15.2-1507 - Provision of grievance procedure; training programs.
§ 15.2-1507. Provision of grievance procedure; training programs.
A. If a local governing body fails to adopt a grievance procedure required by§ 15.2-1506 or fails to certify it as provided in this section, the localgoverning body shall be deemed to have adopted a grievance procedure which isconsistent with the provisions of Chapter 30 (§ 2.2-3000 et seq.) of Title2.2 and any regulations adopted pursuant thereto for so long as the localityremains in noncompliance. The locality shall provide its employees withcopies of the applicable grievance procedure upon request. The term"grievance" as used herein shall not be interpreted to mean negotiations ofwages, salaries, or fringe benefits.
Each grievance procedure, and each amendment thereto, in order to comply withthis section, shall be certified in writing to be in compliance by the city,town or county attorney, and the chief administrative officer of thelocality, and such certification filed with the clerk of the circuit courthaving jurisdiction in the locality in which the procedure is to apply. Localgovernment grievance procedures in effect as of July 1, 1991, shall remain infull force and effect for 90 days thereafter, unless certified and filed asprovided above within a shorter time period.
Each grievance procedure shall include the following components and features:
1. Definition of grievance. A grievance shall be a complaint or dispute by anemployee relating to his employment, including but not necessarily limited to(i) disciplinary actions, including dismissals, disciplinary demotions, andsuspensions, provided that dismissals shall be grievable whenever resultingfrom formal discipline or unsatisfactory job performance; (ii) theapplication of personnel policies, procedures, rules and regulations,including the application of policies involving matters referred to insubdivision 2 (iii) below; (iii) discrimination on the basis of race, color,creed, religion, political affiliation, age, disability, national origin orsex; and (iv) acts of retaliation as the result of the use of orparticipation in the grievance procedure or because the employee has compliedwith any law of the United States or of the Commonwealth, has reported anyviolation of such law to a governmental authority, has sought any change inlaw before the Congress of the United States or the General Assembly, or hasreported an incidence of fraud, abuse, or gross mismanagement. For thepurposes of clause (iv) there shall be a rebuttable presumption thatincreasing the penalty that is the subject of the grievance at any level ofthe grievance shall be an act of retaliation.
2. Local government responsibilities. Local governments shall retain theexclusive right to manage the affairs and operations of government.Accordingly, the following complaints are nongrievable: (i) establishment andrevision of wages or salaries, position classification or general benefits;(ii) work activity accepted by the employee as a condition of employment orwork activity which may reasonably be expected to be a part of the jobcontent; (iii) the contents of ordinances, statutes or established personnelpolicies, procedures, rules and regulations; (iv) failure to promote exceptwhere the employee can show that established promotional policies orprocedures were not followed or applied fairly; (v) the methods, means andpersonnel by which work activities are to be carried on; (vi) except wheresuch action affects an employee who has been reinstated within the previoussix months as the result of the final determination of a grievance,termination, layoff, demotion or suspension from duties because of lack ofwork, reduction in work force, or job abolition; (vii) the hiring, promotion,transfer, assignment and retention of employees within the local government;and (viii) the relief of employees from duties of the local government inemergencies. In any grievance brought under the exception to clause (vi) ofthis subdivision, the action shall be upheld upon a showing by the localgovernment that: (i) there was a valid business reason for the action and(ii) the employee was notified of the reason in writing prior to theeffective date of the action.
