# COMAR Title 17 — Department of Budget and Management

## Subtitle 04 — Personnel Services and Benefits

### Chapter 07 — Conferences, Hearings, and Appeals

**Authority:** State Personnel and Pensions Article, §4-106 and Titles 11 and 12, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.14 adopted as an emergency provision effective February 12, 1997 (24:5 Md. R. 391); emergency status expired August 12, 1997

**Administrative History:** Regulations .01—.14 adopted effective September 8, 1997 (24:18 Md. R. 1297)

**Administrative History:** For a history of State Personnel Regulations before February 12, 1997, see the prior version of COMAR Title 06 or contact the Maryland State Archives for assistance.

**Administrative History:** Regulation .02B amended effective January 19, 2015 (42:1 Md. R. 19)

**Administrative History:** Regulation .04 amended effective January 19, 2015 (42:1 Md. R. 19)

**Administrative History:** Regulation .06A amended effective January 19, 2015 (42:1 Md. R. 19)

#### Regulation .01 Scope.

*COMAR 17.04.07.01*

A. This chapter applies to all conferences, hearings, and appeals conducted pursuant to State Personnel and Pensions Article, Titles 11 and 12, Annotated Code of Maryland.

B. This chapter shall be construed to ensure the fair and expeditious processing of grievances and disciplinary actions.

C. This chapter supplements the procedures established by statute.

D. Hearings are governed by this chapter and COMAR 28.02.01. In the case of a conflict between this chapter and COMAR 28.02.01, this chapter prevails.

#### Regulation .02 Definitions.

*COMAR 17.04.07.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Appeal” means a grievance or disciplinary action challenged by an employee or former employee.

  (2) “Business day” means a calendar day, excluding Saturdays, Sundays, and employee holidays as defined in State Personnel and Pensions Article, §9-201, Annotated Code of Maryland.

  (3) “Designated representative” means an attorney, an employee organization representative, or any other individual authorized in writing by a party to represent the party.

  (4) “Disciplinary action” has the meaning stated in State Personnel and Pensions Article, §11-104, Annotated Code of Maryland.

  (5) “Employer” has the meaning stated in State Personnel and Pensions Article, §12-101, Annotated Code of Maryland.

  (6) “Grievance” has the meaning stated in State Personnel and Pensions Article, §12-101, Annotated Code of Maryland.

  (7) “Hearing” means a contested case proceeding conducted by the Office of Administrative Hearings.

  (8) “Office” means the Office of Personnel Services and Benefits, Department of Budget and Management, which is the designated representative of the Secretary.

  (9) “Party” means an employee filing an appeal, the aggrieved employee's appointing authority, or the Department of Budget and Management when named in a second step grievance decision.

#### Regulation .03 Timeliness.

*COMAR 17.04.07.03*

A. An appeal shall be received by the Office not later than 10 calendar days after the date the appellant received the decision of the head of the principal unit or the unit head's designee.

B. Whenever service of a decision under §A of this regulation is by regular mail, 3 business days shall be added to the period for an employee to file an appeal.

C. An appeal is considered received on the date it is date stamped by the Office.

#### Regulation .04 Transmittal of Appeal.

*COMAR 17.04.07.04*

A. The Office shall accept appeals forwarded by facsimile.

B. Electronic Transmittal.

  (1) Each employer shall have a designated email address which may be used to file appeals.

  (2) An appeal submitted by email shall be considered properly filed only when received at the designated email address of the proper employer at the appropriate stage of the appeal process.

  (3) Each email transmittal may include only one appeal, with the exception of a single grievance filed by a group of employees, commonly referred to as a “group grievance”.

  (4) The subject line of the email by which the appeal is transmitted shall include:

    (a) The first and last name of the employee whose appeal is being filed; and

    (b) The grievance issue or type of disciplinary action being appealed.

  (5) The employer will send an email response to each appeal filed via email, which may be automatic, acknowledging receipt of the appeal and including the information from the subject line of the email by which the appeal is filed.

