Loading...
HomeMy Public PortalAbout1991_09_10_O040 Amending the TC regarding grievance proceduresThe Town of Leesburg, Virginia ORDINANCE NO. AN ORDINANCE: PRESENTED September 10~ 1991 91-0-40 ADOPTED September 10, 1991 AMENDING CHAPTER 12.1, ARTICLE 21, OF THE LEESBURG TOWN CODE OF THE TOWN OF LEESBURG PERSONNEL MANUAL REGARDING GRIEVANCE PROCEDURE WHEREAS, the 1991 Virginia General Assembly adopted an act to amend and re-enact Sections 15.1-7.1 and 15.1-7.2 of the 1950 Code of Virginia, as amended, relating to local government grievance procedures; and WHEREAS, the Town of Leesburg is required to adopt the enclosed amendments to Article 21 of the town's personnel manual no later than October 1, 1991; and WHEREAS, the enclosed amendments have been reviewed and recommended for adoption by the Deputy Town Attorney; and WHEREAS, the Administration and Public Works Committee of the Town Council reviewed the amendments on September 3, 1991. THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Chapter 12.1 of the Leesburg Town Code, Article 21 of the Town of Leesburg Personnel Manual is hereby amended to read as follows: ARTICLE 21 GRIEVANCE PROCEDURE Sec. 12.1-53. Intent and Application (a) For the purposes of this grievance procedure, a grievance shall be construed as a complaint or dispute by an employee relating to his or her employment, including, but not necessarily limited to: (1) disciplinary actions invol:4ng including dismissals, demotions, and suspensions provided that dismissals shall be grievable whenever resulting from formal discipline or unsatisfactory job performance; (2) c concerns regarding the application, meaning or interpretation of these personnel policies, procedures, rules, regulations, ordinances and statutes; (3) acts of reprisal as the result of utilization of the grievance procedure or participation in the grievance of another town employee; (4) complaints of discrimination on the basis of race, color, creed, sex, handicap, disability, age, national origin or political affiliation; and (5) reprisal on the part of the town as a result of an employee's participation in the grievance of another employee; (6) acts of retaliation because the employee has complied with any law of the United States or the Commonwealth has reported any violation of such law to a governmental authori .ty, or has sought any change in law before the Congress of the United States or the governmental authority. (b) Complaints are not ga%vable where they involve: (1) establishment and revision of wages ORDINANCE: AMENDING ARTICLE 21 OF THE TOWN CODE REGARDING GRIEVANCE PROCEDURE or salaries, position classifications or general benefits; (2) work activity accepted by the employee as a condition of employment or work activity which may be reasonably expected to be a part of the job content, however the measurement and assessment of work activity through a performance evaluation shall not be grievable except where the employee can show that the evaluation was arbitrary or capricious; (3) the contents or ordinances, these rules, or other established procedures and regulations; (4) failure to promote except where the employee can show established promotional policies or procedures were not followed or applied fairly; (5) the methods, means and personnel by which such work activities are to be carried on; (6) except where such action affects an employee who has been reinstated within the previous six months as the result of the final determination of a grievance, discharge, layoff, demotion, or suspension from duties because of lack of work, reduction in work force, or job abolition; (7) the hiring, promotion, transfer, assignment and retention of employees within the agency (provided such actions do not constitute disciplinary actions); or (8) the relief from normal duties in emergencies. In any grievance brought under the exception to Section 12.1-53 (b) (6), the action shall be upheld upon a showing by the town that; (1) there was a valid business reason for the action, and (2) the employee was notified of such reason in writing prior to the effective date of the action. (c) Questions of grievability shall be resolved by the Town Manager. When either the town or the grievant so requests, the Town Manager shall decide, within (5) work days of the request, whether or not a matter is grievable. The decision of grievability shall be made subsequent to the reduction of the grievance to writing but prior to the panel hearing and a copy of the decisions shall be sent to the grievant. The issue of grievability shall be decided prior to the panel hearing or it shall be deemed to be waived. Decisions of the Town Manager concerning the issue of grievability may be appealed to the Loudoun County Circuit Court for a hearing de novo on the issue of grievability. Proceeding for review of the decision of the Town Manager shall be instituted by filing a notice of appeal with the Town Manager within five (5) work days of the date of the decision. Within five (5) work days thereafter, the Town Manager shall transmit to the clerk of the Circuit court a copy of his decision, a copy of the notice of appeal, and the exhibits, with copies to the grievant. Within thirty (30) days of receipt by the clerk of such records, the Court, sitting without a jury, shall hear the appeal on the record transmitted by the Town Manager and any additional evidence as may be necessary to resolve any controversy as to the correctness of the record. The Court may affirm the decision of the Town Manager or may reverse or modify the decision. The decision of the Court is final and not appealable. (d) This grievance procedure shall apply only to the following persons, positions, and categories of positions: (1) Career service employees with the exception of the Clerk of Council. (2) Uniformed police officers except those who elect to resolve grievances in accordance with Section 12.1-56:1 et seq. of this article. (3) Any citizen grievance based on alleged violation of federal, state or local "handicapped discrimination" laws governed by Sec. 12.1-54, (c), (d), (e), (fl of Article 21. Sec. 12.1-54. Procedure. (a) Step 1. The grievant shall verbally present the facts surrounding the grievance to his immediate supervisor within thirty (30) days of the grievance or dispute occurred. The supervisor shall render his decision to the grievant within five (5) working days from the day the grievance was presented. (b) Step 2. If the g~Sevance is not resolved in Step 1, the employee shall reduce the grievance ORDINANCE: AMENDING ARTICLE 21 OF THE TOWN CODE REGARDING GRIEVANCE PROCEDURE to writing within five (5) days and present it to the appropriate department head. It shall include a statement of the grievance and the facts involved, alleged violation of these rules, the initial decision of the immediate supervisor and the remedy requested by the grievant. Within five (5) days the department head shall arrange a meeting with the grievant and his immediate supervisor where applicable to review the facts and shall notify the grievant of his decision in writing within three working days of such meeting. Step 2 and Step 3 shall be waived if the Town Manager serves as the grievant's immediate supervisor. (c) Step 3. If the grievance is not resolved in Step 2, the grievant may ask the Town Manager for a meeting to discuss the grievance further. Such request must be made within five (5) working days following receipt of the Department head's reply. Such meeting shall be held within two working days of the date of the request and shall be attended by the grievant, such representatives as he may select, the Department Head and the immediate supervisor. If the grievant is represented by legal counsel, management likewise has the option of being represented by counsel. The Town Manager shall provide a written decision to the grievant with a copy to all other attendees, within three working days of the date of the meeting. This section shall not be construed as limiting the Town Manager's authority to require additional meetings with only the grievant present to discuss matters pertaining to the grievance. Witness may be called on either side and shall be present only while providing testimony. (d) Step 4. If the Town Manager's decision does not resolve the grievance, the grievant may proceed by requesting a panel hearing with the Board of Grievance Commissioners. Such a request must be received by the board within seven (7) working days of the grievant's receipt of the Town Manager's decision. (e) After the initial filing of a written grievance, failure of either party to comply with all substantial procedural requirements without just cause will result in a decision in favor of the other party on any grievable issue, provided the party not in compliance fails to correct the noncompliance within five (5) work days of receipt of written notification of the compliance violation. Such written notification by the grievant shall be made to the Town Manager. Failure of either party without just cause to comply with all substantial procedural requirements at the panel hearing shall result in a decision in favor of the other party. Town Manager may require a clear explanation of the basis for just cause extensions or exceptions. The Town Manager shall determine the compliance issues. Compliance determinations made by the Town Manager shall be left to judicial review by filing a petition with the Circuit Court within 30 days of the compliance determination. Sec. 12.1-55. Board of Grievance Commissioners The Board of Grievance Commissioners is hereby created. (a) Organization. The Board of Grievance Commissioners shall consist of 12 members who shall be annually appointed by the Town Council, based upon the following. (~) Six members shall be selected from full-time, non-supervisory town employees, evenly divided between office and outside personnel. (2) Three members shall be selected from among full-time supervisory town employees excluding the Town Manager and Clerk of Council. (3) Three members shall be selected from town residents of responsible character and not employed by the town. (4) Vacancies on the commission created by resignation or ineligibility shall be filled for the unexpired term in accordance with the above criteria. ORDINANCE: AMENDING ARTICLE 21 OF THE TOWN CODE REGARDING GRIEVANCE PROCEDURE (b) Panel Selection. The panel shall be composed of three members chosen from among the Board of Grievance Commissioners as follows: (1) A member shall be selected by the Town Manager. (2) A member shall be selected by the Grievant. (3) The remaining member shall be selected by the first two appointments. (4) The following relatives of a participant in the grievance process or a participant's spouse are prohibited from serving as panel members: Spouse, parent, child, descendants of a child, sibling, niece, nephew and first cousin. No attorney having direct involvement with the subject manner of the grievance, nor a partner, associate, employee or co-employee of such an attorney shall serve as a panel member. (5) Refusal to serve on a panel without cause shall be construed as resignation from the commission. None of the commissioners selected to form the panel to hear the specific grievance may have been involved in an earlier phase of said grievance. (c) Conduct of Investigation (1) The panel member appointed pursuant Sec. 12.1-55 (b) (3) shall be the chairperson of the panel and the panel shall establish a hearing date no more than ten working days from receipt of the grievance. (2) The grievant may have a representative or legal counsel present at this meeting at his own expense. (3) The Personnel Director shall insure that all copies of written correspondence generated and related to the grievance and the grievance record are delivered to the panel prior to the hearing. The Personnel Director shall provide to the grievant a list of the documents furnished to the pane]. The grievant and his attorney shall be allowed access to and copies of the relevant files introduced to be used in the grievance procedure. (4) The panel shall determine the propriety of attendance at the hearing of persons not having a direct interest in the hearing. (5) The panel may at the beginning of the hearing ask for a statement clarifying the issues involved. (6) Exhibits, when offered, may be received in evidence by the panel, and when so received, shall be marked and made part of the record. (7) The grievant and Town Manager, or their representative, shall then present their claim and proofs and witnesses who shall submit to questions or other examinations. The panel m.%', ~+ ;+o a; .... +; ....... +~; ...... ~ .... shall have the authority to determine the admission of evidence without regard to the burden of proof or the order of presentation of evidence, but shall afford full equal opportunity to all parties ORDINANCE: AMENDING ARTICLE 21 OF THE TOWN CODE REGARDING GRIEVANCE PROCEDURE and witnesses for presentation of any material or relevant proofs. Documents, exhibits and lists of witnesses must be exchanged between the parties in advance of the hearing. Parties may offer evidence and shall produce such additional evidence as the panel may deem necessary to an understanding and determination of the dispute. The panel shall be the judge of relevancy and materiality of the evidence offered. All evidence shall be taken in the presence of the panel and of the parties, except by mutual consent. (10) The Panel Chairman shall specifically inquire of all parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies, the Chairman shall declare the hearing closed. All representatives may examine, cross examine, question and present evidence at the hearing. (11) The panel hearing may be reopened on its own motion or upon alligation of either party which demonstrates that additional information or evidence is available of a significant value to effect a forthcoming decision. The majority panel's decision shall be in writing and signed by the chairman and filed with the Town Manager not later than 15 working days following the completion of the first panel hearing. Copies of the decision shall be transmitted to all hearing attendees and the Town Council. (d) Powers. (1) The panel is vested with the responsibility and authority to interpret the application of these rules as they relate to each specific case before them. However, it is not empowered to change said rules. (2) The majority decision of the panel shall be final and binding in all of its determinations, and shall be consistent with the provisions of law and written policies. The Manager shall enforce all decisions of the panel and the grievant may petition the circuit court for implementation of the panel's decision if the manager fails to act on the panel's decision. Sec. 12.1-56. General Rights of Management. The grievance procedure established herein shall not circumscribe or modify the existing right of the Town to do the following, provided, however, that none of these rights may be exercised in an arbitrary or capricious manner: (1) Direct the work of its employees, as well as establish and revise wages, salaries, positions classifications, and general employee benefits; (2) Hire, promote, transfer, assign, and retain employees in positions within the town; (3) Relieve employees from duties of the town in emergencies; (4) Maintain the efficiency of governmental operations; (5) Determine the methods, means and personnel by which operations are to be carried ORDINANCE: AMENDING ARTICLE 21 OF THE TOWN CODE REGARDING GRIEVANCE PROCEDURE on; (6) Establish and revise personnel policies as provided by law and these rules. Sec. 12.1-56.1. Police Investigation Procedure. Whenever an investigation by the town focuses on matters which could lead to the dismissal, demotion, suspension or transfer for punitive reasons of a uniformed police officer, the following conditions shall apply: (a) Any questioning of the police officer shall take place at a reasonable time and place as designated by the investigating officer or individual, preferably when the officer under investigation is on duty, unless circumstances dictate otherwise. (b) Prior to the officer being questioned, he or she shall be informed of the name and rank of the investigating officer, if applicable, and of any individual to be present during the questioning and the nature of the investigation. Sec. 12.1-56.2. Notice of Charges. Before any dismissal, demotion, suspension without pay or transfer for punitive reasons is imposed, the town shall provide the officer under investigation a statement in writing of the charges, the basis therefore, the action which may be taken, and an opportunity to respond to the charges, the basis therefore, the action which may be taken, and an opportunity to respond to the charges, both orally and in writing, within five (5) calendar days. In preparing his or her response, the officer may be assisted by counsel at his or hew own expenses. Sec. 12.1-56.3. Hearing. Whenever a police officer is dismissed, demoted, suspended or transferred for punitive reasons, he or she may, within five calendar days, request a hearing. At the hearing, the officer and the town shall be afforded the opportunity to present evidence and examine and cross-examine the witnesses. The town and the officer may both be represented by counsel. The panel conducting the hearing shall rule on the admissibility of the evidence and a record shall be made of the hearing. Sec. 12.1-56.4. Panel Composition. The hearing panel shall consist of one member from the career officers of the town police department not involved in the investigation selected by the grievant officer, one member from the career officers of the town police department not involved in the investigation, at the same or no more than two ranks above the grievant officer, selected by the Town Manager, and a third member from the town's career service excluding the police department selected by the first two members. Sec. 12.1-56.5. Immediate Suspension Authorized. Nothing in this article shall prevent the immediate suspension without pay of any police officer whose continued presence on the job is deemed to be a substantial and immediate threat to the welfare of the town, nor shall anything in this article prevent the suspension of a police officer for refusing to obey a direct order issued in conformance with the town's written and disseminated rules and regulations. In such case, the police officer shall, upon request, be afforded the rights provided under this article in a reasonable amount of time. ORDINANCE: AMENDING ARTICLE 21 OF THE TOWN CODE REGARDING GRIEVANCE PROCEDURE Sec. 12.1-56.6. Hearing is Advisory. The recommendations of the panel, and the reasons therefore, shall be in writing, shall be transmitted promptly to the grievant officer, to the chief of police, Town Manager and personnel director. Such recommendation shall be advisory only, but shall be accorded significant weight. Sec. 12.1-56-7. Oral Reprimand Not Prohibited. Nothing in this article shall be construed to prohibit the formal counseling of a police officer by a supervisor in reference to a minor infraction of policy or procedure which does not result in disciplinary action. SECTION II. All prior ordinances in conflict herewith are repealed. SECTION III. This ordinance shall be in effect upon passage. PASSED this 10th day of September , 1991. Rober~ E. Sevila, Mayor Town of Leesburg Clerk of Council O:grieve