§7 Review of Hearing
Decisions
A hearing decision must be consistent with law and policy. A hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.
§7.2 Administrative Review of Hearing Decisions
A hearing officer’s original decision is subject to three types of administrative review. A party may make more than one type of request for review. However, all requests for review must be made in writing, and received by the administrative reviewer, within 15 calendar days of the date of the original hearing decision. Requests may be initiated by electronic means such as facsimile or e-mail. However, as with all aspects of the grievance procedure, a party may be required to show proof of timeliness. Therefore, parties are strongly encouraged to retain evidence of timeliness. A copy of all requests must be provided to the other party and to the EDR Director.
- A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
- A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management (DHRM). This request must refer to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy. Requests should be sent to the Director of the Department of Human Resources Management, 101 N. 14th Street, 12th Floor, Richmond, Virginia 23219 or faxed to (804) 371-7401.
- A challenge that the hearing decision does not comply with the grievance procedure is made to the Director of EDR. Requests should be sent to the EDR Director, One Capitol Square, 830 East Main, Suite 400, Richmond, VA 23219 or faxed to (804) 786-0111. This request must state the specific requirement of the grievance procedure with which the hearing decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure. (See also, “Hearing Officer Noncompliance,” §6.4).
The opposing party may submit a written challenge
(rebuttal) to any appeal to the appropriate administrative reviewer.
A copy of any such rebuttal must also be provided to the appealing
party and the EDR Director.
NOTE: All administrative review rulings or decisions may 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.
§7.2(b) Transcripts of the Hearing
A party may elect to produce a transcript to support its position on appeal. As a general rule, the party that elects to have a transcript produced is responsible for the costs of producing the transcript. An administrative reviewer may also request a party to provide a full or partial transcript of the hearing to support the party’s position and if so provided, that party must bear the cost of production.
- If the employee is ordered or elects to provide a transcript, the agency may obtain a copy directly from the court reporter at the agency’s expense.
- If the agency is ordered or elects to provide a transcript, the employee must be allowed, upon request, reasonable access to the agency’s copy of the transcript in order to respond to the agency’s case. The employee may also obtain a copy of the transcript from the court reporter at the employee's expense.
§7.2(c) Administrative Review Decisions
If multiple requests for administrative review are pending, a hearing officer’s decision on reconsideration or reopening should be issued before the DHRM and EDR Directors issue their decisions.
The hearing officer should issue a written decision on a request for reconsideration or reopening within 15 calendar days of receiving the request.
The DHRM and EDR Directors should issue written decisions on requests for administrative review within 30 calendar days of receiving the request or within 15 calendar days of receiving the hearing officer’s decision on a request for reconsideration or reopening, whichever is longer. Administrative review decisions issued by the Directors of DHRM and EDR are final and nonappealable. If the DHRM or EDR Director orders the hearing officer to revise his decision, the hearing officer must do so and should issue a written decision within 15 calendar days of receiving the order.
§7.2(d) Final Hearing Decisions
A hearing officer’s original decision becomes a final hearing decision, with no further possibility of administrative review, when:
- The 15 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or
- All timely requests for administrative review have been decided and, if ordered by EDR or DHRM, the hearing officer has issued a revised decision.*
*See §7.2(e) below for special rules regarding final hearing decisions in discharge hearings where the hearing officer orders reinstatement of an employee represented by an attorney.
§7.2(e) Special Rules for Discharge Hearings where the Hearing Officer Orders Reinstatement of an Employee Represented by an Attorney.
Attorneys’ fees are not available under the grievance procedure, with one exception: an employee who is represented by an attorney and substantially prevails on the merits of a grievance challenging his discharge is entitled to recover reasonable attorneys’ fees, unless special circumstances would make an award unjust. For such an employee to “substantially prevail” in a discharge grievance, the hearing officer’s decision must contain an order that the agency reinstate the employee to his former (or an objectively similar) position.
