Issue: Compliance, Hearing Decision; Ruling Date April 9, 2001, Ruling #2001-048; Agency: Department of Corrections; Outcome: In Compliance (Hearing Officer)

COMMONWEALTH of VIRGINIA
Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections / No. 2001--048
April 9, 2001

The grievant has requested a ruling on whether the hearing officer abused his discretion or exceeded the scope of his authority when he affirmed his earlier decision upholding a Group II Written Notice issued by the agency to the grievant on August 6, 1999. For the reasons discussed below, this Department concludes that the hearing officer’s decision should not be disturbed.1

FACTS

On January 6, 2000, a hearing officer upheld the decision of the Department of Corrections ("DOC") to issue the grievant a Group II Written Notice on August 6, 1999. On January 12, 2000, the grievant’s counsel requested that the hearing officer reconsider his decision. On March 30, 2000, the hearing officer issued a Response to Grievant’s Motion for Reconsideration in which he affirmed his earlier January 6, 2000 decision.

On February 12, 2001, counsel for the grievant requested that this Department rule on the propriety of the hearing officer’s conduct and reconsideration decision.

DISCUSSION

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure."2 If the hearing officer’s exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; "the sole remedy is that the action be correctly taken."3

When there are questions of compliance with the conduct of the hearing or the exercise of authority by the hearing officer, an objection should be made at the time the error is noted. A ruling from EDR must be requested within 5 workdays from the date that the noncompliance was noted.4 The hearing officer issued his reconsideration decision on March 30, 2000, and the grievant did not request a ruling from this Department until February 12, 2001, which is well beyond the 5 workday period. Furthermore, the grievant has not offered reason(s) sufficient to constitute "just cause" for the delay.5 Accordingly, the challenge is untimely and will not be considered by this Department.

CONCLUSION

For the reasons discussed above, this Department will not disturb the hearing officer’s decision. This Department’s rulings on matters of compliance are final and nonappealable.6

Neil A. G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 Because this grievance was in itiated prior to July 1, 2000, it will be determined under the grievance procedure then in effect, Grievance Procedure (effective July 1, 1995, as revised July 1, 1999).
2 Va. Code § 2.1-116.03(3) and (5).
3 Grievance Procedure, page 13.
4 Grievance Procedure, page 13.
5 "Just cause" is defined as "a reason sufficiently compelling to excuse not taking a required action in the grievance process." Grievance Procedure, page 15.
6 Va. Code § 2.1-116.03(5).