S.C. Code Regs. § 19-718.07

Current through Register Vol. 48, No. 5, May 24, 2024

Section 19-718.07 - APPEALS FORWARDED TO THE STATE EMPLOYEE GRIEVANCE COMMITTEE

A. If a resolution through mediation as required by Regulation Regulation 19-718.06 of the State Human Resources Regulations cannot be accomplished, the State Human Resources Director shall forward the appeal to the designated Committee panel of the Committee.

B. No more than three representatives, including legal counsel and the covered employee, may be designated by either party to be present during Committee hearings.

C. Witnesses

1. Notice--After an appeal has been determined to be appealable to the Committee and has been placed on the Committee's docket, the covered employee and the agency, or their designated representatives, shall exchange witness lists which must be received by the other party no later than five calendar days prior to the hearing. The postponement of a hearing does not reinstate any time frame that has already elapsed at the time of the request to reschedule. Witness lists which have not been exchanged as required by this provision and witnesses not included on a properly exchanged list will be excluded at the hearing unless the Committee finds that there has been excusable neglect or that the witness(es) should be admitted in the furtherance of justice.

2. Character Witnesses--No more than two character witnesses for each side will be permitted to testify before the Committee when evidence of character is relevant to the issues. A character witness is defined as a witness offered solely for the purpose of presenting testimony which bears on the positive or negative general character of the covered employee, i.e., the covered employee's reputation for truthfulness, peaceful or violent manner, or other considerations of character which have a bearing on the matter before the Committee.

3. Subpoenas--Only the Committee Chairman or his designee is authorized to issue subpoenas for witnesses at the request of either party. In the event that either party in a case has difficulty in obtaining a witness's agreement to testify, such party must request in writing the issuance of a subpoena which must be received by OHR no later than ten calendar days before the date of the hearing. The postponement of a hearing does not reinstate any time frame that has already elapsed at the time of the request to reschedule. The request for a subpoena must include the name of the witness. The service of the subpoena is the responsibility of the requesting party. When any person fails to comply with a subpoena, the requesting party is responsible for the pursuance and cost of any judicial enforcement of that subpoena. Any reasonable expenses incurred by a subpoenaed witness shall be paid by the requesting party.

4. Sequestration of Witnesses--Witnesses other than representatives that will be witnesses shall be sequestered and shall not be in the hearing room except for preliminary comments, the Committee's opening statement, and that witness's testimony in a public hearing or a hearing held in executive session.

5. Depositions de bene esse--The testimony of a witness may be submitted into evidence in the form of a deposition de bene esse when the attendance of the witness whose testimony is required cannot be had (a) by reason of (i) extreme age, (ii) sickness or infirmity, or (iii) indispensable absence on public official duty, (b) as a result of verification of his intended absence from the State before the appeal can be heard by the designated Committee panel, or (c) when such witness may be without the limits of the State. If the parties cannot agree to the use of a deposition de bene esse, the party desiring to submit the deposition de bene esse may request permission from the Committee Chairman or his designee and the Committee Attorney to submit the deposition de bene esse. The party opposing the submission will be permitted an opportunity to respond to the request. The request and the response may be made either in writing before or verbally at the hearing. When the parties agree upon, or a party's request is granted for the use of, a deposition de bene esse, notice must be exchanged as to the time of the deposition de bene esse to allow all interested parties to attend and participate. No other types of depositions, including discovery depositions, are permitted.

D. Documents

1. Submission to OHR and Exchange by the Parties--Any records, reports, and documentation submitted by either party to be forwarded to the Committee prior to the hearing must be received by OHR no later than 15 calendar days prior to the hearing. The postponement of a hearing does not reinstate any time frame that has already elapsed at the time of the request to reschedule. Those documents submitted by both parties will be provided by OHR to committee members prior to the hearings and considered to be the record during the hearing and marked into evidence as Committee Exhibit I. Each covered employee granted a hearing before the Committee will receive a copy of the records, reports, and documentation submitted by the agency. In like manner, a copy of any records, reports, and documentation filed by a covered employee will be sent to the agency.

