Current through Rules and Regulations filed through March 20, 2024
(1)
Introduction. Adverse action
is defined as a disciplinary action taken by an Appointing Authority which
results in the suspension without pay, demotion, reduction in salary, or
dismissal of a classified employee. It does not include action resulting from
Reduction in Force, insufficient funds, decrease in funds, or change in
departmental needs. Except as set forth in provision (11) of this Rule, an
employee against whom an adverse action is proposed shall be provided;
(a) At least fifteen (15) calendar days
advance written notice of the proposed action stating the specific charges or
reasons for which the action is to be taken;
(b) A reasonable time in which to refute such
charges; and
(c) Written
determination of the final action.
(2)
Applicability. This Rule
applies only to employees in the classified service as defined in Rule 478-1 .02 (Terms and Definitions).
(3)
Reasons for Adverse Actions. An Appointing Authority may take
adverse action against an employee because of:
(a) negligence or inefficiency in performing
assigned duties;
(b) inability or
unfitness to perform assigned duties;
(c) insubordination;
(d) misconduct;
(e) conduct reflecting discredit on the
department;
(f) commission of a
felony or other crime involving moral turpitude;
(g) chronic tardiness or absenteeism;
or
(h) failure to report for or
remain at work without justifiable cause.
(4)
Types of Adverse Action.
(a) Suspension Without Pay: The Appointing
Authority may suspend an employee without pay for disciplinary reasons
specified in provision (3) of this Rule or for pending criminal court action
when such pending criminal court action may deter the employee's effectiveness
in employment.
1. A suspension without pay
for disciplinary purposes should be proportional to the offense and shall not
exceed thirty (30) calendar days for any one offense, or for multiple offenses
arising out of the same incident.
2. A suspension for pending criminal court
action shall not exceed the period of time necessary for the disposition of the
action.
3. At the end of a period
of suspension without pay for pending criminal action the employee shall be
returned to duty or terminated in accordance with other sections of these
rules. If the disposition of the criminal action does not include any penalty
to the employee, the employee shall be reinstated in accordance with the
provisions of Rule 478-1-.27(18)(d)3 (Appeals and Hearings for Classified
Employees).
4. Prior to suspending
a Fair Labor Standards Act (FLSA) exempt employee without pay, the agency
should determine whether such action would result in the loss of the FLSA
exemption.
(b)
Disciplinary Salary Reduction: The Appointing Authority may reduce an
employee's salary for disciplinary reasons specified in provision (3) of this
Rule.
1. The reduced salary must remain
within the pay range for the employee's job.
2. Prior to reducing an FLSA exempt
employee's salary for disciplinary reasons, the agency should determine whether
such action would result in the loss of the FLSA exemption.
(c) Demotion:
1. The Appointing Authority may demote an
employee to a job in the classified service on a lower pay grade for which the
employee is qualified for any of the reasons specified in provision (3) of this
Rule. A demotion for failure to attain permanent status is not an adverse
action. (See Rule
478-1-.24 [Working Test and Permanent
Status for Classified Employees].)
2. The employee retains classified status in
the lower job upon demotion as a result of adverse action.
(d) Dismissal: The Appointing Authority may
dismiss an employee for any of the reasons specified in provision (3) of this
Rule.
(5)
Notice
of Proposed Adverse Action. The Appointing Authority must give a
classified employee written notice of any proposed adverse action at least
fifteen (15) calendar days prior to the effective date of the adverse action
except for an emergency situation as set forth in provision (11) of this Rule.
The notice of proposed adverse action must include the following:
(a) The effective date of the adverse action
which must be at least fifteen (15) calendar days after the date on which the
notice of the proposed action is presented to or received by the employee, or
properly delivered to the employee's last known address;
(b) The specific charges or reasons for the
adverse action;
(c) A statement
advising that the employee has a right to respond to the charges or reasons in
writing, or in person before a named agency official at an agreed upon time
during regular business hours, or both, within the response period specified in
provision (6) of this Rule;
(d) A
statement advising the employee that a failure to respond to the charges during
the response period will result in the action being effective on the date
specified without further notice; and
(e) A warning that failure to respond by the
date set forth in the notice will result in a waiver of all further appeal
rights including any appeal to the State Personnel Board under Rule
478-1-.27 (Appeals and Hearings for
Classified Employees).
(6)
Employee Response Procedure.
