SB429 SUB2
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 429
(By Senators Bowman, Wooton, White, Snyder,
Hunter, Deem,
Kessler, Schoonover and Ball)
____________
[Originating in the Committee on Finance;
reported March 6, 1998.]
____________
A BILL to amend and reenact section five, article twenty-nine,
chapter eighteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections three, four, five, six, seven and ten, article six- a, chapter twenty-nine of said code; and to further amend
said article by adding thereto a new section, designated
section twelve, all relating to the education and public
employees grievance process; providing for expedited
grievance processes; expanding the jurisdiction of the
board; changing the default provisions; giving board
procedural jurisdiction at levels two and three; allowing
mediation at the request of any party; allowing appeals to
be filed in the circuit court of Kanawha County; and
increasing the cap on attorney's fees for prevailing grievants.
Be it enacted by the Legislature of West Virginia:
That section five, article twenty-nine, chapter eighteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that sections three, four,
five, six, seven and ten, article six-a, chapter twenty-nine of
said code be amended and reenacted; and that said article be
further amended by adding thereto a new section, designated
section twelve, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-5. Education and state employees grievance board; hearing
examiners.
(a) There is hereby created and shall be an The education
and state employees grievance board which shall consist of three
members who shall be
are citizens of the state appointed by the
governor by and with the advice and consent of the Senate for
overlapping terms of three years. except that the original
appointments shall be for a period of one, two and three years,
respectively, commencing on the first day of July, one thousand
nine hundred eighty-five No two members shall may be from the
same congressional district, and no more than two of the
appointed members shall may be from the same political party. No
person shall may be appointed to membership on the board who is
a member of any political party executive committee or holds any
other public office or public employment under the federal government or under the government of this state. Members shall
be are eligible for reappointment, and any vacancy on the board
shall be filled within thirty days of the vacancy by the governor
by appointment for the unexpired term.
A member of the board may not be removed from office except
for official misconduct, incompetence, neglect of duty, gross
immorality or malfeasance, and then only in the manner prescribed
in article six, chapter six of this code for the removal by the
governor of the state elected officers.
The board shall hold at least two meetings yearly at such
times and places as it may prescribe and may meet at such other
times as may be necessary, such the other meetings to be agreed
to in writing by at least two of the members. The compensation
for members of the board shall each be paid is seventy-five
dollars for each calendar day devoted to the work of the board,
but not more than seven hundred and fifty dollars during any one
fiscal year. Each member shall be reimbursed for all reasonable
and necessary expenses actually incurred in the performance of
board duties, but shall submit a request therefor for
reimbursement upon a sworn itemized statement.
The board is hereby authorized and required to shall
administer the grievance procedure at level four
levels two,
three and four, as provided in section five, article six-a,
chapter twenty-nine of this code, and
as provided for in section
four of this article and shall employ at least two full-time
hearing examiners on an annual basis and such clerical help as is necessary to implement the legislative intent expressed in
section one of this article.
In addition to the authorization granted by this section
over education employees, the board has jurisdiction over the
procedures to be followed in processing grievances filed under
article six-a, chapter twenty-nine of this code.
The board shall hire hearing examiners who reside in
different regional educational service agency areas unless and
until the number of hearing examiners exceeds the number of such
the areas, at which time two hearing examiners may be from the
same such area. If a grievant previously before a hearing
examiner again brings a grievance, a different hearing examiner
shall be is required to hear the grievance upon written request
therefor by any party to the grievance. These hearing examiners
shall serve at the will and pleasure of the board.
The board shall submit a yearly budget and shall report
annually to the governor and Legislature regarding receipts and
expenditures, number of level four hearings conducted, synopses
of hearing outcomes and such other information as the board may
deem determines appropriate. The board shall further evaluate on
an annual basis the level four grievance process and the
performance of all hearing examiners and include such the
evaluation in the annual report to the governor and Legislature.
In making such the evaluation, the board shall notify all
institutions, employee organizations and all grievants
participating in level four grievances in the year for which evaluation is being made and shall provide for the submission of
written comment and/or or the hearing of testimony regarding the
grievance process, or both. The board shall provide suitable
office space for all hearing examiners in space other than that
utilized by any institution as defined in section two of this
article and shall ensure that reference materials are generally
available.
The board is authorized to promulgate rules and regulations
consistent with the provisions of this article; such the rules
and regulations to shall be adopted in accordance with chapter
twenty-nine-a of this code.
(b) Hearing examiners are hereby authorized and shall have
the power to may consolidate grievances, allocate costs among the
parties in accordance with section eight of this article,
subpoena witnesses and documents in accordance with the
provisions of section one, article five, chapter twenty-nine-a of
this code, provide such relief as is deemed found fair and
equitable in accordance with the provisions of this article, and
such exercise other powers as will provide provides for the
effective resolution of grievances not inconsistent with any
rules or regulations of the board or the provisions of this
article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-3. Grievance procedure generally.
(a)(1) A grievance must shall be filed within the times specified in section four of this article and shall be processed
as rapidly as possible. The number of days indicated at each
level specified in section four of this article shall be
considered as is the maximum number of days allowed and, if a
decision is not rendered at any level within the prescribed time
limits, the grievant may appeal to the next level: Provided,
That the specified time limits shall be extended whenever a
grievant is not working because of accident, sickness, death in
the immediate family or other cause necessitating the grievant to
take personal leave from his or her employment.
(2) Any assertion by the employer that the filing of the
grievance at level one was untimely shall be asserted by the
employer on behalf of the employer at or before the level two
hearing. The grievant prevails by default if a grievance
evaluator required to respond to a grievance at any level fails
to make a required response in the time limits required in this
article, unless prevented from doing so directly as a result of
sickness, injury, excusable neglect, unavoidable cause or fraud.
Within five days of the receipt of a written notice of the
default, the employer may request a hearing before a level four
hearing examiner for the purpose of showing that the remedy
received by the prevailing grievant is contrary to law or clearly
wrong. In making a determination regarding the remedy, the
hearing examiner shall presume the employee prevailed on the
merits of the grievance and shall determine whether the remedy is
contrary to law or clearly wrong in light of that presumption. If the examiner finds that the remedy is contrary to law, or
clearly wrong, the examiner may modify the remedy to be granted
to comply with the law and to make the grievant whole.
(b) If the employer or its agent intends to assert the
application of any statute, policy, rule regulation or written
agreement or submits any written response to the filed grievance
at any level, a copy thereof of the materials shall be forwarded
to the grievant and any representative of the grievant named in
the filed grievance. Anything submitted and the grievant's
response thereto to the submitted materials, if any, shall become
becomes part of the record. Failure to assert such the statute,
policy, rule regulation or written agreement at any level shall
does not prevent the subsequent submission thereof of the
materials in accordance with the provisions of this subsection.
(c) The grievant may file the grievance at the level vested
with authority to grant the requested relief if each lower
administrative level agrees in writing thereto to filing the
grievance at a higher level. In the event a grievance is filed
at a higher level, the employer shall provide copies to each
lower administrative level.
(d) An employee may withdraw a grievance at any time by
notice, in writing, to the level wherein where the grievance is
then current. The grievance may not be reinstated by the
grievant unless reinstatement is granted by the grievance
evaluator at the level where the grievance was withdrawn. If
more than one employee is named as grievant in a particular grievance, the withdrawal of one employee shall does not
prejudice the rights of any other employee named in the
grievance. In the event a grievance is withdrawn or an employee
withdraws from a grievance, such the employer shall notify, in
writing, each lower administrative level.
(e) Grievances may be consolidated at any level by agreement
of all parties.
(f) A grievant may be represented by an employee
organization representative, legal counsel or any other person,
including a fellow employee, in the preparation or presentation
of the grievance. At the request of the grievant, such that
person or persons may be present at any step of the procedure:
Provided,
That at level one of such the grievance, as set forth
in section four of this article, a grievant may have only one
such representative.
(g) If a grievance is filed which cannot be resolved within
the time limits set forth in section four of this article prior
to the end of the employment term, the time limit set forth in
said section shall be reduced as agreed to in writing by both
parties so that the grievance procedure may be concluded within
ten days following the end of the employment term or an otherwise
reasonable time.
(h) No reprisals of any kind shall may be taken by any
employer or agent of the employer against any interested party,
or any other participant in the grievance procedure by reason of
such the participation. A reprisal constitutes a grievance, and any person held to be responsible for reprisal action shall be is
subject to disciplinary action for insubordination.
(i) Decisions rendered at all levels of the grievance
procedure shall be dated, shall be in writing setting forth the
decision or decisions and the reasons therefor for the decision,
and shall be transmitted to the grievant and any representative
named in the grievance within the time prescribed. If the
grievant is denied the relief sought, the decision shall include
the name of the individual at the next level to whom appeal may
be made.
(j) Once a grievance has been filed, supportive or
corroborative evidence may be presented at any conference or
hearing conducted pursuant to the provisions of this article.
Whether evidence substantially alters the original grievance and
renders it a different grievance is within the discretion of the
grievance evaluator at the level wherein where the new evidence
is presented. If the grievance evaluator rules that the evidence
renders it a different grievance, the party offering the evidence
may withdraw same it, the parties may consent to such the
evidence, or the grievance evaluator may decide to hear the
evidence or rule that the grievant must file a new grievance.
The time limitation for filing the new grievance shall be is
measured from the date of such the ruling.
(k) Any change in the relief sought by the grievant shall be
consented to by all parties or may be granted at level four
within the discretion of the hearing examiner.
(l) Forms for filing grievances, giving notice, taking
appeals, making reports and recommendations, and all other
necessary documents shall be made available by the immediate
supervisor to any employee upon request. Such The forms shall
include information as prescribed by the board. The grievant
shall have access to the employer's equipment for purposes of
preparing grievance documents subject to the reasonable rules of
the employer governing the use of such the equipment.
(m) Notwithstanding the provisions of section three,
article nine-a, chapter six of this code, or any other provision
relating to open proceedings, all conferences and hearings
pursuant to this article shall be conducted in private except
that, upon the grievant's request, conferences and hearings at
levels two and three shall be open to employees of the grievant's
immediate office or work area or, at the request of the grievant,
shall be public. Within the discretion of the hearing examiner,
conferences and hearings may be public at level four.
(n) No person shall may confer or correspond with a hearing
examiner regarding the merits of the grievance unless all parties
to the grievance are present.
(o) Grievances shall be processed during regular working
hours. Attempts shall be made to process the grievance in a
manner which does not interfere with the normal operation of the
employer.
(p) The grievant or the employee selected by a grievant to
represent him or her in the processing of a grievance through this procedure, or both, shall be granted necessary time off
during working hours for the grievance procedure without loss of
pay and without charge to annual or compensatory leave credits.
In addition to actual time spent in grievance conferences and
hearings, the grievant or the employee representative, or both,
shall be granted time off during working hours, not to exceed
four hours per grievance, for the preparation of such the
grievance without loss of pay and without charge to annual or
compensatory leave credits. However, it shall be understood by
all parties that the first responsibility of any state employee
is the work assigned by the appointing authority to the employee.
An employee may not allow grievance preparation and
representation activities by an employee shall not to seriously
affect the overall productivity of the employee.
(q) The aggrieved employee, employing agency and
representatives of both shall have the right to call, examine and
cross-examine witnesses who are employees of the agency against
which the grievance is lodged and who have knowledge of the facts
at issue.
(r) Both parties may produce witnesses other than employees
of the agency against which the grievance is lodged, and such the
witnesses shall be are subject to examination and
cross-examination.
(s) Should any If an
employer or the employer's agent cause
causes a conference or hearing to be postponed without adequate
notice to employees who are scheduled to appear during their normal work day, such the employees will may not suffer any loss
in pay for work time lost.
(t) Any grievance evaluator may be excused from
participation in the grievance process for reasonable cause,
including, but not limited to, conflict of interest or
incapacitation, and in such case if this occurs the grievance
evaluator at the next higher level shall designate an alternative
grievance evaluator if such is deemed it is reasonable and
necessary.
(u) No less than one year following resolution of a
grievance at any level, the grievant may by request in writing
have removed any record of the grievant's identity from any file
kept by the employer.
(v) All grievance forms and reports shall be kept in a file
separate from the personnel file of the employee and shall may
not become a part of such the personnel file, but shall remain
confidential except by mutual written agreement of the parties.
