331.8 - Corrective and Adverse Actions; Grievance Procedure; and Problem Solving Process

PURPOSE:   This Policy is intended to provide means for addressing and resolving issues arising out of employee performance or conduct.

SCOPE:   This Policy and Procedure applies to all employees (reference D) of Larimer County and employees of the Office of the District Attorney, Eighth Judicial District, with the exception of employees of the Larimer County Sheriff's Office pursuant to Larimer County Policy BCC P# 15A (reference E).

RESPONSIBILITY:   The Human Resources Director administers this Policy.

SPECIFIC REQUIREMENTS:  None

REVISION SECTION (Significant Changes from Prior Policy):

• Reference F (deleted, was HR Policy 331.3)
• Purpose
• Other minor housekeeping changes throughout policy

 

POLICY AND PROCEDURE:

I.   GENERAL POLICY:

This Policy and Procedure provides means for addressing and resolving issues arising out of employee performance or conduct.

II.   TERMS:

Decision Maker: As used throughout this policy and procedure, "Decision Maker" refers to an Elected Official, Service Area Director or Department Head who makes the final decision on an Adverse Action.

III.     EMPLOYEE STATUS:

A.  Temporary Employees: Employees in Temporary remain employed at the mutual consent of the employee and the County.  Either the employee or the County may end the employment relationship at will, with or without cause at any time and without following any Problem Solving, Performance Improvement or Adverse Action process.  Departments or Offices should consult with a Human Resources Generalist prior to separation.

B.  Regular and Limited Term Employees (reference C):

1.   Probationary: employees serve a probationary period in accordance with County policy (reference B).  During the probationary period, employees remain employed at the mutual consent of the employee and the County.  Either the employee or the County may end the employment relationship at will, with or without cause at any time and without following any Problem Solving, Performance Improvement, or Adverse Action or Grievance process.  The County may unilaterally extend an employee's probationary period.  If the probationary period is extended, the employee remains in probationary status until the date specified in writing by the Decision Maker.

2.   Post-probationary: once an employee successfully completes the probationary period, the County may not end the employment relationship without cause.

C.  Appointed Officials: Employees in Appointed positions as identified in County policy remain employed at the mutual consent of the employee and the County (references B and F).  Either the Appointed Official or the County may end the employment relationship at will, with or without cause at any time and without following any Problem Solving, Performance Improvement or Adverse Action process.

D.  Elected Officials: Elected Officials are elected by the citizens of Larimer County and are not subject to this policy.

IV.    PROCESSES:

Supervisors are responsible for managing the performance and conduct of their employees.  When performance or conduct issues exist, supervisors should take action to address the situation.  The following processes may be used to address performance, or conduct.

A.  Corrective Actions are taken to assist employees in correcting job performance and improving conduct that is inconsistent with the expectations and standards established by Larimer County.  Corrective Actions do not result in the employee losing or having a reduction in pay or grade.  The nature of, need for, and number of Corrective Actions may be considered as a factor in imposing an Adverse Action.

B.  Problem Solving provides employees a process to discuss certain work-related matters.

C.  Adverse Actions are serious actions for job performance or conduct that is inconsistent with the expectations and standards established by Larimer County.  Adverse Actions include suspension without pay, involuntary demotion or dismissal (reference A).  Adverse Actions need not be followed in progression.  An Adverse Action may be instituted based on the frequency or severity of the situation.

D.  Grievance provides a non-probationary employees a process to review a suspension without pay, involuntary demotions, or dismissal.

V.    BASIS FOR CORRECTIVE OR ADVERSE ACTIONS:

Larimer County expects all employees to conduct themselves in a manner that reflects favorably on County service.  Employees may be subject to a Corrective or Adverse Action for performance or misconduct, including but not limited to those listed below.

