Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 383 Second Substitute (2018GS)

Sponsor

Rep. Christensen, L.

Final action

Governor Signed 3/21/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• incorporates in statute the state's policy and commitment to provide and maintain a work environment free of abusive conduct;
• requires biennial training and annual reports to a legislative committee regarding abusive conduct and grievances;
• includes abusive conduct and other actions as conditions for which an employee may file a grievance and complaint;
• prohibits retaliatory action against an employee who represents or advocates for an employee in the grievance procedure as provided in statute;
• amends deadlines for submitting certain grievances;
• allows an employee to submit a grievance to higher steps in the grievance process if the grievance relates to a supervisor or administrator to whom the employee would otherwise submit a grievance;
• provides for an administrative appeal to the administrator of the Career Service Review Office; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

WORK ENVIRONMENT AND GRIEVANCE
PROCEDURE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: LaVar Christensen
Senate Sponsor: 
J. Stuart Adams
LONG TITLE
General Description:
This bill clarifies and amends grievance procedures for state employees in the executive
branch.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ incorporates in statute the state's policy and commitment to provide and maintain a
work environment free of abusive conduct;
▸ requires biennial training and annual reports to a legislative committee regarding
abusive conduct and grievances;
▸ includes abusive conduct and other actions as conditions for which an employee
may file a grievance and complaint;
▸ prohibits retaliatory action against an employee who represents or advocates for an
employee in the grievance procedure as provided in statute;
▸ amends deadlines for submitting certain grievances;
▸ allows an employee to submit a grievance to higher steps in the grievance process if
the grievance relates to a supervisor or administrator to whom the employee would
otherwise submit a grievance;
▸ provides for an administrative appeal to the administrator of the Career Service
Review Office; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
67-19-44
, as enacted by Laws of Utah 2015, Chapter 211
67-19a-101
, as last amended by Laws of Utah 2013, Chapter 427
67-19a-202
, as last amended by Laws of Utah 2015, Chapter 258
67-19a-301
, as last amended by Laws of Utah 2013, Chapter 427
67-19a-303
, as last amended by Laws of Utah 2013, Chapter 427
67-19a-401
, as last amended by Laws of Utah 2010, Chapter 249
67-19a-402
, as last amended by Laws of Utah 2010, Chapter 249
67-19a-402.5
, as last amended by Laws of Utah 2015, Chapter 258
67-19a-406
, as last amended by Laws of Utah 2013, Chapter 109
67-21-3.5
, as enacted by Laws of Utah 2013, Chapter 427 and last amended by
Coordination Clause, Laws of Utah 2013, Chapter 427
ENACTS:
67-19a-102
, Utah Code Annotated 1953
67-19a-205
, Utah Code Annotated 1953
67-19a-501
, Utah Code Annotated 1953
REPEALS AND REENACTS:
67-19a-302
, as last amended by Laws of Utah 2013, Chapter 427
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
67-19-44
 is amended to read:
67-19-44.
Abusive conduct.
(1) As used in this section:
(a) (i) "Abusive conduct" means verbal, nonverbal, or physical conduct of an employee
to another employee that, based on its severity, nature, and frequency of occurrence, a
reasonable person would determine:
(A) is intended to cause intimidation, humiliation, or unwarranted distress;
(B) results in substantial physical or psychological harm as a result of intimidation,
humiliation, or unwarranted distress; or
(C) exploits an employee's known physical or psychological disability.
(ii) A single act does not constitute abusive conduct, unless it is an especially severe
and egregious act that meets the standard under Subsection (1)(a)(i)(A), (B), or (C).
(b) "Employee" means an employee of a state executive branch agency.
(c) "Physical harm" means the impairment of a person's physical health or bodily
integrity, as established by competent evidence.
(d) "Psychological harm" means the impairment of a person's mental health, as
established by competent evidence.
(2) It is the policy of the state of Utah to provide and maintain a work environment free
from abusive conduct.
(3) An employee may file a written complaint of abusive conduct with the department
and subject to further administrative review in accordance with Section 
67-19a-501
.
[
(2)
] 
(4)
 By July 1, [
] 
, the department shall [
make a
] 
amend the department's
rule, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent
with the definitions in Subsection (1) 
and Title 67, Chapter 19a, Grievance Procedures
.
