Bill 2626

                    Current Status

Bill Number:               2626
Ratification Number:       495
Act Number                 402
Introducing Body:          House
Subject:                   State Employee Grievance Procedure
                           Act

(A402, R495, H2626)

AN ACT TO PROVIDE FOR STATE EMPLOYEE GRIEVANCE PROCEDURES; AND TO REPEAL ARTICLE 1, CHAPTER 17 OF TITLE 8, CODE OF LAWS OF SOUTH CAROLINA, 1976, ACT 1026 OF 1974, ACT 154 OF 1977, ACT 471 OF 1978, SECTION 44 OF PART II OF ACT 644 OF 1978, ACT 435 OR 1980 AND ACT 68 OF 1981, RELATING TO STATE EMPLOYEE GRIEVANCE COMMITTEE PROCEDURES.

Be it enacted by the General Assembly of the State of South Carolina:

Legislative findings, declaration of purpose, short title

Section 1. Legislative findings, declaration of purpose, short title. The General Assembly finds that harmonious relations between public employers and public employees are a necessary and most important factor in the effective and efficient operation of government and that a proper forum for the understanding and resolution of employee grievances will contribute to the establishment and maintenance of harmony, good faith, and the quality of public service. It is for the protection of the interests of both the employee and the agency via a fair administrative review, that this act, which may be cited as the "State Employee Grievance Procedure Act of 1982", is enacted.

Definitions

Section 2. Definitions. As used in this act, unless the context clearly indicates otherwise, the following words or phrases shall mean:

(1) "Agency" means any department, institution, board, commission, council, division, bureau, center, school, hospital or other facility that is a governmental unit of the State of South Carolina. Public schools, special purpose districts, and other units of local government are excluded from this definition.

(2) "Board" means the State Budget and Control Board.

(3) "Calendar days" means the sequential days of a year. The time shall be computed by excluding the first day and including the last. If the last day falls on a Saturday, Sunday, or an official agency holiday, it shall be excluded.

(4) "Committee" means the State Employee Grievance Committee.

(5) "Demotion" means the assignment of an employee by the appointing authority from one established position to a different established position having a lower rate of pay. Reclassifications shall not ordinarily be deemed grievable as a demotion. However, if an allegation is made that a reclassification was punitive and the state personnel director determines that there is any material issue of fact or conclusion to be drawn from the facts of the allegation then the reclassification shall be deemed grievable.

(6) "Discrimination" means differential treatment based upon race, religion, sex, national origin, color, age, and handicap as found in the Equal Protection Clause of the 14th Amendment of the United States Constitution, Title VII of the 1964 Civil Rights Act, Age Discrimination in Employment Act of 1967, Vocational Rehabilitation Act of 1973, and the South Carolina Human Affairs Law.

(7) "Dismissal" means the action taken against an employee by the appointing authority to separate the employee from employment, whether by way of termination, nonrenewal of contract, or reduction in force.

(8) "Instructional personnel" means employees of state agencies that have primarily an educational mission, excluding the state technical colleges and excluding those employees exempted in item (10) of Section 7 who work an academic year.

(9) "Involuntary reassignment" means the movement of an employee's principal place of employment in excess of fifteen miles from the prior work station at the initiative of the agency. The transfer of an employee by an agency in excess of fifteen miles from the prior work station to the nearest facility with an available position of comparable status for which he is qualified shall not be considered involuntary reassignment.

(10) "Permanent employee" means a full-time or part-time employee occupying an established permanent position whose permanent retention has been approved at the completion of the probationary period as determined by a satisfactory or higher performance appraisal and who has appeal rights. However, instructional personnel shall become permanent employees upon satisfactory completion of one academic year. If an employee does not receive an appraisal on or prior to the official appraisal date, the employee shall be considered to have performed in a satisfactory manner and to have grievance rights.

(11) "Probationary employee" means a full-time or part-time employee in the initial working test period of employment with the State of not more than six months' duration for noninstructional personnel or nine months' duration for instructional personnel. The probationary period for noninstructional personnel may be extended for not more than three months based upon a less than satisfactory performance appraisal. The probationary period for instructional personnel may be extended for not more than one quarter or one semester, as determined by the academic schedule of the agency or institution, based upon a less than satisfactory performance appraisal. At the completion of the extended time period, the employee shall either become a permanent employee based on a satisfactory or higher performance appraisal or be terminated. An employee who receives an unsatisfactory performance appraisal during the probationary period shall be terminated prior to becoming a permanent employee.