In such a case, when the hearing officer issues the initial decision ordering reinstatement, the decision is considered an “original” decision as described in §7.2(a). Thus, within 15 calendar days of the issuance of the original decision, either party may seek administrative review in accordance with §7.2(a). In addition, counsel for the grievant shall ensure that the hearing officer receives, within 15 calendar days of the issuance of the original decision, counsel’s petition for reasonable attorneys’ fees. The petition shall include an affidavit itemizing services rendered, time billed for each service, and the hourly rate charged in accordance with the Rules for Conducting the Grievance Hearings. A copy of the fees petition must be provided to the opposing party at the time it is submitted to the hearing officer. The agency may contest the fees petition by providing a written rebuttal to the hearing officer.
If neither party requests an administrative review, the hearing officer must issue an addendum to the decision denying or awarding, in part or in full, the fees requested in the petition, and should do so no later than 30 days from the date of the initial decision.
If either party has timely requested an administrative review as described in §7.2(a), all other administrative reviews must be issued (including any reconsidered decision by the hearing officer) before the hearing officer issues the fees addendum. The hearing officer should issue the fees addendum within 15 calendar days of the issuance of the last of the administrative review decisions.
Within 10 calendar days of the issuance of the fees addendum, either party may petition the EDR Director for a decision solely addressing whether the fees addendum complies with this Grievance Procedure Manual and the Rules for Conducting Grievance Hearings. Once the EDR Director issues a ruling on the propriety of the fees addendum, and if ordered by EDR, the hearing officer has issued a revised fees addendum, the original decision becomes “final” as described in §7.2(d) and may be appealed to the Circuit Court in accordance with §7.3(a). The fees addendum shall be considered part of the final decision.
Like all final hearing decisions, a final decision rendered by a hearing officer under this subsection ( 7.2(e)) shall not be enforceable until the conclusion of any judicial appeals.
§7.3 Judicial Review of Final Hearing Decisions
Once an original hearing decision becomes final, either party may seek review by the circuit court on the ground that the final hearing decision is contradictory to law.
An employee does not need EDR's approval before filing a notice of appeal. However, an agency must request and receive approval from the Director of EDR before filing a notice of appeal. To request approval to appeal, an agency must, within 10 calendar days of the final hearing decision, submit a written request to EDR and must specify the legal basis for the appeal, in other words, the basis for its position that the hearing decision is “contradictory to law.” The agency must provide a copy of its appeal request to the employee. EDR will provide a response within 10 calendar days of the agency’s request.
A notice of appeal must be filed with the clerk of the circuit court in the jurisdiction in which the grievance arose within 30 calendar days of the final hearing decision. At the time of filing, a copy of the notice of appeal must be provided to the other party and the EDR Director.
Within 10 calendar days of receiving the notice of appeal, the agency’s Human Resources Office must mail a copy of the grievance record, complete with all attachments, to the circuit court in the jurisdiction in which the grievance arose. (The original grievance record should be kept by the agency.)
If the Human Resources Office does not forward the grievance record to the court, the employee may request the court to issue an order requiring the agency to transmit the record.
Within 30 days of receipt of the grievance record, the court, sitting without a jury, shall hear the appeal on the record. The court may affirm, reverse, or modify the final hearing decision. The court’s decision shall be rendered within 15 days of the court hearing, which shall be at no cost to the parties. The court shall award reasonable attorney’s fees and costs to the employee if the employee substantially prevails on the merits of the appeal.
§7.3(b) Appeal to the Court of Appeals
Either party may appeal the final decision of the circuit court to the Court of Appeals pursuant to Virginia Code § 17.1-405.
Either party may petition the circuit court having
jurisdiction in the locality in which the grievance arose for an
order requiring implementation of the final decision. The petitioning
party must provide the EDR Director a copy of the petition. The
court shall award reasonable attorneys’ fees and costs to
the employee if the employee substantially prevails on the merits
of the implementation.
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Revised August 30, 2004