Compilation of Rules and Regulations of the State of Georgia
Department 478 - RULES OF THE STATE PERSONNEL BOARD
Chapter 478-1 - RULES OF THE STATE PERSONNEL BOARD
Rule 478-1-.27 - Appeals and Hearings for Classified Employees
Universal Citation: GA Rules and Regs r 478-1-.27
Current through Rules and Regulations filed through March 20, 2024
(1) Introduction. Classified employees may appeal certain employment actions and conditions to the State Personnel Board as outlined in this Rule. In addition to establishing the provisions for appeal, this Rule also sets uniform procedures for hearings conducted by the State Personnel Board (Board) or an Administrative Law Judge of the Office of State Administrative Hearings.
(2) Applicability. This Rule applies only to employees in the classified service as defined in Rule 478-1-.02 (Terms and Definitions).
(3) Filing an Appeal.
(a) All appeals to the State
Personnel Board shall be filed in writing with the Office of State
Administrative Hearings in accordance with procedures established by the Board.
Unless a different time period is specifically provided, appeals must be filed
and/or postmarked within ten (10) calendar days after:
1. The employee receives written notice of
the action or decision, or
2. The
effective date of the action or decision, whichever is later.
(b) Any filing shall be considered
timely if postmarked within the time allowed for an appeal but shall not be
considered filed until actually received by the Office of State Administrative
Hearings.
(4) General Provisions.
(a) Upon
receipt of an appeal the Office of State Administrative Hearings shall assign
the appeal to an Administrative Law Judge, unless otherwise directed by the
Board.
(b) The Board may, in its
discretion, authorize Administrative Law Judges from the Office of State
Administrative Hearings to hold a hearing and otherwise assist in the
resolution of appeals. Such Administrative Law Judges shall compile evidence,
prepare findings of fact, conclusions of law, issue initial decisions and
certify records to the Board for its determination and make investigations of
matters under the Board's jurisdiction where the Board deems a review
appropriate.
(c) Appeal hearings
shall be before an Administrative Law Judge unless otherwise specified by the
Board.
(d) Upon the motion of
either party or upon its own motion, the Board or the Administrative Law Judge
may dismiss any appeal if the appeal is clearly moot, is without merit, was not
properly filed with the Office of State Administrative Hearings, or is not
within the scope of the Board's authority.
(e) Waiver of Appeal Rights:
1. An employee who fails to timely respond to
a notice of proposed adverse action or a notice of proposed forfeiture of
employment shall be deemed to have waived any right of appeal to the
Board.
2. An employee who fails to
file an appeal in a timely manner shall be deemed to have waived any right of
appeal to the Board.
(f)
Timely appeals of actions as identified in this Rule, shall be entitled to a
hearing which shall be conducted by an Administrative Law Judge unless the
Board, in its discretion, elects to grant a hearing before the Board; provided,
with the consent of all parties and approval by the Administrative Law Judge or
Board, however, a hearing may be waived and the appeal considered on the
written record.
(g) Review of
Initial Decisions:
1. Initial decisions of
the Administrative Law Judge shall become the decision of the Board; provided,
however, a party adversely affected by a decision regarding dismissal,
demotion, suspension without pay, or salary reduction may file an application
for review by the Board. Application for review by the Board must be in writing
and filed with the Executive Secretary within thirty (30) calendar days of the
date the initial decision was issued. Both parties shall have the right to
present oral arguments to the Board.
2. The Board on its own motion may issue an
order for review within thirty (30) calendar days of the date of the initial
decision.
(h) Decisions
of the Board are final and shall not be reconsidered except for specific
correction of a manifest error or to comply with an order of a court of
competent jurisdiction.
(i) No
person shall attempt by improper means to influence the proceeding or decisions
in an appeal hearing authorized by these rules and regulations.
(j) Oral arguments or the filing of written
memoranda may be required of both parties at the discretion of the Board or an
Administrative Law Judge.
(5) Appeals Alleging Unlawful Discrimination.
