[Adopted 10-10-1991 as Res. No. 91-57]
[Amended 11-13-2014 by Ord. No. 14-17]
A.
Unless otherwise provided by law, all nonprobationary permanent full-time
and part-time employees are eligible to file grievances, with the
following exceptions:
(1)
Appointees of the City Council;
(2)
Deputies and executive assistants to the City Manager;
(3)
Department and agency directors;
(4)
Employees, including constitutional officers and their employees,
whose terms of employment are limited by law;
(5)
Temporary, limited-term, and seasonal employees;
(6)
Law enforcement officers as defined in Chapter 5 of Title 9.1 of the Code of Virginia whose grievance is subject to the State Law Enforcement Officers Procedural Guarantee Act and who elect to proceed pursuant to such Act's provisions in the resolution of their grievance; and
(7)
Any other employee electing to proceed pursuant to another existing
procedure in the resolution of his grievance.
As used in this Part 2, the following terms
shall have the meanings indicated:
A complaint or dispute by an employee relating to his or
her employment, including but not necessarily limited to:
Disciplinary actions, including dismissals,
disciplinary demotions and suspensions, provided that the dismissals
shall be grievable whenever resulting from formal discipline or unsatisfactory
job performance.
The application of personnel policies, procedures,
rules and regulations.
Acts of retaliation as the result of utilization
of the grievance procedure or participation in the grievance of another
employee.
Complaints of discrimination on the basis of
race, color, creed, political affiliation, age, disability, national
origin or sex.
Acts of retaliation because the employee has
complied with any law of the United States or of Virginia, has reported
any violation of such law to a governmental authority or has sought
any change in law before the national or state legislative bodies.
A.
The City retains the exclusive right to manage the
affairs and operations of government. Therefore, the following complaints
are nongrievable:
(1)
Establishment and revision of wages or salaries, position
classifications or general benefits.
(2)
Work activity accepted by the employee as a condition
of employment or work activity which may reasonably be expected to
be a part of the job content.
(3)
The contents of ordinances, statutes or established
personnel policies, procedures, rules and regulations.
(4)
Failure to promote, except where the employee can
show that established promotional policies or procedures were not
followed or applied fairly.
(5)
The methods, means and personnel by which 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, termination, 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 City service.
(8)
The relief of employees from duties of the City in
emergencies.
(9)
The content of performance evaluations.
[Added 11-13-2014 by Ord. No. 14-17]
A.
Decisions regarding grievability and access to the
procedure shall be made by the City Manager or his designee at any
time prior to the hearing before the Personnel Board at the request
of the City or the grievant, within 10 calendar days of the request.
A copy of the ruling will be sent to the grievant.
B.
The decision of the City Manager may be appealed by
the grievant to the Circuit Court for a hearing on the issue of whether
the grievance qualifies for a panel hearing. Proceedings for review
of the decision of the City Manager or his designee may be instituted
by the grievant by filing a notice of appeal with the City Manager
within 10 calendar days from the date of receipt of the decision and
giving a copy thereof to all other parties. Within 10 calendar days
thereafter, the City Manager or his designee shall transmit to the
Clerk of the Court a copy of the decision of the City Manager, a copy
of the notice of appeal and the exhibits. A list of the evidence furnished
to the Court shall also be furnished to the grievant. The failure
of the City Manager or his designee to transmit the record shall not
prejudice the rights of the grievant. The Court, on motion of the
grievant, may issue a writ of certiorari requiring the City Manager
to transmit the record on or before a certain date.
C.
The Court, under provisions of § 15.1-7.2
of the Code of Virginia,[1] shall hear the appeal within 30 days and render its decision
no later than the 15th day from the date of the conclusion of the
hearing. The decision of the Court is final and is not appealable.
[1]
Editor's Note: See now § 15.2-1507 of the Code of Virginia.
After a grievance is committed to writing, failure
of either party to comply with all substantial procedural requirements
of the grievance procedure, including the panel hearing, without just
cause shall result in a decision in favor of the other party on any
grievable issue, provided that the party not in compliance fails to
correct the noncompliance within five workdays of receipt of written
notification by the other party of the compliance violation. Such
written notification by the grievant shall be made to the City Manager
or his designee. The City Manager or his designee, at his option.
may require a clear written explanation of the basis for just-cause
extensions or exceptions. The City Manager or his designee shall determine
compliance issues. Compliance determinations made by the City Manager
are subject to judicial review by filing a petition with the Circuit
Court within 30 days of the compliance determination.
A.
Step I.
(1)
An employee who has a grievance must discuss the problem
directly with the immediate supervisor within 20 calendar days after
the occurrence which prompts the grievance. The supervisor shall give
serious attention to the grievance and must give the employee an answer
within five calendar days.
(2)
If the reply of the immediate supervisor does not
resolve the grievance, the employee shall talk to the division head,
if there is one, about the matter within five calendar days after
hearing from the immediate supervisor. If the answer at this level
does not clear up the dispute or if there is no reply within five
calendar days, the employee may follow Step Il.
B.
