§5 The Hearing
Most qualified grievances proceed to a hearing before
a hearing officer.* Within 5 workdays of the qualification of the
grievance, the agency must request the appointment of a hearing
officer from EDR, using a “Form B.” For hearing scheduling
purposes, the agency must provide on the “Form B” the
name and telephone number of its party representative or party designee.
The hearing should be held and a written decision issued within
35 calendar days of the hearing officer’s appointment. This
time can be extended only upon a showing of just
cause. See also
Rules for Conducting Grievance Hearings, available on EDR's Web
site, which addresses in more detail the hearing officer's duties
and authority under the grievance procedure.
*Certain qualified grievances with the Department of Corrections
or the Department of Juvenile Justice, are heard by a circuit court.
See “Exception for Hearings on Certain
Qualified Grievances with the Departments of Corrections and Juvenile
Justice,” §5.10.
It is the responsibility of the hearing officer to notify the parties, either in writing or at a prehearing conference, of the date, time, and place of the hearing.
The hearing must be held in the locality where the employee is or has been employed unless the parties and hearing officer mutually agree to another site. The agency must arrange a place for the hearing unless the hearing officer chooses to make the arrangements.
A prehearing conference is required to be held. At the hearing officer’s discretion, this conference can be conducted in person or by telephone. This conference provides an opportunity to improve the management of the hearing by addressing procedural and evidentiary issues. If a party desires to have a particular individual testify at hearing, or to have a particular document produced prior to hearing, the party may request the hearing officer to order the appearance of the individual, or the production of the document. The agency shall make available for hearing any employee ordered by the hearing officer to appear as a witness.
A hearing is to last no more than one day, unless the hearing officer determines that the time is insufficient for a full and fair presentation of the evidence by both sides.
The parties must appear at the hearing or request a postponement. The hearing officer has the discretion to grant or deny a request for a postponement. However, the hearing and decision may go beyond the 35-day time limit only upon a showing of just cause.
At the hearing officer’s discretion, a hearing may proceed in the absence of one of the parties; a hearing so conducted will be decided on the grievance record and the evidence presented at the hearing.
The hearing must be tape recorded verbatim to create a record should there be an administrative or judicial review of the hearing decision. EDR’s full-time hearing officers will provide their own recording equipment, with the agency providing the tapes. For hearings conducted by private sector part-time hearing officers, the agency has the responsibility to arrange for recording equipment. The equipment must be in proper working order and produce a clearly audible recording. It is the hearing officer's responsibility to record the hearing and to retain the tapes until a final decision is rendered.
Either party may receive a copy of the recording, if requested, for the cost of reproduction. A court reporter is not required. If a party requests a court reporter, that party is responsible for the costs. Either party desiring a transcript should contact the court reporter directly. Once a hearing decision becomes final, the hearing officer shall forward the recorded tape(s) along with the rest of the hearing records to the agency.
§5.7 Authority of the Hearing Officer
A hearing officer’s authority derives from Va. Code § 2.2-3000 et seq., the Rules for Conducting Grievance Hearings, and this Grievance Procedure Manual. Hearing officers have the authority to:
- Hold a prehearing conference;
- Require the parties to exchange a list of witnesses and documents;
- Issue orders for the appearance of witnesses at hearing and the production of documents;
- Decide whether non-parties may attend the hearing (however, a representative of EDR may attend any hearing);
- Record the hearing verbatim;
- Administer oaths;
- Admit evidence and exclude evidence, including but not limited to evidence in mitigation or aggravation of any offense charged by agency,
- Accept offers of proof of excluded evidence;
- Rule on procedural requests;
- Render written decisions on qualified grievances and provide
appropriate relief; and
- Take other actions as necessary or specified in the grievance procedure.
Hearing officers are bound by the provisions of Va.
Code § 2.2-3000 et seq., the Rules for Conducting Grievance
Hearings, and this Grievance Procedure Manual.
Hearings are to proceed as follows:
- Parties may represent themselves or may be represented by an individual of choice; this representative does not have to be an attorney;
- In disciplinary actions and dismissals for unsatisfactory performance, the agency must present its evidence first and must show by a preponderance of the evidence that the action was warranted and appropriate under the circumstances;
- In all other actions, the employee must present his evidence first and must prove her claim by a preponderance of the evidence;
- Each party may make opening and closing statements;
- Formal rules of evidence do not apply;
- Testimony and exhibits may be admitted into evidence and made part of the record;
- Non-party witnesses are not to be present at the hearing except to give testimony and be cross-examined; and
- The hearing should be closed to the public.