2. Subpoenas--Only the Committee Chairman or his designee is authorized to issue subpoenas for files, records, and documentation on the grievance at the request of either party. In the event that either party in a case has difficulty in obtaining the production of files, records, and documentation on the grievance, such party must request in writing the issuance of a subpoena which must be received by OHR no later than ten calendar days before the date of the hearing. The postponement of a hearing does not reinstate any time frame that has already elapsed at the time of the request to reschedule. The request for a subpoena must include a description sufficiently specific to identify the documents in question and the name of the custodian of the documents in question. The service of the subpoena is the responsibility of the requesting party. When any person fails to comply with a subpoena, the requesting party is responsible for the pursuance and cost of any judicial enforcement of that subpoena. Any reasonable expenses incurred in the production of the documents shall be paid by the requesting party. Subpoenaed documents shall be received by the requesting party no later than five calendar days prior to the hearing.

3. Committee Exhibit I

a. The State Human Resources Director shall arrange for the reproduction of records, reports, and documentation timely submitted by both parties and make this information available, prior to the date of the hearing, to the designated Committee panel and Committee Attorney for that hearing.

b. The documents transmitted by the State Human Resources Director to the designated Committee panel and Committee Attorney must be marked into evidence as "Committee Exhibit I" during the Committee Chairman's opening statement at the beginning of the hearing unless excluded by the Committee Attorney based on a prior objection raised by either party.

E. Panel Hearings

1. Scheduling and Notice--The State Human Resources Director shall establish a date, time, and place for the hearing of each appeal and provide reasonable notice to the covered employee, agency, designated Committee panel, and Committee Attorney. Prior to the commencement of the hearing, the State Human Resources Director has the authority to grant a postponement based upon extenuating circumstances such as illness or death.

2. Executive Session Hearings--All hearings before the State Employee Grievance Committee shall be in executive session unless the employee requests a public hearing in accordance with the Freedom of Information Act prior to the designated Committee panel voting to go into executive session. If the hearing is held in executive session, only the designated Committee panel, the parties involved in a hearing, the Committee Attorney, and persons approved by the designated Committee Chairman may attend.

3. Committee Members

a. The Committee shall consist of at least 18 and not more than 24 members who must be appointed by the Budget and Control Board in accordance with the Act.

b. The State Human Resources Director may divide the Committee into panels of five members to sit at hearings and designate a member to serve as the presiding officer and a member to serve as secretary at all panel hearings.

c. A chairman shall be elected from the membership of the Committee each year after approval of membership of new members by the Budget and Control Board. A meeting for election of a chairman shall be held as soon as practicable after appointments are made.

d. A quorum of a panel shall consist of at least three Committee members. No hearings may be conducted without a quorum.

e. Whenever an appeal before the Committee is initiated by or involves an employee of an agency of which a Committee member also is an employee or involves another impermissible conflict of interest, the Committee member is disqualified from participating in the hearing.

4. Committee Attorney

a. The Budget and Control Board is 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 due to an impermissible conflict of interest, the Budget and Control Board, with the approval of the Attorney General, is authorized to secure other qualified attorneys to serve as Committee Attorney.

b. 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.

5. Continuances and Postponements

a. Panel hearings will be conducted on the date and at the time scheduled unless the Committee, acting collectively or through its designated Committee Chairman, upon commencement of a hearing, grants a postponement based upon extenuating circumstances.

b. Each covered employee is entitled to representation at the panel hearing and either the covered employee or his representative must attend. If neither the covered employee nor his representative attend the panel hearing, the covered employee is deemed to have waived his rights to pursue the appeal further unless there is reasonable justification for the failure to attend the panel hearing. The State Human Resources Director shall determine whether or not reasonable justification exists based on documents submitted by the party on this issue and based on other information available relating to the panel hearing. Documents submitted by the party on the issue of reasonable justification must be received by OHR no later than 14 calendar days from the date of the scheduled panel hearing. Denial of reasonable justification by the State Human Resources Director concludes the processing of the covered employee's appeal.

c. If the agency fails to appear at the panel hearing without reasonable justification, the designated Committee panel will base its decision on a review of Committee Exhibit I and a presentation of the case by the covered employee.