3. Coverage of personnel.
a. Unless otherwise provided by law, all nonprobationary local governmentpermanent full-time and part-time employees are eligible to file grievanceswith the following exceptions:
(1) Appointees of elected groups or individuals;
(2) Officials and employees who by charter or other law serve at the will orpleasure of an appointing authority;
(3) Deputies and executive assistants to the chief administrative officer ofa locality;
(4) Agency heads or chief executive officers of government operations;
(5) Employees whose terms of employment are limited by law;
(6) Temporary, limited term and seasonal employees;
(7) Law-enforcement officers as defined in Chapter 5 (§ 9.1-500 et seq.) ofTitle 9.1 whose grievance is subject to the provisions of Chapter 10.1 andwho have elected to proceed pursuant to those provisions in the resolution oftheir grievance, or any other employee electing to proceed pursuant to anyother existing procedure in the resolution of his grievance.
b. Notwithstanding the exceptions set forth in subdivision 3 a above, localgovernments, at their sole discretion, may voluntarily include employees inany of the excepted categories within the coverage of their grievanceprocedures.
c. The chief administrative officer of each local government, or hisdesignee, shall determine the officers and employees excluded from thegrievance procedure, and shall be responsible for maintaining an up-to-datelist of the affected positions.
4. Grievance procedure availability and coverage for employees of communityservices boards, redevelopment and housing authorities, and regional housingauthorities. Employees of community services boards, redevelopment andhousing authorities created pursuant to § 36-4, and regional housingauthorities created pursuant to § 36-40 shall be included in (i) a localgoverning body's grievance procedure or personnel system, if agreed to by thedepartment, board, or authority and the locality or (ii) a grievanceprocedure established and administered by the department, board or authoritywhich is consistent with the provisions of Chapter 30 (§ 2.2-3000 et seq.) ofTitle 2.2 and any regulations promulgated pursuant thereto. If a department,board or authority fails to establish a grievance procedure pursuant toclause (i) or (ii), it shall be deemed to have adopted a grievance procedurewhich is consistent with the provisions of Chapter 30 (§ 2.2-3000 et seq.) ofTitle 2.2 and any regulations adopted pursuant thereto for so long as itremains in noncompliance.
5. General requirements for procedures.
a. Each grievance procedure shall include not more than four steps for airingcomplaints at successively higher levels of local government management, anda final step providing for a panel hearing or a hearing before anadministrative hearing officer upon the agreement of both parties.
b. Grievance procedures shall prescribe reasonable and specific timelimitations for the grievant to submit an initial complaint and to appealeach decision through the steps of the grievance procedure.
c. Nothing contained in this section shall prohibit a local government fromgranting its employees rights greater than those contained herein, providedsuch grant does not exceed or violate the general law or public policy of theCommonwealth.
6. Time periods.
a. It is intended that speedy attention to employee grievances be promoted,consistent with the ability of the parties to prepare for a fairconsideration of the issues of concern.
b. The time for submitting an initial complaint shall not be less than 20calendar days after the event giving rise to the grievance, but localgovernments may, at their option, allow a longer time period.
c. Limits for steps after initial presentation of grievance shall be the sameor greater for the grievant than the time which is allowed for localgovernment response in each comparable situation.
d. Time frames may be extended by mutual agreement of the local governmentand the grievant.
7. Compliance.
a. After the initial filing of a written grievance, failure of either partyto comply with all substantial procedural requirements of the grievanceprocedure, including the panel or administrative hearing, without just causeshall result in a decision in favor of the other party on any grievableissue, provided the party not in compliance fails to correct thenoncompliance within five workdays of receipt of written notification by theother party of the compliance violation. Such written notification by thegrievant shall be made to the chief administrative officer, or his designee.
b. The chief administrative officer, or his designee, at his option, mayrequire a clear written explanation of the basis for just cause extensions orexceptions. The chief administrative officer, or his designee, shalldetermine compliance issues. Compliance determinations made by the chiefadministrative officer shall be subject to judicial review by filing petitionwith the circuit court within 30 days of the compliance determination.
8. Management steps.
a. The first step shall provide for an informal, initial processing ofemployee complaints by the immediate supervisor through a nonwritten,discussion format.
b. Management steps shall provide for a review with higher levels of localgovernment authority following the employee's reduction to writing of thegrievance and the relief requested on forms supplied by the local government.Personal face-to-face meetings are required at all of these steps.
c. With the exception of the final management step, the only persons who maynormally be present in the management step meetings are the grievant, theappropriate local government official at the level at which the grievance isbeing heard, and appropriate witnesses for each side. Witnesses shall bepresent only while actually providing testimony. At the final managementstep, the grievant, at his option, may have present a representative of hischoice. If the grievant is represented by legal counsel, local governmentlikewise has the option of being represented by counsel.
