ISSUE:

Did the hearing officer have the authority to direct the agency to deduct unemployment insurance compensation from the grievant's award of back pay?

RULING:

The hearing officer did not exceed his authority when he directed the agency to deduct unemployment insurance compensation from the grievant's award of back pay and thus he was in procedural compliance with the grievance procedure. This Department's rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

 
EXPLANATION:

On November 2 and 3, 2000, a hearing was held concerning the grievant's termination from the Department of Corrections after she was issued a Group II and a Group III Written Notice under the Standards of Conduct. On November 30, 2000, the hearing officer issued a decision reinstating the grievant to her former position with full pay and allowances less any unemployment compensation or other salary she received since her termination.¹ On December 6, 2000, the grievant's attorney asked the hearing officer to reconsider the limitation he imposed on the grievant's back pay award and noted an appeal to this Department. On December 11, 2000, the hearing officer denied the request for reconsideration. By letter, dated December 13, 2000, the grievant's attorney challenged the hearing officer's authority to deduct unemployment compensation from the back pay award and requested a compliance ruling on the matter.

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

The Rules for Conducting Grievance Hearings was adopted by this Department to create uniform hearing procedures and to establish hearing officer authority. According to those Rules, in grievances involving discipline, back pay may be awarded, and must be considered, if the Written Notice before the hearing officer resulted in total or partial loss of pay, such as through a termination or suspension. Full, partial, or no back pay for the affected period may be ordered, and if back pay is awarded, it must be offset by interim earnings.⁴ This Department has defined interim earnings as income earned in lieu of state salary or other regularly earned compensation.⁵ This definition is further clarified by the Department of Human Resources Management in Policy 1.60(IX)(B)(2)(b), which states "[a] grievance panel award of back pay shall be offset by any interim earnings that the employee received during the period of separation, including unemployment compensation received from the Virginia Employment Commission."

Although grievant's counsel contends that the hearing officer should have left recoupment of unemployment insurance compensation to the Virginia Employment Commission pursuant to Virginia Code Section 60.2-634 because the statute gives the VEC authority to collect overpayments which occur as a result of subsequent back pay awards, no provision in the grievance procedure or in state policy prohibits the hearing officer from directing the deduction in question. Furthermore, counsel's additional contention concerning the likely consequence of the grievant being faced with a double dipped overpayment (by the agency and by the VEC) is premature, and thus would be an issue for another forum at another time.