Tennessee § 8-30-318 - Appeal procedure for employees — Complaints.

§ 8-30-318. Appeal procedure for employees — Complaints.

The department shall promulgate rules and guidelines establishing an appeal procedure for employees, which shall include the orderly conduct of proceedings. An employee in the preferred service system, who has successfully completed the required probationary period, may file a complaint concerning the application of a law, rule, or policy to the dismissal, demotion, or suspension of the employee. If the term of the suspension is less than three (3) days, the right to appeal is limited to an appeal to the commissioner under Step II, codified as subdivision (h)(1)(B). An employee shall not be entitled to appeal a suspension of less than three (3) days to the board of appeals. An executive service employee, however, does not have standing to file a complaint under this section. A complaint filed under this section must identify the law, rule, or policy that was allegedly violated. An employee who files a complaint under this section must file the complaint as soon as possible after the occurrence of the act or condition complained of, and not later than fourteen (14) days after the date the employee became aware, or by the exercise of reasonable diligence should have become aware, of the occurrence giving rise to the complaint. If an employee fails to file the complaint within the fourteen-day period, the right to appeal under this chapter lapses and is deemed to have been waived in its entirety by the employee. For the purposes of this chapter, a complaint is filed when the appointing authority, the commissioner, or the board of appeals, depending on whether the complaint is being made under Step I, II or III as provided in subsection (h), receives a written or electronic copy of the complaint. A remedy granted under this section may not extend back more than thirty (30) days before the complaint was filed. The following appeal procedure is established: Step I: The complainant shall reduce the complaint to writing and file the complaint with the complainant's appointing authority. The appropriate appointing authority or designee shall conduct any investigation considered necessary, meet with the complainant in person, and issue a decision, in writing, not later than fifteen (15) days after the date the appointing authority receives the complaint. The appointing authority or designee shall provide to the complainant in advance of the meeting a copy of any and all documents or other evidence in the appointing authority's or designee's possession that is relevant to the meeting, including, but not limited to, reports, videos, and recordings. The appointing authority or designee must make all reasonable efforts to gather all relevant documents and evidence that are germane to the meeting prior to conducting the meeting for purposes of providing such information to the complainant. If a document or other evidence is part of an active criminal investigation or prosecution by any law enforcement agency, or is otherwise deemed confidential under existing law, then the document or evidence must not be provided in advance of the hearing; provided, that the employee may view the document or other evidence during the meeting, if such document or other evidence will be relied upon by the appointing authority for purposes of issuing a decision. If viewed, the employee shall acknowledge in writing that the employee viewed the document or evidence. Any documents or evidence in possession of the appointing authority or designee prior to the meeting that was not provided to the complainant in accordance with this subdivision (h)(1)(A) must not be considered by the appointing authority for purposes of issuing a decision. Prior to issuing a decision, the appointing authority or designee may independently collect new evidence or information regarding any factual issue raised during any proceeding under Step I. If the appointing authority or designee independently collects such evidence or information, the appointing authority or designee shall provide a copy of the evidence or information, as soon as practicable, to the complainant. Copies of confidential evidence or information shall not be distributed to the complainant, but the complainant shall be afforded an opportunity to view such evidence or information. The complainant, not later than three (3) days after receiving the evidence or information, may submit a response to the appointing authority or designee in support or opposition to the new evidence or information, and may include with the response any evidence or information obtained by the complainant relating to the response. The appointing authority or designee shall not issue a decision under this subdivision (h)(1)(A) until the complainant has been afforded the opportunity to respond to any new evidence or information in accordance with this subdivision (h)(1)(A), unless doing so violates the fifteen-day timeframe in this subdivision (h)(1)(A). If the appointing authority does not issue a decision fifteen (15) days after the appointing authority receives the complaint, the complainant may appeal to the commissioner by filing the complaint in accordance with Step II. Step II: If the appointing authority does not find in favor of the complainant, the complainant may appeal to the commissioner of human resources by filing the complaint not later than fourteen (14) days after the date of the appointing authority's written decision. The commissioner of human resources shall review the complaint and the appointing authority's decision, and issue a decision, in writing, not later than thirty (30) days after the date the complaint was filed with the commissioner. The commissioner shall provide to the complainant a copy of any and all documents or other evidence in the commissioner's possession that is relevant to the review of the complaint, including, but not limited to, reports, videos, and recordings. The commissioner must make all reasonable efforts to gather all relevant documents and evidence that are germane to the review of the complaint prior to issuing a decision for purposes of providing such information to the complainant. If a document or other evidence is part of an active criminal investigation or prosecution by any law enforcement agency, or is otherwise deemed confidential under existing law, including any documents viewed under subdivision (h)(1)(A), then the document or evidence must not be provided to the employee; provided, that the employee may make an appointment with the department of human resources to view the document or other evidence, if such document or other evidence will be relied upon by the commissioner for purposes of issuing a decision. If viewed, the employee shall acknowledge in writing that the employee viewed the document or evidence. Any documents or evidence in possession of the commissioner prior to issuing a decision that was not provided to the complainant or that the complainant was not allowed to view prior to the issuance of the decision must not be considered by the commissioner for purposes of issuing the decision. Prior to issuing a decision, the commissioner may independently collect new evidence or information regarding any factual issue raised during any proceeding under Step I. If the commissioner independently collects such evidence or information, the commissioner shall provide a copy of the evidence or information, as soon as practicable, to the complainant. Copies of confidential evidence or information shall not be distributed to the complainant, but the complainant shall be afforded an opportunity to view such evidence or information. The complainant, not later than three (3) days after receiving the evidence or information, may submit a response to the appointing authority or designee in support or opposition to the new evidence or information, and may include with the response any evidence or information obtained by the complainant relating to the response. The commissioner shall not issue a decision under this subdivision (h)(1)(B)(i) until the complainant has been afforded the opportunity to respond to any new evidence or information in accordance with this subdivision (h)(1)(B)(i), unless doing so violates the thirty-day timeframe in this subdivision (h)(1)(B)(i). If the commissioner does not issue a decision thirty (30) days after the commissioner receives the complaint, the complainant may appeal to the board of appeals in accordance with Step III. At Step II of the appeal procedure, it is the duty of the employee to provide written argument to the commissioner setting out why the employee believes the Step I decision was in error and ought to be overturned, reduced, or amended. An employee failing to provide such information to the commissioner shall be considered in default and forfeits the ability to appeal to Step III. Step III: The complainant or state agency may appeal in writing to the board of appeals not later than fourteen (14) days after the date the complainant, or in the case of a state agency, the state agency receives written notice of the action taken by the commissioner of human resources. Within ten (10) days after the receipt of the appeal, the administrative law judge assigned to assist the board of appeals in the proceedings related to the appeal shall determine whether all previous procedural requirements were completed properly and in a timely manner. If a procedural requirement has not been met, the appeal shall be dismissed. If the procedural requirements have been met, the board of appeals shall conduct proceedings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as modified herein, to determine if the law, rule, or policy specified in the complaint was violated. Each hearing under this chapter shall occur before a panel of at least three (3) members of the board of appeals, assisted by one (1) administrative law judge (ALJ). The ALJ shall assist at the hearing by ruling on questions of the admissibility of evidence, swearing witnesses, advising members of the board of appeals on the law of the case, and ensuring that the proceedings are carried out in accordance with this chapter and other applicable law. At no time shall the ALJ take part in the determination of a question of fact. An ALJ, upon timely motion, may decide any procedural question of law. The board of appeals shall issue its final decision in each proceeding no later than one hundred twenty (120) days after the date of the filing of the appeal with the board of appeals. In order to ensure that the board of appeals issues its final decision no later than one hundred twenty (120) days after the date of the filing of the appeal, the following conditions shall be imposed on hearings before the board of appeals: The parties shall participate in a pre-hearing conference no later than twenty (20) days after the filing of the appeal. At the pre-hearing conference, a date must be set on which the hearing before the board of appeals will be held; All discovery must be completed no later than sixty (60) days after the filing of the appeal; All motions, both dispositive and non-dispositive, must be ruled on no later than thirty (30) days before the date of the hearing; The department shall forward the record of the case, which consists of the Step I complaint, the Step I decision, the Step II complaint and the commissioner's Step II decision, to sitting board members prior to the Step III meeting for preliminary review. Evidentiary attachments to the aforementioned documents shall not be considered part of the record and shall not be submitted to the board members prior to the Step III hearing; Extensions