Md. Code Regs. 11.02.08.10

Current through Register Vol. 51, No. 10, May 17, 2024

Section 11.02.08.10 - Appeal Procedure

A. A Career Service employee may appeal an Official Written Reprimand, Suspension without Pay, Loss of Leave, Involuntary Demotion, Suspension pending charges for Termination, Charges for Termination, and Rejection on Promotional Probation, in writing, to the Secretary or the Secretary's designee within 15 days of receipt of the written notice.

B. If an employee does not appeal the action within the specified time frames, the action is final.

C. Filing an Appeal.

(1) An appeal is considered filed on the date the appeal is received by the Secretary or the Secretary's designee.

(2) The employee shall include with the appeal, the reason for the appeal, the requested remedy, and a copy of the notice of disciplinary action, with any documentation that was attached.

(3) A copy of the appeal shall be forwarded to the Appointing Authority.

D. Settlement Conference.

(1) The Secretary or the Secretary's designee will schedule a settlement conference within 30 days from the receipt of the written appeal. The Secretary or the Secretary's designee shall send written notice of a settlement conference to the parties by mail or facsimile.

(2) The settlement conference notice shall contain:

(a) The date, time, place, and the nature of the conference;

(b) A statement that notice must be received 3 business days before the conference date if special arrangements are needed to accommodate an individual with a disability;

(c) A statement that notice must be received 3 business days before the conference date if an interpreter is needed; and

(d) A statement that failure to participate in good faith or to attend a conference may result in a decision adverse to a party.

(3) A party or a designated representative shall be present for all scheduled settlement conferences.

(4) If a designated representative participates in a settlement conference instead of a party, the designated representative shall have the authority to negotiate or settle the matter appealed.

(5) The designation of the representative shall be in writing.

(6) If neither the employee nor the designated representative appears at the scheduled settlement conference, the action is final.

(7) When the employee's designated representative is another State employee, the appointing authority of the designated representative shall assure that the designated representative is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal. An employee may not leave the employee's post of duty to represent another employee at a grievance appeal or a disciplinary appeal conference or hearing without permission from the employee's supervisor.

(8) The appointing authority shall assure that the employee is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal.

(9) At the exclusive discretion of the Secretary or the Secretary's designee, a settlement conference may be conducted by telephone, video, or other electronic means if each party has an opportunity to participate in the entire proceeding. Except as authorized by the Secretary or the Secretary's designee, documents for a telephone, video, or electronic conference shall be received by the Secretary or the Secretary's designee and each party at least 3 business days before the scheduled conference.

(10) If an agreement is not reached during the settlement conference, the employee shall have 15 days from the date of the settlement conference to appeal, in writing, to the Office of Administrative Hearings, with a copy to the Secretary or the Secretary's designee.

E. Postponement of a Settlement Conference.

(1) The Secretary or the Secretary's designee shall only consider a postponement of a settlement conference:

(a) If the requesting party provides a written request 3 business days before the scheduled conference and establishes good cause for the postponement;

(b) In the case of an emergency as defined in §E(3)of this regulation; or

(c)Under unusual circumstances as determined by the Secretary or the Secretary's designee.

(2) The Secretary or the Secretary's designee may require documentation of the reasons for the postponement from the party requesting the postponement.

(3) Emergency postponements are granted only when the emergency is a sudden, unforeseen occurrence requiring the immediate attention of the requesting party.

(4) If the postponement is requested due to a medical emergency, the party requesting the postponement shall submit written medical documentation by one of the medical providers specified in COMAR 11.02.03.07G(6). Failure to provide the required documentation may result in a decision adverse to the requesting party.

F. Appeal Hearing.

(1) Official Written Reprimand, Suspension without Pay, Loss of Leave, Involuntary Demotion, Charges for Termination, and Rejection on Promotional Probation. An administrative law judge of the Office of Administrative Hearings shall hear the appeal within 90 days and shall render a final decision within 45 days of the hearing.

(2) Suspension Pending Charges for Termination.

(a) An administrative law judge of the Office of Administrative Hearings shall hear the appeal within 45 days, at which time the employee may:

(i) Rebut the reasons given for the suspension;

(ii) Allege mitigating circumstances; and

(iii) Offer alternatives to the suspension.

(b) The administrative law judge shall issue a final decision within 15 days of the hearing.

G. Representation. An employee may be represented at a grievance hearing or appeal hearing by an attorney, an employee organization representative, or any other individual authorized, in writing, by the employee to represent him or her.

H. Compensation for Representatives and Witnesses.

(1) An employee may not lose salary or wages, including overtime and shift differential payments, for investigating, processing, or testifying during any step of the grievance procedure or appeal hearing.

(2) Attendance at a hearing is considered work time, and the appointing authority or the appointing authority's designee shall ensure that an employee who is required to attend a grievance hearing or an appeal hearing receivessalary or wages.

I. Leaving Duty Post. An employee may not leave the employee's duty post to engage in grievance handling or to pursue an appeal without the permission of the employee's supervisor.

J. Payment of Travel Expenses. The appointing authority or the appointing authority's designee shall pay travel expenses, as set forth in COMAR 23.02.01, incurred by its employees in connection with attendance at grievance or appeal hearings.

K. Burden of Proof.

(1) Decisions shall be based upon a preponderance of the evidence.

(2) The appointing authority or the appointing authority's designee bears the burden of proof in the following cases:

(a) Disciplinary cases involving a Career Service employee;

(b) Appeal of a less than Meets Standards performance appraisal rating; and

(c) Appeal of a denial of a salary increase due to a performance appraisal rating.

(3) The employee bears the burden of proof in the following cases:

(a) Grievance hearings, except for appeal of a less than Meets Standards performance appraisal rating and denial of salary increase due to performance appraisal rating;

(b) Rejection of employee on probation as set forth in COMAR 11.02.02.05A;

(c) Rejection of employee on probation as set forth in COMAR 11.02.02.05C;

(d) Disqualification from future employment of a Career Service employee;

(e) Discipline or termination of a Commission Plan employee or Executive Service employee; and

(f) Rejection on probation of a police officer serving an initial probationary period as a police officer.

L. An aggrieved party may seek judicial review of the final decision in accordance with the provisions of the Administrative Procedure Act, State Government Article, § 10-222, Annotated Code of Maryland.

Md. Code Regs. 11.02.08.10

Regulation .10 amended effective September 12, 1994 (21:18 Md. R. 1509); April 20, 2009 (36:8 Md. R. 596)
Regulation .10C amended effective August 30, 1993 (20:17 Md. R. 1346)