A.   Unsatisfactory performance of job duties;

B.   Deliberate or careless conduct endangering the safety or well being of employees or the public;

C.   Negligent or willful damage or waste of County property or resources;

D.   Refusal or failure to comply with County or department/office policy or procedure;

E.   Refusal or failure to comply with a lawful instruction, regulation or law;

F.   Inappropriate conduct toward fellow employees, the public, or others doing business with the County;

G.   Unauthorized possession, consumption, admission to being under the influence of alcohol or controlled substances, or testing positive for alcohol or a controlled substance, or the misuse of prescribed medication, while in a work status;

H.   Misuse of leave, unexcused absence, unreported absence, tardiness, or absenteeism;

I.   Conviction of, admission to, or entering a plea of nolo contendre (no contest) to a crime that impacts the employee's job duties or is a conflict of interest with the employee's job;

J.   A reasonable belief that an employee has committed or engaged in an act that is contrary to the interests of the County including, but not limited to, a criminal act;

K.   Soliciting or accepting bribes in the course of County work;

L.   Misuse of County funds or property;

M.   Misuse of or unauthorized disclosure of official or confidential information;

N.   Bullying, harassment and/or discrimination;

O.   Falsification or misrepresentation involving or related to County business or interests;

P.   Failure to obtain or maintain a required license, certification or qualification;

Q.   A reasonable belief that an employee has engaged in a lawful activity off the premises of the County during nonworking hours where the activity is a conflict of interest or appears to be a conflict of interest with the employee's job or relates to a bona fide qualification.

VI.     PERFORMANCE EXPECTATIONS (Corrective Actions):

A.  Setting Performance Expectations is an intentional approach toward helping an employee improve their performance or conduct.  This may include a verbal coaching, Supervisory Guidance, Performance Improvement Plan, Corrective Action and/or performance evaluation narrative.

B.   Supervisors will consult with a Human Resources Generalist prior to issuing any Performance Improvement Plan, below standard performance evaluation, or Corrective Action to an employee.

C.   If an employee disagrees with a Performance Improvement Plan, below standard performance evaluation, or Corrective Action, they may use the Problem Solving Process, under this Policy.

VII.     PROBLEM SOLVING:

A.   Informal Problem Solving:

1.   If an employee has questions, concerns, or objections to a work-related matter, the employee is encouraged to promptly discuss the matter with their immediate supervisor.  The employee may consult with the Human Resources Generalist as needed.

2.   The supervisor will listen to the employee's concerns and appropriately respond.  The supervisor will consult with the Human Resources Generalist as needed.

3.   If this informal process does not resolve the issue, the employee has the right to file a Formal Problem-Solving Request.

B.   Formal Problem-Solving Request:

1.   A Formal Problem-Solving Request will be submitted in writing to the Decision Maker or designee.  No specific form is required.

2.   The Formal Problem-Solving Request must:

a.  be identified as a Formal Problem-Solving Request;
b.  identify the requesting employee;
c.  specifically describe the problem or concern; and
d.  state the remedy sought.

3.   The Formal Problem-Solving Request should be filed within thirty calendar days from the action or decision that gave rise to the Problem-Solving Request or the unsatisfactory resolution of the Informal Process.

4.   The Decision Maker or designee will consult and provide a copy of the Formal Problem-Solving Request to the Human Resources Director or designee.

5.  The Decision Maker or designee will meet with the employee to discuss the Formal Problem-Solving Request.  This meeting will take place within ten business days from receipt of the Formal Problem-Solving Request, unless an extension is approved by the Human Resources Director or designee.  The purpose of this meeting is for the Decision Maker or designee to listen and gather information from the employee regarding the issues raised in the Formal Problem-Solving Request.

6.   The Decision Maker or designee will provide a written decision to the employee within ten business days from the Formal Problem-Solving Request meeting.  The Human Resources Director or designee must approve the written decision before it is provided to the employee.  The Decision Maker or designee should meet with the employee to discuss the written decision.

7.   The Decision Maker's or designee's decision on the Formal Problem-Solving Request is final.

VIII.    ADVERSE ACTIONS:

A.  Types of Adverse Actions:

1.   suspension: the temporary placement of an employee in a non-pay, non-duty status;

2.   involuntary demotion: the involuntary placement of an employee in a position with a lower grade or rate of pay for disciplinary reasons; or

3.   dismissal: the involuntary separation of an employee from County service (reference A).

B.  The supervisor considering Adverse Action must prepare a written notice:

1.   identifying the employee;

2.  the performance or conduct that is the basis for the possible Adverse Action; and

3.  the time and place for a mandatory meeting between the Decision Maker, Human Resources, and the employee.

C.  The notice will be reviewed by the Human Resources Director or designee and the County Attorney's Office prior to being issued to the employee.

D.  The notice must be delivered to the employee in a manner that will reasonably ensure and establish the employee's receipt.

