The District government's progressive discipline system allows for a comprehensive and impartial review of the facts associated with a proposed or summary removal action. The Administrative Review, performed by a Hearing Officer, entails an evaluation of the notice, supporting materials, and any employee responses to the action. The review yields a written report and recommendation that the Deciding Official must consider when issuing a final decision on the matter in question. This instruction outlines the general procedures for the Administrative Review process and the responsibilities of the Hearing Officer.

Employees who have been notified that they may be or have been removed from their position are entitled to an administrative review of the facts associated with the removal. The Administrative Review process is initiated once an agency issues a proposed or summary removal notice.

When an agency decides to take a proposed or summary removal action against an employee, the agency head (or his or her designee) must appoint a Hearing Officer to conduct a review of the relevant documents associated with the action. The Hearing Officer must meet the following criteria:

1. Be a grade level DS-13 and above or equivalent;
2. Be a licensed attorney (if available);
3. Must work outside of the supervisory of chain of command of the employee and the deciding official must not be a subordinate of the proposing official; and
4. Have no direct or personal knowledge of the matters contained in the proposed or summary removal action, aside from hearsay that does not affect impartiality.

Once an agency head has identified a Hearing Officer, the name and contact information of the person must be provided to the employee in the proposed or summary notice.

Employees who have been served a proposed or summary removal action have 10 days to submit a written response to the Hearing Officer. The employee response should include all evidence that he or she believes may significantly impact the agency's final decision on the matter. Evidence may include written statements from witnesses, affidavits, and other documents pertinent to the matter, or any other form or representation of information. If an employee does not submit a response, the Hearing Officer will only review any documentation or other evidence provided by the agency in support of the action.

The Hearing Officer must review the employee response and weigh the information with the notice and other supporting documentation received by the agency. The Hearing Officer review process is outlined below:

Each Hearing Officer must follow the above process for performing administrative reviews. In addition, the Hearing Officer must ensure that no substantive oral or written communications pertaining to the case occur between himself or herself and only one of the parties involved in the administrative review process (i.e. ex parte communication). A copy of any substantive inquiry or information sent by or to the hearing officer shall be served on the employee, the employee's representative (if any), and the agency representative.

Insufficient Evidence to Support Adverse Action

The proposing official is responsible for securing and providing sufficient evidence to support the proposed adverse action. In the event the Hearing Officer concludes that the agency has supplied insufficient evidence, the Hearing Officer should recommend that the action be rescinded for lack of evidence.

The Hearing Officer should not engage in his or her own investigation or request additional materials directly from either the employee or the agency.

Time Limit for Submission of Report

Within 30 days of receipt of an employee's response to the proposed or summary action, or upon the expiration of the employee's time to respond, the Hearing Officer must submit his or her written response and recommendation to the Deciding Official.

The Hearing Officer is responsible for ensuring that all documentation, information, and evidence submitted as part of the administrative review process is safeguarded and maintained in a confidential manner. As provided in General Records Schedule 1 (Personnel Records) (item 26(b)), all records relating to the administrative review are to be maintained for a period of four (4) years following closure of the case. These documents must be maintained separate from the employee's Official Personnel Folder. The General Records Schedule is accessible on the Office of the Secretary's website at www.os.dc.gov under the "Public Records Center" link.

Authorities

1. Statutory Authority: D.C. Official Code S 1-606.04 et. seq.; and
2. Regulatory Authority: 68 DCÀ4R S 1622 - Adruini¡tratiae Rauiew.

Applicability

The information in this instruction is not applicable to employees serving in a probationary period or temporary appointment in the Career Service; employees under the Office of the Chief Financial Officer; Attorneys in Legal or Senior Executive Attorney Services; employees in the Executive Service; employees in the Excepted Service; employees of the Board of Trustees of the University of the District of Columbia; and employees in the Management Supervisory Service, except as provided in 6B DCMR § 1600.3.

In the event of a conflict between any of the provisions of this E-DPM instruction and any collective bargaining agreement (CBA), the provisions of the CBA shall control to the extent there is a difference.

For additional information concerning this instruction, please contact the Department of Human Resources, Policy and Compliance Administration, by calling (202) 442-9700 or by sending an e-mail to [email protected].