[
(3) (a) On and after July 1, 2015, the
]
(5) (a) The
 department shall provide 
biennial
 training to educate employees and
supervisors about how to prevent abusive workplace conduct.
(b) The training shall include information on:
(i) what constitutes abusive conduct and the ramifications of abusive conduct;
(ii) resources available to employees who are subject to abusive conduct; and
(iii) the grievance process.
[
(4) (a) On and after July 1, 2015, each
]
(6) (a) Each
 state agency shall provide professional development training approved by
the department to promote:
(i) ethical conduct; [
and
]
(ii) organizational leadership practices based in principles of integrity[
.
]
; and
(iii) the state policy described in Subsection (2).
(b) A state agency may request assistance from the department in developing training
under this Subsection [
(4)
] 
(6)
.
[
(5) Employees
] 
(7) (a) Employers shall provide and employees
 shall participate in the
training described in Subsections [
(3) and (4)
] 
(5) and (6) at the time the employee is hired or
within a reasonable time after the employee commences employment and
 in alternating years
thereafter
.
(b) The requirement in Subsection (7)(a) includes notification to all employees at the
time of hiring or within a reasonable time after the employee commences employment and in
alternating years thereafter of the abusive conduct complaint procedures and the grievance
procedures provided in Title 67, Chapter 19a, Grievance Procedures.
[
(6)
] 
(8)
 The department may use money appropriated to the department or access
support from outside resources to:
(a) develop policies against workplace abusive conduct; and
(b) enhance professional development training on topics such as:
(i) building trust;
(ii) effective motivation;
(iii) communication;
(iv) conflict resolution;
(v) accountability;
(vi) coaching;
(vii) leadership; or
(viii) ethics.
[
(7)
] 
(9)
 This section does not:
(a) exempt or relieve a person from a liability, duty, or penalty provided by another
federal or state law;
(b) create a private right of action;
(c) expand or diminish rights or remedies available to a person before July 1, 2015; or
(d) expand or diminish grounds for discipline that existed before July 1, 2015.
[
(8)
] 
(10)
 The department shall 
annually
 report to the Economic Development and
Workforce Services Interim Committee by no later than the November [
] interim meeting
regarding:
(a) the implementation of this section;
(b) recommendations, if any, to appropriately address and reduce workplace abusive
conduct or to change definitions or training required by this section; and
[
(c) if the department finds a change in a definition or training is needed, the
department's efforts to work with stakeholders to make recommendations for change.
]
(c) an annual report of the total number and outcomes of abusive conduct complaints
that employees filed and the department investigated.
Section 2. Section 
67-19a-101
 is amended to read:
67-19a-101.
Definitions.
As used in this chapter:
(1) "Abusive conduct" means the same as that term is defined in Section 
67-19-44
.
[
(1)
] 
(2)
 "Administrator" means the person appointed under Section 
67-19a-201
 to
head the Career Service Review Office.
[
(2)
] 
(3)
 "Career service employee" means a person employed in career service as
defined in Section 
67-19-3
.
(4) "Department" means the Department of Human Resource Management.
[
(3)
] 
(5)
 "Employer" means the state of Utah and all supervisory personnel vested with
the authority to implement and administer the policies of an agency.
(6) "Excusable neglect" means harmless error, mistake, inadvertence, surprise, a failure
to discover evidence that, through due diligence, could not have been discovered in time to
meet the applicable time period, misrepresentation or misconduct by the employer, or any other
reason justifying equitable relief.
[
(4)
] 
(7)
 "Grievance" means:
(a) a complaint by a career service employee concerning any matter touching upon the
relationship between the employee and the employer;
(b) any dispute between a career service employee and the employer; [
and
]
(c) a complaint by a reporting employee that a public entity has engaged in retaliatory
action against the reporting employee[
.
] 
; and
(d) a complaint that the employer subjected the employee to conditions that a
reasonable person would consider intolerable, including abusive conduct.
[
(5)
] 
(8)
 "Office" means the Career Service Review Office created under Section
67-19a-201
.
[
(6)
] 
(9)
 "Public entity" [
is as
] 
means the same as that term is
 defined in Section
67-21-2
.