(w) The number of grievances filed against an employer or
agent or by an employee shall is not, per se, be an indication of
such the employer's or agent's or such the employee's job
performance.
(x) Any chief administrator with whom a grievance was is
filed may appeal a level four decision on the grounds that the
decision:
(1) was Is contrary to law or a lawfully adopted rule,
regulation or written policy of the employer;
(2) Exceeded Exceeds the hearing examiner's statutory
authority;
(3) was Is the result of fraud or deceit;
(4) was Is clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(5) was Is arbitrary or capricious or characterized by abuse
of discretion.
Such The appeal shall follow the procedure regarding appeal
provided the grievant in section four of this article and
provided both parties in section seven of this article.
§29-6A-4. Procedural levels and procedure at each level.
(a) Level one.
Within ten days following the occurrence of the event upon
which the grievance is based, or within ten days of the date on
which the event became known to the grievant, or within ten days
of the most recent occurrence of a continuing practice giving
rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the
immediate supervisor of the grievant. At the request of the
grievant or the immediate supervisor, an informal conference
shall be held to discuss the grievance within three days of the
receipt of the written grievance. The immediate supervisor shall
issue a written decision within six days of the receipt of the
written grievance.
If a grievance alleges discrimination or
retaliation by the immediate supervisor of the grievant, the
level one filing may be waived by the grievant and the grievance may be initiated at level two with the administrator or his or
her designee, within the time limits set forth in this subsection
for filing a grievance at level one. A meeting may be held to
discuss the issues in dispute, but the meeting is not required.
(b) Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may file a written appeal to the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency. The administrator or his or her
designee shall hold a conference within five days of the receipt
of the appeal and issue a written decision upon the appeal within
five days of the conference.
(c) Level three.
Within five days of receiving the decision of the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency, the grievant may file a written
appeal of the decision with the chief administrator of the
grievant's employing department, board, commission or agency. A
copy of the appeal and the level two decision shall be served
upon the personnel director of the state civil service commission
division of personnel by the grievant.
The chief administrator or his or her designee shall hold a
hearing in accordance with section six of this article within
seven days of receiving the appeal. The
personnel director of the state civil service commission division of personnel
or his
or her designee may appear at such the hearing and submit oral or
written evidence upon the matters in the hearing.
The chief administrator or his or her designee shall issue
a written decision affirming, modifying or reversing the level
two decision within five days of such the hearing.
(d) Level four.
(1) If the grievant is not satisfied with the action taken
by the chief administrator or his or her designee, within five
days of the written decision the grievant may request, in
writing, on a form furnished by the employer, that the grievance
be submitted to a hearing examiner as provided for in section
five of this article. such The hearing to shall be conducted in
accordance with section six of this article within fifteen days
following the request therefor for the hearing: Provided,
That
such the hearing may be held within thirty days following the
request, or within such a time as that is mutually agreed upon by
the parties, if the hearing examiner gives reasonable cause, in
writing, as to the necessity for such the delay. A copy of the
appeal shall be served by the grievant upon the director of the
division of personnel. of the state civil service commission
The director of the division of personnel, of the state civil
service commission or his or her designee, may appear at such the
hearing and submit oral or written evidence upon the matters in
the hearing.
(2) Within thirty days following the hearing, the hearing examiner shall render a decision in writing to all parties
setting forth findings and conclusions on the issues submitted.
Subject to the provisions of section seven of this article, the
decision of the hearing examiner shall be is final upon the
parties and shall be is enforceable in circuit court.
(e) Expedited grievance process.
(1) A grievance involving suspension without pay, demotion
or dismissal or loss of wages may be initiated at level two with
the administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency.
(2) An employee may grieve a final action of the employer
involving a dismissal, demotion or suspension exceeding twenty
days directly to the hearing examiner. The expedited grievance
shall be in writing and must shall be filed within ten days of
the date of the final action with the chief administrator and the
director of the division of personnel. of the state civil
service commission
§29-6A-5. Education and state employees grievance board; hearing
examiners.
(a) The education employees grievance board, created by
virtue of the provisions of section five, article twenty-nine,
chapter eighteen of this code, shall be hereafter known and
referred to as is renamed the education and state employees
grievance board and, in addition to those duties set forth in
said chapter eighteen, is hereby authorized and required to shall administer the grievance procedure at level four as provided for
in section four of this article.
