III, Sec. 8 Separations, disciplinary actions, and appeals

Section 8.01. Resignation.

(1) An employee who wants to resign his or her position with the KCOJ in good standing must notify his or her appointing authority or designee in writing at least 14 calendar days prior to the effective date of the resignation. If the employee provides verbal notice of the resignation and is unwilling or unable to put the notice in writing, the appointing authority or designee must document the verbal notice in writing and have the employee or a witness sign the notification. The appointing authority or designee must notify the AOC HR Department immediately upon receipt of the resignation.

(2) A resignation is considered accepted immediately upon notification to the appointing authority or designee. However, a resignation may be rescinded after it is received if the appointing authority or designee agrees to the request to rescind.

(3) An employee with an accrued annual leave balance who fails to notify his or her appointing authority or designee in writing at least 14 calendar days prior to the effective date of the resignation will lose annual leave for each day short of the 14 calendar days, unless waived by the appointing authority or designee. Full-time employees will lose annual leave at the rate of 7.5 hours for each calendar day. To the extent applicable, part-time employees will lose annual leave at the rate of 3.75 hours for each calendar day.

(4) Following review of the employee's record of performance with the KCOJ, the HR Director or designee may designate an employee's resignation as accepted with prejudice, and the employee may not be eligible for rehire. Appropriate documentation will be maintained by the AOC HR Department.

(5) An employee who resigns his or her position is not entitled to any grievance or appeal rights.

(6) An employee who has been absent without prior approval for a period of three consecutive scheduled workdays will be considered to have voluntarily resigned from employment with the KCOJ and is not entitled to any grievance or appeal rights.

Section 8.02. Grievances.

(1) General.

(a) The KCOJ recognizes that problems may arise during the course of employment. The KCOJ believes that every effort should be made to resolve these differences and concerns, and therefore has developed a grievance procedure for tenured employees.

(b) Except as otherwise provided in these Policies, a grievance may be filed by a tenured employee concerning a position or employee action under Section 4.01 of these Policies or disciplinary action under Section 8.03 of these Policies other than those that result in a loss of pay or other benefits of employment for greater than three working days.

(c) A tenured employee is entitled to file a grievance without interference, coercion, discrimination, or retaliation.

(2) Grievance Procedure.

(a) An employee who has a grievance must first discuss it with his or her appointing authority or supervisor unless it would not be appropriate under the circumstances. If the employee is unable to resolve the misunderstanding or disagreement with his or her appointing authority or supervisor, the employee may file a written grievance with the AOC HR Department.

(b) A grievance is filed by submitting form AOC-PER-5.2, KCOJ Employee Grievance Form, on or before the fifth business day after the involuntary employee or disciplinary action occurred or on or before the fifth business day after the employee becomes aware of the action.

(c) Form AOC-PER-5.2 should contain a detailed description of the factual basis for the grievance, provide the names of any relevant witnesses, and describe any relevant documents.

(d) The HR Director or designee will assign an Employee Relations liaison to receive each grievance consistent with Section 3.03(2)(b) of these Policies.

(e) Employee Relations liaison will investigate and evaluate the grievance, consult with the employee filing the grievance, the appointing authority or designee, and relevant witnesses, and consider any other pertinent submissions and sources of information prior to making a recommendation to the HR Director.

(f) The HR Director will notify the employee in writing of the decision on the grievance within 30 business days of receiving the grievance unless the AOC Director or designee grants a reasonable extension of time for good cause shown.

(g) If the employee is dissatisfied with the HR Director's decision, the employee may request a review by the AOC Director by filing a written request within five business days after receiving the HR Director's decision. The written request should describe in detail the basis for the review and the relief requested. The AOC Director or designee must issue a written opinion within 30 business days. The opinion will be final and not subject to appeal.

(h) If the grievance is against the HR Director or an employee of the AOC HR Department, the General Counsel or designee will act in place of the HR Director.

Section 8.03. Disciplinary Actions.