(a) Notwithstanding
any other provision of these Rules to the contrary, no employee governed by
these Rules may file an appeal or otherwise seek a hearing before the State
Personnel Board on any charge of unlawful employment discrimination if remedy
is available through the Georgia Commission on Equal Opportunity under Georgia
law. Such prohibition does not prohibit state agencies from processing internal
grievances or otherwise investigating such charges of unlawful discrimination,
nor does such prohibition apply to appeals from adverse actions as defined in
Rule
478-1-.26 (Adverse Actions for
Classified Employees).
(b)
Notwithstanding any other provision of these Rules to the contrary, if an
employee charges in an adverse action appeal that the adverse action was based
on an unlawfully discriminatory purpose as defined under these Rules, then the
employee shall be advised of the right, if available, to file a charge with the
Georgia Commission on Equal Opportunity. The employee shall further be advised
by the State Personnel Board, an Administrative Law Judge, or other agent that
the employee has the option of either proceeding with a State Personnel Board
appeal or with a charge before the Georgia Commission on Equal Opportunity.
1. If the e mployee elects to proceed with a
charge before the Georgia Commission on Equal Opportunity, then the proceeding
before the State Personnel Board shall be stayed until the completion of the
action before the Georgia Commission on Equal Opportunity or a special master.
Following the completion of the action before the Georgia Commission on Equal
Opportunity or a special master, if the employee wishes to proceed with the
appeal to the State Personnel Board, then the employee must file a request to
lift the stay with the Office of State Administrative Hearings. This request
shall be filed in writing within ten (10) calendar days following the date of
issuance of the Georgia Commission on Equal Opportunity's final decision. This
request shall be considered timely if postmarked within the time allowed under
this Rule but shall not be considered filed until actually received by the
Office of State Administrative Hearings.
2. A final decision on the merits of the
charge by a special master shall preclude the Board or an Administrative Law
Judge from reconsidering the same factual issues between the parties but shall
not preclude the Board from acting on any other issues that have not been
resolved by the special master's decision nor preclude the Board from applying
the rules and the law to the facts as determined in the special master's
decision.
(6) Appeals Alleging Fraud, Waste, or Abuse. Notwithstanding any other provision of these Rules to the contrary, no employee may file or continue an appeal if the employee is alleging reprisal for having made a complaint or disclosing information relating to fraud, waste, or abuse in state programs or operations, and the employee has instituted, or institutes, proceedings in superior court. The employee shall be notified by the Executive Secretary that any such appeal shall be stayed until the resolution of the court proceedings. The employee has ten (10) calendar days from the resolution of the court proceedings to request the stay be lifted and proceed with the appeal. A final resolution of the court proceedings shall not preclude the Board from acting on any issues that have not been resolved by the court proceedings nor preclude the Board from applying the rules and the law to the facts as determined in the court proceedings.
(7) Protection from Reprisal. No action against any employee shall be taken or threatened by an Appointing Authority as a reprisal for filing an appeal or disclosing information during the course of an appeal, unless the appeal was filed or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.
(8) Reasons for which Appeals may be Filed.
(a)Unlawful Discrimination
Against an Employee: Unless prohibited by provision (5) of this Rule, an
employee who has been unlawfully discriminated against in employment because of
race, color, religion, national origin, sex, disability, age, genetic
information, political affiliation, protected uniformed service, or other
legally protected category, may appeal to the Board as set forth in provision
(3) of this Rule; provided, however, that if administrative remedy for the
alleged discrimination is available through the departmental complaint
resolution procedure as outlined in Rule
478-1-.20 (Employee Complaint
Resolution Procedure), the employee shall first seek such remedy and may appeal
to the Board only at the conclusion of the procedure.
(b) Dismissal:
1. A classified employee who is dismissed
from a job in which the employee has permanent status may appeal the dismissal
to the Board as set forth in provision (3) of this Rule.
2. A classified employee who is dismissed
while serving a working test period following a promotion in the same
department may appeal the dismissal to the Board as set forth in provision (3)
of this Rule. If the appeal is upheld by the Board, relief shall be limited to
reinstatement to a position in the job in which the employee last held
permanent status, or to a position to which the employee could have been
transferred from the position in which the employee last held permanent
status.