[
(7)
] 
(10)
 "Reporting employee" means an employee of a public entity who alleges that
the public entity engaged in retaliatory action against the employee.
[
(8)
] 
(11)
 "Retaliatory action" means to do any of the following to an employee in
violation of Section 
67-21-3
:
(a) dismiss the employee;
(b) reduce the employee's compensation;
(c) fail to increase the employee's compensation by an amount that the employee is
otherwise entitled to or was promised;
(d) fail to promote the employee if the employee would have otherwise been promoted;
or
[
(e) cause the employee to resign by subjecting the employee to conditions that a
reasonable person would consider intolerable ; or
]
[
(f)
] 
(e)
 threaten to take an action described in Subsections [
(8)
] 
(11)
(a) through [
(e)
]
(d)
.
[
(9)
] 
(12)
 "Supervisor" means the person:
(a) to whom an employee reports; or
(b) who assigns and oversees an employee's work.
Section 3. Section 
67-19a-102
 is enacted to read:
 67-19a-102.
Work environment policy.
As recognized and provided in Section 
67-19-44
, it is the policy of the state of Utah to
provide and maintain a work environment free from abusive conduct.
Section 4. Section 
67-19a-202
 is amended to read:
67-19a-202.
Powers -- Scope of authority.
(1) [
(a)
] The office shall serve as the final administrative body to review a grievance
from a career service employee and an agency of a decision regarding:
[
(i)
] 
(a)
 a dismissal;
[
(ii)
] 
(b)
 a demotion;
[
(iii)
] 
(c)
 a suspension;
[
(iv)
] 
(d)
 a reduction in force;
[
(v)
] 
(e)
 a dispute concerning abandonment of position;
[
(vi)
] 
(f)
 a wage grievance if an employee is not placed within the salary range of the
employee's current position;
[
(vii)
] 
(g)
 a violation of a rule adopted under Chapter 19, Utah State Personnel
Management Act; or
[
(viii)
] 
(h)
 except as provided by Subsection (1)(c)(iii), equitable administration of the
following benefits:
[
(A)
] 
(i)
 long-term disability insurance;
[
(B)
] 
(ii)
 medical insurance;
[
(C)
] 
(iii)
 dental insurance;
[
(D)
] 
(iv)
 post-retirement health insurance;
[
(E)
] 
(v)
 post-retirement life insurance;
[
(F)
] 
(vi)
 life insurance;
[
(G)
] 
(vii)
 defined contribution retirement;
[
(H)
] 
(viii)
 defined benefit retirement; and
[
(I)
] 
(ix)
 a leave benefit.
[
(b)
] 
(2)
 The office shall serve as the final administrative body to review a grievance by
a reporting employee alleging retaliatory action.
(3) The office shall serve as the final administrative body to review the findings of an
abusive conduct investigation without an evidentiary hearing.
[
(c)
] 
(4)
 The office may not review or take action on:
[
(i)
] 
(a)
 a personnel matter not listed in [
Subsection (1)(a) or (b)
] 
Subsections (1)
through (3)
;
[
(ii)
] 
(b)
 a [
grievance
] 
personnel matter
 listed in [
Subsection (1)(a) or (b)
] 
Subsections
(1) through (3)
 that alleges discrimination or retaliation related to a claim of discrimination that
is a violation of a state or federal law for which review and action by the office is preempted by
state or federal law; or
[
(iii)
] 
(c)
 a [
grievance
] 
personnel matter
 related to a claim for which an administrative
review process is provided by statute and administered by:
[
(A)
] 
(i)
 the Utah State Retirement Systems under Title 49, Utah State Retirement and
Insurance Benefit Act;
[
(B)
] 
(ii)
 the Public Employees' Benefit and Insurance Program under Title 49, Chapter
20, Public Employees' Benefit and Insurance Program Act; or
[
(C)
] 
(iii)
 the Public Employees' Long-Term Disability Program under Title 49,
Chapter 21, Public Employees' Long-Term Disability Act.
[
(2)
] 
(5)
 The time limits established in this chapter supersede the procedural time limits
established in Title 63G, Chapter 4, Administrative Procedures Act.