(1) Disciplinary actions for tenured employees are generally progressive in nature to allow KCOJ employees an opportunity to improve their behavior or their performance and remain productive employees. The disciplinary actions below are described in a step- by-step method and are intended to provide guidance to the appointing authority or designee. However, the appointing authority or designee may deviate from the disciplinary process depending on the situation. Section 8.03 of these Policies may also be used to address the performance or behavior of non-tenured employees at the discretion of the appointing authority or designee.

(a) Step One: Verbal Reprimand. Verbal reprimands are used as warnings for less serious disciplinary matters.

(i) Written documentation of the behavior or performance deficiencies, including the date of the verbal reprimand, must be provided to the AOC HR Department and placed in the employee's personnel file.

(ii) Employees do not have the right to grieve a verbal reprimand under Section 8.02 of these Policies.

(b) Step Two: Written Reprimand

(i) A written reprimand must clearly identify the behavior and performance deficiencies for which the employee is being disciplined, the corrective action to be taken by the employee, and the potential consequences of the employee's failure to correct his or her behavior or performance.

(ii) The Employee Relations liaison will prepare or review the written reprimand to ensure compliance with these Policies and present it to the appointing authority or designee for issuance.

(iii) The appointing authority or designee must present the written reprimand to the employee in person and in the presence of a witness, and have the employee read and sign the reprimand to confirm he or she received it. The employee has the option of adding his or her comment(s) to the written reprimand. If the employee refuses to sign the written reprimand, the document must indicate such refusal and must be signed by the appointing authority or designee and the witness.

(iv) The written reprimand along with any comments provided by the employee must be provided to the AOC HR Department, placed in the employee's official personnel file, and labeled as a written reprimand.

(c) Step Three: Final Reprimand

(i) The final reprimand must specify the date of the final reprimand and, if applicable, the date and length of suspension, clearly identify the conduct and performance deficiencies for which the employee is being disciplined and the corrective action to be taken by the employee, and notify the employee of the consequences of his or her failure to correct the workplace deficiencies, or any additional workplace deficiencies may result in dismissal.

(ii) The Employee Relations liaison will prepare the final reprimand letter to ensure compliance with these Policies and present it to the appointing authority or designee for issuance.

(iii) If a final reprimand includes a suspension without pay, it may not exceed three working days.

(iv) The appointing authority or designee must follow these procedures when issuing a final reprimand:

a. Present the final reprimand letter to the employee in person unless circumstances require otherwise, and, in the presence of a witness.

b. Have the employee read and sign the final reprimand to confirm he or she received it.

c. Allow the employee the option to add his or her comments to the final reprimand letter.

d. If the employee refuses to sign the final reprimand letter, the letter must indicate such refusal and must be signed by the appointing authority or designee and the witness.

(v) The final reprimand letter along with any comments provided by the employee must be provided to the AOC HR Department and placed in the employee's official personnel file.

(vi) If the employee files a grievance pursuant to Section 8.02 of these Policies and the suspension is reversed, the employee will be reinstated with full pay for all working days he or she was suspended without pay.

(d) Step Four: Involuntary Demotion or Transfer

(i) If appropriate, in lieu of or prior to dismissal, an appointing authority or designee may pursue involuntary demotion or transfer pursuant to Section 4.01 of these Policies.

(ii) The involuntary demotion or transfer letter for a tenured employee must contain:

a. The effective date of the involuntary employee action;

b. The employee's conduct or work performance deficiencies that have resulted in the involuntary employee action;

c. Corrective action to be taken by the employee to prevent further disciplinary action;

d. A statement notifying the employee that his or her failure to correct the workplace deficiencies, or any additional workplace deficiencies, may result in dismissal; and,

e. An explanation of grievance or appeal rights available to the employee should he or she disagree with the employee action.

(iii) The Employee Relations liaison will prepare the involuntary demotion or transfer letter to ensure compliance with these Policies and present it to the appointing authority or designee for issuance.

(iv) The appointing authority or designee must follow these procedures when issuing an involuntary demotion or transfer:

a. Present the employee action letter to the employee in person unless circumstances require otherwise, and, in the presence of a witness.

b. Have the employee read and sign the notice of involuntary demotion or transfer to confirm he or she received it.

c. Allow the employee the option to add his or her comments to the letter.

d. If the employee refuses to sign, the letter must indicate such refusal and must be signed by the appointing authority or designee and the witness.

e. Should the employee decide to grieve or appeal the employee action, the procedures outlined under Sections 8.02 and 8.06 of these Policies shall apply.

(v) The involuntary demotion or transfer letter along with any comments provided by the employee must be provided to the AOC HR Department and placed in the employee's official personnel file.

(2) Investigative Leave.

(a) Pending an investigation of any disciplinary matter, the Chief Justice or the AOC Director or their designees, after consulting with the appointing authority or designee, may place an employee on paid investigative leave for a period not to exceed five working days.

(b) Investigative leave for more than five working days must be approved by the Chief Justice or the AOC Director and may be with or without pay. If the investigative leave is without pay, the employee may use accrued paid leave.

(c) In all instances of investigative leave, the appointing authority or designee must submit a PAR to the HR Director indicating the effective dates of paid or unpaid leave.

(3) The Chief Justice, as the executive head of the KCOJ, has the constitutional authority and responsibility to act in the best interests of the KCOJ. Accordingly, when the Chief Justice determines that an employee has deviated from good behavior or satisfactory performance of duties, an employee may be disciplined, up to and including dismissal, over the objection of the employee's appointing authority or designee.

Section 8.04. Dismissal.

(1) Whenever the appointing authority or designee has reasonable evidence that an employee under his or her management has substantially deviated from good behavior or satisfactory performance of duties, the appointing authority or designee, after consultation with the HR Director, may dismiss the employee from his or her position.

(2) Grounds for dismissal include, but are not limited to, the following:

(a) Being charged with, convicted of, or pleading guilty to a misdemeanor or felony;

(b) Refusal, failure, or inability to perform reasonable work duties or legal duties required by the appointing authority or designee;

(c) Recurring absences or tardiness from duty without good cause or reasonable evidence of good cause;

(d) Excessive absences that impair the employee's ability to perform official duties required by the appointing authority or designee;

(e) Refusal or inability to follow the prescribed procedures for handling money or maintaining records as required by the KCOJ or by any internal department policies, procedures, standards, or guidelines;

(f) Use of drugs, alcohol, or other intoxicants during working hours or the inability to work efficiently and effectively because of off-duty use of drugs, alcohol, or other intoxicants;

(g) Unprofessional conduct or habitual rudeness toward fellow employees, supervisors, officials, or the general public;

(h) Two or more instances of disciplinary actions taken against an employee during the 24 months before the present dismissal action;

(i) Insubordinate conduct or conduct that is intended to embarrass, harass, or bring disrepute to the KCOJ, its employees, or elected officials;

(j) Failure to cooperate with an AOC audit, workplace conduct resolution, or investigation of any kind;

(k) Failure to comply with these Policies or other office policies of the employee's department;

(l) Theft, intentional damage, or destruction of KCOJ property;

(m) Falsification of records; or

(n) Unsafe behavior in the workplace including dangerous horseplay and fighting.

(3) When dismissing a tenured employee, the appointing authority or designee, including the Chief Justice when applicable, must follow these procedures:

(a) The Employee Relations liaison will prepare the intent to dismiss letter to ensure compliance with these Policies, and after consultation with and review by the General Counsel or designee, present it to the appointing authority or designee for issuance.

(b) The intent to dismiss letter must be signed by the appointing authority or designee and must inform the employee of the following:

(i) The reasons for the dismissal including instances of poor work performance of duties, workplace misconduct, or unlawful activity;

(ii) Any disciplinary actions unrelated to the present behavior or performance taken against the employee within the last 24 months and any related disciplinary actions taken against the employee at any time during the employee's tenure, which were considered by the appointing authority or designee in deciding to issue the dismissal;

(iii) The effective date of the impending dismissal;

(iv) That he or she is on paid administrative leave for five business days, during which time the employee has a right to a pre-dismissal meeting with his or her appointing authority or designee to refute the reasons for the dismissal; and

(v) An explanation of appeal rights available to the tenured employee should he or she disagree with the action of dismissal.