9. Qualification for panel or administrative hearing.
a. Decisions regarding grievability and access to the procedure shall be madeby the chief administrative officer of the local government, or his designee,at any time prior to the panel hearing, at the request of the localgovernment or grievant, within 10 calendar days of the request. No city,town, or county attorney, or attorney for the Commonwealth, shall beauthorized to decide the question of grievability. A copy of the ruling shallbe sent to the grievant. Decisions of the chief administrative officer of thelocal government, or his designee, may be appealed to the circuit courthaving jurisdiction in the locality in which the grievant is employed for ahearing on the issue of whether the grievance qualifies for a panel hearing.Proceedings for review of the decision of the chief administrative officer orhis designee shall be instituted by the grievant by filing a notice of appealwith the chief administrative officer within 10 calendar days from the dateof receipt of the decision and giving a copy thereof to all other parties.Within 10 calendar days thereafter, the chief administrative officer or hisdesignee shall transmit to the clerk of the court to which the appeal istaken: a copy of the decision of the chief administrative officer, a copy ofthe notice of appeal, and the exhibits. A list of the evidence furnished tothe court shall also be furnished to the grievant. The failure of the chiefadministrative officer or his designee to transmit the record shall notprejudice the rights of the grievant. The court, on motion of the grievant,may issue a writ of certiorari requiring the chief administrative officer totransmit the record on or before a certain date.
b. Within 30 days of receipt of such records by the clerk, the court, sittingwithout a jury, shall hear the appeal on the record transmitted by the chiefadministrative officer or his designee and such additional evidence as may benecessary to resolve any controversy as to the correctness of the record. Thecourt, in its discretion, may receive such other evidence as the ends ofjustice require. The court may affirm the decision of the chiefadministrative officer or his designee, or may reverse or modify thedecision. The decision of the court shall be rendered no later than thefifteenth day from the date of the conclusion of the hearing. The decision ofthe court is final and is not appealable.
10. Final hearings.
a. Qualifying grievances shall advance to either a panel hearing or a hearingbefore an administrative hearing officer, as set forth in the locality'sgrievance procedure, as described below:
(1) If the grievance procedure adopted by the local governing body providesthat the final step shall be an impartial panel hearing, the panel may, withthe exception of those local governments covered by subdivision a (2) of thissubsection, consist of one member appointed by the grievant, one memberappointed by the agency head and a third member selected by the first two. Inthe event that agreement cannot be reached as to the final panel member, thechief judge of the circuit court of the jurisdiction wherein the disputearose shall select the third panel member. The panel shall not be composed ofany persons having direct involvement with the grievance being heard by thepanel, or with the complaint or dispute giving rise to the grievance.Managers who are in a direct line of supervision of a grievant, personsresiding in the same household as the grievant and the following relatives ofa participant in the grievance process or a participant's spouse areprohibited from serving as panel members: spouse, parent, child, descendantsof a child, sibling, niece, nephew and first cousin. No attorney havingdirect involvement with the subject matter of the grievance, nor a partner,associate, employee or co-employee of the attorney shall serve as a panelmember.
(2) If the grievance procedure adopted by the local governing body providesfor the final step to be an impartial panel hearing, local governments mayretain the panel composition method previously approved by the Department ofEmployment Dispute Resolution and in effect as of the enactment of thisstatute. Modifications to the panel composition method shall be permittedwith regard to the size of the panel and the terms of office for panelmembers, so long as the basic integrity and independence of panels aremaintained. As used in this section, the term "panel" shall include allbodies designated and authorized to make final and binding decisions.