Section 5. Section 
67-19a-205
 is enacted to read:
 67-19a-205.
Employment transfer.
At any point during the grievance process, the employer and the employee may
mutually agree to a transfer of the employee to another equivalent position, if and to the extent
that such a position is available, in accordance with department rules for transfer and
reassignment.
Section 6. Section 
67-19a-301
 is amended to read:
67-19a-301.
Charges submissible under grievance procedure.
(1) This grievance procedure may only be used by career service employees who are
not:
(a) public applicants for a position with the state's work force;
(b) public employees of the state's political subdivisions;
(c) public employees covered by other grievance procedures; or
(d) employees of state institutions of higher education.
(2) (a) Whenever a question or dispute exists as to whether an employee is qualified to
use this grievance procedure, the administrator shall resolve the question or dispute.
(b) The administrator's decision under Subsection (2)(a) is reviewable only by the
Court of Appeals.
(3) Any career service employee may submit a grievance based upon a claim or charge
of injustice or oppression, including dismissal from employment, resulting from an act,
occurrence, omission, or condition for solution through the grievance procedures set forth in
this chapter.
(4) A reporting employee who desires to bring an administrative claim of retaliatory
action shall use the grievance procedure described in Section 
67-19a-402.5
.
(5) A career service employee who desires to bring a grievance described in Subsection
67-19a-202
(1) shall use and follow the grievance procedure described in Part 3, Grievance
Procedures, and Part 4, Procedural Steps to Be Followed by Aggrieved Employee.
(6) An employee who desires to initiate an administrative review challenging the
findings of an abusive conduct investigation shall use and follow the procedure described in
Section 
67-19a-501
.
Section 7. Section 
67-19a-302
 is repealed and reenacted to read:
 67-19a-302.
Levels of procedure.
(1) The administration of all grievances under Subsection 
67-19a-202
(1) occurs on the
following four levels:
(a) Level 1 - the supervisor;
(b) Level 2 - the division director or the director's designee;
(c) Level 3 - the agency director or the director's designee; and
(d) Level 4 - the office.
(2) (a) Except as provided in Subsection (2)(b) and Section 
67-19a-501
, an employee
shall file a grievance or complaint at Level 1 and proceed through the levels of procedure
within the applicable time limits provided in this chapter.
(b) If a supervisor or division director is a subject of a grievance or complaint, the
employee may proceed directly to Level 2 or Level 3, respectively.
(3) A career service employee may advance all grievances to Level 3.
(4) In accordance with Section 
67-19a-402.5
 and subject to Section 
67-21-4
, a
reporting employee may file a grievance alleging retaliatory action directly at Level 4.
Section 8. Section 
67-19a-303
 is amended to read:
67-19a-303.
Employees' rights in grievance procedure.
(1) For the purpose of submitting and advancing a grievance, a career service
employee, or a reporting employee alleging retaliatory action, may:
(a) obtain assistance by a representative of the employee's choice to act as an advocate
at any level of the grievance procedure;
(b) request a reasonable amount of time during work hours to confer with the
representative and prepare the grievance; and
(c) call other employees as witnesses at a grievance hearing.
(2) The state shall allow employees to attend and testify at the grievance hearing as
witnesses if the employee has given reasonable advance notice to the employee's immediate
supervisor.
(3) No person may take any reprisals against a career service employee or a reporting
employee for
:
(a)
 use of 
or participation in
 a grievance procedure described in this chapter[
.
]
; or
(b) representing and providing assistance to a career service employee as an advocate
in accordance with Subsection (1)(a).
(4) If the individual acting as an advocate for a career service employee under
Subsection (1)(a) is a state employee, the individual may not receive state compensation for the
time the employee spends in the course of that representation unless the individual uses
approved leave during that time.
[
(4)
] 
(5)
 (a) The employing agency of an employee who files a grievance may not place
grievance forms, grievance materials, correspondence about the grievance, agency and
department replies to the grievance, or other documents relating to the grievance in the
employee's personnel file.
(b) The employing agency of an employee who files a grievance may place records of
disciplinary action in the employee's personnel file.
(c) If any disciplinary action against an employee is rescinded through the grievance
procedures described in this chapter, the agency and the Department of Human Resource
Management shall remove the record of the disciplinary action from the employee's agency
personnel file and central personnel file.
(d) An agency may maintain a separate grievance file relating to an employee's
grievance, but shall discard the file after three years.
Section 9. Section 
67-19a-401
 is amended to read:
67-19a-401.
Time limits for submission and advancement of grievance by
aggrieved employee -- Voluntary termination of employment -- Group grievances.
(1) [
Subject to the provisions of Part 3, Grievance Procedures, and the restrictions
contained in this part,
] 
When
 a career service employee [
may have
] 
files
 a grievance [
addressed
by following the procedures
] 
at Level 1, as described in Section 
67-19a-302
, the employee
shall advance the grievance through the proper levels of procedure
 specified in this [
part
]
chapter
.
(2) The employee and the person to whom the grievance is directed may agree in
writing to waive or extend grievance steps specified under Subsection 
67-19a-402
(1), (2), or
(3) or the time limits specified for those grievance steps, as outlined in Section 
67-19a-402
.
(3) Any writing made under Subsection (2) shall be submitted to the administrator.
(4) Except as provided under [
Subsection (6)
] 
Subsections (6) and (7)
, if the employee
fails to advance the grievance to the next procedural step within the time limits established in
this part:
(a) the employee waives the right to advance the grievance or to obtain judicial review
of the grievance; and
(b) the grievance is considered to be settled based on the decision made at the last
procedural step.
(5) [
(a)
] An employee may [
submit
] 
file
 a grievance for review under this chapter
[
only
]
, except as provided in Subsections (6) and (7),
 if the employee submits the grievance
within 30 working days after
:
[
(i) within 20 working days after
] 
(a)
 the 
most recent
 event giving rise to the
grievance; or
[
(ii)
] 
(b)
 [
within 20 working days after
] the employee has knowledge of the 
most
recent
 event giving rise to the grievance.
[
(b) Notwithstanding Subsection (5)(a), an employee may not submit a grievance more
than one year after the event giving rise to the grievance.
]
(6) (a) An employee may file with the office a motion for an enlargement of a time
limit described in Subsection (5).
(b) In determining whether to grant a motion described in Subsection (6)(a), the office
shall consider, giving reasonable deference to the employee, whether:
(i) the employee filed the motion before the time limit the employee seeks to enlarge;
or
(ii) the enlargement is necessary to remedy the employee's excusable neglect.
[
(6)
] 
(7)
 The provisions of Subsections (4) and (5)[
(a)
] do not apply if the employee
meets the requirements for excusable neglect [
established by rule
] 
as that term is defined in
Section 
67-19a-101
.
[
(7) A person who has voluntarily terminated the person's employment with the state
may not submit a grievance after the person has terminated the employment.
]
(8) (a) If several employees allege the same grievance, the employees may submit a
group grievance by following the procedures and requirements of this chapter.
(b) In submitting a group grievance, each aggrieved employee shall sign the grievance.
(c) The administrator may not treat a group grievance as a class action, but may select
one aggrieved employee's grievance and address that grievance as a test case.
Section 10. Section 
67-19a-402
 is amended to read:
67-19a-402.
Procedural steps to be followed by aggrieved employee.
(1) (a) [
A
] 
Subject to the provisions and levels of procedure provided in Section
67-19a-302
, a
 career service employee who has a grievance shall submit the grievance in
writing to:
(i) the employee's supervisor; and
(ii) the administrator.
(b) Within five working days after receiving a written grievance, the employee's
supervisor may issue a written decision on the grievance.
(2) (a) If the employee's supervisor fails to respond to the grievance within five
working days or if the aggrieved employee is dissatisfied with the supervisor's written decision,
the employee may advance the written grievance to the employee's agency or division director
within 10 working days after the expiration of the period for response or receipt of the written
decision, whichever is first.
(b) Within five working days after receiving the written grievance, the employee's
agency or division director may issue a written response to the grievance stating the decision
and the reasons for the decision.
(3) (a) If the employee's agency or division director fails to respond to the grievance
within five working days after its submission, or if the aggrieved employee is dissatisfied with
the agency or division director's written decision, the employee may advance the written
grievance to the employee's department head within 10 working days after the expiration of the
period for decision or receipt of the written decision, whichever is first.
