11.0453 Grievances.

Cite as [A.S.A.C. § 11.0453]

A. All appeals must be made in writing and state clearly the basis for appeals to the Board of Directors via the Chief Executive Officer and must be filed in the Office of the Chief Executive Officer within ten work days after the effective date of the action appealed, except in the case of RIF, (Chapter 8). The appeal should also include the employee’s request for a hearing if the individual desires and is entitled to one.

B. If the Chief Executive Officer approves the hearing, it shall include the written appeal on the agenda of the Board’s next scheduled meeting. If the appeal involves a removal, suspension or demotion, however, the Chief Executive Office shall arrange an appeal hearing as soon as possible and the hearing shall be heard by the Board within 30 days after the receipt of the appeal by the Chief Executive Officer. However, the Board of Directors may deny a hearing for any reason, extraordinary circumstance or when the employee has failed to request a hearing offered before the original decision.

C. Hearings before the Board of Directors shall be conducted in accordance with the procedures promulgated by the Board. Copies are available in the Chief Executive Officer’s Office.

D. Attendance of other interest parties and or counsel may be limited by the Chief Executive Officer if good order, justice and fairness will be promoted.

E. An employee who is terminated from career service may request the Board of Directors to place his name on an appropriate re-employment list and the Board of Directors shall grant this request where the circumstances are found to warrant re-employment.

F. An employee may terminate their appeal at any time. An employee’s request that his appeal be discontinued should there, be complied with.

G. A proper appeal filed before the death of the employee must be processed to completion and adjudicated. If appropriate, the Board of Directors may provide for amendment of the employee’s records to show retroactive restoration and the employee’s continuance on the rolls in an active duty status to the date of death.

H. If the decision is to take adverse action and the employee appeals this action, the appeal must be considered by the Chief Executive Officer. On the other hand, if the decision is not to take this adverse action no further action is required by the Chief Executive Officer in terms of consideration to the appeal.

I. Hearing Preparations shall be follows:

1. Prior to the hearing, the entire appeal file shall be made available upon request to the employee or to a representative except when a file contains medical records concerning a physical or mental condition which a prudent physician would hesitate to inform the person concerned.

2. All parties shall be served with notice at least ten days before the date set for the hearing. The notice shall state the time and place of such hearing.

J. Authorization for Depositions.

1. A party who desires to take the deposition of any person in an oral examination shall give reasonable notice of not less than three days in writing to the Board of Directors and all parties. The notice shall state the time and place of taking the deposition and the name and address of each person to be examined.

2. The deposition officer shall be a person who is authorized to administer oaths by the laws of the Territory of American Samoa.

3. The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. The officer shall then securely seal the deposition in an envelope endorsed with the title of the proceedings and marked “Deposition of (here insert name of the witness)” and shall promptly send it by registered or certified mail to the Chief Executive Officer for filing. The party taking the deposition shall give prompt notice of its filing to all other parties.

K. Conduct of Hearings.

1. The employee shall present his case first. Evidence may be either documentary or by affidavit. The employee must not use affidavits to exempt persons from cross examination. The employee should not accept an affidavit in lieu of personal testimony from a witness who is present at the hearing.

2. All persons appearing in proceedings before the Board of Directors in a representative capacity shall conform to the standards of ethical conduct required of attorneys and witnesses before the Court of American Samoa. If any such person does not conform to such standards, the Board of Directors may decline to permit such person to appear in a representative capacity in any proceeding before the Board of Directors.

3. Witnesses shall be assured freedom from restraint, interference, coercion, discrimination or reprisal in presenting their testimony. Employees are in a duty status during the time they are made available as witnesses.

L. Conclusions. Within 30 days after the conclusion of the hearings, the Board of Directors shall make fully record in its permanent records finding of fact and reasons for the action taken and its order based thereon which shall be final, subject only to further action if the employee appeals the decision in court. At the same time the Board of Directors shall send a copy of the findings and conclusions to the employee’s address as given at the hearing or to a representative designated by the employee.

M. Restoration of Rights. Any employee, when fully reinstated after appeal, shall be guaranteed all employee rights and benefits, including back pay, sick leave, annual leave, accrual and retirement.

N. Correction of Performance Evaluation. A correction of a performance evaluation shall not affect a certification or appointment which has already been made from the register; the decision of Board of Directors in matters shall be final and binding.

O. Correction of Classification Decision. Correction of a classification decision which results in a promotion or demotion shall be handled as stated in (Chapter 3) of this manual. The Board of Directors will determine the effective date of any such action.

History: Rule 06-98, eff. Mar. 3, 1999