6. Administrative Assistance, Recordings of Hearings, and Transcripts

a. The State Human Resources Director shall provide to the Committee from the resources of OHR such administrative and clerical services as may be required.

b. All proceedings before the Committee shall be recorded by OHR. The recording shall be preserved in accordance with the retention schedule of OHR.

c. The covered employee or the agency who first files the notice of appeal seeking appellate review of a Committee decision is responsible for preparation of a transcript and paying the costs of preparation of a transcript of the hearing required for certification of the record to the Administrative Law Court. In addition, the appealing party is responsible for all costs associated with providing the record on appeal for the Administrative Law Court.

7. Submission of Witness and Representative Lists to Committee--At the beginning of the hearing, each party shall provide to the secretary of the designated Committee panel a list of representatives and witnesses. Representatives who will testify must be listed as both a representative and a witness. Witness lists which have not been exchanged as required by Regulation Regulation 19-718.07 C. 1. of the State Human Resources Regulations and witnesses not included on a properly exchanged list will be excluded at the hearing unless the Committee finds that there has been excusable neglect or that the witness(es) should be admitted in the furtherance of justice.

8. Conduct of Hearings--The presiding Committee Chairman shall conduct the grievance hearing in an equitable, orderly, and expeditious fashion. The Committee will give effect to rules of privilege recognized by law. The parties shall be bound by the decisions of the presiding officer or Committee Attorney insofar as such hearings are concerned.

9. Opening Statements and Order of Presentation of the Case

a. The designated Committee Chairman shall open the hearing by explaining the procedures to be followed in the hearing.

b. Each party shall be given an opportunity to make an opening statement.

c. The covered employee shall present his case first, followed by the agency.

10. Direct and Cross Examinations

a. The testimony of witnesses shall be under oath or affirmation.

b. Each party shall have the right to examine and cross-examine witnesses, as appropriate.

c. The designated Committee Chairman, the Committee Attorney, or any member of the designated Committee panel may direct questions to any party or witness at any time during the proceedings.

d. Each party may object to testimony, questions, or documents.

11. Evidentiary Matters--Evidentiary matters as governed by the South Carolina Administrative Procedures Act will apply in hearings before the Committee.

12. Interpretations from OHR--The designated Committee Chairman of a designated Committee panel may request information or assistance in interpretations of rules and regulations from the State Human Resources Director.

13. Closing Statement

a. Before closing the hearing, the designated Committee Chairman shall allow the parties to make a closing statement.

b. The covered employee will have the option of closing first or last.

F. Written Committee Decisions

1. The designated Committee panel shall retire into a separate executive session, without the parties present, to receive legal advice from the Committee Attorney and consider the evidence. The Committee Attorney may be present during the Committee's deliberations on its decision only upon the request of the designated Committee Chairman. No vote by the designated Committee panel may be taken in executive session.

2. The vote of each member of the designated Committee panel on the merits of the appeal shall be recorded.

3. Decisions of the Committee shall be determined by a simple majority of those members who heard the appeal.

4. Within 20 calendar days of the conclusion of the hearing, the designated Committee panel shall make its final written decision.

5. The final decision of the Committee as it relates to an appeal shall include the (1) findings of fact, (2) statements of policy and conclusions of law, and (3) the Committee's decision.

6. As governed by the provisions of the Act, the Committee may sustain, reject, or modify a grievance hearing decision of an agency.

7. Any member agreeing with the majority decision but differing with the rationale may prepare a concurring decision. Any member voting in the minority may prepare a dissenting opinion.

8. The Committee Attorney or the attorney for OHR or both may assist the Committee in the preparation of its findings of fact, statements of policy, and conclusions of law.

9. The decision of the Committee shall be transmitted to the State Human Resources Director for notification of the covered employee and the employing agency or their representatives.

10. As a result of this final written decision, either the covered employee or the agency may request reconsideration within 30 calendar days from receipt of the decision.

11. The designated Committee panel shall request assistance from the Committee Attorney or the attorney for OHR or both in the preparation of a written response to a request for reconsideration.

12. If no request for reconsideration is made or when a response is made to a request for reconsideration, the Committee decision is final in terms of administrative review.

S.C. Code Regs. 19-718.07

Added by State Register Volume 26, Issue No. 1, eff January 25, 2002. Amended by State Register Volume 34, Issue No. 5, eff May 28, 2010.