(b) Within 10 working days after the employee's written grievance is submitted, the
department head may issue a written response to the grievance stating the decision and the
reasons for the decision.
(c) The decision of the department head is final in all matters except those matters that
the office may review under the authority of Part 3, Grievance Procedures.
(4) If the written grievance submitted to the employee's department head meets the
subject matter requirements of Section 
67-19a-202
 and if the employee's department head fails
to respond to the grievance within 10 working days after submission, or if the aggrieved
employee is dissatisfied with the department head's written decision, the employee may
advance the written grievance to the administrator within 10 working days after the expiration
of the period for decision or receipt of the written decision, whichever is first.
Section 11. Section 
67-19a-402.5
 is amended to read:
67-19a-402.5.
Procedural steps to be followed by reporting employee alleging
retaliatory action.
(1) A reporting employee who desires to assert an administrative grievance of
retaliatory action:
(a) shall submit the grievance in writing within [
] 
 days after the day on which the
retaliatory action occurs;
(b) is not required to comply with Section 
63G-7-402
 to file the grievance; and
(c) is subject to the provisions of Section 
67-21-4
.
(2) (a) When a reporting employee files a grievance with the administrator under
Subsection (1), the administrator shall initially determine:
(i) whether the reporting employee is entitled, under this chapter and Chapter 21, Utah
Protection of Public Employees Act, to bring the grievance and use the grievance procedure;
(ii) whether the office has authority to review the grievance;
(iii) whether, if the alleged grievance were found to be true, the reporting employee
would be entitled to relief under Subsection 
67-21-3.5
(2); and
(iv) whether the reporting employee has been directly harmed.
(b) To make the determinations described in Subsection (2)(a), the administrator may:
(i) hold an initial hearing, where the parties may present oral arguments, written
arguments, or both; or
(ii) conduct an administrative review of the grievance.
(3) (a) If the administrator holds an initial hearing, the administrator shall issue a
written decision within 15 days after the day on which the hearing is adjourned.
(b) If the administrator chooses to conduct an administrative review of the grievance,
the administrator shall issue the written decision within 15 days after the day on which the
administrator receives the grievance.
(4) (a) If the administrator determines the office has authority to review the grievance,
the administrator shall provide for an evidentiary hearing in accordance with Section
67-19a-404
.
(b) The administrator may dismiss the grievance, without holding a hearing or taking
evidence, if the administrator:
(i) finds that, even if the alleged grievance were found to be true, the reporting
employee would not be entitled to relief under Subsection 
67-21-3.5
(2); and
(ii) provides the administrator's findings, in writing, to the reporting employee.
(c) The office shall comply with Chapter 21, Utah Protection of Public Employees Act,
in taking action under this section.
(5) A decision reached by the office in reviewing a retaliatory action grievance from a
reporting employee may be appealed directly to the Utah Court of Appeals.
(6) (a) Except as provided in Subsection (6)(b), an appellate court may award costs and
attorney fees, accrued at the appellate court level, to a prevailing employee.
(b) A court may not order the office to pay costs or attorney fees under this section.
Section 12. Section 
67-19a-406
 is amended to read:
67-19a-406.
Procedural steps to be followed by aggrieved employee -- Hearing
before hearing officer -- Evidentiary and procedural rules.
(1) (a) The administrator shall employ a certified court reporter to record the hearing
and prepare an official transcript of the hearing.
(b) The official transcript of the proceedings and all exhibits, briefs, motions, and
pleadings received by the hearing officer are the official record of the proceeding.
(2) (a) The agency has the burden of proof in all grievances.
(b) The agency must prove the agency's case by substantial evidence.
(3) (a) The hearing officer shall issue a written decision within 20 working days after
the hearing is adjourned.
(b) If the hearing officer does not issue a decision within 20 working days, the agency
that is a party to the grievance is not liable for any claimed back wages or benefits after the date
the decision is due.
(4) The hearing officer may:
(a) not award attorney fees or costs to either party;
(b) close a hearing by complying with the procedures and requirements of Title 52,
Chapter 4, Open and Public Meetings Act;
(c) seal the file and the evidence produced at the hearing if the evidence raises
questions about an employee's character, professional competence, or physical or mental
health;
(d) grant continuances according to rule; and
(e) decide a motion, an issue regarding discovery, or another issue in accordance with
this chapter.
