§ 11A-37.1. Appeals process.

(1)

Any County employee or applicant protected by Section 11A-27 may file an appeal of an adverse determination of the Director within fifteen (15) days of receipt of the determination, unless the complaint involves the discipline of an employee with a right to appeal under Section 2-47 of the Code. If the complaint involves the discipline of an employee with the right to appeal, any issue of discrimination or retaliation shall be resolved through the process established under Section 2-47 of the Code of Miami-Dade County or, to the extent available under any applicable collective bargaining agreement, through grievance and arbitration. County employees and applicants with the right to appeal the Director's determination shall have the right to have a hearing examiner appointed under this article, subject to budgetary appropriations by the Board of County Commissioners, to review the determination of the Director. The hearing examiner shall conduct an evidentiary hearing and make findings of fact and a recommendation as to whether there has been a violation of Section 11A-28 and if so shall recommend an appropriate remedy.

(2)

Any hearing examiner appointed pursuant to this article shall be sufficiently independent to assure that no external interference or influence adversely affects the independence and objectivity of the hearing officer. Accordingly, there will be no external influence on the hearing examiner in the performance of his or her duties from any persons, including the Mayor or any member of the administrative staff, and that no Commissioner or employee of a Commissioner shall take part in the appointment or removal of officers and employees in the administrative services of the County, as such external influence would adversely affect the independence and objectivity of the hearing examiner.

(3)

Upon receipt of a request for an appeal, the Director shall refer the appeal request to a hearing examiner available to serve as such under Section 2-47. Subject to budgetary appropriations by the Board of County Commissioners, such hearing examiners may be paid a fee for their services, but shall not be deemed County officials or employees within the purview of Sections 2-10.2, 2-11.1 or otherwise. The hearing examiner shall conduct a hearing after notice to the County employee or applicant and the County department involved. The hearing shall be conducted in accordance with the procedures applicable to hearings under Section 2-47, except as may be provided herein. Any interested party may procure the attendance of witnesses and the production of records at such hearing in the manner provided by Section 2-50. All hearings requested pursuant to this paragraph shall be commenced insofar as is practicable within one hundred twenty (120) days of the Director's determination, except that the Director shall have the authority to extend such time for reasonable cause.

(4)

The hearing examiner shall transmit his or her findings of facts, and any recommendations, including any proposed remedies as set forth in subsection (5) of this section, together with a transcript of all evidence taken before him or her and all exhibits received by him or her to the Mayor or Mayor's designee for a final decision. The Mayor or Mayor's designee may sustain, reverse or modify the Director's decision. In any case in which the hearing examiner finds that the employee filed a frivolous complaint in bad faith, the hearing examiner may recommend and the Mayor or Mayor's designee may direct the employee to pay the costs of the hearing, including the County's attorney's fees.

(5)

Remedies. In the event the hearing examiner finds that there has been a violation of Section 11A-28, he or she may recommend the following remedies, and no others:

(a)

Hiring of the applicant or promotion of the employee with accrued seniority, with accrued benefits and with back pay;

(b)

Reinstatement of the employee to the same position held before the adverse action was commenced or to an equivalent position, or award reasonable front pay as alternative relief;

(c)

Reinstatement of the employee's fringe benefits and seniority rights, as appropriate;

(d)

Compensation of the employee, if appropriate, for lost wages, benefits or other lost remuneration caused by the adverse action; and/or

(e)

Requiring reasonable accommodation.

(6)

The Mayor or the Mayor's designee's final order shall be subject to review in accordance with the Florida Rules of Appellate Procedure. For purposes of such review, any original jurisdictional notices required to be filed under the Florida Rules of Appellate Procedure shall be filed with the Director. The Director shall provide the index and record on appeal when required by, and in accordance with, the Florida Rules of Appellate Procedure. A fee may be charged by the Director for the preparation and transmission of the record on appeal to the court of competent jurisdiction. Such fee may be waived by the Director if the party requesting the record is indigent.

(7)

Any County employee found to have discriminated or retaliated against another County employee or applicant in violation of this section shall be considered to have committed a violation of the section and shall be subject to disciplinary action up to and including dismissal from County employment.

(8)

A career service employee, except in the case of disciplinary action, shall have the option of utilizing an unfair labor practice procedure, or a grievance procedure established under Section 447.101 of the Florida Statutes or the procedures set forth in this Article VI, but such employee is precluded from availing himself or herself to more than one of these procedures. Applicants shall have the option of utilizing an unfair labor practice procedure or the procedures set forth in this Article VI, but such applicant is precluded from availing himself or herself to more than one of these procedures. Once an employee or applicant has selected a forum for his or her appeal to be heard, he/she is bound by that decision and cannot seek to be reheard in another forum.

(9)

The Mayor or the Mayor's designee shall provide an annual report to the Board of County Commissioners with regard to the number of cases filed under this Article VI and the disposition of said cases.

(Ord. No. 13-39, § 4, 5-7-13)