remedies to
secure relief within the agency have been exhausted."
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 hereby
created the State Employee Grievance Committee constituted and
appointed as hereinafter provided to serve as an
administrative hearing body for state employee grievances
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
shall 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; provided however, that of
those first appointed, six members shall be appointed for terms of
one year each and six members shall be appointed for terms of two
years each. All members of the committee shall
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 shall annually shall elect a
chairman and a secretary from among its members to serve
for a one-year terms term. The
chairman or a member designated by the chairman shall serve as the
presiding officer at all hearings. In addition, the
chairman State Human Resources Director shall
have the power to 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 any
a panel shall consist consists of at least
four three members.
Vacancies occurring for any a reason other than
expiration of a term shall 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 personnel Human
Resources Director may recommend to the State
Budget and Control Board that it promulgate such
regulations as may be necessary to carry out the provisions
of this act article and the board shall be
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
shall 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 a grievance 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, such
the member shall be is disqualified from
participating in the hearing.
(C) The committee chairman or his a
designee shall conduct the grievance hearing in an equitable,
orderly, and expeditious fashion. The committee chairman or
his a designee is authorized to administer oaths; to
issue subpoenas for files, records, and papers deemed pertinent
to any investigation; to call additional witnesses; and to
subpoena witnesses at the request of either party. The
State Budget and Control Board shall be 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, shall be 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 shall be
are bound by the decisions of the committee chairman
or a designee or the committee attorney insofar as
such these hearings are concerned.
(D) At such these hearings the
employee and the agency may also be represented by
counsel 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. Upon request of the
presiding officer 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. Such 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) However, 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 grievant
covered employee establishes that:
(1)(a) The agency's finding that the
grievant 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;
(2)(b) The agency's disciplinary action
was not within its established personnel policies, procedures, and
regulations; or
(3)(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
shall must be transmitted in writing to the employee
and the employing agency and shall be 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 Appeal
from 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
and,. Only after an agency submits a written
upon request to the Office of Human Resources
seeking approval of the board, may the agency
may also initiate a petition for judicial review
appeal 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."
SECTION 6. Section 8-17-350 of the 1976 Code is amended to
read:
"Section 8-17-350. When an appeal is filed with
him, the State personnel 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 he
the State Human Resources Director determines that the
action is grievable, he shall forward the appeal and allied
documents either (1) to the mediator-arbitrator for
mediation-arbitration or (2) after the mediation process has been
completed, to the designated chairman of the
committee panel, or his designee, and to the
committee attorney for a hearing, whichever is appropriate
based on the type of adverse employment action after the
mediation process has been completed. The State
personnel Human Resources Director shall notify
committee members, the committee attorney, and all other
the parties concerned of the date, time, and place of
grievance hearings and request their presence.
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 personnel director shall arrange for the
reproduction of pertinent records and papers and distribute copies to
the members of the committee that will hear the grievance and to
the committee attorney prior to the date of the hearing. The
State personnel Human Resources Director shall
be is responsible for recording the grievance
hearings, and shall provide to the committee from the resources of
the state personnel division such Office of Human
Resources, the administrative and clerical services as may
be required."
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 personnel Human Resources Director and has
been determined to be appealable to the committee meet
all jurisdictional requirements, but prior to
before forwarding the case appeal to the
committee, the State personnel Human Resources
Director or his designee 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 record of the internal grievance process
documents which have been submitted by each party and
shall schedule appointments to discuss the grievance separately
with the employee or his representative, or both, and representatives
of the agency a time to meet with both parties, jointly or
independently, to attempt to resolve the matter. If an
agreement between the two parties is not reached, the state
personnel director or his designee shall present tentative findings
and recommendations to both parties for resolution of the grievance
appeal. Each party shall submit a written response within ten
calendar days setting forth acceptance or rejection of the
recommendations. Any discussions by any of the parties concerned
during the Mediation conferences are process shall
be kept confidential and shall not be used or referred to
during subsequent proceedings on the appeal 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.
In an attempt to resolve grievances at the lowest level,
the state personnel director may be requested by the agency, during
its internal appeal and before the final decision is rendered by the
agency, to mediate the matter. If so requested by an agency, the
mediation procedure herein provided shall be followed. In the
event the mediation does not resolve the matter, the agency shall
make its final decision in accordance with its internal grievance
procedure."
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) Supreme Court justices, circuit court judges, referees,
receivers, magistrates, jurors, or masters-in-equity, all
judges, officers, and employees of the Judicial Department;
jurors; and 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 without administrative duties or who are
temporary employees;
(8) a chief administrative officer 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 of the
1976 Code, 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)."
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.
SECTION 10. This act takes effect October 1, 1996.
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