The State Human Resources Director shall forward to a mediator-arbitrator all appeals which meet jurisdictional requirements and relate to the appeal of the following adverse employment actions: lack of promotional consideration and punitive reclassifications when the State Human Resources Director determines there is a material issue of fact regarding these issues, suspensions for ten days or fewer, and involuntary reassignments. In these cases, the arbitration decision is final. The provisions of the State Administrative Procedures Act do not apply to the mediation-arbitration proceedings.
The mediator-arbitrator must be assigned by the State Human Resources Director and shall serve as an impartial third party to hold conferences to mediate the appeal and if the appeal is not mediated, determine whether the covered employee substantiates that the agency's decision was not reasonable. The mediator-arbitrator shall review the documents which have been submitted by each party and shall schedule a time to meet with both parties, jointly or independently. Failure of the covered employee or the employee's representative to attend a conference without reasonable justification constitutes a waiver of the employee's rights to pursue the appeal further. The State Human Resources Director shall determine whether or not reasonable justification exists based on documents submitted by the parties.
The conferences with the parties are confidential and limited to the parties and their representatives, but other persons may attend with the permission of the parties and the mediator-arbitrator. The parties or their representatives attending a conference must have full authority to negotiate and recommend settlement. The mediator-arbitrator may not be compelled by subpoena or otherwise to divulge any records or discussions or to testify in regard to the mediation-arbitration in any adversary proceeding or judicial forum. All records, reports, documents, discussions, and other information received by the mediator-arbitrator while serving in that capacity are confidential, except the documents which have been submitted by each party shall be the record during judicial review.
If an agreement by the two parties is not reached, the mediator-arbitrator shall transmit to both parties a final written decision based on the information presented during the process concerning the appeal within forty-five calendar days after the mediator-arbitrator conducts a conference with either or both parties. This forty-five-day period may be extended by the State Human Resources Director under extenuating circumstances. The mediator-arbitrator shall request assistance from the attorney for the Office of Human Resources in the preparation of the final written decision. As a result of this decision, either the covered employee or the agency may request a reconsideration within thirty calendar days from receipt of the decision. The mediator-arbitrator shall request assistance from the attorney for the Office of Human Resources in the preparation of the written response to the request for reconsideration. Petition for judicial review of the final decision may be made by the covered employee to the court of common pleas of the county in which the covered employee's place of employment is located. Only after an agency submits a written request to the Office of Human Resources seeking approval of the Director of the Department of Administration may the agency initiate a petition for judicial review to the court of common pleas of the county in which the covered employee's place of employment is located. However, the agency may perfect the petition for judicial review only upon approval of the Director of the Department of Administration. The record for judicial review shall be limited to the documents which have been submitted by each party and the final written decision of the mediator-arbitrator. Neither the Director of the Department of Administration nor the Office of Human Resources nor the State Human Resources Director nor the mediator-arbitrator may be named in this petition for judicial review. However, any of these entities are entitled to make a motion in the court of common pleas to be allowed to intervene to participate in the petition for judicial review for appropriate reasons including their interest in defending their policies.
HISTORY: 1996 Act No. 284, Section 1, eff October 1, 1996.