Issue: Compliance; Hearing Decision; Ruling Date May 11, 2001; Ruling #2001-058; Agency: Department of Corrections; Outcome: Hearing decision considered final

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections/ No. 2001-058

May 11, 2001

Through his representative, the grievant claims that the hearing officer’s March 22, 2001 reconsidered decision was improperly issued and that the hearing should be reopened to allow the introduction of newly discovered evidence.

The grievant was employed as a Corrections Officer. The grievant was issued two Group III Written Notices and terminated on November 29, 2000. The first was for threatening or coercing persons associated with the agency; the second was for refusal to obey security-related instructions. A hearing was held on March 1, 2001. In his written decision of March 2, 2001, the hearing officer rescinded the Group III Written Notice for threatening or coercing behavior and reduced the Group III Written Notice for refusal to obey instructions to a Group II Written Notice and 10 day suspension, thus reinstating the grievant.

On March 9, 2001, the agency requested the hearing officer to reconsider his March 2, 2001 decision, and asked the Department of Human Resource Management (DHRM) for an administrative review of that decision on policy grounds.¹ Both requests for review listed the grievant’s representative as a copy recipient. The grievant’s representative asserts that he never received a copy.² The agency’s representative asserts that grievant’s representative was mailed a copy of the agency’s March 9 request for review that same day; and that on March 22, grievant’s representative was again advised by telephone of the agency’s March 9 request for review and was mailed another copy of that request.

The hearing officer issued a reconsidered decision on March 22, 2001, upholding his original decision to rescind the Group III Written Notice for threatening behavior. However, the hearing officer restored the Group III Written Notice for refusing to obey instructions; therefore, the grievant remained terminated. A copy of the reconsidered decision was certified as received by the grievant’s representative on March 23, 2001.

On April 6, 2001, the grievant’s representative requested this Department to administratively review the March 22 reconsidered decision. The grievant argues that because the agency allegedly violated the grievance procedure by failing to provide a copy of its March 9, 2001 reconsideration request, the hearing officer’s resulting reconsidered decision was improper. In addition, the grievant’s representative asks this Department to allow the grievant to submit newly discovered evidence to the hearing officer.³

Propriety of the Issuance of the March 22 Reconsidered Decision:

"All requests for review [of a hearing decision] must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision."⁴ Requests for reconsideration or reopening are made to the hearing officer, who has sole authority to grant such requests.⁵ Consistency with policy challenges are made to the Director of the Department of Human Resource Management, while questions of compliance with the conduct of the hearing or the exercise of authority by the hearing officer are made to the Director of this Department. ⁶

In this case, the grievant is challenging the March 22 reconsidered decision as improper, claiming that he had no opportunity to respond to the agency’s request for reconsideration. Certainly, each party to a grievance is entitled to notice and an opportunity to respond to the other party’s request for reconsideration.⁷ Here, the facts are in dispute as to whether the grievant’s representative received notice of the agency’s reconsideration request. Assuming for purposes of this ruling only that he did not, it nevertheless remains clear that on March 23, he did receive the March 22 reconsidered decision. Thus, by March 23, the grievant’s representative knew that the agency had requested, and that the hearing officer had issued, a reconsidered decision detrimental to his client. However, the grievant’s representative did not challenge the reconsidered decision until April 6, 2001, more than ten calendar days from its issuance, and, more than ten calendar days from the date he received that decision. The grievant’s request for review of the March 22 decision is clearly untimely, and thus that decision cannot be viewed under the grievance procedure as improperly issued.

The grievant apparently maintains that the untimeliness should be excused because the agency allegedly never provided his representative with a copy of its March 9 request for reconsideration, and, therefore, the time frame for the grievant’s challenge to this Department should not begin until he receives a copy of the agency’s March 9 request. This Department has never so held. Parties are responsible for submitting their requests for review in a timely manner. Here, any alleged failure of the agency to provide grievant’s representative with a copy of its March 9 request for review, would not have prevented the grievant’s representative from filing a challenge within ten calendar days of the March 22 reconsidered decision.

Newly Discovered Evidence:

For the reasons discussed above, the grievant’s request to introduce alleged newly discovered evidence is untimely. It is also misplaced. The grievance procedure expressly provides that a request to reconsider a decision or reopen a hearing is made to the hearing officer, and that generally, newly discovered evidence is a basis for such a request.⁸ Accordingly, while a grievant may raise the issue of newly discovered evidence with the hearing officer within ten calendar days of a contested hearing decision, he cannot raise that issue with this Department.

This Department finds that under the grievance procedure (i) the grievant’s challenge to the March 22 reconsidered hearing decision is untimely; (ii) the grievant’s request to submit alleged newly discovered evidence is untimely and misplaced; and (iii) the March 22 reconsidered hearing decision cannot be considered as having been improperly issued. This Department’s rulings on matters of compliance are final and nonappealable.⁹ The March 22, 2001 reconsideration decision is a final hearing decision, and may be appealed on the record to the Circuit Court on the ground that it is contradictory to law.¹⁰

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant