Procedure for Adverse Action Against Classified Employees Generally; Appeals Generally

  1. Law
  2. Georgia Code
  3. Public Officers and Employees
  4. Personnel Administration
  5. General Provisions
  6. Procedure for Adverse Action Against Classified Employees Generally; Appeals Generally

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  1. Classified employees who have successfully completed a working test period may be dismissed from employment or otherwise adversely affected as to compensation or employment status only if such action is taken in accordance with the rules and regulations of the State Personnel Board governing adverse actions and appeals for classified employees.
  2. This article is not intended to create a property interest in the job, but rather to create only a procedure under which classified employees can be dismissed or otherwise adversely affected. The procedure adopted for dismissing a classified employee from employment or otherwise adversely affecting his or her compensation or employment status shall include, as a minimum, that the appointing authority must provide the classified employee with reasons for the action and an opportunity to file an appeal and request a hearing which may be held before either the board or an administrative law judge of the Office of State Administrative Hearings; provided, however, that the hearing may be held subsequent to the effective date of the dismissal or other purported adverse action; provided, further, that the right to appeal shall not apply when persons are dismissed or otherwise adversely affected as to compensation due to curtailment of funds or reduction in staff when such action is in accordance with the rules and regulations of the State Personnel Board.
  3. No adverse action appealed to the State Personnel Board under the rules and regulations of the board, this article, or otherwise shall be considered invalid for failure to follow or comply with the rules and regulations of the board, this article, or any other requirement unless it is shown that the individual against whom the action has been taken has been substantially harmed by the procedural failure.
  4. The decision of the board on an appeal as to whether a dismissal or other adverse action was in accordance with the rules and regulations prescribed by the State Personnel Board shall be binding upon the appointing authority. The board may modify the action of the appointing authority but may not increase the severity of such action on the employee. Such appointing authority shall promptly comply with such order as may be issued as a result of the appeal to the State Personnel Board. The decision of the board shall not limit the rights of the employee or the department to judicial review as to errors of law, and such decision shall be stayed pending other further appeal.
  5. For purposes of this Code section and Code Section 45-20-9, administrative law judges appointed by the chief state administrative law judge pursuant to Article 2 of Chapter 13 of Title 50 are authorized to hold hearings and otherwise assist the State Personnel Board in the resolution of appeals.

(Ga. L. 1975, p. 79, § 7; Ga. L. 1976, p. 1547, § 3; Ga. L. 1979, p. 780, § 4; Ga. L. 1982, p. 1245, §§ 1, 2; Ga. L. 1985, p. 149, § 45; Ga. L. 1997, p. 844, § 2; Ga. L. 2008, p. 546, § 7/SB 230; Ga. L. 2012, p. 446, § 1-1/HB 642.)

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

Property interest entitling employee to due process.

- A public employee governed by the Georgia Merit Systems Act and the State Board Personnel Rules has a property interest in the employee's job entitling the employee to the protections of due process. Brown v. Georgia Dep't of Revenue, 881 F.2d 1018 (11th Cir. 1989).

Employees in the classified service may be terminated only after an evidentiary hearing on the grounds of their discharge, employees in the unclassified service have no such rights. Ray v. Edwards, 557 F. Supp. 664 (N.D. Ga. 1982), modified on other grounds, 725 F.2d 655 (11th Cir. 1984).

Employee's statutory right to a hearing.

- Trial court did not err when the court held that the State Personnel Board exceeded the board's authority in adopting regulations authorizing an administrative law judge to resolve an appeal from the board's termination of a classified state employee without holding an evidentiary hearing because the regulation at issue, Ga. Pers. Bd. R. & Regs., Reg. 478-1-.24(6)(e) and (x), did not comport with the Georgia Merit System Act, O.C.G.A. §§ 45-20-8 and45-20-9, in that the regulation denied the employee, who had been deemed "voluntarily separated" from employment, the statutory right to a hearing. Ga. Dep't of Cmty. Health v. Dillard, 313 Ga. App. 782, 723 S.E.2d 23 (2012).

Those portions of Ga. Pers. Bd. R. & Regs., Reg. 478-1-.24(6)(e) and (x) which dispense with the need for an evidentiary hearing in cases involving the voluntary separation of a classified employee are contrary to law; the curtailed procedure laid out in Ga. Pers. Bd. R. & Regs., Reg. 478-1-.24(6)(e) and (x) cannot be reconciled with either the statutory scheme, which contemplates that the State Personnel Board must provide the classified employee with reasons for the action and an opportunity to file an appeal and request a hearing, the Georgia Merit System Act, O.C.G.A. § 45-20-8(b), or the rule's own more general procedures, which require that, within seven days of the filing of an appeal, the administrative law judge or the board shall designate an appropriate time and place to conduct the hearing. Ga. Dep't of Cmty. Health v. Dillard, 313 Ga. App. 782, 723 S.E.2d 23 (2012).

Jurisdiction over application to waive mandatory retirement.

- A conservation ranger's right to apply for a waiver of mandatory retirement pursuant to former O.C.G.A. § 47-2-224 imposed a duty on the board to consider the application and the board's refusal to consider it adversely affected the employee's "employment status" within the meaning of O.C.G.A. § 45-20-8; accordingly, the board had jurisdiction over the subject matter. State Personnel Bd. v. Adams, 216 Ga. App. 341, 453 S.E.2d 821 (1995).

Demotion must be pursuant to Act as existed at hiring.

- The Merit System Act creates a constitutionally protected contract between the merit system member and the state; therefore, merit system employees can be demoted only in compliance with the Act as it existed at the time they assumed their classified positions. Clark & Stephenson v. State Personnel Bd., 252 Ga. 548, 314 S.E.2d 658 (1984).

Board authorized to modify action of appointing authority.

- O.C.G.A. § 45-20-8(d) endows the board with authority to reduce a sanction imposed by the appointing authority even though the board finds sufficient evidence to support a charge for which the sanction of dismissal is authorized. Dollar v. Department of Human Resources, 196 Ga. App. 698, 396 S.E.2d 913 (1990).

Board authorized to reinstate dismissal by appointing authority.

- When the State Personnel Board, in reviewing the decision of an administrative law judge (ALJ) decreasing the sanction imposed on a state employee from dismissal to a 30-day suspension, reimposed the dismissal, it was error for a trial court to find that the board's decision was not supported by a sufficient rationale; the board properly adopted findings and conclusions of the ALJ which were consistent with the board's own decision and then explained that the ALJ's recommended sanction was too lenient for the proved misconduct, as the misconduct was so severe as to warrant dismissal, so the board's decision was within the board's broad authority to impose sanctions on state employees under O.C.G.A. § 45-20-8(d). Ga. Dep't of Natural Res. v. Willis, 274 Ga. App. 801, 619 S.E.2d 335 (2005).

Involuntary demotions do not conflict with the prohibition against involuntary servitude. Brown v. State Merit Sys. of Personnel Admin., 245 Ga. 239, 264 S.E.2d 186 (1980).

Determination of whether retention points have been properly calculated does not require an evidentiary hearing. Brown v. State Merit Sys. of Personnel Admin., 245 Ga. 239, 264 S.E.2d 186 (1980).

Employment reclassification with adverse racial impact not implemented.

- White employee had no vested property rights in a promotion recommended by a 1984 reclassification proposal which was flawed and likely to have an adverse racial impact. Williams v. Ledbetter, 685 F. Supp. 247 (M.D. Ga. 1988).

Cited in Herault v. Department of Human Resources, 137 Ga. App. 446, 224 S.E.2d 480 (1976); Hall v. Department of Natural Resources, 139 Ga. App. 298, 228 S.E.2d 174 (1976); Stanley v. Department of Human Resources, 146 Ga. App. 450, 246 S.E.2d 459 (1978); Beall v. Department of Revenue, 148 Ga. App. 5, 251 S.E.2d 4 (1978); Department of Human Resources v. Green, 160 Ga. App. 37, 285 S.E.2d 772 (1981); Bailey v. Wilkes, 162 Ga. App. 410, 291 S.E.2d 418 (1982); Georgia Dep't of Labor v. Sims, 164 Ga. App. 856, 298 S.E.2d 562 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Resignation of employee.

- An employer has the discretion to accept or refuse a letter of resignation that is tendered prior to the effective date of a proposed dismissal. 1998 Op. Att'y Gen. No. 98-6.


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