Chapter 08 - Termination, Layoff and Adverse Actions
It is the policy of the ASG to ensure that employees whose performance of their duties or conduct are not satisfactory are removed from their position promptly, that those who are guilty of misconduct not sufficiently serious to justify removal be properly disciplined, that voluntary and involuntary separations be handled in an orderly manner, and that employees be protected against arbitrary or capricious action. Removal may be effected for any of the reasons but not limited to those, referred to in this title and in the ASCA.
(a) Employees in the career service, not serving probationary or trial periods and who are not serving under temporary appointments or contracts, shall not be removed, suspended, or involuntarily demoted except for such cause as will promote the efficiency and the good of government service.
(b) Discrimination shall not be exercised in suspensions, removals, or demotions because of an employee's religious belief or affiliations, marital status except as may be required by this title, race, ethnic background, or political affiliation except as may be required by law, and his physical handicap unless he is unable to perform the duties of his position.
(c) Like penalties shall be imposed for like offenses whenever removals, suspensions, or demotions are made or when other disciplinary actions are taken.
(d) One of the following procedures shall be followed in cases of removal, suspension, and involuntary demotion:
(1) The employee shall be notified, in writing, of the charges against him, and of the corrective action proposed to be recommended to the director or, in the case of the Judicial Branch, the Chief Justice, to be taken against him.
(2) The notice shall set forth, specifically and in detail, the charges preferred against him.
(3) The employee shall be allowed 3 days for filing a written answer to such charges and for furnishing affidavits in support of his answer, or he may request and shall be given the opportunity to reply orally.
(4) If the employee answers the charges, his answer must be considered by the agency. Following consideration of the answer, the employee must be furnished with the agency's decision, in writing, as to the action to be recommended to the director or, in the case of the Judicial Branch, the Chief Justice.
(5) The agency shall forward to the director copies of the charges, answer, and reasons for recommended adverse action, all of which shall be made a part of the employee's official personnel file.
(e) The employee shall be retained in an active duty status during the period of notice of proposed action except as follows:
(1) The employee may be placed on annual leave when the agency head does not consider it advisable from an official standpoint to retain him in an active duty status during the advance notice period.
(2) When the employee is not placed on annual leave and the circumstances are such that his retention in an active duty status may result in damage to government property, or may be detrimental to the interests of the government or injurious to the employee, his fellow workers, or the general public, he may be temporarily assigned duties in which these conditions will not exist, or be placed on excused absence, and is required to submit a reply to the charges within 24 hours. The employee may be placed on immediate suspension pending removal thereafter if requested of the director or, in the case of the Judicial Branch, the Chief Justice.
(f) The director, if he considers the recommending official's request reasonable, shall advise the employee in writing of the removal action to take effect 30 calendar days from the date of the notice, the reasons therefor, and that he may request a hearing before the board within 10 calendar days of the date he receives the notice.
(g) If the employee does not appeal or if he appeals and the appeal is denied, his removal shall be processed finally in accordance with instructions applying within the office of manpower resources.
Any employee serving a probationary or trial period shall be given a full and fair trial in the performance of the duties of the position to which appointed. Employees serving their original probationary period may be separated at any time during such period upon proper recommendation and 5 working days prior notice, without right of appeal.
(a) Supervisors shall carefully observe the performance and conduct of employees who are serving the probationary period to determine whether the retention of such employee is in the best interests of the ASG.
(b) Three months prior to the expiration of an employee's probationary period, the office of manpower resources shall request the agency head for a recommendation as to retention of the employee. If retention is not recommended, the agency head and the employee's immediate supervisor shall advise the director in writing. Upon receipt of the written justification, the director shall, provided the stated reasons are valid and clearly set forth, proceed with the separation actions as follows:
(1) Issue a written notice to the employee advising him that he will be separated as of a particular date, the reason(s), therefor, and that he has no right of appeal, except in cases of alleged discrimination because of sex, creed, color, or marital status. (See 4.11 of this code.)
(2) Section 4.0313(a)(2) governs separation of a career service employee serving a new trial period.
(a) An agency head may move any employee involuntarily from one position to another, which mayor may not involve a change in class, without the right of appeal, provided no reduction in grade or rate of compensation is involved; the director's or, in the case of the Judicial Branch, the Chief Justice's concurrence is necessary.
(b) An involuntary reassignment is considered an "administrative reassignment" with the best interests of the government as the primary objectives.
(c) Failure of an employee to comply with an involuntary (administrative) reassignment shall result in his immediate separation.
(d) Any employee so reassigned may grieve through his agency's grievance procedures.
When an employee fails to report for duty or to return from leave for 10 or more consecutive workdays, he may be considered to have abandoned his position. Care must be taken, however, before a final decision is made, that he has truly abandoned his position. The supervisor should make an effort to contact the employee to determine his intentions. If the employee intends in fact to resign, this should be the action taken rather than to term the action abandonment of position, as future employment opportunity with the government may be affected. If the supervisor is unable to ascertain the employee's intention concerning his return to duty, processing of abandonment of position is proper and should be handled as follows:
(a) Action by Operating Officials. The employee's agency head shall recommend to the director or, in the case of the Judicial Branch, the Chief Justice, with a request for personnel action form, that the employee be separated for abandonment of position. Under the "Remarks" section, list when (date) and what effort the supervisor (name) made to contact the employee, and the result of that effort.
(b) Action by Director. Upon receipt of the request mentioned in subsection (a) of this section, the director shall proceed with the separation action in accordance with instructions applying within the office of manpower resources.
An employee may resign at any time he wishes to do so, subject to the following conditions:
(a) Notice. The employee must notify his department head, in writing, of his resignation at least 2 weeks prior to the date of his separation unless the department head waives such requirement.
(b) Withdrawal. Once submitted, the resignation is binding upon the employee and it may be withdrawn only with the department head's consent.
(c) In Lieu of Separation for Cause. An employee may resign with prejudice in lieu of removal or while issuance of charges leading to removal are pending. In such instances, the department head must indicate the abnormal nature of the resignation on the request for personnel action.
(d) Rehire. An employee who resigns without prejudice is eligible for reinstatement at any time, assuming an opening exists and he has completed his probationary period. If he has not completed the probationary period or if, within the 5 years preceding the date of his current application, he resigned from ASG in lieu of removal, he will compete through regular competitive channels and if selected shall serve a new probationary period.
(a) A person serving under a temporary appointment may be terminated at any time prior to the expiration of his temporary appointment, but must be terminated on the NTE (not-to-exceed) date unless approval has been granted by the director for extension of the appointment.
(b) A noncareer employee who has failed to qualify for a probational or career service appointment to continue his employment may be terminated by his agency upon notification to his department that he has failed to qualify.
(c) An excepted employee; i.e., district, county and village officials, gubernatorial appointees, and staff members of the Fono with the exception of the legislative reference bureau, may be terminated at any time upon proper notification to the director.
(d) An employee who, during a leave of absence, accepts other employment which is contrary to the purpose for which leave was granted may be terminated.
(e) An employee who fails to provide his department head with proper notice of his resignation may be terminated with prejudice.
(a) When there is an impending layoff because of lack of funds, curtailment of work, or reorganization, the department head shall notify the director and the affected employee(s) in writing as soon as possible but at least 60 days in advance of the layoff unless cutoff of funds requires a shorter notice period, in which case such requirement must be stated in writing.
(b) The provision of this section concerning placement rights are applicable to career service employees whose positions are to be abolished and to a career service employee who will be displaced by another career service employee. The provisions of this section also apply to a career service employee who is displaced by a career service employee returning from military duty, furlough, or leave.
(c) The department head shall exhaust all possibilities in placing the employee within his department before a territory-wide reduction-in-force is effectuated.
(1) When there is no appropriate vacant position in which the career service employee may be placed, the department shall follow the order below in determining which employee shall be displaced:
(A) A noncareer service employee in the same class and pay range. When there is more than one such employee, layoff will be, first, of:
(I) an employee serving under emergency or temporary appointment;
(II) an employee serving a probational appointment;
(III) a career service employee who occupies a position in the same class and grade and has the least seniority based on the service computation date;
(B) A noncareer service employee who occupies a position in another class at the same pay range, in accordance with divisions (A)(I), (II), and (III) of this subsection, provided the displacing employee meets the minimum qualifications for such position;
(C) A noncareer status employee who occupies a position in the same series, but a lower class and pay range in accordance with divisions (A)(I), (II), and (III) of this subsection;
(D) A noncareer status employee who occupies a position in a different series and lower class tor which displacing employee meets minimum qualifications in accordance with divisions (A)(I), (II), and (III) of this subsection.
(d) If the department head is unable to place the employee, he shall immediately notify the director, who will issue the 2-week notice of termination, place the employee on the reemployment register, and effect territory-wide RIP procedures.