(12) "Reduction in force" means a determination made by an agency head to eliminate one or more positions in one or more organizational units within the agency due to budgetary limitations or organizational changes.

(13) "Suspension" means an enforced leave of absence without pay pending investigation of charges against an employee or for disciplinary purposes.

(14) "Temporary employee" means a full-time or part-time employee hired to fill a position for a period not to exceed six months or to fill a position requiring seasonal or intermittent work for no more than fifteen hundred hours during any twelve-month period.

Agency and departmental employee grievance plans, proper subjects for consideration under such plans, grievance appeals

Section 3. Agency and departmental employee grievance plans, proper subjects for consideration under such plans, grievance appeals. Each agency shall establish an agency employee grievance plan that shall be reduced to writing and submitted within ninety days of the effective date of this act for approval by the state personnel director. The provisions of the State Administrative Procedures Act shall apply in proceedings before the State Employee Grievance Committee. At other levels the State Administrative Procedures Act shall not apply but the grievant shall have the right to a representative, including counsel, and when a final decision is rendered it shall be given to the grievant in writing. If the grievant chooses to exercise the right to counsel, he shall do so at his own expense. A copy of the approved agency grievance plan shall be furnished to each employee of the agency concerned.

The plan shall provide that all administrative appeals of agency actions affecting an employee must be initiated internally by such employee within twenty-one calendar days of the effective date of the action and that the agency shall make a final decision on a grievance appeal within forty-five calendar days of the filing of the grievance by the employee. Failure by the agency to make a final decision on the appeal within forty-five calendar days after the filing of the grievance will be considered an adverse decision, and the employee may thereafter appeal to the State Employee Grievance Committee. The internal time periods of the agency grievance plan may be waived upon the mutual written agreement of both parties; provided, however, the forty-five calendar day period for action by the agency may not be waived except by mutual agreement if a court action is pending.

A state employee who wishes to appeal the decision of the agency grievance procedure to the State Employee Grievance Committee shall file a request for such an appeal within ten calendar days of receipt of the decision from the agency head or within fifty-fire calendar days after the employee files the grievance with the agency, whichever occurs first. The employee or his representative shall file the request in writing with the state personnel director. Failure to file an appeal with the state personnel director within ten calendar days of the agency's final decision or fifty-five calendar days from the initial appeal, whichever occurs first, shall constitute a waiver of the right to appeal.

No employee shall be disciplined or otherwise prejudiced in employment for exercising rights or testifying under the plan, and agency heads shall encourage the use of the plan in the resolution of grievances arising in the course of public employment. As used in this act, grievances shall include dismissals, suspensions, involuntary reassignments, and demotions. Promotions shall not be deemed grievances. However, where an allegation is made that the grievant was excluded from consideration for promotion to a position for which he was qualified when the promotional opportunity occurred, and the grievant applied or would have applied if he had known of the promotion opportunity, and the state personnel director determines that there is any material issue of fact or conclusion to be drawn from the facts of the allegation, then the promotion shall be deemed grievable.

Compensation shall not be deemed a proper subject for consideration under the grievance plan except as it applies to alleged inequities within a particular agency. A reduction in force shall be appealable by an affected employee under the grievance plan only if based on inconsistent or improper application of a reduction in force policy, procedure, or plan.

A permanent state employee shall have the right to appeal to the state personnel director any grievance involving the issues specified in this section after all administrative remedies to secure relief within the agency have been exhausted.

State Employee Grievance Committee, Committee Attorney

Section 4. State Employee Grievance Committee, Committee Attorney. There is hereby created the State Employee Grievance Committee constituted and appointed as hereinafter provided to serve as an administrative hearing body for state employee grievances. The committee shall consist of eighteen members who shall be appointed by the State Budget and Control Board to serve for terms of three years and until their successors are appointed and qualify; provided, however, that of those first appointed, six members shall be appointed for terms of one year each and six members shall be appointed for terms of two years each. All members of the committee shall be selected on a broadly representative basis from among the personnel of the various state agencies.

