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AP III, Sec. 8 Separations, disciplinary actions, and appeals

Baldwin's Kentucky Revised Statutes AnnotatedAdministrative Procedures of the Court of JusticeEffective: February 1, 2021

Baldwin's Kentucky Revised Statutes Annotated
Administrative Procedures of the Court of Justice
Part III. Personnel Policies
Effective: February 1, 2021
Administrative Procedures, AP III, Sec. 8
AP III, Sec. 8 Separations, disciplinary actions, and appeals
Currentness
SECTION 8.01 Resignation
(1) An employee who wants to resign his or her position with the KCOJ must notify his or her appointing authority in writing at least 14 calendar days prior to the effective date of the resignation. If the employee provides verbal notice of the resignation and is unwilling or unable to put the notice in writing, the appointing authority must document the verbal notice in writing and have the employee or a witness sign the notification. The appointing authority must notify the AOC HR Department immediately upon receipt of the resignation.
(2) A resignation is considered accepted immediately upon notification to the appointing authority. However, a resignation may be cancelled after it is received if the appointing authority agrees to the cancellation.
(3) An employee who fails to notify his or her appointing authority in writing at least 14 calendar days prior to the effective date of the resignation will lose annual leave for each day short of the 14 calendar days, unless waived by the appointing authority. Full-time employees will lose annual leave at the rate of 7.5 hours for each calendar day.
(4) An employee who resigns his or her position while disciplinary action is pending will be considered to have resigned with prejudice and will not be rehired by the KCOJ without the written approval of the AOC Director or designee.
(5) An employee who resigns his or her position will not be entitled to any grievance or appeal rights.
(6) An employee who has been absent without prior approval for a period of three consecutive scheduled work days will be considered to have resigned from employment with the KCOJ and will not be entitled to any grievance or appeal rights.
SECTION 8.02 Grievance Policy
(1) General
(a) The KCOJ recognizes that problems and complaints may arise during the course of the work day. The KCOJ believes that every effort should be made to resolve these differences and concerns, and therefore has developed a grievance policy.
(b) A grievance is a complaint filed by an employee that concerns working conditions or employment actions other than a demotion, dismissal, or disciplinary action that results in a loss of pay or other benefits of employment for greater than three working days. Complaints concerning a demotion, dismissal, or disciplinary action that result in a loss of pay or benefits of employment for greater than three days must be brought pursuant to the appeal procedures set forth in Section 8.06 of these Policies.
(c) An employee is entitled to file a grievance without interference, coercion, discrimination, or retaliation.
(2) Grievance Procedure
(a) An employee who has a grievance must first discuss it with his or her immediate supervisor or appointing authority unless it would not be appropriate under the circumstances. If the employee is unable to resolve the issue with his or her immediate supervisor or appointing authority, the employee may file a written grievance with the AOC HR Department.
(b) A grievance must be filed in writing with the HRA on the KCOJ Employee Complaint Form on or before the fifth business day after the work condition or employment action arose or on or before the fifth business day after the employee becomes aware of the employment action or work condition. The written grievance should describe, in detail, the factual basis for the complaint, provide the names of any relevant witnesses, and describe any relevant documents.
(c) The HRA will investigate and evaluate the complaint. The HRA will consult with the employee filing the complaint, the appointing authority, and relevant witnesses, and consider any other pertinent submissions and sources of information prior to making a recommendation to the HR Director.
(d) The HR Director will notify the employee in writing of the decision on the grievance within 30 business days of receiving the grievance unless the AOC Director or designee grants a reasonable extension of time for good cause shown.
(e) If the employee is dissatisfied with the HR Director's decision, the employee may request a review by the AOC Director by filing a written request within five business days after receiving the HR Director's decision. The written request should describe in detail the basis for the review and the relief requested. The AOC Director or designee must issue a written opinion within 30 business days. The opinion will be final and not subject to appeal.