The employee response procedure is created to protect the employee from
erroneous or arbitrary adverse action. It is also created to afford the agency
an opportunity to re-evaluate its position on proposed adverse actions or
forfeiture of position and to affirm or correct if necessary. The procedure
does not require a full evidentiary hearing prior to the action. It requires
only that the employee be given an opportunity to respond to the charges before
a responsible official of the department. The procedure must meet the following
minimum requirements:
(a) The person to whom
the response is to be made must be someone who has authority to countermand or
delay the proposed action;
(b) The
employee must respond within ten (10) calendar days from the date the notice of
proposed action is received. If there is no response by the employee by the
date required in the notice of proposed action, the employee waives all further
appeal rights. There can be no further appeal, including any appeal to the
State Personnel Board;
(c) The
response may be made in writing, or in person, or both;
(d) The employee may submit affidavits to
support the response; and
(e) The
official who reviews the response may conduct further investigation as to the
charges.
(f) The role of the
official who reviews the response is to determine whether the facts support the
charge and whether the level of adverse action is appropriate based on a review
of adverse actions imposed against employees in the past under similar
circumstances.
(7)
Determination of Final Action. The official to whom the response
is made shall issue a notice of determination of final action not later than
three (3) calendar days after the date of response except as set forth in
provision (8) of this Rule. The notice shall include:
(a) A statement upholding the proposed
action, reducing the proposed action, or rescinding the proposed
action;
(b) The specific charges
for which the final action is taken;
(c) The effective date of the final action,
which may not be any earlier than the effective date in the notice of proposed
action;
(d) A statement advising
that the employee may appeal this determination to the State Personnel Board
pursuant to Rule 478-1-. 27 (Appeals and Hearings for Classified Employees) by
filing an appeal in writing with the Office of State Administrative Hearings
within ten (10) calendar days from the date the employee receives written
notice of the final action or decision; or the effective date of the action or
decision, whichever is later; and
(e) A statement reminding the employee that
the ten (10) calendar day appeal period includes Saturdays, Sundays, and
Holidays.
(8)
Extension for Response Official. If the official to whom the
response is made determines that more than three (3) calendar days are needed
to consider the employee's response to the proposed action, said official may
extend the period of consideration for a reasonable number of days by notifying
the employee as to the length of the extension. The extension notice shall also
state that the effective date of the proposed action shall be delayed by at
least the same number of days as the length of the period of extension for
consideration.
(9)
Change in
the Charges or the Adverse Action. If the official to whom the response
is made determines that charges in addition to, or substantially different
from, those enumerated in the Notice of Proposed Adverse Action should be made,
or that the adverse action should be more severe than the action specified in
the Notice of Proposed Adverse Action, said official shall revoke the proposed
adverse action by written notification to the employee. The Appointing
Authority may then propose a new action against the employee in accordance with
provision (5) of this Rule.
(10)
Employment Status During Notice Period.
(a) During a notice period of adverse action
an employee is expected to perform assigned duties without disrupting fellow
employees or the agency's activities. Any action by the employee to the
contrary will be considered an emergency situation as defined in provision (11)
of this Rule.
(b) The Appointing
Authority may by written notice to the employee suspend an employee with pay
during the period of notice of proposed adverse action if such suspension is in
the best interest of the agency.
(11)
Emergency Situations Resulting in
Immediate Adverse Action.
(a) The
Appointing Authority may take immediate adverse action against an employee if
any of the following circumstances exist:
1.
It is likely that the employee has committed a felony or other crime involving
moral turpitude;
2. The retention
of the employee in active duty status may result in damage to property or may
be disruptive, detrimental or injurious to the employee, fellow workers,
persons under the employee's charge or the general public; or,
3. Immediate dismissal is required by
law.
(b) The notice of
adverse action under this section is the final determination of adverse action
and must include the same items required in provision (7) of this Rule. It must
also include a statement explaining the emergency situation that caused this
section to be invoked.
(c) If on
appeal to the State Personnel Board it is determined that the adverse action
was correct but there was no emergency situation, the Board may take
appropriate steps necessary to remedy the situation. In the case of a
dismissal, such action may include back pay for the normal notice
period.
(d) Immediate adverse
action may be invoked only with the approval of the Appointing
Authority.
(e) The emergency
provisions of this Rule must not be used to circumvent the notice requirement
of this Rule. If an agency is found to have abused these provisions, the Board
may suspend the agency's authority to utilize the emergency provisions of this
Rule.
O.C.G.A. Secs.
45-20-3, 45-20-3.1, and
45-20-4,(45-20-8
and 45-20-9.