§5.9 Hearing Officer’s Decision
A hearing officer’s decision must be in writing.* The decision must contain findings of fact on the material issues and the grounds in the record for those findings. The hearing officer must send his decision by certified mail, return receipt requested, to each party and by First Class U.S. mail to EDR. In the alternative, the hearing officer may e-mail or fax the decision so long as proof of receipt is established.
Hearing officers may order appropriate remedies but may not grant relief that is inconsistent with law or policy. In granting relief, the hearing officer should consider the relief requested in the written grievance.
In hearings contesting formal discipline, if the hearing officer finds that (i) the employee engaged in the behavior described in the Written Notice, (ii) the behavior constituted misconduct, and (iii) the agency’s discipline was consistent with law and policy, the agency’s discipline must be upheld and may not be mitigated, unless under the record evidence, the agency’s discipline exceeds the limits of reasonableness.
* NOTE: Hearing decisions will be published on EDR's Web site in a manner that seeks to preserve personal privacy. See “Publication of Hearing Decisions, Rulings, and Related Court Opinions,” §8.1.
§5.9(a) Examples of relief which may be available:
- Reinstatement to the employee’s former position or, if occupied, to an objectively similar position;
- Upholding, reducing or rescinding disciplinary actions;
- An award of full, partial, or no back pay, from which interim earnings must be deducted;
- The restoration of full benefits and seniority;
- An order that the agency comply with applicable law and policy, and,
- Attorneys’ fees in discharge grievance hearings where the hearing officer orders reinstatement and the employee is represented by an attorney, unless special circumstances would make an award unjust. See “Special Rules for Discharge Hearings,” § 7.2(e).
§5.9(b) Examples of relief which are not available:
- Damages;
- Attorneys’ fees in grievance hearings not challenging discharge;
- Hiring, promotion, transfer, assignment or retention of any employee;
- Establishing or revising compensation, classification or benefits;
- Establishing or revising policies, procedures, rules, or regulations;
- Taking any adverse action against an employee (other than upholding or reducing the disciplinary action challenged by the grievance);
- Directing the methods, means or personnel by which work activities are to be carried out; or,
- Any other relief that is inconsistent with the grievance statute or procedure.
§5.10 Exception for Hearings on Certain Qualified Grievances with the Departments of Corrections and Juvenile Justice
Qualified grievances of employees of the Departments of Corrections or Juvenile Justice, whose employment was terminated for (i) client, inmate, or resident abuse, (ii) a criminal conviction, or (iii) being placed on court probation under the provisions of Va. Code § 18.2-251, proceed to a hearing before the circuit court in the jurisdiction in which the employee had been employed. In its discretion, the court may refer the matter to a lawyer who serves as a commissioner in chancery to take such evidence as may be proper and to make a report to the court.
Parties may represent themselves or be represented
by an individual of choice; this representative does not have to
be an attorney. Such representatives may examine, cross-examine,
question, and present evidence before the court. The court, sitting
without a jury, must hear the evidence. The agency’s action
is to be upheld unless shown to have been unwarranted by the facts
or contrary to law or policy. The decision of the court may be appealed
by either party to the Court of Appeals pursuant to Virginia
Code §17.1 - 405.
NOTE: Court decisions may be published in full on EDR's Web site.
See “Publication of Hearing Decisions,
Rulings, and Related Court Opinions,” §8.1.
§ 5.11 Withdrawal of Grievance
When an employee withdraws the grievance prior to the issuance of a hearing decision, or when the parties agree to a settlement of the grievance, the employee must submit to the hearing officer a dated, signed statement clearly stating that he or she is withdrawing the grievance. Such a withdrawal statement terminates the grievance process. It is not necessary for the parties to send a copy of the settlement agreement to the hearing officer. The hearing officer shall issue an Order of Dismissal solely to document that the employee has withdrawn the grievance and that the grievance has been dismissed.
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Revised August 30, 2004