(3) When a local government elects to use an administrative hearing officerrather than a three-person panel for the final step in the grievanceprocedure, the administrative hearing officer shall be appointed by theExecutive Secretary of the Supreme Court of Virginia. The appointment shallbe made from the list of administrative hearing officers maintained by theExecutive Secretary pursuant to § 2.2-4024 and shall be made from theappropriate geographical region on a rotating basis. In the alternative, thelocal government may request the appointment of an administrative hearingofficer from the Department of Employment Dispute Resolution. If a localgovernment elects to use an administrative hearing officer, it shall bear theexpense of such officer's services.
(4) When the local government uses a panel in the final step of theprocedure, there shall be a chairperson of the panel and, when panels arecomposed of three persons (one each selected by the respective parties andthe third from an impartial source), the third member shall be thechairperson.
(5) Both the grievant and the respondent may call upon appropriate witnessesand be represented by legal counsel or other representatives at the hearing.Such representatives may examine, cross-examine, question and presentevidence on behalf of the grievant or respondent before the panel or hearingofficer without being in violation of the provisions of § 54.1-3904.
(6) The decision of the panel or hearing officer shall be final and bindingand shall be consistent with provisions of law and written policy.
(7) The question of whether the relief granted by a panel or hearing officeris consistent with written policy shall be determined by the chiefadministrative officer of the local government, or his designee, unless suchperson has a direct personal involvement with the event or events giving riseto the grievance, in which case the decision shall be made by the attorneyfor the Commonwealth of the jurisdiction in which the grievance is pending.
b. Rules for panel and administrative hearings.
Unless otherwise provided by law, local governments shall adopt rules for theconduct of panel or administrative hearings as a part of their grievanceprocedures, or shall adopt separate rules for such hearings. Rules which arepromulgated shall include, but need not be limited to the followingprovisions:
(1) That neither the panels nor the hearing officer have authority toformulate policies or procedures or to alter existing policies or procedures;
(2) That panels and the hearing officer have the discretion to determine thepropriety of attendance at the hearing of persons not having a directinterest in the hearing, and, at the request of either party, the hearingshall be private;
(3) That the local government provide the panel or hearing officer withcopies of the grievance record prior to the hearing, and provide the grievantwith a list of the documents furnished to the panel or hearing officer, andthe grievant and his attorney, at least ten days prior to the scheduledhearing, shall be allowed access to and copies of all relevant files intendedto be used in the grievance proceeding;
(4) That panels and hearing officers have the authority to determine theadmissibility of evidence without regard to the burden of proof, or the orderof presentation of evidence, so long as a full and equal opportunity isafforded to all parties for the presentation of their evidence;
(5) That all evidence be presented in the presence of the panel or hearingofficer and the parties, except by mutual consent of the parties;
(6) That documents, exhibits and lists of witnesses be exchanged between theparties or hearing officer in advance of the hearing;
(7) That the majority decision of the panel or the decision of the hearingofficer, acting within the scope of its or his authority, be final, subjectto existing policies, procedures and law;
(8) That the panel or hearing officer's decision be provided within aspecified time to all parties; and
(9) Such other provisions as may facilitate fair and expeditious hearings,with the understanding that the hearings are not intended to be conductedlike proceedings in courts, and that rules of evidence do not necessarilyapply.
11. Implementation of final hearing decisions.
Either party may petition the circuit court having jurisdiction in thelocality in which the grievant is employed for an order requiringimplementation of the hearing decision.
B. Notwithstanding the contrary provisions of this section, a final hearingdecision rendered under the provisions of this section which would result inthe reinstatement of any employee of a sheriff's office, who has beenterminated for cause may be reviewed by the circuit court for the localityupon the petition of the locality. The review of the circuit court shall belimited to the question of whether the decision of the panel or hearingofficer was consistent with provisions of law and written policy.
(1978, c. 845, § 15.1-7.2; 1985, c. 515; 1988, c. 290; 1989, c. 254; 1991, c.661; 1995, cc. 770, 818; 1996, cc. 164, 440, 579, 869; 1997, c. 587; 2000,cc. 947, 1006; 2001, c. 589; 2005, c. 714; 2009, c. 736.)