UCSB HR: Local Personnel Policies for Staff Members

UCSB Local Personnel Policies for Staff Members

70 Complaint Resolution (Appendix A)

A. FACTFINDING PROCEDURE

The Factfinding process is designed to provide additional information from a neutral investigator to a Vice Chancellor responsible for a final appeal decision in a complaint. The factfinder's role is to report the facts in a dispute through a review of documents and interviews of the parties and other witnesses. The factfinder does not determine the outcome in a dispute, nor does the factfinder recommend a solution to the Vice Chancellor.

The factfinder is entitled to have access to any documents or witnesses which s(he) believes to be necessary to complete a thorough investigation of the issues in a formal complaint under University policy.

Factfinders should interview parties and witnesses separately. The University policy does not intend for the factfinder to conduct a hearing. The factfinder, however, should attempt to resolve conflicts in the information provided on important issues through discussions with the parties, separately.

The factfinder may share documents with the parties to the complaint, that is, the employee and department manager, but must not disclose the written complaint to other witnesses interviewed. However attachments to the complaint may be shared with other witnesses. The factfinder should share all documents reviewed with the complainant and the Department representative, so that each side in the dispute has the opportunity to address all documents considered by the factfinder.

At the conclusion of interviews of the parties to the complaint and other witnesses, if any, and reviews of relevant documents, the factfinder shall prepare a written report to the Vice Chancellor, which shall include the following:

A statement of the position of the parties in the dispute;
A statement of the issues under review by the factfinder;
A listing of the documents reviewed and names of the employees interviewed;
A summary of all the information received;
A statement of findings of fact based on the review, which relate to the issues of the case and the positions of the parties. The factfinder shall not recommend a decision in the dispute; and
All written documentation of the factfinder's review shall be attached to the factfinder's report.

If requested, University policy interpretations shall be provided to the factfinder by a Human Resources representative, and shared with the parties to the dispute.

The factfinder should proceed expeditiously to complete the investigation. The factfinder's written report should be provided to the designated Vice Chancellor within 30 days of the appointment. The Labor Relations Office shall inform the parties of the anticipated completion date, if more than 30 days is required to complete the factfinding.

University employees have the right to be represented during the factfinding process; therefore, interviews with the complainant may include his/her representative.

70 COMPLAINT RESOLUTION (Appendix B)

GUIDELINES FOR THE CONDUCT OF UNIVERSITY HEARINGS

A. INTRODUCTION

University Policy 70 provides for administrative hearings as the final step in the process to resolve some Professional and Support Staff (PSS) employee complaints. Hearing officers are asked to conduct fair, impartial, and orderly hearings, to determine facts and policy violations (if any), and to submit a written report of their final and binding decisions.

Hearings become necessary when disputes between an employee and the department remain unresolved after exhaustion of the prior steps of the complaint resolution process. Therefore, it should be understood that hearings are adversarial in nature and that both parties to the proceedings (the employee and the department management) are entitled to the opportunity to present and establish their opposing contentions fully. Administrative hearings somewhat resemble a civil trial, but considerably less formality is required, since these hearings are administrative proceedings to consider the application of Personnel policies established by the University.

B. HEARING OFFICER'S AUTHORITY

The hearing officer's authority arises out of, and is limited by, the provisions of University policy . Although these guidelines are based for the most part upon generally accepted arbitration practices, the University is not bound by the Voluntary Rules of the American Arbitration Association or the Administrative Procedures Act of the State of California.

C. HEARING GUIDELINES

The following are guidelines to assist hearing officers in conducting hearings and in the preparation of hearing reports.

The hearing officer must determine:
1. The issues to be decided, that is, the issues in the complaint accepted for processing by the University or the issues stipulated by the parties which are within the scope of the complaint;
2. The facts of the case;
3. The applicable University policies listed in the complaint and which have been allegedly violated; and
4. In corrective action, dismissal or layoff complaints, whether the action was consistent with applicable University policies.

The hearing officer is required to make findings of fact based on the evidence presented at the hearing. This means that, except with the consent of both parties, the hearing officer may not secure information concerning the complaint from sources outside the hearing, nor consult with persons other than in the regular course of the hearing. Hearing officers shall not hear a case in which they have been personally involved or in which they are biased. In addition, only applicable policies, the complaint, response to the complaint, and other material to which the parties have stipulated may be submitted to the hearing officer in advance in order to expedite proceedings.

Unless both parties otherwise agree, hearings shall be closed to everyone other than the employee, the employees representative, the department representative, the University's representative, a Human Resources Department representative, and the person designated to record the hearing (if other than a Human Resources representative). Unless both parties otherwise agree, witnesses are present only when they are testifying.