on the deadlines provided herein are only to be granted in extraordinary circumstances. In any event, the granting of an extension shall not extend the one-hundred-twenty-day time period for the board of appeals to issue its decision; Continuances of the hearing before the board of appeals may be granted only in extraordinary circumstances, as determined by the board of appeals or the ALJ; and Neither party shall be entitled to a petition for reconsideration under § 4-5-317. Decisions of the board of appeals are subject to judicial review in accordance with the Uniform Administrative Procedures Act and the rules and regulations promulgated thereunder, in each case as amended in this chapter. The board of appeals may award attorney's fees and costs to a successfully appealing employee. The commissioner shall establish by rule the manner in which those fees shall be determined. The unsuccessful party or other state agency shall pay any fees or costs awarded under this subsection (k). If the employee is successful in obtaining reinstatement to a position from which the employee has been terminated, the employee shall be reinstated to a position in the county in which the employee was employed at the time of termination. The commissioner may grant exceptions on a case-by-case basis. In any case in which a successful complainant has been awarded reinstatement, back pay or attorney's fees, the agency involved shall have a period of thirty (30) days from the date of the final order within which to provide reinstatement, back pay and/or attorney's fees. A complainant who does not appear, personally, electronically or through the appearance of counsel, for a hearing before the board of appeals waives the complainant's hearing at Step III. The board shall enter a default judgment against the complainant and the decision of the commissioner at Step II shall become final. In no instance shall the board of appeals proceed with the Step III hearing without the presence of the complainant personally, electronically, or through the appearance of counsel. An order of the board of appeals is considered final upon execution by the presiding board member. Neither settlement agreements issued voluntarily by the parties nor decisions rendered by the board require a signature of the administrative law judge to be considered final. Once executed, the department shall forward a copy to the administrative procedures division for record purposes. The parties in a Step I appeal may make an audio tape recording of the proceeding. In a Step I appeal, if more than one (1) representative of the state agency, excluding the hearing officer, is in attendance, then the complainant may have a non-lawyer representative participate in the appeal. Acts 2012, ch. 800, § 39; 2014, ch. 689, §§ 4-6; 2014, ch. 701, § 1; 2016, ch. 837, §§ 1-4; 2018, ch. 904, §§ 1-3. Compiler's Notes. Acts 2012, ch. 800, § 1 provided that the act, which repealed and reenacted this part, shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.” Former part 3, §§ 8-30-301 — 8-30-333 (Acts 1939, ch. 221, §§ 8, 14-27, 30-34, 37; 1947, ch. 6, §§ 1, 2; 1949, ch. 112, § 1; C. Supp. 1950, §§ 1034.30, 1034.36 — 1034.49, 1034.52 — 1034.56, 1034.59 (Williams, §§ 423.24h, 423.24n — 423.24z, 423.24aa, 423.24dd — 423.24hh, 423.24kk); Acts 1953, ch. 131, § 1; impl. am. Acts 1959, ch. 9, § 4; Acts 1959, ch. 146, §§ 1, 2; impl. am. Acts 1961, ch. 97, §§ 2, 4; Acts 1961, ch. 211, § 1; 1967, ch. 242, § 1; 1967, ch. 366, §§ 2, 3; 1971, ch. 264, § 1; 1972, ch. 453; 1979, ch. 241, § 1; 1979, ch. 262, §§ 1, 2; T.C.A. (orig. ed.), §§ 8-3201 — 8-3-3220 , 8-3222 — 8-3227; Acts 1980, ch. 701, §§ 8,9; 1980, ch. 834, § 1; 1980, ch. 880, § 1; Acts 1980, ch. 882, § 1; 1981, ch. 423, § 1; 1981, ch. 429, § 6; 1981, ch. 430, § 1; 1982, ch. 853, § 1; 1982, ch. 884, § 1; 1983, ch. 79, §§ 1-4; 1983, ch. 279, § 1; 1983, ch. 288, § 1; 1984, ch. 622, § 1; 1984, ch. 658, § 1; 1984, ch. 842, § 1; 1986, ch. 869, §§ 4-7, 10-15, 18, 23; 1987, ch. 69, §§ 2, 3, 5; 1987, ch. 101, § 1; 1987, ch. 353, § 1; Acts 1987, ch. 359, § 1; 1988, ch. 576, § 1; 1988, ch. 612, §§ 1, 2; 1988, ch. 778, § 1; 1988, ch. 893, § 1; 1989, ch. 44, § 1; 1989, ch. 284, § 1; 1989, ch. 591, § 113; 1990, ch. 723, § 1; 1991, ch. 48, §§ 1-3; 1991, ch. 238, § 1; 1992, ch. 609, §§ 1, 2; 1992, ch. 729, § 1; 1992, ch. 792, §§ 1, 2; 1993, ch. 268, §§ 1, 2; 1993, ch. 290, §§ 1, 2; 1993, ch. 496, § 1; 1994, ch. 631, § 1; 1994, ch. 671, §§ 1, 2; 1996, ch. 947, § 1; 1998, ch. 736, § 1; 1999, ch. 520, § 32; 1999, ch. 534, § 1; 2000, ch. 656, § 2; 2001, ch. 159, § 1; 2003, ch. 355, § 11; 2009, ch. 1, § 2; 2010, ch. 746, § 1; 2010, ch. 794, § 1; 2011, ch. 47, § 5), concerning civil service appointments and tenure, was repealed and reenacted by Acts 2012, ch. 800, §§ 22-41, effective October 1, 2012. Amendments. The 2016 amendment, in (a), substituted “rules and guidelines” for “regulations”, and added “, which shall include the orderly conduct of proceedings” at the end; added the third through seventh sentences in (h)(1)(A); added the third through seventh sentences in (h)(1)(B)(i); and added the second and third sentences in (q). The 2018 amendment added the third through seventh sentences in (h)(1)(A) and (h)(1)(B)(i); and deleted the former last sentence in (q) which read: “If more than one (1) representative of a state agency or employee is in attendance at a Step I proceeding, the state agency or employee shall establish good cause for the attendance of the additional representatives at the Step I proceeding. If the state agency or employee fails to establish good cause, the commissioner or designee may exclude the additional representatives from the proceeding.” Effective Dates. Acts 2016, ch. 837, § 5. April 21, 2016. Acts 2018, ch. 904, § 5. May 3, 2018. Cross-References. Confidentiality of public records, § 10-7-504 .