(c) Suspension:
A classified employee who is suspended without pay may appeal the suspension to
the Board as set forth in provision (3) of this Rule.
(d) Demotion:
1. A classified employee who has attained
permanent status in the current job who is demoted may appeal the demotion to
the Board as set forth in provision (3) of this Rule.
2. A classified employee serving a working
test period following a promotion who is demoted to a job lower than the job in
which the employee last held permanent status may appeal the demotion to the
Board as set forth in provision (3) of this Rule. If the appeal is upheld by
the Board, relief shall be limited to reinstatement to a position in the job in
which the employee last held permanent status, or to a position to which the
employee could have been transferred from the position in which the employee
last held permanent status.
(e) Disciplinary Salary Reduction: A
classified employee who is subjected to a disciplinary salary reduction may
appeal the reduction to the Board as set forth in provision (3) of this
Rule.
(f) Relocation: Unless
prohibited by provision (5) of this Rule, a classified employee who is
subjected to involuntary relocation, the costs of which qualify for
reimbursement under Office of Planning and Budget regulations, may appeal the
relocation to the Board as set forth in provision (3) of this Rule; provided,
however, that if administrative remedy for the relocation is available through
the departmental complaint resolution procedure as outlined in Rule
478-1-.20 (Employee Complaint
Resolution Procedure), the employee shall first seek such remedy and may appeal
to the Board only at the conclusion of the procedure.
(g) Reduction in Force: A classified employee
who has been laid-off, furloughed, or reduced in salary as a result of a
Reduction in Force may appeal to the Board as set forth in provision (3) of
this Rule if the Reduction in Force, as implemented by the Appointing
Authority, is not in accordance with the plan of reduction as approved by the
Department of Administrative Services. Such right of appeal shall not be
construed to limit the ability of an Appointing Authority to adjust the number
of employees to be retained.
(h)
Unjust Coercion or Reprisal: Unless prohibited by provision (5) of this Rule, a
classified employee who is subjected to unjust coercion or reprisal because of
participation in an appeal or grievance proceeding authorized by these rules
and regulations may appeal for relief to the Board as set forth in provision
(3) of this Rule; provided, however, that if administrative remedy for the
coercion or reprisal is available through the departmental complaint resolution
procedure as outlined in Rule
478-1-.20 (Employee Complaint
Resolution Procedure), the employee shall first seek such remedy and may appeal
to the Board only at the conclusion of the procedure.
(i) Other Alleged Violations of the Rules of
the Board: Unless prohibited by provision (5) of this Rule, a classified
employee who feels that there has been a violation of the Rules or the law
which adversely affects the employee's rights may appeal for relief under this
provision if the appeal right is not covered elsewhere in these Rules. The
appeal must be filed and/or postmarked within ten (10) calendar days after the
occurrence of the alleged violation.
(j) Forfeiture of Employment: Unless
prohibited by provision (5) of this Rule, a classified employee who has
forfeited employment as provided in Rule 478-1-. 28(6) (Voluntary Separations
for Classified Employees) may appeal as set forth in provision (3) of this
Rule.
(k) Other Voluntary
Separations: Unless prohibited by provision (5) of this Rule, a classified
employee who has been separated under the provisions of Rule
478-1-.28 (Voluntary Separations for
Classified Employees), may appeal as set forth in provision (3) of this Rule.
The appeal must include any evidence that would support the employee's belief
that the separation was improper. A finding that the separation was improper
shall permit, but not require, the Administrative Law Judge to reverse the
separation.
(9) Notice of the Hearing.
(a)
Within seven (7) days from the filing of an appeal in accordance with this
Rule, the Administrative Law Judge or the Board shall designate an appropriate
time and place to conduct the hearing and shall so notify all parties in
writing; provided, however, any hearing on a dismissal must be held in the
county in which the employee was employed unless all parties agree to another
location.