The board has jurisdiction
regarding procedural matters at levels two and three of the
grievance procedure.
The board shall employ, in addition to
those persons employed as hearing examiners for educational
employee grievances, at least two full-time hearing examiners for
the purpose of conducting hearings at level four, as provided in
section four of this article. Such The hearing examiners shall
be are employed on an annual basis along with such the clerical
help as is necessary to implement the legislative intent
expressed in section one of this article.
In addition to the budget required for submission to the
Legislature by virtue of the provisions of section five, article
twenty-nine, chapter eighteen of this code, the board shall
submit a yearly budget and shall report annually to the governor
and the Legislature regarding proceedings conducted under this
article, including receipts and expenditures, the number of level
four hearings conducted, synopses of hearing outcomes and such
other information as the board may deem determines appropriate.
The board shall further evaluate on an annual basis the level
four grievance process and the performance of all hearing
examiners and include such the evaluation in the annual report to
the governor and the Legislature. In making such the evaluation
the board shall notify all employers, employee organizations, the
director of the division of personnel of the state civil service
commission and all grievants participating in level four grievances in the year for which evaluation is being made and
shall provide for the submission of written comment and/or or the
hearing of testimony regarding the grievance process, or both.
The board shall provide suitable office space for all
hearing examiners in space other than that utilized by any
employer as defined in section two of this article and shall
ensure that reference materials are generally available. The
board shall provide forms for filing grievances, giving notice,
taking appeals, making reports and recommendations and such
other documents as the board deems determines necessary for any
stage of a grievance under this article.
The board is authorized to promulgate propose rules for
promulgation and regulations consistent with the provisions of
this article, such rules and regulations to be adopted and in
accordance with article three, chapter twenty-nine-a of this
code.
(b) Hearing examiners are hereby authorized and shall have
the power to may consolidate grievances, allocate costs among the
parties in accordance with section eight of this article,
subpoena witnesses and documents in accordance with the
provisions of section one, article five, chapter twenty-nine-a
of this code, provide such relief as is deemed determined fair
and equitable in accordance with the provisions of this article,
and such other powers as will take any other action to provide
for the effective resolution of grievances not inconsistent with
any rules and regulations of the board or the provisions of this article: Provided,
That in all cases the hearing examiner shall
have has the authority to provide appropriate remedies including,
but not limited to, making the employee whole.
§29-6A-6. Hearings generally.
(a) The chief administrator or his or her designee acting as
a grievance evaluator or the hearing examiner shall conduct all
hearings in an impartial manner and shall ensure that all parties
are accorded procedural and substantive due process. All parties
shall have an opportunity to present evidence and argument with
respect to the matters and issues involved, to cross-examine and
to rebut evidence. Reasonable notice of a hearing shall be sent
prior to the hearing to all parties and their named
representative and shall include the date, time and place of the
hearing. Level one, level two and level three hearings shall be
at a convenient place accessible to the aggrieved employee. All
such hearings shall be held on the employer's premises or on
other premises mutually agreeable to the parties and within
regular working hours: Provided,
That any such hearing might
continue beyond normal working hours. Level four hearings shall
be at a place to be designated by the hearing examiner.
(b) The employer that is party to the grievance shall
produce prior to such the hearing any documents, not privileged,
and which are relevant to the subject matter involved in the
pending grievance, that have been requested by the grievant, in
writing.
(c) The chief administrator or his or her designee or the hearing examiner shall have has the power to (1) administer oaths
and affirmations, (2) subpoena witnesses, (3) regulate the course
of the hearing, (4)
hold conferences for the settlement or
simplification of the issues, by consent of the parties (5)
exclude immaterial, irrelevant or repetitious evidence, (6)
sequester witnesses, (7) restrict the number of advocates, and
(8) take any other action not inconsistent with the rules and
regulations of the board or the provisions of this article.
(d) All the testimony and evidence at any level three or
level four hearing shall be recorded by mechanical means, and all
recorded testimony and evidence at such the hearing shall be
transcribed and certified by affidavit. The chief administrator
shall be is responsible for promptly providing a copy of the
certified transcript of a level three hearing to any party to
that hearing who requests such the transcript. The hearing
examiner may also request and be provided a transcript upon
appeal to level four and allocate the costs therefor for the
transcript as prescribed in section eight of this article. The
board shall be is responsible for promptly providing a copy of
the certified transcript of a level four hearing to any party to
that hearing who requests such the transcript.
