A "Forgotten Appeal Right" For State Employees?

Michael Byrne

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As most state employees know, a written warning is the lowest level of formal discipline imposed under North Carolina personnel policy. Many agencies also have less formal forms of written discipline, such as "supervisor's complaints" (DMV), "TAPS" entries (DOC), and "documented counseling" (DHHS and others). Written warnings carry only internal appeal rights, or none at all. The "lesser" written reprimands I've mentioned carry none at all in most cases. If an employee has one of these placed in his or her personnel file, and it contains misleading and inaccurate information, is there any meaningful appeal right available? Fortunately, the answer is, "yes."

N.C.G.S 126-25, part of the State Personnel Act, allows any state employee (including ones who haven't reached career status) to grieve management's refusal to remove from his or her personnel file any material that is "misleading" and/or "inaccurate." Most important is that the appeal right under N.C.G.S. 126-25 allows employees to pursue such cases beyond the "sandbox" of the internal grievance process and appeal to the Office of Administrative Hearings for a contested case hearing before an Administrative Law Judge - and further to the State Personnel Commission and the Superior Court, if need be.

This appeal to OAH is critical. While some employees enjoy success with internal grievances, most who visit my office feel that the deck is somewhat stacked against the employee in the internal grievance process. Whether that's true or not (I believe it generally is) the employee is certain to get a fair hearing of his or her case, if properly presented, at the OAH level before an independent administrative law judge.

How does the appeal right work?

Let's assume a hypothetical DMV examiner receives a written warning that says the following:

On September 17, 2007, you waited on Customer Smith in the Asheville DMV License Office. After waiting in line for four hours, Customer Smith was turned away by you for not having proper documentation. In fact, you should have determined Customer Smith's documentation was appropriate by waiving the requirement that Customer Smith show he is not a convicted murderer prior to receiving a license to drive a school bus.*

DMV policies offer you no appeal rights in this matter. This written warning will remain in your personnel file for 18 months or until the beginning of the 23rd century, whichever is shorter.

Let's also assume that, in fact, DMV policies made it clear that our hypothetical examiner did not have the authority to waive improper documentation.

Thus, we have a written warning that is inaccurate - as the employee did not in fact have authority to grant the murderous Customer Smith a license to drive children back and forth from school. However an examiner also generally has no control over how long the wait line is in his or her particular office. Thus, to the extent the written warning implies that the four-hour wait is the fault of our examiner, the written warning is also misleading. What to do?

The first step is to immediately make a written request to your supervisor that the offending material be removed from your file as misleading and inaccurate, explaining why it is. Assuming your supervisor refuses this request, you should then check your agency grievance policy and follow all the appropriate steps. While consulting with a lawyer may by useful (I assist many employees with internal grievances), grievants in the internal process are not permitted to have formal legal counsel.

Be very careful, as with any internal grievance, to follow the timelines from step to step. Quite a few agencies I've seen have timelines of as little as five calendar days for filing a Step 2 or Step 3 grievance (I question whether these are really enforceable in many cases, but that's an issue for another day). Read the policy, and follow it to the letter.

Assuming you reach the end of the internal grievance process without relief, you must then file a Petition for a Contested Case with the Office of Administrative Hearings within 30 days of receiving the last internal denial of your grievance. Then, you can proceed in OAH on your own or hire a lawyer. If you take matters to that level a lawyer is a virtual necessity. Your chances of prevailing against an agency represented by an attorney from the Department of Justice are between slim and none; the procedural issues alone are quite complex.

But what, you ask, about the statement that you have no appeal rights for the written warning? While it is true that you cannot appeal the issuance of the written warning, you can appeal to have it removed from your file on the grounds it is misleading and inaccurate. Once it's removed from your file, it's basically useless. Of course, the agency may choose to replace it with an accurate written warning - but in our hypothetical here, that would be a practical impossibility.

Now, most grievance policies require that a grievance be filed within 15 days of the grievable issue arising. What if 15 days have elapsed since the document was issued, and the employee (a) failed to file a grievance, and/or (b) didn't know about the document at all? In that case, I would simply make a written request for the removal of the document from the employee's personnel file. The supervisor's refusal to grant the request would in my view "re-start" the time clock to file a grievance. This is especially the case given that the general rule prohibits a time limit from being asserted against employees when the appeal right was not communicated to them in the document concerned - as was the case in our hypothetical.

So, either through the internal process or OAH, N.C.G.S. 126-25 provides a powerful tool for employees who have inaccurate or misleading information placed in their files - and this would include so-called "private" or "satellite" files kept by supervisors or managers, too. This is the case even when, as with the warning here, you cannot appeal the issuance of the warning itself. But if you can have the document removed from your file and destroyed as misleading and inaccurate, an appeal under N.C.G.S. 126-25 can provide a result that's just as favorable.

* Not based on any actual situation.