Grievances focus on personnel matters impacting the privacy of the individuals involved, as well as the agency's personnel practices. To protect the privacy of all concerned, grievance hearings are not public hearings.

1. Persons Present
   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 officer shall maintain order, decorum and civility during the hearing and shall have the authority to eject disruptive individuals from the hearing room.
   Parties: The parties to the grievance are the employee and the agency. The agency may select an individual to serve in its capacity as a party. The fact that the individual selected by the agency is directly involved in the grievance or may testify is of no import. Each party may be present during the entire hearing and may testify.
   Representatives: Parties may be represented by legal counsel, another individual of choice, or themselves. The representative, or the party without representation, may examine or cross-examine witnesses and present evidence. If a party is represented by more than one individual, however, only one representative may examine an individual witness.
   Witnesses: Each party may call witnesses to testify at the hearing. A non-party witness may be present in the hearing room only while testifying.
   Aides/Interpreters: An impaired party, representative, or witness may use an aide or an interpreter throughout the time that the individual is in the hearing room. Likewise, anyone not fluent in English may use a language interpreter. It shall be the agency's responsibility to secure the services of any necessary aides/interpreters and to bear all associated costs.
   Observers: The hearing officer has the authority to determine whether observers may be present during the hearing. Observers include anyone who is not a party, representative, testifying witness, or aide/interpreter (e.g., friends, acquaintances, co-workers, or the agency’s personnel officer). In deciding whether observers may attend the hearing, the hearing officer should recognize that non-parties might inhibit the full disclosure of information. The confidentiality of the parties and others not directly involved in the grievance must be preserved. Accordingly, at the request of one or both of the parties, the hearing should be closed to all persons who are not direct participants in the hearing. Because EDR is charged with oversight of the grievance process, the EDR Director or his designee may observe any hearing without first seeking or receiving permission to do so from the hearing officer.
   
2. Recording 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. Parties may have a transcript produced at their own expense by ordering a duplicate copy of the hearing tapes from the Hearing Division’s Administrative Assistant and engaging the services of a court reporter.
   
3. Conducting the Hearing
   The hearing must be conducted in an orderly, fair, and equitable fashion, pursuant to the provisions of the Grievance Procedure Manual. Because the grievance process is intended for use by unrepresented parties and lay advocates, the hearing officer must establish an informal, non-judicial hearing environment that is conducive to a free exchange of information and the development of the facts. The hearing officer is responsible for marking the exhibits received into evidence and making them a part of the grievance record. In addition, during the course of the hearing, the hearing officer may question the witnesses and, if essential to the resolution of a material issue in the case, request a party to provide further documentation. Hearing officers should exercise this discretion sparingly, however. The tone of the inquiry, the construct of the question, or the frequency of questioning one party’s witnesses can create an impression of bias, so care should be taken to avoid appearing as an advocate for either side.
   Each party may make opening and closing statements. In disciplinary actions and dismissals for unsatisfactory performance, the agency must present its evidence first and must show by a preponderance of the evidence (in other words, that it is more likely than not) that the action was warranted and appropriate under the circumstances. In all other actions, the employee must present evidence first and must prove his or her claim by a preponderance of the evidence.
   If procedural or compliance issues arise, the hearing officer may contact EDR’s Director or the Hearing Officer Program Coordinator for general guidance.
   
4. Admitting Evidence
   The grievance hearing is not intended to be a court proceeding. Therefore, the technical rules of evidence do not apply and most probative evidence (any evidence that tends to prove that a material fact is true or not true) is admitted. However, the liberal admission of evidence should not be construed as a retreat from the underlying principles and reasoning behind rules of evidence. The purpose of liberal admission is to allow the introduction of evidence that might not be admissible under evidentiary rules, not to encourage the substitution of less reliable evidence for more reliable evidence. For example, because documents are typically the best evidence of their contents, when a party seeks to establish the contents of an available document, the party should introduce the document as evidence rather than relying solely upon an inherently less reliable form of evidence such as recollected testimony as to the document’s contents. Because of the liberal admission policy, the hearing officer must exercise great care when considering and weighing the reliability of the evidence received.
   The hearing officer may exclude evidence that is irrelevant, immaterial, insubstantial, privileged, or repetitive. Unfounded objections to the admission of evidence by either party must be discouraged, however. An unrepresented party can become flustered when this occurs and may not know how to rehabilitate the testimony of the witness after such objections. If a representative or a party disrupts the hearing with repeated objections or is argumentative, the hearing officer may declare a recess to talk about the standard of professional conduct expected of representatives in the hearing.
   Pursuant to § 8.01-418.2 of the Code of Virginia, the results of polygraph tests are not admissible as evidence in a grievance hearing over the objection of any party except as to disciplinary or other actions taken against a polygrapher. Pursuant to § 60.2-623.B of the Code of Virginia, determinations or decisions of the Virginia Employment Commission (VEC) are not admissible in grievance hearings. Information provided to the VEC is likewise not admissible at a grievance hearing unless the information was otherwise discoverable and could have been obtained through other means.

   
   
5. Witness Issues
   The hearing officer is responsible for limiting the number of witnesses called by either party whenever the testimony would be merely cumulative. The purpose of this power is to ensure the speedy and efficient conduct of the hearing. However, when limiting the number of witnesses, the hearing officer should be careful not to exclude testimony that may be of greater weight or probative value than that already presented.
   Sometimes a party may wish to present the testimony of an individual who is in the physical custody of the state. There is no law or policy that requires the agency to produce that individual to testify as a witness. Nevertheless, testimony from such a person may be important. If that is the case, the hearing officer should weigh the costs associated with transporting the witness to the hearing location, as well as any security or health risks that could arise as a result of such an order. If transporting the witness to the hearing is not feasible, testimony can be received via conference call or by conducting all or part of the hearing at the institution or building where the witness is housed. Another alternative is to admit a recorded statement from the witness.
   There are several concerns regarding the testimony of those who are mentally incapacitated. Because there is a strong interest in protecting such a witness from aggressive direct or cross-examination, the hearing officer may choose to personally examine such a witness, as is done by the courts in competency proceedings, instead of allowing the parties to do so. Although the competency of a witness may be called into question, mental incapacity does not automatically disqualify a witness. A witness need only have personal knowledge of the event, and be able to perceive, remember, recognize the duty to tell the truth, and comprehend and respond to questions in an understandable manner.
   The matter before the hearing officer may involve an individual who is not under the control of either party, such as a discharged patient or a customer of the agency. If the party has made a good faith effort to produce the witness, or if there are sound reasons for not requesting the presence of the witness, the hearing officer may admit any recorded statement or official report previously made by the unavailable witness.
   
6. Documents
   The Grievance Procedure Manual does not require the use of affidavits or sworn statements at hearing. However, the formality of a recorded statement may affect the evidentiary weight that the hearing officer accords to the statement. If the hearing officer prefers a certain formality to recorded statements used in lieu of testimony, he or she should so inform the parties during the pre-hearing conference, and should explain to the parties how formality could affect the weight that will be given to such statements.
   When a recorded statement is offered into evidence, the burden is on the party introducing the document to establish the truth of the facts contained in that statement. The truth of the facts can be established by direct or circumstantial evidence.
   Personally identifiable information regarding individuals not party to the proceeding is often deleted from investigative notes or agency records. If a party objects to such deletions, or if the hearing officer deems that the deleted information is essential, the hearing officer should work with the parties to obtain the information in a format that does not violate the privacy rights of non-parties. If this is not feasible or fair, the hearing officer should exercise care in preserving confidentiality when non-party records, especially medical records, are exchanged or admitted into evidence.