(5) (a) A hearing officer shall affirm, rescind, or modify agency action.
(b) (i) If a hearing officer does not affirm agency action, the hearing officer shall order
back pay and back benefits that the grievant would have received without the agency action.
(ii) An order under Subsection (5)(b)(i) shall include:
(A) reimbursement to the grievant for premiums that the grievant paid for benefits
allowed under the Consolidated Omnibus Reconciliation Act of 1985; and
(B) an offset for any state paid benefits the grievant receives because of the agency
action, including unemployment compensation benefits.
(c) In an order under Subsection (5)(b)(i), a hearing officer may not reduce the amount
of back pay and benefits awarded a grievant because of income that the grievant earns during
the grievance process.
(6) An employee who files a grievance in accordance with this chapter may appeal a
decision of the office directly to the Utah Court of Appeals in accordance with Title 63G,
Chapter 4, Administrative Procedures Act.
Section 13. Section 
67-19a-501
 is enacted to read:
Part 5. Abusive Conduct Administrative Review
 67-19a-501.
Procedural steps to be followed in an administrative review of an
abusive conduct investigation.
(1) An employee may initiate an administrative review of the findings of an abusive
conduct investigation within 10 days after the day on which the employee receives notification
of the investigative findings.
(2) (a) An employee bringing an administrative review of the findings described in
Subsection (1) may file the request for the administrative review directly with the office.
(b) The request for administrative review may set forth the reasons for the appeal and
include any submissions the employee desires to submit.
(3) (a) When an employee initiates the review described in Subsection (2) with the
office:
(i) the role of the administrative review is to review and rule upon the department's
findings and decision; and
(ii) an evidentiary hearing is not required.
(b) The department shall make the abusive conduct investigative file available for the
administrator's in camera review.
(c) The administrator may:
(i) request additional relevant documents from the department or the affected
employee; and
(ii) interview the department's investigators who conducted the investigation.
(4) (a) If the administrator determines that the investigator's findings are not
reasonable, rational, and sufficiently supported by the record, the administrator may overturn
the findings and remand to the agency for appropriate action.
(b) The administrator may uphold the department's investigative findings if, based on
the administrative review, the administrator determines that the investigator's findings are
reasonable, rational, and sufficiently supported by the record.
(5) (a) Within 30 days after the day on which an employee initiates an administrative
review under this section, the administrator shall issue a notice stating whether the
administrator upheld or overturned the investigative findings.
(b) The office's determination upon administrative review of the findings resulting
from an abusive conduct investigation is final and not subject to appeal.
(c) The following are classified as protected under Title 63G, Chapter 2, Government
Records Access and Management Act, and any other applicable confidentiality provisions:
(i) the request for administrative review and any accompanying documents;
(ii) documents that any party provides;
(iii) the contents of the administrative review file; and
(iv) the office's determination.
Section 14. Section 
67-21-3.5
 is amended to read:
67-21-3.5.
Administrative review of adverse action against a public entity
employee.
(1) A public entity employee who believes that the employee's employer has taken
retaliatory action against the employee in violation of this chapter may file a grievance with the
Career Service Review Office in accordance with Section 
67-19a-402.5
 and subject to Section
67-21-4
.
(2) If the Career Service Review Office determines that retaliatory action is taken in
violation of this chapter against the public entity employee, the Career Service Review Office
may order:
(a) reinstatement of the public entity employee at the same level held by the public
entity employee before the retaliatory action;
(b) the payment of back wages, in accordance with Subsection 
67-19a-406
(5)(b);
(c) full reinstatement of benefits;
(d) full reinstatement of other employment rights; or
(e) if the retaliatory action includes failure to promote, as described in Subsection
67-19a-101
[
(8)
]
(11)
(d), a pay raise that results in the employee receiving the pay that the
employee would have received if the person had been promoted.
(3) A public entity employer has the burden to prove by substantial evidence that the
public entity employer's action was justified.
(4) A public entity employee or public entity employer may appeal a determination of
the Career Service Review Office as provided in Section 
67-19a-402.5
.