(f) If the grievance is against the HR Director or HRA, the General Counsel will act in place of the HR Director.
SECTION 8.03 Disciplinary Actions
(1) Disciplinary actions are generally progressive in nature to allow KCOJ employees an opportunity to improve their performance or their behavior and remain productive employees. The disciplinary actions below are described in a step-by-step method and are intended to provide guidance to the appointing authority. However, the appointing authority may deviate from the disciplinary process depending on the situation.
(a) Step One: Verbal Reprimand
Verbal reprimands are used as warnings for less serious disciplinary matters. Written documentation of the occurrence of the verbal reprimand will be placed in the employee's personnel file.
(b) Step Two: Written Reprimand
A written reprimand must clearly identify the conduct and circumstances for which the employee is being reprimanded, the corrective action to be taken by the employee, and the potential consequences of the employee's failure to correct his or her behavior. The HRA will prepare or review the written reprimand and present it to the appointing authority. The appointing authority or designee must present the written reprimand to the employee in person and in the presence of a witness, and have the employee read and sign the reprimand to confirm he or she received it. The employee has the option of adding his or her comment(s) to the written reprimand. If the employee refuses to sign the written reprimand, the document must indicate such refusal and must be signed by the appointing authority or designee and the witness. The written reprimand will be placed in the employee's official personnel file and will be labeled as a written reprimand.
(c) Step Three: Disciplinary Probation and/or Suspension
(i) Disciplinary Probation
a. Disciplinary probation will consist of a period of regular employment during which the appointing authority re-evaluates the employee for the purpose of determining whether the employee's deficiencies are being corrected.
b. An employee may be placed on disciplinary probation for a specified period not to exceed six months. If an employee who is serving a disciplinary probationary period is granted leave in excess of 10 working days, the employee's disciplinary probationary period may be extended for the same length of time as the granted leave.
c. The HRA will prepare the disciplinary probation letter and present it to the appointing authority. The appointing authority or designee must present the disciplinary probation letter to the employee in person and, in the presence of a witness, have the employee read and sign it to confirm he or she received it. The employee also has the option of adding his or her comments to the probation letter. If the employee refuses to sign the disciplinary probation letter, the document must indicate such refusal and must be signed by the appointing authority or designee and the witness.
d. The disciplinary probation letter must contain:
1. The effective date and length of the disciplinary probation period;
2. The employee's conduct or work performance deficiencies that have resulted in the disciplinary probation;
3. Corrective action to be taken by the employee; and
4. A statement notifying the employee that his or her failure to correct the workplace deficiencies, or any additional workplace deficiencies during the probationary period, may result in dismissal from employment.
e. A copy of the disciplinary probation letter must be placed in the employee's official personnel file.
f. If a tenured employee is dismissed before the end of the disciplinary probation period, the appeal provisions of Sections 8.05 and 8.06 of these Policies will apply.
(ii) Suspension
a. An employee may be suspended with or without pay for a disciplinary cause, not to exceed three working days.
b. The HRA will prepare the suspension letter and present it to the appointing authority. The appointing authority or designee must issue the suspension letter to the employee in person and, in the presence of a witness, have the employee read and sign it to confirm he or she received it. The employee has the option of adding his or her comment(s) to the suspension letter. If the employee refuses to sign the suspension letter, the document must indicate such refusal and must be signed by the appointing authority or designee and the witness.
c. The suspension letter must contain:
1. The effective date of the suspension and length of the suspension period;
2. The employee's conduct and work performance deficiencies that have resulted in the suspension and the corrective action to be taken by the employee; and
3. A statement notifying the employee that his or her failure to correct the workplace deficiencies, or any additional workplace deficiencies during the probationary period, may result in dismissal from employment.
d. A copy of the suspension letter and a PAR must be submitted to the HRA and placed in the employee's official personnel file.
e. If the employee files a grievance pursuant to Section 8.02 of these Policies and the suspension is reversed, the employee will be reinstated with full pay for all working days he or she was suspended without pay.