(b) Such notification
shall be mailed or served at least ten (10) calendar days in advance of the
date set for the hearing.
(c) Where
practical, the hearing will be held within thirty (30) calendar days after
receipt of the appeal by the Administrative Law Judge. Any Administrative Law
Judge or the Board shall have the authority to postpone or to continue a
hearing upon its own motion or upon the motion of either party.
(10) Representation. Both parties have the opportunity to represent themselves or to be represented by legal counsel. All arrangements for providing legal counsel shall be the responsibility of the party desiring such representation.
(11) Pre-Hearing Conference. The Administrative Law Judge or the Board may arrange a pre-hearing conference for the purpose of reviewing the matter being appealed and establishing stipulations to expedite the hearing.
(12) Witnesses. Either party may request the attendance of employees or other persons as witnesses when their testimony will aid in establishing the facts in the case. Employees appearing as witnesses shall be released from duty without loss of pay or time and without effect on their service rating. No person shall directly or indirectly use, or threaten to use, any official authority or other influence which would tend to discourage any other person from testifying.
(13) Issuance of Subpoenas.
(a) The appellant or the agency may request
the Board or the Administrative Law Judge to issue subpoenas for witnesses for
hearings. The cost of securing the attendance of witnesses, including fees and
mileage, shall be computed and assessed in the same manner as prescribed by law
in civil cases in the superior court.
(b) Subpoenas shall be issued without
discrimination between public and private parties. When a subpoena is
disobeyed, any party may apply to the superior court of the county where the
hearing is being held for an order requiring obedience. Failure to comply with
such order shall be cause for punishment as for contempt of court.
(c) Once issued, a subpoena may be quashed or
limited by the Board or the Administrative Law Judge upon the motion of the
Board, the Administrative Law Judge, or any party, or at the request of any
witness if it appears that the subpoena was used primarily as a means of
harassment, that the testimony or documents sought are cumulative, that the
testimony or documents sought are not relevant or material, that to respond to
the subpoena would be unduly burdensome, or that for other good reasons basic
fairness dictates that the subpoena not be enforced.
(14) Record of a Hearing Before an Administrative Law Judge.
(a) A
recording shall be made of all hearings; however, such recording will not be
transcribed unless the initial decision is appealed to the Board; or a
transcript is requested by the Administrative Law Judge or either party to the
hearing. If the transcription is made pursuant to a request by either party to
the hearing, the cost thereof, as determined by the Office of State
Administrative Hearings, will be borne by the party making such
request.
(b) In addition to the
recording of the hearing, or a transcription thereof, all documents entered
into the record during the hearing shall be made part of the official record of
the hearing.
(15) Record of Oral Argument Before the Board. The Board may, but is not required to, make a recording of any oral argument before the Board on an appeal from an initial decision.
(16) DOAS Commissioner's Opportunity to be Heard. At the DOAS Commissioner's discretion or at the invitation of the Administrative Law Judge or the Board, the DOAS Commissioner shall be entitled to be heard and to submit evidence in any appeal in which the interpretation of a State Personnel Board Rule, regulation, policy, or practice is at issue.
(17) Hearing Process.
(a) Role of the Board or
Administrative Law Judge: The State Personnel Board, any member of the Board,
or any duly assigned Administrative Law Judge shall have the authority to do
the following in connection with any hearing:
1. To administer oaths and
affirmations;
2. Sign and issue
subpoenas;
3. Rule upon offers of
proof;
4. Regulate the course of
the hearing;
5. Set the time and
place for continued hearings and pre-hearing conference;
6. Fix the time for filing briefs;
7. Dispose of motions to dismiss for lack of
the Board's jurisdiction over the subject matter or parties or for any other
grounds;
8. Dispose of motions to
amend or to intervene;
9. Provide
for the taking of testimony by deposition or interrogatory;
10. Reprimand or exclude from the hearing any
person for any indecorous or improper conduct committed in the presence of the
Board or the administrative law judge; and
11. To make informal disposition of any case
by stipulation, agreed settlement, consent order, or default, unless such
disposition is precluded by law.
