1. (A) There is created the State Employee Grievance Committee constituted and appointed to serve as an administrative hearing body for state employee appeals. The State Human Resources Director shall forward to the committee for a hearing all appeals which meet jurisdictional requirements and relate to the following adverse employment actions: terminations, salary decreases based on performance, demotions, suspensions for more than ten days, and reductions in force when the State Human Resources Director determines there is a material issue of fact regarding inconsistent or improper application of the agency's reduction in force plan or policy. The committee shall consist of at least eighteen and not more than twenty-four members who must be appointed by the Director of Department of Administration to serve for terms of three years and until their successors are appointed and qualify. All members of the committee must be selected on a broadly representative basis from among the personnel of the various state agencies as recommended by the agency head.

   The committee annually shall elect a chairman from among its members to serve for a one-year term. In addition, the State Human Resources Director may divide the committee into panels of five members to sit at hearings and designate a member to serve as the presiding officer and a member to serve as secretary at all panel hearings. A quorum of a panel consists of at least three members.

   Vacancies occurring for a reason other than expiration of a term must be filled by the Director of Department of Administration in the same manner as the original appointments. Members may be reappointed for succeeding terms at the discretion of the Director of Department of Administration. The committee and the State Human Resources Director may recommend to the Director of Department of Administration that it promulgate regulations as necessary to carry out the provisions of this article and the board is authorized to promulgate these and other necessary regulations.

   Committee members shall receive their normal pay for the time they are required to be away from their regular assignments. They may be reimbursed as provided by law from funds appropriated to the Department of Administration for expenses, such as meals, lodging, and mileage, when using their personal automobiles, incurred in connection with the performance of necessary committee business.

2. (B) Whenever an appeal before the committee is initiated by or involves an employee of an agency of which a committee member also is an employee or involves another impermissible conflict of interest, the member is disqualified from participating in the hearing.
3. (C) The committee chairman or a designee shall conduct the grievance hearing in an equitable, orderly, and expeditious fashion. The committee chairman or a designee is authorized to administer oaths; to issue subpoenas for files, records, and papers; to call additional witnesses; and to subpoena witnesses. The Department of Administration is authorized to request assignment by the Attorney General of one or more of his staff attorneys admitted to practice law in South Carolina to serve in the capacity of committee attorney. If the Attorney General is not able to provide sufficient legal staff for this purpose due to an impermissible conflict of interest, the Department of Administration, with the approval of the Attorney General, is authorized to secure other qualified attorneys to serve as committee counsel. The committee attorney shall determine the order and relevance of the testimony and the appearance of witnesses, and shall rule on all motions, and all legal issues. The parties are bound by the decisions of the committee chairman or a designee or the committee attorney insofar as these hearings are concerned.
4. (D) At these hearings the employee and the agency are allowed representatives, including counsel. During the course of the hearing the parties and witnesses also shall respond to questions asked by the committee attorney or the committee members. The committee attorney or the attorney for the Office of Human Resources may assist the committee in the preparation of its findings of fact, statements of policy, and conclusions of law. The committee attorney may be present during the committee's deliberations on its decision only upon the request of the presiding officer. Within twenty calendar days of the conclusion of the hearing, the committee shall render its decision on the appeal. The decision shall include the committee's findings of fact, statements of policy, and conclusions of law.

5. (E) The committee may sustain, reject, or modify a grievance hearing decision of an agency as follows:

   1. (1) In cases involving actual or threatened abuse, neglect, or exploitation, to include those terms as they may be defined in Section 43-35-10 or 63-7-20, of a patient, client, or inmate by an employee, the agency's decision must be given greater deference and may not be altered or overruled by the committee, unless the covered employee establishes that:

      1. (a) The agency's finding that the covered employee abused, neglected, or exploited or threatened to abuse, neglect, or exploit a patient, client, or inmate is clearly erroneous in view of reliable, probative, and substantial evidence;
      2. (b) The agency's disciplinary action was not within its established personnel policies, procedures, and regulations; or
      3. (c) The agency's action was arbitrary and capricious.

   2. (2) In all other cases, the committee may not alter or overrule an agency's decision, unless the covered employee establishes that the agency's decision is one or more of the following and prejudices substantial rights of the covered employee:

      1. (a) in violation of constitutional or statutory provisions;
      2. (b) in excess of the statutory authority of the agency;
      3. (c) made upon unlawful procedure;
      4. (d) affected by other error of law;
      5. (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
      6. (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
6. (F) The decision of the committee members must be transmitted in writing to the employee and the employing agency and is final in terms of administrative review. As a result of this decision, either the covered employee or the agency may request a rehearing or reconsideration within thirty calendar days from receipt of the decision. A notice of appeal seeking appellate review of the final decision may be made by the covered employee to the Administrative Law Court as provided in Sections 1-23-380(B) and 1-23-600(D). Only after an agency submits a written request to the Office of Human Resources seeking approval of the Department of Administration may the agency file a notice of appeal seeking appellate review to the Administrative Law Court. However, the agency may perfect the appeal only upon approval of the Department of Administration. The covered employee or the agency who first files the notice of appeal seeking appellate review is responsible for preparation of a transcript and paying the costs of preparation of a transcript of the audio tapes of a hearing required for certification of the record to the Administrative Law Court. Neither the Department of Administration nor the Office of Human Resources nor the State Human Resources director nor the committee may be named in this notice of appeal. However, any of these entities are entitled to make a motion in the Administrative Law Court to be allowed to intervene to participate in the appeal for appropriate reasons including their interest in defending their policies.

HISTORY: 1982 Act No. 402, Section 4; 1993 Act No. 110, Section 2, eff three months after June 11, 1993; 1996 Act No. 284, Section 5, eff October 1, 1996; 2006 Act No. 387, Section 9, eff July 1, 2006.

Code Commissioner's Note

At the direction of the Code Commissioner, the reference to Section 20-7-490 in paragraph (E)(1) was changed to Section 63-7-20 in accordance with 2008 Act No. 361 (Children's Code).

At the direction of the Code Commissioner, references in this section to the offices of the former State Budget and Control Board, Office of the Governor, or other agencies, were changed to reflect the transfer of them to the Department of Administration or other entities, pursuant to the directive of the South Carolina Restructuring Act, 2014 Act No. 121, Section 5(D)(1), effective July 1, 2015.

Editor's Note

1996 Act No. 284, Section 9, provides:

"SECTION 9. Any members of the State Employee Grievance Committee added pursuant to the amendment to Section 8-17-340 of the 1976 Code contained in this act must be appointed with staggered terms that must be noted on the appointment."

2006 Act No. 387, Section 53, provides as follows:

"This act is intended to provide a uniform procedure for contested cases and appeals from administrative agencies and to the extent that a provision of this act conflicts with an existing statute or regulation, the provisions of this act are controlling."

2006 Act No. 387, Section 57, provides as follows:

"This act takes effect on July 1, 2006, and applies to any actions pending on or after the effective date of the act. No pending or vested right, civil action, special proceeding, or appeal of a final administrative decision exists under the former law as of the effective date of this act, except for appeals of Department of Health and Environmental Control Ocean and Coastal Resource Management and Environmental Quality Control permits that are before the Administrative Law Court on the effective date of this act and petitions for judicial review that are pending before the circuit court. For those actions only, the department shall hear appeals from the administrative law judges and the circuit court shall hear pending petitions for judicial review in accordance with the former law. Thereafter, any appeal of those actions shall proceed as provided in this act for review. For all other actions pending on the effective date of this act, the action proceeds as provided in this act for review."

Effect of Amendment

The 1993 amendment, in the eighth paragraph, revised the standard for reviewing a case involving exploitation, neglect, or abuse.

The 1996 amendment substantially revised this section, designating subsections (A) through (F), so as to specify what appeals may be heard, to authorize the appointment of additional committee members, and to provide for the operation of and representation before the grievance committee.

The 2006 amendment rewrote subsection (F) to provide for appeals to the Administrative Law Court rather than the court of common pleas.