(2) Investigative Leave
Pending an investigation of any disciplinary matter, the Chief Justice or designee, after consulting with the appointing authority, may place an employee on paid investigative leave for a period not to exceed five working days. Investigative leave for more than five working days must be approved by the Chief Justice or the AOC Director and may be with or without pay. If the investigative leave is with pay, the employee will not be required to use any earned leave. In all instances of investigative leave, the appointing authority must submit a PAR to the HR Director indicating the effective dates of paid or unpaid leave.
(3) The Chief Justice, as the executive head of the KCOJ, has the constitutional authority and responsibility to act in the best interests of the KCOJ. Accordingly, when the Chief Justice determines that an employee has deviated from good behavior or satisfactory performance of duties, an employee may be disciplined, up to and including dismissal, over the objection of the employee's appointing authority.
SECTION 8.04 Dismissal
(1) Whenever the appointing authority has reasonable evidence that an employee under his or her management has substantially deviated from good behavior or satisfactory performance of duties, the appointing authority, after consultation with the HR Director, may dismiss the employee from his or her position.
(2) Grounds for dismissal include, but are not limited to, the following:
(a) Conviction or plea of guilty to any misdemeanor or felony;
(b) Refusal, failure, or inability to perform reasonable work duties or legal duties required by the appointing authority;
(c) Recurring absences or tardiness from duty without good cause or reasonable evidence of good cause;
(d) Refusal or inability to follow the prescribed procedures for handling money or maintaining records as required by the KCOJ or by any internal department policies or guidelines;
(e) Use of drugs, alcohol, or other intoxicants during working hours or the inability to work efficiently and effectively because of off-duty use of drugs, alcohol, or other intoxicants;
(f) Unprofessional conduct or habitual rudeness toward fellow employees, supervisors, or the general public;
(g) Two or more instances of disciplinary actions taken against an employee during the 24 months before the present dismissal action;
(h) Insubordinate conduct or conduct that is intended to embarrass, harass, or bring disrepute to the KCOJ, its employees, or elected officials;
(i) Failure to cooperate with an AOC audit or investigation of any kind;
(j) Failure to comply with these Policies or other office policies of the employee's department;
(k) Theft, intentional damage, or destruction of KCOJ property;
(l) Falsification of records; or
(m) Unsafe behavior in the workplace including dangerous horseplay and fighting.
(3) The appointing authority, including the Chief Justice when applicable, must follow these procedures when dismissing a tenured employee:
(a) The appointing authority or designee, after consultation with and review by the HR Director, must present the employee, in writing, with his or her intent to dismiss. The intent to dismiss letter must be signed by the appointing authority or designee and must inform the employee of the following:
(i) The reasons for the dismissal including instances of poor work performance of duties, workplace misconduct, or unlawful activity;
(ii) Any disciplinary actions taken against the employee within the last 24 months;
(iii) The effective date of the impending dismissal;
(iv) That he or she is on paid administrative leave for five business days, during which time the employee has a right to a pre-dismissal meeting with his or her appointing authority or designee to refute the reasons for the dismissal; and
(v) An explanation of appeal rights available to the tenured employee should he or she disagree with the action of dismissal.
(b) The intent to dismiss letter will be issued to the employee by the appointing authority in person with a witness present. If the employee is not available, efforts will be made to contact the employee by phone, electronic mail, and U.S. mail to inform the tenured employee of the proposed action.
(c) The appointing authority or designee must conduct a pre-dismissal meeting within five business days of issuing the intent to dismiss letter, if requested by the employee.
(d) Employment with the KCOJ will end after the five business days of administrative leave, unless the appointing authority withdraws his or her intention to dismiss. The employee will be notified in writing by U.S. mail.
(e) Should the employee decide to appeal the dismissal, the procedures outlined in Section 8.06 of these Policies will apply.
