Scheduling
The hearing officer's appointment letter from EDR encloses an Appointment of Hearing Officer Form B ("Form B") listing the name, address, and telephone number of each party to the grievance. Following appointment, a hearing officer should promptly contact the parties to schedule the hearing and pre-hearing conference.

Time
The hearing is to be held and a written decision on the merits of a grievance issued no later than 35 calendar days after the date shown on the appointment letter, allowing for an additional three days from the date of appointment for mailing. The hearing officer may extend the 35-day time period for just cause – generally circumstances beyond a party’s control such as an accident, illness, or death in the family. If an extension is granted, the reasons for the extension should be stated prominently in the written decision.
For circumstances within a party’s control, the hearing officer should accommodate the party’s scheduling wishes as flexibly as possible, but within the 35-calendar day period. For example, because mediation and/or settlement are generally within the control of the parties, failure to resolve the dispute through either of those processes usually does not constitute just cause for an extension of the hearing date. Thus, for instance, if settlement is being considered, the hearing date should be docketed as late within the 35-day period as possible to allow time for settlement negotiations. However, the hearing officer should advise the parties that absent an intervening event over which the parties have no control (e.g., the agency and the employee have reached a proposed settlement, but are awaiting any necessary Cabinet approval; accident; illness; death in family), the hearing will be conducted on the docketed date and that the parties should decide whether to settle before that date.
The hearing on a grievance may be divided into one or more sessions, but generally should last no longer than a total of 8 hours. A hearing may continue beyond 8 hours, however, if necessary to a full and fair presentation of the evidence by both sides.

Consolidation
At times, two or more pending grievances between the same employee and agency are qualified for hearing. At other times, two or more employees each file a grievance with the same agency challenging substantially similar management actions involving a single incident or set of circumstances. At the request of either party, or upon the EDR Director’s own motion, the EDR Director may order that grievances involving the same (1) factual background and (2) issues or policies be consolidated and heard before the same hearing officer at a single hearing, to be followed with a single decision addressing each of the qualified issues raised in the consolidated grievances. Where the grievances of two or more employees have been consolidated each employee shall receive a separate opinion. Consolidation of such grievances fosters consistent and efficient fact-finding, and thus a more equitable result.
If consolidation for hearing would be impracticable -- because, for example, the underlying grievances, while similar, are complex from a factual, legal or policy standpoint -- the EDR Director may direct that the grievances be heard by the same hearing officer, but with separate hearings and decisions.
Only the EDR Director or the Director’s designee may order the consolidation of grievances for hearing. After a hearing officer has been appointed, EDR will not accept requests for consolidation for hearing except under extraordinary circumstances.

Pre-hearing Conference
The hearing officer shall schedule a pre-hearing conference, in person or by telephone. A pre-hearing conference presents an opportunity to improve the management of the hearing through prior discussion and the resolution of procedural and evidentiary issues. During the pre-hearing conference, the hearing officer may assist the parties by:

• Explaining procedures that will be followed at the hearing; establishing the date, time, and location of the hearing; and confirming the roles of the parties, their representatives, and the hearing officer.
  
• Clarifying the issue(s) qualified for the hearing.
  
• Preparing the parties for the presentation of evidence at the hearing, particularly in light of the inapplicability of the technical rules of evidence.
  
• Ruling on preliminary procedural and evidentiary requests.
  
• Encouraging the parties to stipulate to facts or exhibits not in dispute and the applicable policies or laws.
  
• Issuing, upon request of the parties, orders for the appearance of witnesses at hearing and the production of documents.
  
• Establishing the date for the exchange of witness lists and documents, and ruling on any objections to these.
  
• Explaining the standard of proof to be applied and the order of presentation for each party.
  
• Affording the parties the opportunity, upon request, to review the grievance record for completeness and accuracy.
  

Importantly, too, a pre-hearing conference allows the hearing officer to instill confidence in the parties that their hearing officer is an independent and neutral decision-maker. In this regard, it is essential that the hearing officer establish and maintain a tone of impartiality. Hearing officers should bear in mind, during the pre-hearing conference and throughout the hearing process, that an idle gesture or remark, or an ex parte conversation (meaning that one party is absent from the discussion), can be perceived as partiality, no matter how necessary and proper such communication may have been.

Orders
The hearing officer’s authority to order discovery (procedures used by either party to prepare for the hearing by obtaining information about the case from the other party) is more limited than that of a court. For example, the grievance procedure does not require, and hearing officers may not order (without both parties’ agreement) discovery by (i) witness deposition (testimony recorded and provided under oath prior to the hearing); (ii) interrogatories (written questions about the case submitted by either party to the other party or witness); or (iii) requests for admissions (written statements concerning the case submitted by one party to the other, who then admits or denies each statement).

The hearing officer may, however, issue an order for the production of documents or the appearance of witnesses at hearing. Orders should be issued in the name of the hearing officer and mailed by the hearing officer to the appropriate individual(s), with a copy to each party. The hearing officer can ask the agency to schedule requested employee witnesses to a shift compatible with the date, time, and location of the hearing. If this unduly burdens the business of the agency, the hearing can be continued to another day, witnesses can testify by phone, or the hearing may be moved to a location at the work site. The agency shall make available for hearing any employee ordered by the hearing officer to appear as a witness. Examples of the recommended format and content of orders are included in Appendix A. If a party believes that a hearing officer’s order is out of compliance with the grievance procedure, the party may request a compliance ruling from the EDR Director in accordance with the Grievance Procedure Manual.

Production of Documents: In considering a party’s request for an order for the production of documents, hearing officers should bear in mind that under the employment dispute resolution statutes, absent just cause, all documents, as defined in the Rules of the Supreme Court of Virginia, relating to actions grieved "shall be made available" upon request from a party to the grievance, by the opposing party. EDR’s interpretation of the mandatory language "shall be made available" is that absent just cause (e.g., legal privilege, undue burden, compelling security reasons), all relevant grievance-related information must be produced under the grievance statutes. Accordingly, an agency’s discretion under the Freedom of Information Act or other statute to withhold certain documents from an employee does not necessarily extend to the grievance process.

Documents pertaining to non-parties that are relevant to the grievance must be produced in such a manner as to preserve the privacy of the individuals not personally involved in the grievance. Also, a party is not required to create and produce a document if the document does not exist.