  (6) The documentation required by §C of this regulation, and any other documentation being filed with the appeal, must be included in a single attachment to the email in PDF format.

  (7) The Office, or any employer addressing an appeal at any step of the process, may use the email address from which an appeal is filed to deliver any notices, decisions, or other correspondence associated with the appeal to the party or representative filing the appeal.

C. The appeal shall be considered filed only when all of the information required by State Personnel and Pensions Article, §12-205, Annotated Code of Maryland, and COMAR 17.04.05 and 17.04.06 has been submitted.

#### Regulation .05 Informal Conferences.

*COMAR 17.04.07.05*

A. The Office shall conduct all conferences informally and in accordance with the provisions of State Personnel and Pensions Article, Titles 11 and 12, Annotated Code of Maryland, and this chapter.

B. Conferences shall be closed to the general public unless the employee waives the confidentiality of the conference.

#### Regulation .06 Notice of Settlement Conference.

*COMAR 17.04.07.06*

A. The Office shall send written notice of a settlement conference to the parties by mail or facsimile, or by email pursuant to Regulation .04 of this chapter.

B. The settlement conference notice shall contain:

  (1) The date, time, place, and the nature of the conference;

  (2) A statement that notice must be received 3 business days before the conference date if special arrangements are needed to accommodate an individual with a disability;

  (3) A statement that notice must be received 3 business days before the conference date if an interpreter is needed; and

  (4) A statement that failure to participate in good faith or to attend a conference may result in a decision adverse to a party.

#### Regulation .07 Appearance of Parties at Settlement Conference; Representation.

*COMAR 17.04.07.07*

A. A party or a designated representative shall be present for all scheduled settlement conferences.

B. An individual may be represented by himself or herself or by a designated representative.

C. If a designated representative participates in a settlement conference instead of a party, the designated representative shall have authority to negotiate or settle the matter appealed.

D. A party's designated representative shall enter the representative's appearance with the Office. The designation of the representative shall be in writing.

E. A copy of all notices and correspondence shall be sent to a party and a party's designated representative.

F. When the appellant's designated representative is another State employee, the appointing authority of the designated representative shall assure that the designated representative is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal. An employee may not leave the employee's post of duty to represent another employee at a grievance appeal or a disciplinary appeal conference or hearing without permission from the employee's supervisor.

G. The appointing authority shall assure that the appellant is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal.

#### Regulation .08 Postponement of a Settlement Conference.

*COMAR 17.04.07.08*

A. The Office shall only consider a request for postponement of a settlement conference:

  (1) If the requesting party provides a written request 3 business days before the scheduled conference and establishes good cause for the postponement;

  (2) In the case of an emergency as defined in §C of this regulation; or

  (3) Under unusual circumstances as determined by the Office.

B. The Office may require documentation of the reasons for the postponement from the party requesting the postponement.

C. Emergency postponements are granted only when the emergency is a sudden, unforeseen occurrence requiring the immediate attention of the requesting party.

D. If the postponement is requested due to a medical emergency, the party requesting the postponement shall submit written medical documentation by one of the medical providers named in State Personnel and Pensions Article, §9-504, Annotated Code of Maryland. Failure to provide the required documentation may result in a decision adverse to the requesting party.

#### Regulation .09 Telephone or Video Conferences.

*COMAR 17.04.07.09*

A. The Office in its exclusive discretion may conduct a settlement conference by telephone, video, or other electronic means if each party has an opportunity to participate in the entire proceeding.

B. Except as authorized by the Office, documents for a telephone, video, or electronic conference shall be received by the Office and each party at least 3 business days before the scheduled conference.

#### Regulation .10 Failure to Attend a Conference or Hearing.

*COMAR 17.04.07.10*

A. Each party shall attend and participate in good faith in a scheduled conference or hearing. The Office of Administrative Hearings may issue a decision adverse to the party upon a showing that the party:

  (1) Was sent proper notice of the conference or hearing; and

  (2) Failed to show good cause for not attending.

B. Except in an emergency as defined by Regulation .08C or D of this chapter, a determination of good cause may not be made if the party or the party's representative failed to provide timely notification to the Office of the party's inability to attend.

C. The good faith obligation imposed by this regulation does not require a party to negotiate or settle a case. It requires that a party be prepared to:

  (1) Discuss the merits of the case at the conference after having evaluated the factual and legal issues involved; and

  (2) Consider all proposals which have the potential to resolve the dispute between the parties.

#### Regulation .11 The Record.

*COMAR 17.04.07.11*

A. The Office shall prepare an official record of each appeal received.

B. The record shall consist of:

  (1) The documents giving rise to the appeal;

  (2) The request for an appeal;

  (3) Notices of all proceedings;

  (4) Any postponement requests and responses; and

  (5) Any documents included in the file by mutual agreement of the parties.

C. The substance of settlement discussions and related documentation is not part of the record forwarded to the Office of Administrative Hearings unless the parties, by mutual agreement, request inclusion of this material.

D. Section C of this regulation does not prohibit a notation in the record by the Secretary or the Secretary's designee, when appropriate, that a party did not appear for a settlement conference.

E. The record for an appeal not resolved by the Office shall be forwarded to the Office of Administrative Hearings.

#### Regulation .12 Proposed Findings of Fact and Conclusions of Law.

*COMAR 17.04.07.12*

A. A party may submit proposed findings of fact and proposed conclusions of law before, at, or after a hearing.

B. Proposed findings of fact and conclusions of law shall be submitted in writing.

C. If submitted after a hearing, the proposed findings of fact and conclusions of law shall be filed not later than 10 business days after the hearing.

D. The party submitting proposed findings of fact and conclusions of law shall serve a copy upon all other parties by mail.

E. The Office of Administrative Hearings shall rule on each proposed finding in the final decision.

#### Regulation .13 Peer Review Panels.

*COMAR 17.04.07.13*

A. A peer review panel may be selected in accordance with State Personnel and Pensions Article, §11-112 or 12-301, Annotated Code of Maryland.

B. A principal unit may apply to the Secretary for approval to establish a peer review panel. The application shall state how panel members are to be selected, their terms on the panel, the procedures for appealing a disciplinary action or grievance to a panel, and the procedures and policies that will bind the panel in its decision making.

C. An individual who is a party to the issue to be considered by a peer review panel, was involved in the decision giving rise to the grievance, or otherwise had a conflict of interest, may not participate as a member of the panel convened to hear the employee's appeal.

D. A panel shall be bound by a regulation, declaratory ruling, prior adjudication, or other settled, preexisting policy to the same extent as the Office is, or would have been bound, if it were hearing the case.

E. Approval of a peer review panel is effective until the principal unit head amends its application or revokes authority for the panel. Revocation of the panel's authority may occur without the Secretary's approval. A unit may employ more than one type of panel if approval is received from the Secretary.

F. A unit shall notify its employees of the existence of an approved peer review panel and shall keep a copy of the application and approval in accordance with State Personnel and Pensions Article, §5-101, Annotated Code of Maryland.

G. A decision issued by a peer review panel shall contain findings of fact and conclusions of law, meet the requirements of the Administrative Procedure Act, and be sent to the parties within 45 days after the close of the record. The decision of the peer review panel is the final administrative decision.

#### Regulation .14 Office of Administrative Hearings.

*COMAR 17.04.07.14*

A. In a hearing held pursuant to State Personnel and Pensions Article, Titles 11 and 12, Annotated Code of Maryland, the Office of Administrative Hearings is bound by a regulation, declaratory ruling, prior adjudication, or other settled, preexisting policy, to the same extent that the Office is, or would have been bound, if it were hearing the case.

B. A hearing conducted by the Office of Administrative Hearings, in accordance with the State Personnel and Pensions Article, shall be closed to the general public unless the employee waives the confidentiality of the hearing.

C. The Office of Administrative Hearings may not conduct a settlement conference before taking oral testimony or issuing a ruling on a substantive issue. After taking oral testimony or issuing a ruling on a substantive issue, the Office of Administrative Hearings may conduct a settlement conference.