(c) The intent to dismiss letter will be issued to the employee by the appointing authority or designee in person with a witness present. If the employee is not available, efforts will be made to contact the employee by phone, electronic mail, and U.S. mail to inform the tenured employee of the proposed action. The employee's unavailability or inability to be contacted by the appointing authority does not negate the appointing authority's ability to issue the intent to dismiss letter.

(d) The intent to dismiss letter along with any comments provided by the employee and a PAR for paid administrative leave must be submitted to the AOC HR Department and placed in the employee's official personnel file.

(e) If requested by the employee, the appointing authority or designee must conduct a pre-dismissal meeting within five business days of issuing the intent to dismiss letter.

(f) Employment with the KCOJ will end after the five business days of administrative leave unless the appointing authority or designee withdraws his or her intention to dismiss or the administrative leave is extended by the Chief Justice or AOC Director to permit a pre-dismissal meeting.

(g) If the appointing authority or designee does not withdraw his or her intention to dismiss, the employee will be notified in writing of his or her dismissal by final dismissal letter sent by e-mail and U.S. certified mail.

(h) Should the employee decide to appeal the dismissal, the procedures outlined in Section 8.06 of these Policies will apply.

(4) A non-tenured employee may be dismissed by his or her appointing authority or designee, at any time, with or without cause or notice, as follows:

(a) With approval of the HR Director, the Employee Relations liaison will prepare the non-tenured dismissal letter to ensure compliance with these Policies and present it to the appointing authority or designee for issuance.

(b) The appointing authority or designee must notify the employee in person or with AOC HR Department approval, communicate the dismissal by electronic means, and deliver the letter in person or via e-mail and U.S. certified mail.

(c) A dismissal PAR must be entered by the appointing authority or designee with a copy of the issued dismissal letter. The AOC HR Department will place the dismissal letter in the employee's official personnel file, and label as a non- tenured dismissal.

(5) An employee serving a probationary period pursuant to Section 4.04 of these Policies may be dismissed at any time prior to the expiration of the probationary period without the right of appeal.

(a) With approval of the HR Director, the Employee Relations liaison will prepare the probationary dismissal letter to ensure compliance with these Policies and present it to the appointing authority or designee for issuance.

(b) The appointing authority or designee must notify the employee in person or with AOC HR Department approval, communicate the probationary dismissal by electronic means, and deliver the letter in person or via e-mail and U.S. certified mail.

(c) A probationary dismissal PAR must be entered by the appointing authority or designee with a copy of the issued probationary dismissal letter. The AOC HR Department will place the dismissal letter in the employee's official personnel file, and label as a probationary dismissal.

Section 8.05. Right to Appeal a Disciplinary Action Including Dismissal.

(1) All tenured employees of the KCOJ have the right to appeal the following disciplinary actions: demotions, dismissals, and other employee actions that result in loss of pay or other benefits of employment for greater than three days.

(2) An employee failing to file an appeal before the deadline described in Section 8.06 of these Policies waives his or her right to any further administrative remedies or actions under these Policies.

(3) Pursuant to Section 116 of the Kentucky Constitution and Supreme Court Rule 1.010, the Supreme Court of Kentucky has been vested with the exclusive authority over the rules for the appointment of KCOJ personnel and is expressly exempted from the provisions of KRS Chapter 18A. All tenured employees who seek an appeal of an employee action referenced in Section 8.05(1) of these Policies shall file the appeal with the AOC HR Department.

Section 8.06. Appeal Procedures.

(1) Hearing Officers

(a) The Chief Justice shall appoint five retired Judges or Justices in good standing with the Kentucky Bar Association to serve as Hearing Officers. The term of service for the appointed Hearing Officers will be two years. All appointed Hearing Officers will be provided a copy of these Policies and shall conduct hearings in accordance herewith. Only one appointee will serve as a Hearing Officer for an appeal. If the Chief Justice directly dismisses the employee involved in an appeal, a Special Hearing Officer will be appointed by the Deputy Chief Justice.