SECTION 8.05 Right to Appeal a Disciplinary Action Including Dismissal
(1) All tenured employees of the KCOJ have the right to appeal the following disciplinary actions within 14 calendar days after receiving written notice: demotions, dismissals, and other disciplinary actions that result in loss of pay or other benefits of employment for greater than three days.
(2) An employee failing to file an appeal before the deadlines described in this section waives his or her right to any further administrative remedies or actions under these Policies.
SECTION 8.06 Appeal Procedures for Dismissal, Demotion, or Suspension Over Three Days
(1) Hearing Officers
The Chief Justice shall appoint five retired Judges or Justices in good standing with the Kentucky Bar Association to serve as Hearing Officers. The term of service for the appointed Hearing Officers will be two years. Only one appointee will serve as a Hearing Officer for an appeal. If the Chief Justice directly dismisses the employee involved in an appeal, a Special Hearing Officer will be appointed by the Deputy Chief Justice.
(2) Appeal Procedures
(a) A tenured employee seeking an appeal must submit a written appeal on the KCOJ Appeal Form to the HRA within 14 calendar days following receipt of the disciplinary action, dismissal, or final decision. The appeal form is the only document that may be submitted.
(b) The appeal must state the specific reasons for the appeal and include a copy of the dismissal letter or notice of disciplinary action.
(c) After receiving the appeal, the HRA will designate a Hearing Officer from the list approved by the Chief Justice. The HRA will make such designation after determining that the proposed Hearing Officer is available to serve and does not have a conflict of interest. The HRA will then provide the employee and appointing authority written notice of the designation.
(d) The Hearing Officer must conduct a hearing within 60 calendar days from the date that the appeal was filed with the HRA.
(3) Pre-Hearing Conference
(a) Upon reasonable notice to all parties, the Hearing Officer may convene and conduct a pre-hearing conference at his or her own discretion or at the request of a party to the appeal. The pre-hearing conference may take place in person or by phone. The purpose of the pre-hearing conference will be to explore mediation and settlement possibilities; prepare stipulations; clarify issues; issue subpoenas; and issue rulings regarding witnesses, evidence, and other matters that will promote the orderly and prompt conduct of the hearing. The Hearing Officer may require the parties to submit an overview of the testimony expected from the proposed witnesses.
(b) Upon conclusion of a pre-hearing conference, the Hearing Officer shall issue a pre-hearing order incorporating all matters determined at the pre-hearing conference. If a pre-hearing conference is not held, the Hearing Officer may issue a pre-hearing order, based upon the appeal documents, to regulate the conduct of the hearing.
(c) The pre-hearing conference will be closed to the public.
(4) Conduct of Hearing
(a) The Hearing Officer shall preside over the hearing and shall regulate the course of the proceedings in a manner that will promote the orderly and prompt conduct of the hearing. When a pre-hearing order has been issued, the Hearing Officer shall regulate the hearing in conformity therewith.
(b) The Hearing Officer, at appropriate stages of the appeal, shall give the parties an opportunity to file motions, objections, offers of settlement, proposed findings of fact, and a recommended order.
(c) The Hearing Officer may issue subpoenas and discovery orders at his or her discretion when requested by a party and address all matters thereto.
(d) To the extent necessary for the full disclosure of all relevant facts and issues, the Hearing Officer shall give all parties the opportunity to present opening and closing arguments, respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as restricted by a pre-hearing order or a determination by the Hearing Officer that the proposed evidence is irrelevant, immaterial, unduly repetitious, or otherwise inadmissible. If the facts of the matter would give rise to a criminal proceeding, no person shall be compelled to give evidence against himself or herself.