(b) Attendance at the Hearing: Any hearing at
which the Board or an Administrative Law Judge receives evidence or hears
arguments on appeals of disciplinary actions, dismissals, or other purported
violations of the rules shall be open to the public. Witnesses may, however, be
sequestered at the discretion of the Board or the Administrative Law
Judge.
(c)Evidence: With respect to
all hearings before the Board or an Administrative Law Judge,
1. Irrelevant, immaterial, or unduly
repetitious evidence shall be excluded. The rules of evidence as applied to the
trial of civil nonjury cases in the superior courts of Georgia shall be
followed. Evidence not admissible there under may be admitted if it is of a
type commonly relied upon by reasonably prudent men in the conduct of their
affairs. The Board shall give effect to the rule of privilege recognized by
law.
2. Objections to evidentiary
offers may be made and shall be noted in the record.
3. When a hearing will be expedited and the
interest of the parties will not be prejudiced substantially, any part of the
evidence may be received in written form including, but not limited to, the use
of depositions or interrogatories.
4. Documentary evidence may be received in
the form of copies of excerpts if the original is not readily available. Upon
request, and at the discretion of the Administrative Law Judge or Board,
parties shall be given an opportunity to compare the copy with the
original.
(d) Conduct of
Hearings: In the hearing of an appeal, the proceeding shall be informal but
orderly. The following procedures shall prevail:
1. The presiding officer shall open the
hearing by explaining the procedure to be followed in the hearing. At the
discretion of the Board or Administrative Law Judge, any or all witnesses may
be sequestered;
2. The presiding
officer shall read or cause to be read the charges and specifications as filed.
The presiding officer shall then read or cause to be read the letter of appeal.
By agreement these documents may be inserted in the record without
reading;
3. The facts not in
dispute may be stipulated;
4. Each
party shall be given an opportunity to make a brief opening statement
identifying the issues and indicating what is to be proven;
5. All witnesses shall testify under oath or
affirmation;
6. Each party may
conduct such cross examination as shall be required for a full and true
disclosure of the facts. In addition, the Administrative Law Judge may examine
the witnesses;
7. Official notice
may be taken of judicially recognizable facts. In addition, official notice may
be taken of technical facts within the specialized knowledge of the Board or
the Administrative Law Judge. Parties shall be notified either before or during
the hearing, by reference in preliminary reports or otherwise, of the material
officially noted, including any staff memoranda or data, and they shall be
afforded an opportunity to contest the materials so noticed;
8. The Board's or Administrative Law Judge's
experience, technical competence, and specialized knowledge may be utilized in
the evaluation of evidence;
9.
Before closing the hearing, the presiding officer may allow both parties the
opportunity to make brief oral or written closing statements;
10. With respect to hearings at which the
Board did not preside at the reception of the evidence, the Administrative Law
Judge who presided shall issue an initial decision within thirty (30) calendar
days from the close of the evidence or, if necessary, a longer period of time
as ordered by the Board or Administrative Law Judge. The initial decision may
modify the action of the Appointing Authority but may not increase the severity
of such action on the employee. The initial decision shall be transmitted to
the Board with copies mailed to the parties or their representatives;
11. A party adversely affected by a decision
of an Administrative Law Judge regarding dismissal, demotion, suspension
without pay, or salary reduction may, within thirty (30) calendar days from the
date the initial decision was issued, apply to the Board for review of the
decision. Any application shall be considered timely if postmarked or received
within the time allowed. In the absence of an application for review, or an
order by the Board within such time for review on its own motion, the initial
decision shall, without further proceedings or notice, become the final
decision of the Board and any right of additional appeals shall be
extinguished.
(e) Board
Review of Administrative Law Judge's Initial Decision:
1. Upon receipt of an application for Board
review, or on the Board's own motion, the entire record shall be transmitted to
the Board for review and final decision.
2. Both parties in an appeal to the Board
shall have the right to present oral arguments to the Board. This shall not
preclude the Board from requesting argument, either oral or written, upon
request of any member of the Board.