(b) A Hearing Officer shall disqualify him or herself from any proceeding where he or she has a personal bias concerning a party, has a personal knowledge of disputed evidentiary facts, or has expressed an opinion concerning the merits of the appeal.

(2) Appeal Hearing Clerk. The Employee Relations liaison shall serve as the clerk of the appeal hearing and shall be responsible for maintaining a complete record of the appeal, including entry and notice of orders and recommendations, filing of papers submitted by the parties, and electronically recording the proceedings.

(3) Appeal Procedures.

(a) A tenured employee seeking an appeal must submit form AOC-PER-6.4, Kentucky Court of Justice Appeal Form, to the Employee Relations liaison within 14 calendar days following receipt of electronic or physical receipt of written notice of final action, as confirmed by the AOC HR Department. Form AOC-PER-6.4 is the only document that may be submitted to initiate the appeal.

(b) The employee must state on form AOC-PER-6.4 the specific reasons for the appeal and include a copy of the final dismissal letter or notice of disciplinary or employee action.

(c) After receiving form AOC-PER-6.4, the appeal hearing clerk will designate a Hearing Officer from the list of appointed Hearing Officers. The appeal hearing clerk will make such designation after determining that the proposed Hearing Officer is available to serve and does not have a conflict of interest. The appeal hearing clerk will then provide the employee, AOC legal counsel, and the appointing authority or designee written notice of the designation.

(d) Any party to an appeal may participate in-person or be represented by counsel.

(e) The Hearing Officer must conduct a hearing within 60 calendar days from the date that the appeal was filed with the appeal hearing clerk.

(f) The Hearing Officer may enter a scheduling order containing any filing deadlines and dates for the pre-hearing conference and the hearing.

(g) The Hearing Officer may issue subpoenas and enter discovery orders at his or her discretion when requested by a party and address all matters related thereto.

(h) If, at any time during the appeal proceedings, either party files with the appeal hearing clerk an affidavit asserting that the Hearing Officer will not afford the party a fair and impartial hearing, the appeal hearing clerk shall submit the affidavit to the AOC Director who shall immediately review the affidavit and determine whether the appeal hearing clerk is to designate another appointee for purposes of the appeal.

(i) The Hearing Officer shall not communicate off the record with any party to the hearing or any other person who has a direct or indirect interest in the outcome of the hearing, concerning any substantive issue, while the proceeding is pending. If an ex parte communication occurs, the Hearing Officer shall note the occurrence for the record and shall place in the record a copy of the communication, if it was written, or a memorandum of the substance of the communication, if it was oral.

(4) Pre-Hearing Conference.

(a) No later than seven calendar days prior to the pre-hearing conference, each party shall provide to the appeal hearing clerk the documentary evidence to be introduced at the hearing, as well as a list of witnesses to be called. The appeal hearing clerk shall forward, as soon as possible, the documentary evidence and the list of witnesses to be introduced by each party to the Hearing Officer and the opposing party.

(b) No later than 14 calendar days prior to the hearing, the Hearing Officer shall convene and conduct a pre-hearing conference on the record. The pre-hearing conference may take place in person or by electronic means. The purpose of the pre-hearing conference will be to:

(i) explore mediation and settlement possibilities;

(ii) prepare stipulations;

(iii) clarify issues;

(iv) tender subpoenas; and

(v) issue rulings regarding witnesses, evidence, and other matters that will promote the orderly and prompt conduct of the hearing.

(c) Upon conclusion of a pre-hearing conference, the Hearing Officer shall issue a pre-hearing order incorporating all rulings and procedure agreed upon at the pre-hearing conference.

(d) The pre-hearing conference will be closed to the public.

(5) Conduct of Hearing.