E.  The Decision Maker or designee may place the employee on leave with pay until a final decision is made.

F.  At the Pre-Adverse Action meeting, the employee will have an opportunity to respond to the matters presented in the notice.  The Human Resources Director or designee will facilitate and record the meeting.

G.  At the employee's expense, the employee may have an attorney at this meeting.  If the employee is to be represented by an attorney, the employee must notify the Human Resources Director or designee within the time established in the written notice that they will be represented, so the County Attorney, or designee, may attend.

H.  After the meeting, the Decision Maker will consider the information offered by the employee as well as all other information deemed relevant.  The Decision Maker's final determination will be reviewed by the Human Resources Director or designee and the County Attorney or designee prior to being issued to the employee.

I.   Within a reasonable time after the meeting, the Decision Maker will render a written decision regarding the Adverse Action.  The written decision will be delivered to the employee in a manner that will reasonably ensure and establish the employee's receipt.  The written decision shall contain the following:

1.   A statement of the grounds for the action, including findings about the performance or conduct, relevant dates, policy violations, any necessary explanation of the business impact, and any necessary credibility determinations;
2.   A statement of the action to be taken;
3.   The effective date of the action;
4.   A statement that the employee has a right to grieve the adverse action, including a specific reference to the County Grievance Procedure below.
5.   A copy of this policy.

IX.  GRIEVANCE:

A.   The Grievance Procedure is the method by which an employee may seek review of an adverse action.

B.   The Grievance must be submitted in writing to the Human Resources Director or designee and the Decision Maker.

1.   The Grievance must clearly state:

a.   the factual, legal, or policy basis on which the employee objects to the adverse action decision;
b.   the employee's requested resolution;
c.   whether the employee requests an administrative hearing or a review by the Human Resources Director without a hearing.  If a hearing is not requested at the time a Grievance is submitted, the employee's right to a hearing will be voluntarily waived.

2.   Time Period for Filing

a.   A Grievance must be filed within five business days after the employee’s receipt of the written decision.  If the employee fails to file the Grievance within this time period, the Grievance will be considered untimely and a voluntary waiver of the employee's Grievance rights.  The filing of a Grievance will not delay or otherwise affect the effective date of the Adverse Action.
b.   The untimely filing of a Grievance may be waived if the Human Resources Director finds good cause to extend the time period.

3.   No Administrative Hearing Requested:

a.   The Human Resources Director, or designee, will review the Grievance and any information necessary to determine whether sufficient grounds exist to find that the Decision Maker's action was reasonable and in compliance with policy.  Both the employee and the Decision Maker are required to participate in this process.
b.   The Human Resources Director or designee shall issue a written decision within a reasonable period of time.  The written decision will address all issues raised in the Grievance.

1. If the decision is to reverse or modify the Decision Maker's action, the decision will outline all actions that must be taken in order to resolve the Grievance.
2. In no event may the Human Resources Director, or designee, impose a more severe action than that of the Decision Maker.
3. If the decision is to affirm the Decision Maker's action, the decision must advise the employee that the decision is final.

4.   Administrative Hearing Requested:

a.   If the employee requests a hearing, it will be conducted by a Hearing Officer selected by the County Attorney.  In addition to any other qualifications deemed necessary or appropriate by the County Attorney, the Hearing Officer will have experience in conducting administrative hearings and preparing written decisions.  The Hearing Officer is authorized to make all procedural decisions relative to pre-hearing matters and conduct of the hearing.
b.   The Hearing Officer will promptly schedule the administrative hearing, giving consideration to the complexity of the issues involved and the schedules of the participants.  The Hearing Officer will make a good faith effort to schedule the hearing within 35 calendar days after receipt of the Grievance.  The participants will be notified in writing of all matters regarding the hearing process.
c.   The participants in the hearing process include the employee, the employee's attorney, if any, the Decision Maker, the County Attorney or designee acting as the Decision Maker's representative, and any other individual deemed necessary by the Hearing Officer.
d.   The Human Resources Director or designee will be responsible for advising all participants, including the Hearing Officer, about the Grievance process and the applicable policies, procedures and rules.
e.   The employee and the Decision Maker shall exchange exhibits and witness lists seven business days prior to the hearing.  Rebuttal exhibits and witness lists will be exchanged three business days prior to the hearing.  The party on whose list a witness appears will be responsible for ensuring the appearance of that witness.
f.   The employee or the County may request a prehearing conference be held by the Hearing Officer to discuss issues such as a hearing procedure, witnesses and exhibits.
g.   If the County believes current County employees listed as witnesses by the employee are not necessary or so numerous as to be burdensome and/or impractical, the County may request the Hearing Officer to review the list of such County employees and determine whether their attendance is required.
h.    The Colorado Administrative Procedures Act, C.R.S. 24-4-101, et seq. shall apply with respect to issuance and enforcement of subpoenas.  The Hearing Officer is authorized to sign and issue subpoenas consistent with the Act.  Upon failure of any witness to comply with such subpoena  the employee or County on whose behalf the subpoena is requested, may petition any district court to compel attendance of the witness or take such other action as set forth in the Act.
i.   Neither party is entitled to formal discovery.  The County will make available appropriate County records requested by the employee which are relevant to the issues raised in the Grievance.
j.   The procedures for the conduct of the hearing will be informal and the rules of evidence and civil procedure shall not be strictly applied.  All testimony will be provided under oath.  The Hearing Officer may administer oaths and receive or reject evidence and testimony.  Witnesses and exhibits will be approved based on their relevance to the issues raised in the Grievance and hearing efficiency.  Hearsay will be allowed.  The hearing will be closed to the public and witnesses will be sequestered.  The hearing will last no more than one business day, unless otherwise directed by the Hearing Officer.
k.   The scope of the hearing will be limited to a review of the reasonableness of the Decision Maker's decision and the underlying facts.  The employee will have the burden of proof by a preponderance of the evidence as to any disputed issue of fact and overcoming the presumption of the reasonableness of the Decision Maker's decision.  Notwithstanding that the employee carries the burden of proof, the County will present its case first.
l.    At the hearing, the employee will appear in person with or without an attorney.  If the employee chooses to have an attorney, it will be at the employee's expense.  If the employee chooses to be represented by an attorney, the employee must notify the Human Resources Director within five business days after the filing of the Grievance.  By entering an appearance on behalf of the employee or the County, each counsel agrees to be prepared to commence the hearing within the schedule set by the Hearing Officer.
m.    The hearing will be electronically recorded as deemed appropriate by the Hearing Officer.  Either the employee or the Decision Maker may request that the hearing be recorded and transcribed by a court reporter.  The party requesting a court reporter shall be obligated to pay the reporter's fee.  If the hearing is recorded by a court reporter, each party shall bear the cost of obtaining a transcript.
n.   No later than ten business days after the conclusion of the hearing, the Hearing Officer shall issue a two-part Decision consisting of:

1. findings of fact; and
2. a conclusion affirming the Decision Maker's action, modifying the Decision Maker's action by imposing a less severe action, or reversing the Decision Maker's action.

o.    If the Hearing Officer's decision is to reverse the Decision Maker's action or modify the action to impose a less severe action, the Hearing Officer may further provide for an award of appropriate remedial measures.  Such measures shall be limited to reinstatement of the employee to the employee's former job or grade/pay, payment of back wages, and reinstatement of benefits.
p.   The Hearing Officer's decision is final and not subject to further internal review or appeal.  Review of the final decision may be requested under Rule 106 of the Colorado Rules of Civil Procedure by either party.  The employee waives any de novo judicial review of the underlying issues.

 

 

_______________________________________

John Kefalas
Chair, Board of County Commissioners
(Approved by BOCC – Consent Agenda – 10/19/2021)
(Signature on original filed in Records Management)

 

Distribution:
All County Department and Elected Officials
Records Management SOP Manual (original)

 

CK/vl

 

DATE:   October 19, 2021

EFFECTIVE PERIOD:   Until Superseded

REVIEW SCHEDULE:   Every three years in October, or as needed

CANCELATION:   Human Resources Policy and Procedure 331.8E; October 29, 2019

ENCLOSURE(S):   None

REFERENCE(S):

A.   Human Resources Policy and Procedure, 331.4, Section XVI, Separation from County Employment
B.   Human Resources Policy and Procedure, 331.4, Conditions of Employment
C.   Human Resources Policy and Procedure, 331.2, Section VII, Limited Term Employee
D.   Governing Policy Manual: Policy 3.2 - Treatment of Staff