Chapter 09 - Appeal, Grievance, and Administrative Review

Chapter 09 - Appeal, Grievance, and Administrative Review

4.0901 Appeal-Right of career employees.

Career employees may file appeals on matters concerning their suspension, involuntary demotion, or removal.

4.0902 Appeal-Procedure.

(a) Form and Deadline. All appeals must be made in writing and state clearly the basis for appeal to the director and must be filed in the office of the director within 10 calendar days after the effective date of the action appealed, except in the case of reduction-in-force (see 4.0808). The appeal should also include the employee's request for a hearing if he desires and is entitled to one.

(b) Scheduling Hearing. The director shall include the written appeal on the agenda of the board's next meeting. If the appeal involves a removal, suspension, or demotion, however, the director shall arrange an appeal hearing so as to effect a board decision within 30 days after appeal. However, the director may deny a hearing when a hearing is impractical by reason of unusual location or other extraordinary circumstances.

(c) Hearing Procedures. Hearings before the board shall be conducted in accordance with the procedures promulgated by the board. Copies are available in the director's office.

(d) Counsel and Openness. Attendance of other interested parties and/or counsel may be limited by the director if good order, justice, and fairness will be promoted.

(e) Death of Appellant. A proper appeal filed before the death of the employee must be processed to completion and adjudicated. If appropriate, the board may provide for amendment of the employee's records to show retroactive restoration and the employee's continuance on the rolls in an active duty status to the date of death.

(f) File Access. Prior to the hearing the entire appeal file shall be made available upon request to the employee and his representative except when a file contains medical records concerning a physical or mental condition of which a prudent physician would hesitate to inform the person concerned.

(g) Notice of Hearing. All parties shall be served with notice at least 10 days before the date set for the hearing. The notice shall state the time and place of such hearing.

(h) Depositions. A party who desires to take the deposition of any person in an oral examination shall give reasonable notice of not less than 3 days in writing to the board and all parties. The notice shall state the time and place of taking the deposition and the name and address of each person to be examined.

(1) The deposition officer shall be a person who is authorized to administer oaths by the laws of the territory of American Samoa.

(2) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the proceedings and marked "Deposition of (here insert name of witness)" and shall promptly send it by registered or certified mail to the director for filing. The party taking the deposition shall give prompt notice of its ruling to all other parties.

(i) Case Presentation and Testimony.

(1) The employee shall present his case first. Evidence may be either documentary or by affidavit. The employee must not use affidavits to exempt persons from cross-examination. The employee should not accept an affidavit in lieu of personal testimony from a witness who is present at the hearing.

(2) All persons appearing in proceedings before the board in a representative capacity shall conform to the standards of ethical conduct required of attorneys and witnesses before the court of American Samoa. If any such person does not conform to such standards, the board may decline to permit such person to appear in a representative capacity in any proceeding before the board.

(3) Witnesses shall be assured freedom from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony. Employees are in a duty status during the time they are made available as witnesses.

(j) Conclusions. Within 30 days after the original notice, the board shall make and fully record in its permanent records findings of fact and reasons for the action taken and its order based thereon which shall be final, subject only to further action if the employee appeals the decision in court. At the same time the board shall send a copy of the findings and conclusions to the employee at his address as given at the hearing or to a representative designated by him.

(k) Restoration of Rights. Any employee, when fully reinstated after appeal, shall be guaranteed all employee rights and benefits, including back pay, sick leave, annual leave accrual, and retirement.

(l) Correction of Performance Evaluation. A correction of a performance evaluation shall not affect a certification or appointment which has already been made from the register.

(m) Correction of Classification. Correction of a classification decision which results in a promotion or demotion shall be handled as stated in 4.0313. The board will determine the effective date of any such action.

4.0903 Grievances.

(a) Filing. Grievances may be filed orally or in writing by any person, at any point of contact within government. If the grievance is misdirected (complaints about another department) the grievant shall be properly directed. The following types of action are typical of those which may be grieved, but is not all-inclusive:

(1) Performance evaluation;

(2) Leave (denial);

(3) Promotion;

(4) Letters of reprimand;

(5) Reassignment;

(6) Increment (denial);

(7) Hours of work;

(8) Discrimination or bias;

(b) Procedure. All departments shall have a 3-part grievance procedure, as follows:

(1) Each grievance shall be placed in writing, and resolution attempted by the appropriate supervisor at the lowest level.

(2) Failing resolution, the grievance shall then be elevated to an uninvolved higher level in the department, and the grievant allowed to present testimony in his behalf in an informal hearing. This hearing shall be conducted in accordance with the procedures shown in the Personnel Operations Manual.

(3) If the recommendation of the hearing officer fails to satisfy the grievant, the case will be forwarded to the director for final decision. If the case is carried beyond this point by the grievant, it must be as an appeal to the board.

(c) Exception. In cases involving suspension, demotion, or dismissal of a career service employee, no grievance is filed. Since only the director may serve written notice of such actions, the only appropriate and allowable employee response is an appeal to the board.

4.0904 Administrative review.

The director has responsibility for the recruitment, examination and certification of eligibles, and for the proper classification of positions to titles, grades and pay. Any person who believes his application to have been improperly evaluated and/or any employee who believes his position to have been improperly evaluated, may request in writing that the director review his case.

(a) The request must indicate the person's basis for his belief that his application, or his position were improperly evaluated.

(b) The request, to be acceptable, must be filed within 10 calendar days of the official notice to the employee.

(c) The director shall review the case and notify the person, in writing, of the findings upon review.

(d) If still dissatisfied, the person may file appeal, following the procedures outlined in 4.0902.