(e) Formal rules of evidence shall may not be applied, but
parties shall be are bound by the rules of privilege recognized
by law. No employee shall may be compelled to testify against
himself or herself in a grievance involving disciplinary action.
The burden of proof shall rest rests with the employer in disciplinary matters.
(f) All materials submitted in accordance with section three
of this article; the mechanical recording of all testimony and
evidence or the transcription thereof of the testimony, if any;
the decision; and any other materials considered in reaching the
decision shall be made a part and shall constitute are the record
of a grievance. Such The record shall be submitted to any level
at which appeal has been made, and such the record shall be
considered, but the development of such the record shall is not
be limited thereby.
(g) Every decision pursuant to a hearing shall be in writing
and shall be accompanied by findings of fact and conclusions of
law.
(h) Prior to such the decision any party may propose
findings of fact and conclusions of law.
§29-6A-7. Enforcement and reviewability; costs; good faith.
(a) The decision of the hearing examiner shall be is final
upon the parties and shall be is enforceable in circuit court.
Provided,
That
(b) Either party or the state civil service commission
director of the division of personnel may appeal
to the circuit
court of Kanawha County or
to the circuit court of the county in
which the grievance occurred on the grounds that the hearing
examiner's decision:
(1) was Is contrary to law or a lawfully adopted rule,
regulation or written policy of the employer;
(2) exceeded Exceeds the hearing examiner's statutory
authority;
(3) was Is the result of fraud or deceit;
(4) was Is clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(5) was Is arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
(c) Such The appeal shall be filed
in the circuit court of
the county in which the grievance occurred within thirty days of
receipt of the hearing examiner's decision. The decision of the
hearing examiner shall not be stayed, is not automatically stayed
upon the filing of an appeal, but a stay may be granted by the
circuit court upon separate motion therefor for a stay.
(d) The court's ruling shall be upon the entire record made
before the hearing examiner, and the court may hear oral
arguments and require written briefs. The court may reverse,
vacate or modify the decision of the hearing examiner or may
remand the grievance to the appropriate chief administrator for
further proceedings.
(e) Both employer and employee shall at all times act in
good faith and make every possible effort to resolve disputes at
the lowest level of the grievance procedure. The hearing
examiner may make a determination of bad faith and in extreme
instances allocate the cost of the hearing to the party found to
be acting in bad faith. Such The allocation of costs shall be
based on the relative ability of the party to pay such the costs.
§29-6A-10. Employee's right to attorney's fees and costs.
If an employee shall appeal appeals to a circuit court an
adverse decision of a hearing examiner rendered in a grievance
proceeding pursuant to provisions of this article or is required
to defend an appeal and such the person shall substantially
prevail prevails, the adverse party or parties shall be is liable
to such the employee, upon final judgment or order, for court
costs, and for reasonable attorney's fees, to be set by the
court, for representing such the employee in all administrative
hearings and before the circuit court and the supreme court of
appeals, and shall be is further liable to such the employee for
any court reporter's costs incurred during any such
administrative hearings or court proceedings. Provided,
That in
no event shall such attorney's fees be awarded in excess of a
total of one thousand five hundred dollars for the administrative
hearings and circuit court proceedings nor an additional one
thousand dollars for supreme court proceedings: Provided,
however,
That the requirements of this section shall not be
construed to limit the employee's right to recover reasonable
attorney's fees in a mandamus proceeding brought under section
nine of this article
§29-6A-12. Mediation required at request of either party.
Upon the request of either party, the board may require
mediation or other alternative dispute resolution technique to
assist the parties in identifying, clarifying and resolving
issues regarding the grievance. Mediation may be requested at any time prior to the level four hearing. All of the information
that is provided by parties during mediation is and shall remain
confidential. Mediators may not be called as witnesses to
provide testimony in unresolved grievances that proceed to a
grievance hearing, and any hearing examiner involved in a
mediation process may not hear the grievance or be consulted
regarding the merits of the grievance.