(a) The Hearing Officer shall preside over the hearing and shall regulate the course of the proceedings in a manner that will promote the orderly and prompt conduct of the hearing. When a pre-hearing order has been issued, the Hearing Officer shall regulate the hearing in conformity therewith. The hearing shall be conducted on the record.

(b) To the extent necessary for the full disclosure of all relevant facts and issues, the Hearing Officer shall give all parties the opportunity to present opening and closing arguments, respond, present evidence and argument, conduct cross- examination, and submit rebuttal evidence, except as restricted by the pre- hearing order or a determination by the Hearing Officer that the proposed evidence is irrelevant, immaterial, unduly repetitious, or otherwise inadmissible. If the facts of the matter would give rise to a criminal proceeding, no person shall be compelled to give evidence against him or herself.

(c) The Hearing Officer may conduct all or part of the hearing by electronic means if each party to the hearing has an opportunity to hear the entire proceeding as it occurs. The Hearing Officer shall make the determination of whether to permit all or part of the hearing to be conducted by electronic means. The Hearing Officer shall administer oaths to witnesses for each party, including the employee, and shall have the authority to question the witnesses and conduct any other related fact-finding efforts. The Hearing Officer shall ensure that an accurate and complete record of the hearing is made.

(d) The employee and the appointing authority or designee may present witnesses and documentary evidence to be evaluated by the Hearing Officer. It shall be the sole responsibility of each party to assure the attendance of their respective witnesses. In the event that a proposed witness fails to appear, or the employee fails to request a subpoena be issued by the Hearing Officer, a continuance will not be granted, except for extraordinary circumstances as determined by the Hearing Officer.

(e) If a party fails to attend or participate in a pre-hearing conference or hearing or fails to comply with the orders of the Hearing Officer, the Hearing Officer may adjourn the proceedings and issue a default order granting or denying relief as appropriate or may conduct the proceedings without the participation of the defaulting party, having due regard for the interests of justice, and the orderly and prompt conduct of the proceedings. A default order shall be considered a recommended order.

(f) The hearing may be closed to the public for good cause shown, at the discretion of the Hearing Officer.

(g) In all hearings, unless otherwise provided by statute or federal law, the party proposing that the KCOJ take action has the burden to show the propriety of the action. The KCOJ has the burden to show the propriety of a disciplinary action imposed. The party asserting an affirmative defense has the burden to establish that defense. The party with the burden of proof on any issue has the burden of proof going forward and the ultimate burden of persuasion as to that issue. The ultimate burden of proof in all hearings is met by a preponderance of evidence in the record. Failure to meet the burden of proof is grounds for a recommended order from the Hearing Officer.

(h) The Hearing Officer shall issue his or her findings of fact and conclusions based solely upon the evidence on the record. The Hearing Officer shall exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this Commonwealth. Hearsay evidence may be admissible, if in the opinion of the Hearing Officer, it is of the type that reasonable and prudent people would rely upon in their daily affairs.

(i) All testimony shall be made under oath. Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party. All objections to evidentiary offers shall be noted in the record.

(j) At the conclusion of the hearing, the Hearing Officer may order the parties to tender proposed findings of fact and conclusions.

(k) The Hearing Officer shall issue his or her written findings of fact, conclusions, and recommendation to the AOC Director within 14 calendar days from the completion of the hearing. The Hearing Officer may request, in writing, an extension of time not to exceed 14 calendar days from the Chief Justice, or Deputy Chief Justice when appropriate, which may be granted based upon good cause shown.

(l) The Hearing Officer's recommendation will be submitted to the appeal hearing clerk for filing in the record and transmission of a copy to the AOC Director and parties. The Hearing Officer's recommendation is not subject to further administrative appeal.

(m) The AOC Director will evaluate the recommendation of the Hearing Officer and make the final decision in regard to the appeal. Once issued, the AOC Director's final decision will be filed in the record and the employee's official personnel file. The AOC Director's final decision is not subject to further administrative appeal.

(n) If either party is dissatisfied with the decision of the AOC Director, an original action may be filed within 30 calendar days after the date of the AOC Director's final decision in Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides.