Current Status Bill Number:4520 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19960131 Primary Sponsor:H. Brown All Sponsors:H. Brown Drafted Document Number:pfm\7868htc.96 Companion Bill Number:1079 Residing Body:Senate Current Committee:Finance Committee 06 SF Date of Last Amendment:19960410 Subject:Employee grievance procedure, alternatives to disputes
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19960416 Introduced, read first time, 06 SF
referred to Committee
House 19960411 Read third time, sent to Senate
House 19960410 Amended, read second time
House 19960403 Committee report: Favorable with 25 HJ
amendment
House 19960131 Introduced, read first time, 25 HJ
referred to Committee
View additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
AMENDED
April 10, 1996
H. 4520
S. Printed 4/10/96--H.
Read the first time January 31, 1996.
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.