Step II. The grievant shall send a written statement
of the grievance to the department head within five calendar days
after the completion of Step I, using forms available in the office
of the City Manager. This statement must include the condition or
practice which is grieved, what attempts have been made to resolve
the issue and what solution is asked. The department head shall, within
five calendar days, conduct a personal face-to-face meeting with the
grievant, and each party may have witnesses. Witnesses will be excluded
except for the period during which their statements are made. Under
normal circumstances, neither party may have assistance from a third
party. A written reply by the department head shall be given to the
grievant within five calendar days after the meeting.
C.
Step III.
(1)
If the response at the department head level does
not resolve the grievance, the grievant may request, in writing to
the City Manager, within five calendar days after completion of Step
II, a review and resolution of the grievance. The department head
shall provide the City Manager a copy of the grievance statement and
the department head's written reply.
(2)
The City Manager or his designee shall conduct a face-to-face
meeting with the grievant within 10 calendar days after receipt of
the request. The grievant may invite an individual of his or her choice
to participate as an advisor or representative. If legal counsel is
chosen as that representative, the department head may be represented
by the City Attorney or his designee. Witnesses will be handled as
in Step II. The City Manager shall give the grievant a written answer
to the grievance within 10 calendar days after the conclusion of the
meeting.
D.
Step IV.
[Amended 12-11-2012 by Ord. No. 12-27; 11-13-2014 by Ord. No. 14-17]
(1)
If Step III fails to resolve the grievance, the grievant
may, within seven calendar days after completion of Step III, request,
in writing addressed to the City Manager, a hearing before the Personnel
Board. The sole duly of the Personnel Board shall be to rule on grievances,
and it shall be the final authority to rule on grievances.
(2)
The Personnel Board shall be notified of the request
for a hearing and shall, within seven calendar days, set a time for
the hearing, which shall be held as soon as practicable. All parties
are forbidden to discuss or communicate in any way details of the
grievance with Board members prior to the hearing. The Office of the
City Manager will provide the Board with copies of the grievance record
prior to the hearing and provide the grievant with a list of the documents
furnished to the Board. The grievant and his or her representative
shall be allowed access to and copies of all relevant files intended
to be used in the grievance proceeding at least 10 calendar days prior
to the hearing.
(3)
The
grievant and a representative of his choice shall be entitled to be
present during all phases of the hearing. The grievant shall be responsible
for any of his representative's expenses. The City Attorney or other
legal counsel shall represent the City; and such attorney and a representative
of City government shall be entitled to be present during all phases
of the hearing. The parties may mutually agree to allow other persons
who have a direct interest to attend the hearing.
(4)
The decision of the Personnel Board will be made in writing within
14 calendar days after the hearing and will be issued to the grievant
or his or her representative, the department head, the City Attorney
and the City Manager. It shall be final and binding and consistent
with law and written policies.
(5)
Any question of whether the relief granted by the
Personnel Board is consistent with written policy shall be determined
by the City Manager or his designee, unless such person has had a
direct personal involvement with the event or events which gave rise
to the grievance, in which case the decision will be made by the Commonwealth's
Attorney.
(6)
Either party may request the Board to interpret its
ruling or to reopen the hearing to accept additional testimony. Such
request must be made in writing through the City Manager within seven
calendar days after receipt of the decision. Upon receipt of such
a request, the Board must decide by majority vote within seven calendar
days whether to interpret its ruling or to reopen the hearing. If
the request is honored, the Board will set a date to deal with the
request as soon as practicable and must render a written decision
within seven calendar days after its resultant meeting.
(7)
Either party may petition the Circuit Court for an
order requiring implementation of the Board decision.
The members of the Personnel Board will select
one of their members as Chairperson, and that person will preside
at their meetings and hearings. The Board is governed by the following
hearing rules and may adopt supplementary others at their discretion
in order to facilitate fair and expeditious hearings.
A.
Both the grievant and the employer may call upon appropriate
witnesses and be represented by legal counsel or other representatives
at the Board hearing. Such representatives may examine, cross-examine,
question and present evidence on behalf of the grievant or the employer
before the panel.
B.
The Board does not have authority to formulate policies
or procedures or to alter existing policies or procedures.
C.
The Board has the discretion to determine the propriety
of attendance at the hearing of persons not having a direct interest
in the hearing, and, at the request of either party, the hearing shall
be private.
D.
The Board has the authority to determine the admissibility
of evidence without regard to the burden of proof or the order of
presentation of evidence, so long as a full and equal opportunity
is afforded to all parties for the presentation of their evidence.
E.
All evidence will be presented in the presence of
the Board and the parties, except by mutual consent of the parties.
F.
Documents, exhibits and lists of witnesses shall be
exchanged between the parties in advance of the hearing.
G.
The majority decision of the Board, acting within
the scope of its authority, is final and binding, subject to existing
policies, procedures and laws.
H.
Hearings are not intended to be conducted like proceedings
in courts, and rules of evidence do not necessarily apply.
A.
For purposes of this regulation, the term "calendar
days" means a period of time during consecutive calendar days. If
a final day for taking action falls on a Saturday, Sunday or legal
holiday, the next following business day will be the deadline for
purposes of this grievance policy.
B.
Time frames may be extended by mutual agreement of
the employer and the grievant.
