CHAPTER 265. GRIEVANCE PROCEDURES
PRELIMINARY PROVISIONS Sec.
265.1. Purpose and scope.
265.2. Level I review.
265.3. Level II hearings.
265.4. Appeals—Level III.
265.5. Appeals—Level IV.
265.6. Costs.
265.7. Compliance.Source The provisions of this Chpater 265 adopted December 14, 1979, effective December 15, 1979, 9 Pa.B. 4050, unless otherwise noted.
PRELIMINARY PROVISIONS
§ 265.1. Purpose and scope.
(a) An aggrieved party shall process its grievance in accordance with the provisions of this chapter. An aggrieved party means any person, organization, or project funded directly by the SCA under a written contract and adversely affected by a decision of an SCA regarding its contract or rights thereunder.
(b) The provisions of this chapter delineate the procedures to be followed in processing a grievance between an SCA and an aggrieved party. The goal is to secure the efficient and prompt determination of these grievances.
(c) If an SCA has adopted its own grievance procedure, that procedure may be used provided it is approved by the Council. All requests for approval of existing county grievance procedures should be addressed to the Office of Chief Counsel; 2101 North Front Street; Suite N, Riverside Office Building No. 1; Harrisburg, Pennsylvania 17120.
(d) A copy of the procedure described in subsection (c) or any other approved procedure shall be distributed to all projects, persons, or organizations within each SCA’s jurisdiction in order to insure that the projects have full knowledge of this procedure.
§ 265.2. Level I review.
(a) An aggrieved party shall initially be entitled to a review of the SCA’s decision conducted by the SCA at an informal hearing, upon request of the aggrieved party. This informal review shall take place no later than 30 days following the SCA’s decision.
(b) The aggrieved party shall be given notice at least 10 days prior to the informal hearing and shall have the opportunity to be heard at such informal hearing conducted by the SCA to review its decision.
(c) The SCA shall make written findings and submit such findings to the aggrieved party within 30 days of the informal hearing. The provisions of this subsection supersede the provisions of 1 Pa. Code § § 35.201, 35.202, 35.205 and 35.207.
(d) If the aggrieved party appeals this decision within 30 days and gives written notice to the SCA that such appeal has been filed, the SCA shall, within five days thereafter, deliver its findings to the County Commissioners or the appropriate governing body.
(e) Failure to file a timely appeal shall result in a waiver of such right. The provisions of this subsection supplement the provisions of 1 Pa. Code § 35.213 (relating to effect of failure to except to proposed report).
§ 265.3. Level II hearings.
(a) An aggrieved party appealing a Level I review shall be entitled to a hearing at Level II. This appeal shall be filed no later than 30 days following the Level I review.
(b) Upon written request of the aggrieved party, the Board of County Commissioners or its delegate shall schedule a hearing no later than 30 days following receipt of such request. Notice of hearing shall be sent by certified or registered mail to the aggrieved party and the SCA. The provisions of this subsection supersede the provisions of 1 Pa. Code § 35.211 (relating to procedure to except to proposed report) and supplement the provisions of 1 Pa. Code § 35.121 (relating to initiation of hearings).
(c) The hearing shall be conducted by the Board of County Commissioners or the appropriate governing body established in accordance with § § 254.2 and 254.3 (relating to establishment of a Single County Authority; and organization and structure of SCA’s), or an independent hearing examiner approved thereby. The provisions of this subsection supplement the provisions of 1 Pa. Code § 35.185 (relating to designation of presiding officers).
(d) All parties shall be permitted to be represented by counsel, to present relevant evidence, and to examine and to cross-examine witnesses.
(e) During the hearing, the following provisions apply:
(1) The burden of proof shall be on the appealing party.
(2) The provisions of 231 Pa. Code (relating to rules of civil procedure). Evidentiary requirements shall be in conformity with 2 Pa.C.S. § 505 and 1 Pa. Code § § 35.137—35.139, 35.142, 35.145—35.152, 35.155, 35.161—35.169 and 35.173 (relating to evidence and witnesses).
(3) Stenographic notes shall be taken at these proceedings. The provisions of this paragraph supplement the provisions of 1 Pa. Code § 35.131 (relating to recording of proceedings).