The committee shall annually elect a chairman and a secretary from among its members to serve for one-year terms. The chairman or a member designated by the chairman shall serve as the presiding officer at all hearings. In addition, the chairman shall have the power to divide the committee into panels of five members to sit at hearings. A quorum of any panel shall consist of at least four members.

Vacancies occurring for any reason other than expiration of a term shall be filled by the State Budget and Control Board in the same manner as the original appointments. Members may be reappointed for succeeding terms at the discretion of the State Budget and Control Board. The committee and the state personnel director may recommend to the Budget and Control Board that it promulgate such regulations as may be necessary to carry out the provisions of this act and the Board shall be authorized to promulgate these and other necessary regulations.

Committee members shall receive their normal pay for the time they are required to be away from their regular assignments. They shall be reimbursed as provided by law from funds appropriated to the Budget and Control Board for expenses, such as meals, lodging, and mileage, when using their personal automobiles, incurred in connection with the performance of necessary committee business.

Whenever a grievance before the committee is initiated by or involves an employee of an agency of which a committee member also is an employee, such member shall be disqualified from participating in the hearing.

The committee chairman or his designee shall conduct the grievance hearing in an equitable, orderly, and expeditious fashion. The committee chairman or his designee is authorized to administer oaths; to issue subpoenas for files, records, and papers deemed pertinent to any investigation; to call additional witnesses; and to subpoena witnesses at the request of either party. The Budget and Control Board shall be authorized to request assignment by the Attorney General of one or more of his staff attorneys admitted to practice law in South Carolina to serve in the capacity of committee attorney. If the Attorney General is not able to provide sufficient legal staff for this purpose, the Budget and Control Board, with the approval of the Attorney General, shall be authorized to secure other qualified attorneys to serve as committee counsel. The committee attorney shall determine the order and relevance of the testimony and the appearance of witnesses, and shall rule on all motions and all legal issues. The parties shall be bound by the decisions of the committee chairman or committee attorney insofar as such hearings are concerned.

At such hearings the employee and the agency may also be represented by counsel. During the course of the hearing the parties and witnesses shall respond to questions asked by the committee attorney or the committee members. Upon request of the presiding officer the committee attorney may assist the committee in the preparation of its findings of fact, statements of policy, and conclusions of law. The committee attorney may be present during the committee's deliberations on its decision only upon the request of the presiding officer. Within twenty calendar days of the conclusion of the hearing, the committee shall render its decision on the appeal. Such decision shall include the committee's findings of fact, statements of policy, and conclusions of law.

The committee may sustain, reject, or modify a grievance hearing decision of an agency except that in cases involving actual or threatened mental or physical abuse of a patient or inmate by an employee, the agency's decision shall not be altered or overruled by the committee, unless (1) the agency's findings of facts are not sustained by the committee, or (2) the committee finds that the agency's disciplinary action was not within its established personnel policies, procedures, and regulations, or (3) the committee finds that the agency's action was arbitrary or capricious.

The decision of the committee members shall be transmitted in writing to the employee and the employing agency and shall be final in terms of administrative review. Appeal from the final decision may be made by the employee to the court of common pleas of the county in which the employee's place of employment is located and, upon approval of the Board, the agency may also appeal to the court of common pleas of the county in which the employee's place of employment is located.

Administrative duties of State personnel director and State Personnel Division relating to the grievance hearing process

Section 5. Administrative duties of state personnel director and State Personnel Division relating to the grievance hearing process. When an appeal is filed with him, the state personnel director shall assemble all records, reports, and documentation of the earlier proceedings on the grievance and review the case to ascertain that there has been full compliance with established grievance policies, procedures, and regulations within the agency involved and shall determine whether the action is grievable to the committee. If he determines that the action is grievable, he shall forward the appeal and allied documents to the chairman of the committee, or his designee, and to the committee attorney after the mediation process has been completed. The state personnel director shall notify committee members, the committee attorney, and all other parties concerned of the date, time, and place of grievance hearings and request their presence.

The state personnel director shall arrange for the reproduction of pertinent records and papers and distribute copies to the members of the committee that will hear the grievance and to the committee attorney prior to the date of the hearing. The state personnel director shall be responsible for recording the grievance hearings, and shall provide to the committee from the resources of the State Personnel Division such administrative and clerical services as may be required.

