AP III, Sec. 8 Separations, disciplinary actions, and appeals
Baldwin's Kentucky Revised Statutes AnnotatedAdministrative Procedures of the Court of Justice
Administrative Procedures, AP III, Sec. 8
AP III, Sec. 8 Separations, disciplinary actions, and appeals
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.
(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.
SECTION 8.02 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.
(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.
(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.
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.
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.
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.
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 comment(s) 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.
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.
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.
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.
(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 substantially deviated from good behavior or satisfactory performance of duties, an employee may be dismissed over the objection of the employee's appointing authority.
(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:
(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.
SECTION 8.05 Right to Appeal a Disciplinary Action Including Dismissal
SECTION 8.06 Appeal Procedures for Dismissal, Demotion, or Suspension Over Three Days
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.
(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.
(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.
(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.
(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 persons would rely upon in their daily affairs.
(m) The Hearing Officer shall issue the written findings and recommendation to the AOC Director within 60 calendar days from the date the appeal was filed. The Hearing Officer may request, in writing, an extension of time not to exceed 30 calendar days from the Chief Justice, or Deputy Chief Justice when appropriate, which may be granted based upon good cause shown.
HISTORY: Adopted by Order 2018-06, eff. 4-15-18
Administrative Procedures, AP III, Sec. 8, KY ST ADMIN P AP III, Sec. 8
Current with amendments received through January 15, 2020.
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