3. On review of the entire record, the Board
shall have all the powers it would have had in presiding at the reception of
the evidence, including the review of any motions granted or denied by the
Administrative Law Judge and including the review of any action taken by the
Administrative Law Judge. In its discretion, the Board may take additional
testimony or evidence or remand the matter to the Office of State
Administrative Hearings for such purpose.
4. Any hearing to receive additional evidence
or hear oral argument shall be open to the public. Deliberations by the Board,
which may include a review of the record, may be held in closed
session.
(18) Decision of the Board.
(a) Upon
receipt of an application for review of an Administrative Law Judge's initial
decision regarding a dismissal, demotion, suspension without pay, or salary
reduction, the Board shall normally render its decision at the first regular
monthly meeting after the entire record is made available to it. When an appeal
is heard by the Board, it may render its decision immediately thereafter, or at
the regular meeting held in the month following the month in which the appeal
was heard, or at the first regular meeting after the complete certified record
including transcript is made available to it, unless otherwise
extended.
(b) As a part of the
initial decision or final decision of the Board or order subsequent to any
hearing, the Administrative Law Judge or the Board shall include findings of
fact and conclusions of law, separately stated, and the effective date of the
decision or order.
1. The initial decision of
the Administrative Law Judge shall include the reasons for the
decision.
2. The Board, when
requested to review the record of an appeal, shall make its own findings of
fact and conclusions of law which may be by adopting the findings, conclusions,
and decision of the Administrative Law Judge.
3. Findings of fact, if set forth in
statutory language, shall be accompanied by a concise and explicit statement of
the underlying facts supporting the findings.
4. Copies of the decision or order shall be
mailed to all parties of record by the Executive Secretary.
(c) The decision of the Board as
to whether an adverse action was in accordance with the Rules shall be binding
upon both parties. The Board's decision may modify the action of the Appointing
Authority but may not increase the severity of such action on the employee.
Such Appointing Authority shall promptly comply with such order as may be
issued as a result of the appeal.
(d) If the decision of the Board is in favor
of the appellant on appeals of dismissal, demotion, suspension without pay, or
disciplinary salary reduction, the employee shall be reinstated in accordance
with the decision of the Board to the position from which the employee was
removed except as set forth in provisions (8)(b)2 and (8)(d)2 of this Rule.
1. The effective date for the reinstatement
shall be the date immediately following the effective date of the appealed
action as though there had been no break in service, unless otherwise specified
in the order.
2. The employee shall
be entitled to the same salary in the position or salary which would have
automatically been received had the employee remained in actual
service.
3. The employee shall
receive payment as though there had been no break in service, minus any amount
earned by or paid to the employee from other employment and wage substitutes
(including but not limited to unemployment compensation) during the period off
the job and minus any amount paid for annual leave. The employee's sick and
annual leave shall be restored in the same amount as existed at the time of the
appealed action, plus sick and annual leave that would have been earned for the
period as though the employee had actually been in service. However, any period
of postponement or continuance of the hearing for the convenience of the
appellant will be excluded from any payments of benefits due, and this period
of time will be considered as though the appellant had been on leave without
pay.
4. Prior to any payment, the
employee shall be required to certify under oath the amount of income from
other employment and wage substitutes during the period off the job.
(e) In any case in which an appeal
is disposed of by stipulation, agreed settlement, or consent order, any
compensation and leave due the employee shall be calculated in accordance with
provision (18)(d), above.
(19) Judicial Review. A decision of the Board, or an Administrative Law Judge's Final Decision not subject to review by the Board, shall not limit the rights of either party to judicial review, and such decision shall be stayed by the filing of a petition for review. Any party, including the State or any state board, bureau, commission, or department, who has exhausted all administrative remedies available before the Board and who is aggrieved by a final decision or order of the Board on any hearing may seek judicial review of the final decision or order of the Board in the superior court of the county of the place of employment of the employee.
O.C.G.A. Secs. 45-20-3, 45-20-3.1, 45-20-4, 45-20-8, 45-20-9.
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