State personnel director resolution of grievance appeals

Section 6. State personnel director resolution of grievance appeals. Once an appeal has been made to the state personnel director and has been determined to be appealable to the committee, but prior to forwarding the case to the committee, the state personnel director or his designee shall review the record of the internal grievance process and shall schedule appointments to discuss the grievance separately with the employee or his representative, or both, and representatives of the agency to attempt to resolve the matter. If an agreement between the two parties is not reached, the state personnel director or his designee shall present tentative findings and recommendations to both parties for resolution of the grievance appeal. Each party shall submit a written response within ten calendar days setting forth acceptance or rejection of the recommendations. Any discussions by any of the parties concerned during the mediation process shall be kept confidential and shall not be used or referred to during subsequent proceedings on the appeal.

In an attempt to resolve grievances at the lowest level, the state personnel director may be requested by the agency, during its internal appeal and before the final decision is rendered ,by the agency, to mediate the matter. If so requested by an agency, the mediation procedure herein provided shall be followed. In the event the mediation does not resolve the matter, the agency shall make its final decision in accordance with its internal grievance procedure.

Exemptions

Section 7. Exemptions. The provisions of this act shall not apply to :

1. Members, officers, or employees of the General Assembly;

2. Employees within the Office of the Governor who work at the mansion or in the State House or those employees appointed by the Governor to serve at or above the organizational level of assistant directors of the individual program components;

3. Elected public officials of this State or persons appointed to fill vacancies in such offices;

4. Supreme Court Justices, circuit court judges, referees, receivers, magistrates, jurors, or masters-in-equity;

5. Members of state boards, commissions, councils, advisory councils, or committees compensated on a per diem basis;

6. Inmate help in any charitable, penal, or correctional institution; residents of rehabilitation facilities; or students employed in institutions of learning;

7. Part-time professional personnel engaged in consultant or contractual services without administrative duties or who are temporary employees;

8. Any chief administrative officer who has the authority and responsibility for any agency within state government including the divisions of the Budget and Control Board;

9. Employees of the Public Service Authority, State Ports Authority, or the Public Railways Commission;

10. Teaching or research faculty, professional librarians, academic administrators, or other persons holding faculty appointments at any post-secondary educational institution, including branch campuses, if any, as defined in Section 59-107-10 of the 1976 Code, except the technical education colleges and centers provided for therein.

Grievance and performance appraisal procedure for academic employees

Section 8. Grievance and performance appraisal procedure for academic employees. With respect to the teaching and research faculty, professional librarians, academic administrators, and all other persons holding faculty appointments at any post-secondary educational institutions described in item (10) of Section 7, each such institution, subject to the approval of the State Budget and Control Board or its designee and the Commission on Higher Education, shall establish in writing:

(a) A performance appraisal procedure which shall assure:

(1) annual review and evaluation of such employees;

(2) written findings;

(3) review of evaluations with each covered employee;

(4) retention of performance appraisals and written comments of such employee, if any, in a permanent file with right of full disclosure to the employee.

(b) A grievance procedure which shall at an appropriate stage provide a hearing for such employees before an individual or committee designated for such purposes, at which the employee shall have the right to representation by counsel and the opportunity to present evidence in his behalf. Any such procedure shall include the right of the employee to appeal the post-hearing decision to the governing board of the institution, or a committee designated by the board for this purpose, such appeal to be limited to the record of the hearing. Discrimination in compensation, promotion, and work assignment shall be subjects for consideration by such grievance procedure. Dismissal of tenured or other permanent employees and dismissal prior to the end of an employment contract term shall be only for cause, and shall be subject for consideration by such grievance procedure. The granting or the failure to grant tenured status to such employees or nonrenewal of employment contracts at the end of the contract term shall not be subjects for consideration by such grievance procedure.

The grievance and performance appraisal procedure provided for herein shall be submitted to the State Budget and Control Board or its designee and the Commission on Higher Education for approval within six months after the establishment of any new institution.

Analysis lines

Section 9. Analysis lines. The analysis lines which are included after each section of this act are included for informational purposes only and shall not be deemed to be part of the sections themselves.

Repeal

Section 10. Repeal. Article 1, Chapter 17, Title 8 of the 1976 Code, Act 1025 of 1974, Act 154 of 1977, Act 471 of 1978, Section 44 of Part II of Act 644 of 1978, Act 435 of 1980 and Act 68 of 1981 are repealed.

Time effective

Section 11. This act shall take effect upon the approval by the Governor.