(e) Any party to an appeal may participate in-person or be represented by counsel. The Hearing Officer may conduct all or part of the hearing or a pre-hearing conference by phone if each party to the hearing has an opportunity to hear the entire proceeding as it occurs. The Hearing Officer shall make the determination of whether to permit all or part of the hearing to be conducted by phone. The Hearing Officer shall have the authority to administer oaths to witnesses for each party, conduct investigations and other related fact-finding efforts, and interview the witnesses presented by each party. The Hearing Officer shall ensure that an accurate and complete record of the hearing is made.
(f) The employee and the appointing authority or designee may present witnesses and documentary evidence to be evaluated by the Hearing Officer. It shall be the sole responsibility of each party to assure the attendance of their respective witnesses. In the event that a proposed witness fails to appear or the employee fails to request a subpoena be issued by the Hearing Officer, a continuance will not be granted, except for extraordinary circumstances as determined by the Hearing Officer.
(g) If a party fails to attend or participate in a pre-hearing conference or hearing or fails to comply with the orders of the Hearing Officer, the Hearing Officer may adjourn the proceedings and issue a default order granting or denying relief as appropriate or may conduct the proceedings without the participation of the defaulting party, having due regard for the interests of justice, and the orderly and prompt conduct of the proceedings. A default order shall be considered a recommended order.
(h) The hearing may be closed to the public for good cause shown, at the discretion of the Hearing Officer.
(i) No later than 14 calendar days prior to the hearing, unless otherwise ordered by the Hearing Officer at the pre-hearing conference, each party shall provide to the HRA the documentary evidence to be introduced at the hearing, as well as a list of witnesses to be called. The HRA shall forward, as soon as practical, the documentary evidence and the list of witnesses to be introduced by each party to the Hearing Officer and the opposing party. Nothing in this section shall be construed as giving a party the right to examine or copy the personal notes, observations, or conclusions of the appointing authority or other KCOJ personnel, unless exculpatory in nature, nor shall it be construed as allowing access to the work product of counsel for the KCOJ.
(j) In all hearings, unless otherwise provided by statute or federal law, the party proposing that the KCOJ take action has the burden to show the propriety of the action. The KCOJ has the burden to show the propriety of a disciplinary action imposed. The party asserting an affirmative defense has the burden to establish that defense. The party with the burden of proof on any issue has the burden of proof going forward and the ultimate burden of persuasion as to that issue. The ultimate burden of proof in all hearings is met by a preponderance of evidence in the record. Failure to meet the burden of proof is grounds for a recommended order from the Hearing Officer.
(k) The Hearing Officer shall issue his or her findings of fact and conclusions based solely upon the evidence on the record. The Hearing Officer shall exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this Commonwealth. Hearsay evidence may be admissible, if in the opinion of the Hearing Officer, it is of the type that reasonable and prudent people would rely upon in their daily affairs.
(l) All testimony shall be made under oath. Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party. All objections to evidentiary offers shall be noted in the record.
(m) The Hearing Officer shall issue the written findings and recommendation to the AOC Director within 14 calendar days from the completion of the hearing. The Hearing Officer may request, in writing, an extension of time not to exceed 14 calendar days from the Chief Justice, or Deputy Chief Justice when appropriate, which may be granted based upon good cause shown.
(n) The Hearing Officer's recommendation will be copied to all parties and the HRA for entry into the employee's personnel file. The Hearing Officer's final recommendation is not subject to further administrative appeal.
(o) The AOC Director will evaluate the recommendation of the Hearing Officer and make the final decision in regard to the appeal. The AOC Director's final decision is not subject to further administrative appeal.
(p) If either party is dissatisfied with the decision of the AOC Director, an original action may be filed within 30 calendar days after the date of the AOC Director's final decision in Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides.

Credits

Amended by Order 2022-28, eff. 2-1-2022. Adopted by Order 2021-05, eff. 2-1-21
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Administrative Procedures, AP III, Sec. 8, KY ST ADMIN P AP III, Sec. 8
Current with amendments received through March 1, 2024. Some sections may be more current, see credits for details.
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