D. HEARING PROCEEDINGS

1. At the outset, the hearing officer should state how the proceedings will be conducted and inquire if the parties have explored the possibility of settlement. After going on the record, the hearing officer should:
1. Identify the individuals present;
2. State what documents have been submitted in advance by the parties; and
3. Define the issues to which the hearing will be limited.
In clarifying the issues, the hearing officer should consider the written complaint, the department's response, and University Complaint Resolution Policy. The Hearing officer should attempt to have the parties stipulate as to the issues in the case, and prepare a written statement of the issues. The hearing officer should ensure the record of the hearing is clear, that testimony and statements are identified, and that procedural rulings are understandable to the parties and their representatives.

For corrective action, layoff or dismissal cases, management has the burden of proof, and the order of proceedings is as follows (unless both parties otherwise agree):
1. A brief opening statement by management followed by a similar opening statement by the complainant;
2. . Presentation of evidence by management;
3. Cross-examination by the complainant (Redirect and recross-examination as appropriate);
4. Presentation of evidence by the grievant;
5. Cross-examination by management (Redirect and recross-examination as appropriate);
6. Rebuttal evidence by each party;
7. Brief summation by each party, following the same order as in the opening statement;
8. Written briefs are permitted at the discretion of the hearing officer, but they are discouraged in the interest of expediting the decision and the process.
The hearing officer should provide both parties the opportunity to present their case by oral and/or documentary evidence, to submit rebuttal evidence, and to conduct such examination of witnesses as may be required for a full disclosure of the facts. Witnesses may be either sworn or admonished to tell the truth as the hearing officer decides. The hearing officer is free to ask questions of the witnesses or the parties and should do so if policy intent or significant facts remain unclear and are necessary to a resolution of conflicting views. The parties may be asked to submit additional evidence which is available to them and which the hearing officer considers relevant to the case.

Evidence outside and unavailable to parties in the hearing room (e.g. a work location) may be viewed by the hearing officer during the formal hearing proceedings with the presence or consent of both parties. Although the production of witnesses and documents is encouraged, University policy does not provide the hearing officer with subpoena power.

The hearing should not be conducted according to the technical rules of evidence used in judicial proceedings. Any oral or documentary evidence may be received if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, but the hearing officer may exclude irrelevant or unduly repetitious evidence or testimony. It is intended that the most reliable evidence available be produced at the hearing. Although hearing officers may receive hearsay evidence and give it the weight or consideration they believe it deserves under the circumstances, hearsay evidence alone is usually insufficient to support a finding of fact. No evidence other than that received during the hearing proceedings should be considered by the hearing officer, except that upon request notice shall be taken of facts and matters of general knowledge that are not reasonably subject to dispute.

E. HEARING FINDINGS AND DECISIONS

At the conclusion of the evidence-taking portion of the hearing, the hearing officer should adjourn for the purpose of arriving at findings and a final and binding decision.

Decisions of the hearing officer must be supported by the findings of fact and conclusions reached.

The hearing officer shall consider the evidence privately and prepare a written report. The hearing report should set forth findings of fact which should be based upon such considerations as an appraisal of the entire body of evidence presented by each party, credibility of witnesses, and whether or not the parties satisfied their respective burdens of proof with respect to the weight of evidence.

The findings are based upon a "preponderance of the evidence" as determined by the hearing officer. Preponderance of the evidence is a term which means that the evidence on one side outweighs, is stronger or more important than the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on the hearing officer. Where the evidence is evenly balanced between the proponent and opponent of a proposition, the proponent, or the one who advanced the proposition, has failed to prove it. In corrective action, layoff and dismissal cases, management has be burden of establishing that there was just cause for the action. Management presents its case first because it has the burden or proving the cause for discipline, dismissal or layoff. In other cases, such as allegations of policy violations including discrimination or reprisal, the employee has the burden or proving that the management action grieved violated University policy.

The hearing officer must determine:
1. If proven violation(s) of policy attributable to the management action warrants altering the management action;
2. If restitution to the employee for any loss of employment, pay, benefits, or rights attributable to the management action is justified; or
3. Both.

Compromises should be awarded by the hearing officer when compelled by the circumstances. Of course, compromise settlements initiated by the parties may resolve the matter at any stage, provided the terms of the settlement are approved in advance by the Director of Human Resources.

F. HEARING REPORT

Hearing written reports must provide, at a minimum, certain key information which will support the conclusions and stand the test of court review. Reports must include:
1. A clear identification of the issues properly before the hearing officer;
2. A summary of the evidence and testimony received, including the positions of the parties;
3. Findings of fact;
4. A determination as to whether University policies have been violated or, in disciplinary cases, whether the corrective action or dismissal was reasonable under the circumstances; and
5. A decision as to the resolution of each issue in the complaint accepted for review.
The hearing officer should consider the report's effect upon those who ultimately must implement it, and whether the report provides a fair and reasonable basis for the resolution. Particularly important evidence and procedural rulings should be emphasized appropriately.

Of course, some issues are going to be more important than others in resolving disputed actions but a full treatment of the case requires that attention be given to all issues properly before the hearing officer. Only in this way can the reader of the report be certain the case was properly considered. Also, the remedy ordered should be clear. Either party may promptly request clarification if the hearing report does not adequately explain the remedy awarded.

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