(4) All hearings shall be open to the public under the act of July 19, 1974 (P. L. 486, No. 175) (65 P. S. § § 261-269).
(f) Following the hearings, the County Commissioners or the appropriate governing body shall render a written adjudication which shall be issued to the aggrieved party and the SCA within 20 days following receipt of the transcript of the proceedings. Such decision shall include findings of fact and conclusions based thereupon. The provisions of this subsection supersede the provisions of 1 Pa. Code § § 35.201 and 35.202 (relating to certification of record without proposed report; and proceedings in which proposed reports are prepared).
§ 265.4. Appeals—Level III.
(a) An appeal from the decision of the County Commissioners or the appropriate governing body shall be to the Council. Such appeal shall be in writing and shall be filed with the Council within 20 days following written receipt of the County Commissioner’s adjudication. Failure to file a timely appeal shall result in a waiver of such right. The provisions of this subsection supersede the provisions of 1 Pa. Code § 35.211 (relating to procedure to except to proposed report) and supplement the provisions of 1 Pa. Code § 35.213 (relating to effect of failure to except to proposed report).
(b) Appellant shall send a copy of the notice of appeal to the party whose decision it is appealing and to all other parties in interest.
(c) A notice of appeal shall contain the following:
(1) A statement of relevant facts and the grounds for the appeal.
(2) A statement of the questions presented.
(3) The relief requested by the appellant.
(d) The appealing party may, in writing, request the Council to issue a stay of such decision. Where justified, the Council may grant a stay no later than five days after receiving the request.
(e) The appeal procedure shall be as follows:
(1) The Board of County Commissioners or appropriate governing body shall forward a copy of the stenographic record and its adjudication to the Council immediately following receipt of the notice of appeal. Also, the board shall forward any other documents deemed relevant to the appeal which are a part of the record below. The provisions of this subsection supersede the provisions of 1 Pa. Code § 35.207 (relating to service of proposed reports).
(2) Within 30 days after receipt of such materials, the Council will set the day and time for the Level III hearing and send a copy of the notice of hearing to all parties.
(3) Continuances will not be granted except for good cause shown. All requests for continuances shall be in writing and shall be delivered to the Council and the opposing party.
(4) The Council will hear oral argument or designate a hearing examiner who has been approved by the Justice Department to sit on its behalf. Oral argument of each affected party shall not exceed 30 minutes. The provisions of this paragraph supplement the provisions of 1 Pa. Code § 35.185 (relating to designation of presiding officers) and supersede the provisions of 1 Pa. Code § 35.221 (relating to briefs and oral argument in absence of proposed report).
(5) Stenographic notes will be taken at these proceedings. The provisions of this paragraph supplement the provisions of 1 Pa. Code § 35.131 (relating to recording of proceedings).
(6) The Council’s review will be limited to:
(i) Whether the decision of the County Commissioners or local governing body was supported by the evidence.
(ii) Whether the decision of the County Commissioners or local governing body was an abuse of authority or discretion.
(iii) Whether the decision of the County Commissioners or local governing body was arbitrary, capricious, or discriminatory.
(iv) Whether the decision was contrary to existing law or regulations.
(7) In the event a hearing examiner is used, the hearing examiner shall report his findings and recommendation to the Council. The Council will then render an adjudication within 45 days after receipt of such recommen- dation. The provisions of this paragraph supersede the provisions of 1 Pa. Code § § 35.201, 35.202, and 35.226 (relating to proposed reports generally).
(8) Copies of the adjudication will be sent by certified mail to all parties. The provisions of this paragraph supersede the provisions of 1 Pa. Code § 33.31 (relating to service by the agency).
§ 265.5. Appeals—Level IV.
Any further appeals shall be taken to Commonwealth Court in accordance with the provisions of 2 Pa.C.S. § § 701—704 (relating to judicial review of Commonwealth agency action).
§ 265.6. Costs.
Each party will bear its own costs; the cost of the appeal is not eligible for reimbursement with funds of the Council.
§ 265.7. Compliance.
In cases where a party violates the provisions of this chapter, the Council or hearing examiner may:
(1) Deny or dismiss the hearing depending on the degree of the violation; or
(2) Reach a disposition of the matter based upon the evidence then before it.
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